
    Collins v. Lee and Parker.
    Court of Chancery have power to set aside all judgments rendered; on Bonds, for a gaming consideration., (Note <z.)
    APPEAL.in Chancery from the Chariton,Circuit'Gourt.
   M’Girk, G; J.,

delivered the opinion of the Court.

By the record, it appears that a bond was given by, Collins, the appellee, for about; $100, to Parker, one of the appellants ;, that afterwards, the bond was assigned to>-, Lee, the intestate of the other appellant; that Lee brought suit on said bond, .against Collins, and thac judgment was rendered against him; that he .toolc.a writ of error to^ this Court, and reversed the same: The recorcffurther shows that the cause was remanded for a new trial; was tried over again, and judgment for Lee was again rendered, for the $100 and costs; and that before the' first judgment-was reversed, exe.cution issued thereon, and the plaintiff’s hill alledges ,$63 were-made thereon. Collins then brought a hill in Chancery, to he released from the balance of the judgment praying the same may be perpetually enjoined, and praying to have the'$63 refunded to him by Lee’s administratrix.;- alledging;in the hill,.that the bond on which the judgment was rendered, was given to secure the payment of the $100 mentioned in it, which was won of him by Parker at-certain games at cards, contrary to the statute ' qf .this State. The answer of Parker admits the money was won by gambling;. the answer of the administratrix admits .the.hond and. the judgment, but does not admit the amount of the judgment; .admits the execution on the first judgment, and admits-something was made on it; .admits the reversal of the first judgment, &c., and says that as to thegamhling, she heard the intestate say that the bond was given for money (17) won at gaming, and insists that she does not know the facts to be so, and insists that Collins shall he hound to prove it.

Upon hill and answer, the cause was set down,for hearing., and the Court decreed-a perpetual injunction to all except the $63, and as to that, decreed that it should he refunded by the administratrix to Collinsand as to- Parker, the Court decreed that he should pay the amount of the-judgment, costs, &c., to the administratrix;, fixup, which decree the. administratrix and Parker appealed to-this Court.,

The first error alledged' and insisted on, is, that a Court of Chancery has no power-to grant relief,' because the party should have defended himself at law; and having failed to do so, cannot now do it; secondly, the answer does not sufficiently admit the gambling consideration;. and thirdly, that as to the $63 collected, the answer does not admit the amount therefor, so as to give a decree for that amount. We will examine the points in order: as to the first point, the statute regulating Chancery, practice, is relied on, which says,.that in all cases where adequate relief cannot be had in the ordinary course of proceeding at law, the several Courts shall have power to proceed according to the rules in- equity, &c. It is contended, these words nega-. five the power to proceed ift Chancery, where the party has or might have had a remedy at law..

This appears to be true in general, but it is contended on the other hand, that though this may be true, yet the, power of the Chancery, Court to proceed in this case is given, by the gaming act, the first section, of which says, that all moneys, notes, bonds, judgments, &e., made, given, granted, &e., where the whole or any part of the consideration thereof, shall he for. any money won by gaming, or playing at cards, dice, or any. other game, shall he void and of no effect. The second section provides that all judgnients) mortgages, assurances, bonds, notes, bills,, specialties, promises, covenants, agreements, or other acts, deeds, securities, or conveyances, given, granted, drawn, or executed! contrary to the provisions of this act, may be set aside and vacated by any Court of Equity, upon hill filed, for that purpose by the person so granting, giving, entering into or executing the same, &c., and then says, or if a j udgment,, the same may he set aside on motion, &e. We hold this second' section gives the po.wer to Courts of Chancery tq set judgments aside, which were rendered.on bands the consideration of which was money won at car.ds, notwithstanding the act rq(18) specting Chancery practice. The two acts are in pari materia, and to he taken as if they were but one actand if'this were-the casein fact, as well as in law, then there would be no difficulty. It then appears, that that part which limits the Chan-, eery jurisdiction, to cases where adequate relief cannot be had at law, is intended to, he the general rule, hut that part which respects the relief in gambling cases, is intended in those instances-to he, and-' is in fact, an enlargement of the general rule ; and in.this way, the two parts cap stand together. It is objected on the part-of the appellants, that the second, section, of the gaming act, only applies to cases where judgments hav.e-heen confessed, otherwise, where there is a bond given, the defendant, or maker of the bond,, would haye. three remedies: first, a defence at law when sued on the bpnd;.- secondly, a remedy in Chancery; and thirdly, a remedy by setting the judgment aside when obtained, on motion.

It is clear that a judgment obtained on a gambling consideration, may be set aside on motion. It is most probable, that when this section was framed, itwas originally framed without that part which says, or if a judgment, then the same- may be set aside on motion,” and that this part was added by way of amendment, without due consideration of its phraseology £ but still I think it is intelligible, and that the-Legislature intended by this latter provision, to provide for the setting aside judgments confessed on gambling considerations. But if this mode of setting aside judgments extbnds to all judgments, no great violence would be done to the intent of the Legislature ; for above all things they appear to. have been solicitous, that no one should receive any benefit from a gambling transaction. But whether or not a judgment confessed, or one obtained by due course of law, can be set aside, it is time enough to consider when the question arises; one thing is satisfactorily certain, that all judgments however obtained, may be attacked and vacated in Chancery, by the very terms of the statute. This may be done, and nothing would be doubtful about the. matter, if it were not for the latter clause of this second sectionupon the whole matter, this point is ruled for the-appellee.

The next point is, does the answer admit sufficiently that the bond was given for a gambling consideration ? I think it does. It is true the answer says the administratrix does not know the fact, and insists it shall be proved. This, I conceive, is proved sufficiently, notwithstanding the demand for farther proof j for the an-. (19) swer admits the intestate did say that the bond was so obtained ; the administratrix does not alledge that she-believes the fact to be otherwise, or that she expects or hopes to prove otherwise;; but simply says she does not know, and demands that it shall be proved. This point is also ruled for the appellee. The next matter of' error, is, that the- Court ordered the- §63 to, bo repaid. This point is ruled for the appellant, because the answer no where admits that was the amount.

The- Court could not, therefore; assume §63 to be the- amountnor could they, on this evidence, decree for any sum. This point is ruled for the appellants. The decree- as to the- $63s is reversed; as to that part which decrees a perpetual injunction, it is affirmed, and the appelle- pay the costs of this appeal.. The cause is remanded for-further proceedings.,

Tompkins, J.,

dissenting;.

I do not think the answer sufficiently- admits the bond to have been given for gambling considerationin every other matter, I agree with the other Judges.

(a.) See contra, Wilkerson v. Whitney, 7 Mo. R., 295.  