Babcock v. Thompson ( 1826 )

Parker C. J.

delivered the opinion of the Court, to the following effect. The ground' of this action was money lost at gaming, and by foul play. It was objected at the trial, that the plaintiff’s particular could not lead the defendant to think this to be the ground, and the judge supposed the plaintiff was going to amend. That, however, was not done, and the question now is, whether the particular was sufficient, and whether the nonsuit was rightly ordered.

We consider the objection to be well founded. A particular should give as much information as a special declaration, though without the form.¹ Telling the defendant that the action was for bankbills, gave him no information that would aid him in making his defence. This mode of proceeding is of recent origin here, and it seems to be so in England. It was found to be necessary, in consequence of the remedy by action for money had and received being made so common. There is no reason tvhy the same rules should not be applied to it Here as iu England ; and if it is insufficient, it must be attended with the same consequences. Undoubtedly it should be amendanle, like a declaration.

The question then is, whether the nonsuit was proper. A nonsuit should not be ordered without giving the party an opportunity to rectify a mistake. An insufficient declaration will be a ground of nonsuit, unless the plaintiff moves to amend and obtains leave. So in regard to a bill of particulars. In the present case, as there was a mistake, the plaintiff thinking his particular sufficient, we might yet allow him to amend on more strict terms, if it would be of any avail.

But the Court are of opinion that the action cannot be maintained. We have no doubt, that according to the general policy and laws of this commonwealth, all gaming is unlawful;¹ and the plaintiff cannot maintain his action, where he is obliged to show his illegal act as the foundation for a recovery. This was pretty fully considered and settled in Worcester v. Eaton, and we see no reason now to change the opinion there expressed. Where a party acts illegally, he is to suffer the loss of his money as the consequence, if the money is sought to be recovered, except where he may have a remedy under the particular 'provisions of some statute. Here is a case of gaming accompanied with cheating. Clearly if the gaming had been fair, the law would give no remedy. The only question then is, whether the fraud will alter the case. We think it will not. If a man thus voluntarily puts himself in a condition to be cheated, through his illegal act he cheats the government, and the other person cheats him, and they must be left to settle the affair between themselves.

It was intimated that an executor might recover, though the testator himself could not; but we see no authority for the distinction ; and it would be an encouragement to gaming, if a man might kill himself, and thereby give his executor a remedy. That the assignees of a bankrupt may recover money lost at play, results from the statutes of bankruptcy ; and in the case of Brandon v. Pate, where that point was decided, it is said that an executor could not bring the action. On general principles, and by the policy of the law, the rep resentative is not to recover back the penalty which the losei may be said to have paid for his transgression.

Motion overruled.

1 See Howe’s Pract. 413 to 416

1 See Revised Stat. c. 50, § 12 to 19.