
    Thomas Carsan against Elijah Rambert.
    
      Columbia,
    
    1804.
    The value of a horse lent to stake at a gaming-table, may be recovered by the Bender from iPtataaUy 'Te’ livered over, tlioughnocon-tract is good other*property lost at play.
    CASE, on a summary process, in Edgefield district» Decree for defendant. Motion to set aside this decree.
    This was a case in the summary jurisdiction of the court of common pleas, for the value of a horse, 70 dollars, lent by Carsan, at a tavern where gaming was going forward, to stake on a game of cards. The defendant lost the game, f and the winner took the horse oír, by the consent ot both the parties to this suit. Some time afterwards, the plaintiff ap-pjje(j t0 defendant for payment of the value of the horse, which he estimated at 70 dollars; but defendant refused to pay it, alleging that it was a gaming debt, and that he was not bound in law to pay it. Whereupon he brought this suit.
    Upon the trial, all the facts were admitted, and the case turned upon the legal responsibility of the defendant to pay this debt. '
    For the defendant it was said, that the lender was pre-ient and saw the game going forward, and lent the horse 
      for the express purpose of staking on the game, as all His money was gone; which was an encouragement to the defendant to go deeper into the play, and therefore that this ought to be considered as a gaming debt, and put upon the footing of money lost at play, as much as if the plaintiff had won so much from the defendant himself. And it is blear that all contracts and securities for money lost at play, were void both by the British statutes made of force in this state, and by our own act of assembly.
    On be'. -'5 of the plaintiff it was said, that this was not only a very dishonourable, but a very unjust, conduct on the part of the defendant, to endeavour to defraud the plaintiff out of property he had generously lent him, to enable him to retrieve his losses in a run of bad luck which he had experienced in the course of the day; and that neither the British statutes, nor our act of assembly, had any bearing upon a loan of this kinds It was admitted that if a man. loses money at play, and does not stake it down, or deliver It over to the winner, or if he stakes at ha sard any other species of property which is not immediately delivered up to the winning party, that all promises, contracts, agreements and securities, made or entered into for payment or delivery of the same at any future time or period, are made absolutely null and Void by the statutes and acts against gaming; so that no action can ever be maintained ¶ them.
    But if such money is actually paid or delivered up at ■"he time to the person winning, there is no law to prevent him from taking it off; nor is there any law to prevent a "bird person not concerned in the play, from lending mo-iey to either of the gamesters, at the time and place of play* That this, therefore, could not be considered as a gaming debt, or as property lost at play, but a loan made to defendant in time of .wed, and in the hour of difficulty j , and as such, he ought in honour and good conscience, ta pay the plaintiff the value of the horse so lent him.
    The presiding Judge, after hearing counsel, thought that this was a case which came under our act of assembly, passed in 1802, which declares all such games at taverns, inns and public house's, &c. unlawful; and indicts a fine on persons playing and betting, and on the tavern-keepers permitting such games to be played in their houses. And it authorizes and enjoins it as a duty on all magistrates, t® bind over all such parties so offending, to answer for such offences against the public morals, at the next court of ge¿ lieral sessions of the peace, &c. Viewing it, therefore, as a public offence, and considering the plaintiff as participating in it by lending property to bet at this unlawful game, he gave a decree for the defendant.
    This, therefore, was a motion to rescind and set aside-this decree, as against law.
   The Judges,

having maturely considered the case, were " of opinion, that the decree was not warranted by law, and that it should be set aside. For although the act of 1802 prohibits gaming at taverns and inns, &c. and inflicts a penalty on the parties concerned in gaming and betting, as well as on the tavern-keepers, &c. yet it is silent as to all contracts made by other persons, though at the time and place where such gambling is going on. If then there was no law to prohibit the plaintiff (who does not appear to have been concerned in playing or betting) from lending, or the defendant from borrowing, the contract, as between them, was fair and binding on both sides.

The British statutes made of force in this country against gaming, and our own act of the legislature, only declares, all gaming contracts, and securities for the performing such contracts at any future time, void, and of none effect. They are all silent as to the money lost or won at the time, which is delivered to the winner; and also as to money lent by third persons,- or property loaned to either of the parties; though at the time and place of play.

That in the present case, the horse loaned to the defendant might well be compared to money lent to play with, which, in the case of Robinson and Bland, 2 Burr. 1082. was determined to be recoverable. They said they could see no difference between the two cases.

Rule for setting aside the decree, and for a new trial, made absolute.

All the judges present.  