9 Md. 526 | Md. | 1856
delivered the opinion of this court.
The bill in this case, filed the 5th August 1852, alleges, that on the 29th of May 1849, the complainant executed a single bill to Augustus R. Sollers, on which suit was instituted in his name for the use of James Kent, and on the 7th of August 1850, judgment by default was entered against the complainant upon the said single bill; the only consideration of which is money Sollers claims or pretends to have won in " betting and gambling at cards” with the complainant.
The bill also states, that a fieri facias had been issued upon the judgment; and after calling on the defendants, Sollers and Kent, to answer generally, but especially as to the consideration of the single bill, it prays for an injunction to stay all further proceedings on the judgment and éxecution, and for such other relief as the case may require.
The single bill is for $869, on the back of which is an assignment from the obligee to James Kent.
An injunction and subpoenas were issued. Sollers was returned summoned, but never appeared. Kent was returned “Mortwus est.” After which the present appellee, as administrator of Kent, appeared and demurred to the bill, assigning the following causes of demurrer.
“ First, that the said complainant hath not, in and by his bill, stated such a case as doth or ought to entitle him to any such discovery or relief, as is thereby sought and prayed for, from or against this defendant.
“ Second, that if the matters stated do give the complainant any cause of complaint against this defendant, the same is triable and determinable at law, and ought not to be inquired of by this court.”
The appellee insists upon his right to an affirmance of the decree, because, conceding the single bill was given for a gambling consideration, if that rendered the claim nugatory and void, it might have been used as a defence to prevent the judgment at law; and failing to do so, the complainant is not entitled to relief in a court of equity.
In Thomas, Trustee of Lloyd, vs. Watson, decided in the Circuit Court of the United States, for the Maryland District, Lloyd, it seems, had confessed a judgment in favor of Watson, upon two promissory notes given by the former to the latter. Lloyd became insolvent, and Thomas was appointed his trustee. An execution having been issued on the judgment, and levied, the trustee filed a bill, alleging that one of the notes was given for an usurious and the other upon a gambling consideration, offering to pay the amount actually lent by Watson to Lloyd, with legal interest thereon, and praying to be relieved from the residue of the judgment. The bill called on the defendant to state the consideration for which the notes were given. The defendant demurred to this interrogatory, assigning for cause of demurrer, that the consideration of the notes was triable and determinable in the suit at law, and ought not, therefore, to be inquired into in a court of equity. The complainant excepted to the answer as insufficient, insisting that the defendant was bound to answer the interrogatory; and the cause was heard upon the exceptions, and upon a motion to continue the injunction, which had been issued. After argument, the complainant’s exceptions were allowed, the defendant’s answer was adjudged insufficient, and the injunction continued until the further order of the court.
The opinion of the court, in that case, was delivered by Chief Justice Taney, who has examined the subject with his usual ability, as may be seen in the note below — a manuscript copy of which opinion was used in the argument of this case.
It has been said, by the appellee, the Circuit Court of the United States, in the case referred to, were wrong in: holding a security given for a gambling debt to be void in this State. He contends the decision was based upon the idea that the statute of 9th Anne, ch. 14, was then in force here, when, in fact, it was not. The act of 1813, ch. 84,. he says, does not make void, such securities as the present, but simply provides, they shall not be “demandable or recoverable before any court of justice;” and not being absolutely void, but only voidable, i,f resisted in proper time, a court of equity, after a judgment at law, could not prevent the claimant from demanding payment. The proviso of that law, declaring the act should not be construed to extend to any suit or action at law then pending, the appellee says, is a legislative construction, that the statute of 9th Anne was not then in force in Maryland, and that prior to the passage of the act, a suit might be maintained upon a gambling security or claim.
But we see nothing in this, or any previous law, which, either in express terms or by necessary implication, repeals the statute of Anne. Should it be conceded the laws relate to the same matters, they are not so inconsistent as to require that the statute should be considered as repealed by our legislation. And in reference to whether a suit could or could not be maintained upon a security given for a gambling consideration prior to the act of 1813, if the proviso of that act has any relation to such securities, it can only be regarded as a legislative interpretation of what was the previous law on the subject; which
In Hook vs. Boteter, 3 H. & McH., 348, the statute of 9th Anne, ch. 14, was recognised as being in force in Maryland. It is also to be found in Kilty’s Rep. of Statutes, under the head of “ Statutes found applicable and proper to be incorporated.” This report of Mr. Kilty’s, the Court of Appeals have said, “was compiled, printed and distributed, under the sanction of the State, for the use of its officers, and is a safe guide in exploring an otherwise very dubious path.” Dashiell vs. Attorney General, 5 H. & J., 403.
