It is urged that an action to recover this demand ought to be in the name of the agent who' paid the money to the stakeholder; or, if not, that it should be a joint suit by the principals.
The money was advanced by the plaintiff, and was paid to the depositary, by a person who was the mere agent of the plaintiff. In such cases, the principal, adopting the act of his agent, may institute an action, and pursue the remedy in his own name.
The principals- were not partners, and were not connected with each ether, in interest or by any contract; nor does it appear, that they were at all known to each other. Each person advanced his own money, and they all employed the sanie agent, for the same purpose. This does not appear to constitute a joint interest in the principals, or to create any contrae! *10or obligation between them. Their interests/being distinct, their, suits concerning those interests should be separate.
. These objections, therefore, appear to. be destitute of any just force. ■
In contracts of wager upon the event of an election, the courts will not entertain an action to enable the winner to re-X. " ■ I cover the wager from the loser; but if the-loser has voluntarily paid the wager, they will not entertain an action to compel the winner to repay the money to the loser.
These two'principles appear to have been long and clearly established, by decisions of the courts.
By the first, the courts defeat wagers of this kind, where the ióser has not performed his contract.
By the second, the courts give effect'to-wagers of this kind, where the loser has performed his contract.
I will briefly inquire into the foundation and reasons of this distinction;
When the courts are asked to compel the loser to pay to the winner;, they answer that the contract is against public policy, and for that reason ought not to be enforced. .
When tloser has paid the wager, and1 the court are appliéd'td' To --compel the winner to repay it, -they answer, that the contract has been executed, and ought not to be disturbed.
Thus the courts refuse to entertain any action^ on. the subject, either by the winner against the loser, or by the loser against the winner.- ;
It also appears,, that whatever may. be the weight of the consideration of public policy, it is not sufficient to induce the courts to compel the restitution of a wager, voluntarily paid. If, however, legal decisions .can repress contracts bf this kind, that effect would be best produced, by compelling the winner to make restitution to the loser, though the loser had voluntarily ’páid. In other words, the object of public policy would be most effectually attained, by reversing the performance of the executed contract. .
Yet this the courts have never , done, and have never attempted to do. ,
The same distinction is made in a multitude of other cases. Theré ate contracts, rights, and obligations, which the law dabs not enforce. If would be against the policy of the law to enforce them. Jet, where the party, bound by such a contract *11Sr obligation, voluntarily performs what he had promised-to do, the courts ratify his acts, and will not suffer him to retract. When a man pays a debt which he was not legally bound to pay, or performs his contract, though it was void in law, he cannot afterwards recede and annul what he has done. The courts will not compel a man to pay a debt of honour; but if he will voluntarily pay it, they will not permit him to reclaim the money. In all these cases, though the courts will not compel the execution of the contract, yet they recognise the exeeution of the same contract, as justice, when it is freely administered by one party to the other. The maxim applied t@ such cases is, fieri non debet,sed factum valet.
The essential reason of this distinction appears to be, that the performance of the contract by the party who promised, is a voluntary act. He had an option to perform or not5 he has voluntarily performed, and he shall, therefore, not be allowed to retract that voluntary act.
In this case, the payment to the depositary was voluntary.' The money remained a voluntary deposite in his hands, until after the hazard had ceased, and the event was known. The losing party then reclaimed the money which he had advanced, and he now seeks to recover it in this action.
