32 N.J.L. 462 | N.J. | 1865
This was an action commenced in the Circuit Court of the county of Monmouth, to recover the sum of one hundred dollars, alleged to have been deposited by the plaintiff in that court, in the hands of the defendant, to be paid to the winner of a trotting match between two horses, •owned by the persons who made the bet. The judge, upon the trial, assuming that the evidence showed that the proposed trotting did not take place, and that the money remained in the hands of the defendant, or had been wrongfully paid over to the person claiming to be the winner, directed the jury to find a verdict for the plaintiff. This direction being excepted to, and a bill of exceptions sealed, and the Supreme Court having affirmed the judgment of the Circuit Court, the question now to be decided by this court is, whether that judgment was erroneous. It has been insisted hero, that the question whether the action could be sustained on the case as made, should have been raised at the circuit, by a motion to non-suit, and that this not appearing to have been done, it cannot be raised here. It is, undoubtedly, the established rule, that no question will be allowed to be made in a Court of Errors which was not directly presented to the court below; but it is a mistake to suppose that the rights of the plaintiff to maintain his action can only be presented by a motion to non-suit. The plaintiff is in no case obliged to ask for a non-suit, but has always a right to have a final decision of the case by the court and jury. If the court charges, in express terms, that the plaintiff is entitled to a verdict, the defendant has a right to bring this question before the superior court, by excepting to the charge, and by a statement in the bill of exceptions of so much of the facts of the case as may be necessary, fairly to present the questions of law upon which the exceptions were taken, as has been done in this case.
Having carefully examined and fully considered the elaborate and able opinion of Chief Justice Green, delivered in the case of Huncke v. Francis, 3 Dutcher 55, and the opinion
The argument relied on, in opposition to this application of the rule to the case before us is, that although the parties, making the bet and the stakeholder may be equally guilty, they are not guilty of the same fault, for the stakeholder is not guilty of betting, and the persons who bet are not guilty of stakeholding., It is an argument, however, of which I cannot see the force. The man who knowingly receives stolen goods is not thereby guilty of larceny; but can the thief, who shall have paid him a sum of money to induce him to conceal them, recover back that money ? The statute
This case shows, what appears in nine out of ten of the cases in which courts of justice have yielded to this plea, that the repentance comes from a dispute about the fairness of the race.
In my opinion, the judgment of the Supreme Court should be reversed, and the record remitted to that court, to the end that a judgment be there entered reversing the judgment of the Circuit Court.
For reversal — Clements, Cornelison, Elmer, Fort, Van Dyke, Vail, Wales. 7.
For affirmance — Haines, Kennedy. 2.