author: Gardiner, J.

text:
    Ann Lohman, alias Madame Restell, vs. The People.
    Mere surphisage in an indictment will not vitiate, and therefore where an indictmen alleges facts which constitute a misdemeanor, it will be good for that offence, although it state other facts, which go to constitute a felony provided all the facts alleged fall short of the charge of felony, in consequence of some other fact essential to that charge, e. g. the intent of the party accused not being averred.
    By statute (Laws of 1845, ch. 260, § 2) it is a misdemeanor to administer drugs &c. to a pregnant female with intent to produce a miscarriage ¡ and by statute (Laws of 1846, ch. 22, § 1) it is manslaughter to use the same means with intent to destroy the child, in case the death of such child be thereby produced. The indictment charged all the facts necessary to constitute the crime of manslaughter, except the intent with which the acts were done, and in its conclusion it characterized the crime as manslaughter; but the only intent charged was an intent to produce a miscarriage ; held that the indictment was fatally defective for the felony, but good for the misdemeanor, and that the accused was properly convicted of the latter offence.
    A conviction for a misdemeanor under such an indictment would, it seems, be a bar to a subsequent indictment for the felony. The record would be conclusive evidence that the acts were done with the intent alleged in the indictment, and therefore the people could.not allege a different intent, so as to constitute a different offence.
    A juror being challenged to the favor testified before the triers, that he had formed no opinion and had no impressions as to the guilt of the prisoner, but that it had been and was still his impression that the general character of the prisoner was bad. .The question was then put to the juror whether he would disregard what he had beard and read, and render his verdict according to evidence. Objected to, and exception taken. Held that the question, although inartifieially put, substantially called for the consciousness of the juror as to his ability to try the cause impartially, and therefore that it was properly allowed.
    A witness is privileged from answering a question when the answer would tend to disgrace him, unless the evidence would bear directly upon the issue; and therefore, where the answer could have no effect upon the case, except as it might impair the credibility of the witness, held that he was privileged.
    Where the cross-examination of the principal witness for the people was conducted in a manner tending to impair her credibility, and to show that the prosecution was the result of a conspiracy in which she was concerned; held that it was competent to sustain the witness, by showing that another person, to whom the facts had become professionally known, wrote to the public authorities, and was the cause of the prosecution being instituted.
    The defendant was convicted in the court of general sessions of the city and county of New-York, under the second section of the act to prevent the procurement of abortion, passed in 1845, and sentenced to imprisonment in the county jail. The judgment of the court of sessions was affirmed on a writ of error, by the supreme court, (see 2 Barb. Sup. Court Rep. 216,) which last decision the defendant removed by writ of error into this court.
    The first section of chapter 22, (Sess. Laws of 1846, p. 19,) enacts in substance, that every person who shall administer to any woman pregnant with a quick child, any medicine, drug, &c. or shall use any other means with intent thereby to destroy such child, (unless the same are necessary to preserve the life of the mother,) shall, in case the death of the mother or child be thereby produced, be deemed guilty of manslaughter in the second degree. The second section repeals the first section of the act to punish the procurement of abortion, passed in 1845 ; and the first section above quoted is a transcript of the section repealed, with the addition of the words, “ in case the death of such child or mother be thereby produced.”

      The second section of the act of 1845 provides, that if tne means mentioned in the first section are used “ with intent to procure the miscarriage of such woman” the offender shall be'punished by imprisonment in the county jail, &c.
    All the counts in the indictment averred an intent upon the part of the defendant “ to procure the miscarriage of Maria Bodine,” varying only as to the means used, and alleging that “ by means thereof the death of the child was procured.” The several counts then conclude as follows: “ And so the jurors aforesaid do say, that the defendant the said quick child in the manner and by the mehns aforesaid, feloniously and wilfully did kill and' slay, against the form of the statute.”
    At the trial, one Cortelyou was called as a juror, and challenged to the favor by the defendant, which was denied by the people; and upon the issue thus joined the juror was "sworn as a witness for the defendant, and testified that he had formed no opinion as to the guilt of the prisoner; that what he had read made no impression upon his mind ; that he did not think he had ever read a full statement of the case; that he did not think he had any impressions as to the guilt or innocence of thr prisoner; but it had been and was his impression that the general character of the defendant was bad. On his cross-examination he was asked by the counsel for the people the following question : “ If you were sworn as a juror in this cause would you disregard what you have heard or read out of court, and render your verdict upon the evidence?” The question was objected to as irrelevant, as calling for the opinion of the witness, and as substituting his judgment for that of the triers. The court overruled the objection, and the defendant ex cepted.
    Upon the trial Maria Bodine, the person named in the indictment, was called as a witness by the people, and testified that she went to live with one Cook in the month of July, 1845, that she had intercourse with him about a month after, which was continued to May, 1846, at which time she discovered that she was pregnant. Upon the cross-examination, the counsel for the defendant proposed the following questions to the witness which she declined to answer upon the ground that they would tend to disgrace her. “ Had you any sexual intercourse with any other person than Cook prior to April, 1846? Had you during the fall of 1845, or winter of 1846, the venereal disease 1 Had you any sexual intercourse with any other person than Cook between July, 1845, and April, 1846 ?” The court refused to compel the witness to answer, and to this decision the defendant excepted.
    After a protracted cross-examination of MariaBodine, one object of which was to impair the credit of the. witness, the counsel for the people called Dr. Smith as a witness, who testified to an examination of Maria Bodine, made by him in May, 1847, and as the result of that examination, his opinion as a physician, 1st, that the female must have been delivered of a child badly managed, or 2d, that an abortion must have been procured upon her, or 3d, that there had been some mechanical injury, or injury by some instrument, or violence. He was then asked by the prosecution the following question : “In consequence of your examination, and the opinion you formed, and in consequence of a communication confidentially made to you as a physician by Maria Bodine as your patient cotemporaneously with your examination, what steps did you take?” On inquiry by defendant’s counsel, the counsel for the people avowed the object of the question to be in substance to sustain the testimony of Maria Bodine, by showing by the witness that he wrote to the mayor of New-York, and was the cause of the prosecution being instituted. To the question, and the offer of the counsel for the people, the defendant objected; the objection was overruled and an exception was taken.

      E. Sandford, for plaintiff in error.

      J. McKeon, (district attorney,) for the people.
   By the Court,

Gardiner, J.

The indictment is defective under the first section of the act of 1846, in omitting to charge an intent to destroy the child by the means employed by the defendant. It contains all and more than is necessary to consti tute a misdemeanor within the 2d section of the act of 1845.

Mere surplusage will not vitiate the indictment, and of course is no ground for reversing the judgment. (People v. Jackson, 3 Hill, 94, and cases cited.)

It is contended, however, that the prisoner, notwithstanding this conviction, may be indicted for manslaughter, adding to the charges in this indictment the intent to destroy the child. If this were admitted it would furnish no ground for reversal. The offences created by the first section of the act of 1846, and the second section of the act of 1845, are separate and distinct, as the counsel for the defendant strenuously insists. The prisoner has been found guilty of a misdemeanor; and I do not perceive how this court, in face of the verdict and the record, can assume that the defendant has been guilty of a felony.

Upon the same principle, if the defendant had been convicted of an assault and battery, we might have been asked to reverse the judgment, because she might have been guilty of a battery with intent to kill. To constitute a felony, nothing would be necessary but to add the intent to the other allegations of the indictment.

But in the second place, I incline to the opinion that the defendant could ¡ilead this conviction in bar to a subsequent indictment for the felony, under the first section of the act of 1846. The right does not result from the doctrine that a party cannot be put a second time in jeopardy for the same offence, because as we have seen the offences under the 1st and 2d sections, are distinct, but from a principle of wider application, namely, that the accused may always avail himself of tire plea of a former conviction, if the record shows affirmatively that the defendant could not have been guilty of the crime charged in the indictment.

The difference in the offences as laid in this indictment, and the felony under the 1st section of the act of 1845, t is said truly, consists solely in. the intention of the criminal—the means of their commission and the consequences in either case being precisely the same. Now to constitute a misdemeanor under the statute, the indictment must allege, and upon conviction the jury must find, that the means charged were used with the intent to procure a miscarriage. The people therefore would be concluded by the record from alleging, in a subsequent indictment, that the prisoner employed the same means, upon the same person and occasion, with a different design.

A conviction for manslaughter is a bar to a subsequent in dictment for murder. The distinction in the offences consists in the intent with which the homicide is committed. The record of conviction would show, in effect,, that the killing was without malice, and would be conclusive upon the people and the accused. (Chit. Cr. L. 456 ; Coke’s R. part 4, 146.) The case of Rex v. Cross, (1 Ld. Raym. 711,) cited by the defendant, is an authority to show that where the same facts which constitute a misdemeanor at common law, are made felony by statute, the indictment must be for felony. The case in 5 Mass. R. 106, and 9 Cowen, 578, decide that where a conspiracy is consummated, you cannot separate the agreement to conspire from the overt act by which it is accomplished. These are all instances of merger, and have no application to a case like the present, where the offences created by the 1st and 2d sections of our statutes are conceded to be separate and distinct.

