#### Hugh McKeon *versus*James Caherty.

Dec. Term, 1828.

**• ¿ *better,*who has deposited money in the hands of a stake-holder, upon the event of a trotting match, cannot recover it back, by an action of *indebitatis assumpsit.*The transaction being illegal, no action can be sustained, by the common law, for any cause growing out of it.

But, by the 5th section of the act to prevent horse racing, (1 *R. L. p.*222.) any peison who has paid money upon the event of a race, may recover the same, *“*in like manner as is provided in the second and third sections of the act to prevent excessive and deceitful gaming.” (1 *R. L.*153.) By the second section of this act, any person losing at any game any sum above $25, and paying the same, may at any time, *within three months,*recover it back of the winner by an action *of debt,*founded on the act. As the remedy afforded to the loser is provided by statute, in pursuing that remedy, the forms and limitations prescribed, must be observed; and a general action of *assumpsit*will not lie.

This was an action of assumpsit, brought to recover money placed in the hands of the defendant, as a stake-holder, upon the event of a trotting match.

The declaration was in the common form, for money had and received, money paid, &c. Plea, the general issue.

The cause was tried before Mr. Justice Oaklet ; and at the trial the plaintiff produced and read in evidence a contract in writing, between himself and one David Lane, of the tenor following, viz:

New-York, August the 19th, 1827.

*“*Thirty-one days after date, David Lane, on the first part, and “ Hugh McKeon, of the second part, agree to trot six miles in *“*harness, each man to drive his own horse, on the Jamaica tum- “ pike road, for the sum of two hundred dollars a side: two hun- “ died dollars, which is deposited in the hands of Mr. James Ca- “ herty, is to be forfeited in case they do not trot according to the “ above agreement.” DAVID LANE,

HUGH McKEON.

The plaintiff then proved that he had. deposited the stipulated sum in the hands of the defendant, as a stake-holder between the parties; and introduced several witnesses to show, that notice *301had been given to the defendant immediately after the match was performed, not to part with the money, in consequence of a dispute between the parties, as to which had won it.

Upon this evidence the plaintiff rested his cause; and thereupon the counsel for the defendant' moved for a non-suit, upon the ground, 1st. That the wager was illegal, and the contract, therefore, void at common law. 2. That if any action could be sustained in this case against the defendant, it must be an action *of debt,*according to the provisions of the acts which give the plaintiff a remedy. 3. That the action was barred by the limitation prescribed in the act, not having been brought within three months from the time the money was deposited or lost by the plaintiff.

The presiding Judge intimated an opinion, that the two first grounds of non-suit were well taken, but reserved the questions for the consideration of the whole court, and directed the defendant to enter upon his defence.

The defendant then called David Lane and his wife, as witnesses, and offered to prove by them that Lane had won the match, and that he (the defendant) had in consequence paid. over the money to him, as the .winner, immediately after the match was performed. These witnesses were objected to, by the counsel for the plaintiff, as interested in the event of the suit, and therefore incompetent: and it was also contended, that the defendant could not go into the inquiry as to which party was the winner.

The last objection was sustained ; but the first, as to the competency of the x witnesses, was overruled by the Judge, and an exception to his opinion taken by the plaintiff.

The defendant then introduced several other witnesses, to show that the judges of the match had decided that Lane was entitled to the money, and that he had, in consequence, paid it over to him, on the evening after the match was performed,, and before any notice was given to him by the plaintiff to retain the deposit. Upon this last point, the testimony was not perfectly clear.

The Judge charged the jury, that for the purposes of this ac-lion, their verdict would depend upon the fact, whether the mo*302ney deposited in the defendant’s hands by the plaintiff, had been paid over to Lane by the defendant, *before notice, and in good faith.*jp they should find that *he*had parted with the deposit against the decision of the Judges, and with a proper knowledge as to what that decision was, he would then have acted in his own wrong, and would be liable to refund the money.

The jury returned a verdict for the defendant.

*Mr. David Graham,*for the plaintiff, now moved for a new trial, upon a case made, and contended:

I. That the plaintiff had a right to maintain this action against the stake-holder, to recover the amount of his bet. Although the contract between the winner and loser may be void, yet money placed in the hands of a stake-holder, upon the event of a race, may be recovered by the depositen This will appear, by comparing the fifth section of the act to prevent horse racing, (1 *R. L.*222.) with the second and third sections of the act “ to prevent deceitful and excessive gaming.” (1 *R. L.*153.)

The stake-holder and winner are equally within the spirit and meaning of these acts, and the loser may maintain an action against the party in possession of the money. *(Allen v. Ely, 7 Cow.*496.)

