McClintock ad. vs. Larey et al. [JANUARY the contract sued on was made, also deposed, in general terms, that he always considered the plaintiffs to be her owners. In the absence of any opposing proof, her certificate of enrolment, and the statement of her clerk were sufficient evidence that the plaintiffs were the owners of the boat. 2. An attempt was made upon the trial to discharge McClintock from liability upon the contract, on the ground that the boat, on her down trip, before she reached Conway, was disabled by a snag, and consequently not in a condition to perform her part of the contract, although McClintock had, before her return to his landing, in violation of his agreement, shipped his cotton upon another boat, without knowledge of the accident which happened to the R. M. JONES, and perhaps before it occurred. There was an implied undertaking on the part of the owners of the boat, at the time the contract was made, that she was river worthy, and had sufficient men, officers, stores, etc., etc., to enable her to perform her part of the agreement. Smith's Merc. L. 381, and nole. And it was doubtless incumbent on the plaintiffs to prove that at the time the boat applied at McClintock's for his cotton, she was still river worthy, and capable of performing the contract. Cooper deposed that he was steamboat hull inspector and general river agent for the board of underwriters of New Orleans, and in his capacity as such, examined the R. M. Jones, on the 22d of February, 1856, found her perfectly river worthy, and issued to her a certificate that her cargo would be covered by open policies of insurance. That cargo certificates lasted for twelve months; and that if, in the meantime, a boat was injured, or otherwise needed repairs, the underwriters ordered her into dock to be repaired, which was not necessary during that year with the R. M. Jones. MCCORMICK, the carpenter of the boat, deposed that she was river worthy at the time she applied at McClintock's landing for his cotton, in pursuance of the contract, and reached New Orleans safely, and in due time. TERM, 1861.] McClintock ad. vs. Lary et al. JOHN WAGGONER, a witness for the defendant, testified that on her way down Red river, she struck a snag, about twenty-five or thirty miles above McClintock's landing, which knocked off an entire plank about two feet below her guard and about half way between her bow and "midship." That a large quantity of cotton was thrown into the river from her injured side, which caused her to creen over upon her opposite side, and prevented the water from rushing in at the hole made by the snag; and she was repaired by putting on a new plank, and then went on down the river, picking up the cotton bales which had been thrown overboard. We are of the opinion that a temporary injury thus received by the boat, which was immediately repaired, and did not permanently disable her, or render it necessary to go into dock to be repaired, before she was capable of complying with her contract to carry down, with usual safety, McClintock's cotton, did not discharge him from liability for violating his part of the agreement; and that the court below did not err in refusing to instruct the jury to the contrary, as moved by the counsel for the defence. See 1 Phillips on Insurance sec. 734, 975. 3. The defendant introduced a witness by the name of WILLIAM A. MCKNIGHT, by whom he offered to prove, as stated by the bill of exceptions, " that so soon as the R. M. JONES had received an accident or injury, whereby she was compelled to throw overboard her cargo, or a portion thereof, in order to save herself, her cargo certificate became void, to the extent that she could receive no more cargo or freight-that if she did, her open policies of insurance would not cover the same-that any freight that she might take could not be insured under or by virtue of her open policies of insurance." Which, upon the objections of the plaintiffs was ruled out by the court, and this was made one of the grounds of the motion for a new trial. Where the witness resided, what his occupa tion was, or what experience or knowledge he had about the matter, which the defendant offered to prove by him, is not McClintock ad. vs. Lary et al. [JANUARY shown, nor did the defendant propose to show that what he offered to prove by the witness was an established commercial custom or usage, such as would govern the rights of the parties to the suit-or that the witness was competent to prove such custom if it was established. The court did not err in excluding the testimony of the witness in the form in which it was offered. 