| Ark. | Jan 15, 1841
delivered the opinion of the court:
Wagers, contrary to public policy, that are immoral, or affect the feelings, interests, or characters of third persons, are contrary to sound policy, and are not recoverable in law. In a country where elections are frequent, and free, as in this, every means should be adopted to maintain them pure. Wagers operate on the passions, and influence the parties, by the strongest motives of pecuniary interest, to support, and induce others to’vote for the same person. The freedom of choice and unbiassed action is destroyed. The disposition to select men for their integrity and capacity, no longer exists. And the corrupting influence proceeding from this species of gambling is unfortunately felt, to a very great extent, by every class of society. The consequences resulting from it, are to be deeply deplored: and therefore it is, that the courts uniformly discountenance actions where they are founded in iniquity and injustice. Is the claim of the defendants in error of a character that will permit them to come into court with clean hands and pure consciences, and ask aid in the recovery of a claim for which no consideration has been received? All the parties to the record were participes criminis. Bennett, the partner of Fick-lin, as stake-holder of the notes, was cognizant that they were bet upon an election then pending; and, though both parties had agreed, prior to the result, to rescind the wager and withdraw the notes, Bennett refused to deliver them up. And, notwithstanding Jeffrey notified him that he would not pay it, in any event, he retained possession, and, upon the result of the election, delivered the saddle to Bagley, the winner, and sued Jeffrey upon his note, which was for the payment of the saddle, and obtained judgment in the circuit court, on appeal. Betting upon elections then pending, as calculated to endanger the peace and harmony of society, and to have a corrupting influence upon the public morals, has uniformly been considered as contrary to sound policy; and so it was decided in England, upon a wager on the election of a member to Parliament, 1 T. R. 56, Allen vs. Hearne. The whole doctrine is ably reviewed and sustained in the case of Yates vs. Foot, 12 J. R. 1. As to the character in which the defendants in error stand, Comyn, in his Treatise on Contracts, 30, 46, says, that, “It is a general rule, that if the contract be executed, and both parties in pari delicto, neither of them can recover, from the other, the moneys so paid; but if the contract continues,and the party is desirous of rescinding it, he may do so, and recover back the deposit.” And this distinction is taken in the books,viz: “Where the action is in affirmance of an illegal contract, for the performance of an engagement malum in se, it can in no case be maintained. But where the action is in disaffirmance of such a contract, and, instead of'endeavoring to enforce it, presumes it to be void, and seeks to prevent the defendant from retaining the benefit which he derived from an unlawful act, then it is consonant to the spirit and policy of the law that he should recover.” A stake-holder who pays over money bet upon an election, in opposition to the express notice and order of the better, must do so at his peril; nor can a stake-holder refuse to deliver up the wager, if demanded by the party, before the final result of the election. The contract was executory. The wager probably originated in hasty zeal and the impulse of passion, and when, on cool reflection, they were desirous of rescinding it, Bennett refused to return the stake as, by law, he was bound to do. Having a knowledge of the whole transaction, and the consideration for which the note was given, the circuit court erred in giving judgment in favor of the plaintiff. The judgment is reversed,