Ruckman v. Bryan , 3 Denio 340 ( 1846 )

By the Court, Beardsley, J.

The defendant, as the evidence shows, was interested to the extent of six hundred dollars in the bet of three thousand made by the plaintiff, it having been previously agreed between them that the plaintiff should make the advance of the six hundred dollars for the purpose of this bet. Upon this arrangement the advance was made, the money being placed by the plaintiff in the hands of the stakeholder; and the question presented is, can the plaintiff recover for money so lent and advanced by him?

Perhaps the circumstance that the money was delivered by the lender to the stakeholder, and not to the borrower, might distinguish this case, in principle, from a direct loan and advance of money to the borrower personally, to enable him to make the bet. But if such a distinction could be made, I do not regard it as material to proceed upon it. I regard the case in hand, in effect, as a direct loan and advance to the defendant for the express purpose of making the bet; and if money so loaned is recoverable, this report should be set aside, and one should; be tirade in favor of: the plaintiff; to-the amount; cf sis, hundred--dollars, and interest.

The bet w.as clearly, illegal. “All wagers, bets.or stakes, made to.depend upon, any race, or upon any gaming by lot oi chance, or- upon any lot, chance, casualty, or= unknown or- contingent , event. whatever, shall be unlawful. All .contracts for or on. account; of - any-, money., or property, or. thing in action,so wagered; bet or staked; shall be void.” (1 R. S. 662 § 8) It makes no.difference that.the race, was to .go .off on an authorized course, as; that in. Queens county was ; the bet was, notwith standing; illegal. (Gibbons v. Gouverneur, 1 Denio, 170.)

The English, statute of- 9 Anne, c. 14, ,§ 1 which, has been substantially re-enacted here, (1 R. S. 663, §,16,) declares.-th.at all securities for the repayment of money knowingly lent for gaming or betting on games, shall, b.e void. (Chit. on Cont. 712.) It has been held that as this statute only avoids the security given for money so lent, the borrower-is .still, liable, on the contract to loan and borrow, and which may, therefore, be enforced by the lender in.an action-of assumpsit,for money lent and advanced, (Barjeau v. Walmsley, 2 Stra. 1249; Robinson v. Bland, 2 Burr, 1077; Aleinbrook. v. Hall, 2 Wils, 309; Wettenhall v. Wood, 1; Esp, 18.) In, a- late case in-this court the, present;chief justice..remarked, that,our stalute “-of betting and'garning”' went further-than, the.English, and. that since its passage he did: " not see howmoney knowingly lent for the purpose of betting, of gaming” could " be recovered from the borrower.” (Peck v. Briggs, decided May term, 1846.)^(a)

However, this .may be upon the words .of; the statute, it seems now.to.be. entirely, settled,in the English courts that the cases I have referred to, so-far as-.they.sanction the doctrine that money knowingly loaned- for ¡an- illegal purpose may-.-be. recovered by the lender, cannobhe sustained/ They were expressly repudiated.in the case'of McKinnell v. Robinson, which was decided in the court, of exchequer, in 1838. (3 M. & W. 434.) That was an action of assumpsit brought by the lender against the borrower, to recover for money lent to game with at an illegal game. The court held that the action could not be maintained. Lord Abinger, C. B. in giving the opinion of the court, referred to the case of Cannan v. Bryce, in the king’s bench, (3 B. & Ald. 179) as directly in point; and having reviewed the cases from Strange, Wilson, Burrow and Espinasse, which were cited on the argument, and to which I have already referred, closed his opinion in these words—“We therefore think, that notwithstanding these authorities, the money lent cannot be recovered; for it is lent for the express purpose of a violation of the law, and enabling the borrower to do a prohibited act; and the principle is now distinctly laid down in the case above cited, and may be considered as finally settled, that money so lent cannot be recovered.” Other cases are equally direct and explicit on the point, and it may be regarded as entirely at rest in the English courts. (Langton v. Hughes, 1 M. & S. 593; The Gas Light & Coke Company v. Turner, 5 Bing. N. C. 666; De Begnis v. Armistead, 10 Bing. R. 107 ; Chit. on Cont. 696, 714.)

It was unlawful in this case to make the bet, and not less so to furnish the money for that purpose. No cause of action can arise in favor of a party to an illegal transaction, nor will the law lend its aid to enforce a contract which is in conflict with the terms or the policy of a statute. The referee decided correctly on this point, and the motion to set aside the report must be denied.

Motion denied.

(a) Ante, p. 107.