
    Robert R. Lucas vs. Thomas N. Waul et al.
    A judgment obtained upon a gaming contract, is void by the statute ; and equity will give relief, although the defence might have been made at law.
    Nor will it make any difference, that a note given for a gaming consideration has passed into the hands of an innocent holder, for a valuable consideration without notice ; the statute makes the contract absolutely void.
    N. and L. played at cards, and the latter lost a considerable sum, which he did not pay at the time; N. being in debt to R., the latter knowing the facts as to the money lost, at the instance of L., and with the consent of R., procured L.’s note, payable to R., for the sum thus lost by L. to N. ; R. transferred the note to F., who sued L. upon it in the name of R. for his use, and obtained a judgment upon the note for principal and interest; L. filed his bill for an injunction against the judgment; held, that it should be granted and made perpetual.
    On appeal from the circuit court of Hinds county; Hon. Geo. Coalter, judge.
    Robert R. Lucas on the 24th of July, 1844, filed his bill on the chancery side of the circuit court of Hinds county, in which he alleges, that in the year 1837, at the Mississippi springs, in Hinds county, Thomas N. Waul won from him at an,unlawful game of cards called “ brag,” one hundred and fifty-one dollars; that Waul was indebted to Thomas Robertson, and gave an order on complainant, in favor of Robertson, for this sum; when Robertson presented the order, he executed his note, payable to Robertson or order, for that sum on the 23d of July, 1837; that Robertson knew at the time that the note was for money lost at cards. Robertson sued on the note for the use of Edward Francis, and on the 24th of July, 1841, obtained a judgment thereon for the sum of one hundred and eighty-one dollars, while complainant was absent in Virginia on indispensable business. The bill prayed for injunction, and that it might be made perpetual against the judgment.
    It was admitted that the note was executed for a gaming consideration, as stated in the bill.
    Robertson’s answer admitted the facts stated in the bill, except that he stated that Lucas suggested to him to procure the order on him from Waul; and that he, for value received, passed the note to James D. Hinson, who traded it to Francis.
    Francis answered, that Hinson, being in debt to him, offered in part payment the note of Lucas; he knew nothing of the illegal consideration of the note, but at Lucas’s earnest persuasions and promises that he would pay the note, he took it and obtained the judgment on it; after which Lucas urged him to issue an execution and levy it on a particular piece of property pointed out by Lucas; he made the levy, and realized therefrom sixty dollars of the money.
    There was no proof taken, and the circuit court dismissed the bill. Lucas appealed.
    
      J. J. Deavenport, for appellant.
    1. It cannot be contended, if in the court of law Lucas had made his defence, that a judgment could be had against him. See H. & H. R. C. 647, sec. 58. The statute declares the policy of the state to be utterly hostile to every species of gaming.
    The general rule of law is, that if a contract is void on account of an illegal consideration, or because made in contravention of public policy, no subsequent proceeding or matter can relieve it from its void condition. If voidable, it may be cured by subsequent proceedings. But the statute makes all contracts of this kind absolutely void. The declared policy of the state is against gaining, and has provided that her courts shall not lend their aid to the enforcement of such contracts as are made upon such a consideration.
    2. In a case where a party has failed to make bis defence in a court of law, equity will relieve and perpetually eiijoin the plaintiff from enforcing his judgment, even where the plaintiff is an indorser and has given a'valuable consideration for the note. Woodson & Royster v. Barrett & Co., 2 Hen. & Munf. 80.
    
