Manning v. Mannning , 8 Ala. 138 ( 1845 )

ORMOND, J.

The object of this bill is, to obtain relief against the payment of a note, upon the ground, that it was executed upon the consideration of money won at cards. The decree is sought upon two statutes of this State. One, passed in 1807, declares, that “all promises, agreements, notes, bills, bonds, or other contract, judgment, &c., made, &c., upon any gaming consideration, shall be utterly void and of no effect, to all intents and purposes whatsoever.” [Clay’s Dig. 257, § 1.] And in 1812, it was enacted, that “ the Courts of Equity shall have jurisdiction in all cases of gambling consideration, so far as to sustain a bill for a discovery, or to enjoin judgments at law.” [Ib. 350, § 28.]

Upon the construction of this last act, it has been held by this Court, that to give Chancery jurisdiction, it was not necessary to assign any reason for not making defence at law, the design of the legislature being to extirpate the evil practice of gaming, and to afford every possible facility for putting it down. [Cheatham v. Young, 5 Ala. R. 353.] In confirmation of this view, it may be stated, that the legislature have since declared, that money actually paid, may be recovered back by the loser. So in Fenno v. Sayre & Converse, 3 Ala. Rep. 458, it was held, that one object of the statute, was to compel the winner to answer, which, but for this statute, he might have refused,.from his liability to a public prosecution.

As it respects the act first cited, it has never been necessary, hitherto, for this Court to determine its effect, in regard to the rights of an innocent holder, for a valuable consideration, of a security given for money won at play; but we entertain no doubt whatever, that it is utterly void. The statute, in effect declares, that it never had a legal existence, and makes it “utterly voidr and of no effect, to all intents and purposes whatsoever.” And,, indeed, if such were not the true construction of the statute, it would, in effect, be a dead letter, as such securities, would always' be found in the hands of innocent holders, for value.

Such is the uniform tenor of the English decisions upon the statute of 9 Ánne, c. 14; see the cases cited on the brief, and the authorities cited in the notes to Chitty on Bills, 9 Am. ed. lllr which in its terms is precisely equivalent to ours.

The same conclusion has been attained, in regard to a note tainted with usury. [Metcalf v. Watkins, 1 Porter, 57.] Although, therefore, the bill alledges, that Turner, the holder, knew that the note was executed for a gaming consideration, when he received it, it is wholly immaterial and need not be proved; the only question upon this part of the case, is, whether the note is, in fact, a security given upon a gaming consideration.

We decline entering upon the consideration of the effect of the answer of Turner, as to this point of the case, because the consideration of the note is proven by Blevins, to have been money won at cards. This testimony was rejected by the Chancellor, because it was against public policy, to permit a party to a negotiable security to impeach its consideration. This doctrine, first asserted in Walton v. Shelly, 1 Term Rep. 296, has been long exploded in England, and never was recognised in this Court, but the opposite opinion asserted, in numerous cases, to be found in our books, and cited by the plaintiff’s counsel.

It is now further argued, that he was interested in the event of the suit, as a decree founded upon the illegal consideration of the note, would render him liable over to his indorsee. Conceding such to be the fact, he was clearly competent to testify against his interest, which was the attitude in which he was placed, by being called by the plaintiff in error.

The witness objected to testifying, and his testimony was taken subject to all exceptions ; it is now insisted, that he could not be compelled to testify. The State, as already observed, requires a party in the predicament of the witness, to answer, and thus to give evidence against himself, and no reason is perceived why he should be excused from testifying, when he has transferred his interest to another. If that should be the construction of the statute, nothing would be easier than to evade it. No question as to his liability to a criminal prosecution arises in this case, from this admission, not only because he had admitted the same fact previously, in his answer to the bill, but also, because the statute of limitations had created a bar to a criminal prosecution, before he was called on to give evidence. Whether in any case, the testimony thus compulsorily drawn from a witness, could be used against him upon a criminal proceeding, we need not inquire at this time.

