The opinion of the Court was drawn up by
Whitman C. J.— This is an action of assumpsit, in which the plaintiff is attempting to recover the value of a horse, estimated' at one hundred dollars, and interest thereon from the first'of August, 1840, at which time the horse was delivered by him to the defendants. The delivery of the horse was upon an agreement, that the defendants should pay the above sum and interest in case Martin Van Burén should live and be elected President of the United States in November then next. It is admitted, that Mr. Van Burén was not so elected, although then living. A note was given, at the time, for the amount stipulated to be paid, in conformity to the above terms, which is duly set forth in the plaintiff’s writ which also contains counts for the horse as ■ sold and delivered generally, and for money had and received.
The plaintiff contends, that the condition upon which the horse was to be paid for, was void; and that he has a right to recover the .value of him, notwithstanding the non-compliance with the condition. It cannot be winked out of sight, that this was nothing more nor less, in the contemplation of the parties, than a bet upon the event of the then pending election for the presidency of the United States. This was either lawful or unlawful. If lawful the plaintiff has lost his bet, and must abide by the terms agreed upon, and cannot recover pay for his horse. If unlawful he would not seem to be in any better predicament, as in pari delicto potior est conditio defendentis; unless the statute against gaming will aid him to recover. That statute provides, that money lost by gaming, and paid to *29the winner, may be recovered back, in an action for money had and received ; but if the winning be of goods, &c. which have been delivered, an action of trover or a special action of the case may be maintained therefor, if commenced within three months. If therefore, an action were maintainable in this case, upon the ground, that this was a gaming transaction, as the article won and delivered was a horse, and this action is assumpsit; maintainable, if at all, upon an implied promise, the plaintiff must fail. A nonsuit therefore must be entered.