Every stakeholder who shall knowingly receive any money or property, staked upon any betting, declared gaming by the provisions of this chapter [44-5-1 to 44-5-14 NMSA 1978], shall be liable to the party who placed such money or property in his hands, both before and after the determination of such bet, and the delivery of the money or property to the winner shall be no defense to an action brought by the loser for the recovery thereof: provided, that no stakeholder shall be liable afterwards, unless a demand has been made upon such stakeholder for the money or property in his possession previous to the expiration of the time agreed upon by the parties for the determination of such bet or wager.
History: Laws 1856-1857, p. 36; C.L. 1865, ch. 36, § 11; C.L. 1884, § 2300; C.L. 1897, § 3209; Code 1915, § 2517; C.S. 1929, § 58-111; 1941 Comp., § 25-1011; 1953 Comp., § 22-10-11.
Compiler's notes. — The term "this chapter" was substituted for the term "this act" by the 1915 Code compilers and refers to ch. 48 of the 1915 Code.
Public policy against gambling overrides rule preventing unjust enrichment. — The public policy of New Mexico is to restrain and discourage gambling and must override the rule which prevents unjust enrichment, particularly where there is a choice between that which is considered to be for the benefit of the public at large as distinguished from any benefit to an individual litigant. Schnoor v. Griffin, 1968-NMSC-067, 79 N.M. 86, 439 P.2d 922.
Action cannot be maintained on contract that is illegal or against public policy, where both parties are equally culpable. Schnoor v. Griffin, 1968-NMSC-067, 79 N.M. 86, 439 P.2d 922.
This section makes stakeholder liable for money placed in his hands "staked upon any betting." Where defendant was not a stakeholder - but a party to an illegal act - law will leave the parties where it found them. Schnoor v. Griffin, 1968-NMSC-067, 79 N.M. 86, 439 P.2d 922.
Am. Jur. 2d, A.L.R. and C.J.S. references. — 38 Am. Jur. 2d Gambling §§ 247, 248 to 250.
Recovery of money or property entrusted to another for illegal purpose, but not so used, 8 A.L.R.2d 307.
38 C.J.S. Gaming § 49.
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