
    Greathouse vs. Throckmorton.
    &SSXJMPSIT. Case 6.
    Error to the Mason Circuit; W. P, Roper, Judge.
    
      Indebitatus assumpsit. Money paid, lent, dye. Gambling. Consideration. Action.
    
    November 8.
   Judge Buckner,

delivered the opinion of the Court.

This was an action of assumpsit, prosecuted in the circuit Court, by Throckmorton against Greathouse. The declaration contains two counts — 1st for money lent; 2d for money paid, laid out, and expended, by the defendant in error, for Greathouse, at his instance and request.

The cause was tried upon the general issue; and upon a verdict rendered in favor of Throckmorton, for one hundred and fifty dollars, a judgment was entered; to reverse which, Greathouse prosecutes this writ of error.

One witness only was examined, who proved in substance, that He had opened a faro bank at the house of Throckmorton, and won of Greathouse the sum of one hundred and thirty dollars, who left the place without paying him; but a few days after-wards returned, and informed him that he had spoken to Throckmorton to pay it for him, andenquired of witness whether he was willing to take him for the amount, and discharge him, (Greathouse.) The witness consented, and they spoke to Throckmorton on the subject, who agreed to the arrangement; and the plaintiff in error was thereupon discharged from the debt. The defendant, in error, had not been engaged in the game, when the witness won the money from Greathouse; but was present during a part of the time that the parties engaged were gambling; and urged the plaintiff in error, to cease, and eventually succeeded in putting a stop to it.

The witness owed Throckmorton, who was a tavern-keeper, $20 for board, and $130 for money won at a time, different from that at which the money had been won by the plaintiff in error; and in that way the $150 which Throckmorton had assumed to pay for Greathouse, was adjusted, to the satisfaction of the witness, who stated that he considered the payment made to him, in the manner stated, equal to money, because he owed that sum to Throckmorton — no part of which had been won in the presence of Greathouse; and that he would have paid in money, every cent of the bill for hoard» and the $130 won from him, had it not been adjusted in the manner stated.

Upon the close of the testimony, a motion was made to instruct the jury, as in case of nonsuit, which the court overruled.

The plaintiff in error, also moved the court, to instruct the jury, “that if they believed from the “.testimony, that one hundred and thirty dollars of “the debt, due from Greathouse to Smedley, (who “was the witness,) had been arranged and settled,

“by a debt due from Smedley to Throckmorton for “gaming, theplnintiff could not recover that amount “in this action;” but the motion was overruled, and to the opinions of the court, on both points, exceptions were taken, and their correctness is now questioned by the errors assigned.

Assumpsit for money paid &c. only inaintainable iuw!*'500”' Money, not property, and is supported pays^^debt <lue by de’ft. to plaintiff’s oanoelment -of both debts, without the inoney^actuandrepassing.

For the plaintiff in error, it has been insisted that, under neither of the counts in the declaration, could a recovery be legally effected, as there was no money actually lent or advanced. Various authorities have be.en cited in argument, none of which are sufficient to maintain the position assumed. The doctrine that indebilatns assumpsit is in the nature of debt, and must be supported by a monied consideration, cannot be reasonably doubted. The case cited proves that; but nothing more. In the case of Lucket vs. Bohannon, III Bibb 378, which {¡as |jeen confidently relied upon by the counsel of Greathouse, this court said: “It is clear that an ac“tion for money had and received, or for money “laid out and expended, cannot be maintained where “n0 money has been received or paid; but imme“diately afterwards it is added, “and in this case, the “evidence proves property and not money was re(tceivej by Lucket.” In the present case, no part of the consideration was property.

