29 Neb. 812 | Neb. | 1890
This action was commenced in the county court of Harlan county by C. A. Bennett, the defendant in error, to recover $400 from Oscar H. Deaver, the plaintiff in error, for money deposited by Bennett with Deaver as stakeholder as a wager on a horse race. The petition filed in that court states “that plaintiff on or about the 11th day of August, 1888, made a wager with one W. J. Fitch, upon the result of a certain horse race which afterwards was to take place on the race track in the town of Orleans, and thereupon plaintiff and said Fitch each paid over to the defendant
Two questions are raised by the demurrer:
First — Can money which has been deposited with a stakeholder as a wager on the result of a horse race be recovered by the party depositing the same, from the stakeholder, if demanded after the wager is decided and before the money has been paid to the winner?
Second — Does the petition allege that a demand was made before the money was turned over by the defendant to Fitch?
The legislature, in 1887, amended section 214 of the Criminal Code to read as follows:
“Every person who shall play at any game whatever for any sum of money or other property of value, or shall bet any money or property upon any gaming table, bank, or device prohibited by law, or at or upon any other gambling device, or who shall bet at any game played at or by means of any such gaming table or gambling device, shall, upon conviction, be fined in any sum not less than one hundred dollars and not exceeding three hundred dollars, or be imprisoned in the penitentiary not
The plaintiff insists that he is entitled to recover the money under the proviso clause of the above quoted section, claiming that horse racing is a “game of hazard.” As we construe the language of this section it has no application to the case at bar. It only authorizes a recovery against the persons participating in the game, and the keeper of the gambling house or other place where the money or property was lost. It is evident that where the stakeholder takes no part in the game, an action cannot be maintained against him under this statute. (Riddle v. Perry, 19 Neb., 505.) The petition does not allege that the' defendant took a part in the race. Whether money lost on the result of such a race can be recovered from the persons participating therein we do not decide, as the question does not arise in this case.
There being no legislative enactment authorizing the
Undoubtedly that is a correct statement of the law on the subject, and it is well sustained by the decisions of the highest courts of the other states. (Collamer v. Day, 2 Vt., 146; Tarleton v. Baker, 18 Id., 1; Stacy v. Foss, 19 Me., 335; Ball v. Gilbert, 12 Met., 397; Perkins v. Eaton, 3 N. H., 155; Wilkinson v. Tousley, 16 Minn., 299 (263); Bledsoe v. Thompson, 6 Richardson’s Law, 44; Cleveland v. Wolff, 7 Kan., 184.)
The' statute in force when the cause of action in Riddle v. Perry, supra, occurred, made betting on a horse race a penal offense, and it is conceded that that law was repealed by the legislature in 1887, when it adopted the above quoted section 214 of the Criminal Code. That ease is, therefore, not authority now, unless contracts of wager on the result of a horse race are illegal when not declared- so by legislative enactment.
The rule at the common law was that all wagering contracts that were contrary to good morals or public policy were illegal and void. The courts of England at an early day held that betting on a horse race was not opposed to good morals. The courts of that country reluctantly followed this early precedent, until the common law interpretation of wagering contracts was changed by the statutes of
The case in all its facts like the one at bar is Wilkinson v. Tousley, 16 Minn., 299. In that state, as in this, the betting on the result of a horse race is not made illegal by statute. The court held in that case that the wager was illegal and that the money was recoverable from the stakeholder by the loser. Berry, J., in delivering the opinion of the court, after reviewing the decisions of the court of England and this country on the subject, says: “ From the standpoint from which the subject of wager contracts was viewed by the courts in England at the time when it was originally determined as a rule of law that wagers upon indifferent subjects or questions were valid contracts, they were not regarded as contrary to good morals, or sound public policy. And this rule having become established has been followed, though, as remarked by LeBlanc, J., in Gilbert v. Sykes, 16 East [Eng.], 156, ‘ It has often been lamented that actions upon idle wagers should ever have been maintained in courts of justice.’ The practice seems to have prevailed before that full consideration of the subject which has been
In Bledsoe v. Thompson, 6 Richardson’s Law, 44, the plaintiff sued to recover money deposited by him with the defendant as stakeholder, as a wager on a horse race. The wager was decided against the plaintiff, who notified the defendant not to pay the money over, but the defendant paid the money afterwards to the winner. The supreme court of South Carolina held the contract illegal and that the plaintiff could recover his money, notwithstanding the
A wagering contract being illegal, either party to it may retrace the illegal step and demand his money or property put up at any time before it is turned over to the winner. The stake does not belong to the winner until received by him, nor does it belong to the stakeholder. While in the hands of the stakeholder it belongs to the party depositing it. This case, therefore, falls within the rule laid down in Riddle v. Perry, supra, and is governed thereby.
The point is made that the petition does not allege that a demand was made for the money before it was paid over. The petition states that the plaintiff notified the defendant not to turn over the money to Fitch, which he refused to do, but paid it over to Fitch. While the allegations of the petition in regard to the demand made by the plaintiff are not very full and definite, yet we think it sufficiently appears that the money had not been paid over when the defendant was notified that the plaintiff claimed it. If the defendant desired a more definite statement of the facts he should- have filed a motion for that purpose. The allegations are sufficient to resist a demurrer.
The judgment of the district court was right and is
Affirmed.