After a careful examination of the record in this case, I find myself unable to agree to the conclusions reached by the majority of the Court, and though it is exceedingly distasteful *Page 206 to dissent, I am constrained to do so for the reasons which I will now briefly state. Without narrating the facts disclosed by the evidence, it is sufficient to say that the litigation had its origin in a gambling transaction between the appellant and the appellees. The gambling transaction was a betting on the rise or fall of the market price of stocks and was made between some very foolish men, on the one side, and, according to the evidence, a very tricky man, on the other side. The appellant conducted in Cumberland, what is known as a bucket shop. The foolish people bet on the market price of stock and put their money in the hands of the bucket shop proprietor. They might just as well have bet their money against loaded dice or marked cards. The money which they put up was deposited in the name of the bucket shop proprietor in the Third National Bank of Cumberland, to abide the result of the bet, but it did not, even under the terms of the contract between them, thereby become the property of the appellant or cease to belong to the appellees, at least until the gambling transactions were actually closed and the money was in fact paid over by the stakeholder to the winner. Before the event had occurred upon which the wager depended, the appellees rescinded their contract and demanded from the stakeholder, The Third National Bank, a return of the money they had staked. They did this by way of attachment, and they followed that proceeding by filing a bill in equity to restrain the stakeholder from paying to the appellant the money held by the bank. The Court below decreed that the money belonged to the appellees and made the injunction perpetual. As I understand it, a majority of this Court now holds, that the decree thus passed was erroneous, because both parties to the gambling transaction, namely, the foolish men, on the one side, and the tricky man, on the other, were in equal fault, and being in equal fault, the Court will leave them where they have placed themselves and will give its aid to neither.
That conclusion seems to me to be the contrary to the whole current of judicial decisions both in England and in *Page 207 this country. The doctrine of in pari delicto cannot possibly, it seems to me, have any application to the situation disclosed by this record, and for two reasons. First: In a sense both parties to the gambling transaction were equally in fault for violating the law in making these bets, but there the equality of fault comes to an end. Their conduct was not criminal or immoral, but it was illegal. The appellees besides acting illegally were guilty of folly just as they would have been, if instead of betting on the rise and fall of the market, they had bet against loaded dice or marked cards; but the appellant, if the evidence adduced be worthy of credit, was involved in a scheme to defraud, which, of course, included a degree of moral turpitude which cannot be ascribed to the appellees. After the funds had been deposited with the stakeholder, to be held under stipulated conditions, the appellants surreptitiously endeavored to withdraw the funds that remained in the custody of the stakeholder after secretly checking out a considerable portion of the money that he had agreed should remain on deposit in the Third National Bank. I fail to see, in the light of these circumstances, how the folly of the appellees can be said to be on a footing of equality with the turpitude of the appellant, and if there is no equality in this regard there can be no such equal fault as to justify the application of the doctrine that where the plaintiff and defendant are in pari delicto the condition of the defendant is the better. There is a distinction between contracts which are immoral or criminal and those which are simply illegal and void. To the latter class gambling contracts belong. They are made void by the Statute of 9 Anne, ch. 14. In Vischer v. Yates, 11 Johns. R. 23, CHANCELLOR KENT said: "And the Courts take a distinction between contracts that are immoral and criminal and such as are simply illegal and void. Assistance is usually giventhe party in the latter cases to recover back his money; and this Court lent such assistance in the case of Mount, c., v.Wates, 7 Johns. 434." But beyond this the policy of our statutory law is distinctly against the application of the inpari delicto doctrine to gambling contracts, and *Page 208 that doctrine furnishes no defense to an action brought by the loser to recover back money won from him and actually paid over to the winner. By the Code, Art. 27, § 127, it is enacted that "any person who may lose money at a gaming table, may recover back the same as if it were a common debt." And sec.128 provides that "All games, devices and contrivances at which money * * * * shall be bet or wagered shall be deemed a gaming table within the meaning of the six preceding sections." And bysec. 130 it is declared that "the Courts shall construe the preceding sections relating to gambling and betting, liberally, so as to prevent the mischiefs intended to be provided against." Surely a defendant who has been sued for money which he won from the plaintiff by gambling could not successfully invoke as a defense the maxim in pari delicto potior est conditiodefendentis. Why should he be able to do so in a Court of equity?
Secondly: But in addition to this I have never known it to be suggested that a man who bets and then recants and repudiates the transaction whilst the wager is still in the hands of the stakeholder, was precluded from recovering the money he had staked, if the holder of the stakes refused, upon demand, to return it. This, if authority were needed for the proposition, has been explicitly decided by the Supreme Judicial Court of Massachussetts in Morgan v. Beaumont, 121 Mass. 7. That case arose in this way: The defendant, prior to May 22d 1875, received of the plaintiff the sum of one hundred dollars, as a stakeholder on a wager between the plaintiff and one Woodward, upon the result of a horse race which actually took place on May 22d 1875. This money was to be paid to the winner of the bet, after the race. After the race, while the money was still in the hands of the defendant, the plaintiff, claiming that the race was not fairly had and that the decision of the judges of the race was not fairly made, forbade the defendant paying the money to Woodward, and requested the defendant to pay the same to him, which the defendant refused to do. Afterwards, the money still remaining in the defendant's hands, the plaintiff commenced *Page 209 this action. The defendant well knew of the wager, and knew that the deposit of money was made in aid of illegal trotting and horse racing; and, at the time of the racing, both the plaintiff and defendant were present, encouraging it." The Court speaking by CHIEF JUSTICE GRAY thus disposed of the controversy: "The wager was illegal, the winner had no right to the money, the stakeholder was a mere depositary, and the plaintiff, having demanded the money before it was paid over, was not in paridelicto, and was entitled to recover his deposit from the stakeholder, whether it was still in his hands, or had been paid by him to the winner after notice from the plaintiff not to do so. The fact, insisted upon at the argument, that the defendant knew of and promoted the illegal wager, affords him no protection. White v. Franklin Bank, 22 Pick. 181-189; McKee v. Manice, 11 Cush. 357; Love v. Harvey, 114 Mass. 80;Fisher v. Hildreth, 117 Mass. 558."
