2019 New Mexico Statutes
Chapter 44 - Miscellaneous Civil Law Matters
Article 5 - Gambling Debts and Losses
Section 44-5-1 - [Money and property losses; loser's right of action for recovery; nature of remedy.]
Any person who shall lose any money or property at any game at cards, or at any gambling device, may recover the same by action of debt, if money; if property, by action of trover, replevin or detinue.
History: Laws 1856-1857, p. 34; C.L. 1865, ch. 36, § 1; C.L. 1884, § 2290; C.L. 1897, § 3199; Code 1915, § 2507; C.S. 1929, § 58-101; 1941 Comp., § 25-1001; 1953 Comp., § 22-10-1.
ANNOTATIONSCross references. — For deductions considered taxes, see 7-3-4 NMSA 1978.
For criminal statutes with respect to gambling, see 30-19-1 to 30-19-14 NMSA 1978.
For replevin generally, see 42-8-1 to 42-8-22 NMSA 1978.
These provisions were designed to discourage gambling. Wolford v. Martinez, 1923-NMSC-058, 28 N.M. 622, 216 P. 499.
Courts will not aid the winner in the enforcement of contracts or in the recovery of money or property won through gambling devices, or wagers in violation of this section. Appleton v. Maxwell, 1901-NMSC-009, 10 N.M. 748, 65 P. 158.
Recovery not barred because loser first suggested gaming. — The mere fact that plaintiff himself first suggested a game of poker does not deny him the benefit of this section. Snure v. Skipworth, 1956-NMSC-073, 61 N.M. 340, 300 P.2d 792.
Coin flip to decide between two alternatives not gambling. — Agreement between vendor and purchaser of a mortgaged farm whereby a coin flip was used to determine whether or not purchase price would be reduced, but where regardless of outcome vendor would be relieved of obligation to pay penalty in the event that purchaser decided to pay off mortgage, was not void under the provisions of Sections 44-5-1 and 44-5-4 NMSA 1978 as being arrived at through gambling. This was no evil in the use of such coin flip for the purpose of determining which alternative should be applicable. (Because Sections 30-19-1 and 30-19-2 NMSA 1978 were not in effect at the time the agreement took place, the definitions of "bet" and "gambling device" as contained in those sections were not used in deciding this case) Garvin v. Hudson, 1966-NMSC-108, 76 N.M. 403, 415 P.2d 369.
Bank on which debt payment check drawn is necessary party. — Bank as holder of the funds on which check in payment of an illegal gaming contract was drawn was a necessary party in proceeding brought by payee to cancel the check, as bank, had it cashed such check, would have been liable for the full amount. Teaver v. Miller, 1949-NMSC-043, 53 N.M. 345, 208 P.2d 156.
When two or more confederate to "shear a lamb" at gaming, they render themselves jointly and severally liable under statutes such as this. Snure v. Skipworth, 1956-NMSC-073, 61 N.M. 340, 300 P.2d 792.
Loss occurs when game played not at time of payment. — Where, in action to recover money lost at gambling device, it was in evidence that plaintiff did not settle the loss at the time of the play, but about six weeks later he gave a check which defendant cashed, the loss occurred at the time the game was played and not when the check was given or the money paid. Mann v. Gordon, 1910-NMSC-059, 15 N.M. 652, 110 P. 1043.
Must prove defendant won and received payment through stakeholder. — In order to recover money under these provisions, it must be proved that defendant won said amount from the plaintiff and that he received said amount from the plaintiff through the stakeholder. Armstrong v. Aragon, 1905-NMSC-003, 13 N.M. 19, 79 P. 291.
Winner's year-old losses to plaintiff cannot be set-off. — In action to recover money lost at gambling within one year prior to the bringing of the action, moneys won at gambling by plaintiff from defendant more than one year prior to the bringing of plaintiff's action could not be pleaded as a set-off or counterclaim. Mann v. Gordon, 1910-NMSC-059, 15 N.M. 652, 110 P. 1043.
Uniform Negotiable Instruments Law did not modify these provisions. — There is no repugnancy between this law and the Uniform Negotiable Instruments Law (since repealed) which was not intended to modify these provisions concerning gambling. Farmers' State Bank v. Clayton Nat'l Bank, 1925-NMSC-026, 31 N.M. 344, 245 P. 543.
Law reviews. — For article, "Approaching Statutory Interpretation in New Mexico," see 8 Nat. Resources J. 689 (1968).
Am. Jur. 2d, A.L.R. and C.J.S. references. — 38 Am. Jur. 2d Gambling §§ 212, 213.
Right to recover money which plaintiff placed in hands of an agent to be used for gambling purposes, 3 A.L.R. 1635.
Accountability to owner of one who receives funds for "bucket shop" transaction from third person acting without authority, 35 A.L.R. 427.
Recovery of losses on horse races, 45 A.L.R. 1003.
Margin transactions or dealings in futures as within statutes providing for recovery back of money paid on gaming consideration, 49 A.L.R. 1085.
Rights and remedies in respect of money in gambling machine or other receptacle, used in connection with gambling, seized by public authorities, 79 A.L.R. 1007.
Right of professional gambler in action by casual gambler to recover losses, to set off money lost by him to casual gambler, 88 A.L.R. 1078.
Violation of statute relating to bucket shops or bucket shop transactions as ground of action by customer or patron, 113 A.L.R. 853.
Statute permitting specified forms of betting as affecting civil action on wagering contract, 117 A.L.R. 835.
Gambler's right to recover money lost by him as including money belonging to others, 162 A.L.R. 1224.
Rights and remedies in respect of property pledged for payment of gambling debt, 172 A.L.R. 701.
Recovery of money or property lost through cheating or fraud in forbidden gambling or game, 39 A.L.R.2d 1213.
Right of owner to recover his money gambled away by another without authority, 44 A.L.R.2d 1242.
Law or policy of forum against wagering transactions as precluding enforcement of claim based on gambling transaction valid under governing law, 71 A.L.R.3d 178.
Right to recover money lent for gambling purposes, 74 A.L.R.5th 369.
38 C.J.S. Gaming § 45 et seq.
