13 N.C. 303 | N.C. | 1830
FROM ORANGE. The defendants having made out their case, the plaintiffs proved that the obligee in the bond had, before its date, commenced an action against the defendant Peacock; that pending that suit the obligee and Peacock had compromised their differences, and the bond in question was, upon that compromise, given to the obligee.
The counsel for the plaintiffs insisted that the bond, being given to compromise the former action, was upon a valid consideration, and was not avoided by the statute, although the first action might have been brought upon a gaming contract. But his Honor, Judge NORWOOD, charged the jury that although the bond was taken upon a compromise of the first action, yet if the sum secured by it, or any part thereof, was won at an illegal game, the defendants were entitled to a verdict. A verdict being returned for the defendants the plaintiff appealed. The instruction given to the jury, I think, was right. By the statute every contract to secure money won at any of the forbidden games, is void. And if the bond be contaminated by including in it, however small the portion, money of that kind, it is invalid; because the Court cannot apportion it, and hold the security good for a part, since the statute makes it void for the whole.
The statutes against gaming and usury have always been liberally construed, since they are made for the protection of the unwary and the distressed. Hence, no shift or device is permitted to defeat them. And, however, a transaction, once tainted, may be disguised, whatever mutations in the securities may take place, the whole, as between (305) the same parties, and while continuing in contract, remains forever void. It is true, though once held to the contrary, that the injured *192 party may waive his privilege, as the Court cannot inquire into the facts, and apply the law, unless it be brought to their notice by the plea of the defendant. But the inquiry is, how long may he plead this matter? When is he deprived of this defense? The cases all show that this is a good one as long as he can make any; that is, until the matter has become res judicata. It would continue then to be good, if it could be reached; and the party is precluded from it only because a judicial sentence estops him from alleging anything against it. From the necessity of the case, too, it follows that whatever be done under such a judgment must be sustained, since to impeach that would be to impeach the judgment itself.
The case of an award has been put in argument, as an instance of a valid security, to which the statute could not be pleaded. Without saying yea or nay to that, I reply that if it be so, it must be because it does not stand on the mere act of the parties, but the facts and the law have been passed on and decided by competent judges of their own choosing. An award is quasi a judgment, so far as it operates to conclude the parties upon the point submitted. With these exceptions the rule is universal that as between the parties all gaming contracts never cease to be void. The compromise here could make no difference. It is not like the case of Turner v. Hulme, 4 Esp., 11. That is a very short note, and I have no doubt that the new bond was given for the true debt. If so, there could be no doubt in the case; for the debtor is bound in morals to pay the real debt and interest, and that will support a bond given for it. The law allows parties to repent and turn back to what is right. If the bond was for the unlawful interest it is against principal and all the other cases. It is impossible that a new (306) security can be taken or given upon the compromise of a suit without having reference to the preexisting rights of the parties, or their claims in that suit. If, indeed, a bond be given for a sum due for goods sold, and also for money won at cards, and the creditor corrects that by a surrender of the old bond, and taking a new one for the just debt, that would be good; for the true debt was never sunk in the first bond, for that was void; or, at all events, it would be revived by the new bond. But the present case is one in which either the whole or a part of the sum is the gaming debt itself; and, therefore, the bond is still void.
PER CURIAM. No Error. *193