Had the money been advanced by Throckmorton to Greathouse, and by him paid to Smedley, and by the latter returned to Throckmorton, no difficulty on this point could have suggested itself. It would certainly have been an idle ceremony to have thus handed the money, from hand to hand, under an agreement-between all the parties concerned, that it should be immediately returned to the pocket of the individual, from whom it started. The case of Beardsley vs. Root, XI Johnson’s Reports 470, is considered as in point. That was an action instituted by a client against his attorney. On a sale of land, made by the officer under an execution -in favor of the client, his attorney became the purchaser, by whose directions the officer returned the execution satisfied, having first taken from him a receipt for the amount of it. The court in their opinion, said, that strictly speaking, the attorney should have paid to the sheriff the purchase money, in satisfaction of the execution; but as the officer would have been justifiable in -paying it back, it was unnecessary to go through such a ceremony; and that upon the return of the execution satisfied, by order of the attorney, and the reception by him of a deed for the -land, the amount of the execution, was in contest• pJation of law, in his hands. The action in that case was for money had and received; in this, it is for money lent, laid out, and expended, &c. That however, cannot vary the principle. In neither case could the action be maintained, but upon a monied consideration; and an actual advancement of money, would iiave been as necessary in the one case as the other.

No answer- to action for money paid by plaintiff to defendant’s use, that plt’f had won the money from the person paid. The responsibility of defendant grows out of his being discharged from his debt by plaintiff, arid at his request.

We are, therefore of opinion, that the motion to instruct as in case of non-suit, was properly overruled.

As to the second instruction moved for, we are of opinion, that it was also .properly refused. Great-house was under no obligations, legal or moral, to pay the money which Smedley had won of him; but if he thought proper to do so, no one had a right to object to it. He determined to do it, and applied to Throckmorton to advance for him the money, by paying it to Smedley, or settling the demand for him. Throckmorton was-not even present when the money was won from Greathouse, except for a part of the time. He was not in anyway concerned in the game, and used his influence to prevent him from gambling; and when applied to, as a friend to pay the money for him, procured his discharge by receipting to Smedley, for $150, due by him;- — 130 was, to be sure, won at faro; but it was a matter of no consequence to Greathouse, how Throckmorton settled the debt. He had no right to object to the manner of payment. If the defendant in error had paid the money to Smedley, the latter owed it to him, and would have immediately returned it, if he is worthy of credit.

The judgment of the circuit court, must, therefore, be affirmed with costs.

DISSENT.

Judge Underwood

delivered the following dissent to so much of the opinion of the court, as relates to the second' instruction, moved by defendant and overruled.

In this case I dissent from so much of the opinion heretofore delivered, as sustains the circuit court in refusing the second instruction asked for by the plaintiff in error. The act against gaming (1 Dist.. 833) makes void all promises where the whole or any part of the consideration of such promise is mo* ney or other valuable thing won, laid, or betted at cards, dice, tables or any other game whatsoever.— Under the operation of this act, the undertakings on the part of Greathouse to pay Smedly, and of Smedly to pay Throckmorton the sums which each had won at Faro, were also hereby void. But by transferring the void promise of Greathouse in fa-¡ vor of Smedly to Throckmorton, a binding efficacy has been imparted to it, and the latter will, as the opinion stands, be permitted to recover upon it. I confess that I do not perceive the principle upon which it can be done with propriety. On the contrary, where the transfer rests upon no other consideration than that of exchanging one gaming debt for another, Í cannot conceive how a liability can be created according to any known principle of the law. There is no consideration for such a liability. Here Throckmorton has given a gaining debt on Smedly for a gaming debt on Greathouse. True Throckmorton also gave an as count for Smedly’s bond amounting to $20 in addition; and to this extent there was a valuable consideration parted with by him, provided Smedly was discharged because of the assumpsst. Even if Throckmorton has a right to recover to the extent of this $20, still a valuable consideration of that amount cannot enlarge his right to recover for a gaming consideration. I should rather say, that the gaming consideration when coupled with a valuable consideration, will vitiate the latter, than that the latter will purify the former.

Dissent.

I hold it to be incontestable that every declaration in assumpsit, must set out a consideration sufficient in law to support the action. See 1 Chitty 295.

