65 W. Va. 667 | W. Va. | 1909
This is a suit in equity under sections 3435 and 3437, Code 1906, to recover $335.00 alleged to have been lost by plaintiff to defendant in March, 1904, in playing the game-called roulette. The suit was cominenced in the intermediate court of Marion county, where on bill, answer and proof the plaintiff’s bill was dismissed on thé ground, as recited in the decree appealed from, that the suit could not be maintained against defendant alone, the evidence showing that D. E. Thomas was a partner with Shaw in the transaction and a necessary party to the suit, and upon his petition presented to the circuit court the plaintiff was denied an appeal and supersedeas to said decree, and- he has brought the case here.
■ The appellee claims that regardless of the reason given by the intermediate court therefor, the decree dismissing the bill was clearly right for want of equity and should have been dismissed on demurrer. This presents the question argued here on both sides, whether the remedy in equity given by section 3437, is cumulative of the remedy at law given by the preceding section 3436, or is available only where some discovery is necessary and the remedy at law inadequate. Said section 3437, provides: “Such loser may file a bill in equity against such winner, who shall answer the same, and upon discovery and repayment of the money or property so’won, or its value, such winner shall be dis-
These statutes have come down to us through Virginia, practically unchanged, from 9 Anne, chapter 14; 2 Kelley’s Anno. Stat. W. Va. p. 646; White v. Washington’s Ex’or., 5 Grat. 615. Story says, 1 Story Eq. Jur., section 303, p. 307, referring to jurisdiction in equity to suppress gaming contracts: “No one has doubted that under such circumstances a bill in equity might be maintained to have any gaming security delivered up and cancelled. But it was at one time held that if the money were actually paid in a case of gaming, Courts of Equity ought not to assist the loser to recover it back upon the ground that he is pariiceps criminis”. And in section 304, he says: “But it is difficult to perceive why upon principle the money should not be recoverable back in furtherance of a great public policy, independently of any statutable provision. It has been decided that if money is paid upon a gaming security it may be recovered back, for the security is utterly void. Why is not the original gaming contract equally void? And if it be, why is it not equally within the rule, and the policy on which the rule is' founded?” To the same effect is 2 Pom. Eq. Jur. (3rd Ed.) § 941. It would thus seem that independently of statute such cases were within the domain of original equity jurisdiction, and that the statute was unnecessary to confer jurisdiction. But in states like ours, which have adopted the provision of the Statute of Anne, the question of equity jurisdiction it seems is no longer a subject of doubt or controversy. White v. Washington, supra; Boner v. Montgomery, 9 B. Mon. 123; 20 Cyc. 955, and other cases cited in notes. As before the statute jurisdiction to recover back money paid in execution of a gaming contract was in equity alone, it is by virtue of the statute that courts of law now have concurrent jurisdiction. In the well considered case of McKinney v. Pope’s Adm’r., 3 B. Mon. 93, the policy and purposes
But has the plaintiff made out a case entitling him to relief ? The intermediate court evidently thought Thomas a partner and therefore a necessary party to the suit and denied relief on that ground. As a general rule there can he no partnership in an illegal business. This includes gambling. Parsons on Partnership, section 8 and note; George on Partnership, 25. Illegality of a partnership, however, affords no reason why it should not be sued on a transaction with it that is legal in itself. 1 Lindley on Partnership (4th Ed.), star page 200. There was no plea in abatement, however, nor is there any defense in the answer on account of the non-joinder of Thomas. The answer of defendant is not that the claim sued for is a partnership obligation, and that the action should abate because of non-joinder of Thomas, but that the money alleged to have been lost by plaintiff was lost to Thomas and not to him. Shaw denies the partnership and claims that Thomas and not himself was engaged in the gambling business. So we need not consider the question of partnership or partnership liability. The question does not fairly arise.
The statute gives right of action against the person to whom the money is lost. The question then is to whom did plaintiff lose his mloney? It is admitted that he lost it, and that when he lost it, Thomas was in charge of the roulette wheel on which the game was played, and the evidence shows that the money plaintiff lost was paid to Thomas and put in a drawer belonging t‘o defendant. It is admitted the place where the gambling was done was the place of business of defendant; that the wheel on which the game was played and all the furniture and other paraphernalia belonged to him. And Thomas, when asked on cross examination, in whose name the business was being run, said, that he did not know whether there was any name attached to it; that there hardly ever is, that nobody is anxious to assume it; that the contract between defendant and himself was that Shaw was to furnish the room, lights and the money to back the games with; that he should take the place, manage it, and divide the proceeds. Pie says he was supposed to handle the money, that Shaw was incompetent to runothe gambling room. But the evidence shows that a night or two after plaintiff lost his money Shaw was himself in charge of the wheel, when de
But in the answer of tire defendant he seeks a cross recovery against plaintiff for $40.00 alleged to have been lost by him to plaintiff on the night he operated the wheel. Plaintiff in his reply thereto denies this, and his counsel contends that no such right is available in this suit. Why not? If he has made out a case against plaintiff hy proof the Kentucky case of McKinney v. Pope’s Adm’r., supra, is direct authority that a defendant may recover on a cross bill for money lost to plaintiff. Section 3855, Code 1906, we think gives him the same right by a cross answer.
But has the defendant made out by proof a case for cross relief? lie testifies that he paid this money to plaintiff through Thomas the night he gave plaintiff his check for $246.75., Plaintiff admits that the defendant paid him $40.00 at that time, but says positively that this was money he had paid defendant for checks., Shaw claims the $40.00 lost by ¡him to plaintiff was covered' by $100)00, paid by him at the time-through Thomas ‘to plaintiff’s brother; and Thomas says, that
We are therefore of opinion upon the whole case to reverse the judgment below and to pronopnee the decree here which we think the intermediate court should' Rave pronounced, that the plaintiff recover of the defendant the sum of $388.80, being the principal sum lost with interest to the date of the judgment appealed from, with interest thereon from the 28th day of November, 1906, the date of said decree together -with Ris costs' by him in this Court and in the intermediate court in this behalf expended.
Reversed, and Judgment rendered for Plaintiff.