Opinion
(Spring Riding, 1803.)
If money, notes, or other articles of property won by gaming be paid, it cannot be recovered back under the act of 1788 (1 Rev. Stat., ch. 51).
THIS was an action to recover back moneys, notes, and other articles of property paid and delivered to the defendant by the plaintiff, as being won of him by gaming at cards. The facts were proved, and —
Harris, for defendant, insisted that money won cannot be recovered by the winner; yet if the loser pay it, he cannot recover it back. Sic potior est conditio possidentis.
Haywood, for plaintiff; admitted this to be the common law, but urged the act of 1788, ch. 5, which makes void, among other things, "every transfer of slaves, or other personal estate to satisfy money won." Money, he said, was within the description of personal estate, and the payment of it within that of the transfer of personal estate; and such transfer on payment being void by the express words of the act, no property vested thereby in the defendant, the winner; and he was a holder of goods, notes, and money, which belonged to the plaintiff. As to the articles of property and notes delivered to the defendant, they seem to be within the express words of the act, "or other transfer of slaves or other personal estate, to any person or for his use, to satisfy or secure money won," etc. Was here a transfer of personal estate? and was it to satisfy money won? If so, the act declares it void. And for what purpose shall it be so, if not for the benefit of the plaintiff, and to enable him to revindicate? In cases depending on the English acts against gaming, the loser having paid cannot recover back, because those laws allow the loser to pay if he will; they only afford him a defense against the action of the winner, which he, the winner, may also renounce if he will, and which he does renounce by electing (232) to pay the money. The payment is a valid one, because not prohibited nor made void. By our law the payment itself is void. The English cases, decided on the ground of no repetition against a valid payment, cannot govern this case, which is of a repetition against a void payment or transfer.
This case did not proceed to judgment, owing to the dispersion of the jury, by a cry of fire; but HALL, J., told the Reporter he was clearly of opinion the plaintiff could not recover. Which seemed strange. Vide Ambler, 269.
NOTE. — See the cases referred to in the note to Mooring v. Stanton, 1 N.C. 52.