#### Bevins *v.*Reed.

In an action to recover of a stakeholder money staked with him by the plaintiff, on a wager upon the event of a horse race, the defendant Cannot set off the amount of a deposit made by him with the plaintiff, upon another wager of a - similar character.

The statute having declared wagers unlawful, and every contract respecting them void, the sole remedy of a party depositing money upon a wager is by a suit, under the Statute, to recover back the money deposited. He cannot recover it without suing for it, by way of a defence or set off in a suit brought against him.

There is *no*indebtedness, in such a case, *from*the stakeholder *to*the depositor.

There is merely a right, on the part of the latter, to sue the former, in accordance With a strict statutory grant df relief where no other remedy exists.

*437Aside from the language of the statute, giving to a party depositing money upon a wager a remedy by suit against the stakeholder, his right to recover back the arnpilnt of his deposit is not a demand which can be set off; it not being a demand arising upon judgment, or upon contract, express or implied.

March 29;

April 7, 1849.

This was an action brought under the statute, to recover the sum of $250, being the amount of a bet made by the plaintiff with one Darragh, in the month of December, 1847, the money being deposited with the defendant, as stakeholder.

The declaration contained the common counts, and a special count under the statute. The plea was the general issue, with a plea and notice of set off, to the effect, that in December, 1847, the defendant had also deposited with the plaintiff, as stakeholder, the sum of $250, being the amount of a bet made by the defendant with one Riley. The cause was tried before Justice Sandford and a jury, on the 4th day of January, 1849.

Upon the trial, it appeared in evidence that in the month of December, 1847, the plaintiff and one John Darragh entered into a bet of $500, upon the result of a race between Lady Suffolk and Lady Sutton, two trotting mares. By the terms of the bet, $250 were to be put up as a forfeit on each side, and these sums were accordingly deposited with the defendant, but subsequently the bet was withdrawn; The plaintiff proved that he had demanded from the defendant the amount of his deposit, which the defendant refused to pay.

The plaintiff rested his case, and the defendant thereupon offered to prove the facts contained in his plea and notice of set off, to which testimony the plaintiff objected, on the ground that it was not a matter of set off, but was merely a penalty, and could only be recovered in the manner prescribed by statute. The court refused to admit the testimony, and the defendant excepted. The defendant then proposed to prove payment, under the first plea and notice; and for this purpose, he called Charles Riley, who testified that in December, 1847, the defendant had made a bet with him, that he, the defendant, had some time previous, obtained a certain horse named Betsey Baker to trot a race with Grey Harry, and that the money was deposited by both parties with the plaintiff. This witness tes*438tified that the bet was decided in his, the witness’ favor, and that the plaintiff had paid him the money. As to this point, however, there was some conflict in the testimony. There was some further testimony on the part of the defence, but not material to be mentioned.

• The court charged the jury, that the defendant could not offset the $250, deposited by him with the plaintiff on his bet with Riley, and that the only question for them to pass upon, was whether the $250 deposited by the plaintiff with the defendant, had been repaid or not; that the wager itself was illegal, and in addition, the match on which it was staked, had been withdrawn. The court further charged, that if the jury found that the precise and identical money which the plaintiff lodged with the defendant, had been staked by the defendant in the plaintiff’s hands, it would be a good payment; that in such a case, the law would refer the defendant’s act in staking the money with the plaintiff, to an intent to restore the plaintiff’s deposit, rather than to an intent to commit a further illegal act; but as to this, the testimony was very slight. The jury found a verdict for the plaintiff.

*James*Green, for the plaintiff.

1. The judge was correct in refusing to allow the defendant to prove his second plea, because it was not a matter of set off.

2. The bet between the defendant and Riley was void, and could not be recovered from the plaintiff, except in the manner prescribed by statute. *(McKeon*v. Caherty,. 1 Hall Rep. 300.)

*J.*Howe, for the defendant.

1. The set off should have been allowed. It was a debt without action, and a proper subject of set off. (2 R. S. 351, secs. 1 and 2.) The statute authorizes a party to sue for such a debt. (1 R. S. 662, sec. 9.) It prescribes no particular form of action; and to avoid multiplicity of suits, a party may recover by set off as well as by bringing an original action. Furthermore, the bet of the defendant was as an event that had happened, not a contingent or future event within the prohibition of the statute.

*439
      *2.*The judge erred in charging, that the jury must find that the identical money was returned. It was sufficient that the plaintiff received the same amount.

By the Court. Sandford, J.

The only point presented by the case, is on the rejection of the defendants proposed set off. The issue made by the plea of set off, is upon the plaintiff’s *indebtedness*to the defendant, in respect of the money Staked by the latter in his hands.

It was said the defendant’s bet was not upon any future or contingent event, and was therefore legal. This conclusion is, however, wholly erroneous. The statute against betting and gaming, forbids wagers on any unknown event, and the subject matter of this wager was of that description. By the statute, all such bets are unlawful, and all contracts for or on account of the money or thing bet or staked, are void. (1 R. S. 662, sec. 8.)

Thus, there was no contract, express or implied, touching the money deposited with the plaintiff, and independent of the section of the statute next mentioned, the defendant had no redress against the plaintiff to recover it back, whether it were lost or won. The ninth section provides, that any person who shall pay or deliver any money, &c., on the event of any wager prohibited by the act, *may sue for and recover the same*of the winner and of the stakeholder.

On this it is claimed that the defendant had a debt or demand against the plaintiff, for which he was at liberty to bring assumpsit, and which he could therefore set off.

We think this position is not sustained. It is not important to consider whether or not assumpsit could have been brought under the statute. But we are entirely clear, that there was no debt due from the plaintiff to the defendant, when this suit was brought. The statute having declared that the wager was unlawful, and every contract respecting it void, the defendant’s sole remedy was by a suit to recover back the money depositedj and this remedy existing only by force of the statute, could be obtained only in the manner which it prescribed. The defendant might *sue for it,*but there is nothing in the law which will *440enable him to recover it without suing for it, by way of a defence or set off in a suit against him.

In *McKeon*v. *Caherty,*(1 Hall, 300,) this court decided; under the revised laws of 1813, that assumpsit could not be maintained to recover back money staked on a wager, because the act gave a remedy by an action of debt, and there was no common law remedy to recover the money. The revised statutes make no change in the law in this respect, except that they are silent as to the form of the action. The case cited is therefore an authority in support of our conclusion that there was no indebtedness from the plaintiff to the defendant. There was merely a right to sue the plaintiff, in accordance with a strict statutory grant of relief, where no other remedy existed.

It is equally clear, aside from the language of the act, giving merely a suit, that this right was not a demand which could be set off. It was not a demand arising upon judgment, or upon contract express or implied ; (2 R. S. 354, sec. 18 ;) which is an essential requisite to authorize a set off.

Motion for new trial denied.

The motion for a new trial on the ground of surprise, and newly discovered evidence, is also denied.