Paulling v. Watson , 26 Ala. 205 ( 1855 )

RICE, J.

— Under the act of 1807, (Clay’s Dig. 257, § 1,) a note, or other security, given in consideration of money won at gaming, is void, — even in the hands of an innocent holder for a valuable consideration. — Manning v. Manning, 8 Ala.138. •

The act of 1812 (Clay’s Dig. 350, § 28) provides, that the courts of equity shall have jurisdiction in all cases of gambling consideration, so far as to sustain a bill for discovery, or to enjoin judgments at law. Under this act, a court of equity is bound to entertain a bill, seeking to enjoin a judgment at law, which has been rendered on a security given for a gaming consideration, although the complainant in such bill could have defended himself at law, but did not do so. If such bill is filed in the proper county against the plaintiff in such judgment, before the collection of the money, the right of the complainant to a perpetual injunction of the judgment, when the facts alleged in the bill are admitted or proved, is a right given by statute, and is not dependent upon his giving any bond, nor upon the infallibility of any chancellor. The error of a chancellor in , dismissing such bill cannot permanently despoil the complainant of his right to a perpetual injunction, nor of the substantial benefits lawfully resulting from such injunction. If the chancellor, by such erroneous decree, temporarily deprives the complainant of his money, by enabling the plaintiff in the judgment to coerce it from him by execution, the reversal of that decree by the Supreme Court, accompanied with the award of a perpetual injunction, restores to the complainant both the legal and equitable right to the money.—Finn v. Barclay, 15 Ala. 626; Knox v. Abercrombie, 11 ib. 997; Williams v. Simmons, 22 ib. 425.

A decree, duly obtained under the act of 1812, above cited, perpetually enjoining such judgment, is, as between the parties to it, a cppclugive ascertainment that the judgment was founded on a gaming security, and that the plaintiff therein not only liad no right to issue his execution, but that his judgment (in the language of the act of 1812) is “utterly void and of no effect, to all intents and purposes whatsoever.”—McCall v. McRae, 10 Ala, 313, and the cases cited above.

Money collected by execution under such judgment before it was perpetually enjoined, but after the plaintiff therein had been made a party to the bill filed to obtain such injunction, may be recovered back in an action for money had and received, commenced at any time within six years aftbr the injunction was made perpetual.—Williams v. Simmons, 22 Ala. 425; Knox v. Abercrombie, 11 ib. 997.

Upon the facts stated in the bill of exceptions, the appellant is clearly entitled to recover, and the court below erred in charging that he was not thus entitled. For this error, the judgment is reversed, and the cause remanded.