5 Gratt. 645 | Va. | 1848
The bill and amended bill in this case may be treated as one, and the demurrers thereto must be regarded as conceding that the consideration of the promise on which the judgment at law was recovered, was money lost at unlawful gaming — that the merits of the cause were not developed on the trial at law, by reason of the extraordinary circumstance that the only witness before the jury, examined by the plaintiff and relied on by the defendant, and who was present at the gaming, and proved the promise then made to the plain
It is doubless true, that the decision of a controversy by a Court of competent jurisdiction, whether of common law or equity, upon a full and fair trial of the merits, cannot be re-examined, or the matter again drawn in question, unless in an appellate forum; and it forms no exception to the rule, in the case of a judgment at law, that a Court of Equity would previously have had a concurrent jurisdiction over the subject. The reason of the rule is too obvious to require exposition.
It is also true, that another rule repels from a Court of Equity a complainant who has been subjected to the recovery of a demand in a Court of Law, against which he had a legal defence that he comes to assert, but which he had an opportunity of making, and declined or neglected to make in the legal forum. This rule is necessary, not only to terminate litigation, but to preserve the boundaries between legal and equitable jurisdictions, which would otherwise be disturbed at the will of the party, and to the prejudice of the common law jury trial, and viva voce examination, which have priority and preference in our system of jurisprudence.
These rules have no application to a case in which a party having a just legal defence, has lost the opportu
A gaming security or consideration, however, forms an exception to the general rule requiring a defendant at law to avail himself there of a good legal defence to the action. Our act of 1748, (1 Rev. Code, ch. 147, p. 561, taken from the English statute of 9 Anne, c. 14,) not only renders the gaming transaction unlawful, but expressly avoids all promises, contracts, judgments and other securities for money won at play; and its policy is to extirpate an immoral and pernicious practice, inju
It must be admitted, however, that in an action founded upon a gaming promise or security, if the defendant elects to make his defence at law, and upon a full and fair trial of the question in that forum, a verdict is rendered against him, he cannot be permitted to renew the controversy, upon adverse testimony, in a Court of, Equity; for if this were allowed, it would, in effect, be an appeal from the verdict of a jury. And yet, notwithstanding such election, if the defendant has been
It will thus be seen that the appellee by his demurrer has rested his case, not upon the merits, but upon the supposed incompetency of a Court of Equity to relieve the complainant against the judgment at law ; and that in truth, equity has jurisdiction of the subject, so far as appears at the present stage of the cause, on the ground that the complainant, as is conceded by the demurrer, was surprised on the trial at law. There is, moreover, a farther question of jurisdiction that requires consideration, inasmuch as it may affect the ultimate decision of the cause. The complainant seeks the interposition of equity, not only on the ground of surprise, but also on the ground that he is entitled to a discovery from his adversary, of the gaming consideration, and to consequent relief thereupon, if obtained.
A question sometimes arises, whether a bill for the discovery of matter, which has been the subject of a legal defence, can be allowed after a verdict and judgment against the party at law; and it may be inferred from the books as a general proposition, that the party comes too late, unless he shews a sufficient excuse for not having filed his bill sooner. But this is not applicable to a gaming promise or security, in regard to which equity has complete original jurisdiction, both for discovery and relief; and though, when a verdict and judgment have been rendered against the party aggrieved, upon a full and fair trial at law, he is thereby concluded as to adverse evidence; yet, he is not thereby precluded from a discovery in equity, and relief there, upon such discovery, if obtained. And there is no good reason to the contrary; for the admission of such gaming consideration, in an answer to such bill for a discovery, shews
It seems to me, therefore, that the Circuit Court properly overruled the demurrers to the original and amended bills; and consequently that the appellant must answer the same, in order that the cause be proceeded in to a final hearing, upon the principles that properly belong to it, which, in my opinion, are those above indicated. In that view of the case, the final result must be, that if the answer should make the discovery sought by the bills, to wit, that the consideration of the promise upon which the judgment at law is founded, was money lost at unlawful gaming, then a perpetuation of the injunction is to follow as a matter of course. But if the answer should put in issue the material allegations of the bills, then it will be incumbent upon the complainant to prove the gaming consideration, and also the surprise ; upon sufficient proof of which he will be entitled to relief, either by a perpetuation of the injunction, or a new trial at law, according to the sound discretion of the Court.
Brooke, J. In this case I think the Chancellor was correct in affording the relief prayed for in the bill. This Court has never exacted the same degree of diligence from the defendant at law in gaming, as in ordinary cases. It has gone on the principle that a public injury was complained of, which if committed, ought to be remedied by all Courts.
Cabell, P. and Allen, J. concurred in the affirmance of the decrees of the Court below.
Daniel, J. dissented.