
    * John Mason versus Josiah Waite.
    
      A delivers bank notes, put up in a parcel, to a carrier, who paid them to B, for a loss at a Faro table; and it was held that A might recover the amount of B, with interest, m an action for money had and received.
    Indebitatus assumpsit for money had and received by the defendant, to tne use of the plaintiff.—The facts proved at the trial before the chief justice, at the last November term in this county, were, that four or five years previous, one John Sargent was the driver of a stage between Gloucester and Boston, and was accustomed to transact business in Boston for persons living in Gloucester ; and particularly in bringing sums of money for them to be paid according to their directions;—that about that time Sargent received of the plaintiff 150 dollars in bank bills, to carry to Boston, which were put up by themselves in a separate parcel, Sargent having at the same time other parcels of money, which he had received for a similar purpose, from other persons in Gloucester;— that on his arrival at Boston, he was invited by a young man to go to a house kept by the defendant and another person by the name of Hilton, where a Faro bank or table was kept by those two persons; and where, in the course of three or four evenings, he lost the sum of 900 dollars, of money he had received of persons in Gloucester, as above stated;—that the defendant and the said Hilton were the persons who won the money, which was actually paid to them; and particularly, that the bills received by Sargent of the plaintiff, as above stated, made part of the 900 dollars, which he lost and paid over to the defendant and Hilton. This latter, on application to him, had paid to the plaintiff one half the amount of the money, which Sargent received of him.
    Upon these facts the jury were instructed, that the plaintiff was entitled by law to recover seventy-five dollars, with interest from the time the defendant had received it; and they returned their verdict accordingly.—The defendant insisted that the action could not be maintained upon these facts; and if such should be the opinion of the Court, the verdict was to be set aside, and [ * 561 ] the plaintiff become * nonsuit; otherwise judgment was to be rendered on the verdict, with additional interest.
    
      Dunlap, for the defendant,
    contended, 1. That no action could be sustained upon the facts in this case. There is no case in the books, of an action founded on similar principles. The consideration, upon which this money came to the defendant’s hands, was a sufficient, though perhaps an illegal one. At common law the winner of money at gaming might maintain an action for it . And if one, to whom money is intrusted, applies the same to the payment of his own debts, the receiver cannot be compelled to refund it to the bailor. Nor does our statute of gaming reach the case, by making the consideration void .
    The case of Clarke vs. Johnson & Al. 
       is probably relied on in support of the action; but although, on a cursory perusal, it may seem to favor the plaintiff, on a fuller examination it will be found to have a very different aspect; and the case of Browning vs. Morris 
       shows that Lord Mansfield’s opinion in the former case was not adhered to .
    2. But if another action would lie, the action for money had and received cannot be maintained on the facts found in this case. One cannot at the same time affirm and impeach an act .
    
      A. Bliss, for the plaintiff.
    It is immaterial how the defendant became possessed of this money; for the assumpsit arises by legal implication from the fact, that it is found in his possession, he having no lawful title to it, as against the true owner, to whom the law as well as equity regards him as the trustee .
    The action is resisted on the ground that tne money was won at play, under a contract good at common law, and not avoided by the statute. But we deny that any contract, in contemplation of law, was made; for the statute prohibits the act, by which only the con tract is capable of being executed, namely, the play which determines the * chance . To a party, who comes [ * 562 J into court to enforce an illegal contract, this answer, says Buller, J., may be given, “ that he must draw justice from a pure fountain ” 
      . A contract, which could be made only in violation of a positive and salutary law, is not a fit subject for the countenance of the Court. This action is not in affirmance of any such contract, but proceeds on the ground that no contract was made by the parties, under which the defendant could acquire a title to the money.
    Nor does the plaintiff stand in pari delicto. In point of fact, he is wholly innocent; and in point of law, the guilt of the servant is not the guilt of the master; nor would his contract, in such case, bind the master, for he had but a special and limited authority .
    But supposing, the plaintiff to stand in no better light than Sargent, the rule of the civil law should apply, “ Ubi et dantis et accipientis turpitudo versatur, non posse repetí dicimus; quotiens autem accipientis turpitudo versatur, repetí posse” 
      . The act against gaming deems the person, who wins and talces the money, as the greater culprit. All the penalties are imposed upon him. The loser is subjected to no punishment, unless the gaming be in a tavern, &n.
    The rule, by which all persons in any manner connected with an illegal contract, were held to be precluded from relief, has been broken in upon by many late decisions ; and the courts now recognize the difference, where there is one, in the culpability of the parties.
    The distinction made by the legislature, in the act against gaming, is founded in reason and justice; and is well exemplified by the facts in the case at bar.
    The action for money had and received is the proper, if not the only, remedy; and the civil remedy is not merged in the offence of Sargent, of whatsoever character it may be considered .
    
      
      
        Bac. Mr. doming, A.
      
    
    
      
       See 5 B. & P. 413, Vaughan vs. Whitcomb
      
    
    
      
      
        Lofft’s Rep. 756.
    
    
      
      
        Cowp. 790.
    
    
      
       See, also, 1 H. Black. 65.—2 W. Black. 1073.—1 Maulé &/• Selwyn, 500.—2 Burr. 1005.
    
    
      
      
        Bull. JV. P. 130.—10 Mass. Rep. 436.-7 Mass. 107.
    
    
      
      
        Foribl. c. 1, § 1, 5th edition, note.
    
    
      
      
        Slat. 1785, c. 58.—Lpfft's Rep. 756
    
    
      
      
        4D.fyE. 564.
    
    
      
      CIO) Vide Lofft, ubi supra.
    
    
      
      'll) Dig. Lib. 12, Tit. 5, c. 34.
    
    
      
       1 Bro. Rep. 547, Neville vs. Wilkinson.—1 L. Raym. 89, Wilkinson vs. Kitchen —Doug. 670, Smith vs. Bromley.—Doug. 669, Jones vs. Barclay.—3 Ves. jun. Watts vs Brooks.—2 W. Black. 1073, Jaques vs. Golightly.—Cowp. 197, Clark vs. Shec & Al.—1 H. Black. 65, Browning vs. Morris.
      
    
    
      
       3 Johns. 183.—15 Mass. Rep. 75,331.
    
   * Parker, C. J.,

delivered the opinion of the Court.

The identical bills, paid by Sargent to the defendant, were proved to be the property of the plaintiff. They were committed to Sargent, as a carrier, to pay to the order of the plaintiff. They came into the hands of the defendant unlawfully ; for gaming is unlawful by our statute. The defendant could have gained no property in them, even as against Sargent, who might have recovered them back within three months. Any other person might have recovered double the amount, without limitation of time; and the defendant was further liable to indictment. How then can he have a right to retain against the true owner, any more than he would a horse, or any other chattel, acquired in the same way ? It is true, in such a case, trover would have been the proper action; and, perhaps, would have been the better action in this case, but for the difficulty of identifying bank notes.

We do not see, however, why the action for money had and received will not lie. The notes were paid and received as money; and as to any want of privity, or any implied promise, the law seems to be, that where one has received the money of another, and has not a right conscientiously to retain it, the law implies a promise that he will pay it over.

Had Sargent paid the money to an innocent person, for a valuable consideration, or to satisfy a debt of his own, the case might have been different; as it would be mischievous to require of persons, who receive money in the way of business, or in pay ment of debts, to look into the authority of him from whom they receive it.

Judgment on the verdict.  