Now I think there can be no such thing as a valuable consideration to support a contract, unless one of the parties to it, either transfers money or property at the time, or agrees to do so in future, or has already done it; or engages to perform or has performed some labor or service; or agrees to do or abstain from doing some act, the performance of which is lawful; or releases some right or privilege which may be lawfully enforced or executed. I do not know that there is any other class of cases than those named, where a valuable consideration for a promise, either express or implied, can he found.— In the action of assumpsit it is a maxim that the plaintiff cannot recover more than ex equo et bono he shews himself entitled to. He must make out his right to recover, by stating and proving a consideration. In tills case Throckmorton has obtained a judgment for $130 which ex equo et bono he is not entitled to, and as I think without consideration: he has parted with no money or property and is not bound to part with any, he rendered no service and is not bound to perform any; he has made no agreement to do or not to do an act which was lawful and which agreement on his part might have been a sufficient consideration to support the promise on tiie part of Greathouse; and ho has released no right which he could have enforced by law. On the contrary, he has merely surrendered a claim to a gaming debt denounced by the statute, and which lie could not recover in a court of justice. It therefore seems to me analogous to those cases where the fountain is corrupt and where nothing but immorality can issue irom it.

Dissent.

If the doctrine is once established that gamblers by swopingor exchanging debts, can cleanse the turpitude or illegality of the consideration, there are but few of them, who will lack ingenuity to secure their winnings, by inducing their victims to promise payment to some compeer in guilt;'or to one who has either really or pretendedly won of him at a different sitting. Thus the whole policy of the statute will be defeated by circumvention, and that excellent maxim of the common law, “ ex turpi contractu oritur non actio,” disregarded.

If A promises to pay B $50 for stealing ahorse for him, and B promises to pay C $50 to furnish the stolen horse, and C steals the horse for B who delivers the horse to A and then it is agreedbetween the parties, with a full knowledge of ail the facts, that A shall pay C the $¡,60 and B he released from C and have no further claim on A, can C recover from A upon the promise? it does run counter to all my notions of the pure principles of the common law, to think that they would countenance the claim of a thief and secure to him the reward of his iniquity under such circumstances. The demand of Throckmorton against Greathouse is precisely analagous to that of C against A in the case supposed. The only difference between the two cases is, that one relates to the conduct of thieves, the other to the conduct of gamblers. The common law applies to the immoral conduct of the one, and the statute operates upon the illegal contracts of the other class.

Dissent.

If Smedly chooses, he can still pay Throckmorton, notwithstanding Greathouse’s conduct. If Greathouse has violated the rides deemed honorable among gamblers, I see no reason why Smedly should shelter himself behind Greathouse. But Í disclaim the doctrine that a valuable consideration can in any case turn upon the honor of a gentleman.

The opinion proceeds upon the ground that Great-house had determined to pay the debt, although he was neither legally nor equitably bound; and that it was* therefore, a matter of no consequence how Throckmorton settled it. The opinion here assumes, I think, too much. Greathouse seems to be determined not to pay the debt, if we may judge from his resistance here. That he made promises to Throckmorton is admitted, but the very question is, whether the promises so made are binding; and. not whether these promises were made at the time with a determination to perform them or to discharge the debt to Smedly. These promises were not obligatory on Greathouse when made, because he received and was to receive no consideration. If by them he had induced Throckmorton to advance in money or property, or any thing valuable, the amount of the gaming debt due Smedly, then, I admit that when Throckmorton so made the advance, it would have imposed a liability on Greathouse to remunerate him to the extent of the advancement; because to that extent Throckmorton would otherwise sustain a loss, which constitutes as valid a consideration in law, as a gain. But here, in reference to the $130, Throckmorton has made no advance for Greathouse. He has paid for him neither money nor property, nor a phase in action. He has only surrendered a gaming debt which in law is nothing, because the contract by which it exists, if it can exist at all, is void. Hence Throckmorton has not lent, or laid out and expended money for-the use of Greathouse to the extent of the $130, and for so much therefore he had no right to recover.

Dissent.

