Court of Appeals.-Ruckman v. Pitcher.

Under the former statute (1 R. S. 223, § 5) as well as the present one, (1 R. S. 662, § 9,) the money paid upon an illegal wager might be recovered back from the winner, but the former statute said nothing about an action against the stakeholder. The consequence was that no action against him could be maintained after he had paid over the money, without objection, to the winner; and according to the decision of the Court of Errors, in Yates v. Foote, 12 Johns. 1, which overruled the case of Simmons v. Borland, 10 Johns. 468, no action would lie against the stakeholder after the wager had been lost, although the money still remained in his hands. To remedy these mischiefs a new provision was inserted in the present statute, which gives the loser an action against the stakeholder as well as the winner to recover the money, "whether the same shall have been paid over by the stakeholder or not, and whether any such wager be lost or not." Although the words are general that the money may be recovered of the stakeholder whether it has been paid over or not, they should be understood as applying only to a payment made under the original authority conferred by laying the wager and depositing the money, and not to a payment made in pursuance of a new direction given afterwards. The consent which constitutes a part of the original contract of wager, that the money shall go to the winner, is nullified by the statute, and consequently that consent gives the stakeholder no authority to part with the money. And whether the wager be lost or not, and although the money may have been paid over under such void authority, there may be a recovery against the stakeholder. But the legislature could not have intended to nullify a new and distinct authority to pay over the money, given after the making of the illegal contract of wager, and not constituting any part of that agreement. After the money has been staked, and even after it is lost, it still belongs to the party who deposited it. It is his property, and being owner, he may dispose of it at pleasure. He may give it to his antagonist or sink it in the sea. He may do the act himself or direct it to be done by his agent the stakeholder. And to allow a recovery against the stakeholder after he has parted with the money in obedience to the express orders of his principal would be allowing a man to be a knave according to law. A recovery against the winner after he has got the money does no positive wrong; and so of a recovery against the stakeholder so long as the money remains in his hands, or even after he has parted with it, if the act was done without authority. But to permit a recovery against the stakeholder after he has paid the money in pursuance of the express direction of his principal, given subsequently to the illegal contract of wager, would be downright injustice, and we ought not to impute such an intention to the legislature.

The substance of the whole section under consideration may be given as follows: Any person who shall pay or deposit any money upon the event of any wager, may sue for and recover the same of the winner and of the stakeholder, whether the same shall have been paid over by the stakeholder or not, and whether the wager be lost

or not.

Court of Appeals.-Ruckman v. Pitcher.

If we follow the course which has been urged upon us, and give the utmost scope to the language of the statute, several consequences will follow which could not have been within the intention of the legislature. First, the money may be recovered from the winner although he has not received it. Second, it may be recovered both of the winner and the stakeholder; thus giving the loser a double satisfaction. And third, it may be recovered from the stakeholder, after he has parted with it in obedience to the lawful directions of the loser. The first two consequences will follow just as plainly as will the third. But this, like other statutes, should have a reasonable construction. The money may be recovered from the winner, after he has received it and not before. The loser may sometimes have an election to proceed against the winner or stakeholder, but he cannot have a double satisfaction; and though the stakeholder remains liable so long as he has received no fresh instructions subsequent to the laying of the wager, his liability is at an end when he has parted with the money in obedience to new instructions.

It is true that the money was paid over to Minturn as winner, but it is also true, that it was done in obedience to orders, which as owner, the plaintiff had a right to give. It is the same thing in effect, as though the plaintiff had demanded and received the money from the defendant, and then paid it over with his own hands. In either case he would have an action against the winner, because the statute gives it, (Lewis v. Miner, 3 Denio, 103,) but he can have no action against the agent who followed his instructions.

A good deal of importance has been attached to a remark of mine in Lewis v. Miner, to the effect, that by the payment the party consents to part with his property, and at the common law, he would have no remedy to recover it back, but the statute nullifies the consent, and gives him a remedy by action. The remark was very proper in that case, when the action was against the winner, but it has no application here, where the action is against the stakeholder.

