Martin v. Hodge

• Decision Date: 16 October 1886
• Citation: 1 S.W. 694,47 Ark. 378
• Parties: MARTIN v. HODGE
• Court: Arkansas Supreme Court

1 S.W. 694

47 Ark. 378

MARTIN v. HODGE

Supreme Court of Arkansas

October 16, 1886

APPEAL from Carroll Circuit Court, Hon. I. M. PITTMAN, Circuit Judge.

Judgment reversed and cause remanded.

J. M Hill for Appellant.

No title can be divested from one and vested in another by a lottery, and no testimony concerning such lottery is admissible. "Ex turpi contractu non oritur actio." Mansf. Dig., secs. 1914, 1915, 3403, 3404; 1 Taunt., 136; 17 Mass. 258; 14 Me. 404; 10 Beng., 107; 17 Vt. 105; 5 Hill. (N Y.), 27; 22 Me. 488; 5 Penn., 452; 2 Miss. 18; 4 Humph. (Tenn.), 199.

The parties are in the same attitude as if there had been no lottery. 22 Pick. 181. Martin seeks to disaffirm the illegal transaction, and such actions can be maintained. Carthew, (K B.), 252; 10 Beng., 107; 1 M. & S., 596; 3 Wend., 296; 2 Cox, 183; 20 Johns., 290; 3 Ark. Jeffrey v. Ficklin; Rose Dig., 408.

Plaintiff, after dismissing his suit, had a right to bring another within a year. Sec. 5102, Mansf. Dig. He was compelled to return the horses to save his replevin bond, and appellee acquired no right thereby.

O. W. Watkins for Appellee.

Martin, not being the owner, having no special interest in the property, and not being entitled to the possession of the horses at the time this suit was brought, cannot maintain this action. Mansf. Dig., secs. 5571-2; Wells on Replevin, sec. 94. The title was in issue, and plaintiff must show a good title. Wells on Replevin, sec. 120. It was not an error of the court to refuse to instruct the jury that it was not prejudicial to appellant to have dismissed his suit. That instruction was abstract in this case. Appellant brought his second suit and no objection was made. The statute simply means that it shall not bar any future action, and in this case that was not in question. The instructions given by the court covered all the legal points in the case upon which there was any testimony.

All the instructions asked by appellant and refused by the court are abstract. Appellant not only engaged in an open violation of the law by reason of which he put appellee in possession, but has received the full price of his property. The true doctrine (and in support of the law as declared by the court) will be found in the following cases and authorities: "Vainly does he who offends against the law seek the aid of the law." Broom Max., 3 Lond. ed., 255.

In Norris v. Norris, Adm'r, 9 Dana, 317, the court says: "When the parties to an illegal or fraudulent contract are in pari delicto, neither a court of equity nor a court of law will aid either of them in enforcing the execution of that which may be executory or rescinding that which may be executed. In such a case the law will not be the instrument of its own subversion, and to every invocation of its assistance replies, in pari delicto potior est conditio defendentis."

Chancellor Walworth, in Nellis v. Clark, 4 Hill, N.Y. 424, said: "It is a general rule that no court will aid a party to an illegal contract which is executory, and to recovery thereon. And where the contract is executed a court will not aid a particeps criminis in setting it aside. Where both parties are equally offenders against the positive laws of the country, or the general principles of public policy, or the laws of decency or morality, potior est conditio defendentis; not because the defendant is more favored when both are equally criminal, but because the plaintiff is not permitted to approach the altar of justice with unclean hands."

The exceptions to this rule are some few cases where the law which creates the illegality in the transaction was intended to restrain the one party and protect the other, as in case of public officers in receiving illegal fees; by extortion contracts, by lenders of money in which usurious interest has been paid. To the same effect are the following cases: Payne v. Bruton, 10 Ark. 53; Martin v. Royster et al., 8 Ark. 82; Kinney v. McDermot, 55 Iowa 674; Marienthal v. Shaffer, 6 Iowa, 226; Pike v. King, 16 Iowa 49; Smith v. Bean, 15 N.H. 577; Jackson v. Walker, 5 Hill, N.Y. 27; Holman v. Johnson, Cow., 341.

OPINION

BATTLE, J.