But it might be infered from the expression in the opinion, that “it was a matter of.no consequence to Greathouse how Throckmorton settled the debt,” that Greathouse could not take advantage of the turpitude or illegality of the consideration. Such an inference seems to me to run counter to the rule which permits the defendant in assumpsit under the general issue to shew any thing by which the plaintiff’s right to recover may be defeated or restricted. Some countenance is given to the opinion that Great-house cannot go into the entire want of consideration between Throckmerton and Smedly from a note in Chitty on contracts, 184. The text says that Buller justice put this case: “ Suppose A owes B 100£, and B owes C 100£, and the three meet, and it is agreed between them that A shall pay C the 100£; B’s debt is extinguished and 0 may recover that sum against A.” There is a note made 'in reference to this text to this effect: “It seems that in such case the defendant cannot object want of consideration between plaintiff and his debtor,” and XII. East. 513, 515 is referred to in support of the principle given in the note. I have examined the case in East, and instead of its being against enquiring into the consideration, it rather favors it.— Lord Filen borough said, “If one agree to receive money for the use of another upon consideration executed, however frivolous or void the consideration might have been, in respect to the person paying the money, if indeed it were not absolutely immoral or illegal, the person so receiving it cannot be permitted to gainsay his having received it for the use of that other.” Here, the money having been actually paid, the holder cannot retain it, but must account for it to him for whose use it was paid, no matter how frivolous the consideration may be, or indeed whether there be any consideration at all.— But if the consideration be immoral or illegal, what then? Shall the plaintiff who has been engaged in the immorality or illegality of the transaction come into a court of justice and recover the money as a reward for his guilt or misconduct? I hink not.— The case in East is long since the Revolution, and is not authority, even if it supported the doctrine contended for.

I have not considered it a matter of importance to enquire what effect the $20 for Smedly’s bond ought to have upon the case. I doubt whether it can authorise a recovery upon counts for money lent or laid out.

Speaking of the case put by Bnller, Justice, as above, it is laid down in Chitty on Contracts 184, that, “ if the defendant was not originally indebted to the third party, (B,) as for money had and received, the plaintiff's remedy is, it seems, only by action of special assumpsit on the agreement” — an amount for board may be distinguished from money lent, or laid out and expended. Whether this $20 can sustain the action for any part of the demand set up by Throckmorton, I give no opinion, differing as I do from my brethren in the main point.

The counsel for plaintiff in error filed the following petition for re-hearing.

It is believed, by the counsel for Greathouse, that a re-examination of this cause, upon some questions not agitated in the opinion heretofore delivered, must result in a reversal of the judgment of the court below.

The record shews that, in July or August, 1826, Throckmorton kept a tavern at the Lower Blue Licks; that Greathouse called at his tavern as a guest, where he met with Smedly, who was at that time hoarding with Throckmorton; that Greathouse and Smedly played at Faro until Smedly won from Mm $150; that Smedly was, at that time, indebted to Throckmorton in the like sum of $150, of which $20 were for boarding and $130 for money previously won from him by Throckmorton at Faro; that it was agreed among the three, that Throckmorton should give Smedley credit on his books, which he did, for the $150; that Smedly thus owed Throckmorton, in consideration of the'$150, winch Smedly had won from Greathouse, and that Throckmorton should look to Greathouse for the money; or in other words, Greathouse verbally assumed to pay Throckmorton the boarding and gambling debt of Smedly, in consideration of the gambling debt which he owed Smedly.

Petition for a re-hearing.

This promise of Greathouse is clearly within the statute of frauds and perjuries, and therefore null and void. The case of Waggoner vs. The Bells, IV. Monroe 7, is, on this point, desicive of the casé.

Herbert G. Waggoner applied to Alexander Wag-goner to borrow money, who, not having it to lend, procured various sums from the Bells, in his own name, amounting in the whole to about $2500, which he paid over to Herbert G. Waggoner.— This money, except about $100, was repaid, at different times, to the Bells, by Herbert G. Waggoner, who contended that he had paid the whole amount. The matter was referred to arbitrators, and Herbert G. Waggoner, agreed to pay the Bells the balance if the arbitrators should award it against him. — - This court decided that his promise was void, because it was not in writing. They say that Alexander Waggoner had not been released from the demand by the Bells; that he was therefore still bound to them for the debt, and that, without such release, Herbert G. Waggeuer could not be made responsible upon his verbal assumpsit.

