
    *Woodson and Royster v. Barrett and Company.
    Thursday, March 10, 1808.
    [3 Am. Dec. 612.]
    Bond — Given for Gaming; Consideration — Validity.—M. having- won money of W. at cards, and J. having won the same sum of M. the bond of W. given at the request of M. to J. for that sum is void hy the act to prevent unlawful gaming.
    Same — Same—Assignment- -When Obligor Estopped to Set Up against Assignee. — The assignee of a bond for money won at gaming cannot recover, though the assignment was for a valuable consideration, and though he had no notice of the origin of the bond; unless the obligor, before the assignment, induce him to take the bond by promising to pay him the money.
    Same — Same-Judgment — Relief — In such case, a judgment having been obtained against the ob-ligor, a writ of elegit issued against his lands, a suit brought by the assignee against the .sheriff for an error committed in executing such writ, and a judgment obtained; a court of equity will still relieve the obligor and the sheriff also, on the ground of the turpitude oi the original transaction.
    This was a joint bill of injunction presented by Joseph Woodson and William Roy-ster to the late Judge of the Hig-h Court of Chancery; the case stated in which was, in substance, the following:
    Sometime in the year 1783, Woodson gamed at cards with Thomas Miller, and lost to him the sum of 14001. in officers’ certificates; and Miller, having about the same time lost at gaming to a certain John Jouitt, junior, nearly the same sum, requested Woodson to pay the aforesaid sum in certificates to Jouitt. Some short time afterwards, they were all three together, and Jouitt was expressly told, that the debt from Woodson to Miller was for certificates lost at gaming. It was then proposed by Miller, that Woodson should, out of that debt pay the gaming debt which Miller owed to Jouitt; whereupon Woodson agreed to become the paymaster to Jouitt in gaming bonds. He gave his own bond for 14001. officers’ certificates, payable the 1st of May, 1784; but Jouitt agreed to deliver it up to him in exchange for other gaming bonds; and a day was appointed for a meeting between them to effect the exchange. Previously, however, to that day, Jouitt received from him an order on General Charles Scott for 6001. (being also a gaming debt, known by Jouitt to be such,) for the amount of which a credit was indorsed on the bond. At the day appointed, John Barrett (instead of Jouitt) met Woodson, and presented the bond, which Jouitt had assigned to John Barrett and Company. Woodson immediately offered him gaming bonds in exchange; alleging it was a part oí his bargain with Jouitt that such an exchange should be made; but Barrett refused to take them, and brought suit against him in Henrico County Court. “From the embarrassed ^situation of his affairs, he was unable to give such instructions to his attorney, in defending the said suit, as would have defeated the plaintiffs,” who obtained a judgment, and issued a writ of elegit against his lands, directed to the sheriff of Goochland, which writ came to the hands of William Royster, (who was then sheriff,) but was defectively executed by William Royster, jun. one of his deputies ; in consequence whereof a suit was brought against him by John Barrett and Company in the Richmond District Court. “His witnesses were absent on the trial,” and damages were recovered against him to the amount of 4461. 10s. lOd. He alleged that the whole of Woodson’s land not exceeding 360 acres, and there being no personal estate taken under the elegit, no greater quantity of the said land could be assigned to Barrett and Company than about 180 acres, the value of which did not exceed four dollars per acre, that is to say, 2161. for the said moiety. The bill prayed an injunction to the last-mentioned judgment, for the amount of which, or for a part whereof, Woodson was advised that his own person and personal estate might ultimately become liable to Royster.
    The answer of John Barrett, (who alone appeared on behalf of John Barrett and Company,) denied that he had any information at the time of the assignment, that the bond was given for gaming; alleging that Jouitt informed him that he had sold horses to some person, and had agreed to receive payment in the hands of Woodson, and that the bond was given on that account. He also stated, that, shortly after the assignment, Woodson was informed of it, and several applications were made to him for payment, “at none of which did he mention that the bond was founded on a gaming consideration, but said he was entitled to some credits for payments made in part, but did not shew that he had paid a single shilling, or any other sum, except what was entered on the back of the bond;” that, some time in 1786, (as well as the respondent recollected,) he, for the first time, pretended that he had a right *to discharge it by assigning other bonds, and said it was a gaming debt; but no bond was ever tendered by him, or seen in his possession by the respondent.
