The opinion of the Court was delivered by
Hebard J.The declaration contains two county. One count being upon a note of hand in the following words. “For value re“ceived I promise to pay Samuel Danforth or order fifty dollars on' “the day that Martin Van Burén is re-elected President of the “United States, with interest annually. (Signed) Em L. Evans.”
The other count was for a horse sold, and for money had and received. On trial the first question to be determined was in relation to the character of the note. If the note has sufficient on its face to render it void, the court should so decide;‘ if not, then evidence aliunde must be introduced; and for this purpose testimony was *544submitted to the jury, to show the nature of the contract, and the consideration for which the note was given; and if the note was bad upon its face, so as .to need no extrinsic aid, still it can be no ground of complaint, that the court left it to the jury to find the same fact. This is the ordinary mode of attacking a note having nothing suspicious on its face.,
The plaintiff also complains that the jury were left to find the time when the note was to become due, by testimony aside from the note. Perhaps the court, out of abundant caution, submitted that to the jury, which they should have decided from the paper itself. But if that is so, and the jury have found the same fact from the note and other testimony, that the court should have found from the note alone, then that direction has not induced a wrong verdict, and is no ground for reversing the judgment. The jury, from the instructions given them by the court, must have found that the time of pay ment, as set forth in the note, was the election then pending, and that the time of payment had passed before the commencement of this suit. And we are all well satisfied that that finding was warranted from the note itself, when taken in connexion with such facts as courts may take judicial notice of. We do not hesitate to regard the note, after the finding of the jury, as having been given upon a wagering contract, and void. It possesses all the elements that are necessary to constitute any wager. In communities where betting is prohibited by law, men have always resorted to some expedient to evade the law. But a wager, though called by any other name, is none the less immoral, and opposed to law; it is a wager still. This note was given for a horse, but the horse was worth but half the amount of the note; the defendant took the horse in exchange for the note, and whether he was to be liable to pay the note depended upon the result of a pending election. This disposes of the note and the first count in the declaration.
The next inquiry is, whether the jury were correctly instructed in relation to the plaintiff's right to recover under his second count. And upon this part of the case we are satisfied with the charge. At the time of this transaction, the parties may be regarded as their own stakeholders, the horse as the stake upon one side in the hands of the defendant, and the note, upon the other side, as the stake in the hands of the plaintiff, and thus, by this arrangement, the stakes *545may be considered as paid over to the winning party, immediately upon the happening of the contingency upon which the bet depended. This wager, therefore, was determined, and the horse paid to the defendant, the winner, before notice was given to the defendant. While the event was uncertain and undecided, the plaintiff might have called for the return of his horse. The law gives both parties a “locus penitentiae” and if that is improved, it will favor the party that repents of his error. But if the event has transpired, and the money, or other thing, has been paid over to the winning party, the principle of law, “in pari delicto potior est conditio defendentis,” applies. Mc Collum v. Gourley, 8 Johns. 147. 2 Com. on Cont. 125. 8 T.R. 575. Vischer v. Yates, 11 Johns. 23. Yates v. Foot, 12 Johns. 1. When the event has transpired, and the money is lost, it is not for the immorality of the act that the loser repents, but it is that he has lost his money. In that case the law withholds its aid from either party. It equally withholds its aid from the winning party to recover the bet from the loser, and from the losing party to recover back the money, after it has been won and paid over.
To apply these principles to the present case, — we find that the parties made the bet, the horse was delivered over to the defendant, and by him retained without objection till after the contingency, that was to determine who was the winner, had happened, and then, having lost his bet, lie brings this action to collect the value of the horse which he had lost by entering into a transaction that was against morality and against law.
We are satisfied with the judgment as it is, and should be slow in reversing the proceedings of the county court, when the only error committed was in ruling the points made by the plaintiff more favorably for him than he could legally claim.
Judgment affirmed.