Harris v. McDonald

Mr. J ustice Adams delivered the opinion of the court. The bill in this case was filed under section 135 of the Criminal Code, which is as follows: “All judgments, mortgages, assurances, bonds, notes, bills, specialties, promises, covenants, agreements and other acts, deeds, securities or conveyances given, granted, drawn or executed contrary to the provisions of this act, may be set aside and vacated by any court of equity upon bill iiled for that purpose by the person so granting, giving, entering into or executing the same, or by his executors or administrators, or by any creditor, heir, devisee, purchaser or other person interested therein; or if a judgment, the same may be set aside on motion of any person aforesaid, on due notice thereof given.” Starr & C.’s Stat., C. 38, Par. 258. Appellants’ counsel contend that the case stated in the bill is not within or contrary to the provision of the act in which the section quoted occurs. Section 127 of the act is as follows: “ Whoever keeps a common gaming house, or in any building, booth, yard, garden, boat or float, by him or his agent used and occupied, procures or permits any persons to frequent, or to come together to play for money or other valuable thing, at any game, or keeps or suffers to be kept any tables or other apparatus, for the purpose of playing at any game or sport for money or any other valuable thing or knowingly rents any such place for such purposes, shall, upon conviction for the first offense be fined not less than $100, and for the second offense be fined not less than $500 and be confined in the county jail not less than six months, and for the third offense shall be fined not less than $500, and be imprisoned in the penitentiary not less than two years nor more than five years.” Id., paragraph 250. The knowingly renting premises to be used for gambling purposes is prohibited by this section, and is therefore contrary to the provisions of the section. Both sections are contained in the act of 1874, revisory of the Criminal Code. It is further contended by appellant’s counsel that the appellee might have set up the illegal purpose for which the premises are alleged to have been leased, in the suit at law, under the plea of non-assumpsit, and not having thus pursued his legal remedy, he is precluded from proceeding in equity. This contention was overruled in Mallett v. Butcher, 41 Ill. 382, the court admitting the general rule 61 that when a party has a defense to an action at law known to him, and he fails to make it, no court can relieve him,” but holding that the section first above quoted takes all cases to which it applies out of the general rule. To the same effect are : West v. Carter, 129 Ill. 249, 254, and Patterson v. Scott, 33 Ill. App. 348; McDonald v. Tree, 69 Ill. App. 134, was assumpsit against a guarantor of a lease, and the court held that when the premises are rented by the lessee for gam bling purposes, and this is known to the lessor, there can be no recovery. See also Eyan v. Potwin, 60 Ill. App. 637; Same v. Same, 62 lb. 134; Wood on Land, and Tenant, Sec. 556, and note 3; Woodfall’s Land. and Tenant, 1st Am. Ed., 533, and Taylor on Land, and Tenant, 8th Ed., Sec. 521. The bill was properly verified, and we are of opinion that the facts alleged warranted the court in granting the injunction without notice. The order will be affirmed.