
    Anthony Binder v. William H. Finkbone.
    A person, having lost money at gaming, recovered a judgment, under section 2 of the act of March 12, 1831, entitled “an act for the prevention of gaming,” against the winner, to whom the money had been paid, for the amount so paid, and afterward brought his, action against the owner of the building wherein the money was lost, for the purpose of enforcing the statutory lien of the judgment, as declared by section 14 of the act, as amended April 6,1866. On demurrer to the petition filed in the last-named action — Held:
    1. An allegation, that the amount of the judgment (which was stated) was found by the court in the first-named action to be the amount of money lost by the plaintiff and paid to the defendant, is sufficient, without averring that the money was in fact lost and paid, or otherwise averring the amount so lost and paid.
    2. The record of the proceedings in the first-named action is conclusive as to the following facts, to wit: The recovery of the judgment; the amount of money lost and paid by the plaintiff; that it was lost at gaming, contrary to the act of March 12, 1881; and that the defendant was the winner of the money so lost and paid.
    8. But such record does not tend to show, as against the defendant in the pending suit, either of the following facts, to wit: That the premises described in the petition were used and occupied for gaming contrary to the act of 1831: that the money sought to be recovered was lost therein; that the defendant was the owner thereof; or that he rented the same or knowingly permitted them to be used for the purpose of gaming.
    4. The allegation in the petition, that at the time the game was played and the money was lost by plaintiff, the defendant was the owner of the building in which the game was played and the money lost, and that he knowingly permitted the same to be used for the purpose of gaming for money, and for the said game with plaintiff, is, on general demurrer, a sufficient averment of the unlawful use and occupation of the building.
    6. A civil action under the code may be brought to enforce the lien of a judgment, existing under section 14 of the act of 1831, as amended in 1866, by ordering a sale of the property.
    Error to the District Court of Licking county.
    The questions in this ease were raised by a general demurrer to the petition in the original action, which waa brought by defendant in error against plaintiff in error, in the Court of Common Pleas.
    The following is a copy ,of the petition:
    “ And now comes the said plaintiff, William H. Einkbone, and, for cause of action against the said defendant, says:
    ' “ That, at the October term of the Court of Common Pleas of said county, for the year 1867, in a certain action then and theretofore pending in said court, wherein the said William H. Einkboue was plaintiff and Erank Ripley and Joseph Sawyer were defendants, the said plaintiff duly recovered a judgment against said Joseph Sawyer for the sum of three hundred and ninety-nine dollars and sixteen cents damages, and costs of suit, taxed at fifty-seven dollars and ninety-seven cents.
    • “That said action was brought by said plaintiff, against said Ripley and Sawyer, under the second section of an act of the general assembly of the State of Ohio, entitled *an act for the prevention of gaming,’ passed March 12, 1831, to recover from said Ripley and Sawyer money staked and betted by plaintiff" with said Erank Ripley and Joseph Sawyer on a certain game called faro, which said judgment in favor of said plaintiff" and against said Sawyer, as aforesaid, was for the amount found by said court to have been staked and betted by said plaiutiff with said Sawyer on said game, and won by said Sawyer and paid over to him by the plaintiff".
    “ That said judgment is still in full force, unreversed, and ■no part of the same has been paid.
    And the plaintiff’says that said game of faro, on which said money was staked and betted and lost by him, was played on the 21st day of June, A. d. 1866, at and in a certain building owned by said Anthony Binder, situate and being on a certain parcel of ground in the city of Newark, •county of Licking, and State of Ohio, of which the said Anthony Binder was then, and now is, the owner, and described as follows, to wit: (Here follows a long description.)
    