I have always been opposed to horse-racing, and am quite willing to do whatever is proper to suppress the evil; but in my zeal for good morals, I must not hang a man for being connected with a race, until I can find it set down in express terms, that hanging shall be the penalty.

I am of opinion that the judgment of the Supreme Court should be affirmed.

JEWETT, CH. J., and JOHNSON, J., concurred in this opinion.

NOTE. This opinion of Judge Bronson, is sustained by a case not cited on the argument. Tarleton v. Baker, 18 Vermont R. p. 9, and reported in Kinne's Law Compendium, for 1849, p. 39.

Superior Court.-Weed and others v. Raney and Cheney.

N. P. Superior Court.

April Term, 1850.

Before DUER, MASON and CAMPBELL, Justices.

NATHANIEL WEED AND OTHERS ads. GEORGE W. RANEY AND REUBEN S. CHENEY.

MOTION TO SET ASIDE REPORT OF REFEREES AS CONTRARY TO LAW AND EVIDENCE.

Plaintiffs brought the action to recover the amount of their bill as proprietors of a newspaper for publishing an advertisement of the sale of real estate, under an execution issued upon a judgment in favor of defendants. The advertisement was published weekly, for nearly eighteen months, and the amount of the bill was $510.

Held, that as the plaintiffs were not employed directly by the defendants, nor under any special directions given by them or by their attorney, there was not such a privity between the parties as could entitle the plaintiffs to maintain the action.

The sheriff or marshal to whom a fi. fa. or other process is delivered to be executed or served, does not become the agent of the plaintiff in the full legal sense of the term by the mere fact of such delivery. The plaintiff is not responsible as a principal for the acts of the officer unless where special directions are given and those directions are followed.

Report in favor of plaintiffs set aside, order for a reference vacated and a trial ordered-costs to abide the event.

THIS was an action of assumpsit brought by the plaintiffs against the defendants, to recover a bill for printing an advertisement of sale on an execution, issued from the Circuit Court of the United States, for the District of Michigan, purporting to have been issued from the said court in a certain suit, wherein the defendants in this cause were the plaintiffs, and one Henry Acker was the defendant.

The declaration contained the ordinary counts for work and labor, materials, money counts and account stated.

The pleas were the general issue, payment and notice of set-off. The cause was brought on to be tried before John W. Edmonds, Esq., one of the Judges of the Supreme Court, at the city of NewYork, and was thereupon, by consent of parties, referred to Henry S. Dodge, Esquire, counsellor at law.

The cause was heard by the said Henry S. Dodge, as sole referee, who reported that there was due to the plaintiff the sum of five hundred and ten dollars, the amount of the bill claimed.

The facts of the case more particularly appear in the opinion of

the court.

Application was now made to set aside the referee's report as being contrary to law and evidence on a case made by the defendants.

David Dudley Field and Harvey A.Weed, for the defendants, made and argued the following points:

I. There was no evidence that the plaintiffs were the proprietors of the Michigan Democrat, at the time of publishing the advertise

Superior Court.-Weed and others v. Reney and Cheney.

ment, for which the action is brought. They are shown to have been the publishers, but that they might have been as the servants of the proprietors.

II. If the plaintiffs were the proprietors, they had no right of action against the defendants, for publishing the notice of sale and postponements, even though such publication were by the defendants' authority; for the printing is done for the officer executing the process, and is to be paid for by him. There is no more reason for the printer's sending his bill to the party, than for a lawyer's clerk calling upon the client to pay him for copying. The custom in Michigan is conformable to the general law.

III. Even though it were admitted that the plaintiffs were the proprietors of the paper, and the defendants responsible to them for advertising, yet no right of action existed in this case, until the taxation of the bill for printing, and the verification of the items by affidavit, as prescribed by the statutes of Michigan and the rules of the Circuit Court of the United States for that District.