As to the question put to the juror Cortelyou. The issue to be tried was whether the juror stood indifferent between the parties. This of course depended upon his state of mind. ' To ascertain this was the object of the examination of both parties. Upon an issue of this kind, from the nature of the fact to be established, the opinion of the juror derived from his own consciousness, was relevant, competent and primary evidence. The interrogatory put was in form exceedingly inartificial, but its effect (and to this only the objection applies) was obviously to elicit an opinion as to the strength of the impression to vvhich he had previously testified, and whether he was conscious of the ability to render a verdict according to the evidence notwithstanding. If the juror answered in the affirmative, it would have been a declaration that he possessed such ability. This would be but an opinion, but one founded on his own consciousness, and so far entitled to the consideration of the triers, although by no means conclusive upon them. If he had responded in the negative, the answer would (if believed) have been decisive against his competency. For although a man may think himself impartial when he is not, he.cannot be a competent juror if conscious of an inability to render a verdict without being influenced by previous impressions. The question then was equivalent to asking the juror whether he felt or was conscious that he could render an impartial verdict notwithstanding all that he had heard or read. This in effect was the question put and sustained by the supreme court, in The People v. Bodine, (3 Denio, 122.)

As to the questions proposed to Maria Bodine. It is hardly necessary to say that the answers sought to these questions would have disgraced the witness. She was therefore privileged from answering unless her answers were material to the issue. Her pregnancy was, it is true, one of the facts to be established by the prosecution, but whether induced by Cook or any other person was entirely immaterial. If her response had been in the affirmative to each of these interrogatoriés, it would not have been inconsistent with, or tended to disprove the fact of her pregnancy, or the agency of the prisoner in procuring the miscarriage, any farther than those answers affected her general character. The privilege of witnesses has been carried much farther in some of the cases, but all the authorities agree, that where as in this case, the object of the question is to impair the credibility of the witness, she could not be compelled to answer. (People v. Mather, 4 Wend. 250, and cases cited; Cowen & Hill's Notes, No. 521, and cases cited; 1 Burr's Trial, 244; 1 Greenl. § 454.)

As to the exception to the question proposed to Dr. Smith. It is now said that the question assumes two facts, viz. 1st. that Maria Bodine had made a confidential communication to the witness, and that he took some steps in consequence thereof; and 2d. that the communication, if made as assumed, was privileged. If this were true, the answer is, that these matters were not suggested upon the trial, nor was the attention of the court directed to them. The objection was of the most general character. The opinion formed by the witness upon the examination testified to by him, aided by communications from the patient as to her symptoms and the state of her health, was not only competent evidence, but strongly corroborative of her testimony. (1 Greenl. § 102.) It was a part of the res gestee. If the physician was thereby induced (even if it was not the sole motive) to resort to the public authorities for the purpose of further investigation, I can perceive no objection to the fact being proved. The cross-examination of Maria Bodine, as is manifest from inspection, was designed to discredit her with the jury. She had stated in answer to the defendant’s inquiries, the fact of her making a written statement at Walden, which she delivered to officer Boyer at that place, and minutely the circumstances of her visit to New-York after the crime was committed, and of her attendance before the grand jury. Now the defendant is not at liberty to say that this examination was irrelevant—and it could only be material with a view to impeach the veracity, or the motives of the witness, by showing her agency in procuring the indictment. In either view, the testimony of Smith was important, as it went to corroborate her statement and vindicate her motives.

We think there was no error in the judgment of the supreme court.

Judgment affirmed.


source: Caselaw Access Project

author: Bronson, J.

license: Public Domain

text:
    Barron vs. The People.
    The deposition of a witness taken in a criminal case pursuant to the statute relating to certain offences committed in the city of New-York. (Stat. of 1844, f. 476, § 11,) may be read in evidence on the trial of the indictment, on proof that the witness is a non-resident of the city at the time of the trial, and was so when the deposition was taken.
    Where, however, the only proof preliminary to reading the deposition was the evidence of a person employed by the district attorney to serve subpoenas, who testitied that a subpoena was issued to him for the witness whose deposition was offered to be read, that he called at two of the hotels in the city, where, as he was informed by the district attorney, the witness stopped when he was in the city, that he inquired of the bar-keepers at each of those places, and was informed that the witness was not at either of those places, and did not live in New-York to their knowledge, that he could not find the witness in the city, and did not know where he resided; held, insufficient to authorize the deposition to be read.
    Error to the supreme court. Barron was indicted in the New-York general sessions for grand larceny, committed in that city. The indictment was removed into the New-York oyer and terminer, and tried there.. On the trial the district attorney offered to read in evidence against the defendant the deposition of James Whaley Bennett, purporting to have been taken de bene esse on the 27th of April, 1847, before the recorder of the city, pursuant to Stat. 1844, p. 476, § 11. The deposition was filed on the 30th of April—three days after it was taken. To authorize the reading the district attorney called Thomas W Brennan, who testified as follows: “ I am one of the officers employed in the office of the district attorney of the city of New-York to serve subpoenas, and had a subpoena in this cause for Jatees Whaley Bennett. I had a subpoena for Bennett to look for him, to look after him, to serve it on Bennett. I went to Rathbun’s hotel and Lovejoy’s hotel in this city, the places where I was informed by district attorney that Bennett stopped when he was in the city. I went to Lovejoy’s and Rathbun’s several times, at each time the cause was on the calendar since — • last. I inquired of the bar-keepers at each of those places for Bennett, and was informed that he was not at either of those places, and did not live in New-York to their knowledge. I could not find Mr. Bennett in this city.” On cross-examination the witness said, he did not know where Bennett resided.
    The defendant’s counsel objected to the reading of the deposition on several grounds; and among others, that it did not appear that Bennett was a non-resident of the state, or even of the city of New-York; and that the prosecution had not used due diligence to obtain the personal appearance of the witness—that they ought to have sent a subpoena for him to Chautauque county. It was stated in the deposition that the witness resided in that county. The court overruled the objection, and the defendant excepted. The deposition was read, and the defendant was convicted, and sentenced to five years imprisonment in the state prison. On error brought the supreme court affirmed the judgment of the oyer and terminer. The defendant then brought error to this court.

      E. Sandford, for the plaintiff in error

      John McKeon, (district attorney,) for the people.
   Bronson, J.

When certain offences are committed in the city and county of New-York, against persons being in, but not being residents of the city, the testimony of all witnesses in the matter, being in, but not residing in the city, may,"on the appli cation of the district attorney, be taken de bene esse, before a judge, out of court. The witness must be examined in presence of the accused; the examination must be reduced to writing, and filed in the office of the clerk of the court of sessions; and may be used before the grand jury, and all courts and tribunals having jurisdiction of the subject matter, in the same manner and with the like effect as the witness could be were he personally present. (Stat. 1844, p. 476, § 11.) There is another statute touching this matter, but it does not affect the present question. (Stat. 1846, p. 408, § 9.) The testimony is to be taken “de bene esse,” or conditionally; but upon what condition, or under what circumstances the deposition may be used, the legislature has not specified. Although the supreme court felt embarrassed in The People v. Hadden, (3 Denio, 220,) by the want of such a specification, they were clearly of opinion that the deposition could not be read in evidence under all possible circumstances, or'as a matter of course; but that the district attorney must give some account of the witness, or the reason why he was not produced, before the deposition could be received: and a new trial was ordered in that case, because the district attorney had been allowed to read the deposition, without sufficiently accounting for the absence of the witness. There can be no doubt of the correctness of the decision. But I think the court might have gone a step further, and solved the question when, or under what circumstances, the deposition may be read in evidence. As the testimony is to be taken de bene esse, or conditionally, without any specification of the circumstances under which it may be used, the legislature mus' have referred to the established practice of taking testimony da bene esse, or conditionally, in civil cases. Such deposition can only be given in evidence on showing that the witness is dead, insane, or unable to attend the trial in consequence of sickness or settled infirmity; or that he is absent from the state. (The People v. Restell, 3 Hill, 295, and cases cited; 2 R. S. 391, art. 1.) Unless we understand the legislature as referring to the practice in civil cases, the words “ de bene esse,” as they are used in the statute, will have no meaning. But with that reference, all is plain enough. The deposition cannot be read on the trial, without first showing that the attendance of the witness could not be procured, either in consequence of his inability to come, or his absence from the state.

It has not been contended, on the part of the people, that the deposition may be read under all possible circumstances. It is^ admitted that some account must be given of the witness. But it is said to be enough to show that the witness is a non-resident of the city, or cannot, upon diligent search, be found in it, at the time of the trial. That admission is enough to dispose.of this case; for there was no proof whatever that the witness was a non-resident; and nothing like sufficient proof that he could not be found in the city. The deposition had not been read at the time this question arose; and Mr. Brennan knew nothing about the residence of the witness. He was only called for the purpose of showing that the witness could not be found in the city at the time of the trial; and there was a total failure to make out any thing like due diligence in the search and inquiry. It amounted to no more than this: Brennan, without knowing any thing himself about the witness or his residence, went to two hotels, where he was informed by the district at torney that Bennett stopped when he was in the city; and on inquiry, he was informed by the two bar-keepers that Bennett “was not at either of those places, and did not live in New-York to their knowledgewhich means, I suppose, that they Knew nothing about the matter, either one way or the other. The district attorney was not called to state what he knew about Bennett, or why he sent Brennan to the two hotels. Some stress was laid on the concluding remark of Brennan, that he “could not find Mr. Bennett in the city.” But he had. previously given the particulars of what he had done in the premises; and it was far enough from a diligent search or inquiry after the witness.

