
    Hoomes Executor of Elliott v. Smock.
    October Term, 1794.
    Bonds — Gaming Consideration — Assignment — When Assignee May Recover from Obligor. — The assignee of a bond given for a gaming consideration, has no more Equity than the assignor, unless he was induced to purchase the bond by the obligor, believing it at the time to be a valid obligation.
    Elliott having brought a suit at law against Stanard upon a bond, Smock, the appellee, became Stanard’s appear-'anee *bail. Stanard having failed to give special bail, judgment was rendered against Smock in the County Court. On the chancery side of that court, Smock filed a bill, stating, that Beverley being possessed of Stanard’s bond, given for a sum of money lost at unlawful gaming, assigned it to Elliott, who after-wards understanding the nature of the consideration for which it had been given, delivered up that bond to Stanard and obtained from him another in lieu thereof, upon which the judgment was obtained. The bill seeks a discovery of those circumstances and prays for an injunction. Elliott by his answer insists that the assignment to him was made for a valuable consideration.' That he is ignorant of the consideration for which Stanard gave his bond to Beverley, but that the whole transaction relative to his obtaining the bond, was on his part fair and bona fide, and as far as he knows and believes in strict conformity with the laws of the land. He further states that Stanard acknowledged that the debt was justly due, and promised that he would pay it. That he applied to Stanard for payment, which not being made, he proposed to him to take in the bond and an order drawn by Beverley, and to give a, new obligation for the whole, to which Stanard readily consented. Beverley, who was also made a defendant, states in his answer, that a bond was given by Stanard to him for money won at gaming, amounting to ,¿'80 — that he owed 35 barrels of corn to Elliott, which not being able to pay when it was demanded, he assigned the above bond to him, and also drew an order for _¿10: 10, (making together the exact amount of the bond for which this judgment was recovered) in discharge of the corn debt, which Elliott accepted; that Elliott knew those sums were due on account of money won at gaming. Only one witness was examined, who proves the bond for ;¿80 to have been given for a gaming debt, and that after the assignment but before the execution of the new bond he informed Elliott of this fact.
    'The County Court perpetuated the injunction, from which Elliott appealed to the High Court of Chancery, and pending the appeal died. The suit being revived by his administrator the decree was affirmed, from which an appeal was prayed to this court.
    Wickham for the appellant.
    I contend 1st, that the decree in this cause was not warranted by the proofs exhibited, and 2dly, That a court of equity ought not to relieve in such a case as this, but leave the parties as the law had placed them. *lst, It is a rule, that the answer of one defendant is not evidence against another; and therefore, Beverley’s answer must be put out of the case; if so, there is no proof at all of notice to Elliott prior to the assignment, and therefore he is not liable to the original equity attached to the bond. The case of Buckner and others v. Smith &c. (ante 296) is strong authority for the appellant.
    2dly, But if notice were proved, the ap-pellee is not I conceive entitled to the relief prayed for. Smock can be in no better situation than Stanard would have been, had he been plaintiff in equitj'. The matter relied upon in equity, to defeat the legal advantage obtained by the appellant, might at law have furnished a compleat defence; but after a judgment obtained there, a Court of Equity will not relieve against an innocent assignee, without notice of the illegal consideration, so as to deprive him of the advantage which that judgment has given him. The equity of an innocent assignee who has fairly paid his money for this bond, is at least equal with that of the obligor, and therefore the law must prevail.
    Eee for the appellee.
    I admit that in general, the answer of one defendant cannot be read for, or against another; but there are exceptions to the rule, and this case furnishes an example. Eor Beverley having assigned this debt to Elliott, there is a privity between them, and the latter, deriving his right under the former, is bound by his acts. Beverley’s answer therefore, which acknowledges that the bond was given upon an illegal consideration, ought, as against Elliott, to be taken as evidence of that fact.
    2dly, Whether Elliott had notice or not before the assignment of the bond, that it was given upon a gaming consideration, is immaterial, because the bond is by the law absolutely void, and can never be made valid by assignment. The statute considers it as being so tainted, that no shift or change whatever can purge it of its original sin. It is the duly of all courts to arrest the money before it is paid, though the parties may confederate to elude the law, and therefore a court of equity is bound to interpose, though a judgment has been obtained. The case of Buckner and others, v. Smith &c. is entirely unlike to the present, for the ground upon which that decision was made, w'as the fraud practised by Beverley upon Dixon, by inducing him to purchase the bond.
    The bill having expressly charged notice, and Elliott having declined answering it, the facts proved in the case and stated in *his answer, furnish strong presumption that the charge is true. It is a rule, that where a man defends himself on the ground of want of notice, he must in direct terms admit or deny it, if it be charged. A person claiming a gaming debt in a court of justice, can never be considered as having equal equity with the opposite party; because such a claim is in itself iniquitous.
    
