CoRN, _Justice.
The defendant in error brought suit in the district court of Sweetwater County against the First National Bank of Rock Springs, upon four certificates of deposit issued by the bank to M. Kinney, the plaintiff in error. The bank filed its affidavit under the statute showing that Kinney claimed the money due upon the certificates, and averring its readiness to pay the same as the court might direct. Kinney subsequently appeared and was substituted as defendant in place of the bank. The'cause was tried by the court without a jury, and judgment rendered for the [28]*28plaintiff below for the amount of the certificates with interest to the date of the judgment.
The evidence, about which there is no dispute between the parties, shows that in October, 1890, Bingham & Bumpf were the proprietors of a saloon in the town of Green Eiver. That in the same room where the bar or counter was, Turpin & McDonald were carrying on a licensed faro game and a licensed game of roulette. Bingham & Bumpf, the saloon-keepers, had no interest in the gambling, Turpin & Me Donald simply having a place in the saloon for their games, paying no rent. On the night of the transactions out of which this suit arises, Kinney, the plaintiff in error, was in the saloon playing at faro, and drinking.. He lost at the game, and then borrowed $25.00 from , an acquaintance named Sowadski, which he also lost and expended in drinking and treating others. Afterward he requested Bumpf, who was attending the bar, to cash one of the certificates in question for him. Bumpf had him indorse the certificate, indorsed it himself with the firm name of Bingham & Bumpf, and not having the money himself, obtained it from Me Donald who was dealing the faro game, delivered the certificate to Me Donald and handed the money to Kinney, the certificate being cashed at its face value. This money was disposed of in paying the money borrowed, buying drinks for himself and others, and playing. faro — most of it being lost at the faro game. Two others of the certificates were cashed in precisely the same way and the money lost principally at the faro game, some of it being expended for drinks. The fourth certificate was cashed for Kinney by McDonald directly — Kinney indorsing it and delivering it to him, and he giving to Kinney its face value in money. A portion of this also was lost at the game and expended for drinks, but just how much does not appear from the evidence, as Kinney had some money when the game closed. Kinney was in the saloon five or six hours that evening, being out three or four times, but most of the time in the saloon. Three of the certificates. [29]*29are indorsed “M. Kinney,” and ‘‘ Bingham & Rumpf.” The fourth for $134.60 is indorsed “M. Kinney” and “ John Me Donald. ”
Several defenses are set up, though they are not very definitely separated in the answer. The first is a general denial that the plaintiff acquired any ownership or interest in the certificates. The second sets out that the indorsement and delivery of the certificates was procured by means of fraudulent devices and cheating in connection with the faro game, that the game was played unfairly and unlawfully, and was what is termed a “brace ” game.
What is numbered as the third defense sets out first that the consideration for the indorsement and transfer of-the certificates was money won from the defendant at faro; and second, that the consideration for such indorsement and transfer was for reimbursing money and faro chips knowingly advanced by Me Donald and Bingham & Rumpf to Kinney for the purpose of betting upon the game, and that the money and chips were employed for that purpose, and that Kinney was engaged in playing the game when the advancements were made.
This case is involved in some difficulty from the fact that our statutes upon the subject of gambling are entirely out of line with the legislation of most of the other States. In England and in the States, to whose decisions we are cited as authority by counsel, gaming and the keeping of gaming houses are criminal offenses and visited with heavy penalties. In this State these acts are permitted by law, and what are known as banking games, including faro and roulette, are licensed. Secs. 1459 and 1467, Rev. Stat., prohibit gaming without a license, and designate what games may be licensed. Secs. 1460 and 1462 provide how a license may be obtained and protect the licensee from prosecution. Sec. 1468 provides a penalty for playing unfairly with the intention of winning in any way more than the fair percentage of the game. Sec. 1001 is as follows :
“All contracts, promises, agreements, conveyances, [30]*30securities, and notes made, given, granted, executed, drawn, or entered into, where the whole or any part of the consideration thereof shall be for any money, property, or other valuable thing won by any gaming, or by playing at cards, or any gambling device or game of chance, or by betting on the side or hands of any person gaming, or for the reimbursing or paying any money or property knowingly lent or advanced at the time and place of any such play, to any person or persons so gaming or betting, shall be utterly void and of no effect. No assignment of any bill, bond, note, or other evidence of indebtedness, where the whole or any part of the consideration for such assignment shall arise out of any gaming transaction, shall in any manner offset (affect) the defense of the person or persons making, entering into, executing, or giving such instrument so assigned, or the remedies of any person interested therein.”