    The affidavit of Thomas Miller, which was read in the cause, fully proved the truth of the statement in the bill concerning the origin of the bond; but no evidence appeared that Barrett had any notice of it previous to the assignment. Several affidavits of jurors impanelled on the elegit shewed that the jury valued the land at too high a rate, through a mistake. It was also proved by William Royster, that at the trial of the suit against William Royster, senior, in the Richmond District Court, his counsel was out of Court when the cause came on, and did not come in till part of the jury was sworn; that the counsel then endeavoured to get a continuance, on the ground of the absence of some material witnesses, but was refused it by the Court, on account of part of the jurors being sworn.
    On the 4th of October, 1802, the cause was heard, by consent of parties, on the bill, answer, exhibits and affidavits; and the Court (“being of opinion that an obligation of Woodson, acknowledging himself a debtor to Jouitt, of money, or other thing, won at gaming, which Miller owed, and requested Woodson to pay to Jouitt, although this obligee knew Miller to have been a losing gamester, and thereby to have become indebted to Jouitt, is not void by the statute to prevent unlawful gaming, not more than it would have been void if Miller had paid the money to Jouitt, and he had immediately lent it to Woodson, taking his obligation for repayment thereof,”) adjudged and decreed that the bill be dismissed at the costs of the plaintiffs; who thereupon appealed.
    Wickham, for the appellant. This was. clearly a gaming debt: and, although the money was won by a Mr. Miller, yet the bond was given to Jouitt, who knew of the consideration. If the doctrine laid down by the Chancellor be correct, the gdming law is a dead letter. The act of 1748  ^completely embraces the case; and that of Oct. 1779, ch. 42,  does not repeal the former, but fortifies it. By those acts, all contracts whatever, where any part of the debt was money won at play, are absolutely void. Suppose this were an action of indebitatus assumpsit; stating the same case, would not the plaintiff fail? Certainly.
    The only case which has any semblance to the Chancellor’s doctrine is in 2 Mod. 279, and that is against the principle which he has laid down, Lowe and others v. Waller appears to overrule even that case; for, there, it was decided, that a bill of exchange, given upon an usurious consideration,'was void, even in the hands of an indorsee for valuable consideration without notice of the usury. In the case in Mod. Rep. the bond was payable, for a bona fide debt, to-an innocent man, who did not know of the gaming: but, here, Jouitt did know, and it was given to him to pay a gaming debt. In Bowyer v. Bampton, it was determined that a promissory note given for money knowingly lent to game with, is void in the hands of an indorsee, although for valuable consideration and without notice. In Buckner v. Smith and others,  the doctrine is laid down, that the assignee of a gaming bond stands in no better situation than the obligee would have stood, unless he was induced to purchase it by assurances from the obligor himself that he would pay the money. Of course the bond is equally Void, whether the assignee knew of the gaming, or not. The case of Hoomes, executor of Elliott, v. Smock,  also proves the same principle; for there the Court decided in favour of Elliott’s executor, upon the ground that Elliott was induced to take the bond by the debtor, who renewed it without disclosing his objection. In Norton v.. Rose,  and Pickett v. Morris,  it is settled that the assignee of a bond, though for valuable consideration, and without notice, takes the same subject to all the equity of the obligor. The case of Rawden v. Shadwell,  shews, that if a bond be given :for gaming, and part of the money be paid, the obligor may recover iri *equity the money so paid, and have his bond cancelled. And, as to this, according to the cases already recited, the .assignee is in the same situation as the assignor.
    It may be objected, that Barrett and Company (the defendants in equity) had obtained the advantage at law, and that it does not appear that the gaming act was pleaded. The cases of Ambler v. Wyld,  and of Pickett v. Morris,  are fully, in principle, an answer to that objection. Again, Miller, unless he would voluntarily give evidence, could not be compelled, being not bound to criminate himself; and that may have been the reason for Wood-.son’s not defending himself at law.
    But the act of assembly states, that judgments obtained for gaming debts shall be void; and this rule must be established, or •parties, by having a judgment entered, might defeat the statute. In the case of Buckner v. Smith, before cited,  there was a judgment, but no objection to relief was made upon that ground. So, in Elliott’s executor v. Smock,  there was no objection on the ground of the judgment; but the ■Court refused relief, on another ground altogether.
