Bryant v. Mead

By the Court-,

Bennett, J. The plaintiff was the keeper of a large public gaming-room in the city of San Francisco, in which the game of Faro was played. The defendant playing against the plaintiff as banker, at one of the Faro tables, lost the sum of four thousand dollars, and, not having the amount with him, gave the plaintiff two checks upon his banker; but, before the checks were presented, he countermanded the payment of them, and, when they were presented, payment was refused. This action is brought to recover the amount for which the checks were given, on the ground that, in such a case, an action could be sustained at common law.

No case was cited by the counsel for the plaintiff which goes to the extent of holding that money lost at a public table in a common gaming-room can be recovered, but the counsel relies upon the following doctrine laid down in Bacon"1 s Abridgment, (vol. 2, y>. 450,) “ that a person who wins money at gaming, “ may maintain a special indebitatus assumpsit for it; for the “ contract is not unlawful in itself, and the winner’s venturing u his money is a sufficient consideration to entitle Mm to the “ action.” But this general language should be taken in eon-[442]nexion with that which immediately precedes it, and with that which follows. In the paragraph preceding the one quoted, the following language is used : “ It seems that by the common “ law, the playing at cards, dice, Arc., when practised innocently “ and as a recreation, the letter to fit a person for business, is “not at all unlawful, nor punishable as any offense whatsoever.” And in a succeeding paragraph it is said : “ Also all common “ gaming-houses are nuisances in the eye of the law, not only “ because they are great temptations to idleness, but also be- “ cause they are apt to draw7 together great numbers of disor- “ derly persons, which cannot but be very inconvenient to the “ neighborhood.” And it is laid down by Blackstone, that gaming-houses are public nuisances, and may, upon indictment, be suppressed and fined. (4 Blackstone's Comm. 168; see also to same effect, Rex v. Rogier, 2 D. & R. 431; 1 B. & C. 117; Rex v. Taylor, 3 id. 502.)

In Petersdorff's Abridgment, (vol. 10, p. 228,) the principle is thus stated: “ By the common law7, the playing at cards, “ dice, &c., when practised innocently and as a recreation, “the better to fit a person for business, is not unlawful, but “when the playing is, from the magnitude of the stake, exces- “ sive, and such as is now understood by the term gaming, it is “ considered by the law as an offense, being in its consequences “ mischievous to society.” Olipliant, in his work on Horse .Races and Gaming, (p. 209; idth vol. of Zeno Library,) seta forth the same doctrine somewhat more at large, and the case there cited, in which Ch. J. Hale permitted the defendant, in an action for the recovery of a gambling debt, to imparl from time to time, without putting him to the necessity of pleading his defense, shows that, in Ins estimation, the action vsas, at least, an inequitable one, and such as a court of equity would enjoin. Judge Story, (1 dig. Juris, sec. 303,) says, “In regard to gam- “ ing contracts, it would follow, that courts of equity ought not “ to interfere in their favor, hut ought to afford aid to suppress “ them ; since they are not only prohibited by statute, but may “justly be pronounced to be immoral, as the practice tends to “ idleness, dissipation, and the ruin of families. Ko one has