
    
      Pettit v. Jennings and Others.
    March, 1844,
    Richmond.
    (Absent Stanabd, J.)
    Evidence — Admissions.—The general rule, that the admission of one person cannot be given in evidence against another, adverted to by Baud win, J.
    Same — Codeiendants—Answer of One No Evidence against Another — Cases Approved. — it is a general rule, that the answer of one defendant in chancery is not evidence against his codefendant. Prom this rule there is no exception of the answer of an assignor; not even though the bond assigned be alleged to have been given on a gaming consideration. The fact of its being on such consideration cannot be established against a defendant who is the assignee, by the answer of his codefendant the obligee and assignor. Accord. Hoomes v. Smock, 1 wash. 389; Dade’s adm’r v. Madison, 5 Leigh 401.
    Equity Practice — Gaming—Liability of Obligor in Gaming Bond to Assignee — Cases Approved. — Though, upon a bill in equity by an obligor against the obligee and his assignee, it be fully proved that the bond was given for a gaming consideration, still the obligor will not be discharged from liability to t?ie assignee, if tile assignee liad no knowledge before the bond was assigned of its having been executed for money won at play, and was induced to purchase the same by the assurances of the obligor that there was no objection to it and that it would be paid. Per Baldwin, J. Accord. Buckner &c. v. Smith &c., Í Wash. 296; Hoomes v. Smock. 1 Wash. 389; Davis’s adm’r v. Thomas &c., 5 Leigh 1. Under such circumstances, the only question is as to the amount of the obligor’s liability to the assignee. Is it the whole amount of the bond, or is it the sum paid by the assignee to the assignor for the assignment? Per Baldwin, J., it is the former: per Allen, J., the latter.
    Same — Same—Decree Over for Obligor In Gaming Bond against Obligee. — In an injunction suit by the obligor in a gaming security against the obligee and assignee, if the gaming consideration be admitted by the obligee’s answer, but not proved by any competent evidence against the assignee, the injunction will be dissolved and the bill dismissed as to the assignee, but not as to the obligee. As to him the cause will be retained until payment by the obligor to the assignee of the money due the latter, in order that a decree may then be rendered therefor in favour of the obligor against the obligee.
    677 *A bond of Hugh Pettit to James If. Jennings for 1000 dollars, dated the Sth of October 1833 and payable 12 months after date, having been assigned to Richmond Terrell, Pettit, on the 27th of January 1834, made a deed of trust conveying a tract of land in Fluvanna to Abraham Shepherd, in trust for the purpose of securing the payment of the bond to Terrell. Default being made in paying the bond, the land was immediately advertised under the deed. Whereupon, to wit, in October 1834, Pettit exhibited a bill of injunction against Jennings, Shepherd and Terrell, alleging that the whole consideration of the bond was for money won of him by Jennings at cards, and that William Over-ton, who acted for Terrell in procuring the deed of trust, was told by him (Pettit) and by others that such was the consideration. The bill prayed for a discovery by Jennings of the consideration, an injunction to restrain a sale under the deed, and a decree cancelling the bond and deed.
    Terrell answered, that in January 1834 he put into the hands of Overton the sum of 1000 dollars, with a request that he would employ the same for his (Terrell’s) benefit; and in a month or two afterwards he was informed by Overton of his purchase of the bond from Pettit to Jennings, the assignment thereof to him (Terrell), and the deed of trust to secure the same.
    Jennings answered that the bond was given for a gaming consideration, but that Overton, so far as he knew, was not informed as to the consideration of the bond; that Overton refused to purchase the bond until he could see Pettit; that the bond was not executed till the dajr of its transfer; that the sale to Overton as agent of Terrell was made at the solicitation of Pettit, on an agreement between him (Jennings) and Pettit, that he (Pettit) should receive a part of the money obtained for the bond; that before the transfer was made, 678 Pettit told *Overton, in the presence of him (Jennings), that the bond was given for money borrowed, and he would pay it without offset, and secure it by deed of trust; and that Pettit did actually receive 600 dollars of the amount received for the bond.
    There Were depositions to prove that Pettit actually receive the 600 dollars, or about that amount; and it seemed from the testimony of one witness, that a bond had been given therefor by Pettit to Jennings, as for money borrowed by the former from the latter. In the opinion of the court of appeals, the evidence contained in the depositions was not sufficient to establish that the bond of 1000 dollars from Pettit to Jennings was given on a gaming consideration. One witness deposed that he had seen Jennings and Pettit play cards: another, that he suspected the bond was on a gaming consideration, and admonished Overton to be on his guard in purchasing it. Overton himself deposed, that in his first conversation with Pettit, Pettit told him to be cautious how he purchased any claim of Jennings, as they had been gambling, and Jennings had cheated him and won money of him; at any rate to see him (Pettit) before he made the purchase. In consequence of this conversation, Overton, on the day the bond was transferred, wrote a paper which Pettit signed, in these words: “I acknowledge that my bond held by James F. Jennings for 1000 dollars, dated the Sth day of October 1833, payable 12 months after date, is justly due, and if Richmond Terrell should buy the said bond, I will pay it without offset. Hugh Pettit jr. 27 January 1834. ”
    The circuit court of Fluvanna, on the 9th of September 183S, decreed that (he injunction be dissolved and the bill dismissed, and that the plaintiff should pay Terrell his costs.
    From this decree, on the petition of Pettit, an appeal was allowed.
    679
    *The cause was elaborately argued by Stanard for the appellant, by ‘ Steger and G. N. Johnson for Terrell, and j by Lyons for Jennings.
    But the points : made and the authorities cited are so fully t examined in the following opinions, that j it is thought not proper to take up the space ¡ that would be occupied in an attempt to report the argument.
    
      
      He had been counsel for the appellant.
    
