Dyer v. Benson

• Decision Date: 30 September 1882
• Parties: Dyer. vs. Benson.
• Court: Georgia Supreme Court

69 Ga. 609

Dyer. vs. Benson.

Supreme Court of the State of Georgia

SEPTEMBER TERM, 1882.

Contracts. Gaming. Actions. Before P. H. Brewster, Esq., Judge pro hac vice. Carroll County. At Chambers, May 15, 1882.

Benson brought trover against Dyer for a horse. On the trial, the evidence showed, in brief, the following facts. Benson and Dyer agreed to run a horse race. The winner was to take both horses. Dyer won, and took Benson's horse. Benson sued for his horse within six months. There was some conflicting evidence as to the details of the race, the value of the horse, etc., not material here.

The court charged, in effect, that such a contract was illegal; that a delivery thereunder would be based on a gaming consideration, and that the property so delivered could be recovered, if sued for within six months.

The jury found for the plaintiff $125.00 with interest. Defendant moved for a new trial, which was refused, and he excepted.

G. W. Austin; T. W. Latham, for plaintiff in error.

Cobb & Cole; Reese & Adamson, for defendant.

Jackson, Chief Justice.

The sole question made in this record is, can one recover a horse from another, won in a horse race?

Our statute is very broad. " Gaming contracts are void, and all evidences of debts or encumbrances or liens on property executed upon a gaming consideration, are void in the hands of any person. Money paid, or property delivered up upon such consideration, may be recoveredback from the winner by the loser, if he shall sue for the same in six months after the loss; and after the expiration of that time, it may be sued for by any person at any time within four years, for the joint use of himself and the educational fund of the county." This suit for this property, delivered up on the consideration that the horse of defendant beat the horse of plaintiff in a race on which each bet his horse against the other\'s, was sued for by the loser within six months, and leaves this the only question: Is that consideration a gaming consideration under our Code above cited? Code, 2753.

We are quite clear that it is such a consideration within the meaning of our statute, and that the principle which covers this case was adjudicated by this court in 21 Ga., 46. That was a dog fight; this is a horse race. If betting on one be gaming, betting on the other is also gaming. It is true that that was a suit against the stakeholder for the plaintiff's half of the bet on the dog fight deposited with him, and that makes a case between...