Opinion
(Spring Riding, 1804.)
If money or property won by gaming be paid, it cannot be recovered back.
TROVER for goods, and notes for money won by gaming. For the plaintiff it was argued that though under the British act, and according to the cases which put a construction on it, the plaintiff cannot recover, because in pari delicto potior est conditio possidentis, yet that rule will not apply to our act, which goeth further than the British act, in this, that by our act not only the security but the contract is void; and by our act, also, the transfer of any personal chattel to satisfy or pay money or other thing won by gaming is void. By the British act the payment of money won is left at the option of the plaintiff; and if he makes it he cannot complain. But by our act the payment is rendered void. If so, it passes no property to the receiver, and he gains a naked possession only by the transfer, leaving the property in the loser. And why leave the property in him unless he can recover it? Of what use will it be to say that the transfer shall be void, if the plaintiff cannot have an action to assert his right of property? The transaction will be void in words, but in reality unavoidable, for want of the means necessary to its avoidance.
E contra it was argued that winning a thing staked up at the time was not within the prohibition of the act; and if it was, that the plaintiff, who is a violator of the law, shall not be heard to complain of the consequences of his misconduct.
The act should be so construed as most effectually (298) to suppress the vice of gaming, which is the present of every misfortune; and the best way to do this is to give no action to the plaintiff in such a case; for, knowing that he will not be relieved, he will take care not to engage in gambling.
Verdict for defendant.
QUERE: Is not the principle of this act to take care of those who have not prudence enough to take care of themselves? If so, it is against its principle to say, let men take care of themselves.
NOTE. — See Mooring v. Stanton, 1 N.C. 52, and the cases referred to in the note to that case.