
    
      William Hockaday ads. Henry Willis. Same ads. Same. Buford ads. Same.
    
    1. A bill of sale, made by the loser to the winner for property lost at play, being void as a conveyance, under the Statute of Anne, its assignment by the latter, if unaccompanied by actual delivery of the goods, could be no consideration for a note or other promise, and the expression of the assignee’s willingness to run all risk, could not malte the promise good.
    2. But if the possession of the goods was actually delivered, and the sale was a new contract, untainted by gaming, there would be a consideration for a note given for the purchase money.
    3. The title of goods lost at play, and paid down, as distinguished from their value, is good even in the hands of the winner as well against the loser, as against the informer after the expiration of three months. Vaughan vs. Whitcomb, 2 New. Rep., 413.
    4. Against a bona fide purchaser, even the loser can at no time have recovery, either, 'of goods lost and paid down, or of their value.
    5. An immediate purchase of goods lost at play, and ostehsibly paid down, by the loser from the winner, Would be an evasion of the Statute, and a note given in consideration of such purchase, would be a note given for money lost at play.
    6. An obligation of a third person given by the loser, as a security'for goods or money lost, is not less, within the letter and spirit of the enactments than an obligation of the loser himself.
    7. So also, would he a security given upon a purchase from the winner, made shortly after the delivery of the goods, by a third person, who, within the knowledge of the winner, was either buying for the benefit of the loser, or under' an express or tacit arrangement previously provided for, changing the form of the winnings, or because of a connexion subsisting between the loser and such third person as partners in the game, or as borrower and lender.
    
      Before Earle, J., at Charleston, May Term, 1841.
    These were actions of assumpsit on a note and check. The check was drawn by the defendant for five hundred doliars, on the Bank of Charleston, payable to A. Wilson or bearer, dated December 11th, 1840, presented for payment and refused by order of the defendant. The note was also for five hundred dollars, made by defendant, dated at the same time with the check, payable to A. Wilson, and by him and one Buford endorsed to plaintiff.'
    The facts were, that Wilson won at faro from one Saunders, who was banker, a large sum of money and two negro boys. The defendant and Buford who were present and acquainted with the whole transaction, offered to buy the negroes back from Wilson, Said they would give $1000, and run all risk. Wilson said he would give no bill of sale, but merely assign the bills of sale or receipt for the pur-» chase money which he had got from Saunders. The bargain was concluded on these terms; the bills of sale or receipts assigned, and the note and check given to Wilson. Saunders has possession of the negroes. Whether Wilsoii ever had possession, and whether Saunders retained or reacquired possession in opposition to the claim of defendant, or by his connivance, are questions, of which the testimony admits, of opposite,views. The prices fixed on the two negroes were $950 each, for which sum, the receipts or bills of sale are respectively given.
    Hockaday, the defendant, advanced- to the banker, one thousand dollars of the money won by Wilson. Saunders was vexed that they purchased-, without giving him the preference, as he would have given the same money, and declared he would not give them up. John Saunders examined by commission, stated that he played at faro with Wilson in December, 1840; that he lost $1200, an order for $800, anda watch worth $150, besides the two negroes which he refused to deliver, because he was cheated. The negroes were not delivered to Wilson, but bills of sale were given as Wilson won to the amount of them. Wilson informed him that he got a check from Hockaday, in part pay for the negroes which he.sold to him for $1000. Witness, in the evening, informed Hockaday of his.having been cheated in the play, and directed him, not to pay the note or check. Witness states that neither Wilson nor Hockaday ever had the negroes in possession. A Mr. Little, who was examined, stated that Saunders lost the negroes, gave bills of sale to Wilson, and told him the negroes were at the stable; that he might take them when he wanted them. Witness stated the playing was 11th December, 1840.— Note passed by Wilson to plaintiff, Monday following — had been previously endorsed by Buford — -plaintiff to be secured by Wilson. Witness saw the negroes at the stable on Monday.
    Hockaday told Wilson that Saunders had been cheated, and they would not pay the note and check. Wilson said, “ well, give me back the negroes, and I will give you up the note and check.” /They refused. The negroes were in the stable occupied by all of them.
    
