Dunn v. Holloway, 16 N.C. 322, 1 Dev. Eq. 322 (1829)

June 1829 · Supreme Court of North Carolina

16 N.C. 322, 1 Dev. Eq. 322

Thomas C. Dunn v. John Holloway, Robt. Cannon et al.

From Montgomery.

\3pon foe construction given to the act of 1788, (Rev. ch. 284) for' avoiding securities given upon a gambling consideration, money lost and paid cannot, at law, be recovered back.

Therefore equity will not interpose to restrain the collection of a judgment, obtained on a bond void under that statute, unless it was obtained by a fraudulent circumvention of the Defendant at law.

The bill charged that the Plaintiff being a young and inexperienced man, had been induced to play at cards with the Defendants, who, by means of a combination between themselves, had won a large sum from him— that nearly all of the winnings of the Defendants had, by an arrangement between themselves, been thrown into the hands of the Defendants Holloway and Cannon, to whom several bonds, executed by the Plaintiff for the money thus won, had been assigned — that suits had been instituted and judgments rendered on these bonds. The prayer of the bill was for a discovery and an injunction*

The Defendants all denied any combination to win money of the Plaintiff — but admitted that the bonds mentioned in the bill, had been given to secure money won at play. The Defendants Holloway arid Gannon, admitted that they had won very small sums of the Plaintiff, and that they had purchased bonds executed by the Plaintiff, which they knew were given for money won at play, and that these bonds in some instances, had been incorporated with others, and were the same upon which the judgments had been rendered.

Copies of the records in the actions at law, were filed as exhibits to the answers, from which it appeared that the only pleas entered were those of Paym ent and a Set off.

At the healing, his honor Judge Daniel perpetuated tH* injunction except as to one judgment which was founded a note assigned to the Defendant Holloway, & which was purchased by him at the request of the Plaintiff. Upon 5 . , . r. , ..... this judgment, his Honor also perpetuated the injunction as to the discount made by Holloway.

From tills decree the Defendants Holloway and Cannon appealed.

The case was fully argued by Gaston & Muffin, for the Appellants, and by Badger for the Plaintiff.

The Reporter regrets his inability to give an abstract of it, as during a considerable part of the trial he was unable to attend in Court.

Hall, Judge,

— If such a construction had, or could have been given to the act of 1788, {Mev. eft. 284) made for the suppression of gaming^ that no title would have accrued to money or property won at any game, whether the same was delivered and paid or not, I think the ruinous effects of gaming would have been more radically prevented, if money won and paid could he recovered back, a successful gamester would hold it by too doubtful a tenure to risk as much to get possession of it, as he would, when' iie knows that possession makes it bis own. Considerations of this sort however, belong to the Legislature, because judicial decisions have given the act a different construction. The law may be taken as settled, that money won and paid, cannot be recovered back.

The case before the Courtis not one, in which a Court of Equity is called upon to cause bonds to be delivered up, which, were given upon a gaming consideration, bat to enjoin the Defendants from further proceedings upon judgments obtained at law, upon bonds admitted to have been thus given, when no resistance was made at law to prevent the judgments from being obtained.

If the judgments were paid off, it would be the common case of money paid on a gambling consideration, which could not either at law or la equity, be recovered back.

At law, the rights of the Defendants under the judgments are perfect. They can take out executions, and possess tlieinselves of the money through the ministerial agency of the Sheriff. Possession of the money may make them more secure in the enjoyment of it, but it gives them no better right to it than the judgments do $ therefore a Court of Equity will not sooner interfere, where judgment has been obtained upon a bond given upon a gaming consideration, where no attempt has been made to prevent it, than it will where money has been won and paid over.

There is much complaint of fraud and circumvention in the bill, and did it appear that the judgments were obtained through the instrumentality of these means, a ground might be furnished on which to support the injunction. But that does not appear to be the case. They were obtained not against Plaintiff’s consent. His opposition has arisen since) but I think it cannot avail him, nor prevent a dismission of his bill.

Per Curiam.

— Let the bill be dismissed.