p. 494Headnote
Debt and not proper form of action for the money from a ing match.mayhbe mahí tained, altho’ £efaetPlacted as the agent of ingthebetT "
Error from the New-York common pleas. The action in the common pleas was assumpsit, brought by McKeon against Caherty to recover $200 deposited in the hands of the latter as the stake holder of a bet on'a trotting match of made up by McKeon and one Lane. The trotting took place ; McKeon was the loser; and being dissatisfied dre manner in which the trial of speed had been conducted, he gave notice to Caherty, the stake holder, not to Pa7 0Ter the money to the winner, before he did pay it over, On the trial of the cause, it appeared that other persons besides McKeon had contributed in making up the purse ; for this cause, and because the action, if any, should have been debt and not assumpsit, the defendant moved that the plaintiff be nonsuited. The motion prevailed on the first ground takeH by the defendant.
D. Graham, for plaintiff in error.
The action was properly brought. Had the plaintiff acted wholly as the agent of others, he might have sustained a suit in his own name. (13 Johns. R. 88.)The contract upon which the money was put into the hands of the defendant being avoided by statute, he holds it
p. 495without consideration, and is liable to the parties for monies had and received. A right of action is given by statute against both winner and stake holder: the form of action against the winner is prescribed, viz. debt, but no form of action is given against the stake holden; consequently he is left to his common law remedy, adapting his action to his case. (1 R. L. 223, § 5. id. 153, § 2 and 3. 2 T. R. 531. 1 Bos. & Pul. 3 and 396. 1 Dallas’ R. 245.) This form of action has been sustained. (10 Johns. R. 468. 7 Cowen, 496. See, also, 6 Cowen, 297.)J. R. Whiting, for defendant.
By the Court,
In Yates v. Foot, (12 Johns, R. 1,) it was decided that when money is deposited by an agent in the hands of a stake holder upon a bet, the action was properly brought by the principal against the stake holder ; and it was also decided in that case that no action lies to recover from the stake holder money deposited upon an illegal wager. This was a decision of the common law question and has no relation to the cases of gaming and horse racing arising under the statutes on those subjects. The fifth section of the act to prevent horse racing makes every contract relating to any bet or any race or gaming of any kind void, and gives to any person who has paid any money upon the issue or event of any race or game the same remedy to recover it back as is provided by the second and third sections of the act to prevent excessive gaming. The second section of that act gives a remedy to the injured party by action of debt against the winner, if brought within three months.
In Simmons v. Borland, (10 Johns. R. 468,) and Allen v. Ehle, (7 Cowen, 496,) it was held that under the act to prevent horse racing, the action lies against the stake holder; but the statute remedy should be pursued, which is an action of debt. This objection is supposed to be technical; but without the aid of the statute, no action at all would lie. The statute remedy must therefore be pursued in form as well as substance. In Haywood v. Sheldon, (13 Johns. R. 88,) it was held that an action was well brought by an agent who makes a bet for others. On the supposition, therefore, that the ac
p. 496tiojo. was well brought by the plaintiff and that the stake holder js liable, still, as the plaintiff cannot recover in this form of action, the judgment must be affirmed.