4 Barb. 524 | N.Y. Sup. Ct. | 1848
Wager contracts upon indifferent matters were valid at common law. (3 Term Rep. 603. 5 Burr. 502. 1 Cowp. 37. 2 Id. 734. 4 John. 434. 16 East, 156.) But all wagers which tended to a breach of the peace, or to injure the feelings, character, or interests of a third person, or which were against the principles of morality, or of sound policy, were void at common law. (See the cases above cited, and 1 Term Rep. 50; 2 Bos. & Pul. 130; 7 John. 434; 4 Kents Com. 466.) All wager contracts in contravention of the positive provisions of any statute law are also void. Our present statute, (1 R. S. 662, §§ 8 and 9,) reaches and makes void wagers of every description. It declares that “ all wagers, bets, or stakes made to depend upon any gaming by lot or chance, or upon any lot, chance, or casualty, or unknown or contingent event whatever, shall be unlawful;” and that “ all contracts for, or on account of any money or property or thing in action so wagered, bet, or staked, shall be void.” These provisions invalidate every wager which was allowed at common law. Wagers upon the result of a popular election are void at common law, independent of the statute. This was so held in Bunn v. Riker, (4 John. Rep. 426;) Lansing v. Lansing (8 Id. 354;) Vischer v. Yates, (11 Id. 23;) Yates v. Foot, (12 Id. 1;) Denniston v. Cook, (Id. 376;) Rust v. Gott, (9 Cowen, 169;) and in Bush v. Keeler, (5 Wend. 250.) ■ The principles settled in these cases invalidate all wagers upon elections, whether made before, during, of after the election. Such wagers are pronounced void at common law, because they are against the principles of sound policy. (4 John. 434, per Van Ness, J. Allen v. Harris, 1 Term Rep. 59. Vischer v. Yates, 11 John. 28, per Kent, Ch. J. Rust v. Gott, 9 Cowen, 174,175, per Wood-worth, J.) A wager contract is equally void if it be against the principles of public policy, as if it contravenes a positive law. This was so decided in Jones v. Randall, (Cowp. 37,) and in Mount v. Wait, (7 John. 440, per Kent, Ch. J.)
There is a distinction between executory and.executed illegal contracts. Where money has been paid on an illegal contract which has been executed, and both the parties are in
If then, the transaction in this case, between the plaintiff and defendant, can, in any view which may be taken of it, be regarded as a contract, it is very clear that it was never executed. The contract, if any, was that the- money sent to the defendant should be bet by the defendant for the plaintiff, with Thompson. This bet never was made. The contract therefore, continued executory; the money, in contemplation of law, remained in the defendant’s hands, and was in his hands when this suit was commenced ; and the suit was brought in disaffirmance of the contract. I cannot see why, upon the prinx ciples of the cases cited, the plaintiff has not a perfect right to . reclaim the money deposited by him in the hands of the defendant. The cases of Perkins v, Savage, (15 Wend. 412,) and of DeGroot v. Van Duzer, (20 Id. 396,) are in my judg
If the defendant was merely the agent of the plaintiff in making the contemplated bet with Thompson—and this is all the proof makes out—the defendant cannot excuse himself from paying over the money, because it was sent to him for an illegal purpose. As long as money deposited with an agent for an . illegal purpose remains unemployed ; or if the purpose be countermanded by the principal before its application, it is a debt which may be recovered from the agent by the principal, either at law or in equity. (Taylor v. Lendie, 9 East, 49. 13 Ves. 313. 2 Black. Com. 467. Tenant v. Elliot, 1 Bos. & Pul. 3. Farmer v. Russell, 2 Id. 296. Paley Ag. Dunlap's ed. p. 62, § 8.) As no wager was made in this case ; that is, no wager authorized by the plaintiff; and as no contract was entered into between the plaintiff and defendant, for or. on account of any money, &c., “ wagered, bet, or staked,” this
The motion to set aside the nonsuit, and for a new trial, must be granted.