
    Harris v. Brooks.
    
      Statutory Action to recover Money lost by Gaming»
    1. Who may maintain action. — If the husband loses money by gaming, lie Jnay maintain a statutory action to recover it in his own name (B,ev. Code, § 1874), although it belonged to the corpus of his wife’s statutory separate estate,
    2. Mobile Charitable Association; validity of charter. — The act establishing the so-called Mobile Charitable Association having been declared unconstitutional and void by this court, it can not be set up in defense of an action against one of its agenta, to recover money won by him at a gaming table carried on under its authority.
    Appeal from tbe Circuit Court of Lee,
    Tried before the Hon. James E. Cobb.
    This action was brought by Charles Brooks, against James Harris, to recover the sum of $235 alleged to have been won from the plaintiff by the defendant, within six months before the commencement of the action; and was commenced by attachment, sued out on the 23d February, 1870. The complaint contained a special count on the statute (Revised Code, § 1874), and the common count for money had and received. The defendant pleaded the general issue, “ in short by consent, with leave to give in evidence any defense that might be specially pleadedand issue was joined on this plea. On the trial, as the bill of exceptions shows, the plaintiff having testified to the loss of his money at a gaming table, or wheel, kept by the defendant, in Opelika in said county, the defendant offered to prove that the money belonged to the plaintiff’s wife, and was a part of the corpus of her statutory separate estate; which evidence the court excluded, and the defendant excepted. “The defendant introduced several witnesses, who testified to the mode of conducting the game at which the money sued for was lost, as follows: The roulette wheel, at which the playing occurred, was a revolving circular table, with a number of' holes inserted therein, each of which was numbered. This wheel was revolved in one direction, and at the same time a ball was thrown, revolving upon and inside of said wheel, in the opposite direction, when the ball settled down in any one of the holes, the number attached to that hole was entitled to the prize, which was paid in money to the person holding the ticket corresponding with said number. None of the witnesses were present when the plaintiff lost bis money, and knew nothing of the particular game at wbicb tbe money was lost; but they proved tbat tbe foregoing was tbe usual mode of conducting tbe wheel kept by the defendant in Opelika, and tbat said defendant, in conducting said game, and running said wheel, was tbe agent and representative of tbe Mobile Charitable Association. Tbe defendant offered to prove, tbat said wheel was conducted in accordance with instructions from said company; but tbe court refused to permit said proof to be made, and the defendant excepted. The defendant offered in evidence, also, an act of the legislature of Alabama, approved December 31st, 1868, entitled ‘An act to establish tbe Mobile Charitable Association, for tbe benefit of tbe common school fund of Mobile county, without distinction of colorbut the plaintiff objected to tbe introduction of said act as evidence, and tbe court sustained the objection ; to which the defendant excepted. This being all tbe evidence, tbe court charged tbe jury, on tbe written request of the plaintiff, tbat they must find for tbe plaintiff, if they believed tbe evidence; to wbicb charge tbe defendant excepted.” Tbe charge of tbe court, and its several rulings on tbe evidence, as above stated, are now assigned as error.
    Geo. W. Gunn, with whom were S. F. Bice, and John M. Chilton, for appellant.
    If tbe money sued for belonged to tbe corpus of the wife’s statutory separate estate, she was a necessary party plaintiff. — Bev. Code, §2525.; Laird v. Mooie, 27 Ala. 326; Samuel v. Ainsworth, 13 Ala. 366; Piclcens v. Oliver, 29 Ala. 528. The transaction between the plaintiff and defendant occurred before tbe passage of tbe act repealing tbe charter of tbe 3Iobile Charitable Association, and while tbe validity of its charter was sustained by tbe decision of this court. — Manaway v. The State, 44 Ala. 375. Subsequent legislation and judicial decision can not make that unlawful which was lawful when done, nor give a right of action on account of it.
    W. H. Barnes, contra.
    
    Tbe statute gives the right of action to tbe loser. — -Bev. Code, § 1874; Davis v. Orme, 36 Ala. 545. Besides, a bailee can always maintain an action, when there is a liability over to bis bailor..— Wood v. Duncan, 9 Porter, 227; Hare v. Fuller, 7 Ala. 717; Cox v. Easley, 11 Ala. 369; Shackleford v. Wood, 3 Ala. 37; Ivey v. Phifer, 11 Ala. 535; Taylor v. Marshall, 11 Ala. 460. Tbe manner in wbicb the gaming was carried on, as disclosed by tbe evidence, shows tbat the defendant could not shelter himself behind tbe act of the legislature. — Aicctrdi v. The State, 19 Wallace, 635; Mayor of Mobile v. Moses el al., 48 Ala. 129.
   MANNING, J.

Under the statute (Rev. Code, § 1874), “ any person who has paid any money, or delivered anything of value, lost upon any game or wager, may recover such money, thing, or its value, by action commenced within six months from the time of such payment or delivery.” In this ease, the game at which the money was lost and paid by appellee to appellant was roulette, and all the facts necessary to entitle plaintiff to recover were fully proved. The circumstance that the money belonged, if it did belong, to the separate estate of appellee’s wife, in no way affected his right to recover. Would such a question have been made in a case of this kind, if it had been the money of his employer, with which he had been intrusted ? As bailee, or trustee, he would have sufficient title to enable him to maintain the action.

2. The act of the “reconstruction legislature,” of 1868, which was offered to show a legal right in defendant, as the agent of the so-called Mobile Charitable Association, to carry on gambling openly as a lawful occupation, has been adjudged to be void, because. passed in violation of certain clauses of the constitution. It was properly excluded from the jury.

Let the judgment of the Circuit Court be affirmed.  