N.M. Stat. § 44-5-1 (2026)

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.

                                    ANNOTATIONS

Cross 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.