These authorities show, that the statute of Anne has been considered as included among the English statutes which have been adopted in Maryland. The first section of which provides, that “all notes, bills, bonds, judgments, mortgages, or other securities or conveyances whatsoever,” given for a gambling consideration, in whole or in part, “shall be utterly void, frustrate and of none effect.”
The statute of 16 Charles 2nd, ch. 7, which is, “An act against deceitful, disorderly and excessive gaming,” Mr. Kilty also informs us is in force in this State, and proper to “be introduced, &c., together with that of Anne.”
The note for money won at play, in Thomas vs. Watson, is declared, in most explicit terms, to be “void by law.” Believing this to be true, of course we cannot adopt the view of the appellee, that the single bill in this case, if given for money claimed to be won at cards, was not void, but only voidable.
But admitting the single bill to be void as between the complainant and Soliers, still it is contended, by the appellee, that a court of equity will not grant the relief sought, by restraining an innocent bona fide assignee, for value, without notice of the gambling transaction, from enforcing his claim under the judgment.
In Boyer vs. Bampton, 2 Strange, 1155, it was decided, that an indorsee of promissory notes given for a gaming transaction could not recover upon them, although he had no knowledge that they were for money lent for the purpose of gaming.
The two cases just mentioned, as likewise Woodson & Royster, vs. Barret & Co., and Skipwilh vs. Strother, et al., proceed upon the principle, that the security sued upon in each case was absolutely void in its creation, and could not be made valid by a subsequent transfer of it, even to a party having no knowledge of the defective consideration. In the two cases last mentioned there were judgments at law, in neither of which was any defence made because the claim was for gaming, and in each the claimant was an innocent assignee. Nevertheless a court of equity prohibited the assignee from enforcing the claim.
In Woodson & Royster, vs. Barrett & Co., Judge Tucker, in very strong terms, denies that want of notice of a bond or other security being given for money won at gaming, will entitle the assignee without notice to recover in an action upon the bond or security. And he very correctly says: “A contrary decision would be tantamount to a declaration, that the statute against gaming was of no force or obligation whatever.” He also says, what is certainly true: “ The circulation of gaming bonds is an evil no less to be discountenanced than the giving of them. And no means are more likely to prevent the giving of them than to put an effectual stop to their circulation.”
Much has been said of the great hardship which will be imposed upon an innocent assignee, if the principle contended for by the appellant is adopted; but although it may be true that such hardship will be the consequence, still the opposite theory will be instrumental in putting an end to what has been considered a wholesome restraint upon gaming contracts, and
But suppose it will' impose a hardship on an assignee, it is but a hardship similar to that which a party is subjected to, who takes an assignment upon an obligation given by an infant or a feme covert. In either case it would be considered strange law, to hold that the assignee would be entitled to recover upon such an obligation, because he had no knowledge of the infancy or of the coverture.
The bill charges, “that the only consideration of the said single bill is money which the said Augustus R. Sollers claims, or pretends to have been won, in betting and gambling at cards” with the complainant. That he “has been since the transaction so perfectly satisfied, and still is so, from his recollection of the facts, that although the said Augustus R. Sollers claims to have won the amount of said single bill, he did not win, but that the complainant was the winner, he feels, in justice to himself, compelled to avail himself in this case of the statutes and laws against gambling in order to defeat this unjust claim, a position he declares he would not take except under such or similar circumstances as those which surround this case.”
The appellee considers this averment as tantamount to saying the single bill was not given for a gambling consideration, but entirely without consideration. And therefore it does not come within the operation of laws which make void a security given for money won at cards, but it is a mere nudum pactum, from which, after a judgment thereon, the party can claim no relief in a court of equity. But the bill certainly alleges, the consideration for which the security was given was money claimed by Sollers to be won by him. It was given and received, according to the understanding of the parties at the time, for a gambling consideration, and as such was void. It was not until after the transaction the complainant became satisfied that instead of being the loser he was the winner. When, therefore, the instrument was executed, it was intended by the obligor to secure the payment of money claimed to have been won of him by the obligee, who took and held the security for that purpose. Under those circumstances the single bill
Decree reversed and cause remanded.