This is enough to dispose of the case as it now comes before us. But as the question which has already been made, will undoubtedly be made again upon the new trial which must be ordered, it is proper that we should determine what must be shown concerning the witness before the deposition can be read. That has already been intimated. It is not enough to prove that the witness is a non-resident of the city, or that upon diligent search and inquiry he cannot be found in it: nor will both of those facts combined make out a proper case. Absence from the city is not mentioned at all in the statute; and non-residence is only spoken of in reference to the class of persons who are injured by the offence, and the witnesses who may be examined out of court. When we come to the question, upon what condition, or under what circumstances the deposition may be read, the statute is entirely silent, except in the use of the words de bene esse. If we do not reject those words as utterly senseless, they evidently point to the rule in civil cases; and the witness must be produced on the trial, unless his attendance is prevented by insanity, sickness, settled infirmity or absence from the state. The legislature could not have intended to make a rule more burdensome to the accused in criminal cases, than is the rule in relation to a party in a civil suit. They did not intend that the deposition should be read wnen the witness resides at Brooklyn, in sight of the New-York city hall; and yet such is the result of the doctrine which has been urged on the part of the prosecution. If this question were more doubtful than it is, it should be borne in mind, that upon any construction, this is a statute in derogation of the common law rules of evidence; and that it violates a principle which was thought of sufficient importance to be adopted as a part of the sixth amendment of the constitution of the United States, and also forms a part of our bill of rights, in these words: “ In all criminal prosecutions the accused has a right to be confronted with the witnesses against him.” (1 R. S. 94, § 14.) This means something more than that the accused shall have the right to stand face to face with his accuser out of court; it means that they shall be confronted on the trial, so that the judge and jury may have the opportunity of observing the appearance and manner of the witness, as well as hearing what he has to say—the former sometimes proving a complete antidote to the latter, as is well known to every nisi prius lawyer. We cannot very well over•stimate the importance of having the witness examined and cross-examined in presence of the court and jury. Although the constitution of the United States does not apply to state prosecutions, and our bill of rights is but a statute, which, like other statutes, may be repealed, we ought to adopt the most strict construction for the purpose of confining any supposed repeal—especially one by mere implication—to the narrowest possible limits. Justice to the legislature requires that we should so construe the statute as not to carry the inroad which, to some extent, it makes upon a great principle, any further than is absolutely necessary.

I am of opinion that the rule which governs the reading of depositions taken conditionally in civil cases, should be applied to depositions taken under the New-York criminal statute. Upon this construction the statute will still have effect. It will apply wherever the witness, at the time of the trial, resides out of the state, or is dead; and where, though alive and residing in the state, he has become incapable of attending the trial in' consequence of sickness or insanity.

But a majority of the judges are of opinion tnat though tr.e witness may be a resident of 'he state, and able to attend 'the trial, the deposition may be read on proof that he is a non-resident of the city at the time of the trial, and was so when the deposition was taken. We are all of opinion that there was no sufficient proof of such non-residence in this case; and on that ground the judgments of the supreme court and the oyer and terminer must be reversed, and a new trial be' awarded.

Ordered accordingly.


author: Jones, J.

text:
    Ruckman vs. Pitcher.
    The losing party in an illegal bet or wager may recover from the stakeholder the sum deposited by him, although the stakeholder by his direction, given immediately after the wager is determined, has paid the money over to the winner.
    An action to recover money deposited on an illegal wager may be maintained with out demand.
    A wager upon the result of a horse race in Gtueens county is unlawful, notwithstanding the statutes authorizing and regulating the racing of horses in that county.
    A party who stakes a sum of money on an illegal wager may recover so much thereof as belongs to himself without joining in the action other persons who contributed specific portions of the fund.
    Error from the supreme court, where the action was debt, brought by Ruckman against Pitcher,' for money had and received contrary to the provisions of the statute against betting and gaming. The defendant pleaded nil debet, and the cause was tried at the New-York circuit held by Kent, circuit judge, in October, 1844. The case was this: The plaintiff made a bet of $3000 with one Minturn on the event of a trotting match to take place at the Centreville course on Long Island, and the money on both sides was deposited with the defendant as stakeholder. Minturn won the wager and immediately after requested- the defendant to pay over to him the money. The defendant then asked-the plaintiff, who was present, if he had any objection to the money being paid over and whether he was satisfied. The plaintiff replied that he was satisfied, and
      directed the defendant to pay over the money, which he accordingly did. The evidence tended to show that other persons besides the plaintiff were interested in the money staked by him, and that in fact only $500 belonged to him.
    The counsel for the defendant requested the circuit judge to charge the jury that the defendant was entitled to a verdict on the following grounds, viz. 1. That other persons being interested with the plaintiff in the money bet, the action was not properly brought in the name of the plaintiff alone; 2. That the race was not unlawful, being on a regulated course in Queens county, and authorized by the act of 1834; 3. That the money when lost was paid over by the consent and direction of the defendant; 4. That the plaintiff could only recover, if at all, the amount he was proved to be interested in the bet, to wit, $500; 5. That the action could not be maintained without proof of a demand of the money. The circuit judge charged the jury, that if the money was paid over by the consent and direction of the plaintiff, he could not recover. On the other points the charge was favorable to the plaintiff. The jury found a verdict for the defendant. The plaintiff made a bill of exceptions and moved the supreme court for a new trial, which was denied, and judgment rendered for the defendant.

      I. T. Brady, for plaintiff in error.
    The circuit judge erred in charging the jury that the plaintiff could not recover if the money staked had, after the race, been paid to Minturn as the winner thereof with the consent and by the order of the defendant. The revised statutes (1 R. S. 662, §§ 8, 9, 16) make the stakeholder liable, whether he has or has not paid over the money to the winner. His liability arises from merely having the stakes in his possession. In paying over the stakes to the winner he knew that he was violating the law, and that his liability to refund to Ruckman continued notwithstanding such payment. The consent to such payment could not make it legal, nor relieve the stakeholder from liability. There was no legal nor moral consideration for the transfer of the plaintiff’s mo ney. On the contrary, it was transferred in violation of the law. Any other rule would defeat the intention of the legislature, and destroy the utility of the statute against betting and gaming. The consent after the race, should not create any right, or change any liability, more than the consent involved in the wager itself, viz. that the stakeholder might deliver the stakes to the winner. (Rev. Notes, 3 R. S. 2d ed. p. 555, § 9.) There is no room for the argument that this was a voluntary gift of the money by Ruckman to Minturn like an ordinary donation. It was paid by a stakeholder, as the stakes of an unlawful wager, to the winner as such, with the consent of the loser, and in illegal satisfaction of the bet. To recognize the defendant’s position on this point would be palpably circumventing the policy of the law.
    If this court consider the other questions in the case, the plaintiff insists that this suit was properly brought in the name of Ruckman alone, he being the person who delivered the money to the defendant, and had the legal interest to demand it back. (1 Chit. Pl. 2, 9, Springf. ed. of 1839.)
    Whether the race in question was of was not lawful, the wager upon its issue was void. (Gouverneur v. Gibbons, 1 Den. 170.)
    The ninth section' of the revised statutes gives the right of action, instanter, on the deposite being made with the stakeholder—not after demand made. To require a demand of the deposite from the stakeholder after he has paid it 'over would be absurd. No demand before suit brought was necessary. (Downes v. Phenix Bank of Charleston, 6 Hill, 297.)

      N. B. Blunt, for the defendant in error.
   Jones, J.

It is claimed to have been shown, on the trial of this cause, that the race was run upon a regulated course in Q-ueens county, in full accordance with the special statutes exempting certain races in that county from the prohibitions and penalties of the general statute on the subject of the racing of animals; (Slat. 1834, ch. 73 ; id. 1821, ch. 193 ;) and hence it has been insisted, that as the race itself was lawful under those statutes, the same statutes permitted and sanctioned the bet or wager upon the result of the race. I understand the supreme court to have held that the wager was illegal, as coming within the general statute against betting and gaming, although the race itself was licenced by the special acts referred to, and I fully concur in that opinion. The argument in favor of the defendant in error is, that as the general statute relating to the racing of animals, prohibits such racing for any wager, bet or stakes, and the exempting acts allow the racing of horses on particular courses freed from the provisions and penalties of the general prohibitory act,-it is therefore not illegal to wager money upon the result of the permitted race. It is evident, I think, that the only effect of the special statutes is to exempt the race itself from the penalties of the general law against racing, leaving the general statute which prohibits betting and gaming to have its full operation upon the wager on the event of the race. The statute against the racing of animals declares all running, trotting, &c. for any bet or stakes, except such as are allowed by special laws, common and public nuisances and misdemeanors, and that all parties concerned therein shall be deemed guilty of a misdemeanor, and shall be punished by fine or imprisonment. (1 R. S. 672, § 1; 1 R. L. 222, §§ 1, 2, 3, 4, 6.) The act against betting and gaming, (1 R. S. 662; 1 R. L. 223,) declares unlawful “ all wagers, bets or stakes, made to depend upon any race, or upon any gaming by lot or chance, or upon any lot or chance, or unknown or contingent event whatever, and that all contracts for or on account of any money or property or thing in action, so wagered, bet or staked, shall be void.” These statutes relate to different subjects, contain distinct and separate provisions, affording different remedies, and imposing different penalties, as will be seen on a reference to the sections under each article. While, therefore, the special acts which have been referred to, may exonerate the parties concerned in the race in question from the provisions and penalties of the act against the racing of animals, I see no reason to doubt that the wager upon the result of the race comes fully within the provisions of the act declaring all wagers unlawful, and all contracts relating to them void.