    
      
      Evidence — Assignor — Declarations.— The declarations of an assignor of a chose in action cannot be given in evidence against the party who had previously acquired his title by assignment from him. It would be vicious and dangerous to permit the assignor to defeat the right or title which he had conveyed or assigned to another. Ginter v. Breeden, 90 Va. 570, 19 S. E. Rep. 656. citing Pettit v. Jennings, 2 Rob. 676. See, in accord, Wilcox v Pearman, 9 Leigh 146.
    
    
      
      Equity Practice — Codefendants—Answer of One Is No Evidence against Another — Assignment—Liability of Obligor in Gaming Bond to Assignee. — For the proposition that the answer of one defendant in chancery is not evidence against his codefendant, and this though upon a bill in equity by the obligor in a bond against the obligee and his assignee it is fully proved that the bond was given for a gaming consideration, still the obligor will not be discharged from liability to the assignee, if the assignee had not knowledge before the bond was assigned of its having been executed for money won at cards, and was induced to purchase the same by the assurance of the obligor that there was no objection to it, the principal case is cited and approved in Wilson v. Lazier, 11 Gratt. 485, 486; Smith v. Betty, 11 Gratt. 763; Poague v. Spriggs, 21 Gratt. 224; Steptoe v. Pollard, 30 Gratt. 701; Prank v. Lilienfeld, 33 Gratt. 381: Stebbins v. Bruce, 80 Va. 402; Cardwell v. Kelly, 95 Va. 576. 28 S. E. Rep. 953; foot-note to Bank of Washington v. Arthur, 3 Gratt. 174. See mono-graphic note on “Assignments” appended to Rags-dale v. Hagy, 9 Gratt. 409; monographic note on "Bonds” appended to Ward v. Churn, 18 Gratt. 801.
    
   BALDWIN, J.

It is unquestionable as a general rule, that the admission of one ' person cannot be given in evidence against another. There are various exceptions to ! the rule, of which I need notice here only ' such as arise out of a connexion of interest between the person making the admission and him against whom it is offered. In solving a question as to the admissibility of such evidence, regard must be had to the nature of the connecting interest, and the time of making the admission. The nature of the connecting interest may be that of a joint ownership or liability, or that of a derivation of title of one several owner from or through another. In the former case, the ownership or liability must be strictly joint, as that of joint tenants or copartners; and there the admission of one is treated as the admission of both: a mere community of interests, as that of tenants in common, is not sufficient. Dan &c. v. Brown, 4 Cowen 483, 493. But there is this difference between a joint and a derivative interest: in the former, the joint interest to be affected must be a subsisting one at the time of the admission; in the latter, the derivative interest to be affected must be acquired subsequently- to the' admission.

Whether the person making the admission, and the party against whom it is offered, be connected by a joint ownership or liability, or by the transmission of a several title from the former to the latter, the interest of the former must be a subsisting one at the time of the admission. If at the time of making it he has ^parted from his interest, his admission is not legal evidence against him to whom it has passed. Upon this point the authorities are clear and numerous; andas respects the vendor of property, real or personal, or the assignor of a chose in action, there has been no case, so far as my information extends, allowing his declarations to be given in evidence against a party who had previously acquired his title. Indeed the propriety of rejecting such evidence would seem too obvious to require the support of authority. It would be manifestly of dangerous tendency to permit the vendor or assignor thus to defeat the right or title which he had conveyed or transferred to another; and unreasonable to deprive the latter of the protection to be derived from cross examination. Nor is this rule of exclusion varied t?y the circumstance that the vendor or assignor is bound by a warranty, express or implied, to assure the title or interest which he has conveyed or transferred. Such contingent liability does not furnish a sufficient se-curitj’- against indiscretion or fraud, to the prejudice of the derivative owner; there not being a complete identity of interest, and the former owner being divested, in a great measure, of the vigilance, circumspection and forethought incidental to the immediate ownership, enjoyment and control of the subject. It is from this consideration, doubtless, that we find the exclusion of admissions by a vendor or assignor, made after his sale or assignment, laid down in the books without exception or qualification ; and that the rule has been applied in various cases notwithstanding the contingent liability of the vendor or assignor. Wilcox v. Pearman, 9 Leigh 144; Packer v. Gonsalus, 1 Serg. & Rawle S36; Babb v. Clemson, 12 Serg. & Rawle 328.

What I have said has reference to admissions in pais, whether verbal, or written; or in a former suit, by answer or otherwise, to which the person against whom the evidence is offered was not a party. The same ^principles must govern an admission in the answer of one defendant in a pending suit, offered as evidence against his codefendant. Where there is a connexion of interest between the two defendants arising out of the relation of vendor and vendee, or assignor and assignee, the admission in the answer must necessarily have been made after the vendor or assignor has parted from his interest. There is no consideration of justice or policy which requires the reception of such evidence. Accordingly,' we find it laid down in the books, in the strongest terms, that the answer of one defendant is-not evidence against his codefendant; and I am aware of no authority which makes the answer of a vendor or assignor an exception from the general rule. On the contrary, in Phoenix v. The assignees of Ingraham, S Johns. R. 426, and other cases, such an admission is placed upon the same footing as an admission in pais; and in that case it was held that no declarations,, in whatever form, of a party to a sale or transfer, going to destroy and take away the vested rights of another, can ex post facto work that consequence, or be regarded as evidence against the vendee or assignee. No authority to the contrary has been produced by the appellant’s counsel, except a passage in Greenleaf’s Raw of Evidence, p. 210, § 178, where it is said: “In general the answer of one defendant in chancery cannot be read in evidence against his codefendant, the reason being, that as there is no issue between them, there can have been no opportunity for cross examination. But this rule does not apply to cases where the defendant claims through him whose answer is offered in evidence; i,or to cases where they have a joint interest, either as partners or otherwise, in the transaction.” Eor the propositions in this last sentence, the learned author refers to Field &c. v. Holland &c., 6 Cranch 8, 24, and Clark’s ex’ors v. Van Riemsdyk, 9 Cranch 153, 156. The latter case relates only to the ’-last proposition ; and Field &c. v. Holland &c. it will be found, does not sustain the first. The marginal note of the reporter is so, but it is wrong; no such doctrine is asserted in that case.

