We do not think it necessary, in this case, to enter on the general discussion whether, in this Commonwealth, a wager on an indifferent subject, in which the parties have no other interest than that created by the wager itself, is a legal contract, or one which may be enforced in a court of justice. . In England, it has been reluctantly held, until recently, and still is, unless changed by statute, that for an equal wager, upon an indifferent subject, depending upon a contingency, though of a trivial nature, an action may be maintained; Good v. Elliott, 3 T. R. 693; though in that case a very able dissenting opinion upon the general ground was given by Mr. Justice Buller.
But even in England, the general rule is held subject to so many restrictions and exceptions, that it remains applicable to very few cases. If the wager be upon a game or other trans action prohibited by law; if it draw into question the rights, feelings, interests or quiet of other persons ; if it promote any violation of law, or operate as an incitement to a breach of the peace ; if it be contrary to good morals or sound public policy, the wager is void. In Massachusetts, it is believed no action has been sustained upon a wager ; perhaps because none has been brought. We are not aware that there has been any direct adjudication on the subject. As far as judicial opinions have been indirectly expressed, they have been adverse to such an action. Amory v. Gilman,
But it is perhaps useless to speculate upon the genera.
If one bet can be made on an election, many can be made. If small sums can be staked, large ones can. So that, on a great and exciting popular election, a large amount of money may depend on the result. All those who are acting together will have a common, and may have a large, pecuniary interest m the issue. And it is conformable to the most obvio is
But money may be applied to effect the result, not only in the coarse, palpable and offensive form of bribery, by the direct purchase of votes, but in other modes quite as efficacious, and not less detrimental to the public interest. It may be applied, by the managers of the respective parties, to the provision of treats and other gratifications; to the opening of houses of entertainment, to which partisans may resort at free cost, where the passions may be stimulated, the moral sense perverted, and all (idea of social duty and personal responsibility overwhelmed in mere blind partisan feeling and desire of triumph, which lose sight of the object for which the right of suffrage is conferred. An election so influenced could not be regarded as the expressed will of an intelligent constituency ; it would violate the whole theory, on which the right of suffrage is founded, and destroy the confidence of all judicious persons in that particular power of the people, which has been regarded as the principal security for permanent, regulated, constitutional liberty. If it be true that wagers on elections would have any tendency to create such a pecuniary interest in their result, as we have no doubt they
But the position here taken is well supported by authority. It was held, in England, that a wager on the event of an election of a member of parliament was void; but that was a bet between voters. Allen v. Hearn, 1 T. R. 56. So in Pennsylvania. M’Allister v. Hoffman, 16 S. & R. 147. Smith v. M’Masters, 2 Browne, 182. So in New York. The first case was that on an election in which the parties were voters; one party had voted, but by possibility the other party might have voted after the bet was made, and some stress was laid on this circumstance. Bunn v. Riker,
Supposing, then, the contract to be illegal and absolutely void, what are the rights and obligations of the respective narties under it. The law will not lend its aid to carry into effect an illegal contract, if it be executory, nor to restore the party who has paid money on it, if executed. They are in pari delicto. The winner cannot maintain an action against the loser to recover it if not paid, nor the loser to recover it back when paid.
A question might arise, whether the stakeholder might not stand on the same footing, and he held to be amenable to neither party for money received on such a wager; but we think it clear that in no proper sense can the stakeholder be regarded as a party to the illegal contract, or in pari delicto«
We think the money deposited by each party was a simple, naked deposit, respecting which the agreement to pay it over to one, according to the result of the pending presidential election, and not executed by actual payment, was wholly inoperative and void ; and then, by implication of law, the money was so deposited to the use of the depositors respectively ; and that an action for money had, and received would
If it be urged that the contract was voidable, and could only be avoided by the party himself who had made the deposit; that it was a personal privilege to rescind it, which he might exercise or not, by notice to the depositary not to pay over; and that no such notice, or notice of the revocation of his authority, was given personally by the principal defendant to the trustee ; we think the argument cannot avail. The contract, as between the parties to the wager, was not voidable only, but absolutely void; not as injurious to the rights of one party, which he may avoid at his election, but as contrary to public policy, and wholly void, and needed not the act or will of the party to rescind it.
The contract being void between the parties, the money in the hands of the stakeholder becomes a naked deposit to the use of the depositor, and is precisely within the provisions of the trustee law. He has effects of the principal defendant intrusted and deposited in his hands, liable to be attached. Rev. Sts. c. 109, <§> 4.
As an owner of'money or other property may give it away without consideration, if he can do it without injury to his creditor or other third person, so he may authorize one holding money for his use to do the same. If, therefore, such stakeholder has paid over the money, with the authority of the depositor, before notice of the revocation of such authority, and before the right of any third person has intervened, the depositor, as we have seen, cannot recover it back. In the present case, the money had not been paid over when the attachment was made; no formal act of revocation on the part of the depositor was necessary; the attachment was an
Trustee charged.
A question having arisen upon the trustee’s claim for costs, the court are of opinion that as he had appeared at the first term at the court of common pleas, and submitted himself to examination, he was entitled to his travel and attendance in that court, to be taxed, together with $3 for his answer; all to be deducted from the funds in his hands. Rev. Sts. c. 109, ■§>■§> 49, 50. But as he appealed from the judgment of that court, charging him as trustee, under which he might have safely paid the money, the court are of opinion that he is entitled to no costs afterwards.
Notes
In Evans’s Essays on the action for money had and received, (Amer. ed.) 46-48, it is said that the report of Lacaussade v. White, 7 T. R. 535, is “substantially wrong; ” that the action was brought by the winner, and not the loser; that the loser availed himself of the illegality of the contract, to ave id performing his engagement, and in addition to this, wished to retain what he had received as the consideration for a contract which he had elected to vacate, end which, therefore, was in effect paid without consideration.