      “And said plaintiff further says, that at the time said game was played and said money was staked and betted by said plaintiff on said game with said Sawyer and lost by plaintiff' and paid over to said Sawyer, as aforesaid, and for a long time before that, the said Anthony Binder knowingly permitted the room in said building, in which said game was played, to be used by said Sawyer for the purpose of gaming for money and for the purpose of said game of faro with said plaintiff.
    “And the said plaintiff'therefore prays the court to declare the judgment aforesaid a lien on said building and real «state, and for an order that said real estate and building may be sold for the satisfaction of the judgment, interest, and costs aforesaid, and for all proper relief.”
    The demurrer was sustained by the Court of Common Pleas, and judgment entered for the defendant.
    On petition in error, the District Court reversed the judgment below, and this proceeding is prosecuted to reverse the judgment of reversal.
    
      Sample ‡ Atherton, for plaintiff in error:
    The petition is insufficient:
    I. It does not allege that any money was betted or lost .and paid by Einkbone. It does. not aver that the facts alleged in the suit against Sawyer were true.
    II. It does not allege the loss and payment of any specified amount of money by Einkbone.
    As the action against Binder is based on the record of the judgment against Sawyer, as to the. fact and amount of money lost and paid by Einkbone, it can not be sustained unless the judgment against Sawyer is conclusive against Biuder. 9 Ohio St. 361; 12 Ohio St. 303.
    TIT. Binder, not being a party to the action against Sawyer, is not concluded, nor can he be in any way affected by any allegation, finding, or j udgment made or rendered in that case. Before he or his property can be charged with any liability by any judicial proceeding, he has a right to Ms day in court, and an opportunity to contest the truth of every fact on which his liability depends, as well the amount to be recovered as any other fact. 1 Stark. Ev. 324; 1 Philips Ev. 326; 1 Greenl. Ev., sec. 522; 48 N. H. 57; Broom’s Max. 704, 705 ; 16 Ohio, 454; 10 Ohio St. 143; 17 Ohio St. 386.
    To l’ender real estate liable under the terms of the act of 1866, it must be alleged :
    
      First. It was used and occupied for gaming contrary to the act of 1831.
    That it is the use and occupation contrary to act of 1831, and not a single act of gaming, that attaches liability to real estate is evident:
    1. Prom the careful introduction and repeated use of that phrase in the statute. If permitting a single act was intended to fix liability on real estate, all that is said about use and occupation would be irrelevant and without meaning. All that is necessary to fix such liability will remain after striking out all that was inserted in it about use and occupation.
    In the construction of statutes, effect is to be given to every part, and the language used by the legislature, when free from ambiguity, can not be varried by construction. Smith’s Con., Construction, 861, 864; 18 Ohio St. 456; 13 Ohio St. 388; 7 Cush. 89.
    2. The liability of delinquent guardians to their wards is limited to “ all damage in consequence of the use and occupation of their wards’ real estate, and building, and liabilities for such damages.” etc.
    The plain import of the language of that act is to subject the property of the wards specified, to the same liability to which the property of other persons is subjected, and on the same conditions, only substituting the permission of the guardian for that of the owner in other cases. It can not be supposed that the legislature intended to leave any portion of such liability to rest on the ward ; nor can it be claimed that any liability is imposed upon such guardians, except to indemnify their wards for damages, by them sustained in consequence of such illegal use and oecupation ; hence follows the necessary conclusion that the 'whole-liability attempted to be imposed by that act, is in consequence of the illegal use and occupation.
    
    
      Second. That the game on which the money sought to be recovered, was lost, was played in it. Under section 9 of the act of 1881, to charge a person with the crime of permitting gaming, the game, parties, etc., must be particularly specified. 7 Ohio (pt. 1), 204; 1 Ohio St. 61.
    IY. The act of 1866 provides that said judgment shall be-a lien upon the property, etc. It does not authorize a court of equity to aid in fixing the lieu of such judgment.
    If it is a lien, it is one of a’purely statutory character. If it does not attach in the particular case, by virtue of the-statute, it can not be aided in equity. 1 Ohio, 162; 3 Ohio, 514; 6 Ohio, 162; 11 Ohio, 100.
    If Binder is charged with anything, it is a crime under the first section of the act of 1846, and the aid of a court of equity is invoked to impose and enforce the penalty-claimed to be prescribed by the act of 1866.
    Courts of equity do not lend their aid to enforce penalties. 2 Story Eq., secs. 1319, 1494; 4 Johns. Chan. 431.
    
