(dissenting.) This was an action of d.ebt brought by Francis against Huncke, to recover three hundred dollars, deposited with him as stakeholder, upon a horse racing bet made between Francis and one Boyd. Upon the trial the plaintiff proved the making of the bet, and the receipt by Huncke of the three hundred dollars from Francis, in pursuance of the bet, as stakeholder. He also proved that some three hours after Boyd started his horse on the race, Francis not -having appeared wdth his horse on the ground, a notice signed by Francis, was served on Huncke not to pay over the money to Boyd.
*67The plaintiff resting there, the counsel of the defendant moved for a non-suit, on the ground that the statute of this state prohibits betting upon the racing or trotting of horses, and the staking of money or the making up of a purse, and makes the person betting, or making up the purse, and the stakeholder both liable to fine and imprisonment; that both plaintiff and defendant were in pari delicto, and that courts will not aid either party in such case. The motion was refused, and the defendant, having offered to introduce evidence explaining more fully the facts of the transaction, the court overruled the same, and charged the jury that the plaintiff was entitled to recover. To this ruling and charge there are bills of exception, and the question is whether, in New Jersey, a party depositing money with a stakeholder upon a horse racing wager can recover it back after the race has taken place.
The present act on the subject of horse racing, passed March 19th, 1846, (Nix. Dig. 815.) differs in several important particulars from the previous acts. One is, that it has repealed that section of the former act which provided that money, &c., lost on racing, might be recovered back, under which provision the case of Moore v. Trippe, Spencer 262, was decided; and another is, that the stakeholder, as well as the parties betting, shall be deemed guilty of a misdemeanor, and punished by fine or imprisonment, or both. So that now the parties are all equally guilty in the eye of the law ; and the maxim, in pari delicto, melior cut conditio possidentis applies in the case where the action is brought against the stakeholder, as well as where it is brought by the loser of the bet against the winner.
The case of Den v. Shotwell, 3 Zab. 465, and 4 Zab, 789, is not in conflict with the application of this well-settled doctrine to the present case. There Wooden brought ejectment to recover a lot of land which he had previously disposed of by lottery; and the action was sustained on the ground that the plaintiff stood on his original title, *68and the defendant could not set up the illegal tiLie he had obtained to defeat it, even though that' title came from the plaintiff himself. And all that was affirmed in Evans v. Trenton, 4 Zab. 772, was, that “ where tito agent or stakeholder is clearly and beyond all question not in pari delicto, no well-considered case has ever held that the money could not be recovered out of his hands.”
Plere the whole ease made by the plaintiff was, that he had deposited the money with Huneke, as stakeholder, to await the result of a trotting match agreed upon between him and Boyd., He literally brought the case within the statute, and proved himself out of court. The judgment should be reversed.
Cited in Sutphin v. Crozer, 3 Vr. 463.