The second defense, that the game was unfairly dealt, entirely failed upon the proof, and it is conceded by counsel for the plaintiff 'in error that the evidence shows that he was given a fair deal, and that the game was up to the recognized standard of a “ square faro game ’ ’ under the laws and customs of the gambling fraternity.
Under the third defense it is alleged that the indorsement and transfer of the certificates was made for ‘ ‘ the sole consideration of money won from the defendant by one Me Donald. ’ ’ If the evidence sustains this allegation, then the indorsement is void under the statute, and the property in the certificates remains in Kinney. The evidence shows clearly that upon the cashing of each of them Kinney was paid the face value in money. Tie was at liberty to do with it as he pleased. The evidence shows that it was not an unusual thing for the proprietors of the saloon or the gambling tables to cash checks or other papers after banking hours as a matter of accommodation. There is nothing tending to show that at the time he cashed any one of the certificates, Kinney had make any bets upon credit, or that he owed the game, or Bingham [31]*31& Bumpf, for any money won by any of them. Certainly upon the face of tbe transaction tbe consideration for tbe indorsement and transfer was tbe payment in money of tbe full face value of tbe certificates. There is no intimation anywhere in tbe evidence that in cashing tbe certificates any amount was held back or kept out in payment of any debt whatever. Tbe evidence does show that after cashing one of tbe certificates Kinney paid to Sowadski tbe $25 be had borrowed from him during tbe evening. It is also probable from tbe evidence that all or part of this $25 was lost by Kinney at tbe faro game.
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CoRN, _Justice.
The defendant in error brought suit in the district court of Sweetwater County against the First National Bank of Rock Springs, upon four certificates of deposit issued by the bank to M. Kinney, the plaintiff in error. The bank filed its affidavit under the statute showing that Kinney claimed the money due upon the certificates, and averring its readiness to pay the same as the court might direct. Kinney subsequently appeared and was substituted as defendant in place of the bank. The'cause was tried by the court without a jury, and judgment rendered for the [28]*28plaintiff below for the amount of the certificates with interest to the date of the judgment.
The evidence, about which there is no dispute between the parties, shows that in October, 1890, Bingham & Bumpf were the proprietors of a saloon in the town of Green Eiver. That in the same room where the bar or counter was, Turpin & McDonald were carrying on a licensed faro game and a licensed game of roulette. Bingham & Bumpf, the saloon-keepers, had no interest in the gambling, Turpin & Me Donald simply having a place in the saloon for their games, paying no rent. On the night of the transactions out of which this suit arises, Kinney, the plaintiff in error, was in the saloon playing at faro, and drinking.. He lost at the game, and then borrowed $25.00 from , an acquaintance named Sowadski, which he also lost and expended in drinking and treating others. Afterward he requested Bumpf, who was attending the bar, to cash one of the certificates in question for him. Bumpf had him indorse the certificate, indorsed it himself with the firm name of Bingham & Bumpf, and not having the money himself, obtained it from Me Donald who was dealing the faro game, delivered the certificate to Me Donald and handed the money to Kinney, the certificate being cashed at its face value. This money was disposed of in paying the money borrowed, buying drinks for himself and others, and playing. faro — most of it being lost at the faro game. Two others of the certificates were cashed in precisely the same way and the money lost principally at the faro game, some of it being expended for drinks. The fourth certificate was cashed for Kinney by McDonald directly — Kinney indorsing it and delivering it to him, and he giving to Kinney its face value in money. A portion of this also was lost at the game and expended for drinks, but just how much does not appear from the evidence, as Kinney had some money when the game closed. Kinney was in the saloon five or six hours that evening, being out three or four times, but most of the time in the saloon. Three of the certificates. [29]*29are indorsed “M. Kinney,” and ‘‘ Bingham & Rumpf.” The fourth for $134.60 is indorsed “M. Kinney” and “ John Me Donald. ”
Several defenses are set up, though they are not very definitely separated in the answer. The first is a general denial that the plaintiff acquired any ownership or interest in the certificates. The second sets out that the indorsement and delivery of the certificates was procured by means of fraudulent devices and cheating in connection with the faro game, that the game was played unfairly and unlawfully, and was what is termed a “brace ” game.
