Morgan Hudspeth v. William B. Wilson,

>From Surry.

XnavEit will lie for a judgment rendered by a Justice of the Peace, A judgment won at cards, and delivered to the winner, cannot be recovered back, under the act of 1784 (Rev. c. 284).

The case of Hodges v. Pitman (2 Law Rep. 394) approved by EIaii, Judge.

Trover, and after not guilty pleaded, the Jury returned the following special verdict: “ That the Plain- “ tiff was the owner of a judgment obtained before a roa- “ gistrate — that the Plaintiff and the Defendant played t( at a prohibited game, at which the Plaintiff staked the “ said judgment, which was Fairly won by the Defend- “ ant, and delivered to him by the Plaintiff — and that the “Defendant had received the amount of the judgment “ from the person against whom it was rendered.”

His Honor Judge Daniel, on the Fall circuit of 1828, gave judgment for the Defendant, and the Plaintiff appealed.

Bevereux & Winston, for the Plaintiff.

The Mtorneij-General, contra.

Hall, Judge.

The first question is, whether trove? 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, *373in which the Plaintiff has no legal interest. (Murray et al. v. Burling, 10 Johns, 172). 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 stran-. ger 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 éuo obligatorio ; and the scriptum suum is not inserted, to declare that the Defendant has converted the duty, or chose in action, which belonged to the Plaintiff, but to sbo\v, 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. Abr. (Trover, D) says, that other authorities, bedsides being jnore modern, seem to be the better opinion.

June, 1830.

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™ 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 (2 Law Repos. 394) it was held, that money won at 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 ibis case, the judgment won is personal estate, and may he transferred but it has not been transferred to secure or satisfy money which has been won. Therefore it is not *374within the words of the act. The judgment itself has been won, and on principle, if ¡none)' cannot, and ought not to be recovered back, I see no reason why any other p,.0perty should be recovered back.

I regret such a narrow construction of the act, but 1 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 parti" dpes criminis, falls short of furnishing a remedy, commensurate with the evils arising from gambling.

Per Curiam. — Let the judgment of the Court below bc affirmed.