This contract, then, appears to be partly executed, and partly unexecuted. The deposite of the money with the stakeholder, was the first step in the execution of the contract. It was, indeed, intended by the principals, to be the execution of the contract against themselves. The unexecuted residue of the contract was to be completed by the occurrence of the contingent event, and the payment of the money by the stakeholder, according to the event. The parties acquiesced in the contract ahd the deposite, until the contingency happened, and a month afterwards, and until the result of the election was known. The payment of the money to the stakeholder, the occurrence of the event which was to give it to one party or the other, and the acquiescence of both parties in the contract and the deposite, constitute a partial execution of the contract. Shall this partial execution of the contract be vacated ? The doctrine of the courts ir other cases is, that what the parties have done shall stand; and what they have not done shall be left unexecuted. The application of that doctrine to this case seems to he, that so far as the contract has been performed by the parties, their perfontf*12ñace shall stand; and so far as it has not been performed, it shall be left without legal aid to enforce it. As to the winner, the contract, indeed, is not fully executed, since he has not received the deposite. As-to the loser,-and against him, the contract is totally executed; since no further act is necessary, or can take place, on his part, to give it effect, or carry it into execution. His execution, therefore, of the contract, is. valid against himself, and cannot be retracted. - -
In contracts "of hazard, the condition of the parties, after the uncertain event has happened, is extremely different from their situation before.s ¿Before the event has, Happened, and. while it is uncertain ryho: will be the winner, or the loser, neither is much injured, and perhaps hot at ail, "by declaring the contract void1. The parties are treated alike ; .neither of them can complain ; and if it be necessary for the public good, that the contract should not proceed farther, the decision is made without any sacrifice of justice between the parties. Not so, if the hazard has ceased, and the wager has been lost or won, according to the contract. A very different relation between the parties then takes place1. If the losing party may vacate his contract, after the event has happened, and is known, he is allowed to practise, a fraud upon the adverse party. To allow the loser to retract his contract, because he is the loser, would give sanction to the grossest perfidy and injustice. If this party wins, he profits by the contract and takes the -fruit of it; if he loses, he abjures the contract, and exonerates himself from-its obligation: if he wins, he holds the wager by the laws of honour ; if he loses, lié refuses payment, or reclaims the wager, if paid, by the -laws of the land. According "to the, result, he avails himself, either of the laws of honour, or of the laws of the land. While the event is uncertain, and unknown, he stands upon the laws of honour. When it has happened, and is. against him, he retires to the laws of the land., When he contracts upon the basis of hazard, he incurs no risk. While he is himself wrapped in impenetrable armour, he contends with a naked adversary. When he talks of contingency and hazard, he means certainty. When he promises,;he deceives; and- while he" pledges Ms faith, he betrays. It does not .help such treachery, to give it the name of repentance. There is. no instance of such- a repentance by the Winner.. It is only the loser who repents. However bitter and sincere his repentance may" be, it is -not. that, he has :offended against public
*13policy, but that he has lost his money. To prove the sincerity oí his repentance, and as an atonement for his sin against public policy, he proposes to cheat his adversary, and take back his own money, after it has been lost.
This is intolerable, and has never been tolerated. It never will be tolerated, while common sense and common honesty hold their proper dominion among mankind.
It has, accordingly, become á rule, in those cases in which the parties are allowed to rescind the contract, that it can only be rescinded before the contingent, event happens. The happening of the event is the crisis in the contract, which terminates all election, option, or repentance. Before, the parties stood on the ground of uncertainty, and either might recede. Now, they stand on the ground of certainty, and neither can retract what he has done. This is law, clearly established by adjudged cases. , ,
In this case, the attempt to retract was not made until the result of the election was known, and a month after the event had taken place. The attempt therefore cannot prevail.
By allowing this action, the losing party would be allowed, after the hazard has ceased, and the event is known, to retract whát he had done before. . Süch a decision would be inconsistent with the principle, that a voluntary performance shall not be retracted, and inconsistent with the principle that there can be no election to vacate the contract, after the uncertain event has happened, and the fact is known. These principles, just in themselves, and fully established as law, appear to me to be directly applicable to this case, and to determine it.
A stakeholder was here employed; and this action is against him. Whether the action of the loser is against the winner or the stakeholder, the loser, in either case, equally seeks to retract his own acts. To allow the action against the stakeholder, after the hazard has ceased, and the event is known, would have the same effect as to allow it against the winner, in the same circumstances. When the uncertain event takes place, all election or option toVtreat the contract as void, ceases, for reasons which have been stated. Those reasons exist with as much force, where a stakeholder is employed, as in any other case. The just regard to- probity and good faith, and the necessity of preventing fraud, which forbid the parties to retract after the event, forbid it as strongly in one cas,e, as in another. The *14fae(; that the money is in the hands of a third person, cannot give the loser, a right to retract after the event. • The election, to rescind the contract depends altogether upon the. time when . it is made. The circumstance of employing a stakeholder can-.. n°t determine at what time the election may be made ; and it has no influence, upon that question,
