Hits case did not proceed to judgment, owing to the dispersion of the jury, by a cry of fire ; but Hall, judge, told the Reporter, he was clearly of opinion, the plaintiff could not recover-Which seemed strange. Vide Ambler 269.
Anonymous, 3 N.C. 231, 2 Hayw. 231 (1803)
Jan. 1803
·
North Carolina Superior Court
3 N.C. 231, 2 Hayw. 231
Anonymous.
‘TpHl'S was an action to recover back monies, notes and ©the? artloies of property paid and delivered to the defendant br the plaintiff, as being won of him by gaming at cards. The facte were proved, and
Harris, for the defendant,
insisted, that money Won, cannoe be recovered by the winner, yet if the loser pay it he cannot recover it back ; sic potior est conditio possidentis.
Haywood, for the plaintiff,
admitted this to be the common, law, but urged the act of 1763, ch. 5. which makes -"oíd, among other things “ every transfer of slaves, or oilier persona! estate ie “ satisfy monea won. Money, he said, was within the descrip, lion of personal estate, and the payment of it within that oi Stic transfer of personal estate ¡ and such transfer or jm inset being-void by tV express words of the act, no property rested thereby in the defendant, the winners and he was a holder of goody, notes and money, which belonged to the plaintiff. As to the articles of property and notes delivered to the defendant, they seem io be within the express words of the act, w or other transfer op s* slaves or other personal estate, to am¡ person or jo r his use, to set-l-1 tisfy or secure money won f etc. Was here at: usfer oi persona! estate ¡ and was it to satisfy money won ? If so the act declarer it void. And for rvhat purpose sn ill it be so, if not for the be-, r.efit of the plaintiff, and to enable him to re-vindicate ? In cases', depending on the English acts against gaming, the loser having paid Cannotrecover back, because those laws allow the "loser to pay if he will; they only afford him a defence against the action oí thv winner, which he, the winner, may also renounce if he will, and which he does renounce by electing to pat the money. Thepav* :ncnt is a valid one. because r.u? prohibited nor made void. Bv *232our law, the payment itself is void. The English eases, decided on the ground of no re-petition against a valid payment, cannot govern this case, which is of a re-petition against avoid payment or transfer.