      Amos R. Johnston, for appellees.
    1. I shall certainly not deny that, as between Lucas and Waul, (the gaming parties,) the promissory note given for money lost at cards, would have been void under the statute H. & H. 676; but that statute applies not to this case. The rights of innocent third parties have intervened. Lucas himself induced Francis to acquire the note. By now avoiding its, payment, Lucas would be protected in a fraud, and assisted by law to take advantage of his own wrong. He who seeks equity must himself practise equity. Chit, on Con. 707, 7l4, 715; Kent v. Walton, 7 Wend. 256; George v. Stanley, 4 Taunt. 683; 1 Story, Eq. Jur. p. 77, § 64 e; Story on Prom. Notes, 210, $ 191, 192. See also the authorities cited in Story, Prom. Notes, p. 210.
    2. If the note was void in the hands of Francis, Lucas possessed a plain legal defence to the action at law instituted by Francis. He did not avail himself of that legal defence. His excuse is that he was in Virginia when the cause was tried. Being served with process, he knew that the action was pending. He employed no attorney, attempted no defence. He was therefore grossly negligent, guilty of inexcusable laches. Equity will not relieve in such cases. He who loses a legal defence by gross negligence, cannot subsequently invoke the powers of a court of equity to relieve him from the consequences of his own supineness or stupidity. ComrnWs Sinking Fund v. Patrick, 1 S. & M. Ch. R. 110; Miller, v. Gaskins, lb. 525; Madd. 77; 1 Story, Eq. Jur. p. 118, § 105; lb. p. 120, § 109; case of Williamson v. Raney, 1 Freem. Ch. R. 112.
    
      Deavenport, in reply.
    1. The note as between Robertson and Lucas would, according to Mr. Johnston’s admission, be null, void, frustrate, and of no effect. Does the transfer of a void note, made so by the statute on gaming, make it valid? The general rule is, wherever any contract or conveyance is void, either by a positive law, or upon principles of public policy, it is deemed incapable of confirmation. See Story, Com. on Eq. PI. p. 303, % 307.
    2. Francis traded for the note after it was due, and upon the grounds of commercial policy he cannot insist that the credit of the note should be sustained in his hands as negotiable paper. 3 Kent, Com. 79, 80. On the same page Chancellor Kent lays down the general doctrine how law courts will sustain the credit of negotiable paper in .the hands of ans innocent indorsee, and'expressly states that there are but two cases in which a bill or note is void in the hands of an innocent indorsee for a valuable consideration ; and that these cases are when the consideration in the instrument is money won at play, or it be given for a usurious debt. See 3 Kent, Com. 79, 80, and note of authorities cited. The statute regulating interest in this state has changed the law as it relates to usury, but the statute against gaming has confirmed the law as stated by Chancellor Kent with regard to gaming. See H. & H. R. C. 677, sec. 55.
    
    3. The policy of the state is hostile to the dangerous and ruinous vice of gaming, and has provided penalties to be inflicted dn those who dare infract the laws on this subject. Every species of contract where gaming constitutes the consideration shall be absolutely void. It is covered with a legal leprosy, from which it can never recover.
    4. It is not a question whether the parties to the bill have acted in good faith the one to the other, but it is, whether this note is made upon a consideration which the law abhors; whether the state will lend the aid of her courts to the enforcement of a contract which is founded upon a consideration which she has declared shall not constitute a good consideration; whether her courts will nullify her strong and positive enactments against gaming.
   Mr. Justice Teacher,

delivered the opinion of the court.

This is an appeal from the decree of the circuit court of Hinds county dissolving an injunction and dismissing a bill in equity.

The bill was filed to enjoin a judgment at law procured upon a promissory note, the enjoined consideration whereof was a gaming transaction.

A judgment obtained upon a gaming contract is void, and equity will give relief, although the defence might have been made at law. Humphries v. Bartee, 10 S. & M. 295.

It is no answer that a promissory note, based upon a gaming consideration, has passed into the hands of an innocent holder for a valuable consideration, even without notice. The statute is peremptory, and makes the note.and the contract void absolutely. 3 Kent, 80.

■In this instance, Francis, one of. the defendants to the bill, seeks to carry into effect, by a subsequent contract, an original illegal and void contract. This cannot be permitted. Adams et al. v. Rowan et al. 8 S. & M. 638. The indebtedness of Lucas to Waul arose from an amount of money won at play. The statute places a taint upon the indebtedness that nothing can purify. In short, it stands as ’if no indebtedness ever arose between them.

The decree must be reversed, and this court directs the injunction to be reinstated and made perpetual.  