This is an action of replevin to recover the possession of two horses. There is no controversy about the facts in the case. As proven on the trial, they are, substantially as follows:

On the 25th day of December, 1884, the appellant, George W. Martin, was the owner of two horses. He determined to dispose of them by lottery, and for that purpose sold two hundred and fifty tickets at one dollar each, James Hodge, the appellee being one of the purchasers. Afterwards, on the night of the 25th of December, 1884, the lottery took place in Eureka Springs, in this state. Three men were selected to manage and conduct the drawing. Two hundred and forty-nine white and one black, marbles were placed in a revolving keg. A boy was blind-folded; the judges turned the keg, and the boy drew a marble from the keg. Each marble was numbered in the order drawn. The owner or holder of the ticket bearing the number of the black marble was to be the owner of the horses. As each marble was drawn the judges would turn the keg, and then the boy would draw another marble. The judges continued to turn the keg and the boy to draw one marble at a time until the seventieth drawing when the black marble was drawn, and some one exclaimed, "lucky Jim Hodge." Hodge, then, quickly went out of the house where the drawing took place, and without exhibiting his tickets, took possession of the horses, which Martin had hitched near by, and he and one Bollinger rapidly rode them away and put them in Hodge's stable, no one expressly objecting to their doing so. It was soon discovered that Hodge was not the owner nor holder of ticket No. 70, but that one Turk Moore was. Hodge admitted he was not, and does not now claim that he ever was, or is. Soon after this discovery, and on the night of the drawing. Martin demanded of Hodge the possession of the horses and he refused to give them up. On the same night Martin commenced an action of replevin against Hodge, before a justice of the peace, for the possession of the horses, and about midnight the constable, who executed the order of delivery, took possession of them. "But the next day he went to the office of Hodge's attorney, in whose office was also the office of the justice of the peace, before whom the cause was pending, and said he did not want to have anything more to do with the affair, and dismissed the suit and told the constable, then present, that he would let Hodge and Moore fight it out, and to return the horses to Hodge," which the constable did. Afterwards, on the same day, upon reconsideration, he changed his mind, and brought this action for the same horses.

Among the instructions given, the court instructed the jury as follows:

"If plaintiff had parted with possession of the property in controversy to defendant, at or before the beginning of this suit, and intended so to part with it, either by delivering to Hodge or authorizing the delivery thereof, you will find for defendant. As to whether plaintiff parted with his property or the possession thereof, you are to determine from all the testimony."

"If you find from the evidence that the plaintiff has lost all right of title and possession to the horses in controversy, and is only attempting to recover the possession of the same for the purpose of furthering a violation of law, such as lottery is, then he cannot recover and your verdict must be for defendant."

And refused to instruct the jury, at the request of plaintiff, as follows:

"That the dismissal of the former suit did not prejudice plaintiff's right to a subsequent suit for the same subject matter; and that the dismissal of the former suit did not confer any right upon defendant."

"That a lottery consists in the distribution of prizes by chance; and neither the title nor right of possession to property can be acquired thereby."

A verdict was returned and a judgment was rendered in favor of defendant. Plaintiff moved for a new trial, which was denied, and he filed a bill of exceptions and appealed.

It is a well settled doctrine that "every contract made for or about any matter or thing which is prohibited and made unlawful by statute is a void contract, though the statute does not mention that it shall be so, but only inflicts a penalty on the offender; because a penalty implies a prohibition, though there are no prohibitory words in the statute." Bartlett v. Vinor, Carthew, 252; Tucker v. West, 29 Ark. 386.

It is equally well settled that "no court will lend its aid to a man who founds his cause of action upon an illegal or immoral act. If from from the plaintiff's own showing, or otherwise, the cause of action appears to arise ex turpi causa, or from the transgression of the positive laws of the country, then the courts say he has no right to be assisted. It is upon that ground that the court goes; not for the sake of the defendant, but because they will not lend aid to such a plaintiff." Holman v. Johnson, 1 Cowper 341; Nellis v. Clark, 4 Hill (N. Y.), 424; Marienthal v. Shafer, 6 Iowa 223; Smith v. Bean, 15 N.H. 577.

The test to determine whether a plaintiff is entitled to recover in an action like this or not, is his ability to establish his case without any aid from an illegal transaction. If his claim or right to recover depends on a transaction which is malum in se or prohibited by legislative enactment, and that transaction must necessarily be proved to make out his case, there can be no recovery. Eberman v Reitzel, 1 Watts & Serg. 181; Phalen v. Clark, 19 Conn. 421; Armstrong v....