The payment of the money over to the winner by the consent and direction of the plaintiff, constitutes the principal ground of defence. It is claimed for the defendant that he is discharged thereby from all liability to return or pay back to the plaintiff the money thus paid by his order to the winner. The plaintiff is bound, it is said, by his own act, and is precluded and estopped by his consent and direction to the stakeholder to pay the stakes to the winner, and the payment over of the same by the stakeholder, in obedience to such direction, from now claiming the money as being still his own, and coercing the payment of it by the stakeholder to himself. But how can that rule be claimed to apply ? The question is not upon the abstract rights and obligations of parties left free to contract, consent and act for themselves, and bound by their admissions and acts. The liability of the stakeholder to the loser, and the loser’s right of action against him, rest upon the statute. The legislature has prescribed the rules which are to govern the case, and our inquiry must what the rules are which the statute intends to apply.

In the first place, the fact simply of the payment over of the stakes to the winner, can certainly be of no avail to the stakeholder, for the statute on that point is perfectly clear and explicit. It expressly enables and authorizes any person who shall pay or deliver or deposit any money or property upon the event of any wager or bet thereby prohibited, to sue for and recover the same of the winner or person to whom the same shall be paid or delivered, and of the stakeholder or other person in whose hands the same shall be deposited, whether the same shall have been paid over by such stakeholder or not, and whether the wager-was lost or not. In the present case the stakes were paid over by the stakeholder to the winner, and evidence was given to show that such payment was with the consent and by the direction of the loser, and the question must be upon the effect of such consent and direction as the proof shows to have been given, upon the claim of the loser and the obligation and liability of the stakeholder. In other words, whether the consent and direction of the loser to the stakeholder to pay over the bet or stakes to the winner, and the actual payment over of the same under that direction varies the case, and deprives the loser of the right the statute gives him to reclaim and recover back the same of the stakeholder who has thus paid it over.

It is contended, on the part of the defendant, that the statute applies to voluntary payments only of the stakes by the stakeholder to the winner, without the direction or assent of the loser, and not to payments by the order or with the consent and permission of the depositor. And it is urged that if the money or stakes, notwithstanding the result of the race, was still the money of the depositor, and at his disposal, his order to the stakeholder to pay it to the winner was a valid disposition of it obligatory upon the stakeholder, and which the loser could not be permitted to revoke or disregard. To this the counsel for the plaintiff replies, that the statute gives to the loser the unqualified right to sue for and recover his stake or deposit of the stakeholder, whether such stake or deposit has been paid by the stakeholder to the winner or not; that the right to recover is absolute, and previous payment to the winner is no defence. The clear and obvious import of the language of the statute is that the payment of the stakes or deposit by the stakeholder to the winner, does not discharge or exonerate him from his liability to pay the same to the loser, who has a perfect right, notwithstanding such payment to the winner, to recover the same from the stakeholder. There is no provision made or intimation given by the statute, that the consent of the loser to such payment, or his direction to the stakeholder to pay the same to the winner, shall give effect to such payment as a discharge to the stakeholder, or a bar to the loser’s action against him. And in my judgment, any construction of the statute which should limit and confine its application to voluntary payments of the stakes by.the stakeholder to the winner, and' allow such payment over, when by the order or with the consent of the loser, to be valid and effectual as a discharge to the stakeholder, and a defence for him to the action of the loser, would contravene the sense and policy of the statute, and materially impair the value of the provisions on which its successful operation must depend. ,

I agree that in ordinary transactions the order or direction of a person having money in the hands of another, to pay it to a third person, will authorize and justify him in whose hands the money is, to.pay the same on such order, and that such payment will be a perfect defence for the party who has thus paid it over, against any claim or action therefor by the owner. But this was not the ordinary case of the direction of a person having money in the hands of another to pay it to a stranger or third person. It was the consent of a loser of a bet to a stakeholder to pay that bet to the winner. It was given by the loser on the race-course Upon the authoritative announcement of the result of the race, and on the application of the stakeholder to him for permission to pay over the stakes to the winner, as being won by him. The very time and place when and where the application was made, and the consent given, characterize it as a mere assent and acquiescence of the loser in the loss of the bet, and the right of the winner to it, and the consequent authorization of the loser to the stakeholder to pay it over accordingly. Look at the transaction as narrated by the witness. The whole alleged direction was simply this: On the application of Minturn the winner, to Pitcher the stakeholder, upon the decision of the judge that the race was won by Americas, for the stakes as won by him, Pitcher, the stakeholder, called Ruckman, the loser, who was on the ground, and asked him “if he had any objection to handing over the money, and if he was perfectly satisfied.” He replied that “ he was,” and to hand over the money.” What was this reply to the stakeholder’s question more than a mere assent of Ruck-man, the loser, to the decision of the judge as to the result of the race, and that his bet upon it was lost by him, and that the stakes were tp be paid to the winner? The ccnsent and direction given were to pay the money to Minturn, as money won by him, and to which he was entitled as the winner. It was in no sense of the terms a direction by the plaintiff in error to the defendant to pay money in his hands belonging to him, the plaintiff, which he had the right and the power to dispose of as he saw fit, and which was subject to his order in favor of Minturn, or any other person, at his own free will and pleasure. It was distinctly and emphatically an acknowledgment by him that the money belonged not to himself, but to Minturn, and was in the defendant’s hands as the money of Minturn, and to be paid to him. It was simply a consent, or at most, an order by the loser on the stakeholder to pay a bet lost by him to the winner. He had before, by the deposit of the monex in the hands of the stakeholder as his stake upon the event of the race, virtually authorized and directed him, the defendant, to pay over the same to the winner, in case the bet should, by the result of the race, be lost by him. The direction given by him in his ansxver to the question put to him by the stakeholder after the race was decided against him, to hand over the money to the winner, xvas simply the recognition and repetition of the authority before given by him when he made the deposit to pay over the same in case of loss.” But that consent and authority thus given to the stakeholder at the time of the deposit of the stake in his hands, to pay the same to the winner, the statute intended to cancel and annul. It xvas effectually annulled by authorizing the loser, in disregard of it, to sue for and recover back his deposit after the loss of the bet, from a stakeholder who had paid it over to the xvinner, notwithstanding such payment of it over by him. I can discover no evidence in the bill of exceptions before us, of any assent or order of the plaimiff to or for the payment over of the money, which does not refer to his express or implied instructions to the stakeholder at the time of the deposit, or was not manifestly in compliance with the .contract of wager, and for the fulfilment of engagements it imported. And if I am right in my views of the statute, neither any express directions given at the time of the deposit, nor the implied authority incident to the deposit of the money with the stakeholder, as the stake upon the race, nor the repetition or renewal of .that authority after the race was run and the bet decided, nor an assent, order or direction given at the time when the loss of the bet was announced, to pav over the stake to the winner, can be available as a defence to the action of the plaintiff for the recovery of the deposit.

The evident intention of the legislature was to discourage and repress gaining in all its forms, including bets and every species of wager contracts of hazard, as a great public mischief, calling for effective measures of prevention and remedy. Under our system of jurisprudence, as it existed previous to the revised statutes, wagers not against morals or sound policy, and of no evil or pernicious tendency, and not prohibited by statute, were held not to be illegal; but all wagers and bets winch are contrary to morality or public policy, or which tend to endanger the public peace, or affect the character or feelings of the citizen, or are otherwise of evil tendency, as well as those which were prohibited by statute, were held to be illegal and void; and-no action at law could be maintained by the winner against the loser to recover the money bet or wagered, however fairly as respected the chance or hazard, and the issue or event of it, the same might be lost and won. If, however, the money or bet, not recoverable by law, was voluntarily paid by the loser to the winner, no action could be sustained by the loser to recover it back; for the wager being illegal and the contract void, and the winner and loser both implicated in the illegality, the law would lend its aid to neither against the other for consummating or giving effect to any alleged right or claim growing out of the same, or in immediate connection therewith, but would leave the party in possession of the fund or money, to retain and hold it against the other; not from favor to the possessor, or from respect to his as the superior title thereto, but from disfavor to the illegal transaction, and in support of the statute or common law prohibition of it. This denial to the winner of the aid of legal process against the loser, for the compulsory payment of the bet to such winner, when won by him, was calculated, and doubtless tended to discourage wagers and bets understood to be illegal. But it was counteracted by causes which the laws could not reach or control. The loser, under the pressure of influences too powerful for him in the excitement of the ace or game to withstand, would most generally, on the decision of the bet, pay the money lost to the winner.! But instances would occur of losers who would avail themselves of the defence and protection which the law, in refusingÍ its aid to the winner, furnished them against the payment of the bet. It was of course desirable and important to betters guard against the exercise of this power of the loser thus to pudiate and render abortive the right and claim of the winner to the money won of him; and the readiest and most reliable measure of protection against it, was the intervention of a stakeholder, with whom the stakes should be deposited and placed for custody and for delivery over to the winner on the result of the race or game. The stakeholder would have no personal interest in the stakes to swerve him from his engagement and duty to pay the same over to the winner; and the money, when thus paid over to the winner, would be secured to him beyond the power of the loser to reclaim it or recover it back. But under this arrangement it was a point still unsettled, whether the loser could not, in the interval, after the loss of the bet, and before the payment of the money to the winner, reclaim his stake and sustain an action against the stakeholder for the money so deposited with him. It was a question which underwent much discussion, and on which opinions were divided. In England the rule was finally settled that when money was thus deposited with a stakeholder on an unlawful race or game, and had not been paid over by him, the loser might, after the event on which the bet was made to depend had happened, and was known, recover back the stake or money so deposited with and yet remaining in the hands of the stakeholder; but that when such stake or money had been, after the loss of it, paid over to the winner with the loser’s consent, the loser could not afterwards maintain an action against the stakeholder to recover back such deposit.

