11 Ind. 14 | Ind. | 1858
Suit to recover the value of personal property. Answer in two paragraphs — 1. General denial. 2. That the property was sold by the plaintiff to the defendant under an agreement that, if Morton should be elected governor at, &c., the defendant should pay to the plaintiff double the value of the property; but if Willard should be elected, nothing was to be paid, &c.
The Court overruled a demurrer to this paragraph; and, for want of further reply thereto, gave judgment for the defendant. Proper exceptions were taken.
The contract set up in the answer was illegal and void. It was a wagering contract. Parsons v. The State, 2 Ind. R. 499.—Duncan v. Cox, 6 Blackf. 270. Such being its character, neither party could, at common law, sustain an action upon it. That law would leave the parties just where they had placed themselves. M’Hatton v. Bates et al., 4 Blackf. 63.
But it is claimed that our statute has authorized an action by one of the parties to such a contract, viz., the losing party. 1 R. S. p. 305, §§ 1, 2. Section 1, enacts that all instruments executed upon a wagering consideration shall be void. Section 2 is as follows: “ If any person by betting on any game, or betting on the hands or sides of such as play at any game, shall lose to any one, any money, or valuable thing, and shall pay or deliver the same, or any part thereof, the person so losing and paying or delivering the same, may within six months next following, recover, &c.
The reasoning by which counsel seek to establish that an election is a game, seems to be this: that betting upon an election is a wager; that a wager is a game; and that a game is a wager; and, hence, that an election is a game or wager. But the error iri this reasoning grows out of a confusion of terms. A wager is not a game. Says McKinney, Justice, in M’Hatton v. Bates et al., supra—“ No reasoning is required to prove that a wager is not a game, for the proposition is self-evident.” It is equally self-evident that a game is not a wager.
A game is a thing played or done. A wager is the bet
Now, it is not necessary to argue that some of the foregoing acts, events, and facts upon which bets or wagers were made, were not illegal or immoral; and it would seem to be unnecessary to enter into an argument to prove that some of them were not games. But where bets or wagers are laid and lost, except upon games, they cannot, even by our statute, be recovered back. And as we have come to the conclusion that an election cannot be classed as a game, it follows that the wager lost and sued for in this case cannot be so recovered.
Per Gwriam. — The judgment is affirmed with costs.