Finn v. Barclay

DARGAN, J. A note, or other security, given on a gaiming consideration, is void under our statute, even in the hands of a bona fide holder, Manning v. Manning, 8 Ala. 138. The note on which the judgment was rendered, was void in the hands of the payee, and equally so when it came to the hands of Barclay. But it is contended, that Barclay should be protected, for the reason, that after he had received it from Rice, as collateral security, to secure a debt due from Rice to him, the makers promised him that they would pay it, and would not take advantage of the illegality of the consideration, and in consequence of this promise, he had released the debt, due by Rice to him, to secure which, he had previously received the note. If the maker of the note, induce one to purchase it of the payee, and he who was induced to part with his money, or property, in payment of the note, was ignorant of the consideration, the maker is estopped from alleging against the purchaser, that the note was founded on a gaming consideration. Benerly v. Smith, 1 Wash. 297; 8 Ala. Rep. 138. This is not, however, the condition of Barclay. The note showed on its face that it was given on a gaming consideration. He acquired it as a collateral security from Rice, who [630] had obtained it from Savery. Neither Rice nor Barclay, had been induced to take the note by the makers ; nor did they part with any thing valuable for the note, at their request. But after Barclay had obtained the note as collateral security, the makers promised payment. Barclay says, that relying on this promise, he released to Rice, the debt to secure which the note was received. It does not appear, however, that the makers of the note even knew npon what consideration Barclay obtained the note, nor did they request him to release, or give up any right he had on Rice. But the release of the debt from Rice, was a mere voluntary act, without any request of the makers. Barclay is not, therefore, a bona fide holder, nor has he departed with any right at the request of the makers. He stands, therefore, in the same situation that Savery, the payee, occupies, and can claim no further protection from the same, than the payee could. The note was given for a horse, worth eighty dollars, conditioned to be paid when James K. Polk should be elected president of the United States; the amount of the note being one hundred and sixty dollars. It is clear from the record, that the whole transaction was a mere wager, on the presidential election, and the security given, void. Givens v. Rogers, 11 Ala. Rep. 543; ib. 656. But as the parties permitted judgment to go against them at law, and never filed their bill to obtain an injunction, but do not offer to return the horse, or to account for his value, the question is, ought' a court of equity to interfere, and afford relief. It is very clear, that a court of equity acting upon the general rules that govern in such cases, would not interfere at all after a judgment at law, unless the defendant was prevented from making his defence, without negligence, or fault on his part. And if he applied to equity for relief, before judgment had been obtained, he would be required, before he received relief from the chancellor, to do equity, and therefore his bill should contain an offer on his part, to do what the' chancellor should adjudge equitable. It is this offer of the complainant, that gives the court the authority to decree against the complainant, the amount actually and in good conscience due ; and therefore this court will not interfere in his behalf, unless the complainant will, by his bill, enable the court to do complete justice. Branch Bank at Mobile v. Strother, at this term. [631] The bill, however, in this case, contains no offer to return the horse, nor to pay his value; and if it can be sustained at all, it must be by our statute, that declares all gaming contracts void, and gives jurisdiction to our courts of chancery, so far as to sustain bills of discovery, and to enjoin judgments at law, founded on gaming securities. The act of 1807, Clay’s Dig. 257, declares all promises, agreements, notes, bills, bonds; or other contracts, judgments, mortgages, and other securities, where the whole, or any part of the consideration thereof shall be founded on a gaming consideration, to be utterly null and void. See Givens v. Rogers et al. 11 Ala. 543; Trammel & McCarty v. Gordon, 11 ib. 656; 8 ib. 138. By the act of 1812, Clay’s Dig. 350, it is enacted, “ that courts of equity shall have jurisdiction of all cases of gambling consideration, so far as to sustain bills of discovery, and to enjoin judgments at law. Under this last act, a court of equity is bound to entertain a bill, seeking to enjoin a judgment at law, which has been rendered on a security given for a gaming consideration, although the complainant could have defended himself at law, but did not do so. Manning v. Manning 8 Ala. 138; Cheatham v. Young, 5 ib. 353; Fenno v. Sayre & Converse, 3 ib. 458. Being bound then to take jurisdiction, because the judgment is founded on a gaming consideration, how far are we bound to afford relief by the statute of 1807, when the complainants do not offer to do equity ? This act declares void, all contracts, of whatever kind, or nature, where the whole, or any part, is founded on a gaming consideration. Being compelled by the act of 1812, to take cognizance of the bill, we are compelled to declare the contract, and the judgment thereon rendered, null and void; and we cannot'decline to take jurisdiction, because the complainants do not offer to restore the horse received from Savery, the title to which he has never legally parted with. We must therefore reverse the decree of the chancellor, and here render the decree he should have rendered, on the bill, answer and proof, perpetually enjoining the judgment at law. It is further ordered, and decreed, that the defendants in error pay the cost of this court, and also the cost of the court below.