Welles v. Biddle

• Decision Date: 31 January 1845
• Citation: 9 Mo. 159
• Parties: WELLES v. BIDDLE.
• Court: Missouri Supreme Court

9 Mo. 159

WELLES

v.BIDDLE.

Supreme Court of Missouri.

January Term, 1845.

ERROR TO ST. LOUIS COURT OF COMMON PLEAS.

PRIMM, TAYLOR and LESLIE, for Plaintiff. 1. It is respectfully submitted, that the St. Louis Court of Common Pleas committed error in non-suiting the plaintiff, because the authorities are conclusive, that courts will not refuse to try actions like the one the evidence in the bill of exceptions presents, on the ground of the same being an idle waste of time. 21 Com. Law R. 213, and notes; 3 Price's R. 212. 2. There is nothing whatever in the record showing a gaming transaction, as contemplated by our statute. Rev. Code, 290. 3. The subscribers were tenants in common of the property in question, and the means resorted to to make partition of their property was lawful, there being nothing immoral, either in the application of the proceeds, or the means of determining the ownership of the same. 4. An agent or stakeholder is liable to the winner, and cannot set up the illegality against the claim of his principal. The defendant in error was in this situation as to the property, and parties in question. 16 Com. Law R. 276, and authorities there cited in note 15; ibid. 204.

SPALDING & TIFFANY, for Defendant. 1. The raffle was a “game or gambling device,” within the meaning of the act of Assembly restraining Gaming. See Rev. Code, 290; 4 Mo. R. 536. That horse-racing is a game within the meaning of our statutes to restrain gaming. This decision was under the old Revised Code of 1825. See p. 409. The court also decide that a bond given to secure payment of a forfeiture for failing to run the race, was against the policy of the law, and therefore void. 4 Mo. R. 599, Boynton v. Curle. In this case the same principle is decided. Betting upon the throw of dice seems to be a game, and more appropriately so called than a horse-race, 2. If the raffle, or winning by throwing dice, be gaming within the meaning of the act, then it follows that the title of property could not be changed thereby. The first section enacts that any money or property won at any gambling device, may be recovered back by action, &c. And the third section provides that all bonds, bills, notes, &c., given for a gambling consideration, shall be void. These provisions, in effect, make the contract null, and prevent the change of title. For if the party losing the chairs could, even after they had been delivered, recover them back by suit, certainly the title still remained in him: and if the enforcing of the forfeiture incurred for failing to run a horse-race, be against the policy of the act, so must be the enforcing of the change of title of the property won by a gaming device. If Welles can...