
    *Buckner and Others Trustees of Beverley v. Smith, Stubblefield, Graham, and Dixon’s Executors.
    October Term, 1794.
    Bonds — Gaming: Consideration — When Obligor Estopped to Set Up against Assignee. — The assignee of a bond given for a gaming consideration, stands in no better situation than the obligee would have done; but it is otherwise, both at Law and in Equity, if he be induced by assurances of payment from the obligor to become the purchaser of the bond.
    This was an appeal from the High Court of Chancery dismissing the bill of the complainants who are now appellants. — -The case was as follows: Beverley during his infancy lost a considerable quantity of tobacco at unlawful gaming with the defendant Smith ; who for valuable consideration gave to Stubblefield an order upon Beverley for 25,000 pounds of tobacco. Beverley accepted the order, and afterwards gave his bond to Stubblefield for the amount. Stub-blefield assigned the bond to Graham, and Graham to Dixon, each paying for the same a valuable consideration. Upon an action brought by Dixon upon the bond, Beverley confessed a judgment. He afterwards conveyed his estate to the appellants in trust, to pay his debts, and to apply the residue, towards the support of his family. — The trustees understanding the real nature of this demand, filed their bill in the High Court of Chancery praying an injunction to this judgment, and charging that Stub-blefield, Graham, and Dixon, had full notice that the bond in question was given for a gaming consideration, before they respectively acquired an interest in it. Stub-blefield in his answer, denies that he had notice of the consideration for which the bond was given. — Dixon, just previous to his death, drew up the heads of an answer, and swore to it, denying notice, and stating that he was induced to accept of an assignment of the bond, by Beverley, who assured him that the bond should be punctually paid. His executor’s answer refers to those heads, as part thereof. The answer also refers to a letter from Beverley to Dixon, after he had come to full age, giving assurances of payment. The only deposition in the cause is that of Smith, one of the defendants, who does not answer, nor is his deposition excepted to. He proves the consideration of the order upon which the bond was given, to have been for tobacco lost at gaming by Beverley, and that Stubblefield had notice of it, at the time the order was given, and agreed, that if Beverley should accept the order, he would discharge Smith from all responsibility.
    ^Warden for the appellants.
    The infancy of Beverley is proven, as also notice to Stubblefield, who does not positively deny it, but only says that he was not concerned in the gaming' transaction. It is also fairly to be presumed, that the other defendants knew of it. But whether this were the case or not, Dixon ought not to have recovered; for tho’ an assignee without .notice, might in some cases be a sufferer,' by considering him as standing in no better situation than the assignor, yet, this individual inconvenience is very far short of the public mischief," which would be produced by giving validity to a bond of this sort, because it had got into the hands of an assignee. For if the winner could pay his own debts, or make a valuable use of bonds acquired by gaming, it would be easy for him at any time to evade the statute, and to derive every advantage which he could desire, by a violation of the law. The case of Bowyer and Bampton 2 Str. 1155 is conclusive upon this subject It is absurd to contend, that a bond, which the law has declared void ab initio, can by any thing subsequent thereto be made effectual.
    Campbell for Stubblefield.
    The appellant’s counsel, has not, in the course of his argument, touched the only point in the cause; and that is, will a Court of Equity, after a judgment fairly obtained at law, and where the defendant has waved any legal advantage which he might have had, interfere to set aside that judgment without some special circumstances to warrant it? The case before the court, is not one of those, wherein Chancery can claim jurisdiction. It is not a case of trust, fraud, or accident. It is not a bill for a discovery, even if such a bill in a case like this could be sustained. The plaintiff does not pretend, that he is destitute of other evidence, than what he can draw from the defendants, and if he had stated such a charge in nis bill, it would have been contradicted by the records, wherein a deposition appears, which completely proves the fact. Neither is this application warranted by the act of 22 Geo. II. C. 25, $ 3, which authorises a bill of discovery only where actual payment hath been made, and upon a discovery and re-payment by the winner, excuses him from the forfeiture imposed by the law. So that, upon no principle whatever, are the plaintiffs (who stand in no better situation than Beverley did) proper in this Court.
    Wickham for Dixon’s executors.
    I shall in the first place object, that the bond in question, is not proved to have been given upon a gaming consideration. It is positively denied by the answers *and those answers ar^ contradicted only by the deposition of one of the defendants, whose evidence can have no greater weight, than his answer would have had, which could not have operated against a co-defendant. But passing over this, want of notice is positively denied by Dixon; and it is a well known principle in this court, that if the plaintiff and defendant are both equally innocent, equity will not interfere, but will leave them to the law. That Dixon was entirely innocent is not denied: no imputation can lie against him. But is Beverley so? No. In the first place, he violated a positive law. He then gave a negotiable paper, importing upon its face, the evidence of a just debt. This is sent into circulation, to deceive and injure those, who might unfortunately become its possessors. But above all, he induces Dixon to throw away his money in the purchase of that bond, under assurances of its being paid. Shall he then, who hath been guilty of a fraud, find countenance in a Court of Equity against the person, upon whom that fraud hath been practised, and who was thereby induced to throw away his money? It is a rule, that he who acquires a legal title without notice of an equitable claim opposed to it, shall not have it questioned in a court of equity. Thus a purchaser for valuable consideration, without notice of a prior equitable claim, may in this court, defend himself by relying upon such a purchase. — Suppose in this case, the money had been paid by Beverley, (and the principle will be the same after a judgment) could he have recovered it back at law? He might have done it perhaps under the act of 22 Geo. II. C. 25 if he had brought his action within three months. — But otherwise he could not, as the law itself proves, by affording a remedy, and prescribing a time within which it should be asserted. And if he could not recover it back at law, in an action for money had and received, which is as liberally a remedy as a bill in Chancery, would equity assist him? I contend it would not.
    Upon the whole, I trust, that the decree will be affirmed: but if it should be supposed, that the appellants are entitled to relief, I hope it will not be granted against Dixon’s executors, whose testator was entirely innocent, and who have the benefit of a judgment at law. Eor since all proper parties are before the court, it would be most consistent with the principles of equity, in order to prevent circuity of action, to decree at once against the person who ought ultimately to suffer.
    Mr. Campbell observed, that as the bill prayed for an injunction, the court must either make it perpetual, or dismiss the bill.
    *Mr. Wickham, in answer said, that the bill prayed for general relief, and therefore the court might make any decree which was thought equitable.
    Warden in reply.
    Notice is not positively denied by Stubblefield, and the answer of Smith, not having been excepted to, must be considered as proper evidence in the cause. The court must not only consider the bond, but also the judgment as being void, under the act of Assembly. This act gives this court express jurisdiction in the present case, and the policy of it was to compel a discovery at all events, that the statute might not by any device, or means whatever, be evaded. For if resort in such cases could not be had to a Court of Equity, the consideration of such bonds could seldom be discovered, nor could the mischief arising to the public, from such pernicious practices, be prevented. The confession of judgment in this case, cannot alter the rights of the parties; for the defendant may not always know, whether he can establish the fact, and unless he could prove it, it would be unnecessary to plead, or even to defend the cause. It was to obviate this inconvenience, that the remedy pointed out by the act was provided. He cited Dougl. 743, which recognizes the case of Bowyer & Bampton.
    
