Harnden v. Melby

Putney, J. This aetion was brought under the statute .(R. S. sec. 4532) which provides that “Any person who „ , . by betting or wagering on any game, election [8] , . . or on the issue or the event thereof, . . . shall have put up, staked or deposited with any stakeholder or third person any money, property or thing in action, or shall have lost and delivered the same to any winner thereof, may within three months after such putting up, staking or depositing, sue for and recover the same from such stakeholder or third person, whether such money, property or thing in action has been lost or won, or whether it has been delivered over by such stakeholder or third person to the winner or not; . . . and if he shall not so sue for and recover such money,” etc., “ within the time above limited, then am/y other person may, in his behalf a/nd in his name, sue for and recover the same for the use and benefit of his family or his heirs, in case of his death, from such stakeholder or third person, if the same is still held by him, within six months after such putting up, staking or depositing.” This statute provides a remedy for the recovery of money illegally bet or wagered by the owner thereof, and, if he will not sue for it, by an action in his behalf, but in his name, by any other person, irrespective of the question whether he in point of fact made the wager or whether the money was deposited in his name. The object of the statute is to secure a recovery of the money by the owner or in his name for the benefit of his family; and the owner of the money is, within the meaning of the statute, the real depositor of it. Like the New York statute (2 R. S. of N. Y. [4th ed.] p. 12, sec. 9), the action may be maintained by any one who has deposited any money, etc., on an illegal wager; and in that state it has been held that a party who deposits or stakes a sum of money on such a wager may recover so much thereof as belongs to himself, without joining in the action other persons who contributed specific portions of the fund. Ruckman v. Pitcher, 1 N. Y. 392. It is not material in whose name the money is bet or deposited. The [9] action is given to the owner or owners of it or on their behalf, if so bet or wagered on their behalf and with their privity or consent. "When the same case was before the court of appeals on a subsequent occasion, it was held that a person depositing his own money and that of others upon an illegal wager could only recover against a stakeholder the proportion belonging to himself. The action must be brought by the real depositor, although the name of another may have been used in making the wager. Ruckman v. Pitcher, 20 N. Y. 9. We regard the construction placed on the New York statute as manifestly applicable to our own statute on the same-subject. The statute of this state, unlike that of New York,, allows the action, in case the real depositor fails to sue for the recovery of the money lost or wagered within three months, to be brought and recovery had by any other person, in his behalf and in his name, within six months after it was bet or wagered, for the benefit of his family; but a person so bringing an action in the name of another can only recover the amount such other contributed to the fund-illegally bet or wagered. In this case the action is by Elbra M. Harnden, in the name of the plaintiff, Ziba Harnden; and it is alleged in the complaint to be in his behalf and for the benefit of his family, and it was not brought for the money of any other person being a part or portion of the-bet or wager. The evidence of Harnden's ownership of the money sued for is far from satisfactory. As to one half of the money deposited and wagered in his name, the evidence tends strongly to show that the real owner and depositor of it was Reitzel, and that Harnden's relation to it was to this extent merely nominal. The case should have been submitted to the jury, upon the evidence, to find what portion of the money bet or wagered was Hamden's money, and to give a verdict for that sum only. It was error to* take this question from the consideration of the jury, and. [10] to direct a verdict for the plaintiff for the entire sum bet <or wagered. By the Court.— The judgment of the circuit court is reversed, and the cause remanded for a new trial. Newhar, J., took no part.