| Me. | Jan 29, 1879
It was long ago settled in this state that all betting is illegal; yet the losing and therefore penitent gamester has never been denied a remedy, either by the courts or the legislature. It seems to have been thought that his folly and ignorance were sufficiently' punished by the direct penalties to which he was liable, and by his being compelled to. base his claim to retrieve his loss upon grounds generally regarded as derogatory both to his honor and his understanding.
It is plain that there can be no legal objection to permitting a party to an illegal transaction to withdraw from it while it is still incomplete. Hence the stakeholder has been held liable to the loser for the money deposited in his hands, where he has been notified by him not to pay it over to the winner at any time before it was actually paid, even though the stakeholder was an infant, his infancy being held not to be a bar to an action of trover for the wrongful conversion of the plaintiff’s money under such circumstances. Lewis v. Littlefield, 15 Maine, 233.
It is true that, when the money has once been paid over to the winner, it cannot be recovered, unless a remedy is given by stat ute. But that is not this case. Betting on elections is declared illegal by R. S., c. 4, § 69. It is placed on the same footing with other gambling, and is certainly not less mischievous.
Under the original statute, (c. 172, approved April 16, 1841,) the parties betting each forfeited “ a sum equal to ” the wager, to the use of the city or town where he resided, to be recovered by an action of debt in any court competent to try the same. No transformation which the statute has undergone in the process of revision indicates any intention on the part of the legislature to change the substance of the forfeiture, though the form of action has been changed to case. It is not merely the identical money wagered which may be pursued ; it might not always be possible to identify or trace it. The action by the city must, in any event, be brought within a year, according to the provisions of R. S., c. 81, § 90, and it must be against a party making the bet. The liability of the plaintiff to a judgment in favor of the city against him for an equivalent amount cannot affect his right of action against the stakeholder, when it does not appear that the fund has been in any way impounded in the stakeholder’s hands to meet the city’s judgment. Unless the necessary legal steps have been taken to enforce a forfeiture, a man whose money or property is liable to forfeiture under the law is still entitled to all the remedies that the law gives him for the protection of his rights in it.
It is no part of the duty of the stakeholder to enforce the penalty in favor of the city, nor can he avail himself of the plaintiff’s liability to the city as a defense to this action, upon any testimony here developed.
Exceptions sustained. Nonsuit set aside. New trial granted.