The jurisdiction of a Court of equity in Maryland to grant relief in a case like this is clear, unless Gough v. Pratt,9 Md. 526, and several cases which have followed it, be treated as flatly overruled. In the case just cited a bill was filed by Gough for an injunction to restrain execution of a judgment recovered against him on a bond, upon the ground that the consideration of the bond was money won in betting and gambling at cards. The bond was given by Gough to Sollers who was named as the payee therein, and who, as was alleged, had won at cards from Gough $869, the amount payable on the bond. The bond was assigned by Sollers to James Kent and at its maturity suit was instituted in the name of Sollers for the use of Kent against Gough and judgment by default was subsequently entered thereon. Thereafter a fieri facias was issued upon the judgment. Thereupon Gough filed his bill against Sollers and Kent to restrain an execution of the judgment, upon the ground above stated. Kent being dead, his administrator, Pratt, appeared and demurred to the bill. It was insisted that a Court of equity had no jurisdiction to restrain execution of the judgment, because first, the bond was not void; and secondly, because even admitting it to be void, *Page 210 as between Gough and Sollers, still Kent being an innocent purchaser for value without notice of the gambling transaction, was entitled to enforce the judgment. But this Court following closely and unequivocally adopting, the opinion of the late CHIEF JUSTICE TANEY in Thomas, trustee of Lloyd, v. Watson, decided in the Circuit Court of the U.S. for the District of Maryland, held, that the bond was void under the statute of 9th Anne. ch. 14, which was then and still is in force in Maryland: That being void, equity had jurisdiction to restrain its payment even though it had been reduced to a judgment; and finally, that as thecirculation of gambling bonds is an evil no less to be discountenanced than the giving of them, a holder thereof by assignment for value without notice of the illegal consideration, was in no better condition to collect the money, apparently due on the bond, than the payee himself would have been. In the course of the very lucid opinion of CHIEF JUSTICE TANEY above referred to and distinctly adopted by this Court in Gough v.Pratt, it was stated by that eminent and distinguished jurist: "And as regards a security for money lost by gaming, it was indeed said by LORD TALBOTT that it could not be recovered, both parties being equally in default. But that point did not arise in the case before him and was an obiter dictum, when deciding upon a question of usury and the point was decided otherwise in the case of Rawden v. Shadwell, Amb. 269. In the last mentioned case a bond had been given for money lost at play and part of the money paid upon the bond, yet the Court upon the bill filed for that purpose, decreed that the bond should be delivered up to be cancelled and the money repaid. Indeed there can be no sound reason for distinguishing securities for money won at play, from securities founded in usury, so as to give any advantage to the former over the latter, for they are both prohibited by law, both contrary to its settled policy. And while the laws against usury are intended to protect the necessitous against the oppression of the money lender, and against hard and ruinous contracts, forced upon them by their wants; the laws against *Page 211 gaming are founded upon a policy equally sound and clear and are intended to discountenance and discourage a vice injurious to society and often most ruinous to the individual. If therefore the money had been paid by Lloyd upon these two notes, it is evident the complainant might by a bill filed have recovered it back; and if the Court of Chancery would have interfered after the money had been actually paid, is there any principle of equity which will prevent it from interposing where the party has omitted to defend himself at law and confessed a judgment. * * * If it will lend its aid to a party after he has acknowledged the justice of a debt by the payment of the money there can be no sufficient reason for refusing to interpose where the party has omitted to make the defense in an action at law and acknowledged the debt by confessing the judgment. In either case the Court acts to prevent the party from retaining an advantage which he has obtained under a contract forbidden by law and to uphold an established public policy intended in the one case to guard against oppression and in the other to suppress a vice injurious to society. * * * When the public policy established by the Legislature is so obvious and is so clearly founded in the principles of justice and required by the interests of society, it would ill become a Court of equity by narrow and technical constructions to deprive itself of the power to enforce it."Gough v. Pratt, has been followed in Emerson v. Townsend,73 Md. 224; Huntington v. Emery, 74 Md. 70; Spies v.Rosenstock, 87 Md. 17; and it seems to me it ought not, after the lapse of nearly fifty years be overruled; when the result of overruling it is to enable the tricky gambler to get from the stakeholder the money which the foolish bettor deposited there, but upon repenting of his folly now seeks, after rescinding his illegal bargain, to get back. If a Court of equity, under these circumstances, has no power by injunction to prevent the bucket shop gambler from drawing the funds belonging to the appellees out of bank and has no process by which those funds can be kept from going into the pocket of the trickster, though the unlawful contract has been repudiated; *Page 212 it is high time that a legislative enactment should explicitly confer such a jurisdiction. I think a Court of equity is clothed with both the power and the process to administer redress and to afford relief in this case; and I am decidedly of opinion that the decree passed by JUDGE BOYD in the Circuit Court was right and that it ought to be affirmed.
(Filed January 13th, 1904.)
A motion for a re-argument was made and in overruling the same.