
    Supreme Court of Errors and Appeals. Nashville.
    1813.
    WHITESIDE v. EXECUTORS OF TABB.
    v v Appeal.
    If money is fairly won at play, and the loser voluntarily pays it, he «cannot recover it back at . common law.
    If it be won unfairly, and the loser, after he has a knowledge of the fraud, voluntarily pays it, he cannot recover it back.
    This was an action of assumpsit brought by Tabb, in his lifetime, against the appellant.
    The declaration contained four counts, — one for goods sold and delivered ; one for money paid ; one for money had and received ; and a count for an insimul computassent. The defendant pleaded non assumpsit.
    
    The case, as contained in a bill of exceptions, was in substance as follows : That in the month of February, 1803, Tabb, the appellee’s testator, Peter Edwards, and Henry G. Kearney, played at loo together, and continued to play until Tabb had lost a considerable amount for which Tabb’s tickets were out. The appellant happened to come in to the room where they were playing, and Tabb requested him to play his hand, which he did, upon Kearney and Edwards observing that Tabb was too drunk to play. The appellant continued to play Tabb’s hand until he had won back, of Edwards and Kearney, a considerable portion of Tabb’s tickets. The appellant at length observed to Tabb, who was then walking across the room, and to the rest of the company that he would play Tabb’s hand no longer, and immediately destroyed such of Tabb’s tickets as he had won. After this the appellant offered to play upon his own account, to which Kearney and Edwards agreed, provided, if he won, he would take from them such of Tabb’s tickets as remained. Upon this he sat down and, in the course of the play, won of Ke’arney about four hundred dollars. In the morning after this transaction Kearney wished to redeem his tickets, with the tickets of Tabb ; and for this purpose Kearney and the appellant went to Tabb, who had just arose from his bed and washed himself, and was at the store of Mr. Masterson. The tickets were then produced. Tabb recognized his and an exchange took place, in consequence of which Tabb promised to pay the appellant the amount he had won of Kearney, and expressed his obligations to the appellant for the favor which he had done him.
    Tabb requested Masterson to pay the appellant the four hundred dollars in goods, which Masterson agreed to do, and immediately charged Tabb with the amount in his books; but it was not proved that it had ever been placed to the credit of the appellant in the said books. It appeared that Masterson and the appellant had an account current existing between them, and that Masterson kept a memorandum on the back of his book of goods furnished the appellant on Tabb’s account; but it did not appear what amount the appellant had received.
    At the time Tabb played with Kearney and Edwards they were all drunk, but Tabb was the drunkest of the three. It also appeared that at the time the exchange and assumpsit took place at Masterson’s store Tabb was sober, or as much so as could be expected in a man who had been drunk the night before.
    It did not appear that Tabb had ever actually paid Masterson for the goods.
    The counsel for the appellant moved the Court to instruct the jury that if they believed the goods delivered by Masterson to the appellant in pursuance of Tabb’s order were voluntarily paid in discharge of a gaming debt, neither the goods nor the value of them could be recovered back; and that the evidence did not support either- count in the plaintiff’s declaration. “But the Court did not so instruct the jury, but directed it that if it believed, from the testimony, that Kearney had been guilty of a fraud by winning from Tabb when he was intoxicated, it was against good conscience to retain anything so won, although it should have been voluntarily paid to the appellant; and that he, as respects the goods he had received from Masterson, on account of Tahb, must be considered in the same point of view with Kearney. And that, if the jury believed that Tabb was so intoxicated when the tickets were won of him by Kearney and Edwards as not to have the command of himself, although the intoxication was not produced by those who won them, but voluntarily on his part, it was a fraud in those who took advantage of his situation, and the appellant was, therefore, liable to refund what he had got; and, further, that if the jury believed the appellant had received the goods of Masterson, it was a sufficient sale and delivery by Tabb, without proving that he paid Masterson for them.”
    The jury found a verdict in favor of the appellees for four hundred dollars, from which Whiteside appealed to this Court.
    
      Hayes and Gooke, for the appellant,
    argued that, in this action, there could be no pretence for a recovery on the part of Tabb for more than he had actually paid to Masterson; and that if he had not paid anything, although the goods might have been received by Whiteside, he had no cause of action. The ground of his recovery must be in consequence of an actual advancement, and not because of a liability to pay Masterson.
    But the real ground in the present case is that Whiteside is not liable at all. If even he were to be placed in the same situation with Kearney, yet, as the payment was made voluntarily, he can have no pretext for recovering of it back. There are a variety of cases where the law will not enforce the payment of a demand, yet, if a payment be voluntarily made, the person paying cannot recover it back. Such is the case .with respect to money paid which has been won at play. 1 Com. Dig. 185. It is not pretended here that there is any other fraud in the case than what arises from the drunkenness of the parties, and before a contract or agreement can be set aside upon the ground of intoxication, it must appear that it was of the procurement of the person claiming a benefit. 1 Fon. Eq. 67; 1 Pow. Con. 29 ; 3 P. Wms. 130 (note A).
    Trimble, for the appellees,
    contended that if the goods were received by Whiteside he was bound to pay Tabb for them, and that it was not material whether Tabb had paid Masterson or not, as that was a matter in which Whiteside had no concern.
    The rule, he said, as laid down by the counsel for the appellant, would apply to cases of slight intoxication, and where the person complaining had not been materially injured; but where a person is so drunk, as in the present case, as not to know what he is doing, and whilst in that situation an undue advantage is taken of him, it cannot be at all important to the equity of the case whether he were drawn into the debauch by the person actually cheating him or not.
   White, J.

delivered the following opinion of the Court: —

It is not intimated that our statute against gaming can affect this case, as the suit was not brought within the time prescribed by it.

If a man fairly loses his money at play,' and afterwards voluntarily pays it, if we lay the statute aside, we believe he cannot recover it back. Again, if money is won of a man unfairly, and he afterwards, with a knowledge of the circumstances under which it was won, voluntarily pays it, he cannot have any remedy by applying to a court of justice.

The laws of society are willing in such cases, to leave the parties in whatever circumstances they may choose to place themselves. No aid can be afforded to either, upon the maxim that in pari delicto, potior est con-ditio defendentis. If a man will give away his money, the law will not prevent him; and so the Circuit Court ought to have instructed the jury in the case now under examination.

In this case there is no evidence of unfairness, but what may, perhaps, be found at most card tables. One of the company drinks a little deeper than the rest of his companions, and is loser; and when he gets sober, he voluntarily pays the amount won of him; this, we'conceive, is a poor story for a plaintiff to tell a court of justice, in seeking redress.

Let him repent his double transgression of gaming and drunkenness, and amend his morals for the future.

If there be any equality in gambling, it is as likely to be found in a company where each member voluntarily deprives himself of his reason, and thereby loses that superiority which the God of nature may have given him over the rest, as in any other situation. They a,re all reduced to perfect equality, and blind chance determines who shall be successful. It is an incalculable misfortune that so much valuable time is wasted, and so many hale constitutions are destroyed by debauches of this sort. But if mankind, blind to their real interest, and the still more important interests of society, will engage in such reprehensible practices, they ought to know that the general laws of society forbid that the Courts should have their time devoted to inquiries about the result of which those laws feel no sort of solicitude.

The judgment of the Circuit Court must be reversed, and the cause remanded for a new trial.  