42 Ky. 93 | Ky. Ct. App. | 1842
delivered the opinion of-the Court.
Bruce, as administrator of Pope, having recovered a judgment against McKinney and his sureties, on a note executed by them, McKinney filed his bill alledging that
Should this even be deemed a loan by Pope to McKinney, made for the purpose of enabling him to pay the amount previously lost, to McAdams, there is certainly no statute.which makes such a loan illegal, or which prohibits a recovery by the lender. And a Court of Equity which refuses to avoid a security given for money loaned for the purpose of being staked at the game, would find no ground in its own principles for avoiding a security given for money loaned to paya debt founded on previous gaming. We regard the transaction, however, not as a loan but as a purchase of the note held by McKinney— and as it does not appear that Pope had any interest in the debt to McAdams, either when it was lost at gaming or when it was paid, we do not perceive that his purchase of the note, though made with the view of enabling McKinney to pay the debt, should be vitiated by the nature of the consideration on which that debt was founded. Nor in this view of the case has McKinney any right to claim any reduction of the judgment, on the ground of the rate of discount allowed on the purchase of the note.
It is further alledged in the bill, that the note on which the judgment was obtained includes usurious interest calculated on the amount of the previous note, in renewal of which it was executed; which being admitted in the answer, there is nothing left in making a disposition of this part of the case, but to calculate the legal interest upon the previous note up to the time when the last note fell due, and by adding it to the principal of the previous note, fix the sum for which, with interest thereon from the time when the last note fell due, the judgment, if there were no other ground for reducing its amount, should have been effectual.
But the principal question in the case is, whether McKinney has a right, in equity, to set-off against the judgment the sums lost by him and paid to Pope, and which have no connection with the judgment or the note on which it was .founded. And this question resolves itself into the inquiry whether, as' the law now' stands, a Court of Equity will or can entertain a bill to recover money lost at gaming? We say as the law now stands, because the act of 1833, (Statute Law, 758,) was obviously intended to effect, and has effected a radical change in the law on the subject, and in the rights of the parties to a gaming transaction. And this is the first case in which the right of the loser to sue in Equity for money lost and paid, since the passage of that act,' has come directly in question in this Court.
By the common law, wagers were valid contracts, legally enforcible, and the Court of Equity did not interfere, except on the ground of some hardship or imposition in the particular case. And even after gaming contracts of a certain description were prohibited, relief was refused in equity after payment of the money by the loser, on the ground, (as stated by Lord Talbot in Bosanquet vs Dashwoood, Cases Temp. Talbot, 41,) that both parties are criminal. And if two persons will sit down and endeavor to win of one another, and one pays the money, if after payment he cannot recover it at law, a
In the case of Downs vs Quarles, &c. decided in this Court before the enactment of the statute of 1833, the bill did not make out a case authorizing a recovery under either of the statutes of 1798 and 1799, then in force, which gave the right to recover money lost at gaming. And the Court, after showing this to be the case, state the enquiry to be, “whether equity will decree money to be restored which has been paid on a gaming contract, to recover which the statutes afford no remedy.” This question was decided in the negative, on the ground of the general principle, that the parties being equally guilty, the one who had fulfilled the contract by payment, should not be aided in recovering the money back, according to the maxim, in pari delicto potior est conditio defendentis. And although it was admitted that the statutes against gaming should receive such construction as would best suppress the mischief, it was doubted whether this would most surely be effected by compelling the winner to disgorge his illegal gains, or by permitting the loser who had paid, to abide by his loss. Wherefore, it was concluded, that neither a Court of Law nor of Equity should interfere between gamesters, further than to permit the possessor to retain what he had, and to enforce the penalties imposed by statute.
