
    *Robert R. Lear, Thomas Mead, Robert Barker, and Charles Stone v. John A. McMillen.
    1. The proprietors of a “faro bank” are jointly liable for money won and received by “ dealers,” or players employed by them in carrying on the business of the bank.
    2. In an action to recover such money, it is sufficient for the plaintiff to show" the aggregate amount of his losses, or of the excess of his losses over his winnings, between specified dates, without proving the amount and date of each particular loss, or the particular agent or proprietor to whom each sum was paid.
    3. The refusal of the court to give in charge to the jury an abstract proposition of law, is no ground for reversing its judgment.
    4. Where a verdict is excessive, and a new trial has been refused, judgment will be reversed unless a remittitur be entered for the excess.
    Error to the Superior Court of Cincinnati in general term.
    The original action was brought by defendant in error, in the Superior Court of Cincinnati in special term, to recover of plaintiffs in error $23,695, which he alleged they had won from him at the game of faro. The petition contained twenty-four counts, each alleging the loss of a specified sum, at a particular date, or between two specified dates, aggregating the sum of $23,695> aforesaid.
    The answer denied every allegation of the petition.
    
      The cause was tried to a jury, who found for the defendant in -error, and assessed his damages at $17,545.
    A motion for a new trial, predicated, in part, upon the ground that the verdict was contrary to law and evidence, was overruled by the court, and judgment was entered upon the verdict.
    A bill of exceptions, taken during the trial, embodies all the •evidence, as well as the charge of the court.
    The testimony consists mainly of that of the defendant in error. He says that plaintiffs in error kept a “faro bank,” assuming to be and acting as the joint proprietors thereof; but that the “ dealing,” ■or playing on behalf of the bank was generally performed by ■others, employed for the purpose. Occasionally, however, some of the proprietors were in the habit of dealing themselves, but not all of them. He does not know how they divided the money, or who ultimately got it. He says he lost, in all, $23,695, and won back $6,150. *He gives the various sums or particular losses that make up the aggregate of $23,695. Most of these he gives as losses on particular days, but some of them are the aggregate of losses, or the excess of losses over winnings, between specified dates, and were ascertained by counting his money at -the beginning and end of each period named.
    After the evidence had closed, the court were asked by plaintiffs in error to charge the jury as follows :
    “ First. Gaming is illegal; there can be no legal proprietorship of an illegal business; plaintiff can not, therefore, recover of defendants, or either of them, on the ground of their general proprietorship of the house or business carried on at Ño. 3 Baker ■street; he must show conclusively that they actually, received the money sought to be recovered; and is only entitled to a judgment for the amount so proved-.
    “ Second. Plaintiff must prove the date of each loss, and the amount of the same; he must prove by which of defendants the same was won, or by which of them the money was received; and he is only entitled to recover of defendant or defendants the amount proved to have been won or received by the defendant or defendants in question.
    “ Third. If the jury believe, from the testimony, that from and between May 1st and 5th plaintiff lost $500; from and between June 10th and 17th, plaintiff lost $3,590; from and between June 19th and 24th, plaintiff lost $2,050; and from and between July 10th and 15th, plaintiff lost $4,450, as testified to by plaintiff, and', the jury are unable to ascertain the exact days and the precise amount lost upon each of said days, then the plaintiff can not recover said amount. In other words, proof that plaintiff lost a gross amount between two different dates is insufficient to found a recovery upon; the date and amount of each loss must be proved.
    “Fourth. If the jury believe that the plaintiff has knowingly sworn falsely to any material fact or circumstance, it not only affects his credibility, but it is their duty then to reject and disbelieve his entire testimony.”
    Which instruction the court refused to give, and thereupon in- • structed the jury as follows :
    *1. “To establish the charge, it is not necessary to show that all and each of the defendants jointly received the different sums lost. If the defendants kept that house for the purpose of gaming — if they were joint proprietors of the establishment, and employed persons to deal the cards, or if any of the defendants ■ dealt at one time and the others at other times, still, if they were directly interested in the funds received and paid out, they are all equally liable as though they were all present and jointly received, the money lost.
    2. “ If the jury find that each of these defendants, from time to time, dealt these cards, and sometimes one received the money lost and sometimes the others received it; if they all kept the house —generally ate their meals at the house; if they each in conversation spoke of the great cost of keeping the house — although these conversations are not conclusive evidence of a joint proprietorship, they are circumstances from which the jury- may infer a joint proprietorship; and the jury must decide from all the circumstances whether there was a joint proprietorship or not. ■
    3. “If each of the defendants, on his own account and for himself alone, gamed with the plaintiff, they are severally liable to the plaintiff for the amount won and received by each, but they are not jointly liable.
    4. “ That whether the jury believed the witness ” [the defendant-in error] “ was for their consideration, and not a question for the court.”
    The errors assigned are: 1. That the court misdirected the jury, and refused the instructions asked; 2. That the court refused to. .grant a new trial; 3. That the court excluded competent testimony ■offered by the plaintiffs in error.
    
