#### WILLIS WEBB vs. JAMES FULCHIRE.

June 1843

Where a man is cheated ont of his money, though it is in playing at a game forbidden by law, he may recover back what he has paid from the who practised .the fraud on him.

Appeal from the Superior Court of Law of Onslow County, at Spring Term, 1848, his Honor Judge Bailey presiding.

This was an action of assumpsit, brought by the plaintiff to recover the sum of forty dollars. The jury found a verdict for the plaintiff1, subject to the opinion of the court on the following facts. The defendant had three acorn cups and a white ball, which he placed under one of the cups in the presence of the plaintiff1. The defendant proposed to bet the plaintiff twenty dollars, that he could not tell which one of the three cups the ball was under. The plaintiff bet him that he could, and thereupon staked twenty dollars. The plaintiff pointed to the cup, and bet that the ball was under that one. The defendant raised the cup and the ball was not there. The money staked was then paid over to the defendant as being won by him. In the same way the defendant won twenty dollars more, which was in like manner paid over to him. The court was of opinion that the plaintiff .could not maintain this action, and set aside the verdict and entered a no.nsuit. From this judgment the plaintiff appealed.

No counsel appeared for the plaintiff in this court.

J W. Bryan for the defendant,

to shew that money paid ¿o a winner on an illegal wager could not be received back. *486cited Howson v Hancock, 8 Term Rep. 575. Hostelow v Jackson, 15 Eng. C. L. Rep. 205. Thistlewood v Gracroft, 1 fil. & S. 500. Anon. 2 Hay. 231. Hodges v Pitman, 2 Car, L. Rep. 394.

RijffiN, C. J.

It is not denied that the law gives no action to a party to an illegal contract, either to enforce it directly, or to recover back money paid on it after its execution. Nor is it doubted, that money, fairly'lost at pfay at a forbidden game and paid, cannot be recovered back in an action for money had and received. Bnt it is perfectly cer- . tain, that money, won by cheating at any kind of game, whether allowed or forbidden, and paid by the loser without a knowledge of the fraud, may be recovered. A wager won by such undue means is not won in the view of the law, and, therefore, the money is paid without consideration and by mietake, and may be recovered back. That, we think, was plainly this case. The bet was, that the plaintiff could not tell, which of the three cups covered the ball. Well, the case states that the defendant put the ball under a particular one of the cups, and, then, that the plaintiff selected that cup, as the one under which the balL was. Thus we must understand the case, because it states as a fact, that the defendant “ placed the ball under one of the cups,” and that the plaintiff “pointed to thee up,” that is, the one under which he had seen the ball put, as being that which still covered it. We are not told how this matter was managed, nor do we pretend to know the secret. But it is indubitable, that the ball was, by deceit, not put under the cup, as the defendant had made the plaintiff believe, and under which belief he had drawn-him into the wager; or that, after it was so placed, it was privily and artfully removed either before or at the time the cup was raised. If the former be the truth of the case, there was a false practice and gross deception upon the very point, that induced the laying of the wager, namely, that the ball was actually put under the cup. For, clearly, the words and acts of the defendant a-monntto a representation, that such was the fact; and in*487deed the ease states it as the fact. Hence, and because we cannot suppose the vision of the plaintiff to have been so illuded, we rather presume the truth to be, that the ball was actually placed where the defendant pretended to place it, that is to say, under the particular cup which the plaintiff designated as covering it. Then the case states that the defendant raised that cup, and the ball was not there : a physical impossibility, unless it had been removed by some contrivance and slight of hand by the defendant. Unquestionably it was affected by some such means; for presently we find the defendant in possession of the ball, ready for a repetition of the bet and the same artifice. Such a transaction cannot for a moment be regarded as a wager, depending on a future and uncertain event; but it was only a pretended wager, to be determined by a contingency in shew only, but in fact by a trick in jugglery by one of the parties, practised upon the unknowing and unsuspecting simplicity and ere-' dulity of the other. Surely, .the artless- fool, who seems to have been alike bereft of his senses and his money, is not to be deemed a partaker in the same crime, in pari delicto, with the juggling knave, who gulled and fleeced him. The whole was a downright and undeniable cheat; and the plaintiff parted with his money under the mistaken belief, that it had been fairly won from him, and, therefore, may recover it back.

The judgment of nonsuit is reversed, and judgment for the plaintiff according to the verdict.

Per Curiam. Judgment below reversed and judgment for the plaintiff.