Roberts v. Taylor

— If this bill can be sustained, it must be on the ground/ that the endorsement of a note or bond is a contract, within the meaning of the statute, against gaming.

The language of the act is, that “All promises, agreements, notes, bills, bonds, or other securities or other conveyances whatever, made, signed, given, granted, drawn or entered, or executed by any person or persons whatsoever, after the passing of this act, where the whole or any part of the consideration of such promise, shall be *255for money or other valuable thing laid or betted at cards, &c. shall be utterly void, and of no effect, &c.

That an endorsement of a note or bond is a contract or agreement, entered into by the parties to such endorsement, is a question too clear to admit of doubt, or to require authority to support, and, by necessary consequence, included in the terms of the act above referred to. Being within the act, it is clearly void, as between the original parties to the transaction; whatever might be the legal consequence of such ai» endorsement, in' the hands of a bona fide holder, without notice of the consideration of the original transfer.

This court, in the case of Tindall vs Childress & May, (2 Stewart & Porter,) intimated an opinion, that the case of a transfer or assignment of a note, was not embraced by the statute against gaming; but that question did not necessarily arise in that case, as the plaintiff there was an innocent holder — and the court, after considering the question, say : “ But it is unnecessary to discuss this question, or to collate authorities upon it, as the complainant, from the evidence before us, occupies the place of an innocent holder.” The parties before us, are the parties to the original gaming transaction, and, it seems to us, that not only on principle, but also to carry into effect the manifest object of the legislature, we must declare this assignment such an agreement as is declared void by the legislature.

If, then, the assignment be void, the defendants in error can acquire no title thereby in the note, and the property in it still remains in the complainant.

It is, however, insisted by the defendants counsel, that *256a court of chancery cannot Interfere, after a judgment at law, where the defence was legal, and might have been made on the trial at law. The principle, as stated, is undoubtedly correct, and has been frequently sanctioned by this court ;■ but we do not think it applies to this case. Without determining what was the intention of the legislature in the enactment, that “ The courts of equity shall have jurisdiction in all cases of gambling consideration, so far as to sustain a bill of discovery, or to enjoin judgments at law,” it is sufficient, in this case, that the plaintiff in error is not concluded, by the omission of Vaughn, the maker of the note, to make a defence at law; nor was Vaughn under any obligation to do so.

It is, then, the naked case of one, without any consideration, obtaining the title to a note, instituting proceedings thereon in his own name, and obtaining judgment. He can be considered in no other light than that of a trustee for the true owner; and the proceeding by bill in equity, enjoining Vaughn from paying over the money, was strictly correct.

It is said that the parties are in pari delicio, and that the court should not interfere between them. We cannot think so. Between the professional gambler, and his deluded victims, there is a great inequality of guilt; but we do not decide on that principle solely. We hold that in all cases, as between the original parties, the courts will interfere, when the money has not actually been paid; and it may well admit of doubt, on principle, though the weight of authority is against it, whether, independent of all statutory regulation, even money won at play may not he recovered back.

*257That eminent jurist, Judge Story, in his Commentaries on Equity, says: “ But it is difficult to perceive why, on principle, the money should not be recovered back, independent of any statutable provision; since it is in furtherance of a great public policy ; a'nd it is very certain that if money is paid on a gaming security, it may be recovered back, — for the security is utterly void. Is not the or inal gaming contract equally void, and therefore equally within the rule and the policy on which it is founded.” — (See 2 Story’s Equity, and cases there referred to — 303.)

But no final decree can be entered in this court, as Yaughn has never answered; nor have any proceedings been had against him.

The decree of the court below must therefore be reversed, and the cause remanded for further proceedings, in conformity with this opinion.