Supreme Court.-Hews v. Hollister.

John P. Hulbert and B. Davis Noxon, for plaintiff.

Stephen A. Goodwin, for defendant.

By the Court, SAMUEL L. SELDEN, Justice.-On the 2d of November, 1844, Elijah Miller and William H. Noble made a bet of $500 upon the then ensuing Presidential election, Miller betting that Henry Clay, and Noble that James K. Polk would be elected. The terms of the bet were reduced to writing, and signed by the respective parties, who mutually deposited the amount of the bet with the defendant as stakeholder. After the election, to wit, on the 28th of December, 1844, the plaintiff caused a written notice to be served upon the defendant, signed and acknowledged by himself, stating that $200 of the $500, bet and deposited by Miller, belonged to him, plaintiff, and requiring the defendant to pay the sum to the bearer of the notice which not having been done, this action was brought to recover the $200, pursuant to the provisions of the statute concerning betting and gaming. The plaintiff having been nonsuited at the circuit, now moves on a bill of exceptions for a new trial. It was proved in the trial that the $500 bet by Miller, and deposited with the defendant, was furnished by several persons, who contributed in different proportions to make up the sum; but it does not appear that this fact was disclosed at all to the defendant, or to Noble, at the time of making the bet.

The written memorandum which was introduced treats the bet as made by Miller alone, and the money as exclusively his. The plaintiff offered proof to show, that he furnished $200 of the money bet by Miller, but whether under the evidence adduced, he is to be considered as an original contributor of the $200, or as a subsequent purchaser into the purse, to that amount, is very doubtful. In the view, however, which I have taken of the case, it is immaterial how that question is settled.

The principal point to be considered is, whether the action should have been brought by Miller, who made the bet and deposited the money, or whether the defendant is liable in a separate suit to every person who may have contributed more or less to make up the entire sum bet. The action is founded on the 9th section of the act concerning betting and gaming, (1 R. S. 3d ed. p. 839,) which provides that, "Any person who shall pay, deliver or deposit any money," &c., may sue and recover. This language is very definite, and points out with great distinctness the party who may bring the action. Under the facts in this case, Miller who made the bet, is clearly embraced in the terms used, but do they also include the plaintiff and the other contributors to the fund?

The money was theirs, but did they pay, deliver or deposit it with the defendant? Certainly not directly; only by implication at most, according to the maxim "qui facit per alium, facit per se." If Miller in making the bet, had disclosed the fact of his agency, this maxim would apply with greater force to the case.

Supreme Court.-Hews v. Hollister.

It is the uniform policy of the law, to avoid as far as practicable, a multiplicity of suits. With this view, courts of equity require all parties in interest to be brought before them in one action, and courts of law insist that all persons jointly interested in any claim or demand, should unite in a single suit for its recovery. The same object in cases like the present, points to such a construction of the statute as would confine the right to sue to the person who actually makes the bet, and deposits the money, especially where, as in this case, he alone is known in the transaction, either by the stakeholder or the other party to the wager. The contrary rule would lead to much inconvenience when the contributors to the fund are numerous. But a stronger reason for this construction of the act may be found perhaps in the position in which the stakeholder is placed, by holding him liable to a separate action at the suit of each of a multitude of contributors to a fund, deposited with him by a single individual as his own money, and without notice that others were interested in the transaction. How is the stakeholder to know, when called upon by a stranger claiming a portion of the fund, whether the claim is just? In the present case, for aught that appears, the written demand made on the 28th Dec. 1844, was the first intimation to the defendants that any person except Miller, claimed any interest in the money deposited with him. No evidence was furnished or offered to the defendant of the validity of the claim, and yet he was required instanter and at his peril, to pay over the amount of plaintiff's demand without the assent of, or even notice to Miller, that such a claim was made.

In case of conflicting claims, the stakeholder would be without the means of deciding between them, and might frequently be driven to file his bill of interpleader and carry on a protracted litigation to settle that which the knowledge of the depositor of the money would enable him at once to determine.

