## Facts

- Webb and Fulchire participated in a wagering “cup-and-ball” game prohibited by law.
- The game involved three cups and a ball placed under one cup.
- Webb wagered he could identify the cup covering the ball and alleged he selected the correct cup.
- Webb alleged that, after his selection, Fulchire used sleight of hand or another contrivance to remove or manipulate the ball so it appeared Webb had guessed incorrectly.
- Webb sued in assumpsit for money had and received to recover the money he paid after being cheated.
- The trial court entered a nonsuit for Fulchire on the ground that the claim arose from an illegal gambling transaction.
- Webb appealed.

## Issues

1. Whether a participant who loses money in an illegal gambling game may recover the money from the opponent by alleging it was obtained through fraud or cheating.
2. Whether an action for money had and received is barred when the surrounding transaction is illegal but the defendant’s retention of the money rests on fraudulent conduct.

## Decision

- The Supreme Court of North Carolina reversed the judgment of nonsuit.
- The court held that Webb could maintain the action to recover money obtained from him by Fulchire’s fraud, notwithstanding the illegality of the game.
- Judgment was entered for Webb to recover the money paid under the fraudulent device.

## Legal Principles

- Courts will not enforce an illegal gambling contract, but illegality does not shield a party who procured money through fraud.
- A restitutionary claim for money had and received may lie when the gravamen is cheating or imposition rather than enforcement of the unlawful bargain.
- Public policy against gaming does not extend to protecting fraudulent conduct; permitting a cheat to retain the money would reward the wrong.
- A void wagering agreement does not bar recovery where the defendant’s lack of entitlement stems from manipulating the game and defeating any fair chance of winning.

## Conclusion

A loser in an illegal gambling game may recover money paid to an opponent who obtained it by cheating; the action is treated as restitution for fraud, not judicial enforcement of an unlawful wager.


Webb v. Fulchire, 25 N.C. (3 Ired.) 485 (1843)