
    Nichol vs. Batton.
    Where A, a constable, had won a horse race from B, upon which they had wagered $100, and upon the race being determined, B confessed a judgment for that amount, and deposited with A notes upon his partners in the race to collect and appropriate to the payment of the judgment, which judgmentB after-wards removes by certiorari and is discharged from: held, that the delivery of the notes was a payment of so much of the money upon the race, and could not be recovered back unless sued for in ninety days.
    If a person loose money or property at gaming, he must sue for the same in ninety days, or he is barred.
    The bill of exceptions in this case shows, that Nichol and Batton had a horse race for a wager of $100, and to secure the payment by the losing party, each had executed to the other his note for that sum. Batton lost the race, and confessed a judgment in favor of Nichol for the $100. Batton had several partners in the race, and as he had become responsible to Nichol for the whole amount, the other partners executed their notes to Batton for their respective shares of the sum lost.— Batton delivered these notes to Nichol (who was a constable) to be by him collected, and agreed that when collected, he should retain the money in so much satisfaction of the judgment for $100 in his favor against Batton. Afterwards Batton obtained a certiorari, and re.' moved the cause of Nichol against him, for the $100, into court, where there was a judgment in his favor, on the ground that the note was given for a gaming transaction, and was void. Nichol went on and collected the notes put into his hands, amounting to seventy or eighty dollars, and retained the money. After the money was collected on the notes by Nichol, Batton moved against him as constable, and his securities, for the money so collected. This motion was commenced in the county court of Smith, near three years after the notes had been delivered to Nichol. The county court gave judgment for Batton, which was affirmed in the circuit court on appeal, and Nichol now prosecutes his writ of error to this court.
    
      Wm. A. Wade, for the plaintiff in error.
    1. The court should have empannelled a jury to try the facts above stated. Amd. Con. U. S. Art. 7. “In suits at common law, where the matter in controversy shall exceed $,‘20, the right of trial by jury shall remain inviolate.” It was important to ascertain whether the money had been paid to Nichol more than ninety days before the motion was commenced, on a judgment. The mat-tei in controversy exceeded $¡20; the right of trial by jury was not preserved, but was, on the contrary, violated.
    2. The proofs in this cause did not authorize a judgment for plaintiff; notice was given 15th November 1831. The receipt shows that the notes were paid over to Nichol 29th or 30th of December 1828, and 3d January 1829, which was near 3 years before the motion was commenced. By the common law, where money has been paid on a gaming contract, it cannot be recovered back by the loosing party. 3 Jac. Law. Die. 162. 4 Bl. Com. 172. 2Yentr. 175. Thus stood the common law until the statute 9th Ann, ch. 14, which enacted, that where any person at any time or sitting should lose ten pounds at play, he might sue and recover it back, provided he would do so in three months. 4 Bl. Com. 172. 4 John. R. 439. 3 Jac. Law. Die. 163. In New York and other states, the common law has been so understood and adjudged, and the courts have refused to assist the party in recovering a bet, where the money and property has been fairlypaid and delivered. M’Cullun vs. Gourly, 8 John. R. 147. Yates vs. Foot, 12 John. R. 1. See also 1 East, 98: 8 Term R. 75: 2 Com. on Con. 120. In New York, by express provision of the statute, a party may recover back money which he has lost on a game at hazard or a horse race, if he will sue in a given time, which time is fixed by statute; but in no other cases of wager where the thing has been paid, can he recover it back. 8 John. R. 147. 12 John. R. 15. Our act of 1799, ch. 8, is almost a literal copy of 9 Ann, ch. 14. They both enact, that notes, bills, bonds, mortgages, &c. founded on a gaming contract, shall be absolutely void. The only material difference is this: By 9 Ann, the party losing and paying over, cannot recover it back, unless he has lost ten pounds at one sitting, which must be sued for in a fixed time. By our act of 1799, he is allowed to recover any amount so paid, if he will sue for the same within ninety days. All the acts passed on the subject were in alteration of the common law; and the party wishing to take advantage of the acts, must bring his case within the provisions thereof. 12 John. R. 15. Bat-ton cannot therefore recover, because he did not commence his suit within ninety days.
    3. By our act of 1799, above cited, all contracts, notes, &c. founded on a gaming consideration, are void, and cannot be enforced. This whole transaction is polluted by being founded on a gaming consideration. The parties from whom Nichol collected the money were partners in the $> 100 race with Batton, and gave the notes which Nichol afterwards collected from them to Batton, and received for them no consideration, except that they hoped Batton would win the race. Nichol, Batton, and Batton’s partners, from whom Nichol after-wards collected the money, were all in pari delicto; they were all concerned in the turpitude; and where that is the case, neither will have the assistance of law to recover the profits of his own illegal conduct. 3 Ter. R. 266. 8 Term Rep. 575. 3 East, 222. Doug. 470. 1 Boss, and Pull. 296. By our statute, the notes given Nichol by Batton were not only voidable, but absolutely void; if so, Batton cannot recover from Nichol their amount. If the notes given Nichol were void, as they clearly were, the persons who executed them could have taken acL vantage of the statute, and avoided payment; if they paid them, they had a right to their action against Ni-chol to recover back the amount. Batton would not have a right to such recovery. If Batton can recover in this motion, the persons from whom Nichol collected the money, can sue him and recover the amount, and subject him to pay it twice.
    4. If a contract has its origin in fraud and deceit, it will never be enforced in favor of a party who has partaken of, or assisted in the fraud and deception. As if a deed is made to defraud creditors, it is void as to them, but will be enforced against the parties. Cro. Jac. 271. 2 Freeman, 182. If Batton is allowed to recover in this case, he is permitted to take advantage of his own wrong, and commit a gross fraud upon Nichol and the other parties concerned in the transaction.— Without having paid one dollar, he will recover seventy or eighty dollars, and thus practise a fraud upon those concerned. The court is thus called on to assist an individual in profiting by a transaction in which it is shown that he is a party to the gambling; that he has not paid out one dollar, and that he has acted in bad faith towards all concerned with him.
    5. The note given by Batton to Nichol, and the notes given Batton by his partners, formed one transaction.— When the race was won by Nichol, the note Batton had given him was void; the notes Batton’s partners had given him were also void, but in discharge of. the debt to Nichol, Batton passed him the notes of his partners. If Batten’s partners in the race thought proper to pay Ni-chol their respective portions of the losing, Batton has no right to complain, or ask Nichol to refund it to him. If it were permitted Batton to recover, it would be a recovery without consideration, which the law will not admit. I Wh. Sel. 32.
    6. This motion is in the nature of an action on the case, and is therefore an equitable action. In such actions “the plaintiff must recover upon the justice and conscience of his case, and that only.” “It is in the nature of a bill in equity, and in effect is so.” 1 Ch. PI. 432. Burr. 1353. 1 Wilson, 45. Batton has no equity in the case; he has paid nothing, and is insisting on a claim which originated in gaming, and can only be consummated in fraud. He that would have equity, must do equity? and should come into court with clean hands.
    7. Where parties have mutually assisted in a gaming transaction of their own consent; where they are parti-ceps criminis, a court of justice will not interfere between them, and more especially it will not assist one in defrauding the other. 12 John. R. 15.
    