IV. If a right of action ever existed in favor of the plaintiffs against the defendants, it was lost when the defendants settled with the marshal, and paid in full for his bill, printing inclusive, without notice of the plaintiffs' claim.

V. There was no competent evidence of the publication.

VI. Upon the evidence, it appears that the advertising of the postponements and the postponements themselves, were without the authority, and against the wishes of the defendants and their attorneys. VII. It also appeared, that the charges for advertising were exorbitant and oppressive.

VIII. The report should be set aside, the order of reference vacated and a trial by jury ordered, the case being one peculiarly proper for that mode of trial.

Abijah Mann, Jr., and Thomas H. Rodman, for the plaintiffs, made the following points.

1. The only question of law involved in this case, is whether the plaintiff, in an execution, is responsible to the proprietor of a public newspaper for his charges for publishing a notice of the sale of real estate belonging to the judgment debtor, which the officer holding the process is instructed by the plaintiff's attorney to sell under the execution, where the printer is employed by the officer, without the personal intervention of the plaintiff or his attorney.

Upon all questions of fact, the employment of the plaintiffs in this suit, the performance of the services, their value, and the giving of instructions by the attorney of the plaintiffs in the execution, to the deputy marshal to postpone the sale, and continue the publication, the finding of the referee is conclusive.

2. The services were performed for the sole benefit of the defendants, by the direction of the officer who held the process, who advertised the property under the instructions of the attorney of the defendants, the officer acting in his official and ministerial, the attorney

Superior Court.-Weed and others v. Reney and Cheney.

in his professional capacity, and both as the agents of the plaintiffs in the execution, and within the scope of their authority, with a view to collect the amount of the plaintiffs' judgment.

The plaintiffs in the execution, assuming that they were unknown to the printers at the time, are liable, when discovered, for the acts of their agents, upon the well settled principle of the law of agency. An unknown principal is always liable when discovered upon the contracts of his agent, although they be made in the agent's name. Patterson v. Gaudasequi, 15 East, 62; Addison v. Gaudasequi, 4 Taunton, 538; Thompson v. Davenport, 9 B. & C. 78. Note to last case in 2 Smith's Leading Cases, p. 212. Story on Agency, § 270, and note 2, p. 339, and cases cited. 1 Cowen's Treatise, 121, and cases cited. Chitty on Contracts, 224, 4th American edition.

3. When the plaintiffs in the execution authorized Bates & Talbot, to collect their debt against Acker, they in legal effect authorised them to do everything requisite to effect that object. The advertisement of his lands was necessary to enable them to enforce their judgment. And this judgment was recovered for the sole purpose of selling Acker's equity of redemption in those lands.

4. Bates, one of the attorneys of the defendants, in their suit against Acker, had power under his general retainer, to authorize the deputy marshal to depart from the regular course in executing a fi. fa., and having given him special instructions respecting the execution, the liability of the marshal ceased, and the deputy became the agent of the parties for whom Bates acted.

The relation of principal and agent thereby arose between the defendants here and the deputy, and they are bound by his acts in that capacity. It will not be denied, that if Bates, as the attorney of the defendants, had employed the plaintiffs to publish the notice, his clients would have been responsible. In legal effect the case is the same. Corning v. Southland, 3 Hill, 552. Moon v. Guardians of Witney Union, 3 Bing. N. C. 817.

5. The motion to set aside the report of the referee should be denied with costs.

DUER, J.-This is a motion to set aside a report of a referee, as contrary to law and evidence.

The action is brought by the plaintiffs as the printers and publishers of a newspaper in the state of Michigan, to recover the amount of their bill for printing an advertisement of the sale of real estate under an execution which was issued from the Circuit Court of the United States for that district, upon a ju igment recovered in that court, by the present defendants. The plaintiffs were employed and authorized to publish the advertisement and to continue its publication with notices of the postponement of sale from week to week, for a period of nearly eighteen months, by the deputy marshal, in whose hands the execution bad been placed for collection, and it is insisted that this employment, created such a privity between the plaintiffs and defendants, as entitles the former to maintain this action. The