The case of Field &c. v. Holland &c. was briefly this: The plaintiffs Field &c. filed their bill in equity to set aside a sale of a tract of land in Georgia, made by the sheriff under executions which issued upon judgments recovered by Holland against Cox; which tract of land, after 'the judgments, but before the levy of the executions, was so.ld by Cox to the plaintiffs. The equity in the bill was, that the judgments were discharged before the levy of the executions, by certain dealings and transactions between Holland and Cox; who, together with Milton and others, the purchasers at the sheriff’s sale, were made defendants: and the merits of the case turned upon the truth of that allegation, which the bill expressly required Holland to answer, and as to which it called upon him for a discovery. Holland answered denying the allegation ; and the question was as to the effect of his answer. The court, in its opinion delivered by chief justice Marshall, held that the answer of Holland responsive to the bill was evidence against the plaintiffs, and upon that and the other evidence in the cause dismissed the bill, not only as to Holland, but also as to Milton and others, the purchasers under the executions, who of course claimed under Holland.

The principle of this decision is not that the answer of a defendant is evidence for the plaintiff against a codefendant, but that, when responsive to the bill, it is evidence against the plaintiff for the responding defendant, and enures to the benefit of his codefendant claiming under him, 'when it destroys the foundation of the plaintiff’s claim. The language of the court is as follows: “Neither is it be admitted that the answer of Holland is not testimony against the plaintiffs. He is the party against whom the fact that the judgments *were discharged is to be established, and against whom it is to operate. This fact when established, it is true, affects the purchasers also; but it affects them consequentially, and through him. It affects them as representing him. Consequently, when the fact is established against or for him, it binds them. The plaintiffs themselves call upon Holland for a discovery. They aver that the judgments were discharged, and expressly require him to answer this allegation. They cannot now be allowed to say that this answer is no testimony.” It will be seen that the reasoning of the court is at first somewhat indefinite; I presume, for the purpose of avoiding the very inference which has been erroneously drawn from it. Its object was to shew, in the first place, that the fact of the payment or nonpayment of the judgments, when properly established, would not only be evidence for or against the plaintiff therein, but would operate for or against the purchasers under the authority thereof; at the same1 time avoiding the designation of the mode by which the fact, whether affirmative or negative, was to be established; and then to shew that in the case before the court it was established negatively, by the responsive answer of the defendant Holland. There could be no propriety in intimating any opinion as to what would be the effect of a directly opposite state of facts, to wit, an admission by the defendant Holland, in his answer, of the allegation in the bill; and in fact no such opinion was intimated.

A plaintiff is put to no disadvantage by not being allowed to read the answer of one defendant against another, where they are not identified in interest. He is placed upon fair ground when permitted to encounter each with the appropriate pleadings and proofs. It is not his having associated them as parties that deprives him of the testimony of one against the other as a witness; but because the one called on is incompetent or privileged by reason of his interest. If such be not the *fact, the plaintiff may examine him as a witness: and if it be the fact, then his testimony can avail the plaintiff nothing, unless he has admitted in his answer the allegation sought to be, proved. When he has so admitted it, he is no longer privileged, for he has already given evidence against himself; and where his code-fendant is a mere claimant under him, an objection to his competency can come only from the plaintiff. No failure of justice, therefore, results from rejecting the answer of one defendant as evidence against his codefendant; and if received, it would be evidence in the most objectionable form. An admission in an answer is something more than evidence: it is a concessum in pleading, which requires no corroborating, and allows of no countervailing proofs. If received against a codefendant, it ought to be with the same force and effect as against the respondent; otherwise it operates as a deposition, but a deposition of an anomalous character, one which denies the important privilege of cross examination. Hither way, whether operating as a pleading or a deposition, it would place an assignee or vendee completely in the power of his assignor or vendor, and subject him to the danger of being made the helpless victim of a fraudulent collusion.

There is nothing in the provisions or policy of the statute against gaming which can affect this question. That statute, it is true, gives a discovery against the party who has a knowledge of the material facts; but it does not make the discovery, when obtained, evidence against others, nor alter the "rules of pleading and evidence beyond its express enactments. It is enough that it avoids the security in the hands of an innocent assignee, when the fact is ascertained: it would be too much to prevent him from putting the fact in issue, and requiring its proof, so far as it affects him, by legal testimony.

*It is clear, therefore, to my mind, that the answer of the defendant Jennings cannot be read against his as-signee and codefendant Terrell, to prove that the bond of the plaintiff Pettit was executed for a gaming consideration. If the question were even doubtful upon principle, I would consider it as settled by authority.

In the case of Dade’s adm’r v. Madison, 5 Leigh 401, Madison filed his bill against Dade and Tankersley, to be relieved against a judgment on an accepted order, drawn by Dade in favour of Tankersley, and accepted by Madison. The bill alleged that the order was drawn for money won by Dade from Madison at unlawful .gaming; which allegation was admitted by Dade, but put in issue by Tankerslej'. -And the court, after full consideration, .held that the answer of the defendant Dade was not evidence against his codefendant Tank-ersley, to prove the unlawful consideration of Madison’s acceptance. The case cannot be distinguished in principle for the one before us. Madison’s acceptance was a security for a debt due from him to Dade, which debt Dade by his order assigned to Tankecsley. Dade by his answer admitted the unlawful consideration of the debt, and that admission was not permitted to affect his assignee and codefendant Tankersley. In the case of Hoomes v. Smock, 1 Wash. 389, this court hadpreviousy held that the answer of the obligee in a bond, admitting the bond to have been executed for money won at unlawful gaming, was improper evidence against his assignee and code-fendant. In accordance with these decisions is the case of Bartlett v. Marshall, 2 Bibb 470.

