Unger v. Boas

• Decision Date: 01 January 1852
• Parties: Unger versus Boas.
• Court: Pennsylvania Supreme Court

13 Pa. 601

Unger versus Boas.

Supreme Court of Pennsylvania.

ERROR to the Common Pleas of Dauphin county.

The case was argued by Berryhill, for plaintiff in error. He contended that the paper was protected by the principles of commercial law; that though it had been decided in England, that such a note was void in the hands of an innocent holder for value, yet this was because the English statute would not bear any other construction; but he contended that the language of our act of 1794 was not so conclusive: Purdon 535, sect. 8. He cited 7 Barr 476; 2 Id. 103; 15 Johns. 44; Wash. C. C. 100.

McCormick, for defendant, cited 8th section of the act of 22d April 1794; Dunlop 201; 2 Strange 1155; 3 Bacon's Ab. 340; title Gaming; 8 Ala. 138; 5 Mass. 286; 4 Id. 156-161; 7 Watts 294; Id. 343; 7 W. & S. 233; 3 Kent 79, 80; Story on Pro. Notes 211, 218, sect. 192, and note; Chitty on Con. 240, 241, 242.

The opinion of the Court was delivered by BURNSIDE, J.

The statute of Anne, ch. 14, sect. 1, makes notes given for money lost at play utterly void, frustrate and of none effect, to all intents and purposes whatsoever: 4 Bacon's Ab. title Gaming. By the act of our legislature against gaming Dunlop's Dig. 201, act of April 22d 1794, 3 Smith's Laws 177 sect. 8, persons losing money at any game of address or hazard, play or game whatsoever, "shall not be compelled to pay or make good the same; and every contract, note, bill, bond, judgment, mortgage, or other security or conveyance whatsoever, given, granted, drawn or entered into, for the security or satisfaction of the same, or any part thereof, shall be utterly void and of none effect." Both the English and American statutes render the contract for payment, utterly void and of none effect. In Bowyer v. Bampton, 2 Str. 1155, the court of King's Bench, after two full arguments, held that the innocent indorsee of a gaming note can maintain no action against the maker. The question whether a bill of exchange, with a blank indorsement, being stolen and negotiated to an innocent indorsee, could be recovered, came before Lord Mansfield, Peacock v. Rhodes and another, Doug. 636, and his lordship, in delivering the opinion of the court, declared that he was glad that this question was raised, not for its difficulty, but because it is important that general commercial points should be publicly decided.

He declared the law to be settled, "that a holder, coming fairly by the bill or note, has nothing to do with the transaction between the original parties, except perhaps in the single case (which he calls a...