Davis v. Orme , 36 Ala. 540 ( 1860 )

STONE, J.

In refusing to receive evidence of general. reputation that Julian Davis was the wife of James Davis, the circuit court did not err. That court went quite as far in receiving evidence on this point as the- law allows, 1 Greenl. Ev. § 107; Shep. Dig. 561, §§101, 103.

[2.] Neither did the court erf in receiving evidence of the admissions of James Davis, made after the terms of the bet were agreed on, and before the race was. decided, that he had no interest, in the bet. Mrs. Davis’ right to recover depends on the establishment by her of the fact, that James Davis, her husband, had lost, -and Mr. Orme had won, money which he, Orme, received. - To make out her cláim, she must show that, before and up to the time of the race,-Mr. Davis had money, which, after the race, went, to Mr. Orme. Claiming title through him, it necessarily follows, that whatever he said in disparagement of his title, pending the time during which she must and does assert he had title, is legal evidence against her. Thomas v. Degraffenreid, 17 Ala. 602; Head v. Shaver, 9 Ala. 791; Shep. Dig. 583, § 1.

[3.] The present action was brought under the last of the following two sections of the Code: “§ 1562. All contracts, founded in whole or in part on a gambling consideration, are void; and any person who has paid any money, or delivered any thing of value, lost upon any game or wager, may recover such money, thing, or its value, by action commenced within six months from the time of such payment or delivery.” “ § 1563. Any other person may also recover the amount of such money, thing, or its value, by action commenced within twelve months after the payment or delivery thereof, for the use of the wife; or, if no wife, the child or children ; and if no child or children, the next of kin of the loser.” v

It is contended for appellee, and the circuit court so ruled, that inasmuch as the wager in this case was made by Mr. Jones, assuming to act in the premises for himself; that Mr. Orme refused to engage in the race, or make the bet with Davis; and that Orme, when the race was agreed on, was informed and believed he was dealing with Jones, and not with Davis, — then, although the money wagered and lost may have belonged to Mr. Davis, and although the plaintiff' Julian may be the wife, of said James Davis, still this action can not be maintained.

Section 1562 of the Code declares all contracts, founded in whole or in part on a gambling consideration, to be void. The wager, while it remained a wager, and up to the time when the money was, after the race, delivered to Orme, was wholly void; and $200 of the money wagered, on the hypothesis assumed in the charge, was, for all purposes, the money of Mr. Davis, subject to his control and direction, and liable to be recovered by him in a suit therefor. Mr. Jones, as to the $200, was but the agent of Mr. Davis, subject to his varying lawful directions, no matter how frequently given; and hence, Mr. Jones, in no sense, became the owner of the money. If Mr. Jones had deposited that money in the hands of a third person, or, if he had casually lost the same, and it had been found by a third person, Mr. Davis could have maintained an action for its recovery. — Houston v. Frazier, 8 Ala. 81; Hitchcock v. Lukens, 8 Por. 333 ; Madden v. Smith, 3 Stew. 119; White v. Wood, 15 Ala. 358; Upchurch v. Norsworthy, ib. 705; Wilson v. Sargeant, 12 Ala. 778; Ivey v. Phifer, 11 Ala. 535; Allen v. Booker, 2 Stew. 21; Vandyke v. The State, 24 Ala. 81.

Although Mr. Davis was not known to Mr. Orme in the making of this wager, nevertheless it was his act. Qui facit per alium, facit per sc-. — English v. The State, 35 Ala. 428.

We think the facts supposed in the charge of the court could not have the effect of defeating this action. The evident policy of section 1563 of the Code was, that the wife, children, or next of kin, of one who had improvidently lost his property at the card-table, or on the racecourse, might re-possess themselves thereof. The law is a cobweb, if its purpose can be defeated by the flimsey subterfuge of having the wager made by one, with the moneys of another.

[4.] There is nothing in the argument that, inasmuch as the wager in this case was a gross sum of $400, and it is only claimed that Mr. Davis owned $200 of the money, therefore a separate action can not be maintained for the several interests involved. — Tankersly v. Childers, 20 Ala. 212; S. C., 23 Ala. 781; Smith v. Wiley, 22 ib. 396.

The judgment of the circuit court is reversed, and the cause remanded.