Barker v. Callihan

COLLIER, C. J.- It is immaterial to the parties who have assigned error here, what decree has been rendered against Thomas, if the cause has been correctly disposed of as to them. They cannot be permitted to allege an error as to him which does not affect themsolves. [Morgan v. Crabb, 3 Porter’s Rep. 470; Bumpass etal. v. Webb, 4 Porter’s Rep. 65.] Here the important questiion is, whether the defendants claiming the notes, are, as against the complainant, entitled to them: if they are not, it is unimportant to their interests who receives the money. The jurisdiction of equity in the present case, we think is unquestionable in order to prevent a transfer of the notes and the prosecution of suits upon them. The remedy afforded by a Court of Chancery, is certainly more effectual and complete than an action of detinue or trover could be, conceding that they are maintainable by the complainant. The act of 1812, which enacts that “ courts of equity shall have jurisdiction in all cases of gambling consideration, so far as to sustain a bill for discovery, or to enjoin judgments at law,” does not confer upon our courts of chancery, the entire jurisdiction they possess in cases of gaming contracts; independent of legislation upon the subjeet, they [711] may grant relief in such cases, upon a proper showing being made. [Fenno, et al. v. Sayre & Converse, 3 Ala. Rep. 476. See also Lyon v. Respass, 1 Litt. R. 135.] But it is unnecessary to consider at greater length the question of jurisdiction. It is fully maintained by Roberts v. Taylor et al., [7 Porter’s Rep. 256.] There, the court say, that the winner of a note or other security at an unlawful game, “ can be considered in no other light than that of a trustee for the true owner”; and a proceeding by bill in equity injoining the maker from paying the money, was strictly correct. The act of 1807, “to prevent the evil practice of gaming,” [Aik. Dig. 209,] enacts 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 for money or other valuable thing laid or betted at cards, &c., shall be utterly void, and of no effect,” &c. In Roberts v. Taylor et al. supra, it was held, under the influence of this statute, that the indorsement of a aote or bond was a contract within its terms. And being made to pay money lost at gaming, was void as between the original parties to the transaction, or in the hands of one claiming under the indorsee with notice of the circumstances. In the case before us, it is true, that the notes were transferred by delivery merely, but this is not less a contract than if they had been indorsed. It is an agreement within the terms of the statute, that the persons to whom the notes were delivered, should be their proprietors and receive the money thereupon; and if intended to pay losses sustained at the gaming table, is void, and passed no property in the notes to the winners. The objection that the parties are in pari delicto, and equity will not therefore lend it aid to arrest the payment of the notes, cannot be sustained. In the case last cited, the court say, “We hold that in all cases as between the original parties, the courts will interfere when the money has not been actually paid” on a gaming security. If, as between the original parties, relief will be afforded against the winner, no argument can be necessary to prove that one claiming under him, with notice, stands in the same predicament. This results from the analogies of the law, and from a very general, if not universal, rule which places pur [712] chasers with notice, upon a footing with those under whom they claim. The evidence is entirely satisfactory to show, that the notes were lost by the complainant at gaming, as alleged in his bill. Discarding the declarations of that fact made by the winners, and still the testimony is conclusive on the point. It is proved that the complainant while drunk was engaged with them at a game in Selma; that immediately thereafter the notes were in their possession: in addition to this, the agent of the winners informed Ferguson, that the note which he sold him had been won of the complainant. There is other evidence to this point, but it need not be noticed. The declarations of the winners, unexplained, are conclusive against them; and the other facts recited, not only show that the complainant lost them at gaming, but that Ferguson purchased with a knowledge of the fact. This being the case, it follows from what has been said, that the decree of the Chancellor is correct, at least so far as it concerns the parties who have here assigned error; and it is consequently affirmed.