If, however, it had been fully proved, by evidence unobjectionable on the part of the defendant Terrell, that the bond of the plaintiff was given for a gaming consideration, still it is clear that he would not be entitled to the relief which he seeks against that defendant. The evidence is entirely satisfactory to prove that neither Terrell nor his agent, previous to the assignment *of the bond, had any knowledge of its having been executed for money won at play; and that the agent was induced to purchase it by the plaintiff’s assurances that there was no objection to its payment, and that it would be duly paid. Under these circumstances, it is impossible that the plaintiff can be exonerated from his indebtedness to the innocent assignee: and the only question he can be permitted to make is as to the amount of that indebtedness. Is it the whole sum for which he is bound, or is it the sum paid by the assignee to the assignor for the assignment?

At law, there could be no difficulty in this question. There the assignee would recover the whole amount evidenced by the obligation, or nothing. The obligor could not plead that he was not indebted the full amount of the bond, because the assignee had paid a less sum for it to the assignor; nor could he Obtain a credit, upon the plea of payment or setoff, for the discount allowed by the assignor to the as-signee. How is it in a court of equity?

” The plaintiff has not presented the question, either by his bill or his proofs. He has neither charged nor proved, that the consideration for the assignment was less than that for which he bound himself in the obligation. But suppose he had done both; and suppose further that he had set fdrth the whole case in his bill, stating that the bond was given for money lost at unlawful gaming; that the assignee was ignorant of the fact, but had been induced by the wilful misrepresentations of him the plaintiff, as to the true nature of the consideration, to lay out his money in the purchase of it at a certain discount; that he the plaintiff had conveyed property to a I trustee to secure the payment of the debt; and praying an injunction to restrain proceedings for the recovery of more than, the sum paid by the assignee to the assignor for the assignment: would such a case be proper for relief in equity? Or, *to make it stronger for the obligor, suppose (contrary to the fact) that he were defendant, instead of plaintiff, in the case before us; that the assignee had come in, upon some ground of equitable jurisdiction, to coerce payment of the debt; and that the obligor had defended himself by setting forth the whole case, as above suggested: .would a court of conscience sustain such a defence?

The principle upon which courts of equity act in such cases is not that of compensation in damages to the party deceived and injured, nor of restoring him by retribution to the condition in which he stood previously. Thejr proceed upon the principle that the perpetrator of the fraud shall not be permitted to deny the truth of his own statement, but shall be compelled to make good that which he had represented to be so. Take the familiar example of the owner of an estate standing by and encouraging the purchase of it by another from a third person; the doctrine in regard to which is thus briefly and comprehensively stated by judge Story: “If a man having a title to an estate which is offered for sale, and knowing his title, stands by and encourages the sale, or does not forbid it, and thereby another person is induced to purchase the estate under the supposition that the title is good, the former so standing by and being silent will be bound by the sale, and neither he nor his privies will be at liberty to dispute the validity of the purchase.” 1 Story’s Eq. 376, § 385. The learned author adds, that “courts of law now act upon the same enlightened principles in regard to personal property; in the transfer of which no technical formalities usually intervene to prevent the application of them. Thus, where it appeared that certain goods of the plaintiff were seized on an execution against a third person (in whose possession they were) and sold to the defendant, and the plaintiff made no ^full notice of it, it was held that the facts ought to be left to the jury to consider whether he had not assented to the sale and ceased to be the owner of the property. On this occasion lord Denman, in delivering the opinion of the court, said: ‘The rule of law is clear, that where one by his words or conduct wilfully causes another to believe in the existence of a certain state of things, and induces him to act on that belief so as to alter his own previous position, the former is concluded from averring against the latter a different state of things as existing at the same time.’ Picard v. Sears, 6 Adolph. & Ellis 474.”

I can perceive no good reason why a gaming security should form an exception to the general rule on this subject; which rests upon principles of justice equally applicable, whether the debt be void in its inception, or be avoided by payment or release, or by any other matter ex post facto. It is true that a contract or security which is void, either by positive law or upon principles of public policy, is deemed incapable of confirmation; but the doctrine we are considering' is not based upon the idea of confirmation, which excludes the supposition of fraud, but upon the fact of fraud in the original representation or subsequent denial, which, to prevent iniquity, is made to operate as an estoppel. Admissions which have been acted upon by others are conclusive upon the party making them, in all cases between him and the person whose conduct he has thus influenced; and the party is estopped, on grounds of public policy and good faith, from repudiating his own representations. Greenleaf cn Evid. 240, 241.

If this were not so, then the deluded as-signee could recover nothing in an action upon the bond at common law, but would be driven to his action for the deceit; for he would be defeated by a plea of the unlawful consideration of the bond, unless he were permitted to reply the fraudulent conduct of the obligor. That *such a replication would be .good, appears from the case of Davis’s adm’r v. Thomas &c., S Heigh 1. That was an action of debt on a promissory note, brought for the benefit of the holder, in the name of the payee, against the maker, and was tried upon the plea of nil debet. The defendant offered proof that he had paid the contents of the note to the payee, before the transfer thereof to the holder; and to repel that de-fence, the holder offered proof that he was induced to take the transfer of the note for a valuable consideration, by the maker’s previous promise to make payment thereof to him. And this court held, that this evidence to repel the defence of payment was admissible, and that the maker’s promise to pay the debt to the holder estopped him from alleging payment to the payee before assignment. Judge Tucker in his opinion, in which the other judges concurred, placed the case expressly upon the same footing as if the security had been “void in its inception, as for gaming, usury, and the like;” and shewed that the matter of es-toppel might be replied to a plea in bar, or given in evidence upon the general issue.

The same principle, a fortiori, prevails in equity; for the estoppel, if it may be there so called, is not narrow and technical, but of a liberal and beneficial nature. It works exact justice between the obligor and the assignee, between whom the debt ought to be regarded as free from all objection. In that point of view, the assignee became entitled to the subject itself, and not to the return of the money he invested in it. He has a right, both legal and equitable, to any profit made from the investment, and the obligor has no shadow of equity against him in any degree whatever.

