| Iowa | Dec 22, 1859
This case presents but one question, can a party depositing and loaning money upon a wager recover the same from a stakeholder before the same has been paid over to the winner. The District Court held that he could not and gave judgment for the defendant for costs.
Defendant relies upon section 2724 of the Code, which provides, “All promises, agreements, notes, bills, bonds or other contracts, mortgages or other securities, when the whole or any part'of the consideration thereof is for money or other valuable thing,- won or lost, laid, staked or bet at or upon
Being thus void, the party depositing has a right to so treat it, and to elect to recall his money before it is paid over. It is because the agreement upon which it was deposited with the stakeholder, is void, that the party betting may treat it as no contract, and recover his money. The title to the money is not and can not be changed by such a contract, and if either party disaffirms the unlawful transaction he may recover from the intermediate stakeholder.
The doctrine that the parties are in pari delicto, and the rule, potior est conditio possidentis, has no application. It might apply if the action was by the loser against the winner, after the money was paid over. It is otherwise, how ever, as to the stakeholder. He is no party in interest to the illegal contract. He is not in pari delicto. He is not equally criminal with the plaintiff, but is the mere bailee or agent of the parties to hold money, the title to which has not been changed. The plaintiff does not seek to recover upon a promise, which, within the meaning of the statute, is a void promise, but upon the ground that he elects to dis-affirm the unlawful contract, and to recall his money while it, so to speak, is in transitu. This he may do without the violation of any rule of either law or morals.
Judgment reversed.