16 N.C. 322 | N.C. | 1829
The defendants all denied any combination to win money of the plaintiff, but admitted that the bonds mentioned in the bill had been given to secure money won at play. The defendants Holloway and Cannon admitted that they had won very small sums of the plaintiff, and that they had purchased bonds executed by the plaintiff, which they knew were given for money won at play, and that these bonds in some instances had been incorporated with others, and were the same upon which the judgments had been rendered.
Copies of the records in the actions at law were filed as exhibits to the answers, from which it appeared that the only pleas entered were those of payments and a set-off.
At the hearing, DANIEL, J., perpetuated the injunction except as to one judgment which was founded on a note assigned to the defendant Holloway, and which was purchased by him at the request of the plaintiff. Upon this judgment, his Honor also perpetuated the (323) injunction as to the discount made by Holloway.
From this decree the defendants Holloway and Cannon appealed. If such a construction had or could have been given to the act of 1788 (Rev., ch. 284), made for the suppression of gaming, that no title would have accrued to money or property won at any game, whether the same was delivered and paid or not, I think the ruinous effects of gaming would have been more radically prevented. If money won and paid could be recovered back, a successful gamester would hold it by too doubtful a tenure to risk as much to get possession of it as he would when he knows that possession makes it his own. Considerations of this sort, however, belong to the Legislature, because judicial decisions have given the act a different construction. The law may be taken as settled that money won and paid cannot be recovered back.
The case before the Court is not one in which a court of equity is called upon to cause bonds to be delivered up which were given upon a *178 gaming consideration, but to enjoin the defendants from further proceedings upon judgments obtained at law, upon bonds admitted to have been thus given, when no resistance was made at law to prevent the judgments from being obtained.
If the judgments were paid off, it would be the common case of money paid on a gambling consideration, which could not either at law or in equity be recovered back.
(324) At law, the rights of the defendants under the judgments are perfect. They can take out executions and possess themselves of the money through the ministerial agency of the sheriff. Possession of the money make them more secure in the enjoyment of it, but it gives them no better right to it than the judgments do; therefore, a court of equity will not sooner interfere, where judgment has been obtained upon a bond given upon a gaming consideration, where no attempt has been made to prevent it, than it will where money has been won and paid over.
There is much complaint of fraud and circumvention in the bill, and did it appear that the judgments were obtained through the instrumentality of these means, a ground might be furnished on which to support the injunction. But that does not appear to be the case. They were obtained not against plaintiff's consent. His opposition has arisen since, but I think it cannot avail him nor prevent a dismission of his bill.
PER CURIAM. Bill dismissed.