      
      Bonds — Gaming Consideration — When Obligor Es-topped to Set Up against Assignee, — Por the proposition that, the assignee of a bond given for a gaming consideration, stands in no better situation than the obligee would have done, unless he is induced by assurances of payment from the obligor to become the purchaser of the bond, the principal case is cited in Woodson v. Barrett, 2 Hen. & M. 88; Dade v. Madison, 5 Leigh 403; Pettit v. Jennings, 2 Rob. 676, 691, 692 (see note); Steptoe v. Pollard, 30 Gratt. 701; Raynolds v. Garter, 12 Leigh 172. The principal case is also cited in Skipwith v. Strother, 3 Rand. 216. See also, on this question, Hoomes v. Smock, 1 Wash. 389; Mayo v. Giles, 1 Munf. B33; Stockton v. Cook, 3 Munf. 68; Meredith v. Salmon, 21 Gratt. 762; the principal case is reported in 1 Am. Dec. 463, with note; monographic notes on “Bonds” appended to Ward v. Churn, 18 Gratt. 801; “Gaming” appended to Neal v. Com., 22 Gratt. 917; “Assignment” appended to Ragsdale v. Hagy, 9 Gratt. 409.
    
   The PRESIDENT not sitting in the cause,

EYONS, J.

delivered the opinion of the court. — After stating the case, and that the assumpsit of Beverley to Dixon was after he came of age, he proceeded. It is not important to decide upon the propriety of admitting Mr. Smith’s deposition. The principal objection is, that this was a gaming debt, contracted by an infant, which no subsequent act of his, nor any transfer could make valid. It is in general true, that an assignee of a bond of this sort, can be in no better situation than the obligee, and the cases cited at the bar sufficiently establish the point. But the present case is very different upon principle from those cases, and that difference, is produced by the conduct of Beverley, who by his assurances of payment, induced Mr. Dixon to receive an assignment of it. He not only concealed from him the legal objections to the bond, but afterwards assumed to pay it, and when sued, voluntarily confessed a judgment.

The privileges allowed to infants are intended to protect them from injury, not to furnish them with the means of deceiving, and of defrauding others; and if negotiable papers, accepted by others, under all the caution used by Mr. Dixon in this case, were permitted to be set aside, there would be an end put to the negotiability of such papers, and to all confidence between man *and man. Why did not Beverley avail himself at law, of the supposed advantage, which he now relies upon in this court? But suppose he had pleaded it, and the plaintiff had replied the special matter, “that he had been induced by the defendant to receive the bond;’’ upon a demurrer, the law would have been decided in his favor. 2 Mod. 279. If he had pleaded infancy, he might have avoided the bond, but certainly in another action, the plaintiff upon proving his assumpsit after his attaining full age would have succeeded. If then, this would have been his fate at law, upon no principle can he expect, that a Court of Equity will assist him in imposing upon innocent third persons a loss produced by his own fraud.

Upon the whole the court affirm the decree.  