This view of the subject in no wise contravenes the spirit and policy of the statute against gaming, which was intended, so far as it avoids the security, to relieve a party guilty of an immoral act, and the public through him, from the injurious consequences of his own indiscretion, *but not to enable him to practise frauds upon others. And so far as regards the mere measure of recovery between the deluded assignee and the fraudulent obligor, though it may be a matter of some importance between them, it can have no influence, as it affects the public, in suppressing the vice of gambling.

The only case cited to prove that the innocent assignee, who has been deluded into the transaction by the misrepresentations of the obligor, is to be restricted in his recovery to the sum paid by him to the assignor, is that of Davison v. Franklin, 1 Barn. & Adolph. 142, 20 Eng. C. h. Rep. 363. There, judgment was confessed upon an obligation, under a warrant of attorney, and a motion subsequently made by the defendant to vacate it, on the ground that the obligation was for a gaming debt; which motion was resisted by the assignee, for whose benefit the judgment had been entered up in the name of the obligee, on the ground that he had been induced to take the assignment by the representations of the obligor that the ,debt was just and would be paid. And the court referred the case to a master to ascertain the facts, in order, if the allegations on both sides should turn out to be true, to a vacation of the judgment, on condition of payment by the obligor of the sum paid by the assignee to the assignor, with interest thereon. The judgment, it will be observed, was not in a regular action, but according to a practice which prevails in England of taking a warrant of attorney for confession of judgment as a security for money, and entering up the judgment without the necessity of an application to the court or the judge. Over such judgments the court exercises a controlling power, and will vacate them for fraud, or irregularity, or unlawfulness in the consideration, but upon such terms as its discretion may dictate. The decision, therefore, does not indicate what would have been the judgment of the court in a regular action, upon the proper pleadings *in the cause. But we know, upon common law principles, that if the defendant had pleaded the unlawfulness of the consideration, and the plaintiff had replied by way of estoppel, or any matter of confession and avoidance, a judgment either way must have gone to the whole cause of action. Nor does the decision indicate what ought to be the decree of a court of equity under the circumstances of the case, but merely the mode in which the court of law thought proper to exercise its discretion in regard to such securities, of which the court is silently made the organ of the parties. At most, it is a single interlocutory decision of a court of common law, upon its own notion of equitable principles, which is only of persuasive authority here; and which, after a respectful consideration, seems to me to be without just foundation.

That case is moreover open to the observation, that in England bonds are not assignable, and must be sued in the name of the obligee; whereas with us the as-signeee may acquire the legal right, with the privilege of suing in his own name. But a more important consideration is, that, giving to the decision in that case the utmost weight due to the authority of a foreign tribunal, when directly upon a question , before us, still it is contrary to the course of adjudication in Virginia. Buckner &c. v. Smith &c., 1 Wash. 296; Hoomes v. Smock, 1 Wash. 389; Davis’s adm’r v. Thomas &c., 5 Leigh 1. The principle of these cases, as will be seen from an inspection of them, is to allow the deluded assignee to enforce payment against the fraudulent obligor for the whole amount of the gaming debt, whether the question arises in a court of law or in a court of equity. They cannot be shaken by the argument that the statute avoids the security in the hands of an innocent assignee for a valuable consideration without notice. So it does, where the case rests upon the original transaction, and the assignee, stepping into the shoes of the obligee, merely ^'succeeds to his rights: but so it does not, where the assignee is drawn into that relation by the misconduct of the obligor. If it did, then there would be no indebtedness to the amount of a single farthing, and the bond would be a mere blank both at law and in equity.

This distinction is recognized by the cases last cited, and by Kent, C. J., delivering the opinion of the court in Jackson v. Henry, 10 Johns. R. 204, 205. It is also adverted to in Woodson &c. v. Barrett & Co., 2 Hen. & Munf. 88, by Tucker, J., who significantly remarks, that where any instrument is absolutely void in its creation, it cannot be made valid by any subsequent transaction immediately arising out of it; that in the cases of Buckner &c. v. Smith &c. and Hoomes v. Smock, the court relied on particular circumstances in the conduct of the defendants respectively, which distinguished those cases from the general principle; and that there were no such circumstances in the' case then before the court, the naked question being, whether the mere want of notice that a bond or other security was given for money won at gaming, entitled the assignee without notice to recover in an action brought upon the bond/

The statute 16 Car. 2, ch. 7, § 3, 7 Bac. Abr. Gaming B., is quite as comprehensive as ours in preventing the recovery of gaming debts of a certain amount. It avoids not only all securities, including bonds, bills, judgments, mortgages &c. for money won at play, but all contracts. Not long after this statute the following case arose. A man wins ^100 of another at play. The winner owed Sharp jflOO who demanded his debt. The winner brought him to the other of whom he won the money at play, who acknowledged the debt, and gave Sharp a bond for the ^100; who, not being privy to the matter, or knowing that it was won at play, accepted the said bond, and for default of payment puts it in suit. The obligor pleads the statute of gaming; and upon a replication of the special matter, and demurrer thereto, "the plaintiff had judgment. Anon., 2 Mod. 279. So in Hussey v. Jacob, 1 Salk. 344, lord Holt said, “If A. wins ^100 of B., and, for a debt which A. owes C., he appoints B. to give C. a bond, it is good; C. is an innocent person ; and it will be the same thing if A. be bound with him.’’ Stone v. Ware & Smith, 6 Munf. S41, is a like case upon the statute of usury. And in Stewart v. Eden, 2 Caines’s R. 150, it was held that a promissory note, given as collateral securit-y for payment of an unsatisfied judgment on a note for a larger amount, tainted with usury, of which the plaintiffs were bona fide holders, could not be impeached on account of the usury.

My opinion therefore is, that the plaintiff has shewn no equity whatever against the defendant Terrell, and consequently that there is no error in the decree of the circuit court, in dissolving the plaintiff’s injunction and dismissing his bill as to that defendant. But I think the court erred in dismissing the bill as to the defendant Jennings.