What is numbered as the third defense sets out first that the consideration for the indorsement and transfer of-the certificates was money won from the defendant at faro; and second, that the consideration for such indorsement and transfer was for reimbursing money and faro chips knowingly advanced by Me Donald and Bingham & Rumpf to Kinney for the purpose of betting upon the game, and that the money and chips were employed for that purpose, and that Kinney was engaged in playing the game when the advancements were made.
This case is involved in some difficulty from the fact that our statutes upon the subject of gambling are entirely out of line with the legislation of most of the other States. In England and in the States, to whose decisions we are cited as authority by counsel, gaming and the keeping of gaming houses are criminal offenses and visited with heavy penalties. In this State these acts are permitted by law, and what are known as banking games, including faro and roulette, are licensed. Secs. 1459 and 1467, Rev. Stat., prohibit gaming without a license, and designate what games may be licensed. Secs. 1460 and 1462 provide how a license may be obtained and protect the licensee from prosecution. Sec. 1468 provides a penalty for playing unfairly with the intention of winning in any way more than the fair percentage of the game. Sec. 1001 is as follows :
“All contracts, promises, agreements, conveyances, [30]*30securities, and notes made, given, granted, executed, drawn, or entered into, where the whole or any part of the consideration thereof shall be for any money, property, or other valuable thing won by any gaming, or by playing at cards, or any gambling device or game of chance, or by betting on the side or hands of any person gaming, or for the reimbursing or paying any money or property knowingly lent or advanced at the time and place of any such play, to any person or persons so gaming or betting, shall be utterly void and of no effect. No assignment of any bill, bond, note, or other evidence of indebtedness, where the whole or any part of the consideration for such assignment shall arise out of any gaming transaction, shall in any manner offset (affect) the defense of the person or persons making, entering into, executing, or giving such instrument so assigned, or the remedies of any person interested therein.”
The second defense, that the game was unfairly dealt, entirely failed upon the proof, and it is conceded by counsel for the plaintiff 'in error that the evidence shows that he was given a fair deal, and that the game was up to the recognized standard of a “ square faro game ’ ’ under the laws and customs of the gambling fraternity.
Under the third defense it is alleged that the indorsement and transfer of the certificates was made for ‘ ‘ the sole consideration of money won from the defendant by one Me Donald. ’ ’ If the evidence sustains this allegation, then the indorsement is void under the statute, and the property in the certificates remains in Kinney. The evidence shows clearly that upon the cashing of each of them Kinney was paid the face value in money. Tie was at liberty to do with it as he pleased. The evidence shows that it was not an unusual thing for the proprietors of the saloon or the gambling tables to cash checks or other papers after banking hours as a matter of accommodation. There is nothing tending to show that at the time he cashed any one of the certificates, Kinney had make any bets upon credit, or that he owed the game, or Bingham [31]*31& Bumpf, for any money won by any of them. Certainly upon the face of tbe transaction tbe consideration for tbe indorsement and transfer was tbe payment in money of tbe full face value of tbe certificates. There is no intimation anywhere in tbe evidence that in cashing tbe certificates any amount was held back or kept out in payment of any debt whatever. Tbe evidence does show that after cashing one of tbe certificates Kinney paid to Sowadski tbe $25 be had borrowed from him during tbe evening. It is also probable from tbe evidence that all or part of this $25 was lost by Kinney at tbe faro game.