2 Greenl Ev. sec. 252. 4. It is also insisted for appellant that the damages assessed by the jury were excessive. It was proven upon the trial that before the R. M. JONES reached McClintock's landing, on her down trip, she was offered as much as four or five hundred bales of cotton at $5 per bale, which she declined to take in consequence of her engagement to carry his cotton; and that because of her failure to get his cotton, she had to go to New Orleans without a full load. And the clerk of the boat expressly stated that the loss, sustained by the boat in consequence of her not getting McClintock's 200 bales, was equal to $900, the amount of freight which she was to have been paid for taking the cotton down. The question of damages was fairly left to the jury, by the instructions of the court, and there is no good ground for us to set aside their verdict. The judgment must be affirmed. Mr. Justice COMPTON absent, and during the remainder of the term. A stake-holder of money bet upon a race, may recover it by action against a person with whom he has deposited it, though the wager may be illegal and void as between the parties betting. Error to Crawford Circuit Court. Hon. J. M. WILSON, Circuit Judge. WALKER & GREEN, for the plaintiff in error. 1. A wager on a turf race is illegal and void. The statute makes all wagers void, and gives to all losers, except those on turf races, a remedy for the recovery of what they lose, leaving the parties to a wager on a turf race precisely in the same situation the parties to illegal wagers stood at common law. And in this view of the statute we are sustained by the construction of the statute of Charles 2, c. 7 in Shillito vs. Theed, 7 Bingham, 406, or 20 Eng. Com. L. Rep. 181. In South Carolina, New Hampshire, Connecticut and Pennsylvania, all wagers are held unlawfnl on their clear immoral tendency. Laval vs. Myers, 1 Bailey's Rep. 486; Rice vs. Gist, 1 Strobhart's Rep. 82; 3 N. Hamp. 152; 6 lb. 104; 16 S. & R. 147; 3 Penn. 468; 15 Conn. 28; and in England it was formerly held that the courts would not try actions upon them. (Walkhouse vs. Duvaut, 1 W. Black. 19.) And it is now held to be discretionary with a judge, at Nisi Prius, whether he will or will not try them. Robinson vs. Meaurs, 6 D. & R. 26; Thornton vs. Thackray, 2 Y. & I. 1561; 1 Car. & P. 613; 3 Car. & P. 375; 7 D. & R. 130. 2. That no action lies at common law upon an illegal wager. or upon a contract incident or subsidiary to it. "A contract growing out of an illegal transaction, or which is connected therewith, cannot be enforced." Milne vs. Huber, 3 McLean 212; Woolen vs. Miller, 7 S. & M. 380; Simpson vs. Bloss, 7 Taunt. or Eng. Com. Law Rep. 89; Adams vs. Rowan, 3 S. & M.; Brown's Legal Maxims 350; 25 Verm. 184; 15 Wend. 412. Where a contract grows immediately out of, and is connected with, an illegal or criminal act, a court of justice will not lend its aid to enforce it; and if the contract be connected only in part with the illegal transaction, and growing immediately out of it, though it be in fact a new contract, it is equally tainted with it. Toler vs. Armstrong, 4 Wash. C. C. 297; 11 Wheat. 258. Belding vs. Pitkin, 2 Caines Rep. 147. 3. That plaintiff is not, under any possible view of the law and the facts of the case, entitled to maintain the action. The Supreme Court of New York, in Vischer vs. Yates, 11 John. 23, held that where there was a complete execution of the contract, and payment to the winner, the money staked on a void wager could not subsequently be recovered; but that when there was a notice before payment, the stakeholder was liable in an action brought by the owner of the money. This doctrine, however, was disaffirmed by the Court of Errors, who held that no action could be sustained, where a wager was invalid, to recover the money deposited with a stakeholder, EVEN ALTHOUGH BROUGHT AFTER NOTICE AND BEFORE PAYMENT TO THE WINNER. Yates vs. Foot, 12 Johns. 1. And so the law has stood ever since in that State. McKeen vs. Caherty, 3 Ward 495; 1 Denio 557. STILLWELL & WOODRUFF, for defendant. Mr. Chief Justice ENGLISH delivered the opinion of the Court. South, on the one side, and Garret, Barker and Hilburn, on the other, made a bet of $500 a side on a turf race, and the |