The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1856-1888, 1881-06-11
Opinion of the Court By McCuHy, j.

Tue IIIdl luG pldiulIh |
Oh a letter dated March 9Th, 1881, from PLAIN
tiff to defendant, stating that he had placed
in defendants hands $500, lin checks TO delen-
dant's order, which were produced ana SHOWN 10
have been cashed by defendant) prior to oeptem-
Der 1lth, 1880, as stakes IN u horse race TO De
run on that day, demanding the return OF tniS
amount. (2.) defendants reply March otn' VIZ;
.. | would say the judges (of the races instructed
me to hold the said stake until they rendered
their decision in writing. Awaiting that declslon'
L am forced to decline your request ana refuse u
deliver you the money. to- Letter from
plaintiffs attorney to defendant OF same oate;
making a demand with iniimatIon OF legal
proceedings. a. Reply March 9Th, OF delen-
dant's attorney to plaintiff attorney, " that he,
defendant. declines and will decline to deliver the
said cheques to any person untl tue Judges (ol
races) to whom the whole matter nas oeen
referred shall have decided to whom they belong
Plaintiff being on the stand to prove copy OF
his letter WAS asked in cross examination it the
Judges had no: made a decision, answered that
they had made a verbal decision at the time OF
the race and in favor of the horse which ran
against his own. ~
The Court instructed the jury that the plaintiff
MIGHT recover money which he had deposited, 1t
beinc still in the hands of the stakeholder, and
the defendants and his attorney letters, with
nothing to contradict them, showed that the
stakeholder had the money In his hands on the
Sth of March when it was demanded OF him, yet
the Jury retired and returned with a verdict Tor
defendant. Whereupon the plaintiff moved the
Court to set aside the verdict and grant il new
trial, and the Court considering that the jury
had been in effect instructed to find for the plain
tiff, and that if the instructions were correct
there was nothing for a jury to deliberate upon,
ordered the verdict set aside and judgment to be
entered for plaintiff non 0bStdnte reTdtctO. Where
upon the defendant brings the matter up by bill
of exceptions as follows
Be it remembered that on the trial OF the
above case the defendant asked for the following
instructions
l. The defendant moves the Court to in
struct the jury that betting on racing or trottlng
on the Kapiolani Park is not prohibited by law
and does not come under the general law upon
gaming.
80. That trotting horses on said race course
is not a game as contemplated by chapter AAAlA
of the Penal Code.
ss3. That defendant had Il legal right to hold
the stakes and to pay them over to the winner on
the decision of the judges communicated to him.
"a. That the decision of the judges OF SAID
trotting races being rendered IN favor OF
Mcclellan, plaintiff is barred from recovering
against the defendant.
(Which said instructions the Court declined to
give, to which decision of the Court the deien-
dant excepted, and in lieu of said instructions
the Court Instructed the jury as follows
THAT the money deposited in the hands of the
stakeholder and held, SIX months after the event,
might be recovered in an action for money had
and received and therefore it was unnecessary to
give instruction l and 2, declined to give instruc-
ton 3. instruction 4 is n matter of testimony
and contrary to it, vide McWayne's letter of 9th
March, 1881.
To which Instructions of the Court the deien-
dant excepted"
We understand that a wager is valid at COM
mon law unless affected with some special cause
of invalidity, such as being of a nature to wound
or prejudice the feelings of interests of indivi-
duals, or as being contrary to public policy but
that as the moral sense of the present day regards
all gaming or wagering contracts as inconsistent
with the interest of the community and contra
6onoS moreS, the exceptions tend to become the
rule, and it is accordingly held in many of the
courts of the United States that all contracts of
wager are invalid, and il. others where a recovery
is theoretically allowed it is seldom permitted in
practice and in some states all wagering or
gaming contracts have been prohibited. See
Smiths Leading Cases, vol. 2. pages 2Sl-2.
Our own Statute of gaming provides, Section
l. Whoever by playing at cards or any other
game wins or loses any sum or money or thing OF
value is guilty of gaming.
Section 5. Whoever shall by playing at cards
or any other game, or by betting on the sides or
hands of such as do play, lose any sum OF money
or thing of value, and shall pay or deliver the
same or any part thereof, may sue for and recover
the money or value of the thing so lost and paid
or delivered, from the winner thereof.
Compare with these the English Statutes, 16
Car. 3, C. 7 s 3, which enacts that II any one
shall play at any pastim9 or game, by gaming or
betting upon those who game and shall lose more
than the sum Of G10O on credit he shall not be
bound to nav, and any contract to do SO shall be
void. and the 9th Anne G. IA, (the principal
enactment) provides that all securities for money
or any other valuable thing won by gaming or
PLAYING at cards, dice tables, bowls, or other
game whatever or by betting on those who game,
ETC., shall be void.
But a horse race is a game within the meaning
of these acts of Parliament, See Smith on Con-
tracts, and authorities cited page $50, and accord
ingly subsequent acts were passed in IL Geo. and 3
Victoria to legalize horse racing tor stakes, with
some limitations, thereby excepting them from
the operation of the older statutes.
The language of our statute, conforms almost
literally with the Statute of 9th Anne above cited.
But it seems to US in the case at bar 1t is not
necessary to consider if a bet paid on the event of
a race could be recovered from the winner by
force of the statute. The plaintiff stake had not
been paid over, but was in the hands OF the stake
holder. the defendant. The contract between the
plaintiff and Nc Clellan was still ezecutory, not
executed. THE stakeholder is a mere deposit
tary of both parties for the money deposited by
them respectively with a naked authority &c del
Iver it over on the proposed contingency. 1t the
authority is actually revoked before the money Is
paid over it remains a naked deposit to the use OF
the depositor' is the language OF Chief Justice
Shaw in Bali VS.. Gilbert 2. Trustee IL Met. 4O5.
citing ) L. r 405 and Z L. K. $50. The stake
holder is therefore the agent for a certain purpose.
If he has executed his purpose according to in
structions his principal cannot charge him, but
before the performance in this case the principal
witbdraws and countermands his instruction. He
has received the money without consideration.
He is not a party to the contract. lie cannot be.
liable to pay to Nc Clellan for a stake which is
not IN his hand, and it is equally clear that he
cannot hold 1t for himself. IL c Clellan has any
rights it must be on his contract with the Plaintiff.
Such being the attitude OF a stake holder II he
refuses to return stakes to either party recalling
his deposit the demand may be enforced in an
action for money had and received.
We therefore hold that the court below prop
erly instructed the jury to return a verdict for the
plaintiff. The jury disregarding the instruction
must have deemed it in their province to consider
which of the betting parties had won the race and
and taking the plaintiff testimony that the race
;ndoes had given some decision at the conclusion
of the race, in favor of his opponent rendered a
verdict for the defendant. But no question which
horse had won the race vas allowed by the court
TO 90 TO the iury, in order to determine the pay