But a contract made to obtain money to repay this loan could not be said, in any possible view of tbe law, to have for its consideration money won at gaming; no more, I think, than if Kinney bad executed bis note for $25 at tbe bank tbe next day for money to pay tbe same debt. Bumpf states also that out of tbe proceeds of one of tbe certificates Kinney paid him $20 borrowed money. There is nothing in tbe evidence tending to show that the borrowing of this money was connected in any way with tbe transactions of that night, or with any gaming transaction. Indeed, as neither Kinney nor any of the other witnesses makes any mention of tbe borrowing. of any money from Bumpf that night, it is probable it was borrowed at some other time. I think, therefore, tbe evidence does not show, or tend to show, that the indorsement or transfer of tbe certificates “ was made for the consideration of money won from tbe defendant,” but tends very strongly to disprove that allegation.
Tbe statute further provides that all contracts, etc., made for tbe reimbursing or paying any money or property knowingly lent or advanced at tbe time and place of ‘•such play to any person or persons so gaming or betting, shall be utterly void and of no effect. ‘ ‘ Money lent ’ ’ is an expression that is popularly quite well understood, and it has no different legal or technical definition. It means a delivery of money to another to be returned or repaid, [32]*32and differs from the lending of any other property in that it is not ordinarily expected that the identical money will be returned, and also that ordinarily in the case of a loan of money some compensation is provided for in the way of interest or otherwise, while the lending of other property for a compensation is termed a hiring or letting. To “advance” money is to pay it before it is due; or it is to furnish money for a specified purpose understood between the parties, the money or some equivalent to be returned.
In every case of either a loan or advancement, as mentioned in this statute, there' must be contemplated a return or repayment in some form. This definition is emphasized, and that .the words are used in the statute in this sense is made clear by other words employed in immediate connection. . For the prohibition of the statute is against contracts “for the reimbursing or paying” money lent or advanced. The intention and purpose of this clause of the statute seems to be quite clear; that having legalized these games in deference to some supposed sentiment or condition of society, and provided that persons might win or lose money or property staked upon them, it was sought to hedge against some of the more pernicious results of such legislation, and guard persons against the greater folly of using their credit and incurring debt under the fever and excitement of gaming. The transaction here as revealed by the evidence does not come within the above definitions nor within the mischief sought to be guarded against. There is nothing in the evidence to indicate that these certificates were pledged, or were to be redeemed, or that there was to be any return or reimbursement or payment of the money obtained by Kinney. The certificates were simply “cashed,” the assignees taking them and the indorser .the money. The transaction was the exchanging of them for money, similar to the exchanging of a large coin or bank note for smaller ones more convenient for his use. It was not a loan or an advance, nor did the indorser contract for the reimbursing or paying of any money.
[33]*33But counsel for tbe plaintiff in error contends that any theory in regard to the advance of money on the certificates is largely artificial and technical, and that in substance and in fact the certificates themselves were lost at the game. He says this is established by the fact that at the beginning Kinney had the certificates and Me Donald the money, and at the end McDonald had both money and certificates. It is approximately, though not accurately; true, that at the end of the game McDonald had both money and certificates. But this falls very far short of establishing that the certificates were lost on the game, as distinguished from money lost on the game. So far as the distinction is of any value in the case the evidence shows conclusively that it was money, and not the certificates, that was lost on the game. But it makes no difference. If certificates so lost are recoverable by the loser, so is money as well. I am unable to discover any difference in that respect, or any advantage that the law gives to the one over the other.
Is then money or property lost at faro and paid over recoverable by the” loser in this State ? Plaintiff in error contends that it is, and relies upon Sec. 1001 of the statute, and adds further : “ The substantive law invoked is of long standing, and was an early enactment in the statutes of England and of many of the States, where it has received a uniform and unvaried construction adapting and applying it to every device and subterfuge which the ingenuity of gamblers could invent in the vain hope of defeating a wise public policy.” And we are referred to a great many cases in support of the claim of the plaintiff in error that it may be so recovered. These cases, with three exceptions, are from States where gambling and the keeping of gaming houses is unlawful. They are in no sense parallel, and furnish very slight assistance in determining the question here at issue.