      JS. D. Sprague, of Smythe $ Sprague, for defendant in error:
    I. It is certainly competent for Binder to authorize Sawyer to bind him by a judgment; and it is equally competent for the legislature to say how this authority shall be-given. The legislature may say that such an authority can-only be given by a warrant of attorney duly signed and sealed, or it may say that if any two persons conspire together to accomplish any unlawful purpose contrary to the public peace or welfare, either one shall be bound, as all conspirators are, for the admissions as well as the acts of their confederates.
    So, in this case, the legislature may well provide that the-execution of a lease, or knowingly permitting any property to be used for gambling purposes, shall operate as a power to the “ gambler ” using the property, to bind it for all moneys won by him therein, and for all judgments against him therefor.
    The distinction between actions at law and suits in equity have been abolished (see Code, sec. 3), and this court is not a court of equity, nor is this a suit in equity in any such sense as to limit either the powers or duty of the court by the old technical rules relating to courts of equity.
    The code also provides (see sec. 605), “ that where the statute gives an action, but doe's not designate the kind of ■action, such action shall be held to be the civil action of the ■code and proceeded in accordingly.
    We plant ourselves squarely upon the statute as giving ua the right, and upon the code as giving the remedy through the civil action which we are now prosecuting.
    We do not question the general doctrines or the authorities cited by opposing counsel. The only difficulty about them is that they have no application to this case. We deny that what we claim in this action is the enforcement of a penalty or forfeiture . or the conviction of a crime. All we ask is to have restored to us the money which Binder has helped Sawyer to filch unlawfully from us.
    II. The only remaining question to be considered is one of pleading. It is said that certain facts, supposed to be necessary, are not averred in the petition.
    On this question we insist that all the facts required by law or the statute are sufficiently stated. The right of action here asserted being one depending wholly upon the statute, we must look to the statute for the facts upon which it depends, and by virtue of which the lien sought to be enforced attaches to the property.
    If, then, we look at the statute, we find that it provides that for money lost by playing at any game, the loser may recover a judgment against the winner. See S. & C., 664, sec. 11.
    By the amendment of a. d. 1866, it also provides that all damages and costs recovered by any person in an action brought under that act “ shall be and remain a lien on the real estate and building, so used for gaming contrary to the act to which this is amendatory and in which the money so-sought to be recovered shall have been lost.” “ Provided the owner of the real estate or building so used and occupied, rented the same or knowingly permitted it to be used for the purpose of gaming.”
    Here, then, are the facts required by the statute.
    1. A judgment recovered in an action brought under the act of a. n. 1831.
    2. A building “ so used and occupied for gaming contrary to the act of A. d. 1831, in which the money sought to be recovered has been lost.
    3. That the owner rented or knowingly permitted the-building to be used for the purpose of gaming.
    It is said that there is no averment “ that any money was "betted or lost and paid by Einkbone.”
    But if the court examines the petition the averments will be found “ that said game of faro, on which said money was staked and betted and lost by him” (Einkbone), “was played on the 21st day of June, a. d. 1866, at and in a certain building, owned by said Anthony Binder,” etc. This-we insist is plainly an averment that the amount of money for which judgment had been- recovered, was “ betted ” and “lost” on the game of faro. And the fact of the payment is included in the word “ lost.”
    It certainly can not be contended that it is necessary to irse the words “ contrary to the statute.” It is sufficient if the facts alleged make the use or the gaming contrary to-the statute.
    It is true that the words “ used ” or “ used and occupied,”' are not found in any part of that statute except in the amendment of 1866. But those words taken with their' connections as they stand in the amendment, evidently refer to that use which is made of the building.when a game or games are played in it for money or gain. To play a game or games in a building, is to use and occupy it at' least for the time, and to some extent for gaming, and if the game is played for money or gain, it is unlawful, andv the use of the building by playing such a game in it, is to use it for gaming contrary to that act.
   McIlvaine, C.J.