In this case, no reZease'was executed by Throckmorton to Smedly, or by Smedly to Greathouse..— Every thing was verbal, except the entering of a credit to Smedly on the books of Throckmorton. Should this be construed into a release, it would render the statute of frauds and perjuries a dead letter. In ninety-nine cases out of one hundred in the mercantile world, the original debtor obtains a credit for the demand, and the person who assumes to pay it, is charged with the amount.

But again; It is contrary to the policy of the statute- against gaming, to permit any arrangement for the payment of a debt, with a person who knew of its vicious origin, to be the basis ol its recovery in a court of justice. See, on this subject, Hussey vs. Jacob, I Salkeld 344. Carthew 356, Holt 328, and I Lord Raymond 87. See also, Bowyer vs. Bampton, II Strange 1155; and what Lord Mansfield in Lowe vs. Waller, Dougless 744. See also, Thompson vs. Moore, IV. Mon. 79, 80; I do. 114, 15; I Dallas 429; IV. do. 298; V. Johnson’s Rep. 327, 335; III. Cranch 242, 248; and I Binney’s Rep 110, 123.

Petition for a re-hearing.

The authorities first above cited shew that a person who is privy to the illegal and vicious consideration, can never recover a gaming debt. The others go a step farther, and establish the doctrine, that the taint or vice, of a gaming deht, follows it into the hands of an assignee for a valuable consideration, although he was ignorant of the turpitude of the consideration.

The only exception to this doctrine will he found in the case of Chiles vs. Coleman, II. Marshall 300. That if the looser of money won at gaming, in consideration of a just debt, which the winner owes to a third person, gives his bond to such third person, who is ignorant of the turpitude of the consideration, it will be obligatory. If however, such third person -understands the true nature of the demand, the new bond will receive the taint of the original transaction, and will be null and void.

This view of the subject, might render it unnecessary to disturb the ground on which this court has predicated its opinion. But it is respectfully suggested, that it is not tenable, either by the tlecissions of the English courts, previous to 1776; those of our own state, or even those of New York.

Lord Mansfield, who was one of the most liberal, as well as enlightened judges, who ever sat in West-minister Hall, and who made justice his polar star, to guide him through the mazes of technicality, recognized the doctrine advocated by the counsel for Greathouse, as late as 1770, in the case of Nightingale vs. Devisene, V Bur. 2592. This was an action for money had and received. It was in proof, that £500, in East India stock, had been transferred to 'the defendant, for the use of the plaintiff. His Lordship, in delivering the opinion of the court of King’s Bench, in this case, said: “We are all of opinion ihat this action, ‘for money had and received, to the use of the plaintiff,’ will not lie in the present case, where no money was received.”

Petition for a re-hearing,

In the case of Lucket vs. Bohannon, III Bibb, 378, which was assumpsit for money had and received, and mouey paid for defendant, this court says: It is clear, an action for money had and received, or for money laid out and expended, cannot be maintained, where no money has been received or paid.

In the case of Cumming and Cumming vs. Hackley and Fisher, VIII Johnson 202, which was an action of assumpsit for money paid by the plaintiff for the defendants, the supreme court of New York say: “But is such a change of security the actual payment of money under this count?” “In Taylor and Higgins, III East, 169, “the court of King’s Bench, held “it not to be equivalent to the payment of money, “and not sufficient to entitle the party to recover “under such count. It seems to be a rule, that under “a count for money paid, it must appear that money was “actually advanced.”

This case was decided after solemn argument, by eminent counsel, and upon a review of the English cases on the subject, both before and since 1776.

Being for money paid by a change of securities, it is believed to be more in point, than the case of Beardsley and Root, referred to in the opinion of this court.

No English case, either ancient or modern, has gone the length of Beardsley and Root. Some modern cases have decided, that this species of action could be maintained, where bank bills or bills of exchange, had been received; but it was on the ground that they were money, and consequently that-money had been actually received.