      Soadly, Jackson & Johnson, for plaintiffs in error, argue'd:
    1. The judgment is against the evidence in this, it is excessive in amount; instead of being for $17,545, it should have been, if at all, for $6,150 less — that is, for $11,395.
    2. The court erred in sustaining the objections of plaintiff below •to the following questions propounded to witness, Frank Lysle: “ Have you seen plaintiff, McMillen, between January and July, of this year, gamble at house No. 4 Baker street, *known as Whaley’s house? If so, how often, give the dates, and how much ■did he lose or win ? ” “ Has the plaintiff, between those dates, lost ■at No. 4 Baker street, more than $900 ? If so, how much ?”
    This testimony was not only competent to contradict McMillen, for the matter was in no sense collateral, but certainly perfectly proper to reduce the amount that plaintiff was entitled to recover.
    
    3. The court erred in refusing to give the following charge: “If the jury believe that plaintiff has knowingly sworn falsely to any ■material fact or circumstance, it not only affects his credibility, but it is their duty then to reject and disbelieve his entire testimony.” And the court erred in charging “that, whether the jury believed the witness was for their consideration, and not a question for the court.”
    We claim that “if the jury believe that plaintiff has knowingly sworn falsely to any material fact ” — in other words, has committed deliberate perjury in the cause on trial — then the jury must reject his entire testimony. Hargraves v. Miller, 16 Ohio, 338; Dunlap v. Patterson, 5 Cowen, 246; State v. Jim, 1 Devereaux (N. C.), 508; 7 Wheaton, 339; Roth v. Wells, 2 Tiffany, 471; Stoffer v. The State, 15 Ohio St. 47.
    4. The court erred in refusing to charge the first and second propositions, as requested by plaintiffs in error, and in the charge given relating to those propositions.
    The substance of the charges asked by plaintiffs in error is simply that, as gaming is illegal, there can be neither joint proprietorship nor partnership between two or more persons in such illegal business; that where an action is brought under the gaming statute against two or more persons to recover money lost, it can .not be maintained against them as joint proprietors or partners. They are each liable to the loser only for the amount each has either won or received of the loser’s money; that it is not sufficient for a loser so seeking to recover to show that they are partners or-joint proprietors of the gaming establishment; he must show that they either actually won his money, or participated in sharing the money so lost. Marine and Fire Insurance Bank v. Megan, Adm’r, *etc., Dudley, 83; Zeilly v. Warren, 17 Johns. 192; Ruckman v. Pitcher, 20 N. Y. 1; Owens v. Davis, 1 Bailey, 315.
    The statute (S. & C. 664, sec. 2) under which this action was brought, authorizes the party who loses money at gaming to recover from the winner or winners; not from the proprietors of the gaming establishment at which the loser may have lost his money, but from the actual winners thereof — those with whom he either gamed, or who actually received portions of his losings, and then only for the amount so won and received; not a joint judgment against all for •a gross amount, but a separate judgment against each winner for the actual amount won or received.
    
      Thomas Powell (with whom was T. A. O’Conner), for defendant •in error, argued:
    1. The judgment below is not excessive in amount. The plaintiff lost $23,695, the exact amount named in the petition. He won back from the defendants $6,150. If you deduct the winnings from the gross sum of his losses, you will have the net amount lost, to wit, $17,545, the exact sum of the judgment against ths defendants in the court below. Doolittle & Chamberlain v. McCullough, 7 Ohio St. 299.
    2. As to the second point relied upon by counsel for plaintiffs in error: There was no error in sustaining the objections to the questions asked the witness lysle. Those questions were incompetent and immaterial. 1 Greenleaf's Ev. 614, sec. 445; 14 Peters, 448, 461; 6 Watts & Serg. 75 ; 1 Cush. 189, 217.
    3. As to the third proposition of counsel for plaintiffs in error: McMillen was not contradicted, but corroborated in his testimony, and he told the truth. There is no testimony in the record that “ clearly shows ” that McMillen in his testimony committed perjury ; therefore the rule in the Stoffer case does not apply.
    The court did not err in refusing to give the charge, because it was upon an abstract proposition. Mears v. Mears, 15 Ohio St. 99; Code, sec. 295; Osborn v. The State, 7 Ohio, pt. 1, 212; King 
      v. Kinsey, 4 Ohio, 79; McDougal v. Fleming, 4 Ohio, 383; Jordan, Ellis & Co. v. James, 5 Ohio, 97, 98; Reed *v. McGrew, 5 Ohio, 386; McClintock v. Inskip, 13 Ohio, 21; Walker’s Lessee v. Devlin, 2 Ohio St. 605.
    4. It was not necessary for the plaintiff, in order to make out his case against the defendants, to prove that each one of the defendants received his share of the several sums of money lost by him at their gambling establishment. To hold that the capitalist and owner of the game is not to be held responsible for the amount won from the person who plays and loses, is to defeat the very sum and purpose of the statute; because the loser would then have his-action against the dealer only. The responsibility of a “faro dealer” can be compared generally to the responsibility of a “capper,” a “roper,” or a “ stool-pigeon.”
   Welch, J.