It would seem, therefore, more just and reasonable to leave the adjustment of contested claims to the agent to whom the parties have entrusted the management of their funds, especially as it is no part of the object of the law to punish the stakeholder, who is not in any sense a party to the illegal contract.

The cases of Vischer v. Yates, 11 Johns. 23; and Yates v. Foot, 12 Johns. 1, are relied upon by the plaintiff as settling this question in his favor. By referring to these cases, it will be seen that the point raised here, received but slight consideration. The question upon which the decision in those cases mainly turned, was, as to the right of the losing party in a wager to recover from the stakeholder the money deposited with him after the happening of the event upon which the wager depended, and as the court of errors decided this questionin favor of the defendant, there was the less necessity for a critical examination of the other. It is to be observed, however, that those cases differ from the present in a material point.

From the statement of the facts, (11 Johns. 23,) it appears that Alexander, who made the bet and deposited the money with the defendant, Yates, disclosed to the latter that the money belonged to

Supreme Court.-Stokes v. Hagar.

others, and that he was acting as a mere agent. Yates, therefore, having been apprized at the time of all the responsibilities he assumed, could not reasonably complain of the hardships which might result. In addition to this, those were actions at common law, and not having been decided in view of the precise and definite phraseology of the statute, before referred to, they can hardly be considered as settling and controlling the construction to be put upon the language of that act. But even if those decisions are to be regarded as bearing directly upon the point, their authority is much weakened, if not overthrown, by the subsequent case of Haywood v. Sheldon, 13 Johns. 88. In that case the court not only decided that the action was properly brought in the name of the party making the bet, but Mr. Justice Yates says, "It would be of no importance on the trial of this "issue what number of persons had entrusted the plaintiff with "the money, and were thus interested in the bet. That was an arrangement exclusively between the plaintiff and them, in which the de"fendant had no right to interfere, and to which he was no party. "He thought proper to make the contract with the plaintiff, as prin"cipal, and not as agent. It is to him alone that he is responsible." Although the action there was against the party to the wagers instead of the stakeholder, yet the principle must be the same. It is worthy of attention, too, that the language of the act upon which the action of Haywood v. Sheldon was founded, to wit: the act "to prevent excessive and deceitful gaming," 1 R. L., 152, sec. 3, differs from that now under consideration. It gives the action to the loser at any game. In Keon v. Cahart, 3 Wend., 494, the court recognise the principle of the case of Haywood v. Sheldon. In the case of Zeilly v. Warren, 17 Johns. 192, which was an action under the 5th section of the act to prevent horse-racing, brought by the loser against the winner of a purse of $150. The court permitted the defendant to prove that others had contributed with him to make up the purse, and held that the plaintiff could recover only so much of the $150 as the defendant had himself won; but it distinctly appeared in that case, that the plaintiff knew that other persons had furnished portions of the money

bet.

On the whole, therefore, I see nothing either in principle or authority to prevent such a construction of the act in question, as its language, as well as convenience, and the general policy of the law would seem to require.

The motion for a new trial must therefore be denied.

Supreme Court.-Snowhill v. Knapp.

[New-York Special Term, Dec. 1848.]

Before the Honorable IRA HARRIS, one of the Assistant Justices of the Supreme Court. GEORGE H. SNOWHILL and others ads. JEREMIAH L. KNAPP et al.

NEW TRIAL.

A party applying for a new trial on the ground of surprise, must show that he has used reasonable diligence in making his motion: where, therefore, it appeared that more than four months had elapsed before making the application, and no excuse was assigned for the delay: Held, too late, and motion denied with costs. And where, on the merits, affidavits were used, which adduced evidence of a weak and unsatisfactory character, to rebut the positive evidence given on the trial, and it appeared that if such testimony had been used on the trial, the weight of evidence would have been in favor of the plaintiffs, a new trial was denied.

THE nature and character of this application appear in the opinion of the court.

