10 Mich. 328 | Mich. | 1862
Lead Opinion
The statute against gaming (Comp. L. § 1582) provides that if any person shall, by playing at 'cards, dice, or any other game, or by betting on the sides or hands of such as are gaming, or by any betting whatever, lose to any person so playing or betting, any sum of money, or any goods whatever, *and shall pay and deliver the same, or any part thereof, to the winner, the person so paying or delivering the same may sue for and recover such money in an action for money had and received to the use of the plaintiff, and such goods in an action of replevin, or the value thereof in an action of trover, or in a special action on the case.
It is under this section that this action is brought; and the first question is, can it be maintained ? I think not. No money 'was paid by Saxe to Buckley upon a gaming or any other consideration. At the time of the making of the bet, negotiable notes were deposited with Williams, to be delivered to the winner. This was Buckley, as it turned out; and the notes were given up to him, before their maturity; and he endorsed the note of Saxe in blank, but without recourse, and sold it to a person in Battle Creek for $80. There is no evidence when or to whom Saxe paid the note, if he ever did, or what amount he paid, if any; but it is certain that he never paid any money to Buckley upon it. How then can Buckley be said to have. received money to the use of Saxe ? The promissory note was not money within the statute; and the money he received was from his indorsee upon the sale of it to his own and not to Saxe’s use. If he should be held to have received it for the latter’s use, then a right of action would have arisen to Saxe for such money so soon as Buckley received it, and whether Saxe ever paid the note or not; and if it were not then received to his use, the payment of the note afterwards to the holder would not, by relation,
But if Saxe were entitled to this remedy, he has not-made a case authorizing a judgment in his favor. As already remarked, there is no evidence that he has paid the note, or, if he paid anything, what amount. It is claimed, however, that possession of the note is evidence of payment. In proper cases it is prima facie evidence of payment, I admit; but in an action to recover back money claimed to have been paid on the note, the burden is upon the plaintiff to show payment, and the amount, as facts; and the production of the note will not be evidence of either. The note from Saxe to Buckley was void as between them, and as to all persons except those who hold or claim under them in good faith and without notice of its illegality. Whether the holder of the note acquired it in good faith and with- • out notice does not appear; and no presumption will be made either that he did .or did not; although, if either were to be made, the fact that he bought it at a very large discount, and took it indorsed without recourse, would rather aid a presumption that he bought it with knowledge of its consideration. The possession of it by Saxe will be as consistent with the presumption that it was surrendered to him because void, as that it was given up upon payment. If he paid anything, the testimony was ’ within his reach to show how much; and we will not presume anything in his favor when he neglects to produce such evidence.
The Court below erred in refusing to charge as severally requested, and the judgment must be reversed, and a new trial ordered.
Concurrence Opinion
concurred on the ground that there was no proof that Saxe ever paid any money on the note. On the other points they expressed no opinion.