      
      Bonds — Gaming Consideration — Assignment—When Assignor May Recover against Obligor. — On this question the principal case is cited in foot-note to Buckner v. Smith, 1 Wash. 296; Woodson v. Barrett, 2 Hen. &M. 88; Nicolson v. Hancock, 4 Hen. &M. 495; Skipwith v. Strother, 3 Rand. 216; Dade v. Madison, 5 Leigh 403, 407; Steptoe v. Pollard, 30 Gratt. 701.
      See monographic notes on “Bonds” appended to Ward v. Churn, 18 Gratt. 801, “Assignments” appended to Ragsdale v. Hagy, 9 Gratt. 409, and “Gaming” appended to Neal v. Com., 22 Gratt. 917.
    
   EYONS J.

delivered the opinion of the court. It has been rightly contended by the counsel for the appellee, that all bonds given for a gaming consideration are void as between the parties; and it is equally true that the assignee cannot stand in a better situation than the obligee, unless there be some particular circumstances in his favor independent of the mere assignment. But if an innocent man shall be induced by the obligor to become a purchaser of such a bond, it is a deceit upon him, and he ought not to be subject to the same equity to which the obligor was entitled against the obligee. In this case, Elliot was induced by the debtor to take the bond, who renewed it without disclosing his objection ; afterwards suffered a judgment to pass at law, and then resorts to a Court of Equity for relief. The province of that court is to relieve against fraud, and not to sanction it, and in general it will leave the parties to the law even if their equity were equal; much less will that court interfere, where the equity is altogether on the side of him who has obtained a legal advantage. As to the facts in the case, they are with the plaintiff at law ; his answer is contradicted by one witness only, without circumstances to strengthen the testimony, for the answer of the other defendant as it could not benefit his co-defendant, cannot injure him.

The Court entered a decree to the follow-dug' effect, viz: William Elliott by his answer haying denied notice of the illegal consideration, upon which, it is suggested by the bill, the bond from Beverley Stanard was given, and there appearing but one witness to contradict the answer in this respect, without sufficient circumstances to corroborate his testimony, Elliot ought to be considered as an innocent assignee of the said bond, and the subsequent bond taken by him of Stanard upon which the judgment was obtained was not tainted or" effected by the illegal consideration of the first bond. That the decree which injoins, the plaintiff below from proceeding to execute his judgment is erroneous. The decree of the High Court of Chancery and. County Court, must be reversed with costs, the injunction obtained is to be dissolved,, and the bill dismissed. 
      
      Answers — Responsive to Bill — Effect.—On this question the principal case is cited in foot-note to Maupin v. Whiting, 1 Call 224; foot-note to Shurtz v. Johnson, 28 Gratt. 657; Robinson v. Cathcart, 20 Fed. Cas. 990. See also, Crenshaw v. Clark, 5 Leigh 65; Dadev. Madison, 5 Leigh 401.
     
      See monographic note on “Answers in Equity Pleading ” appended to Tate v. Vance, 27 Gratt. 571.
     