¶1(dissenting). The liability of the defendant in this action is controlled by the inquiry whether the winner of a wager may claim his exemption against the enforcement of the recovery thereof by the loser. In my opinion the policy of our statute denies the right. That policy is thus aptly stated by Denson, J., in Motlow v. Johnson, 145 Ala. 376, 39 South. 711. “The object of the statute avoiding gaming contracts is, besides placing the seal of the law’s condemnation on such contracts, to put the parties in statu quo as to all money won or lost.” This policy is emphasized by the provision that the recovery may be effected for the use of the loser’s wife or children or next of kin. Code 1907, § 3339. In view of the stated policy, suggested by the highest moral considerations, it seems impossible to me that the right to defeat by claim of exemptions the recovery, plainly provided for, should stand on the same footing, be treated with the same favor, as the ordinary obligation to satisfy the demands arising out of a contract, express or implied. If this favor is extended, the winner in the wager may flaunt in the face of the wife or children of the loser the sum won and which he secured by a violation of the penal statutes of the state. The form of the action, debt, cannot influence the conclusion. — Crawford v. Slaton, 133 Ala. 393, 31 South. 940, and authorities cited therein, afford a serviceable analogy, for there can be no distinction in principle between a case where the law declares the pen*213alty recoverable and one where it declares that the money or thing of value received in violation of law may be recovered.
¶2This consideration is conclusive, to my mind, that my Brothers are in error. If the thing lost at a wager be a chattel, a horse for instance, and the loser institute, as he may, detinue for its recovery, the defendant (the winner) could not claim any exemption in the premises, either as to the costs incurred or against the enforcement of judgment for the alternate value if the horse was not to be had. If this is true, then we have the anomaly of one loser being defeated in the recovery of money wagered and another, whose loss was a horse, successful in his action, because of the mere difference in the character of the thing wagered. A construction leading to such contradictory results must be unsound. The statute mates no distinction. Should we by construction create one in opposition to the plain terms of the statute?