Preston v. Hutchinson , 29 Vt. 144 ( 1856 )

The opinion of the court was delivered by

Redfield, Ch. J.

This is an action to recover money lost in gaming. The jury have found that the defendant and two others played 'with the plaintiff under a secret agreement to divide the money won of him between them.

One important question in the case is, whether this defendant is liable for the money won by the confederates. We think he is. The statute, by enabling the party losing to recover back the thing lost, virtually makes the act of winning and taking the money or other thing, a wrong, a tort, so to speak, for which an action lies; and we think different persons, who act in concert in the matter, are to be treated like other tort feasors, and that all are principals and each liable for the acts of the others, and that they may be sued jointly or severally the same as in actions of tort. We should hesitate to say that there is any duty to join all upon the peril of losing a remedy against those omitted. This plea must rest upon the illegal contract which the court could only recognize so far as it operates against the party. It is more in strict analogy to a mere tort. It does not seem to be of any importance that all should have participated in the game. If they were confederates and laboring to a common end, this will be sufficient to create the liability, the same as in cases of conspiracy. The analogy of a commercial partnei’ship seems to be a very imperfect one to illustrate the transaction. That of a band of pirates or robbers, is perhaps more in point, especially if we conceive a portion of the band to enter into a conspiracy to plunder one of their fellows. Although that would be a violation of the rules of such organizations, the law will not aid the suffering victim. But if a similar statute to the present existed in such a case for the relief of the loser, it would be a remarkable defense to say that each was only liable for the portion of the booty obtained by himself.

The liability is not, certainly, upon the ground of any agency conferred by one party upon the others, but upon the mere ground of the conspiracy to participate in 'the accomplishment of an unlawful act, and then divide the spoils. The division of spoils is of no importance except as evidence of the confederacy in the unlawful act, which makes not only the acts, but the declarations of each in regard to the common purpose, binding upon all the others the same, precisely, as if done hy himself; so that the money, although handed over to Ferris, was as much won by this defendant and paid to him, as to Ferris.

II. In this view of the case, it will be apparent that the judgment against Ferris is no merger of the cause of action. If the liability is several, a recovery against one is no bar to a suit against each of the others; Col. on Part., sec. 757 and note. If the liability is joint, a judgment against a portion of those jointly liable is a merger, unless perhaps in some excepted cases; 1 Greenl. Ev., sec. 533 and note; Col. on Part., sec. 757 and note.

But in the present case, although the remedy is in foi'm assump-sit, it is in fact a recovery for a tort, and we see no very obvious reason why the same rules shall not apply in regard to the recovery against Ferris as in actions of tort.

It seems to us that the attempt to construe the judgment against Ferris as a merger, can only rest upon the contract of confederacy or conspiracy to do the unlawful act. And this contract, while it is good against the parties, is not, as we have said, one upon which they can rely by way of defense. The liability is joint and several, not because of any agreement among the parties as in partnerships where a joint contract exists, hut because the general principles of the law attach such a liability to all tortious acts, and render all accessories principals.

The charge, therefore, was one of which the defendant cannot complain.

Judgment affirmed.