Brittain v. Duling , 54 Ky. 138 ( 1854 )

Judge Simpson

delivered the opinion of the Court.

We deem the evidence sufficient to establish the fact, that all the notes held by the plaintiff on the defendant, except the notes for $100 and for $3 25, were executed by the latter for goods sold to him by the former, whilst he was engaged in gaming, and which were advanced to him by the plaintiff for that express purpose. Consequently their payment cannot be enforced, as they come directly within the prohibition of the statute.

A man by the name of Newbee won from the defendant his horse, and obtained the possession of it from him. The winner agreed to sell the same horse to the defendant at the price of sixty dollars. The plaintiff was present at the time of this negotiation, and had full knowledge of the whole transaction. It was finally arranged among the parties that the plaintiff should execute his note to the winner for sixty dollars as the price of the horse, and the defendant should execute his note to the plaintiff for one hundred dollars, which was to be void provided he paid to the winner the note for sixty dollars, executed by the plaintiff. The notes were executed according to this arrangement, and the horse was re-delivered to the defendant.

2. D. lost liis horse atgaming, and gave his note for the value of the horse, and took him into possession. Held — that the noto vas not on good consideration, and not enforoible.

The note for sixty dollars has not been paid, either by the plaintiff or the defendant. The only question then is, can the plaintiff enforce the payment of any part of the note for $ 100. The determination of this question depends upon the liability of the plaintiff for the note of sixty dollars, executed by him to New-bee. If he be legally liable for the payment of it, he may have a right to compel the defendant to pay to him an equal amount of the note for one hundred dollars, as it was executed expressly for his indemnity.

These notes were executed before the Revised Statutes toolc effect, and their validity must be decided by the previous law.

By the act of 1833, (2 Statute Law, 758,) it was enacted, that if any person should win and receive any money, goods, lands or other thing of value whatever, the person losing might, at any time within five years after the payment of the property or thing so lost, sue for and recover the same, in any court having jurisdiction in like cases. The statute secured to the loser the exclusive right to sue for the property for six months next after it had been lost by him.

These notes were executed on the day the gaming occurred, or on the following day, and the horse which constituted the consideration upon which they were based, then actually belonged to the defendant. His right to it had not been divested, nor had the winner acquired any right or title therein. The sale of the horse by the winner to the loser, formed the whole consideration for the note of sixty dollars, executed by the plaintiff. This note, inasmuch as the winner had no right to the horse, which in law belonged to the purchaser, was executed without any good or valuable consideration, and its payment cannot be legaily enforced. If the loser had not acquired the possession of his property under the arrangement mentioned, he could have sued the winner, and recovered it by law; so that, in fact, the latter lost nothing by the surrender of the horse to the former. It follows, therefore, that the plaintiff, not being legally liable for the note of sixty dollars, has no right to compel the defendant to pay any part of the note for one hundred.

Wherefore the decree is affirmed.