II. The *remedy*against the *stake-holder*is not prescribed by ■ statute, but is left as at common law; and *assumpsit*is therefore the proper action to recover back the money. The fifth section of the act to prevent horse-racing, prescribes the form of action against the *winner*only, but is *not*applicable *to*the stake-holder. The statute has made a difference between them in this respect; for a *qui tam*action will lie against the winner, but not against the stake-holder; and debt is the action prescribed for all actions *qui tam.*In this case, the statute gives us a remedy, but is silent as *to the*form of action, and we are therefore left in this respect as at common law. We have adopted the action of assumpsit for money had and received, which is, in its nature, like a bill in equity. The statute has given us the equitable right, and we

*303have adopted the equitable remedy. In this respect, we are sustained also by authority, [*Simmons v. Borland,*10 *John. R.*468. 7 T. R. 535.]

*Mr. J. Anthon,*for the defendant, contended,

I. That the wager was illegal. If not unlawful by the princiciples of the common law, it has been made so by statute, and all contracts growing out of it are void. Where the contract is illegal, the common law will afford the parties no relief. [Yates *v. Foote,*12 *John. R.*1.] At all events, where the parties are *in pari delicto,*and the illegal act has been done, the person who has paid his money cannot recover it back. While the contract was executory, and the matter remained *in fieri,*the plaintiff might perhaps have had a remedy: but the illegal act having been completed, he can have no relief. *Quod fieri non debet, factum valeU*[ *Vide*1 *Esp. N. P.*21.] Here the unlawful agreement was consummated ; the wager was made; the match had been performed, and the money was paid over. It cannot be recovered back.

II. As the plaintiff can have no relief by the common law, his remedy, if he has any, must be founded upon the fifth section of the *“*act to prevent horse-racing.” This statute was intended for the benefit of the loser; and if he would avail himself of its provisions, he must observe *the forms*which are prescribed. The very act which gives the remedy, confines the plaintiff to an action *of debt for money had and received.*Assumpsit will not lie; and in all the cases under the statute, which have been sustained by the courts, the form of action adopted has been debt for money’ had and received. *[Haywood v. Sheldon,*13 *John. R.*88. 15 *John. R.*5. 7 *Cow.*252. 496.]

The statute in this respect has made no difference between the winner and stake-holder. If the latter is subject to all the penalties of the former, he is at least entitled to the same indulgence and protection. The plaintiff, to entitle himself to the benefits of the act, must, at all events, obey its requisitions. This he has not done, and he ouí.ía tu haw Leen non-suited at the trial.

*304[There were several other questions discussed by the counsel for both parties, especially in relation to the limitation of time in foringing the action prescribed by the act to prevent gaming, and jn relation to the competency of Lane and his wife as witnesses. The counsel for the plaintiff also contended, that the verdict was against the weight of evidence upon the point of notice. But as these questions are not considered by the court in giving their opinion, the discussion of them is omitted here.]

Oakley, J.

This was an action of assumpsit, to recover money deposited in the hands of the defendant as a stakeholder on a trotting match, made by the plaintiff with one Lane. Lane claimed to be the winner, on the decision of the match. The declaration was in the common form, plea non-assumpsit. The principal question in the case is, whether the action can be sustained at all, in its present form.

By the first section of the act to prevent horse-racing, [1 *R. L. 222.]*all racing or trotting of horses, for any bet, is declared to be a common and public nuisance, and an offence against the state; and all parties concerned therein are rendered liable to punishment, by fine and imprisonment. And by the 5th section of the act, all contracts made for, or on account of, any sum of money staked, or depending on any race or concerning the same, are declared to be void in law.

By the operation of this statute, the wager, in the present case, was not only illegal, but the act of trotting the match, on the result of which it depended, was a crime: and the first inquiry is, whether any action can be sustained, by the common law, for any cause growing out of such a transaction.

In the case *of Yates v. Foote, 12 John. R.*1. in the Court of Errors, it was decided, that where money is deposited with a stakeholder on an illegal wager, no action lies, after the event has happened, by the loser, to recover back the deposit. The general principle ef that case is, that when men will engage in a known violation of the law, the law will leave them in the situation in which they have placed themselves, and cannot be invoked to the aid of either party. This principle is fully applicable to the present case. The *305trotting match being both illegal and criminal, no right of action by one party against another, can arise out of any thing connected with it. A man ought never to be permitted to come into court, averring his own criminality, and then call on the law to restore him that, which he has voluntarily parted with in the very act of violating the law, and committing the crime. In the case of *Egerton*v. *Furzeman,*[1 *Car. & Pay.*613.,] an action was brought to recover money staked upon a dog fight. C. J. Abbo^ ordered the cause to be struck out of the paper, and refused to try it; saying that he thought the time of the court was not to be wasted, in trying which dog or which man won a battle. It cannot in the eye of the law be considered a more dignified employment, tobe trying which horse won a race.