      Wm. Owens, for the defendant in error.
    It was unnecessary to have a jury, when it is expressly admitted, that the f 100 judgment confessed as aforesaid, has been reversed by proper authority; so that if the money had been actually paid, (which was riot the fact) yet the reversal of the judgment operates a restitution, and thereby renders Nichol liable to pay the money forthwith. See 1 Chitty, 25, 341: 2 Starkie’s Ev. 116.
    But it is said, that these notes put into the hands of the constable, Nichol, had been given to bet, and were void, and therefore Nichol could not be compelled to pay over said money; which is answered, that the notes were not bet or given to bet but say they had been won by Batton, yet if Nichol took them as the agent of Bat-ton, and collected them as such,it does notlie in his mouth to make the objection, for he has recognized Batton’s right to said money; it was by force of Batton’s right that he got possession of it; he took it, and holds it for Batton’s use. See Tenant vs. Elliot, 3 Bos. and Pull. 1 Gould’s Espan. Nisi Pri. 24,181. 2 Starkie’s Evidence 120-1.
   Green, J.

delivered the opinion of the court.

We consider the delivery of the notes by Batton to Nichol, to he a payment in part of the $100 lost on the race. The record shows that it was so expressly agreed by the parties. The act of 1799, ch. 8, sec. 4, provides, that where money or property may be lost at any game of hazard, or on horse racing, and the party losing shall pay or deliver the same, or any part thereof, the person so losing and paying or delivering the same, shall have a right, within ninety days thereafter, to sue for and recover. By the common law, where money has been paid on a gaming contract, it could not be recovered back by the losing party. Our act of 1799, ch. 8, following the act of 9 Ann, ch. 14, gives the right, within ninety days after the payment, to recover back. The right of action cannot be extended beyond the time here specified.-— This court, in the case of Johnson vs. Cooper and Crosswhite, at Jonesboro’ 1831, recognizes this 4th section as containing a statute of limitations to the actions given by it. A suit therefore cannot be maintained to recover back money or property paid on a gaming contract, unless brought within ninety days after such payment. That-the judgment in favor of Nichol for the flOO has been reversed, can make no difference. The pay. ment had been made long before, of money lost upon a gaming contract; and this, whatever may be its form, is in substance a suit to recover it back. The judgment must be reversed.

Judgment reversed. 
      
       2 Yerger's Rep. 524.
     