The policy of the statute will be best sub-served by treating the obligation, as between the obligor and obligee, as a mere nullity under all circumstances, and preventing the latter from deriving any benefit from it whatever, directly or indirectly.

I need not go into the question whether, if the obligor makes a voluntary payment of the money, he can afterwards recover it back by an action at law or a bill in equity, unless upon the terms and within the limitations prescribed by the statute. It is certain that, as between the original parties, a court of law will never enforce, and a court of equity will always relieve against, the unlawful security. When a failure of proof as to the assignee, or a supervening equity between him and the obligor, induces a court of equity to enforce the security in behalf of the assignee, or, what is in effect the to suffer it to be then the court ought *to proceed, if the subject and the parties be properly before it, to administer the justice of the case as between the obligor and the obligee. The latter having, by his contract of assignment, appropriated to himself the avails of the security, and being enabled to retain them by the act of the court, which relieves him incidentally from all responsibility to his assignee, the result is, when the security shall have been enforced against the obligor, that the obligee has obtained from him, in substance though not in form, by means of a compulsory proceeding, satisfaction of a debt destitute of consideration and denounced by the law: but the subject and the parties are still before the court, and I am at a loss to perceive upon what principle the court can refuse redress to the obligor against the obligee.

In Dade’s adm’r v. Madison, 5 Leigh 401, already in part stated, the plaintiff Madison having no proof, that could affect the defendant Tankersley, of the unlawful consideration of the .security, the injunction was dissolved, and Tankersley allowed to execute his judgment at law against Madison ; but the court decreed, that upon Madison’s paying the amount of the debt to Tankersley, the other defendant Dade should pay the same amount to Madison: and the decree was affirmed by this court. That case is an authority to prove, as a general proposition, that in an injunction suit by the obligor in a gaming security against the obligee and assignee, if the plaintiff fails to sustain his injunction against the assignee, whereby he is compelled to pay the money, he is entitled to a decree against the obligee; and that not merely for the sum paid by the assignee to the obligee for the assignment, but for the whole amount of the debt. And if there, be any difficulty in the part of the case of which I am now speaking, it arises out of two considerations.

In the first 'place, the evidence in the cause proves that the assignee was induced to take the bond by the ^obligor’s assurances that the debt ■was just and would be paid. Does this circumstance oppose any obstacle to giving relief to the obligor against the ■obligee? I think not. The plaintiff’s consent to the assignment, coupled with his subsequent refusal to pay, was, under the circumstances, a wnrag to the assignee, but none to the obligee. The assignment was the obligee’s own act, and promoted his own views; and how can he complain that it received the consent of the obligor? Between them, such consent can only be treated as the confirmation of a debt which by law is incapable of confirmation. If it were to have the effect of absolving the obligee from responsibility, he could always evade the statute before a rupture with the obligor (whose execution of the bond shews his willingness at first to pay), by prevailing upon him to consent to its assignment. It is the broad locus penitentiaj given by law, in some respects, to the imprudent and necessitous, that affords them in a great measure the contemplated protection.

In the next place, it appears from the evidence that about 600 dollars of the money received by the defendant Jennings for the assignment has passed into the hands of the plaintiff. Hence it has been urged, that there was a combination between them to defraud the defendant Terrell, which ought' to repel the plaintiff from the equitable forum. But this is mere matter of suspicion ; nor is it probable that the successful gambler would not only so surrender the greater part of his gains, but at the same time incur a liability to his assignee for the whole. It is not certainly ascertained whether the 600 dollars was received by the plaintiff from Jennings without accountability', or, as is more probable, to be accounted for as a loan. In either case, Jennings, in a decree against him for the plaintiff, ought to be credited with the money thus in the plaintiff’s own hands; and in the latter, should be compelled *to surrender his claim and assurances for the loan. In both, Jennings ought to be debited with the whole amount which the plaintiff will be compelled to pay to Terrell, after such payment shall have been made (as in the case of Dade’s adm’r v. Madison) ; unless in the further proceedings some better reason should appear to the contrary, than the plaintiff’s having been involved, to the extent disclosed by the record, in the affair of the assignment; such entanglements of the loser being usually attributable to a sense of shame, or a controlling influence of the winner. The loss to Pettit, and not merely the gain to Jennings, ought to be the measure of redress; because such would have been the preventive justice of the court, if Jennings had not been induced, from a regard to his own convenience, to make the assignment; and because the circulation of such instruments will be best restrained by throwing the consequent sacrifice or loss upon the obligee, instead of the obligor.

I think, therefore, that so much of the decree of the circuit court as dismisses the plaintiff’s bill as to the defendant Jennings ought to be reversed, and a reference made to a commissioner, to ascertain what amount of the money received by Jennings from Terrell came to the plaintiff’s hands, and what is the accountability, if any, of the plaintiff to Jennings therefor, and what the assurances held by the latter for the same; with leave to those parties, if requested by either, to amend their pleadings, in order that the court may be better enabled to render a final decree between them.

ALTEN, J.

The evidence in the record, so far as contained in the depositions of witnesses, does not prove that the bond was given on a gaming consideration. Unless therefore the answer of Jennings can be read as evidence against his code-fendant, the bond in the hands *'of the latter is unimpeached. That it cannot be so used, has been more than once decided by this court in cases arising under the statute against gaming. The question was directly presented and determined in Hoomes v. Smock, 1 Wash. 389, and Dade’s adm’r v. Madison, 5 Leigh 401. In the first case, Beverley the assignor, who was made a defendant, stated in his answer that the bond was given in part for a gaming consideration; and there was moreover proof of the fact by one witness. Judge Lyons, in delivering the opinion of the court, remarks upon this, that the answer was contradicted by one witness only, without circumstances to strengthen his testimony; for the answer of the other defendant, as it could not benefit his code-fendant, could not injure him. It is somewhat remarkable that after this decision, judge Carr, in Skipwith v. Strother &c., 3 Rand. 214, should have considered the question as still open, and worthy of grave and careful consideration when it should be necessary to decide it. In Dade’s adm’r v. Madison the proposition again arose. There the only evidence of the gaming consideration was contained in the answer of Dade. He occupied the precise position of the assignor here Madison owed him money won at gaming: by his draft in favour of Tankersley, he directed the payment to Tankersley: and Madison accepted the draft. The form which the transaction assumed cannot vary the real nature of it. It was a transfer by Dade to Tankersley of his demand on Madison, which the latter by his acceptance bound himself to pay. Both the judges who gave opinions held that the answer could not be read against the codefendant.

