This is an action of repleyin to recover the possession of two horses. There is no cqntrovery 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 *382the order drawn. The owner or holder of the f 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 alsoj 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 *383suit, 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 can not 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.
1. contracts statute tv<ow.by ' ‘
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 the plaintiff’s own showing, or otherwise, *384the 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, 226; Smith v. Bean, 15 N. H., 577.
■ The test to determine whether a plaintiff is entitled to recover in an attion 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 and S., 181; Phalen v. Clark, 19 Conn., 421; Armstrong v. Toler, 11 Wheaton, 258.
The case of Catts v. Phalen, 2 How., 376, is illustrative of this rule. In that., case, the defendant, Catts, was employed by the plaintiffs, Phalen. ^nd Morris, to draw out of a lottery wheel the tickets of numbers therein to be deposited by plaintiffs, without selection and by chance, it being understood that the tickets of numbers, when drawn out in a certain order, were to ■ determine the prizes to such lottery tickets' as • the plaintiffs had disposed of, or still held in their own hands, áccording as the tickets of numbers so drawn out corresponded with the numbers on the face of such lottery tickets respectively. Catts, after his employment, employed one Hill to purchase a ticket in this lottery fcr him, but apparently for Hill himself. Hill purchased the ticket in the manner he was employed, and delivered it to Catts. Catts, being in possession of the ticket purchased for him, on the day of the drawing, pretended to draw out of the wheel the tickets of numbers therein deposited by plaintiffs, while at. the same time he had fraudulently concealed in the cuff of his coat false and *385fictitious tickets of numbers fraudulently prepared by him, which exactly corresponded in numbers with the numbers on the face of the ticket held by him. In drawing out the tickets of numbers, he contrived to slip between his finger and thumb the false and fictitious tickets of numbers concealed in his cuff, and produced and exhibited the same to plaintiffs’ agent as and for genuine tickets properly drawn from the wheel, and by reason thereof the ticket purchased for him, Catts, was registered as the ticket entitled to a prize of $15,000. He, then, hired Hill to claim the ticket and collect for him the $15,000, less fifteen per cent, to be deducted by plaintiffs, which Hill did. Phalen and Morris, discovering the fraud after the prize had been paid, brought suit to recover it. The court, assuming that the lottery was illegal, said : “ The facts of the case present a scene of a deeply concocted, deliberate, gross and most wicked fraud, which the defendant neither attempted to disprove or mitigate at the trial, the consequence of which is that he has not, and cannot have any better standing in court than if he had never owned a ticket in the lottery, or it had never been drawn. So far as he is concerned, the law annuls the pretended drawing of the prize he claimed; and, in point of law, he did not draw the lottery ; his fraud avoids not only his acts, but places him in the same position as if there had been no drawing in fact, and he had claimed and received the money of the plaintiffs by means of any other false pretense, and he is estopped from avowing that the lottery was in fact drawn.
“Such being the legal position of Catts, the case before us is simply this: Phalen and Morris had in their possesion $12,500, either in their own right, or as trustees for others interested in the lottery. No matter which, the legal right to this sum was in them ; the defendant claimed and received it by false and fraudulent pretenses, as morally criminal as by larceny, forgery or perjury, and the only question before us is, whether he can retain it by any principle or rule o'f law.
*386“The transaction between the parties did not originate in the drawing of an illegal lottery; the money was not paid on a ticket which was entitled to, or drew the prize; it was paid and received on the false assertion of that fact. The contract which the law raises between them is not founded on the drawing of the lottery, but on the obligation to refund the money which has been received by falsehood and fraud, by the assertion of a drawing which never took place.”
According to these principles of law and this test of their application, is plaintiff, in this action entitled to recover ?
By the statutes of this state it is enacted: “Any person who shall vend or otherwise dispose of any lottery tickets, gift concert ticket, or like devise, shall be deemed guilty of a misdemeanor and liable to indictment, and, oil conviction thereof, shall be fined in a sum not less than fifty dollars nor more than five hundred dollars.” Mansf. Dig., sec. 1915.
4. replevin : Possession evidence of title,
Martin’s possession of the horses in controversy at the time .. . . they were taken by Hodge is prima facie evidence of title. Any wrongful taking is not sufficient to shift upon him the burden of proving his title to the property and right to possession. If the possession of Martin and a wrongful taking from him were proven, and nothing more, he would be entitled to recover.
The evidence shows appellant proposed to dispose of his horses by lottery; and for that purpose sold two hundred and fifty tickets for sums amounting in the aggregate to $250, the full value of his horses. He, thereafter, undertook to hold the horses in trust for the ticket-holder who would hold the ticket which would be entitled to, or draw the prize, when the drawing of the lottery took place. This undertaking was illegal and void. It and the sale of the tickets did not affect plaintiff’s title to or right to the possession of the horses. At the time of the drawing they were still in his possession. It was under*387stood that he would deliver them to the holder of the ticket of the number corresponding to the number of the drawing of the black marble. Hodge did not hold that ticket; no one authorized to do so decided he did. There was, therefore, no implied permission given to him to take the horses when he did; circumstances implied the reverse. There is no evidence that he had express permission. Any one else, who did not have a ticket in Martin’s lottery and never had one in any other lottery, might have taken possession of the horses at the time of the drawing as Hodge did, and, succeeding in riding them away without objection, hold them under a claim and right equally as good as that on which Hodge relies. ■ Hodge stands in no better attitude than he would have stood if he had held no ticket. His taking was wrongful. It was • not necessary for Martin to introduce any evidence in respect to the lottery to establish his right to the horses. His right to recover is nbt dependent on that transaction.
Martin’s right to recover does not ■ depend on any disposition he may make of the horses in controversy. He can give them away. If the consideration of the gift is not deemed good in law, the gift will be only void as against creditors and purchasers. Hodge, so far as anything appears in evidence, would not have a right to complain in any kind of an action. He certainly has not in this. Mansf. Dig., sec. 3376.
,5-„ Dismissal before trial no t0 another
The dismissal of the first action of replevin should not prejudice plaintiff’s right to the horses. He was compelled to store them to the possession of Hodge. He could not dismiss on any other condition. The dismissal placed the parties in statu quo. The statute expressly provides that such dismissals may be without prejudice to a future action. The evidence shows he did not concede Hodge’s right to hold the horses as a prize or otherwise, by the dismissal. Mansf. Dig., secs. 5102, 5103.
*388In giving the instructions above set forth, in so far as they are inconsistent with this opinion, and in not giving those asked for and refused as before stated, the court erred. The motion for new trial should have been granted. .
The judgment of the court below is reversed, and this cause is remanded with an instruction to the court to grant appellant a new trial.