We see no error in the charge of the court, or in its-refusal to give the instructions asked by the plaintiffs in error.

The statute under which the action was brought (1 S. & C. 664, sec. 2) provides:

“ That if any person or persons, by playing any game or games, or by means of any bet or wager, shall lose to any other person or-persons any sum of money, . . . and shall pay the same, or any part thereof, to the winner or winners, the person so losing may . . . sue for, and recover the money .... from the winner or winners.”

If the plaintiffs in error were in fact jointly engaged in maintaining and carrying on an illegal business of gaming, it is not for them to set up the illegality of the business, or of the contract be-teen them,, to defeat their joint liability. It is a well-known rule-of law, that when an illegal conspiracy is proven, the acts of each conspirator are held as the acts of all. It is true their illegal contract is not binding between them, but it is binding upon them. It-gives them no legal rights, but it imposes upon them legal liabilities. Having established their joint proprietorship, the defendant in error, by proving the receipt of money by one, proved its receipt by all, and entitled himself to a joint recovery against all. The real “ winners ” of the money are the proprietors of the business,. *who, by the terms of the contract between them — no matter-if it be an illegal contract — are to furnish the funds, pay the losses, and receive the winnings. The dealer is their agent, and they are estopped from denying his power to bind them. His winnings are their winnings, and his receipt of money won is their receipt. Any other construction of the law would render it utterly ineffective. It. would only be necessary to put forward an irresponsible “ dealer,’" in order that the real gamblers, who grow rich by his winnings,, might evade the law. This would be to hold the nominal party, and let the real party escape — to convict the “ dealer,” and acquit the dovMe dealer. It would be of little avail to set aside the “ game ” by which the plaintiff has been defrauded of his money, and allow him- to recover it back, and yet allow the deeper game, by which the law itself is to be defrauded of its purpose, to have its intended effect.

Nor do we perceive any objection to allowing a recovery in one action for the aggregate of sums lost at different times, or for the sum of losses between certain dates, without showing the particular dates or amounts of each loss. No such objection would lie in. an action for money loaned, or for money had and received for the-use of the plaintiff in the action. The defendant in error was entitled to recover of the.plaintiffs in error all the money they had won from him, and what the whole amount was, must be arrived at by the best evidence the nature of the case will admit. Indeed, the rule adopted by the court seems to be for the benefit of the plaintiffs in error, for by it they get a credit for the amount of their losses. We think the court was right in its charge as to this branch of the case.

The question whether the court erred in refusing the instruction asked in regard to the testimony of defendant in error, does not. arise in the case. We see in the bill of exceptions no evidence tending to show that defendant in error knowingly swore to any thing that was false. No such supposed false testimony was-pointed out to the court at the time the instruction was asked, nor does it appear that a single witness contradicted him in any statement he made. We, therefore, deem the instructions asked in regard to his testimony as a mere abstract proposition, and its refusal by the court as not being the subject of review in this case.

The exception taken to the order ruling out certain testimony (that of the witness Lisle) offered by the plaintiffs in error, it is. deemed unnecessary to notice, further than to say, that we think, the evidence was properly rejected by the court.

We are of opinion, however, that the court erred in refusing a new trial. After a careful examination of the testimony, we are satisfied that the verdict was excessive to the amount of $6,150, being for $17,545, when it should have been for only $11,395. We think the decided preponderance of evidence is, that the whole amount of losses by defendant in error was $17,395, and the whole amount of his winnings $6,150. If, therefore, the defendant will remit said sum of $6,150, as of the date of the judgment, it will be affirmed; otherwise the judgment will be reversed, and the cause remanded for a new trial.

Day, C. J., and White, Brinkerhoee, and Scott, JJ., concurred.  