The appellant has made a motion for a re-argument of this case and has filed a carefully prepared brief in support of his motion. The brief reasserts the arguments advanced in his brief used at the hearing of the case and urgently contends.
First. That the money paid on account of the gambling contracts by Deneen to Baxter and by the latter deposited in bank to his own credit must be considered to be the property of Deneen to which Baxter never had any legal or equitable title and the bank must be treated as holding it in the capacity of a stakeholder, and
Secondly. That under the authority of the decision in Gough v. Pratt, 9 Md. 526, Deneen upon repudiating the contracts was entitled not only to sue in a Court of equity to recover back the money which he had paid under the contracts but was also entitled to the active aid of that Court to prevent by injunction the withdrawal by Baxter of the money deposited by him and standing to his unconditional credit in the bank.
This money is clearly not stakes in the ordinary sense of that term, which signifies something deposited by two persons with a third on condition that it is to be delivered to the one who shall become entitled to it by the happening of a specified contingency. Deneen voluntarily paid the money to Baxter with full knowledge of the latter's positive refusal to hold it subject to any condition or any joint control. Although it is *Page 213 now in the bank it was deposited by Baxter alone and for his own account and was entered to his credit by the bank. Deneen himself distinctly admitted on cross-examination that he knew that Baxter had the right to withdraw the money from the bank at any time and that he had dealt with Baxter on the faith of the latter's promise that he would not withdraw it and not upon the idea that he had no legal right to withdraw it.
Furthermore when Deneen determined to repudiate his contracts he did not at first claim that this money was his own or that it was held by the bank as a stakeholder and appeal to a Court of equity to compel its return to him; but, acting advisedly and with the aid of counsel, he, as he informs us in his brief, sued out an attachment from a Court of law against Baxter to recover it from him and laid the writ in the hands of the bank to bind the money as a credit due from it to Baxter. Copies of the account filed and affidavit made by Deneen in the attachment case appear in the present record and they charge Baxter with the indebtedness as for money loaned to him by Deneen a form of pleading entirely inappropriate to the recovery of money knowingly paid or advanced as the stakes of a gambling venture. The record contains no indication that this attachment suit has ever been dismissed or abandoned.
The evidence shows that the money was in fact paid to Baxter on account of the gambling contracts as margins just as the margins were paid which were involved in the case of Burt v. Meyer, cited in our opinion now on file in this case, with the additional circumstance that Baxter agreed as part of the contracts in the present case to keep money enough on deposit in Cumberland to make the sheet good or as Deneen in his cross-examination expresses it "The sheet was to be covered at all times, more than enough money left here."
Nor do we think that the case of Gough v. Pratt when rightly understood furnishes any authority for granting the relief prayed for in the present case. What was decided in that case was that equity would prevent the enforcement of a gamblingcontract by enjoining the issue of execution on a *Page 214 judgment which had been recovered on a gambling debt. The case was decided upon the authority of Thomas v. Watson and the opinion of JUDGE TANEY in that case was inserted in full by our reporter as an appendix to Gough v. Pratt. In Thomas v.Watson the bill was filed by an assignee of the alleged debtor for discovery and for relief by injunction against an execution on a judgment that had been recovered on two notes one of which was alleged on information and belief to have been recovered for a gambling debt and the other for an usurious debt. That also was a case in which equity extended relief against the attemptedenforcement of gambling and usurious debts. Nothing that was required to be decided in either of those two cases affords any authority for the active interference of equity in aid of the practical enforcement of any of the stipulations of a gambling contract which we have, in our opinion already filed, shown is the relief which the Court is in effect asked to afford in the present case.
In JUDGE TANEY'S opinion in Thomas v. Watson, there appear the obiter statements that in a case of usury or gambling, although the party pays his money not only with a knowledge of the facts but with a knowledge of the law also, equity will relieve him and compel the adverse party to refund the money, and that in such cases the money may be recovered back again either by a suit at law or a bill in equity, but an examination of the authorities cited in support of the statements satisfies us that that distinguished jurist could not have intended by what he there said to assert that the plaintiff in such cases might resort to either law or equity according to his own preference or caprice or that a Court of equity would entertain his suit for the recovery of his money in the absence of facts constituting recognized grounds of equity jurisdiction.
1 Fonblanques Equity B, 1 Ch. 4, sec. 7, the authority cited in reference to usurious contracts says that equity will give relief to the borrower in cases where the law will not reach thelender. In Rowden v. Shadwell, Amb. 269, the authority relied on for gambling contracts, the bill was filed for the cancellation of a bond which had been given for money lost at *Page 215 gaming and to recover back a part payment which had been made on account of the bond. No opinion appears in the report of the case but there were plain grounds of equitable jurisdiction in that case for if the plaintiff had sued at law and recovered the money which he had paid on account, the bond which was an illegal instrument would have remained outstanding against him. In such cases we have recognized as recently as in Levi v.Oppenheimer, 96 Md. 296, the jurisdiction of equity to grant relief.
Money lost at gaming could not be recovered at common law. The Statute of 9th Anne which is relied on in Gough v. Pratt, only authorized the recovery of money lost at gaming, in "anaction of debt" although it required any one liable "to be sued" under the statute to answer a bill of discovery filed in aid of the action of debt for discovering the money or thing lost at gaming. Our own Code, Art. 27, § 127, authorizes the recovery of money lost at gaming "as if it were a common debt." Certainly nothing in either of these statutes confers jurisdiction on equity to entertain proceedings for the recovery of such debts when unaccompanied by special circumstances which render a Court of law inadequate to grant relief. There is no contention that the bill in the present case was filed for discovery and we have already expressed our views upon the inadequacy of the facts relied on in it as affording special grounds for the equitable relief for which it asks.
The decision in Gough v. Pratt, has been several times affirmed by this Court but in no case, so far as we are aware has the proposition, that one having lost money at gaming may elect whether to proceed at law or in equity for its recovery, been the subject of approval by us, nor are we aware of any case in which this Court has upheld a Court of equity in giving effect directly or indirectly to the terms of an illegal contract at the suit of a voluntary party to that contract.
The cases of Morgan v. Beaumont, 121 Mass. 7; Mount Wardell v. G. R. Waite, 7 Johns. 434, and Vischer v.Yates, 11 Johns. 23, relied on by the appellee in support of his motion were cases at law and cannot be regarded as controlling precedents *Page 216 upon the question of equitable jurisdiction which we have considered in the present case. The case of Petillon v.Hipple, 90 Ills. 420, also relied on in support of the motion was a bill in equity "to restrain the enforcement of an unexecuted contract founded on a wager," and it was upon that express ground that the Court assumed jurisdiction of the controversy. The case is in our judgment entirely consistent with the position assumed by us in the present one.
The motion for re-argument will be overruled.
(Decided March 23rd, 1904.)