21 Ill. 244 | Ill. | 1859
In the case of Morgan v. Pettit, 3 Scam. R. 529, it was decided that a bet made between citizens of this State upon the result in another State of a presidential election, then pending, was not forbidden by our statute, and was not void by the common law, as being against public policy. In this case, there is much less objection as controvening public policy, for the bet was not made till several days after the election in New York, and after the vote must have been canvassed, although before the result was known here. Nor did the event which was to determine the wager depend upon any chance, accident, effort or skill. It was a fact irrevocably fixed as is the number of the grains of wheat in a measure standing on the table, or the date of a coin held in the hand. Such a contract the parties had an undoubted right to make, by the common law, and it is not forbidden by our statute.
Independent of the right of the stakeholder to determine who had won the wager here, the party proved, by an official certificate of the canvass of the votes of the State of New York, that the result was in his favor; but in the absence of such proof, we are inclined to concur with the court in the case of Eithorn v. Kingsman, 4 Eng. Com. Law, 626 ; at least so far as to hold that the stakeholder is the person selected by the parties themselves, to decide in the first instance the event upon which the wager depends, unless they have fixed upon some other tribunal to determime that question. By the terms of the contract he was required to deliver the stakes to the party who should win the bet, and surely it was never contemplated that he should be compelled to file a bill of interpleader, to determine that matter, in order to protect himself from a lawsuit, by one party or the' other. As between themselves, they might perhaps litigate the matter, without being concluded by the decision of the stakeholder. We are prepared to hold that his decision prima facie settles the rights of the parties.
If the verbal declarations by Moffitt to John H. Smith, were sufficient to transfer the possession of the property to him, while it was remaining at Elam’s shop, by the same rule the possession was transferred by Moffitt to the stakeholder at the time the bet was made, and in the same mode was the possession transferred to Isaac Smith by the stakeholder, at the time he decided who had won the wager, and the buggy was thereupon taken away by him; so that both constructively and actually, the defendant first acquired possession of the buggy. But even were it otherwise, the plaintiff could not maintain this action, for as between Moffitt and Isaac Smith, the title of the latter was complete the moment the wager was decided in his favor; and the proof satisfactorily shows that John H. Smith purchased with full knowledge of the defendant’s right to the property.
The judgment must be reversed and the cause remanded.
Judgment reversed.
