
    
      CRISWELL vs. GASTER & AL.
    
    Appeal from the court of the seventh district
    
      West'n Dis’ct
    
      October, 1826.
    Money paid on a horse race which was simulated and fraudulent, may be recovered back
    And in an action for that purpose, it is not a good objection to the competency of a witness that he was also a better on the race.
   Matthews, J.

delivered the opinion of the court. In this suit the plaintiff claims damages on account of a fraud practised on him in a horse race. He alleges in his petition that the defendants entered into a simulated and fraudulent contract to run a race between two horses, the relative speed of which had been previously ascertained, with a view of cheating and defrauding other persons who might be induced to but on said race; that he did wager the sum of $320 with one of the original parties to the simulated agreement above stated, which was determined by the judges of the race to be lost, and was accordingly paid, and which he seeks to recover back in the present action, and also an equal sum which might have been won by him, if the race had been fairly run.

The cause was submitted to a jury in the court below, who, from their verdict, appear to have been fully convinced of the fraud alleged, and assessed damages in favor of the plaintiff to the amount, not only of the sum by him wrongfully paid, but also for that which he might have gained. Judgment being rendered in pursuance of the verdict, the defendants appealed. A bill of exceptions is found on the record to the competency of a wituess who was also a better on the race, to a small amount, on the same side with the plaintiff. The judge a quo considered this as a circumstance which might affect his credit, but was not sufficient to render him incompetent. In this opinion we concur with the court below. A motion was made for a new trial, which was overruled. All the facts of the case coming up to this court, that proceeding in the cause need not be noticed.

As to the merits of the case, we think the jury erred in giving a verdict for more than the sum actually paid by the plaintiff. The judgment of the district court being in conformity thereto, is also erroneous. The aleatory contract was clearly simulated and feigned, and although intended to defraud, it could legally produce no effect; nothing could have been lost on it, and consequently nothing could be won. It might, perhaps, be assimilated to what, in jockey phrase, is called a drawn race, such as happens where the parties consent to annul their agreement to run, or when the horses prove to be of equal speed. It is true that the conduct of the defendants appears to have been immoral in the extreme, (if morality may be considered to have place to any shape in quarter races): but as the contract must be considerad as void ab initio, the plaintiff is only entitled to recover back the money, by him paid without consideration and in error.

Thomas for the plaintiff, Scott for the defendants.

It is therefore ordered, adjudged and decreed, that the judgment of the district court be annulled and reversed: and it is further ordered, adjudged and decreed, that the plaintiff do recover from the defendants the sum of three hundred and twenty dollars, and that the appellee pay the costs of this appeal.  