We are specially referred, however, to three cases, Bryant v. Mead, 1 Cal., 441; Carrier v. Brannan, 3 Cal., 328; and Scott v. Courtney, 7 Nev., 419, which, it is urged, were ‘£ in regard to a licensed faro game and [34]*34under a statute the same as ours.” Each of these cases was a suit by the keeper of a licensed gaming bouse against a player for money won from him at faro but not paid. And in each of them it was decided that a statute authorizing the granting of a license to carry on a faro game should not be construed as conferring a right to sue for a gaming debt, but as a protection solely against a criminal prosecution, there being no statute in those States prohibiting the recovery of money won at play but not paid. As Sec. 1001 of our statute, already quoted, expressly provides that all contracts where any part of the consideration thereof shall be for any money or property won by any gaming shall be utterly void and of no effect, thus settling by statute the very question at issue in those cases, it is a little difficult to see why they should be relied on as decisions, ‘‘ under a statute the same as ours ” ; and especially when the question there decided is entirely different from the case at issue here.
We have no statute authorizing the recovery by the loser of money lost at gaming, and it could not be recovered at common law. Nor is it recoverable as illegal or contrary to public policy in this State. The price provided to be paid for a license to carry on one of the permitted games is not a mere tax. Sec. 1462 provides that each license shall contain a description of the room in which the game is to be carried on, and shall by its terms authorize the licensee to carry on one of the games mentioned, specifying it by name, in the room described therein for the period of three months. And it further provides that the licensee shall be entitled to carry on two or more games in the same room by paying a license for each game so carried on. This language, in my opinion, does not admit of any other construction than that the licensee is authorized and entitled to carry on the game for the ordinary purposes for which such a game is conducted; that is, to win money or property staked and to retain it as his own. It is absurd “to say that an act expressly authorized by statute is illegal or contrary to [35]*35public policy. The legislature bad the power to declare the public policy of tbe State and wbat should be legal in the premises, and it has done so. That it is a very bad public policy and a relic of a condition of society no longer existing in this State does not affect the validity of the statute.
But the court below gave judgment against the defendant for interest. The plaintiff took these securities with notice of their dishonor in payment of an antecedent debt and stands in no better condition than the original indorsees. The plaintiff in error was a substituted defendant standing in the place of the bank, the maker of the certificates. The bank has held itself in readiness at all times to pay to whomever should be found entitled to receive payment, and is liable on its contract only for interest to the maturity of the certificates at the rate of six per cent per annum. The suit being upon the certificates, and they ceasing to draw interest at maturity, six months from date, there is nothing in the pleadings upon which to base a judgment for interest'against the plaintiff in' error.
Moreover, this was not money loaned or due and withheld by unreasonable delay of payment, or money received to the use of another, which would bear interest under the statute. The evidence shows, and we have decided, that this transaction was not a loan to the plaintiff in error. If it were, under the statute, there could be no recovery of either principal or interest. If this were a suit against plaintiff in error upon his indorsement, a different question would be presented; though we are not prepared to say that our conclusion from the evidence would be different. Under the case as presented here, however, it is clear that the plaintiff in error is not liable for interest as such. Interest at the legal rate is adopted in many cases as the only available measure of damages, and if it were allowed in this case, it could only be by way of damages. Damages are not claimed; there is no allegation in the pleadings upon which a claim for [36]*36damages could be based, and it is not a case in which damages should be awarded.
The cause is remanded with instructions to the court below to enter judgment in favor of the plaintiff for the sum of $452.37, being the amount of said certificates with interest at the rate of six per cent per annum for the period of six months, ordering the First National Bank of Rock Springs to pay said amount forthwith to the plaintiff, Harry P. Hynds, with judgment against the defendant, M. Kinney, for costs of the action.
Modified.
Conaway, C. J., and PotteR, J., concur.