The decision on the point was at first the same way with us. The question came before the supreme court of this' state in the case case of Vischer v. Yates, (11 John. Rep. 23.) The action was by the loser against the stakeholder, to recover back his deposit on a wager or bet upon the election for governor of the state, which had resulted adversely to the plaintiff, and his bet was lost; but the stakes had not been paid over by the stakeholder to the winner, and Chancellor Kent, who rvas then the chief justice of that court, was of opinion that the wager tvas illegal as being against public policy, and he held, in accordance with the English rule, to which he adverted in terms of approbation, that the deposit, being upon an illegal wager, and remaining still in the hands of the stakeholder not paid over to the winner, might, though the bet was decided against the plaintiff, be recovered back by him of the stakeholder; and the other members of the court concurring with him in opinion, judgment was rendered for the plaintiff. There were several actions then pending in the same court, involving the same questions, and judgments were given for the plaintiffs in them all. But on a review of that decision by the court for the cor•°ction of errors, in one of those cases (the case of Yates v. Foot,) the judgment was reversed; and that court held that money deposited with a stakeholder as stakes, upon a wager void by the common law, could not be recovered back from the stakeholder by the depositor after the event had happened on which the wager depended, although it remained still in his hands not paid over, and he had notice from the loser not to pay it over to the winner. Senator Sandford, who delivered the opinion on that occasion, states the rule to be, that in cases of illegal wagers and contracts of hazard, void by the common law, and which either party might rescind, the party who elected to rescind must make his election, and take his action upon it before the contingent event happens, for that the happening of the event is the crisis in the contract which terminates all option and election of the party to revoke or rescind it; that before the contingency happens, either party may recede, but that after the result is known, neither party can retract; and applying the principle to the case then before him, he held that as the hazard had ceased and the result of the election was known, no action could, be allowed or maintained to recover back the money or stake in the hands of the stakeholder. On thece grounds that court decided that the loser could not recover back his deposit. The statutes againstgaming and horse racing were then subsisting and in force, but the wager then in question did not come within the provisions of either of them. And it was "admitted by Senator Sandford that the rule deduced by him from the principles of the common law, did not apply to cases of gaming and horse racing. These two species of contracts of hazard, he observed, had been made the subject of special legislation ; that they were the only classes of hazardous contracts in which the loser was allowed to reclaim and recover back the money he had wagered after the event was known and the wager lost; and that the object of the legislature was to suppress them, evidently on the grounds of public policy. This decision was in 1814, and as the law of this state was thereby declared to be, the better who deposited money with a stakeholder on an unlawful wager, not within the prohibitions of the statutes againstgaming or horse racing, could not, after the bet was lost, recover back his deposit; and whether the money had been paid over to the winner by the stakeholder, or remained in his hands, was of no consequence ; the loser could in neither case, after the loss of the wager, maintain an action against the stakeholder for it. The bet therefore, though illegal, if in deposit with a stakeholder true to his trust, was under no effectual legal restraint or interdiction, unless it was within the scope of the statutes against gaming or horse racing. These statutes professed and were intended to suppress the mischiefs to which they referred, but they differed greatly in the extent of the provisions they contained, and the efficiency of the remedies they applied, for the purposes intended. The statute against horse racing expressly prohibited all horse racing for wagers or stakes within the state; and the penalties affixed to the offence were so severe and stringent as to ensure to a moral certainty the suppression of the mischief. But the statute against gaming fell far short of that against horse racing in efficiency. It. professed to be “An act against excessive and deceitful gaming,” and it contained some wholesome provisions. It repressed and punished with due severity all deceit, fraud, cheating and unfair practices in the species of gaming it prohibited, and in netting upon the game; but its provisions agai.nst bets and gaming, as being themselves illicit, and intended to be repressed, were not sufficiently comprehensive and coercive to make them effectual. The statute provided and declared that all securities and conveyances for money or property won by play at any game, or by betting thereon, or bet or advanced for those purposes, should be void, and losers to the amount of $25 at any one time or sitting, who should pay the same, were enabled to recover back the same at any time within three months, from the winner, with costs. By the 5th section of the statute to prevent horse racing, and for other purposes, subsequently passed, it was in substance further provided, that all contracts for, or on account of, any money or other thing bet, or staked, or depending on any such race, (referring to the race before mentioned in -the statute,) or concerning the same, or for or on account of any gaming by lot or chance, of any kind or description, should be deemed and adjudged void, and that it should be lawful for any person who might have paid any money or other thing upon the issue or event of any such race or game, to recover the same in like manner as provided in the 2d and 3d sections of the act entitled an act against excessive and deceitful gaming. And by those sections of that act the action was to be brought within three months, and was to be against the winner.' These provisions and penalties were thus limited to the species of gaming by play at any game, or by lot or chance; to bets upon such gaming, and to money lent for those purposes; and the action given to the loser was limited to three months, and to be against the winner only—provisions of much importance and use indeed, but obviously inadequate to the suppression of the offences they were intended to prohibit and prevent.

The revised statutes which went into operation in 1830, fully supplied the deficiency, and indeed have gone the whole length of prohibiting all wagers, bets, and stakes upon any contingent or unknown event, with the exception only of contracts of insurance, and upon bottomry and respondentia, and have enabled the loser to recover the money wagered and lost, not only of the winner,.but also of the slakeholde , notwithstanding that he may, after the loss of the bet, have paid the same over to the winner. It was manifestly the intention of the legislature to suppress and prohibit every species of wager and bet, either upon the racing of animals, or upon any contingent or unknown event whatsoever, other than the contracts expressly excepted, and to abolish all distinction between lawful and unlawful wagers, and make them all invalid and void. As one of the bes and surest means of accomplishing that end, the provision was adopted enabling and authorizing the loser to sue for and recover back his stake or deposit from the stakeholder, whether the race or game may have been lost or not, or the money paid over to the winner or not. Anterior to the revised statutes, questions were liable to occur upon the legality of the wager, and the provisions and penalties applied by the laws to the preventing or the suppression of those adjudged to be unlawful might be evaded by the betters, or might prove inadequate to the effectual restraint of the offence. And the action given by the statutes to the loser to recover back the money lost and paid by him, was too limited and defective to be, for any purpose, a reliable remedy. For the provision giving the action limited the time for the commencement of it to the short space of three months, and applied it to the winner, without any notice of the stakeholder or reference to him. -The remedy thereby, upon a strict construction of the act, would be against the winner alone ; or if the terms of the 5th section of the act against horse racing admitted of an exposition sufficiently broad to include the stakeholder, in the cases to which that section refers, as being a party to whom the loser had paid the money he sought to recover back, the action for it, against him, to be effectual," must be brought before the same was in good faith paid over to the winner. And it is quite obvious that the payment over of the stakes to the winner may be made so promptly upon the decision of the race or game, as not to allow sufficient time to the loser to arrest it, by his action, in the hands of the stakeholder, and that the loser’s recourse to the stakeholder would thu? be frustrated.

But under the provisions of the revised statutes, those difficulties and doubts cease to exist. The article entitled “ of betting and gaming,” is general, comprehensive and explicit. It embraces and embodies the pre-existing restraints upon betting and gaming, with the further provision making the stake or deposit of the ¡oser recoverable by him of the stakeholder, either before or after the loss of the race or game, notwithstanding that the same may have been paid over to the winner, and whether the same has been thus paid over or not. This further provision thus rendering the payment over of the stake to the winner of no avail to the stakeholder as a defence to the action of the loser against him under the statute for the recovery of it back, gives to the present system a decided advantage over that which preceded it, for suppressing the obnoxious practices of betting and gaming. And if full effect be given to it, and it shall be fairly applied and carried out, it must have an efficient agency in the accomplishment of the purposes of the statute. But to give it that effect, the loser’s assent to the payment over of the stake, or his order directing it, must not be allowed to affect the stakeholder’s liability : for when the wager is upon an event or contingency unknown to both the parties, and the result is uninfluenced by either of them, and no deception, fraud or unfair practice is imputable to the winner, the loser will very rarely dissent from the payment of the stake to the winner; but will, when present and called upon for his consent, usually acknowledge the winner’s claim, and authorize the payment of the stake for him by the stakeholder accordingly. To allow such consent and authority of the loser, so given by him, to be a sufficient warrant to the stakeholder to pay over the money, and an effectual defence to the action of the loser against him, would be to open the door to evasions of the statute, which would essentially impair its provisions and render it altogether inadequate to the purposes for which it was intended. The statute, to be effectual, must be construed and held to provide that no payment of the stakes by the stakeholder to the winner, either without the consent of the loser or with such consent, shall be a defence for the stakeholder to the action of the loser against, him for the same. That such was the intention of the framers of the statute, the defects in the preexisting laws which the further provision of this statute was intended to supply, the remedy it provides, and the language it employs, appear to me to fully and clearly evince. It was the agency and concurrence of the loser in giving effect to the illegal contract of wager, and chiefly the consent and direction sc habitually given by the loser, to the payment of the stakes to the winner, which under the former system rendered the provisions of law against' betting and gaming so ineffectual; and it was to provide a remedy for that evasion of the former statutes, that the action was given to the loser in its present amplitude, vesting in him the unqualified right to recover back his deposit from the stakeholder who had paid it over to the winner. The language of the statute giving the action is full, clear and explicit; the right to sue for and recover the deposit of the stakeholder is unconditional, and applies to all cases of deposits and stakes, whether the bet is lost or not, or the stake is paid over or not. The statute makes no exception of payments with the consent or by the order of the loser, and the court can make none.