In the case of Downs vs Quarles, the bill alledged the necessity of a discovery, which possibly might have been ■deemed a ground for taking jurisdiction, if there had been a legal remedy under the statutes. But the question formally stated by the Court, after showing that there was no remedy under the statutes, seems to relate to the general power and jurisdiction of a Court of Equity to decree the restitution of money paid on a gaming contract, which question is unaffected by the mere fact that a discovery might or might not be necessary in the particular case; the solution of the question is made to turn, not upon the want of jurisdiction in the Court to decree the money to the loser, if he ha-d been equitably entitled to it, but upon the absence of a right to recover, arising from the equality of his guilt, and upon the doubtful propriety,
That under the statutes then existing, this equality of guilt was properly imputed to the two parties, and that under those statutes there may have been giound to doubt as to the propriety of the winner’s being compelled to restore his gains to the loser, as a means of enforcing the purpose of these enactments, need not now be questioned. Penalties had been imposed in certain cases, upon both winner and loser, and although by the acts of 1798 and 1799, an action was allowed to recover money won and paid under particular circumstances, the recovery was allowed rather on the ground of a forfeiture than of any recognized right in the loser, or from any favor to him. By both statutes any body might sue; the exclusive right being reserved to the loser by the act of 1798, for ten days only, and the action itself being limited to three months from the time of payment; while by the act of 1799, though the action was left to the general limitation, no exclusive right was reserved to the loser, and one half of the recovery, by whomsoever the suit might be brought, was appropriated in aid of the county levy. And each of these acts prescribes the form of the remedy by which the recovery is to be sought.
In none of these statutes does the Legislature seem decidedly to interpose in behalf of the loser, as one who, from the circumstance of being the loser, is presumed to have been oppressed, defrauded, or imposed on. In none of them is the policy of restoring the loser to his money, decidedly asserted as a means of suppressing the mischief of gambling; and in these respects we think the act of 1833 has introduced new principles which have at once changed the attitude and rights of the parlies, and determined in favor of the propriety of restoring the lost money to the loser. The preamble of that statute declares the inefficiency of the laws then existing, and the first provision for the more effectual prevention of the mischief, is to authorize a suit by the loser, his heirs or executors, at any time within five years after the payment of the money or other property lost, and if he do not sue
As a question of mere reason and expediency, we •should have little doubt that a recognition of the Tight of the loser to be restored to his money or property lost at gaming, would tend greatly to the-suppression of ■ gambling. As a question of construction of the statute of 1833, we have no doubt that the recognition of this right- was adopted in that statute as a means of prevention more efficient than the forfeitures and popular actions under the •previous acts. And the individual right being thus established by law as a means of-suppressing an enormous public mischief, and of restoring to an individual that •of which he has been illegally, if not fraudulently deprived, we feel bound,-in construing the statute so as best to ■suppress the mischief, to construe it so as best to support ■the right which it has established -as a means of suppressing the mischief.
W-hatever then may have been the case prior to the statute of 1833, we are of opinion that since that act, the prohibition against gaming itself, and the laws for its sup. pression, are to be understood as having for their object in part, the protection of the person who may lose; that the act of 1833 especially intends to protect and relieve the loser, upon the presumption generally true, in fact, and which is established by the statute, that he has been ■defrauded, oppressed, orimposedon; that it intends t® relieve him by enabling him to reclaim that of which he bas been illegally deprived, and-that it looks to this right ■of reclamation, to the assertion -of which he may be impelled by much stronger motives than any which might operate on the public at large, as a powerful means of suppressing a mischief necessarily ruinous to many individuals, and deeply injurious to the body of society, The statute then, has not only removed all the objections to the granting of relief, by restoring the loser to his mo
With regard to the time within which the suit is to be brought, we are of the opinion, that the statute in referring to five years, should be construed as subjecting this remedy to the general limitation of five years, as applicable to suits upon simple contracts, and as placing the limitation on the same footing as in other cases. Whence it follows, that in case of the death of the party originally liable, the six months during which his personal representative is exempt from suit, is to be added to the five years as in other cases. It is sufficiently proved, that the intestate, Pope, had won and received six hundred dollars, on two occasions near each other, and both within five years and six months, and probably within five years before the filing of the bill; and that he, in partnership with another person, won and received four hundred dol
The Circuit Court having refused all relief, on the ground of the money lost and paid to Pope, and having also allowed too small a sum for the usury in the note sued on, by erroneously assuming that more was due when that note was executed than appeared to be due by the note, for the renewal of which it was given, therefore, the decree is reversed and the cause remanded with directions to render a decree perpetuating the complainant’s injunction as to all of the judgment injoined, except as to the sum of $1105 81, the aggregate amount of principal and interest due when the note sued on fell due, with interest on that sum from the 1st day of March, 1840, when said note was due, until paid, and the costs at law, and to dissolve the injunction with damages as to so much of said sum, with its interest and costs, as was due at the date of the injunction.