
    Richmond.
    Nelson’s adm’r v. Armstrong & als.
    
    (Absent Mien, J.)
    On a bill filed to enjoin a judgment on the ground that the debt on which it was founded was for money won at cards, it being doubtful on the evidence, whether such was the consideration; or if it was, whether the plaintiff in the judgment, who was a transferree of the debt, had not been induced to take the transfer of the debt under the belief, induced by the concealment or misrepresentation of the debtor, that the consideration of said debt was good and lawful; the Court should continue the injunction, and direct an issue to ascertain the facts.
    In January 183S, Wilson C. Nelson obtained from the honourable John B. Clopton an injunction to two judgments recovered by James Cocke, administrator of Isaac Cocke deceased, against said Nelson, in the Circuit Court of King William, In his bill he charged, that in the year 1834, William B. Armstrong had won from him at cards the sum of 267 dollars; that soon afterwards Armstrong had drawn two drafts upon him in favour of Isaac Cocke, on account of the money thus won from him, one for the sum of 134 dollars, payable on the first of October 1835, and the other for 133 dollars, payable the first of October 1836. That at the time these drafts were drawn and accepted, Isaac Cocke well knew they were for money won at cards, and promised complainant that he should pay them at his own convenience. That complainant afterwards became satisfied that he had been cheated by Armstrong, and had so informed Cocke, and gave him notice that he did not think he should pay the drafts; and that Isaac Cocke did not, during his lifetime, take any steps to enforce the payment of them. That Isaac Cocke had since died, and his administrator James Cocke, had recovered judgments against the complainant on the drafts, and was proceeding to coerce payment thereof by execu- . . . tion. The complainant made James Cocke, as admimstrator of Isaac Cocke, deceased, and William B. Armstrong, defendants, and called upon them to answer the bill; and the prayer was for an injunction, and for general relief.
    
      James Cocke, administrator of Isaac Cocke, answered the bill, and denied all knowledge of the gambling between the complainant and Armstrong, and of the consideration on which the acceptance of the drafts was founded. He says he never heard of or saw the drafts, until he found them among his intestate’s papers, after his death; and he filed with his answer a letter he had received from the complainant, on which he relied to shew that complainant had accepted the drafts, upon a promise of indulgence, which had been given him; and that, therefore, if any equity ever existed in favour of the complainant, he bad waived it.
    The letter was dated October 4th, 1835. In it Nelson stated that he had some time during the previous winter accepted two orders given by William B. Armstrong in favour of Isaac Cocke, one of which was due the first of the month. That he had intended to pay it out of his wheat crop, but that had failed almost entirely, and he must therefore ask for longer indulgence. And he concluded by saying: “Your brother always told me that he would grant me indulgence, provided I would accept the orders, as he thought the getting the money out of Armstrong very doubtful.”
    The plaintiff filed in the cause a record of a suit then pending in the Circuit Court of King William, in which William B. Armstrong was plaintiff, and James Cocke as administrator of Isaac Cocke was defendant, the object of which was to recover the amount of aa account which Armstrong claimed to be due to him, amounting to 1121 dollars 75 cents; one item of which was, “amount of two orders on Wilson C. Nelson for 269 dollars, under date of January 8th, 1834.” He also filed- two depositions, one, that of John P. Boughton, who stated that Armstrong owed him 150 dollars, for the payment of which he applied to him about the last of November 1834; when Armstrong told him he would pay it if he would take an order on Wilson C. Nelson, for the amount; and at the same time stated he had won 400 dollars of Nelson at cards; which order witness refused to take.
    The other witness stated, that in January or February 1835, he had seen both Cocke and Armstrong holding private conversations with Nelson at Mechanics' ville, which Armstrong told the witness related to money that Armstrong had won of Nelson. That Armstrong, Cocke and witness left the place together ; and the two first commenced talking about orders that Armstrong was to draw on Nelson in favour of Cocke. Cocke was to advance money for the orders, to discharge various debts which were mentioned at the time, which Armstrong owed. When they were about to part, Cocke observed to Armstrong, that if Cocke should arrange this business for Armstrong, he should expect to be well paid; and Armstrong replied, that he was willing to pay him well for his trouble.
    Whilst the cause was pending in the Court below, Nelson died, and the cause was revived in the name of his administrator, George R. Trant; and coming on to be heard, the Court dissolved the injunction and dismissed the bill. From this decree the plaintiff applied to this Court for an appeal, which was allowed.
    
      Morson, for the appellant.
    
      Daniel, for the appellee.
   Baldwin, J.

delivered the opinion of the Court.

The Court is of opinion, that the Circuit Court erred in dissolving the appellant’s injunction and dismissing his bill, instead of directing issues to be tried by a jury for the purpose of ascertaining : 1. What was the consideration of the debt from Wilson C. Nelson to William B. Armstrong, for which the orders in the proceedings mentioned were drawn by the said Armstrong upon said Nelson, in favour of Isaac Cocke. 2. If the consideration of the said debt was money won by the said Armstrong from the said Nelson at unlawful gaming, did the said Cocke take the said Nelson’s acceptances of said orders, under the belief, induced by the concealment or misrepresentation of the latter, that the consideration of said debt was good and lawful. It is therefore adjudged, ordered and decreed, that the decree of the Circuit Court be reversed and annulled, with costs to appellant. And the cause is remanded to the Circuit Court, with instructions to reinstate said injunction, and proceed as above indicated, to a final decree.  