The rule itself dates from the earliest history of chancery proceedings, is founded on the plainest principles of natural justice,' and is liable to but few exceptions. In Mitchell v. Webb, TothilllO, decided in the time of Elizabeth, it was declared that where the defendant by answer accuseth himself and fellow defendant, he is ^believed against himself but not against his fellow. It is usually said, that the answer cannot be used against another" defendant because he has had no opportunity for cross examination. For this reason, and because the disclosures in an answer are usually made upon searching and leading interrogatories, the answers to which would not be evidence in a deposition, it cannot be used.

This case does not fall within any exception which has been allowed to the general rule. There is no joint interest of the co-defendants in the subject, and the admissions were made after the assignor had parted with his interest. Neither did this court, in the cases of Dade’s adm’r v. Madison and Hoomes v. Smock, consider that the gaming consideration of the note constituted any exception.

But it has been contended, with much ingenuity, that the necessity of the case should make this an exception: that here the defendant, being interested, could not be examined as a witness; and as the answer is excluded because there is no opportunity of cross examination, that where the party could never be examined as a witness, the principle on which the rule rests does not apply, and the reason ceasing, the rule should also cease.

If the principle is founded in natural justice, the converse of the proposition would seem to be more legitimate. If the right to crossexamine is so essential to the fair and equal administration of justice, then wherever it is shewn that suc.h right cannot be exercised, the evidence should be deemed inadmissible. ,

This precise objection to the application of the rule excluding the answer of one defendant when offered as evidence against the other, was urged in the cáse of Morse v. Royal, 12 Ves. 355. It was argued there, as it has been here, that as the defendant whose answer the plaintiff desired to read was interested and could not be examined as a witness, his answer was necessary; *and that a person appointing as his executor the only witness to the case to be made against him, should not thereby deprive the plaintiff of all his evidence. But the chancellor did not consider that as sufficient to take the case out of the general rule.

There being no proof, therefore, as against Terrell, that the bond was on a gaming consideration, the transaction, as far as he is concerned, stands fair, and the injunction must be dissolved for the whole amount.

This view of the case, if correct, supersedes the necessity of enquiring what is the proper measure of relief in the case of a fair assignee, where the gaming consideration is established by proof. In Hoomes v. Smock and Dade’s adm’r v. Madison the question did not arise, because the gaming consideration was not made out by proof as against the assignee. In Buckner &c. v. Smith &c., 1 Wash. 296, there was proof of the consideration; but the point was not noticed. In each of the cases in 1 Wash, a decree over, upon the principle established in Dade’s adm’r v. Madison, would have been proper; but it was not asked for: and the court, in Dade’s adm’r v. Madison, did not consider this circumstance as an authority against such a decree. The question therefore is still an open one in Virginia. Judge Tucker, in Dade’s adm’r v. Madison, remarked, that as every thing stood fair so far as Tankersley was concerned, he was entitled to recover the whole amount of the draft, whatever he might have paid for it. What would have been his opinion if the vice in the consideration had been proved by competent evidence as against Tankersley, does not appear. I do not understand the court, in any of the cases, as affirming the proposition that a security, declared by express law to be void to all intents and purposes whatever, can be held valid in equity to any intent. In both the cases from Washington’s Reports, the particular circumstances in the conduct of the defendants rendered them responsible. *There was, previous to the assignment, a promise to pay, upon the faith of which the assignee parted with his money. This new promise was the foundation of the recovery; and as, in the absence of proof to the contrary, the face of the bond gives the measure of the consideration paid, the court was bound to give the assignee the whole amount.

An instrument void, by express enactment, in its creation, cannot be made valid by any subsequent transaction arising out of it: Tucker, J., in Woodson &c. v. Barrett & Co., 2 Hen. & Munf. 88. And this constitutes the distinction between such an instrument and a voidable security, as of an infant, which may be confirmed; or a security which, though in its, origin neither void nor voidable, has been subsequently discharged. In such casés the subsequent confirmation or assurance given, upon the faith of which another has advanced his money, may be relied upon even at law, and in some cases as an estoppel in pais, to repel the defence, whether made by way of plea or adduced in evidence. Davis’s adm’r v. Thomas &c., S Leigh 1, was a case of the latter description. The assignee of the promissory note had been induced to purchase by the maker’s promising to pay; and he was permitted to shew this, in order to repel the defence of payment to the payee before assignment. The maker, as against such an assignee, had waived his defence, and the instrument being valid, the assignee was entitled to recover the amount. But can this reasoning apply to the case of a security void in its origin? The assignee stands in the position of the assignor: the instrument is equally void in the hands of both, and no subsequent agreement in relation to it can give it validity. In the case of an assignee for value without notice, but to whom no promise or assurance had been made to induce him to purchase, even though a judgment had been confessed, the whole transaction would be avoided. *If this be so, how can it be pretended that a mere promise in pais should have a greater effect than a judgment? that in the one case an estoppel should be worked, so as in effect to repeal the statute, or at least utterly to defeat its policy, whilst in the other the solemn judgment of a court of record shall not preclude an enquiry into the truth?