The case of Beardsley and Root is, however, clearly distinguishable from the case of Greathouse and Throckmorton, as well as from those of Lucket and Bohannon, and Hackley and Fisher. It was a case of money had and received'; by an attorney for the use of his client, and not for money lent or-paid? The attorney had caused an execution, in favor of his client, to be levied on a tract of land; had become the purchaser of the land under the execution; had received a deed for the land from the sheriff; had given him a receipt for the amount of the execution., and directed hun to return it satisfied, which he accordingly did. A stronger case for the maintainance of an action for money had and received, where the dollars had not been actually counted out and paid, can scarcely be imagined. But it has very little similitude to that now before the court, and should not be sufficient to overturn the doctrine of the common law, as recognized by Lord Mansfield, by this court, and the supreme court of New York, in the case above cited. A re-hearing is therefore respectfully solicited.

Statutes against gamstruedstrictly

A °wes B at nfaro,W°B ows C, A applies to C to pay B, which O does by discharging B from the same sum due to C from B, which A owed B, C sues A for money paid, &c. it is no defence to allege the consideration between A & B,and B and C to have been money won at faro. The consideration upon which C founds his action, is the surrender of his claim upon B, and his discharge of A’s debt to B, at the instance and request of A.

jDepew for Greathouse.

RESPONSE.

Chief Justice Robertson

delivered the Response of tTit court to the plaintiff ’s petition for a re-hearing.

On a full reconsideration of this case, the court, (Judge Underwood dissenting,) adheres to the opinion heretofore delivered.

The authorities cited in the petition, are not, in. onr opinion, applicable to this case; nor at all decisive of the principle which must govern it. We cannot think that any of the statutes against gaming, can be made available to the plaintiff in error.— These statutes have hitherto been, and should ever be construed strictly; such was the judicial interpretations of the Statutes of Charles II. and of Anne, in England — See II Burrow, 1027 — II Wils. 309 — Ib. 36 — Cowper, 281. And the statutes of Virginia and of this state have never been constructively extended beyond their direct and obvious import.— The simple act of gaming or of betting, without fraud or deceit, is not, and never was unlawful.— As to promises on consideration of money or other thing won, the statutes apply only to promises 11 to any person or for his use,” in consideration of money or property, “by him won, or whereof money or other tiling so won, lent, or advanced, shall be a part or alt of the consideration money.” Chiles vs. Coleman, II Mars’I. 300. The assignment by the plaintiff to Suiedly could not have been enforced as between themselves — nor could any action have been maintained by Smedley against the plaintiff on any new contract made in consideration of that assumpsit — as long as the promise remained unsatisfied by payment., the-promisor could not be bound by it. But, if in consideration of a debt due from Smedley to a stranger, the plaintiff had undertaken to pay the latter the amount which had been assumed to Smedley, he could not have exonerated himself by impeaching the original consideration, unless the- stranger had been, in some way, privy to the gamin^bprior to the undertaking to him. So too there can be no doubt that if, at the plaintiff’s request, the defendant had paid to Smedley in money, the amount won by him from the plaintiff, the defendant could recover it from the plaintiff in an action of assumpsit; for though there was no binding consideration between the plaintiff and Smedley, the payment of the money by the defendant at the plaintiff’s request would have been, as between them, a legal and valuable consideration. (II Wils. S09.) And for a like reason, if A owe B, and C, at the request of A discharge the debt or exonerate him from it, the consideration between C and B is immaterial — it is not even essential that there should have been any valuable or legal consideration as between them — and therefore C might recover the full amount of the debt from A even if the debt from A to B had been extinguished by a donation of it by B to C after the latter had assumed to pay it for A. In such a case the extinguishment of tiie debt by C at the request of A would be, as between them, a sufficient consideration to bind A to C for the whole amount of the debt so extinguished: Chitty on contracts, 184.