It is incorrect and unjust to predicate of this denial of effect to such consent of the loser of the bet, that it encroaches upon his right to the free disposition of the fund, or interfered with his power over it. He had a perfect right and was at full literty to dispose of it as he pleased, and to order and direct it to be paid by the defendant to any person whomsoever, other than the winner as being entitled thereto on the ground that he had won the wager. The plaintiff in error, being the owner of the money, had the right to call upon the stakeholder for it himself, or to dispose of it to others, and order and direct the payment of it to them; and the payment of it to such order by the” defendant would be perfectly regular, and would discharge him from his liability therefor to the plaintiff. But the plaintiff in error, as loser, could not direct the payment of the stake to the winner as being won by him. Such order and direction, and the payment under it, would be in consummation of the unlawful bet, and if permitted would give effect to the contract which the statute declares to-be void.

If such order and direction .of the loser to the stakeholder to pay over the stakes to the winner, could have the efficacy ascribed to it by the defendant in error, it must be either because the payment over of the money is by such consent and direction authorized and made a legal and valid payment, or because the loser who gives it precludes himself thereby from afterwards contesting its validity or asserting a claim to the money after his waiver of his right to it, and in disaffirmance of bis own disposal of it to another person. In questions between parties to contracts and transactions, on common law principles, where no statute rule intervenes, those grounds of objection to a plaintiff’s right of action -would be available, and might be conclusive. But in the application of statutory provisions, the rules given by the statute are to govern. The statute under consid eration, which makes the wager illegal, and the contract void, implicates the stakeholder in the illegality; and to render the remedy it provides against him effectual, authorizes and enables the depositor to recover back a stake deposited with him as stakeholder, after he has paid it over, and notwithstanding such payment. He therefore cannot exonerate himself from his liability to the action of the loser for the deposit, by paying the money over, but must continue, notwithstanding such payment, amenable to the loser for it. And any consent or order of the loser to him to pay it over, as it contravenes the spirit and intention of the statute, and tends to impede its operation and frustrate its design, must be nugatory and inoperative.

In the case of Lewis v. Miner, (3 Denio, 103,) it was contended that the. loser, by the payment or delivery over of the money or thing wagered, consented to part with the property, and had no remedy by the common law to recover it back. Such was admitted to be the common law rule, but the court held that the statute nullifies the consent, and gives the loser a remedy by action. The demand was there against the wnnner; but the question was on .the effect of the consent of the loser to part with his property, and upon his right of action to recover it back; and the opinion expressed by the chief justice was, that the statute nullified the consent,” and gave the loser a remedy by action. How are we to distinguish that case in principle from this? The point was that the statute nullified the con sent of the loser to the payment of the wager when lost to the winner. And if the payment of it direct to the winner is nullified, must not the consent and direction to the stakeholder to pay it over be equally inoperative and void? The stakeholder is the agent of the better, and takes the money deposited in his hands as the better’s stake, under the express or implied engagement to pay it over when lost and won, to the winner. If the wager had been lawful, and the contract valid, he would need no "other or farther assent, order or authority from the loser to pay it over; or if the statute had left the stakeholder at liberty to fulfil his engagement, and had- not interdicted the payment of the stakes to the winner, such payment would have exonerated him from his liability. But the statute, by giving the loser an action against him for the money, after the payment of it over by him to the winner, has, in effect, interdicted such payment over, and made the same ineffectual and of no avail to him as a defence to the action of the loser against him. The authority given by the original deposit to pay over the stake upon the loss of the bet to the winner, is necessarily nullified by the provisions of the statute giving the loser a remedy by action to recover it back; and the repetition of that authority by the consent and direction given immediately after the loss, to pay the same over, cannot surely give validity to a payment which the statute thus impliedly interdicts. Such subsequent consent and direction is in effect nothing more than the affirmance of the contract ánd authority created and given by the original deposit, and an order and direction to fulfil and perform it in disregard of the" statute.

In the case of Ruckman v. Bryan, (3 Denio, 340,) the defendant had borrowed a sum of money of the plaintiff to bet on a horse race, which had been deposited with a stakeholder, by whom the same, on the decision of the race, had been paid over to the winner. The defendant, who was the borrower, had afterwards promised to pay the loan to the plaintiff; and action was by the lender against the borrower for the money. The court wholly disregarded the subsequent promise.of the borrower, made after the loss of the race, to repay the loan; and held such loan to be illegal, and the money lent irrecoverable by the lender of the borrower. So here, the payment over of the stakes by the stakeholder to the winner, being in itself inoperative as a discharge, of his liability, the consent or direction of the loser to him to pay the same over, could not impart to it the force and validity of a duly authorized and available paj^ment. Such payment of the money wagered, by the stakeholder to the winner, on the ground that he had won the wager, whether with or without the consent and direction of the loser, is the payment of an illegal bet, in consummation of an unlawful and void contract. The order or direction of the loser to the stakeholder .to pay it, cannot and does not change the nature or character of the payment. And no such consent or direction can, in my judgment, be a defence for the stakeholder against the action of the loser given to him by the statute. Such, I understand to be the rule laid down in the case of Lewis v. Miner as applicable to the case of an action by the loser against the winner. And it appears to me to be equally applicable to the case of an action against the stakeholder.

I am, however, not to be understood to hold.that the money wagered and deposited with a stakeholder can, under no cir cumstances, be directed by the depositor, after the loss of the wager by him, to be'paid to the person with whom the bet was made;, but if such direction of the loser can, consistently with the terms and policy of the statute, be allowed in any case, (other than an actual bona fide purchase,) to avail- the stakeholder for his justification, it must surely be on the ground that such consent and direction have been freely given for the payment of it, not-as money to be paid over to a winner as a stake won by him, and thereby become his money, but as money of the loser, directed by him-to be paid to the winner, not as having any right to it, but as the free and voluntary gift and gratuity of the loser to him. It would be highly improl, able, I will not say impossible, that any such case should ever occur, and in perfect good faith exist. And I hold it to be clear that no consent or order of the loser to pay the money or stakes lost to the winner, as money won by him, can in any case give the winner any claim thereto, or the stakeholder any right or authority to pay the same to him. The stakeholder can consequently avail himself of no such consent or direction as an authority to him to pay the loser’s deposit to the winner as money or stakes won by him on the issue of the race or game, nor claim the benefit of such payment as a defence to the action of the loser against him for the.deposit.

In this case it is admitted and avowed that the money was paid by the defendant to the winner as money won by him on the race. The judge, in his charge to the jury, instructed them that if the money was paid to Minturn after the race, as winner of the stakes, by and with the approbation and consent, and upon the order of the plaintiff, such payment was a bar to the plaintiff’s right of action against the defendant. This direction, in our view of the law was clearly incorrect, and vitiates the verdict. The jury could not, if guided by it, find otherwise than they did. The proof was full and clear that the money was paid to Minturn after the race, as winner of the stakes, with the consent of the plaintiff in error, given on the race-course at the time the race was run and the result announced. It was paid as money lost, and received as the stakes won upon the race. Such payment must, I think, be deemed as fully within the provisions of the statute, as a payment by the loser himself tp the winner would be.

But again, it is objected that as the payment of the stakes by the stakeholder to the winner gives the loser a right of action against the winner for the recovery of the same from him, the proper resort of the loser is to him, and recourse cannot be permitted to the stakeholder also, as a double satisfaction might thereby be obtained. It is a sufficient answer to this objection, that the statute in express terms authorizes the loser to sue for and recover his deposit or stake of the stakeholder, whether he has paid the same over to the winner or not. The loser, assuming that he would be confined to one satisfaction, might surely have concurrent remedies therefor, against both the stakeholder who paid over the stake, and the winner to whom it was paid, and be entitled to take his remedy against either of them, and against the stakeholder in the first instance. He consequently must have the right to prosecute his action against such stakeholder to judgment and execution, and could not be turned round to his action-against the winner, and thus be driven to a remedy against a party who might be irresponsible and unable to pay. Whether the loser would have the right to pursue the winner after a fruitless recovery against the stakeholder, or be entitled to other or double satisfaction, are questions with which we have nothing to do in this action. If he is restricted to a single satisfaction, and obtains it in his action against the stakeholder, the fact of such satisfaction so obtained in such suit would be available to the winner as a defence to an action for the same cause against him.

The objection of the non-joinder of other parties having an interest in the bet, as plaintiffs, assumes that others were interested with the plaintiff in error in the bet, and that their interest made them necessary parties to the suit. It does appear that the money wagered and staked did not belong wholly to the plaintiff in error. Two of the witnesses testify to contribution by them to make up the sum, one to the amount of $100, the other to $50, and each of them states that he paid to the plaintiff his contribution, and avers that he had not authorized this suit for his part of the stakes. There may have been other contributors, who, or some of them, may have paid their contributions ; and as respects some of those' shares and interests in the deposit, the right of the plaintiff in error to recover may be questionable: but if the shares of those who disapproved acting are to be disallowed, and even if in addition thereto the interest of all other contributors shown to have an interest in the bet are also to be excluded, the plaintiff in error would still be entitled, if his action- was otherwise maintainable, to recover the esidue of the sum wagered and bet shown to belong to others. Ind so the judge in effect decided ; for he instructed the jury that the plaintiff, if entitled to recover, was entitled to recover the amount of the money bet and lost by him, less the two sums of $50 and $100, belonging to persons who had not authorized the suit.

