Hudspeth v. . Wilson

13 N.C. 372 | N.C. | 1830

FROM SURRY. DANIEL, J., on fall circuit of 1828, gave judgment for the defendant, and the plaintiff appealed. The first question is whether trover will lie in this case. Trover will not lie to cover a record, but it will lie to recover letters patent, being but the copy of a record. (Hardress, 111.) It lies for a bond, without alleging that it was due to the plaintiff. Wilson v.Chambers, Cro. Ca., 262. It also lies for a note, in which the plaintiff has no legal interest. Murray v. Burling, 10 Johns., 172. (373) It will lie against the finder of a bank bill, but not against his assignee. Anon., 1 Salk., 126. It lies upon a special property. A stranger may maintain it upon a special property by bailment, as well as the obligee himself. And a stranger, as well as the obligee, may declare in trover, ut de scripto suo obligatorio; and the scriptumsuum is not inserted, to declare that the defendant has converted the duty, or chose in action, which belonged to the plaintiff, but to show what sort of a deed it is which is converted. Arnold v. Jefferson, 1 Ld. Raymond, 275, S.C., 2 Sal., 654. It is stated in Watson v. Smith, Cro. Eliz., 723, that trover will not lie for a bond. But the author of Bac. Abra., Trover D, says that other authorities, besides being modern, seem to be the better opinion.

I think the principle to be extracted from authorities on this subject is that trover will lie upon a general or special property. The plaintiff had a property in the judgment in question, and therefore this action will lie.

The next question is whether in law the plaintiff is entitled to recover, it being a gaming transaction. The first section of the act relates to executory contracts, and declares that all such entered into to pay, deliver, or secure money or other thing won or obtained by playing cards or other games shall be void. In the last clause of the same section the transfer of property to satisfy or secure money so won is declared to be void. On the construction of this clause depends the present controversy.

In Hodges v. Pitman, 4 N.C. 276, it was held that money won by gaming and paid could not be recovered back, because it could not be considered personal estate transferred to satisfy or secure money so won. In this case the judgment won is personal estate, and may be transferred; but it has not been transferred to secure or satisfy money which has been won. Therefore, it is not within the words of (374) the act. The judgment itself has been won, and on principle, if money cannot and ought not to be recovered back, I see no reason why any other property should be recovered back.

I regret such a narrow construction of the act, but I feel myself bound by it as heretofore made. I think a more liberal construction, authorizing the recovery back of money and other property lost at gaming and delivered to the winner would better answer the end which the legislature had in view when they enacted it. Acting on the principle that the gamesters are each particeps criminis, falls short of furnishing a remedy commensurate with the evils arising from gambling.

PER CURIAM. Affirmed.

Cited: Cobb v. Cornegay, 28 N.C. 359; Teague v. Perry, 64 N.C. 41.