The action below was brought under the 14th section of the act of March 12, 1831, as amended April 6,1866, entitled “an act for the prevention of gaming ” (S. & S. 378), which provides that “ said fines and costs and said damages and costs,” — to wit, all fines and costs .assessed for any violation of the original act (except the fines imposed by sections 6 and 7), and all damages and ■costs recovered by any person or persons in actions brought under the act to recover back money lost at gaming — “ shall be and remain a lien on the real estate and building used and occupied for gaming contrary to the act” so .amended, “ and in which the money sought to be recovered shall have been lost, until said fines and costs and damages •and costs be fully paid; provided, the owner of the real estate or building, so used and occupied, rented the same, or knowingly permitted it, to be used for the purpose of •gaming.”

Section 2 of the original act (S. & O. 664) authorizes any person who, by playing at any game or games, shall lose to •any other person, any sum of money or other thing of value, and shall pay or deliver the same to the winner, to sue for and recover the money or thing of value so lost and paid or delivered, from the winner thereof. And section 9 provides, “ that if any person or persons shall suffer any game or games whatsoever to be played for gain, upon or by means of any gaming device or machine of any denomination or name, in his, her, or their house, or in any outhouse, booth, arbor, or erection, of which he, she, or they have the care or possession,” on conviction, etc.

It is in view of this state of legislation that the sufficiency of the petition below must be determined.

It is claimed by demurrant that the petition is defective in not alleging that the judgment against Sawyer was for money, in fact, lost and paid by the plaintiff- to Sawyer ;at gaming; and in not stating the amount so lost and paid.

The petition does allege that the judgment recovered was for $399.16 and costs; and that the suit in which the judgment was recovered was brought against Ripley and Sawyer to recover, under the act of March 12, 1831, money staked and betted by the plaintiff with them on a game called faro, and that the judgment so recovered against Sawyer was for the amount found by the court to have been staked and betted by the plaintiff with Sawyer on said game, and won by Sawyer and paid over to him by the plaintiff. Upon this point the allegations in the petition are sufficient.

The action was brought to enforce the lien of this judgment, under the statute, against the real estate described in the petition. To entitle the plaintiff to the relief sought, he must allege, among other things; the recovery of the judgment; the amount thereof; that it was for money lost by him at gaming, and paid to the winner, and that the gaming was contrary to the act of 1831. These allegations, if denied, may be proved by the record of the judgment, and when so proved, the record is conclusive of the facts stated. Hence, the allegation in the petition that the court which rendered the judgment, found that the damages recovered were for money lost by the plaintiff', and paid by him to the defendant at gaming, contrary to the statute, is sufficient, without other allegation that the money for which the judgment was rendered was, in fact, lost and paid, etc.

But it is claimed that Binder, not having been a party to the action against Sawyer, is not concluded or affected by any allegation, finding, or judgment made or rendered in that case.

To the extent that we have above indicated, that the record in Sawyer’s case may be conclusive, the rule here contended for by plaintiff in error does not apply. No doubt the general rule is, that the record of a judicial proceeding does not conclude any person who was not a party or a privy to it. But it is also true that such record concludes not only parties and privies, but strangers likewise, as to the fact that such proceedings were had, and that such judgment was rendered. In this case, we think the record of the judgment against Sawyer concludes Binder as to the fact that the judgment was rendered, and as to the-amount of the judgment, and as to the cause of action upon which it was rendered.

To entitle the plaintiff to the relief sought in this case, it is-necessary, however, that he aver, and prove otherwise than by the record in Sawyer’s case, the following facts, to wit:; That the real estate and building described in the petition were used and occupied for gaming contrary to the act of 1881; that the money sought to be recovered by the enforcement of the lien of this judgment, was lost therein; that the defendant, Biuder, was the owner thereof at the time, and that he rented, or knowingly permitted, the sámelo be used for the purpose of gaming.

If these facts (which are sufficiently stated in the petition) be found against Binder, the lien of the judgment rendered in Sawyer’s case may be enforced against Binder’s, property without infringing the rule, that no person shall he deprived of his property without due process of law.

