
    [Sunbury,
    June 20, 1827.]
    M'ALLISTER against HOFFMAN.
    IN ERROR.
    Money bet upon an election, and deposited with a stakeholder, who after the event of the election is known, has notice not to pay it over to the winner, may be recovered back by the loser.
    It appeared from the record of this case, returned on a writ of error to the Court of Common Pleas of Mifflin county, that in the court below it was an action brought by the plaintiff in error, Hugh M'Allister, against John Hoffman, the defendant in error, to recover the sum of one hundred dollars deposited in the hands of the defendant as a stakeholder, on a bet upon the result of the last election for governor of Pennsylvania. The wager was made by the plaintiff and one William Turner, who each deposited with the defendant the sum of one hundred dollars, to be paid to the winner wheu the result of the election should be ascertained. After the event of the election had become known, but before the money was paid over to the winner, the plaintiff, who was the loser, called on the defendant and forbade his paying the money to Turner. The parties then went to Turner, when the plaintiff offered to give him credit for the amount of the bet on the county docket. This Turner refused, alleging that the money did not belong to him, but to another person who had left it with him to make the bet; a fact which it appeared was known to the plaintiff. There was evidence that the defendant was indemnified before he paid over the money to the winner.
    
      The court below charged the jury in favour of the defendant, and among other things instructed them that, “ If upon the whole they believed that no notice was given to the defendant by M‘dlllister, until the result of the election was ascertained, it would be against the policy of the law to interfere in his behalf, and he is not entitled to maintain this equitable action.”
    The jdaintiff below excepted to the charge, and on the return of the record to this court,
    
      Blythe and Potter,
    
    for the plaintiff in error, said, that Vischer v. Yeates, 11 Johns. 23, in which the arguments and authorities on the subject are fully stated, was precisely the case before the court. The plaintiff does not claim through an illegal contract, but disaffirms the contract. Knowledge of the event of the election, does not alter the ease. 12 Johns. 376. 1 Lord Ray, 89.
    
      Banks and Blanchard, contra.
    
    If the law has been violated by the wager in question, the loser might with a better grace have prosecuted the winner, than have shown himself on the civil side of the court, which involves a breach of faith on his part. The action is an equitable one, and the bet being only malum prohibitum, there is nothing against conscience in the defendant’s retaining the money. To decide otherwise, would be to give the dishonest a very unequal advantage over the honest man. The stakeholder is bound in good faith to pay over the money to the winner, and the case in 11 Johns. 23, in which the contrary doctrine was upheld, was reversed in the Court of Errors and Appeals. To permit the plaintiff to recover back the deposit, would be an infraction of a well settled principle of law. He cannot recover without showing the illegal transaction; and whenever that is the case, the courts uniformly refuse to lend their aid. Seidenbender v. Charles, 4 Serg. & Rawle, 151. Levan v. Scott, 11 Serg. & Rawle, 155. If the legislature had intended to permit money to be recovered back in a case like this, they would have said so, as they did in the act of the 22d-of April, 1794, 1 Purd. Dig. 318, against gaming and lotteries; and in the act of the 24th of March, 1817, Purd. Dig. 233, against horse-racing.
   The opinion of the court was delivered by

Gibson, C. J.

The result of the authorities undoubtedly is, that the loser may withdraw his stake at any time before actual payment to the winner. If then such be the rule in regard to those wagers that are void only by the policy of the common law, how much more reason is there for enforcing it when public policy has received the sanction of positive enactment? To the act of wagering on an election, the act of assembly not only annexes a penalty, but in terms declares the contract to be void; and as in construing remedial statutes, the main thing is to make such a construction as will repress the mischief and advance the remedy, we are to determine whether the practice of betting on elections would not be more effectually cut up by suffering the loser to regain what he has lost at any time before it is delivered to the winner, than by narrowing the locus penitentise to the interval between the period of betting and the happening of the contingency; and it is impossible to doubt but that it would. A different conclusion would be a virtual repeal of the clause which declares the contract to be void. It will be conceded that bets are seldom if they are ever made with a view to be revoked; and nothing would be more easy if that were sufficient, than for the parties to preclude themselves from taking the advantage held out by the law, by depositing in the hands of a third person; and in such a case, to expect either to retract before the determination of the bet is known, is just as reasonable as to expect the banker at a gamingtable to avail himself of the locus penitentise, while the card is trembling in his hand. In either case the hope of gain which was the original inducement to the bet, continues to operate; but in the case of the political bet there are the additional incentives of party spirit, and the sinister consequences to be apprehended from an implied admission of numerical inferiority on the side of the party in favour of whose success the bet was made. It may be said the same arguments would prove the right of the loser to maintain an action even after the money, were paid over. I confess that I think the decisions ought originally to have gone that length. In pari delicto, is not a maxim of universal application; for where money has been paid on a contract which is illegal, merely because it is in violation of a rule which has for its object the protection of weak and necessitous men, it may be recovered back; and for the very reason that the rule itself would be frustrated by any other construction. The books contain many cases of the sort. Had the courts in cases of positive prohibition marched directly towards the object proposed by the legislature, instead of stopping to determine degrees of criminality, or fastidiously turning aside from the supposed turpitude of the transaction, they would have saved themselves the trouble of many a nice and useless distinction. What has the relative demerit of the parties to do with the prostration of the original cause of of-fence to the public; short of which a judge should not suffer himself to pause? By this I do not intimate a desire to overturn what has been established by many of the wisest and best judges which this country or that of our ancestors has produced. In the case before us there is the less reason to do so, as the legislature has evinced by other laws that it was aware of the rule which prevents money that has been paid on an illegal contract from being recovered back; as in the case of money paid in violation of the act against horse-racing, which it is expressly declared may be recovered from the winner. But we will not stop to inquire whether the loser claims through the illegal transaction, or paramount on his original right of property; or whether, having done all in his power to complete the contract, it would be inequitable to permit him to withdraw his bet after the risk has been borne by the other party: such considerations must yield to the policy which dictated the prohibition, and which requires that it shall not be eluded under any pretence. Whatever repugnance, therefore, we may feel to the claim of the plaintiff we are compelled to say there is nothing in the way of his recovery.

Judgment reversed.  