Humphreys v. Magee

NAPTON, J. This was an action brought agaiust a stakeholder to recover money paid over by him before the determination of the bet. Wo reliance seems to be placed upon any of the points made at the trial, except two. The first was that the suit was barred by lapse of time — our statute relative to Gaming'requiring suits under that act to bo brought within three months from the time when the cause of action accrued. The second point raised was by ■an instruction, that the plaintiff could not recover if others were partners with him in the bet, and at ail events, could only recover so much as belonged to ■ him individually. This instruction was refused. If the action had been under the statute, the first objection must have been fatal. But we look upon the action as a common law one. It was not brought to recover back money won at gaming, nor was it based upon any provision of our act. It ivas founded on a common law right, to withdraw a sum of money bet, before the bet was determined. In this case the court left it to the jury to say, whether the bet was determined or not. The bet was upon a horse-race, and the judges of the race could not agree. Wevertheless the defendant, who was a stakeholder, paid over the bet upon some ex-parte opinion of the judges, after, they had publicly announced their disagreement as to the result. The jury found for the plaintiff. The verdict, under the instructions, must be considered as a finding of the fact that the bet was never determined, and therefore the money handed to the stakeholder was, upon common law principles, so mnehmoney received to the use of the plaintiff'. Such money may be recovered without any reference to any provision of our act concerning Gaming, and such was the instruction of the court which tried this case.(a) In relation to the point which was raised by the defendant’s instruction, that a recovery could not he had, if others than the plaintiff were privately concerned in the bet, that point was settled by this court in accordance with the opinion of the Circuit Court in the case of Cato v. Hudson, 7 Mo. R. 142. Judgment affirmed. Footnotes [a] (a) Eubanks v. State, 5 Mo. R. 450, and note; Hickerson v. Benson et al., 8 Mo. R. 8.