But the counsel for the plaintiff insists that, as his client had incurred no legal obligation to Smedly, he is not legally liable to the defendant in consequence of his extinguishment of Smedley’s demand, so far as that extinguishment resulted from a gaming consideration between the defendant and Smedly. This would be true if the promise by Smedly to the defendant could be decided to be of no actual value. But we cannot judicially decide that Smedley’s assumpsit to the defendant was of no value in fact. If Smediy was ¿solvent and determined to pay the defendant, notwithstanding his legal right to have sheltered himself under the gaming law, his assumpsit to the defendant might, have been equal in value to the amount assumed. „■

Response.

It is enough for the plaintiff that he may plead law against gaming for himself. He cannot plead it for another — nor prevent Smedly from paying — nor divest the defendant of the amount after Smedly had paidj.it.

Although Smedly was under no legal obligation to pay the defendant, yet he may have felt constrained by an honorary obligation even more inviolable (in the opinions of some men) than any mere legal sanction. And if he was willing and able to pay, and would have felt himself degraded by refusing to pay; surely it cannot be said that the defendant has sustained no loss in consequence of his having exonerated the plaintiff at his instance and request. He has given up a claim, which to him , may have been valuable and available — and shall the plaintiff now be allowed to withhold indemnity by shewing that Smedly might, if he had been so disposed, have evaded payment to the defendant by relying on a gaming consideration ?

Such a doctrine would, in our opinion, be not only an unwarrantable extension, but an unjust and impolitic perversion of the statutes against gaming. It would produce extensive consequences, the end and operation of which can scarcely be imagined, and which might be embarrassing, mischievous and even demoralising.

Suppose that the plaintiff had bought the defendant’s claim on Smedly, and had given his bond for-the amount promised for it, (knowing the original consideration,) could he have avoided the obligation of his bond by shewing that the defendant had won from Smedly the amount of the claim so sold? We think not.

The claim was deemed to he of some value — the parties fixed its value by their own estimate; and the plaintiff could not have evaded his bond given in consideration of the transference to him of the chance of collecting the amount of the claim. If he had collected the amount, then surely he could not have avoided his bond. But the receipt of the amount after the execution of the bond, could not retroaot so as to form a consideration for the bond, if there was no consideration at the date or delivery. Therefore, it would seem that the collection of the amount of the claim would not be material to the question of consideration — and whether the money had ever been collected or not, there would have been, as between the parties to the bond, a sufficient consideration.

Responso.

Suppose, when usurious contracts were void, Á, Avbo held a bond on B for $1000 in consideration of that sun», loaned at an interest of 7 per cent, had sold the bond to C for the note of C to him for $1000 — (C having notice of the usury,) — could C avoid the note by shewing that the contract between A and B was usurious? It seems to us that he could not» If C had promised to pay B $1000 in consideration of so much money won, and A at the request of C, had paid B the $1000 for C by surrendering to B his bond for $1000, given in consideration of the loan, could C avoid the payment of the $1000 to A by shewing that the contract between A and B was usurious? It seems to us that he could not. B might not have ever pleaded the usury — his bond might, therefore, and doubtless would have been deemed valuable to A and the latter should not be juggled out of that value by C in consequence of kindness manifested towards him, and benefit conferred on him at his request. The analogy between a contract void for usury and an agreement void for gaming is perfect. Consequently, we come to the conclusion, that it is not material to the plaintiff nor to the legal merits of this case whether Smedly could or could not have resisted the payment of the sum which he had.assumed to pay to the defendant. He chose to pay it— and, as is suggested in the former opinion, the defendant’s right to recover the whole amount in this suit, is as perfect and as legal as it would have been if Smedly had paid the defendant with one hand and then received the amount with the other hand in consequence of the defendant’s assumpsit to the plaintiff. If the defendant and Smeclley had merely exchanged their claims, the one for the other, without extinguishing Smedly’s claim on the plaintiff, the latter might have successfully relied on the original consideration in a suit on his promise to Smeclly.-— But he is not sued on that promise but on that to the plaintiff. Wherefore the former opinion must remain unaltered.  