
    Zielly against Warren.
    Iii an action of debt to recover back money paid by the plaintiff to the defendant on a wager between them, on a horse race, under the act, (sess. 25. ch. 44. 1 N. R. L. 223. 1 Rev. 8 tat. 672. and sess. 24. ch. 46. s. 2 and 3.1 N. R. L. 452.) the plaintiff is entitled to recover no more money than the defendant has actually gained by the event of the race ; though the contract was made between the plaintiff and defend-antforlhe whole sum bet, being a much larger sum, on each side, and which was, therefore, nominally won by the defendant ; but with whom other persons were, m fact, concerned, and contributed to make up the sum, and had received their proportions of the money won.
    THIS was an action of debt brought by the plaintiff to recover 150 dollars, bet between the parties on the event of a horse race, under the 5th section of the act to prevent horse racing, &c. (1 N. R. L. 223. sess. 25. ch. 44. 1 Rev. Stai. 672.) which declares, that all contracts made, or sums of money or other thing staked or bet on any such race, d <•.. or on account of any gaming by lot or chance of any kind, shall be void ; and that it shall be lawful for any person who may have paid any money or other thing on the issue of any such race or game, to recover the same, in like manner as provided in the second and third sections of the act to prevent excessive and deceitful gaming; (sess. 24. ch. 46. 1 N. R. L. 152. 1 Rev. Stai. 663. ⅞ 16.) the second section of which act, declares, that the party losing above 25 dollars, in money or any other thing, and who shall have paid or delivered the same, or any part thereof, may, within three months thereafter, sue for and recover the money or value of the things so lost and paid or delivered, or any part thereof, from the winner, with costs of suit, by an action of debt, &c.
    A witness for the plaintiff testified, that the plaintiff and defendant, on the 29th of October, 1818, made an agreement to run their respective horses, for a purse or stakes of 300 dollars, or 150 dollars a side, and the plaintiff deposited in the hands of M. D., the stakeholder, 130 dollars in cash, and a watch valued by the parties at 20 dollars. The defendant’s horse won the race; and a witness stated, that the defendant, within an hour after, said he had received the stakes and the money which the plaintiff had deposited ; and had agreed to run the race over again for double the amount.
    #It was admitted that the action was brought within three months.
    The defendant offered to prove that other persons were interested in the bet, and had contributed money to make up the purse of 150 dollars, on the side of the plaintiff ; but this evidence being objected to, was overruled by the
    
      
      R., a witness for the defendant,
    testified, that he was present at the race, and that after the race was won by the defendant's horse, M. D., the stakeholder, said he was going away, and could not hold the stakes longer; and he gave to the witness 280 dollars in money, in two parcels, one containing 150 dollars, and the other ISO dollars, and a gold watch. The witness retained 60 dollars, part of which belonged to him, and the residue of that sum to others, to whom he paid it; the remainder of the stakes he gave to G. The witness calculated the defendant’s proportion of the 130 dollars, which was 34 dollars and 66 cents. The plaintiff’s counsel objected to the evidence, that other persons contributed to make up the defendant’s 150 dollars, but the objection was overruled by the judge.
    
      tí., a witness for the defendant,
    testified, that the agreement to ran the race, for a bet of 150 dollars each, was made between the plaintiff and defendant, about ten days before the race actually took place, and that each deposited, at the time, 30 dollars, to bind the contract, which sum was taken up, when the 150 dollars on each side was made up, and deposited with M. D.. the stakeholder: That the witness and several others were concerned with the defendant in the bet, which fact was known to the plaintiff. That after the race was over, the witness received part of the money staked from R., and distributed it among the winners, but he did not recollect how much each one received, nor how many persons were concerned. That the plaintiff said to the stakeholder, i! they have won the money fairly: give it to them.” The watch was retained in the hands of the witness, until the plaintiff should redeem it, which he had not done.
    A verdict was taken for the plaintiff, for 150 dollars, subject to the opinion of the court, on the question, whether the amount should not be reduced to 34 dollars and 66 %ents. The case .was submitted to the court without argument.
   Spencer, Ch. J.,

delivered the opinion of the court. The only question arising on the case, is whether the plaintiff is entitled to recover 150 dollars or 34 dollars and 66 cents? This depends on the construction to be given to the 5th section of the act to prevent, horse-racing, (1 N. R. L. 223. 1 H'-c. Stat. 672.) and the second and third sections of the act to prevent excessive and deceitful gaming. (I .V. /’. L. 153. 1 R< r. Stat. 662. § 16.) The fifth section of the first, act declares every contract on account of any sum of money, or other thing, bet or staked, or depending on any horse-race, to be void in law; and it authorizes any person who may have paid any money, or other thing, upon the issue or event of any such race or game, to recover the same, as is provided in the second and third sections of the act to prevent excessive and deceitful gaming. The second section of the act referred to authorizes every person who shall lose to any one or more persons so playing or betting, and shall pay or deliver the same, within three months next thereafter, to sue for and recover the money, or value of the thing so lost and paid and delivered, from the winner, with costs, by action of debt. Was the defendant the winner of the w'hoie 150 dollars, or of that part, only which he contributed towards the purse ? It appears that the plaintiff and defendant alone made the bargain to run the race, for a purse of 300 dollars, to wit, 150 dollars on a side. They, ostensibly, were the only persons who furnished the money, and deposited it in the hands of the stakeholder. It further appears, that the plaintiff knew, that several persons had contributed towards the bet on the defendant’s side; but it does not appear that he knew7 who the} were.

It seems to me that the defendant cannot be considered the winner of any more than the sum he actually gained by the event of the wager; no more ever came into his hands; the object of the statutes is to subject those who shall bet upon horse-racing to punishment, criminally, and, also, to avoid the contract, and place the parties in statu quo, as to all the moneys won or lost on the race. Nominally, the defendant won the 150 dollars furnished by the plaintiff, but, ¾ point of fact, he won only 34 dollars 66 cents. Both parties stand in pari de-licto ; neither have a claim to any peculiar favor or indulgence of the court; and if the defendant is compelled to refund his gains, it is all the plaintiff has a right to demand. In the case of Visscher v.. Yates, (11 Johns. Rep. 23.) this court looked beyond the mere form of laying the wager, and recognized the rights of those who had contributed to the fund, although they were not the ostensible persons who made the contract, or furnished the money to make the deposit.

Judgment for the plaintiff for 34 dollars 66 cents.  