      The action on the check was tried before Earle, J., Charleston, May Term, 1841. The defence relied on, was, that the negroes having in the first instance heen won at play, the subsequent purchase of them by the defendant, although with full knowledge of the facts, and an agreement to risk the title, was also an illegal transaction, and the check given for the purchase money was for a void consideration.. His Honor overruled the defence, and the jury found for the plaintiff the amount due upon the check.
    The other cases were tried before Wardlaw, J., Charleston, May Term, 1842. The defence was, that, the note was founded on a gaming consideration, or tainted with the gambling, of which it was a part, or that the consideration had failed. His Honor considered that the sale of the negroes by Wilson, was a new contract,; not part of the gambling, and that by the terms of the sale, the purchasers acquired only such interest as Wilson had. Verdict for plaintiff.
    Appeals were taken on the following grounds :
    1. The check was given on a gaming consideration, and therefore void, even in the hands of a bona fide holder for valuable consideration without notice.
    2. The payment of the check wes countermanded by the defendant, with the assent, and by the direction of Saunders, to whose use the money was directed to. have been paid.
    3. No delivery of the negroes lost in gambling, and for which the check was given, was ever made by Saunders to Wilson, and no delivery by Wilson to Hockaday. On the contrary, the delivery was refused by Saunders, and Hockaday never received possession.
    4. The agreement to waive the objection to the title, could not legalize the original consideration of the check, the same being absolutely void as against the policy and provisions of the gambling act.
    5. The. verdict is against the law and the facts of the case.
    6. Because the note in question was founded on a gaming consideration, void in the hands of any third party.
    7. That a contract of sale of property, acquired by the vendor in gambling, where the gambling and the sale make one entire res gestes is void, as between the vendor and the vendee, as the vendee’s agreeing to take the risk of title cannot cure the invalidity of such a sale. .
    8. That all contracts, the consideration of which is infected with moral turpitude, or is against the policy and provisions of a penal statute, are void.
    J. B. Thompson, for' the motion,
    cited Grimke’s Public Laws, App. 20, (2 Stat., 565;) Long on Sales, 102; 4Esp., 97; 3 T. R., 455; 2 Kent’s Com., 466; 16 J. R., 486; 1 Bos. & Pull., 264; 2 Gallison’s Rep., 563 ; 5 J. R., 326 ; 11 Wheat., 258.
    Gyles & Wilson and Kunhardt, contra.
   Curia,per

Wardlaw, J.

The Stats. 16 Car., 2, c. 27, and 9 Anne, c. 14, (of force here, and the only Statutes we have concerning gaming, contracts and securities,) both provide penalties against trick and cozenage in gaming; and at common law, he who prevailed by such unfair practices, was much distinguished from the winner at fair play. But in these cases, this court perceives no necessity for entering upon the indecent enquiries, to which an examination into the mode in which unlawful gaining has been conducted might, lead.

It appears that upon the trial of each of these cases, the sale by Wilson to the defendant, was assumed by the Judge to have been proved a new contract, and that the attention of the jury was not sufficiently directed to the importance of the question, whether possession of the negroes actually passed from Wilson to the defendant. By the Statute of Anne, before cited, the bill of sale made by Saunders, was as a conveyance of goods lost at play, absolutely void, and its assignment, if unaccompanied by actual delivery of the negroes, could be no consideration for a note or other promise. The expression of the assignee’s willingness to run all risk, could make the promise no better, for such expression would be but a declaration in other terms of his willingness to give his note for what, the law regards as utterly valueless. But if the possession of the negroes was actually delivered by Saunders to Wilson, and by Wilson to the defendant, then, if in truth the sale to the defendant was a new contract, untainted by gaming, there was a consideration for the note and check. The title of the goods themselves lost at play and paid down, as distinguished from their value, is even in the hands of the winner good as well against the loser as against an informer, after the expiration of three months. Vaughan vs. Whitcomb, 2 New. Rep. 413. And against a bona fide purchaser, even the loser can at no time have recovery either of goods lost and paid or of their value. Supposing, then, that Saunders, by actual delivery, paid down the negroes lost, and speedily afterwards reacquired possession, even if there should be no remedy now against him by the winner, or by one claiming under the winner, with full knowledge of the gaming, the chance that Saunders would not avoid the gaming contract, voidable only by him, before the expiration of the three months, and before the defendant should transfer the title, was in this view, the consideration of the note and check, and the failure of the defendant’s expectation could not be set up as a failure of consideration against his agreement to run all risks.

The jury, however, may be satisfied upon careful examination of all the circumstances, that the sale to the defendant, instead of being a new and valid contract, was tainted by the gaming so as to render void all seciuities attending it. An immediate purchase of goods lost at play and ostensibly paid down, by the loser from the winner, would be an evasion of the Statute too palpable to escape detection; a note given in consideration of such purchase would be a note given for money lost at play. An obligation of a third person, given by the loser as a security for goods or money lost, is not less within the letter and spirit of the enactments than an obligation of the loser himself CowperRep.4; 1 Wilson 200; l Salk. 344. Like the security given upon a purchase by the loser himself, would be a security given upon a purchase from the winner, made shortly after the delivery of the goods by a third person, who, within the knowledge of the winner, was either buying for the benefit of the loser, or under an express or tacit arrangement, previously provided for changing the form of the winnings, or because of a connexion subsisting between the loser and such third person as partners in the game, oías borrower and lender.

Let a new trial then be granted in each of the cases, that the facts may be submitted to the jury, with full instructions conformable to this opinion.

Richardson, and O’Neall, JJ., concurred.

Evans, and Butler, JJ., dissented.  