Jones v. President of the Mechanics Bank

| Md. | Dec 15, 1849

Martin, J.,

delivered the opinion of this court.

It is to be observed in this cause, that there is not a particle of evidence to be found in the record, from which the jury could find that the money in controversy, or, indeed, any money was won at play from the appellant, by Robert Perry. It was shown by the proof in the cause, as exhibited by the appellant himself, that the appellant and Perry played conjointly against the faro bank, with the money of the former, but that they did not play against each other. It is apparent, therefore, that the proposition argued at the bar, with respect to the question whether money lost at play can be recovered back by the loser, after it has been paid, in an action for money had and received, is a mere abstract point, upon which it does not become this court to express an opinion.

In the argument of this cause, the counsel for the appellant relied upon the two following propositions: First. That there was evidence in the cause to go to the jury, that the money deposited in the Mechanics Bank, by Perry, was the money of the appellant. Secondly. That there was evidence to go to the jury, that the said money was obtained from the appellant by a fraudulent conspiracy between Perry, Campbell and James, the two latter mentioned in the record as the keepers of a faro table.

We are satisfied, after a careful examination of the facts detailed in the bill of exceptions, that neither of the above positions can be maintained. Evidence was introduced by the appellant, showing that in (he month of July, 1845, he bor. rowed from various persons in Baltimore, large sums of money, and received from them checks for the sums loaned, on the Union Bank. But we look in vain in the record, for any testimony from which the jury could find that these sums were drawn by the appellant from the Union Bank, in bank notes corresponding in their denomination with those deposited in the Mechanics Bank by Perry; and not a single fact or circumstance was produced from which the jury could infer that the money borrowed by the appellant, from the’ different individuals mentioned in the exception, ever reached the possession of Perry. The same difficulty exists with respect to the second point made by the counsel for the appellant. No connection or association in the faro hank, or its profits, was shown to have existed between Perry, Campbell and James, the two latter being the keepers of the table. And it is impossible to discover in the record any fact from which an intelligent and rational mind could deduce the inference that the money in controversy was obtained from the appellant by a fraudulent conspiracy in" which Perry participated.

We find from the record, that the appéllee, at the trial of the cause in the court below, asked the court to give to the jury the following instructions: First. That there is no evidence to sustain the count for money had and received by the defen-' dant, for the use of the plaintiff. Secondly. That if the jury should believe, from the evidence, that the bank notes deposited by Perry in the Mechanics Bank, were won by the said Jerry from the plaintiff at play, yet the plaintiff cannot recover in this form of action.

We have already said that there was, in this case, a total failure of evidence upon the part of the plaintiff, and upon this ground the county court were clearly right in granting the defendant’s first prayer. They were correct, also, in rejecting the defendant’s second prayer. For, assuming that the case, as presented by the plaintiff, was entirely unsupported by testimony, it is obvious that the point raised by the defendant’s second prayer was merely abstract and speculative, and, as as such, should not have been entertained by the court.

Upon these grounds we shall direct the judgment of the court below to be affirmed. We desire, however, to be understood as intimating no opinion with reference to the various legal propositions raised and discussed at the bar. They are .not before us according to the view we have taken of the evidence in the cause, and any opinions we might express, with respect to these questions, could be regarded as no more than the mere dicía of the court.

JUDGMENT AFFIRMED.