Denniston v. Cook , 12 Johns. 376 ( 1815 )

Spencer, J.,

delivered the opinion or the court. The case does not state the particular counts contained in the declaration. It is presumed there are counts on the bet, and for money had and received.

It was admitted, on the argument, that the plaintiff had the qualifications of an elector of governor. This admission is decisive against the action upon the wager. It was held, in Bunn v. Riker, 4 Johns. Rep. 426., that where either of the parties was an elector, the wager was illegal, on the ground that it was corrupt, and against the fundamental principles of the constitution.

I can perceive no ground for the argument, that the money which the defendant had in the bank of Albany is to be -consir dered as the plaintiff’s money. There was no appropriation of this money, either by the bank, or the defendant, to the plaintiff’s use; and, before the plaintiff had a right to demand the sum won, the defendant had withdrawn his deposite from that bank. From wha.t motive this was done, is immaterial; it was not, in any sense, the plaintiff’s money.

It appears to me to involve an absurdity to say that the plaintiff can maintain this action as for money had and received; when, confessedly, he cannot sustain an action upon the check which the defendant gave to him; on the ground that it is void, as being an illegal transaction. This case is very different from that of Foot v. Yates, in error. There, the party who had lost the bet sought to recover against the stakeholder; here, the party winning the bet seeks to recgver on the ground of the wager. It is very difficult, from the manner of deciding cases in the court for the correction of errbrs, to ascertain the precise-principle. adopted by the-court. The Only opinion .reported in the case, is that of Sanford, senator. Whether that was adopted by the majority of the members, is uncertain. The substance of his opinion is, that courts: ought not to entertain suits, in such ¿ case, either by the winner or loser ; and, so far as respected the loser, he considered the contract executed, and he applied .the maxim fieri ñon debet, sed factum ‘oalct.

It may be confidently affirmed* that no principle-was adopted* in that case, which countenances the present action.

Judgment for the defendant.