But it is further objected that no demand is shown to have been made of the return or repayment'of the money before the commencement of the action. The answer is, that no demand was necessary. The statute makes the stakeholder liable absolutely and at all events, and gives the loser an immediate right of action against him. No demand could be necessary; especially in a case like this, where the money had been actually paid over to the winner. Whether a previous demand would have been necessary or proper, if the action had been brought before the race was run, and when the event on which the bet depended was still contingent and undetermined, or the action might even in that case have been brought and maintained without any previous demand, it is not necessary now to inquire, for this defendant has actually paid over the stakes to the winner; and as such payment over was, in our view of it, without sufficient authority and in his own wrong, he made himself liable to an immediate action against him, and a previous demand, if otherwise prooer, would be unnecessary. The judgment must be reversed.

Judgment reversed.

Bronson, J. dissented.


author: Jewett, Ch. J.

text:
    The Cayuga County Bank vs. Warden and Griswold.
    Due presentment for payment and notice of non-payment are conditions precedent to the liability of an endorser of a promissory note.
    No precise form of words is necessary in giving notice. It is sufficient if the language used is such as to convey, either in express terms or by necessary implication, notice to the endorser of the identity of the note, and that payment, on due presentment, has been neglected or refused by the maker.
    Where a notice misdescribes the noté in some particular, it may be shown in aid of the defect that there was no other note in existence to which the description contained in the notice could be applied.

      A notice of protest need not in terms state that a demand has been made upon the maker. It is sufficient if it state that the note has been protested for non-payment.
    The defendants were endorsers upon a note for $600, payable to their joint order at the plaintiffs’ bank. The notices of protest were dated at the bank on the last day of grace, and were addressed to the defendants severally. They had the character and figures “ $600” in the margin. In the body they ran thus: “ Sir; take notice that S. Warden’s note for three hundred dollars, payable at this bank, endorsed by you, was this evening protested for non-payment, and the holders look to you for the payment thereof.” It was proved that there was no other note in the bank made by S. Warden and endorsed by the defendants. H'eld, that the notice was sufficient to charge the endorsers.
    Error from the supreme court, where the action was assumpsit, tried at the Cayuga circuit before Maynard, J. in January, 1848. The plaintiffs claimed to recover the amount of a promissory note made by S. Warden and endorsed by the defendants, in these words:
    “ $600. Ninety days after date I promise to pay to the order of F. L. Griswold and E. A. Warden six hundred dollars for value received, at the Cayuga County Bank.
    Auburn, N. Y. January 30, 1848. S. Warden.
    (Endorsed) F. L. Griswold.
    E. A. Warden.”
    The note at its maturity ■ was in the plaintiffs’ bank, and was protested for non-payment. A notice of protest was served on each of the defendants, addressed to them severally, and was in these words:
    “ 600. Cayuga County Bank, Auburn, May 3, 1845.
    Sir: Take notice that S. Warden’s note for three hundred dollars, payable at this bank, endorsed by you, was this evening protested for non-payment, and the holders look to you for the payment thereof. Your obedient servant,
    P. B. Eaton, Notary Public.”
    , . It was proved, under objection by the defendant’s counsel, that the above note was given in renewal for a balance of a previous note signed by S. Warden and endorsed by the defendants, due the 11th November, .1844; also that the note in question was the only note in the bank, made by S. Warden, and endorsed by the defendants.

      The above facts appearing, it was insisted on the part of the defendants, that they were not properly charged as endorsers, and the following grounds were urged: 1. The notice of protest was not upon the note in question, but was a notice of protest of a note for $300. 2. The note in question is made " payable to the order of the defendants jointly, and the notice of protest speaks only of an individual endorsement, and is ad dressed to the defendants severally. 3. The plaintiffs had no right to show that the defendants were not misled by the notice. 4. Even if the note had been correctly described in the notice, still such notice was defective in not stating that payment had been demanded and refused, and when the note was made, and when it became due and payable. Maynard, J. held that the notice was not sufficient to charge the defendants as endorsers, and that the plaintiffs could not recover. The plaintiffs excepted, and had a bill of exceptions duly signed and sealed, on which the supreme court sitting in the seventh district, gave judgment for the defendants.

      John Porter, for the plaintiffs in error.
    The notice of protest served on the defendants was a sufficient notice to charge them as endorsers of the note in question; for it informed the defendants" with all reasonable certainty, that this note for $600 had not been paid by the maker, and that the same had been demanded at the time and place of payment, and payment refused. (Reedy v. Seixas,2 John. Ca. 337; Bank of Rochester v. Gould, 9 Wend. 279; Bank of Alexandria v. Swan, 9 Peters, 33 ; Mills v. Bank of the U. S. 11 Wheat. 431; Renter v. Downer, 23 Wend. 620; Kilgore v. Bulkley, 14 Conn. 362; Crocker v. Getchell, 10 Shep. 392; Story on Prom. Notes, § 349, 354.)
    As no particular form of a notice of protest is prescribed by law, the object being merely to inform the endorser of the demand, and non-payment by the maker, and that he is held lia ble for the payment of the note, if the amount had been omitted it would still have been sufficient to identify the note and charge the endorsers ; and therefore that portion of the notice may be rejected as superfluous. (Reedy v. Seixas, supra.)

    It is not necessary to state in a notice of protest, either the date of the note, or the time when it became payable. In these respects the notice in this case is in the same form with that in general use by notaries, as is proved by the forms of notices given in decided cases. (Remer v. Downer, 23 Wend. 620: Bank of Rochester v. Gould, 9 id. 279 ; Edmonds v. Cates, 2 Lond. Jur. 183 ; Gurgeon v. Smith, 2 Nev. & Perry, 303 : Margeson v. Goble, 2 Chit. R. 364; Houlditch v. Cautty, 6 Scott, 209.)
    The statement in the notice served, that the nóte “ was this evening protested for non-payment, and that the holders look to you for the payment thereof,” and signed by a notary, is equivalent to saying that payment of the note had been demanded by him, and had been refused ; and necessarily implies that he had demanded payment of t.he note, according to its terms, and that payment had been refused. (See cases last cited; Chit, on Bills, 10th Am. ed. 467, 8, 9, and notes; Mills v. Bank of U. S. 11 Wheat. 431; Story on Prom. Notes, §§ 350, 351, 352, 354.)
    The note is made payable to both the defendants, and is endorsed by them individually, and the notice correctly describes them as having endotsed individually; the law only requiring that notice should be served upon both, as was done in this case. (Sheperd v. Hawley, 1 Conn. 368; Willis v. Green, 5 Hill, 232; Story on Prom. Notes, § 308 ; Sayre v. Frick, 7 Watts & Serg. 383.)

      W. T. Worden, for the defendants in error,
    insisted that the notice of protest was not sufficient to charge the endorsers; and cited Remer v. Downer, (23 Wend. 620;) Ransom v. Mack, (2 Hill, 587;) Cayuga Co. Bank v. Dill, (5 id. 403;) Esdaile v. Sowerly, (11 East, 114;) Staples v. Okines, (1 Esp. R. 332;) Free v. Hawkins, (8 Taunt. 92;) Peeking v. Graham, (1 Cramp. & Mees. 725;) Clegg v. Cotton, (3 Bos & Pull. 239 ;) Predeaux v. Collier, (3 Starkie, 57;) Tindal.
      v. Brown, (1 T. R. 167;) Chit. on Bills, 527, 8th Lond. ed., Thompson on Bills, 506; Bank of Chenango v. Root, (4 Cowen, 126 ;) Boulton v. Welsh, (3 Bing. N. Cases, 688 ; 4 id. 411;) Messenger v. Southey, (1 Man. & Granger, 76 ;) Strange v. Price, (10 Ad. & E. 125;) Hartley v. Case, (4 Barn. & Cress. 408) 7 Bing. Rep. 530, 533; 2 Hen. Black. 609; Furze v. Sharwood, (2 Ad. & Ellis, N. S. 388.)
   Jewett, Ch. J.

There is no question but that clue presentment for payment and notice of non-payment to the endorsers of a promissory note, are conditions precedent to the liability of the endorsers, and that the notice may be either written or verbal. (Cuyler v. Stevens, 4 Wend. 566.) Such presentment of the note in question was made and notice of non-payment in.the form shown by the evidence given. The only material question then is, whether that notice is sufficient. It is well settled that there is no precise form of words necessary to be used in giving notice; it is sufficient, if the language used is such, as, in express terms or by necessary implication, to convey notice to the endorsers of the identity of the note, and that payment of it on due presentment has been neglected or refused by the maker.

The fact which was necessary to be established by the plaintiff is, that the defendants had due notice of the dishonor of the note in question. The notice, such as it is, was given at the precise time and place required by law. The evidence shows that this note was given for a balance due upon and in renewal of a former"note payable at the same bank on the 11th of November, 1844, made by S. Warden and endorsed by the defendants, to whose order it was made payable. But'it is contended that the notice merely informs the defendants of the non-payment of a note drawn and endorsed respectively by the defendants for $300, and not of a note for $600, endorsed by the defendants jointly. Concede that such variance or misdescription exists. It is well settled in accordance with good sense, that an immatérial variance in the notice will not vitiate it. The variance mustbe such as, that under the circumstances of me case, the notice conveys no sufficient knowledge to the endorsers of the identity of the particular note which has been dishonored. (Mills v. The Bank of the U. S. 11 Wheat. 431; Bank of Alexandria v. Swann, 9 Peters, 33.)

