| Ark. | Oct 24, 1891
On the 7th day of May, 1890, the appellant filed his complaint at law in the court below, in which he alleged that, on the 3d day of May, 1890, he was postmaster at Helena in this State, having for his assistant postmaster one W. B. Lindsey, who was duly qualified as such; that, in the course of the discharge of his official duties, there came .into the possession of Lindsey a large sum of money, of ■which he embezzled and converted to his own use the sum ■of $Sooo, which plaintiff was liable to pay. over to the United States ; that the defendant Owens had been, from the xst •day of January, 1890, a keeper of a licensed saloon and dram-.shop in Helena, and that, in connection with the keeping of the same, and in rooms connected therewith and under his control, Owens set up and exhibited various gambling devices, to which numerous persons habitually resorted, with his knowledge, consent and procurement, for the purpose of gaming, and did then and there actually engage in gaming with his consent and procurement; that among these was said Lindsey, during the time that he was assistant postmaster, as Owens well knew; and that Lindsey, at divers times between the 1st day of January and the 3d day of May, ■did, of the money coming to his possession as aforesaid, bet and lose the sum of $5000 on said gaming devices thus carried on by said Owens at his said rooms ; that said Lindsey was wholly insolvent, and had absconded, and that the plaintiff had been compelled to account for the sum thus embezzled, including the sum bet and lost ■ as aforesaid ; that, at the time a license was issued to Owens to keep his dram-shop, as a condition thereof he executed a bond, in accordance with the statute in such cases made and provided, with the other two defendants as sureties, conditioned according to law, a copy of which was annexed as an exhibit to the complaint. Plaintiff prayed judgment against the defendant for the amount of the penalty of the bond, under section 4516, Mansf. Digest, and for the further sum of $3000 against the defendant, Owens.
The defendant filed separate general demurrers to the complaint, which were sustained by the court, and the plaintiff appealed.
If Lindsey, as the agent of the plaintiff, had bet and lost money at gaming, plaintiff could maintain his action. Mechem on Agency, sec. 779. But such was not this case. The plaintiff lost the money by the embezzlement of it by-Lindsey, who bet and lost it at the gaming table on his own account, and not as the agent of the plaintiff. We have examined a number of cases deciding that a person who deposits money upon an illegal wager can recover it, and they seem to confine the right to the real depositor, and to hold that he alone can sue for the same and recover it. Ruckman v. Pitcher, 20 N. Y., 10; Mead v. McGraw, 19 Ohio St., 55; Swaggerty v. Stokely, 1 Swan, 38.
At common law money deposited upon an illegal wager could not be recovered by the loser when it had been paid-over to the winner, for both parties were “ in pari delictop and the law would aid neither. The right to recover in such a case exists only by statute, and the right to recover on the bond in this case depends wholly upon the statute.
The demurrer to the complaint was properly sustained..
The judgment is affirmed.