57 Cal. 78 | Cal. | 1880
This is an action to recover a wager alleged by the plaintiff to have been made and won by him on the result of a horse-race. The defendants, who were the stakeholders, interposed a demurrer to the complaint, which was overruled by the Court; and thereupon they answered, denying that the plaintiff won the wager, but averring that the other party thereto did win it, and that as such winner they had paid the stakes to him. After trial, judgment was rendered for the plaintiff.
It is the first case of the kind that has reached this Court.
Johnson v. Fall, 6 Cal. 359, was an action brought to recover a wager made between the defendant and one McNulty, that a railroad, then in contemplation between Benicia and Marysville, would be completed within two years from the date of the wager; and this Court sustained the action, holding that it was sustainable at common law, and—since the common law has been adopted as the rule of decision in this State, except where changed by statute—sustainable here. While at common law a wager made in respect to matters not affecting the feelings, in
As observed already, at common law, no action in affirmance of a contract of wager made against good morals or sound public policy was maintainable; and such, in our opinion, was the nature of the wager in this action. Indeed, if the question were a new one in this State, we should be inclined to hold all wagers contrary to good morals and sound public policy, and therefore invalid ; for every bet, as said by the Supreme Court of South Carolina in Rice v. Gist, 1 Strob. 84, “ tends directly to beget a desire of possessing another’s money or property, without an equivalent.” See also Collamer v. Day, 2 Vt. 146; Wheeler v. Spencer, 15 Conn. 30; Lewis v. Littlefield, 13 Me. 233; Edgall v. McLaughlin, 6 Whart. 176; and Wilkinson v. Tousley, 16 Minn. 299, where it was held, that a wager similar to that here under consideration was illegal and invalid, as against good morals and sound public policy.
In Johnston v. Russell, supra, it was held, that where an illegal wager is made, the parties to it may, before the wager is decided, recover their stakes from each other, or from the stakeholder, if one has been employed; but that after the money has been lost and won, and the result generally known, neither party should be heard in a court, of justice. To the same effect is Hill v. Kidd, 43 Cal. 615.
The impropriety of the courts entertaining such actions as this is well illustrated by the circumstances of the present case; for it appears from the record to have been conceded in the Court below that the right of the plaintiff to recover depended upon the question whether the wager made was a “ by bet ” or a “ time bet.” To determine this question, several witnesses
Judgment and order reversed, and cause remanded to the Court below, with directions to dismiss the action.
Morrison, C. J., and McKinstry, J., concurred.