We now approach the only point of difficulty in the case— the fact disclosed in the answer of Turner, that he took the assignment of the note, upon the assurance of the plaintiff in error, that it was valid; and if so, whether the answer is, as to this fact, responsive to the bill, and to be considered evidence in the cause. 1

Whatever may be the rule at law, we are satisfied, that in equity, the maker of a gaming security cannot have relief against an innocent holder, whom he has induced by his promise of payment, or by an assurance, that the note was valid, to invest his money in its purchase. To this effect are the cases of Beverly v. Smith, 1 Wash. 297, and Hoomes v. Smock, id. 390, upon the principle, that it would be a fraud upon the purchaser, to permit such a de-fence to be made. It is therefore necessary to inquire, whether the answer is, in this respect, responsive to any allegation of the bill. The defendants are called on to state the consideration of the note, and each is required to state, “ under what circumstances the same was assigned to him.”

The interrogating part of the bill, is not absolutely necessary; its whole design seems to be, to point more specially to the charges, and thus to sift the conscience of the defendant. Special interrogatories, when introduced into a bill, must be founded on, and authorized by, the stating part of it, or they may be disregarded by the defendant; although, if answered, and replied to, the matter is putin issue. [Fenno v. Sayre & Converse, 3 Ala. Rep. 477; Coop. Eq. P. 11.] It is obvious, however, that where the import of an interrogatory is doubtful, its true interpretation must be sought in the stating part of the bill.

In the stating part of the bill, no fact is alleged from which it can be inferred, that the complainant had any knowledge whatever, of the facts relating to the assignment of the note. On the contrary, he professes utter ignorance of them. The leading idea which pervades the bill, is, that both Turner and Kavanaugh successive assignees of the note, knew when they obtained it, or at least had reason to believe, that the consideration was illegal. This is expressly charged in the bill, and the interrogatory framed upon it, is to state the circumstances attending the assignment, which indeed, is no more than would have been their duty, if no such interrogatory had been inserted in the bill. The design doubtless was, to get at some fact, or circumstance, showing a knowledge of the consideration of the note, which appears to have been supposed necessary.

The alledged conversation between the complainant, and Turner, is not a circumstance attending the assignment of the note, or connected with it. It is evidently matter in avoidance, not in the slightest degree hinted at in the bill. It is the defence of the defendant, wholly distinct and separate from the case made by the bill, and interrogatory, and which, to be available to him, must be proved by him. This could not naturally have found its way into the bill, and cannot be derived from the general interrogatory above cited, which is founded on, and has reference to, a distinct matter. See the case of Marshall v. the Huntsville Bank, 4 Ala. Rep. 60, and Cummings & Cooper v. McCullough, 5 Ala. Rep. 333, where this subject is quite fully considered.

The allegations of the bill, as to the manner in which the complainant became a party to the note, are not denied, and although not proved, must be considered as true, as they cannot be explained upon any other hypothesis. It is not pretended by Blevins, or any of the defendants, that the complainant was present when the note was executed. Yet we find that it was made payable directly to Blevins, thus showing very conclusively, that it must have existed in a blank form previous to that time. It could not be evidence of a debt from complainant to R. J. Manning, because both parties appear as makers ; nor could it be a debt due jointly by them, to some third person, because, in that event, Blevins could not appear as the payee. The allegations of the bill on this point, are entirely consistent with the admitted facts, and must therefore be considered as true. It is, however, unimportant, whether the complainant did, or did not know of the illegal consideration, as the statute vitiates the note, in the hands of an innocent holder, for value. The defence set up in the answer, that the defendant, Turner, was induced to take the note, by the representations of the complainant, that it was good, not being proved, it follows, that the complainant is entitled to the relief he seeks by his bill. The decree of the Chancellor must therefore be reversed, and a decree be here rendered, perpetuating the .injunction.