It is also claimed that the petition does not show that the property therein described had been “ used and occupied” contrary to the act of 1831.

We do not understand the 14th section, as amended, in-1866, to mean that the lien shall attach only to such real estate and buildings as may be “used and occupied” contrary to the act of 1831; but that the lien attaches to property in which “ gaming contrary to the act” is knowingly permitted by the owner. Tet, if the true construction of the section be otherwise, we would still hold that the.use and occupation, as averred in the petition, were contrary to the 9th section of the act. Under either construction, the averment, that at the time the said game was played, and for a long time before, Binder, the owner, knowingly permitted said room to be used by Sawyer for the purpose of gaming-for money, and for said game of faro with the plaintiff, is,, on general demurrer, a sufficient averment of the unlawful-use and occupation of the building.

The facts thus stated show a use and occupation contrary to the act of 1831.

Without special averment, the court will take notice of the provisions of the act.

It is also objected that the case made in the petition is not of equity cognizance; that the lien sought to be enforced, if it exist, is purely statutory; and if it does not exist, it can not be created or declared by a court of equity; that courts of equity will not aid in the enforcement of penalties or forfeitures.

Judgment liens can be enforced ordinarily by exeeptions at law; and where an adequate remedy exists at law, courts of equity will not lend their aid. But this rule .can not apply in this case. Admitting that the judgment in favor of plaintiff against Sawyer, is a lien on the real estate of Binder, between whom and Sawyer there is no privity of estate, it is difficult to see how the lien could be enforced by ordinary execution. It appears, therefore, that if the-plaintiff is entitled to any remedy, at all, it. must be by action, and not by execution.

Let it be conceded that if the judgment against Sawyer is a lien on the real estate of Binder, such lien exists solely by force of the statute, and if there -be no such lien by force and operation of the statute, a court of equity can not create or declare a lien in favor of the judgment. ,

There can be no doubt, however, that the legislature may, in the exercise of its general police powers, prospectively declare a lien in favor of a judgment, as it has undertaken to do by this statute, on property used with the knowledge and consent of the owner, to the injury of another, or of the state, although the judgment for such injury be rendered only against those who were wrong-doers jointly with the owner.

But granting the existence of such power in the legislature, it does not follow that the owner can be deprived of his property by an execution, without a day in court. Not that he can be heard to deny the power of the legislature to declare the lien of the judgment in such case; but that he may deny his participation in the wrongful use of his property — a fact essential to the existence of the lien, and which can not be judicially determined against him, in his absence, and without opportunity of being heard. The right of the owner, however, to have his day in court, does not affect the existence or Validity of the lien created by the statute. For, when the participation of the owner in the wrong is thus judicially ascertained, no new lien is declared ; but the lien of the statute continues, as it existed from the date of the judgment.

The question, therefore, resolves itself thus: Courts must take cognizance of such case, and, upon finding the conditions named in the statute against the owner of the real estate, enforce the lien; or else the statute, which declares the lien, becomes substantially, if not wholly, nugatory. The latter alternative should not be adopted unless it be clear the former can not be maintained.

The action thus instituted, not being for the purpose of creating a lien and thereby enforcing a penalty or forfeiture, but for the purpose of identifying the property upon-which the lien already existed, and for the purpose of ascertaining judicially, as against the owner, the existence of the facts upon which- the statute declares the lien, we see no serious objection to the jurisdiction of the court in such action.

By declaring the lien, the legislature evidently intended to give the right to enforce it; and as it can only be enforced by action, it was certainly intended that a right of action should also accrue to the judgment creditor. And as the kind of action was not designated by the statute, nor the court in which it should be prosecuted, section 605 of the' code applies, which provides, “ that where the statute gives an action, but does not designate the kind of action, such action shall be held to be the civil action of the «code.”

Judgment of District Court affirmed, and cause remanded to Common Pleas for further proceedings, with instructions to overrule demurrer to the petition.

Welch, White, Rex, and Gilmore, JJ., concurred.  