Morgan v. Groff , 5 Denio 364 ( 1848 )

By the Court, Whittlesey, J.

This money was sent to the defendant for the purpose of being bet with one Thompson on the election. The defendant did not use it for the purpose for which it was sent; and common honesty and common morality require that he should return it to the plaintiff. The money was, however, sent to be employed for an illegal purpose. The act (1 R. S. 662, § 8,) makes all wagers unlawful, and avoids the contract for the money staked. Hence money loaned for the purpose of betting or adventuring upon an illegal wager cannot be recovered back. (McKinnel v. Robinson, 3 Mees. & Wels. 434; Peck v. Briggs, 3 Denio, 107.) Money advanced to another for the purpose of violating the provisions or the spirit and policy of a public statute, cannot be recovered back. (Perkins v. Savage, 15 Wend. 412; .De Groot v. Van Duzer, 20 id. 396.) There are many cases which show that where a contract is made, haying for its ultimate purpose and object an intention to aid in violating a positive law, or a principle of public policy, or to commit a breach of good morals, the courts will not aid in enforcing it, whatever the justice of it may be as between the parties themselves. The courts treat both parties as having dealt in forbidden things, as being equally culpable, and as being each unworthy to receive the aid of the courts in enforcing their claims against each other. Unquestionably this case comes within that principle, and because this plaintiff sent the money to the defendant to be bet upon the election, which is unlawful, the court will not aid him in recovering' it back of the defendant though he failed to do the unlawful act, however just it may be that the defendant should restore the money. The plaintiff cannot recover upon common law principles; nor can he recover at all unless tne ninth section of the act concerning betting and gaming gives him a remedy.

That section provides- that “ any person who shall pay, deliver or deposit any money, &c. upon the event of any wager or bet herein prohibited, may sue for and recover the same of the winner or person to whom the same shall be paid, and of the stakeholder,” &c. (1 R. S. 662, § 9.) I do not think this section will aid the plaintiff. The defendant was not a stakeholder. The money was not paid or deposited on the event of any wager. It was only sent to be so paid'. No bet had been made. The money was sent for the purpose of making one; which purpose- was- not consummated. The statute was not violated. The plaintiff only showed an intention and made an effort to violate it, and I think the provision referred to does not touch the case. Neither can the plaintiff say that he repented of his intended violation of the statute. Perhaps if before the election was had; and before any bet was made, he had countermanded- his orders to make the bet and had so notified the defendant, and it had not, in point of fact, been made, the plaintiff might have recovered. In such a case it might be said he had taken advantage of the locus penitentie. But this space for repentance-1 take it did not extend beyond the election ; and' it urns not until after that had passed that he asked for the money. I think the report of the referee should be set aside.

Motion granted.