RUSSELL SCOTT, Appellant, v. MORGAN COURTNEY, Respondent
Scott v. Courtney
RUSSELL SCOTT, Appellant, v. MORGAN COURTNEY, Respondent.
RUSSELL SCOTT, Appellant, v. MORGAN COURTNEY, Respondent.
Gamins Debts not Recoverable. Money won at a public gaming table is not recoverable by action, in this state.
Statute Licensing Gaming only Protects from Criminal Prosf,cction. The statute licensing gaming, (Stats. I860, 119) does not change the old rule of law that money won at a public gaming table is not recoverable by action ; it does not pretend to do more than protect the keeper of a public gaming house from criminal prosecution when a proper license is'procured.
Appeal from the District Court of the Seventh Judicial District, Lincoln County.
.The facts are stated in the opinion.
Ashley, Thornton ¿f- Kelley, for Appellant.
At common law, originally a special indebitatus assumpsit might be maintained for money won at gaming; for the contract was not •unlawful in itself, and the winner venturing his money was a sufficient consideration to 'entitle him to the action. Burling v. Frost, 1 Esp. 235 ; 2 Bacon’s Abridgement, 450; Bryant v. Mead, 1 Cal. 441. Afterward it was held that money won at a common _gaming house by the keeper could not be recovered, because gaming under such circumstances came to be considered contra bonos mores, and against public policy. The question here is, whether the dealer of a faro game, licensed according to the law of this state, can recover from one who bets at his game on credit, loses, and refuses to pay the sum lost.
The license by its terms authorizes the licensee to carry on the game of faro. Stats. 1869, 119, Sec. 3. The right given by law to deal the game includes and carries with it the right to hold what is won, and to collect what is won where payment is refused. By licensing and authorizing it, and taking money from the game for the public use, the legislature has determined that it is not contra bonos mores, and has provided expressly that it shall not be criminal.
J. C. Foster, for- Respondent.
I. By the terms of the statute to restrict gaming, (Stats. 1869, 119, Sec. 3) the legislature has specially declared its intention, which was to protect any person having a license from criminal prosecution, and nothing more. ■ This declared intention precludes any other interpretation as to its effect of the statute.
II. If there were any doubt as to what effect the legislature intended to give to a license, we have the authority of the Supreme Court of California, rendered oh a statute similar to our own, for saying it only intended to,protect parties who keep a game from criminal prosecution. Bryant v. Mead, 1 Cal. 441; Carrier v. Brannan, 3 Cal. 328.
By the Court,
Lewis, C. J.:
The facts of this case, as found by the judge below, are: " That during the month of April, a. d. 1871, the plaintiff kept a public gambling room in the house of one M. M. McClusky, in Pioche City, and had therein a public game known as £ faro,' which he, the said plaintiff, dealt, the same having been licensed according to law. That in the fore part of said month of April, the defendant lost at the said game, kept and dealt by said plaintiff, during one evening, the sum of six hundred dollars; and not having the money in his possession, agreed to pay in a few days; that said amount consisted of checks given by said plaintiff to defendant, to play at the game; and that, in a few days thereafter, and during the same month, the defendant paid to the plaintiff the sum of five hundred dollars of the amount lost as aforesaid, leaving the sum of one hundred dollars still unpaid; that at the time the said sum of five hundred dollars was paid, the defendant again played 'at said game dealt by the plaintiff, and during the evening lost the sum of two thousand dollars. That the sum of twenty-one hundred dollars, lost as aforesaid, is the money for which this action is brought." Upon these facts judgment was rendered against plaintiff, from which he appeals.
Is money won at a public gaming table recoverable by action in this state? is the only question raised upon the record. ' We con- elude it is not. Although, at the common law, gaming, when practiced innocently and as a recreation, the better to fit a person for business, was not in itself unlawful, still, the reluctance and loathing of the English judges to sustain even contracts growing out of .such gaming is manifest in every decision announced upon the subject; and the result is, that the right of recovery is burdened with so many restrictions, that at present it can hardly be said the right exists at all. In the United States, wagering and gaming contracts seem to have met with no countenance from the courts, and consequently in nearly every state they are held illegal, as being inconsistent with the interests of the community, and at variance with the laws of morality. 2 Smith's Leading Cases, 343.
But at common law all public gaming houses were nuisances, not only because they were deemed great temptations to idleness, but also because they were apt to draw together great numbers of disorderly persons. 4 Bacon's Abridgement, 451. It would'therefore seem to follow, that money won in such house by the keeper could not be recovered, because everything connected with or growing out of that which was illegal partook of its character, and was tainted with its illegality. So gaming, which might be innocent itself if carried on elsewhere, would become illegal by being conducted in a place which was condemned by the law. This is an undoubted principle, applicable not only to cases of this nature but to all cases of analogous character. Thus in Badgley v. Beale, 3 Watts, 263, it was held that a marker at an illicit billiard table, who kept the games and received the money bet by the players, was not entitled to recover wages from the owner of the table, the contract of employment being affected with the illegality of the business in which he was employed. There is no doubt whatever that, upon this principle at common law, money won in a public gaming house would not be recovered by the keeper.
Does the statute of this state then, licensing gaming, change the old law in this respect ? We think not. The statute does not pfetend to do more than to protect the keepers of public gaming houses from criminal prosecution when a proper license is procured. Section 2, declaring that, " The said license shall protect the licensee and his employee or employees against any criminal prosecution for dealing and carrying on the game mentioned," thus appearing to restrict the effect of the license to simple protection of the persons engaged against punishment, and leaving gaming houses in all other respects precisely as they were formerly, civilly subject to all the disapprobation and restrictions of the common law. In Bryant v. Meade, 1 Cal. 441, it was held that a sum of money won at a public gaming house kept by the plaintiff could not be recovered by him; and the court were of the opinion that a license to keep such house conferred no right to sue for a gaming debt, but constituted a protection solely against criminal prosecution. So, also, it was held in Carrier v. Brannan, 3 Cal. 328. If the law in this state did not, in express terms, limit the effect of the license, we would not be inclined to place this construction upon it; but its language, it seems to us, is too jolain to admit of any other interpretation.
That the statute of this state expressly authorizes the persons having a license to carry on the game designated, manifestly makes no substantial difference between it and the California act, under which the decisions above referred to were rendered, for it will not be denied that the California license as fully and completely authorized the game licensed, as do those issued under our statute. Clearly, the very object, arid probably the only effect, of the California license was to authorize the game licensed. If they did not authorize the game, what was the object of the license at all ? It is palpable there is not, in this respect, any distinction between the statutes. The decisions are therefore directly in point.
Let the judgment he affirmed.