Murdock v. Kilbourn , 6 Wis. 468 ( 1858 )

By the Court,

Whiton, C. JV

We shall express no opinion upon the rulings of the judge in this case, because of an insurmountable objection to the plaintiff’s recovery, arising from the testimony introduced by the plaintiff himself.

It. appears that the plaintiff and one Shoyer made a wager upon the result of the election of Governor of this State, and deposited the money wagered in the hands of the defendant as a stakeholder. It appears further that the wager was made and the mqney deposited after the election had taken place, ’ and while the result was undetermined. Upon this testimony .•vye are satisfied that the plaintiff could not .recover, even if the stakeholder had fraudulently appropriated the money to his own use.

There can he no doubt that upon general principles of public policy, the wager which the plaintiff and Shoyer made was unlawful. A most pernicious influence would be exerted upon our institutions of government, if ihe eleciions which the people make of their public officers should be made the instruments and the occasions of gaming. ITence, the courts of all onr sister states have uniformly held such contracts to be contrary to the policy of onr laws, and consequently illegal. We have been unable to find an instance in which they have been enforced, and the reason uniformly given why the courts will not enforce them, has been the one before stated.

This being the law upon the subject oí the wager, as between the persons who made it, we must apply the same rule, as between them and the stakeholder. As there is no statute in this State which authorizes a recovery of the money deposited with the stakeholder, we must hold that those who deposit it with him in a case like the present are without remedy.

This seems clear from the following considerations. The plaintiff and Shoyer proposed to make an unlawful wager— one prohibited by law. To assist them in carrying their unlawful purpose into execution, they sought the aid of the defendant; he consented to assist them by acting as stakeholder. The deposit of the money by the plaintiff and Shoyer, and the reception of it by the defendant, were both unlawful acts, because those acts were performed by the parties for the purpose of carrying into effect the unlawful wager.

The transaction out of which the alleged indebtedness of the defendant arose being thus unlawful, and the plaintiff and defendant being equally guilty, we do not see how a court can interfere. The parties must be left where their own acts have placed them.