I am satisfied that this action cannot be sustained by the principles of the common law, as established by authority in this state. It remains to be seen, whether there is any thing in the statute above alluded to, which can uphold it.

By the 5th section of the act, it is provided, that any person, who may have paid any money, upon the issue or event of any race, may recover the same in like manner as is provided in the “ second and third section of the act entitled an act to prevent “ excessive and deceitful gaming.” By the second section of the last mentioned act, [1 *R. L.*153.,] any person losing at any game, any sum above *$25,*and paying the same, may at any time, within three months, recover it back of the *winner,*by an action of debt, founded on the act. And in in such action, the plaintiff may allege in his declaration, that the defendant is indebted to him, in the sum so lost and paid, “ for so much money “ had and received by said defendant, to the plaintiff’s use ; with- “ out setting forth the special matter.”

It has been adjudged, by the Supreme Court. [7 *Cowen.*496.] That under the 5th section of the “Act to prevent horse racing,” an action lies by the loser against the *stake-holder.*The court say “ the 5th section, declares the wager void, and gives a remedy against “ the party to recover it back. The action lying against the “ *party, a fortiori,*does it lie against the *agentP*The stakeholder and the winner, are, by the effect of this decision, placed on the *306same footing. The *remedy given by the act*is equally available both.

jt |g contended by the defendant in the present case, that, ifliato the action at all, it can only be sustained against him in the form, and under the restrictions and limitations prescribed by the statute. I think the position a true one.

In *Hayward v. Sheldon,*[13 *John. R.*88.] an action was brought to recover back a wager on the event of a horse race. The plaintiff declared in the general form provided by the 2d section of the *“*Act to prevent excessive and deceitful gamingand the court said, that it was “ the correct and only manner of proceeding to *“*authorize a recovery.” Indeed it does not seem to require any-reasoning or authority to show, that if no action in such a case can be sustained without the aid of the statute, the form prescribed by the statute must be observed. And such appears to have been the practice, as far as can be gathered from the cases on the subject, which have been reported. In *Hayward v. Sheldon,*[13 *John. R.*88.] and in *Allen v. Ehle,*[7 *Cowen.*496.] the action was *debt.*The declaration was in the general form, for money had and received; but such form is expressly given by the statute. *[Collins v. Ragrew,*15 *John R.*5.] *In Simmonds v. Borland,*[10 *John, R.*468. ] it does not appear what was the form of the action. It was commenced in a Justice’s Court, and for aught that is contained in the report of the case, may have been an action of debt. There is no case, it is believed, in which an action under the statute has been tried on an issue of non assumpsit.

If, however, it should be doubted, whether *the form*of the action prescribed by the act against gaming, applies to the case of the *stake-holder,*it, by *no*means follows that assumpsit can be maintained, though a general right of recovery may be given against the stake-holder by the fifth section of the act against horse racing. The general rule appears to be, that when an action is founded upon a statute, the declaration must state specially the cause of action arising under the statute, unless a particular form of declaring is given by it. *[Cole v. Smith,*4 *John. R.*194.] If, then, in the present case, the plaintiff was not bound to pursue *307the form pointed out against the *winner,*he should have stated his case specially. His general action of assumpsit cannot be tainecL

The plaintiff then, ought to have been non-suited on the trial. ’ ° But the Judge reserved any decision of the motion to non-suit, and permitted the defendant to show that he had paid the money over to the winner; sad he obtained a verdict on that ground. I am satisfied, on reflection, that such a defence ought not to have been permitted. The stake-holder, by the statute, is placed *in pari delicio*with the betters •„ they are all equally criminal. The stake-holder, if be pays the money over, does it in furtherance of an illegal and criminal purpose. It is not like the case of a merely illegal wager, where the law attaches no illegality to the act of holding the stake. And in this light the Supreme Court seem to have viewed it, *in Simmons v. Borland.*Judgment cannot, therefore, be given for the defendant on this verdict; bat a judgment of non-suit may be ordered to be entered, the Judge at the trial having reserved the decision of the motion for that purpose. It would be useless to grant a new trial, as the plaintiff cannot be permitted to recover in the present form of action.

*Judgment of non-suit*

[D. Graham, Jr., *Att'y for the plff.*J. R. Whiting, *Att'y for the deft.)*