McGinley v. Cleary

WICKERSHAM, District Judge.

The plaintiff prays judgment that the transfer made to the defendant, Cleary, be vacated as fraudulent and void (1) because he was intoxicated at the time it was made, signed, and delivered, and (2) because no consideration was paid therefor. Equity will grant relief where the transfer of a valuable property has been fraudulently extorted, for a grossly inadequate consideration, from a person in such a state of intoxication as not to be in his right mind, or capable of transacting any business or entering into any contract. Thackrah v. Haas, 119 U. S. 499, 7 Sup. Ct. 311, 30 L. Ed. 486.

The evidence in this ease raises the single question, will a court of equity set aside a deed made by the keeper of a saloon in payment of a gambling debt contracted by him to one of his customers when no other fraud is shown? By the common law no right of action exists to recover back money which has been paid upon a gambling debt. 8 Am. & Eng. Ency. of Law (1st Ed.) 1021. In Brown v. Thompson, 14 Bush (Ky.) 538, 29 Am. Rep. 416, the court held that the keeper of a faro bank, who sued to recover losses against one who had won by betting against the hank, was not within the spirit of the Kentucky statute, although his claim was within the letter, and accordingly refused to maintain his action. The general policy of the courts in suits to recover gambling losses is clearly stated by Judge Ross in Gridley v. Dorn, 57 Cal. 78, 40 Am. Rep. 110, where he says:

*277“The impropriety of the court’s entertaining such actions as this is well illustrated by .the circumstances of the present case, for it appears from the record to have been conceded in the court below that the right of the plaintiff to recover depended upon the question whether the wager made was a ‘by bet’ or a ‘time bet.’ To determine this question several witnesses were introduced, who gave their opinion in the matter, and we have been cited by counsel to the ‘Spirit of the Times’ and the ‘Rules of the National Trotting Association’ as authorities upon the proposition. These are, we believe, standard .authorities in turf matters, but cases which depend upon them have no place in the courts. If, notwithstanding the evil tendency of betting on races, parties will engage in it, they must rely upon the honor and good faith of their adversaries, and not look to the courts for relief in the event of its breach.”

There are cases where courts will assist in the recovery of money, or property lost at gambling, but this is not one of them. The plaintiff was the proprietor of the saloon and the operator of the dice game in which he lost his property. He now asks a court of equity to assist him in recovering it, and this raises the question, may a gambler who runs a game and loses the bank roll come into a court of equity and recover it? He conducted the game in violation of law, conveyed his premisés to pay the winner’s score, and now demands that the court assist him to regain it. Equity will not become a gambler’s insurance company, to stand by while the gamester secures the winnings of the drunken, unsuspecting, or weak-minded in violation of the law, ready to stretch forth its arm to recapture his losses when another as unscrupulous or more lucky than he wins his money or property. Nor will the court in this case aid the defendant.

The cause will be dismissed; each party to pay the costs incurred by him, and judgment accordingly.