Opinion
Fall Sessions, 1851.
Allderdice, for plaintiff.
Bayard, jr., for defendant.
ASSUMPSIT against a stake-holder, to recover a sum deposited as a wager on the result of a foot-race.
The plaintiff's case assumed that the race had not been fairly run, nor any decision with regard to it made by competent judges; both of which the defendant controverted in fact. On the law of the case,
Mr. Allderdice said, that the courts had with hesitation entertained suits for a wager. If the wager is illegal, the money may be recovered from the stake-holder at any time before he pays it over, and when the wager is legal the party may withdraw it before the race is run, or the event has happened. (1 Stark. Ev., 1235; Wheat. Selw., 1091; 12 Johns. Rep., 1.)
Bayard, jr., replied: — that there was nothing illegal or immoral in a foot race; if such contest of speed was had without fraud. But fraud will vitiate the race and the contracts in reference to it. There can be no recovery of a bet, without a decision by the appointed judges. (1 Harr. Rep., 496.)
By the Court.
With regard to wagers being made a subject of judicial investigation and recovery, it has often been regretted that it has been allowed; but it has been allowed, and a recovery may be had in cases where the wager is not against policy or against a statute. In regard to illegal wagers, either party may rescind the contract and recover back the stakes at any time, even after the event, if before the stakes are actually paid over.
But with regard to legal wagers, neither party can disaffirm the contract, or recover back the stakes before or after the event, if the event actually takes place, and a decision has been made as to the result. If the event cannot take place, or the result cannot be ascertained, the depositors may each recover back his money upon general principles governing the action of assumpsit. If the event has taken place and the result determined, the money can be recovered only on the decision as to that result. If, according to the wager, the parties have appointed judges of the event, it can be ascertained only by the decision of the judges.
Verdict for defendant.