    But Royster is certainly entitled to relief. The verdict against him was by surprise, and a new trial should have been granted. The damages too were excessive, amounting to more than the value of the land; and If the land had been worth more, they were still excessive; for all that Barrett and ■company had lost by the error committed by the sheriff was one year’s profits; since they might have had a new writ of elegit, the first being quashed; and that only should have been the measure of the damages.
    Copeland, for the appellees.
    Two grounds are relied on by the appellant. 1. That this is a gaming debt. 2. That the damages are excessive as to Royster.
    On the 1st point, he relies on the case of Buckner v. Smith and others; but the principle of that case is in our favour; for the answer of Barrett states that, after the bond *was assigned, applications for payment were frequently made, and no pretence, that it was a gaming debt, was set up by Woodson, during two years. This was a concealment of truth, and should bind him; for by that conduct, he injured the appellees; and it ought to be considered as equal to a promise previous to the assignment. I admit that the assignee stands in the same situation as the obligee, unless some conduct of the obligor changes the ground: and, here, there was such conduct; for payment claimed and indorsed on the bond was calculated to induce the appellees to suppose it a bona fide bond.
    The case in Ambler is not like this. Would the Judge, in that case, have decreed the money to be refunded, if paid to an as-signee who knew nothing of the gaming? Certainly not.
    In this case Woodson had a complete remedy at law, of which he did not avail himself ; and therefore ought not to be aided in equity. And, let me ask too, why, so long after the judgment, was the application for an injunction delayed? Even now, the injunction is only to the judgment against Royster for his misfeasance in office. The bill does not pretend that Woodson attempted to defend himself; and it appears, now, that he came here only at the instance of Royster.
    As to Royster’s equity: The affidavits of jurors were not proper to be received to impeach their own verdict; and such evidence, if legal, might have been used in the Court of law. If the verdict was by surprise, a motion for a new trial could and ought to have" been made to the Court of law, and not here. But the affidavit of William Royster, junior, the deputy-sheriff for whose improper conduct the high sheriff was charged, ought not to be received to prove this point; since he is an interested party, being ultimately responsible to the appellant Royster.
    '’’'Randolph, in reply,
    took two grounds: 1. That if Woodson alone had applied for the injunction, he ought to have been relieved. 2. That Royster was entitled to all the equity of Woodson, and also to a further equity.
    As to the first point: Woodson was still bound for the balance of the debt on the original judgment, and therefore had an interest in the subject of controversy sufficient to warrant his obtaining the injunction.
    It is said, that the case of Buckner v. Smith shews that the conduct of the obligor in a gaming bond may bind him to pay the money to the assignee. But that is only where there is a new contract, (previous to the assignment,) consisting in his promising to pay the money, and thereby inducing the assignee to take the bond.
    As to the argument of concealment by Woodson, the fact is not proved, except by the allegation in the answer, which, not being responsive to the bill, is not evidence; and, besides, is not positive as to this point.
    Woodson was not bound to apply for his injunction sooner than he did, and ought not, for his delay, to be refused relief; especially as all the witnesses are still living. If he ought to have defended himself at law, the utmost that can be contended is, that, for obtaining reliex in equity, he should pay the costs; for the gaming act is complete to entitle him to relief, even after judgment.
    2. Royster has all the equity of Woodson ; and is, moreover, entitled to relief upon the ground of excessive damages. The jurors who served on the inquest were competent to give evidence; for they served out of Court, and erred through misdirection, and for want of proper information. Considering this, the argument for admitting them as witnesses was stronger than in Cochran v. Street,  Mr. .Wickham has given a sufficient answer to the objection that Roy-ster’s defence should have been relied on at law; but it may be added, that, the suit being against him for the misfeasance of his deputy, he could only have got full relief in equity; for he could not have pleaded, that the judgment against Woodson was for a main debt.
    