An anonymous case reported in 2 Mod. 279, and referred to in Buckner &c. v. Smith &c., 1 Wash. 300, would indeed seem to have decided that a promise to pay could be replied. There the winner owed a debt to a third person, and the loser executed to this third person his bond. To a plea of gaming, the plaintiff was permitted to reply that the debt was fairly due to him, and that he was not privy to the gaming. This case arose under the statute of 16 Car. 2, ch. 7, $ 3. The statute of 9 Anne, ch. 14, though not so broad as ours, since it omits the word contracts, avoids all securities given for a gaming consideration. Under this statute it is settled that all securities given for money won at play are absolutely void, even in the hands of third persons, though they have paid a valuable consideration for them, and had no notice of their being won at play. Bowyer v. Bampton, 2 Strange 1155; Lowe v. Waller, Dougl. 736; Robinson v. Bland, 2 Burr. 1077; Woodson &c. v. Barrett & Co., 2 Hen. & Munf. 80. In principle what difference is there between those cases and the question under discussion? Is not the loser’s promise, under his hand and seal, to pay a fair debt to a third person who has no notice of the gaming, equivalent to his promise in pais made to the assignee? In the one case the third person discharges his immediate debtor in consideration of the bond, or pays his money for a negotiable security: in the other, the assignee parts with his money upon the faith of the promise In the first case the bond or negotiable instrument is to be held void: in the second it is treated as valid: for *that is the necessary effect of the doctrine that the defendant is estopped from shewing the truth.

It seems to me that at law the defence of gaming could not be met by a replication of a promise to pay. The court must declare the instrument void; and the remedy of the 'party would be on the promise, in which the measure of damages would be the sum paid upon the faith of it. Where the case occurs in equity, it must be disposed of in conformity with the established rules of that forum. He who asks equity must do it. If another has been induced to part with his money by a false and fraudulent representation, it will reinstate him in the position he occupied before he purchased. This is done by the repayment of what he has advanced, with' interest. I think, therefore, that the rule is correctly laid down in the case of Davison v. Franklin, 1 Barn. & Adolph. 142, 20 Eng. C. F. Rep. 363. Though the case was decided in a court of law, it was an application to set aside a judgment confessed under a warrant of attorney, and was addressed to the sound discretion of the court; a discretion to be exercised on equitable principles, so as best to effectuate the ends of justice. Governed by those principles, the court directed the bond and judgment to be given up on repayment of the sum really paid, with interest.

As to the liability of Jennings, the case of Dade’s adm’r v. Madison is decisive, and Pettit should have had a decree over against him for the whole amount which he shall be compelled to pay, and shall actually pay, to Terrell in consequence of the assignment. Whether Pettit received a portion of the sum raised by the sale of his bond, or merely borrowed it and executed a new bond for the amount, is left uncertain by the testimony; and an enquiry should have been directed to ascertain how this matter stood.

*1 think, therefore, as there is no evidence as against Terrell of the gaming consideration, that so much of the decree as dissolves the injunction should be affirmed, and that Terrell should have his costs, as the party substantially prevailing; that the decree should be reversed as to the residue; and that the cause should be remanded in order to a final decree as between Pettit and Jennings.

BROOKE, J.

I concur with judge Baldwin in dismissing the bill as to Terrell; and I go farther; I think the bill ought to be dismissed as to Jennings also. I am satisfied by the evidence in the record that Pettit combined with Jennings in misrepresenting to Overton the agent of Terrell the consideration of the bond. I think both joined in representing the bond as for valuable consideration, and that Pettit is entitled to no relief against Jennings in a court of equity, but that if, after payng the amount of the debt to Terrell or his representatives, he has any redress against Jennings, it must be in a court of law, under, the third section of the act against gaming. He prays for no relief against Jennings in his bill; nor is the case like that of Dade’s adm’r v. Madison, 5 Leigh 401, in which the court decreed in favour of the loser against the winner. There was no combination in that case between the winner and loser to impose the note on Tankersley as a valid note. In the cases of Buckner &c. v. Smith &c., 1 Wash. 296, and Hoomes v. Smock, 1 Wash. 389, no such relief was given.- As to the question whether Terrell is to recover no more money than his agent Overton paid for the bond, in none of the cases referred to was such a proposition hinted. There is no evidence in the record of what was given for the bond, nor do the pleadings make any such issue. The presumption, until the contrary appears, is .that Terrell gave full value for it.

"CABRLL, P.,

expressed his concurrence in the opinion of Baldwin, J.

The decree of the court <?f appeals was entered in the following terms:

The court is of opinion that the appellant has shewn no equity against the defendant Terrell, and consequently that there is no error in so much of the decree of the circuit court as dissolves hjs injunction and dismisses his bill as to that defendant. It is therefore ordered and decreed that so much of said decree as aforesaid be and the same is hereby affirmed, and that the appellant do pay to the appellee Terrell his costs by him expended in the defence of the appeal aforesaid here. But the court is further of opinion that said decree is erroneous in dismissing the appellant’s bill as to the defendant Jennings, instead of retaining the same until payment by the appellant to the defendant Terrell of the principal money and interest in the proceedings mentioned, in order to the rendition then of a decree therefor in favour of the appellant against the defendant Jennings, subject to a credit for such amount of the consideration paid by Terrell to Jennings for the assignment of the appellant’s bond, as has come to the hands of the appellant; and that, with a view to such a decree, there ought to have been a reference to a commissioner, to ascertain what amount of the money received by Jennings from Terrell for the assignment did come to the hands of the appellant, and whether it came to his hands as a loan from Jennings, or without accountability therefor, and in the former case what are the assurances held by Jennings for such loan; and that if it should appear to be a loan, Jennings should be compelled to surrender his claim and assurances therefor. It is therefore further ordered and decreed, that so much of said decrete of the circuit court as conflicts with the o,pinion above declared be and the same is ‘^'hereby reversed and annulled, and the appellant recover against the appellee Jennings his costs by him expended in the prosecution of his appeal aforesaid here. And the cause is remanded to the said circuit court, for further proceedings therein according to the principles above expressed; and leave is to be there given to the plaintiff and the defendant Jennings, if requested by either, to amend their pleadings, in order that the court may be better enabled to render a final decree between them.  