E. H. Seely and E. Seely, for the defendants.

C. Shaffer and J. Cochran, for the plaintiffs.

By the Court.-HARRIS, J.-The defendants move to set aside the verdict in this cause on the ground of surprise at the trial. It is objected that the motion is too late. The cause was tried on the 14th October, 1847. Judgment was perfected upon the verdict in January following, and the papers upon which this motion is founded, were served on the 26th of February, 1848. 1 am not prepared to say that in every case the fact, that a judgment has been perfected upon the verdict will, of itself, be a sufficient answer to a motion for a new trial on the ground of surprise, but at any rate the party moving should be required to show reasonable diligence in making his motion, and where, as in this case, more than four months were suffered to elapse without any excuse being assigned for the delay, I think it may safely be held that the party is too late for his motion.

But upon the merits also, the motion should be denied. The suit is brought to recover for a bill of good sold by the plaintiffs to the defendant, Snowhill. The goods were purchased by one Kilby, who was acting as Snowhill's agent in New-York. The principal question upon the trial related to the authority of Kilby to purchase upon the credit of Snowhill. A witness upon the trial testified that a few days after the first of April, 1846, in an interview between Snowhill and the plaintiff, at their store in New-York, Snowhill, among other things, stated that Kilby was his general agent in New-York, and that any transactions the plaintiffs might have with him, would be the same as if had with himself. The goods in question were sold on the 25th of May following. The alleged surprise consists in the fact sworn to by the witness that Snowhill was in New-York a few days after the first of April. A new trial is asked for, to enable the defendants to prove that Snowhill was not absent from his residence in New Jersey

Supreme Court.-Stokes v. Hagar.

at the time mentioned by the witness. The affidavits of several persons are produced in support of the motion, who swear that for three or four weeks after the first of April, 1846, Snowhill was not absent from his residence. I do not regard this as the kind of surprise upon which a verdict should be set aside. At the most, the defendants show that they are able to furnish negative evidence of a weak and unsatisfactory character, to rebut positive evidence on the part of the plaintiffs. If all the evidence contained in the affidavits, read upon this motion, had been introduced upon the trial, it should not, I think, have varied the result. Upon this motion as well as upon the trial, I think the weight of evidence is in favor of the plaintiff. The motion must therefore be denied with costs.

HENRY STOKES and others v. WILLIAM HAGAR.

COMPLAINT ANSWER-IMMATERIAL ISSUE.

To a complaint on two promissory notes, the defendant answered that the plaintiffs agreed to wait for payment until defendant could sell a quantity of lamps, &c., and appropriate the proceeds towards the payment thereof. Plaintiffs replied, denying that they agreed to wait &c.; the cause was noticed for trial with a supplemental notice of motion for judgment on the ground of the frivolousness of the answer: Held, that the issue made by the answer was immaterial, and that plaintiffs were entitled to judgment. Held, also, that it was immaterial that the plaintiff had replied to defendant's answer, because as the pleadings in the cause stood, no evidence that the defendant could offer on the trial would entitle him to judg

ment.

THE Complaint was in the usual printed form on two promissory notes, one for $116 49, and one for $116 19. The defendant answered denying his liability and concluded as follows, "because he says, that the plaintiffs agreed to wait for the payment of said notes until the defendant could sell a quantity of Rust's Patent Lamps, then in defendant's possession, and appropriate the proceeds of the purchase money towards the payment of said notes, and that said lamps had not yet been sold.

Replication that plaintiffs never agreed to wait until, &c.

The plaintiffs' attorney noticed the issue of fact for trial at the circuit, with a supplemental notice that he would move for judgment. The motion now came on for argument.

G. S. Stett, for the plaintiffs, submitted that the answer was frivolous, as it did not contain the requisites prescribed by the provisions of

the code.

C. D. Newman, for the defendant, contended, that as the plaintiffs had replied, they had waived all insufficiencies; they had raised an issue of fact, (see Code, $208,) which should be tried by a jury.

By the Court, HARRIS, J.-The plaintiffs move for judgment in this action, notwithstanding the defendant's answer, on the ground