It is said, that the depositary has -no right to hold the money advanced by the,loser, against him. Has he:not as good a right to hold it, as the loser has to claim it? • If the depositary cannot hold the money with' conscience, can the loser reclaim it with conscience ? If conscience will repel the defence,, will it not repel the action ? This is an action for money received by the defendant, for the use Of the plaintiff, in which, Ware told, the. plaintiff is to recover according to equity and good: conscience. What may.be the merit or. demerit of the defence, is. immaterial, if the claim, which is the foundation, of the action, be itself destitute of merit. What is’the plaintiff’s right ? •. It is said, that the contract, upon which the money-was paid,, was illegal; and that, consequently, the money is held, without any obligation arising from the contract. Admitting this, where is the obligation to refund it ? The answer'is, that, as the money was not paid to the depositary for his own use; and as he is not bound to apply it according to the contract, it must revert, In other words, the illegality of the contract defeats the intention of the parties, and deprives them of rights which' they intended to confer, and therefore gives them rights which they had no intention to create.. This does not appear to be a necessary conclusion. If the contract be illegal and void, the sound conclusion would seem to be, .that no right whatever could result from it, and, consequently, that he who has paid his money upon a void contract, would have no remedy to recover it. But in this case, the contract, however illegal or voidable it may once have been, was capable of being affirmed by the acts of the parties, and by their acquiescence in it, until it was too late to retract. It was so affirmed by them, and no right which might result from a disaffirmance, can accrue to either of,them. . . , -
We are told, that:'public policy requires that, this action should, be allowed,, I recollect no instance in whiph an executed, contract of hazard has been frustrated, on the- ground of public-policy, excepting the;, particular cases, in which certain statutes authorized the loser to reclaim what he has paid. These *15are the statutes concerning gaming and horse-racing. By the express provisions of those statutes, the loser, having paid, may recover back the money, by an action of debt. Contracts of gaming, and concerning horse-racing, are the only two classes of hazardous contracts, which have been deemed of sufficient importance to deserve the interference of the legislature. The object of the statute is, to repress and prevent those two species of contracts; and evidently on grounds of public policy. All their provisions are either in addition to the law, as it was before, or in alteration of the former law. The provision, that the loser, who has paid his wager, may reclaim it,, a rule unknown to the common law, was evidently introduced in those statutes, to give a right which did not exist before. Even in these cases, therefore, Which the legislature considered of such importance as to require very penal provisions for the attainment of their object, and the only cases in which they have interposed, they deemed it necessary to authorize the loser to reclaim his wager, after it has been paid, as an alteration of the common law. Before these statutes, these cases stood on the same ground as other contracts of hazard. If the loser had paid his money, it was lost to him, Such was the undoubted doctrine of the common law in these cases; and yet the public policy of suppressing mere games of chance, seems to be far stronger and more urgent, than any public reasons for suppressing other hazardous contracts. The courts, however, did not compel, or attempt to compel, restitution to the loser, on the ground of the public policy of such a decision. These statutes are, therefore, to be regarded, as they are, alterations of the common law, in this respect. Théy show what the common law was; they confine the alteration to particular cases, and they show that it is the province of the legislature, and not of the courts, to alter the existing law on this subject, to accommodate it to the exigencies of public policy.
The mischiefs which may result from wagers upon elections, have been placed before us in glowing colours. If it be said, or meant, that such-mischiefs have occurred in this state, I deny •the assertion. Whatever may be the tendency of such wagers to induce the parties to vote according to their interests, orcto obtain the votes of others, we have not yet seen any corrupt or pernicious influence upon our elections, arising from such a *16cause. The mischief apprehended does: not yet exist. -The virtue of the people has secured us from the evil. If the mischief has not already occurred, we may safely conclude that the apprehension of danger in future is,- in some measure, imaginary. But if, in the progress of society, the mischief should be seen and felt, a proper corrective must be applied. In the future days of the republic, it may become necessary, The legislature are, and ought to be, the judges of the disease, and the remedy. It is their province to-observe the evil when it occurs, to watch its progress, and estimate its magnitude, and to provide an. adequate rémedy. It belongs to the legislature, and not to the courts of law, to provide for the. exigencies of new times, and circumstances, and to lay# down new rules, for the suppression of new vices. The consideration of public policy, which has. been so much, pressed, Should be addressed to the legislature, and not to the courts. If the law applicable to this case has been settled by established principles, the courts cannot now alter it, because a different rule would, in" their «pinion, better comport with public policy.
My opinion, therefore, is, that this action cannot be main, tained, and that the judgment of the supreme court ought to be reversed. , .'
Lewis, Wilkin, -Bloom, Hubbard, Bloodgood, Stranahan, Boot, and Elmendorf, and six others, Senators, were also of opinion that the judgment of' the supreme court ought to be reversed.,, ... . , ' .
„_,P. W. Radcliit, Yates, Wendell, Atwater, Stewart,' and Townsend,. Senators* were of opinion that the judgment ought to be affirmed.*
It was ordered and adjudge®, that the judgment of the supreme court be reversed, &c> and that the said J W. Yates be restored to ail things, Stc.; and further, that judgment be entered for the said J. W. Yates on the special verdict, together with his costs about bis defence sustained in the supreme court; and-further, that the said J. W. Yates recover against the said Ebenezer Foot bis-costs of prosecuting the writ of error in this cause, *17to be taxed by one of the members of this court; and that thé plaintiff in error have execution therefor; and that the record be remitted,
Judgment of reversal.(a)
For reversing, 15. For affirming, 6.
The like judgment was given in Yates v. Vischer, and in the three other causes.