      
       Virginia Laws, Edit. 1769, p. 243.
    
    
      
       Chancellor’s Rev. p. 119.
    
    
      
       Doug-. 735.
    
    
      
       Strange. 1155.
    
    
      
       1 wash. 299.
    
    
      
       Ibid. 389.
    
    
      
       3 Wash. 233.
    
    
      
       Ibid. 355.
    
    
      
       Ambl. 269.
    
    
      
       2 Wash. 36.
    
    
      
       Ibid. 255.
    
    
      
      
         1 wash. 299.
    
    
      
       Ibid. 389.
    
    
      
       lWash. 299.
    
    
      
       P. 369.
    
    
      
       1 wash. 79.
    
   ’•'Tuesday, March IS. The Judges delivered their opinions.

JUDGE TUCKER.

The bill states, that in 1783, Miller gamed with the appellant Woodson, and won of him 1,4001. in officers’ certificates; that Jouitt had won about the same sum of Miller; that Miller requested Woodson to pay Jouitt the 1,4001. and that Woodson gave his bond to Jouitt for that sum, Jouitt at the time knowing that it was for this gaming debt. This bond was afterwards assigned to Barrett and Co. who say they h^d no information that the bond was for gaming at the time of the assignment, nor does Barrett, who alone answers, admit that it was founded on a gaming consideration. The proof that it was, is very abundant.

The question upon this case is, whether the assignee of a bond given for money won at gaming, for a valuable consideration, without notice of the nature of the debt, is barred from recovering the money, by the act to prevent unlawful gaming.

By the acts of 1748, c. 25, and Oct. 1779, c. 42, all promises, agreements, notes, bills, bonds, or other contracts, judgments-, mortgages, or other securities, or conveyances whatsoever, where the whole, or any part of the consideration shall be for money, or other valuable thing whatsoever, won at gaming, or for the repayment of money lent to game with, shall be utterly void, frustrate, and of no effect, to all intents and purposes whatsoever.

It may not be amiss to observe, that although our statute is generally supposed to be a transcript from the statute of 9 of Anne against gaming, yet there is a material difference between them, in the insertion of the Word contracts, in our law, which was omitted in the statute of Anne. It was upon the omission of that word in the statute, that the judgment in Robinson v. Bland, proceeded. But, even in that case, the Court held, that the bill of exchange which Sir John Bland drew upon himself in Erance, payable at ten days sight in England, was a void security, and *no recovery could be had upon it against his administrator, he dying in Erance without returning. In the case of Bowyer v. Bampton, it was decided, that the innocent indorsee of a gaming note cannot recover against the drawer. And the same decision was made as to the innocent indorsee of a bill of exchange-drawn for money won at gaming, in Lowe v. Waller, The decisions in the cases of Rawden v. Shadwelt, and Bones v. Booth, proceed upon the same principle, that the security is absolutely void. Now where any instrument is absolutely void in its creation, it cannot, I conceive, be made valid by any subsequent transaction immediately arising out of it. It is not like a. security given by an infant, which is only voidable; for that may be revived by a promise after he comes of age. In the cases, of Buckner v. Smith, and Hoomes v. Smock, this Court relied on particular circumstances in the conduct of the defendants respectively, which distinguished those cases from the general principle settled in those I have before cited. There are no-such circumstances in this: the naked question is, whether the mere want of notice that a bond or other security was given for money won at gaming, will entitle the assignee without notice to recover in an action brought upon a bond. I am of opinion that it will hot, and I conceive that a contrary decision would be tantamount to a declaration that the statute against gaming was of no force or obligation whatsoever. Those who deal in bonds, if thus given, or who allow a valuable consideration for them to persons, with whom, or whose circumstances, they are unacquainted, ought to be well assured that they are such as are not illegal. If they take them upon the.credit of the assignor, they may have their remedy against him, if they have given a valuable consideration, and the money is not recovered. 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. I am therefore of ^opinion, that the decree of the Chancellor ought to be reversed, and a perpetual injunction awarded, as to both judgments; for the first against Woodson being void, no damages, can be given against the sheriff for any errors he might have committed in levying the execution founded thereupon.

JUDGE ROANE

said it was a plain case; and that, in his opinion, there was less reason for taking it out of the statutes against gaming than appeared in the cases cited from Washington.

JUDGE ELEMING

concurring, the decree was reversed, and injunction made perpetual. 
      
       2 Burrow, 1077, and 1 W. Black. Kep. 234, 256.
     
      
       2 Strange, 1155.
     
      
       Douglass, 713.
     
      
       Ambler, 269.
     
      
       2 W. Black. 1226.
     
      
       1 Wash. 299. and 389.
     