DISSENTING OPINION.
WRIGHT, J.I "am unable to. concur in the reasoning of the majority of the court upon the question raised by the assignment of error upon the instructions given to the jury relating to the item of $460 admitted by the evidence to have been paid some six weeks after the gambling game, at which the same is supposed to have been lost, was played. The appellant requested the court to give the instruction which is set out in the majority opinion, to the jurjr. This instruction was refused by the court and the court upon his own motion instructed the jury upon this point as is set out in the majority opinion.
In an early case in South Carolina under a statute permitting the recovery of money and goods lost in gambling, which statute was taken from 9th Ann. (an old English statute) the courts of that state held that when the winner exends credit to the loser and the loser subsequently voluntarily pays the gambling debt to the .winner, that the transaction is not within the meaning of the statute and the loser cannot recover the payment so made. Whelloch v. Bobo, Harp. 1, (S. Car. 421); See also: Herd v. Vincent, 1 Overt. (Tenn.) 369.
In the South Carolina case cited supra the court said in passing upon this point, that the thing bet upon the game, which'in this instance was a horse race, was a note, and that this being void under the statute there was no legal liability to pay the same. In other words, there was in fact nothing bet on the race which could be construed as being within the statute, the statute providing, as does our statute, that money and goods, (in our statute property) lost at gambling can be recovered by suit brought as provided in such statute.
In the case at bar there was nothing lost at gambling. There was no legal liability upon the part of the appellee herein to pay and the payment made afterwards with full knowledge of the fact, voluntarily, cannot be held as coming within the meaning of the statute.
This court in the case of Territory v. Newhall, 103 Pac. 982, held:
“A voluntary payment, made with a full knowledge of all the facts and circumstances of the case, though made under a mistaken view of the law, cannot be revoked, and the money so paid cannot be recovered back.”
There was no money or anything else lost at the time of the game, the money itself was not lost until payment was made and that occurred six weeks after the game. If it had been the intention of the legislature to include voluntary payments made after the game they would un'doubtedly have covered such point by the terms of the-statute.
Mr. Justice Parker concurs in the above.