Now having the accessary facts, namely, that this was the only note in this bank drawn by S. Warden and endorsed by the defendants, and the intimation conveyed by the figures $600” upon the margin of the notice, who can doubt but that this notice conveyed to the minds of the defendants the information that this identical note had been dishonored, although it misdescribed the note as it respects the sum for which it was made in the body of it 1 The defendants knowing the facts stated, on the receipt of this notice could not, as it seems to me, fail to be apprized by it that this particular note had been dishonored. It was said on the argument, that the notice, to be effectual, must be perfect on its face, to carry the information to the endorser of the non-payment of the note, and that it could not be aided by accessary facts. The cases of Shelton v. Braithwaite, (7 Mees. & Welsb. 436,) and Stockham v. Parr, (11 id. 809,) are very much in point to show that a notice, de fective on its face, may be aided by such facts, and that it is proper to consider them in deciding the question of the sufficiency of such notice.

It was also contended that the notice is fatally defective and insufficient to charge the defendants as endorsers of the note in question, on the ground that the notice describes the endorsement of the note as an individual and not a joint endorsement. The note is drawn payable to the order of F. L. Griswold and E. A. Warden,” and is endorsed by the payees respectively. In such case the law requires notice to be given to each of them, as notice to one will not, as it will in the case of partners, be deemed notice to the other. ( Willis v. Green, 5 Hill, 232.)

The objection rests upon the ground of misdescription of the note in question ; that.the receipt of this notice did not and was not calculated to inform the defendants of the non-payment of. this note; that to effect such object this notice should have described the note as having been endorsed by both defendants. It seems to. me that to hold in conformity with this objection would be to sacrifice substance to the merest technical formality; and that it is quite impossible not to see that under the circumstances of this case the notice fully informed the defendants that this particular note had been dishonored.

Another objection to the notice is that it does not state that payment of this note was ever demanded or that it wás refused, nor when nor where such demand was made and payment refused. The notice is dated “ Cayuga County Bank, Auburn, May 3, 1845,” and states that S. Warden’s note for $)300, payable at this bank, endorsed, &c. “ was this evening protested for non-payment, and the holders look to you for the payment thereof.”

The case of Mills v. The Bank of U. S. (11 Wheat. 431,) shows that it need not be stated in the notice that a demand of payment was made; that it is sufficient to state the fact of non-payment of the note, which the notice in this case alleges, as it states that the note was protested for non-payment. Whether the demand was duly and regularly made is matter of evidence to be given at the trial; and to the same éfifect is the case of Stocken v. Collins, (9 Carr. & Payne, 653.) I am of opinion that the notice under the circumstances of this case was sufficient, and that the court below erred in its judgment; that the judgment should be reversed with a venire de novo by that court, and that the costs should abide the event.

Judgment reversed.


author: Ruggles, J.

text:
    Chretien vs. Doney and others.
    4 executed to B. a lease of certain premises for one year, containing a clause in these words: “ B. to have the privilege to have the premises for one year, one month and twenty days longer, but if he leaves he is to give four months notice before the expiration of this lease.” Held, that the lease created a term for the full period of two years, one month and twenty days, defeasible at the election of the tenant, after one year, by giving notice of his intention to leave the premises, four months previous to the expiration of the year.

      Where the landlord obtains possession of the demised premises by summary proceedings which are reversed in the supreme court upon certiorari, that ccurt should not award restitution to the tenant, if the term has exnired before the judgment of reversal is rendered.
    Oisr error from the supreme court. John Chretien, on the 11th day of March, 1846, instituted proceedings before a supreme court commissioner, under the statute authorizing summary proceedings to recover the possession of demised premises. In his affidavit, presented to the commissioner, he set forth a lease under seal, executed between himself and John Doney, dated the 5th of March, 1845, whereby he demised to said John Doney certain premises, known as, the Farmers’ Exchange, in the city of Buffalo, for one year from the 10th day of March then instant, at a rent of five hundred dollars; fifty dollars payable down, and the remainder in seven equal monthly instalments, the first to be paid on the 10th day of April then next. The lease contained a clause by which it was to become void in case the lessee should demise or assign” the premises with out the consent of the landlord. The last clause in the lease was in these words : “ The said Doney to have the privilege to have the premises for one year, one month and twenty days longer ; but if he leaves he is to give four months' notice before the expiration of this lease.” The affidavit further stated that Giroux and Wilson, or one of them, was in possession of the premises, holding the same as the assignees, lessees, or agents of said John Doney, to jvhom said Doney had sold or assigned his interest in said lease before the expiration of the term; that the said John Doney, as the deponent was informed and believed, lived at Rochester; that he had given no notice of his intention to hold the premises after the 10th of March, 1846; and that the said Doney, or the persons above named, held over and continued in possession of the premises, after the expiration of said lease, without the permission of the deponent, and against his will.

    Upon this affidavit the commissioner, on the 4th of March, 1846, issued his summons directed to Giroux, Wilson, and Doney, and requiring them to remove from the premises, or show cause, on the same day at four o’clock. The summons was served at half past one o’clock, P. M., of the same day, personally on Wilson and Giroux, and on Doney by delivering a copy to Wilson, a person of mature age, residing on the premises, Doney being absent from the premises and in the city .of Rochester, his last place of residence being, as the affidavit of service stated, on the premises. At the time mentioned in the summons, Giroux alone appeared before the commissioner, and made oath in writing that he was the agent of Doney, the lessee, and as such was in possession of the premises under the same lease set forth in the landlord’s affidavit; that under the last clause in said lease, no notice was necessary unless the lessee concluded to surrender the premises; that the said “ D.oney, or the persons named in the affidavit of John Chretien, are not holding over, and do not continue in possession after the expiration of the term, without permission that said Doney was holding the premises under the lease and agreement aforesaid, and intended to hold for one year, one month and twenty days from the 10th day of March, 1846; and that on the 14th day of February, 1846, he gave notice of such intention to said Chretien.
    Giroux also objected before the commissioner to any further proceedings in the matter, on the ground that it did not appear by the affidavit of the landlord that cither of the persons summoned held over after the expiration of the term granted by the lease.' The objection was overruled by the commissioner, who also decided that John Doney himself should have made the affidavit instead of Giroux, no reason being given why it was not made by Doney; and that, even if the affidavit was properly made by Giroux, it was not a sufficient denial of the facts upon which the summons was issued. The commissioner therefore immediately issued his warrant of removal in the usual form, under which the landlord was put in possession of the premises. The supreme court, on certiorari, reversed the proceedings, and awarded restitution. The judgment of revei sal and resti'ution was rendered in December, 1847.

      JR. Germain Sp N. Bennett, for the plaintiff in error.

      J. B. Lathrop Sp H. Seymour, Jr. for the defendants in error.
   Ruggles, J.

The lease from Chretien to Doney was a lease for one year, or for two years, one month and twenty days, at the option of Doney. Doney’s election to give tip the premises at the end of the first year, was to be signified by a notice of at least four months before the expiration of that year. If he failed to give that notice, the contract became a lease for the longer time. No new writing or agreement was contemplated between the parties. Although the amount of rent and the time or times of payment for the extended term, are not expressed, that omission is supplied by construction of law. The right to hold during the extended term is given to Doney in plain and express language, in the lease; and the legal inference is that he should pay rent at the same rate as for the shorter term, and at corresponding times. The rent, therefore, for the extended term was at the rate of $500 a year—ten per cent, of which was payable at the. commencement, and the 'residue in seven equal monthly instalments.

The affidavit of the landlord, on which the proceedings before the commissioner were founded, does not state that Doney gave the notice mentioned in the lease that he intended to leave the premises at the expiration of the first year; and this notice was necessary to put an end to the lease at that time. There is a provision in the lease that if Doney, the tenant, should assign his lease without the consent of the landlord, then the lease should determine and be void. And the landlord, in his affidavit, does say that Doney had sold or assigned his interest in the lease and premises before the expiration of the lease; but he does not say that he sold or assigned without the lessor’s consent.

The landlord, in his affidavit, therefore, does not show that the tenant’s term was at an end, either by lapse of time or otherwise, nor is there enough in the affidavit to show the tenant’s possession unlawful. This objection to the sufficiency of tlie affidavit was made before the commissioner, and overruled. The commissioner erred, therefore, in proceeding to remove the tenant, and the supreme court was right in reversing his decision.

But when the judgment of the supreme court was rendered the extended term of the lease had expired, and Doney’s right of possession had ceased. That part of the judgment of the supreme court which restores him .to the possession of the premises, is therefore erroneous. It was probably entered by the attorney without being so ordered by the court. It stands on the record, however, and must be reversed.

But we are of opinion that under the 48th section of the statute under which this proceeding was had, (2 R. S. 516,) the supreme court had the power of giving costs on the reversal of the judgment of the commissioner, whether they awarded restitution or not. The judgment of the supreme court ought therefore to be affirmed in all respects except as to the award of restitution. That part of it should be reversed. The judgment being reversed in part and affirmed in part, neither party should recover against the other his costs on the writ of error in this court.

Ordered accordingly.

Jewett, Ch. J., dissented.