Nashville union and American. [volume] (Nashville, Tenn.) 1853-1862, 1860-03-29
DECISION or THE SUPREME COURT.
OFFICIAL.

Ooinfons OF the Supreme Court of the I
state OF Tennessee, as JacksOns April !
TernI, 1852
Rucher Wynne and others
This bill was brought to have gaming security /
delivered up and cancelled. The bill was dismissed /
on demurrer. The case made in the bill is briefly 1
this
In the summer Of 1855 the complainant who is a I
resident Of Louisiana made visit to Hardin Springs
in this State for the benefit Of his health which was
then bad. On his arrival at the springs his cOndl
ton was such to require the aid Of physician.
The defendant Dr.. Creighton, physician of Mem /
phis who was at the springs, was called IN After
some days, compliments health began 70 improve,
and his physician advised him that exercise at roll
ing ten pins, and the use Of champagne wine as a
tonic would be Of benefit to his health. accordingly
a game was made up, at which it was arranged thta
complainant and his prOfessed physician DR..
Creighton should play against the defendants Wynne
and Worsham. They at first played for wine, but
after complainant had become much excited by the
free use Of wine IL was proposed to play for mon
ev at twenty dollars game this was assented to,
and the playing and drinking were continued until
it was announced that complainant and his partner.
Creighton, had lost one thousand dolars-five hun
dred Of which complainant was told he must pay to
defendant Wynne, Complainant, while incapable Of
attending to business, was induced to sign draft
written by Wynne for $500, the defendants,
Webb and Rufin of Memphis. After the draft was
given to Wynne, Creighton pretended that he was
compelled
plainant though urged to continue his attentions
physician.
Wynne, on reaching Memphis, presented the draft
to Webb and Rufin, and procured their check on
Bank in Memphis for the amount But before the
check was paid. complainant learned that the advice
Of his physician, to exercise at ten pins and drink
wine was part Of a meditated scheme between him
and his cOntederates, Wynne and WOrsham, to en-
snare complainant ard swindle him out of his
money, and that in playing Creighton colluCed with
Wynne and WOrsham, as always to make them
win the game. Upon being satisfied of this fact
complainant sent despatch to Webb and Rufin di
recting them not to pay said draft the reception
of which, they notified the bank to withhold pay
ment Of their check, and payment was accordingly
refused Wynne, therefore, had the check protested
and commenced suit upon the same.
To eniOin this suit, and to have saio check sur
rendered up and cancelled, is the object of the
bill
The Jurisdiction of a Court Of Equity to grant
this relief is denied the authority of the of
Weakley Watkins and Ferguson Humphreys,
$50 That case, 1t IS apparent. was hastily consid-
ered and there is no reference to any authority in
support Of the decision 1t is in direct opposition
to the case Of johnson VS.. Cooper and CrOsshute,
Yerg. 524, in which, upon elaborate examination
CT the question principles and authority, the con-
trary doctrine established.
The case of Weakley Us. Watkins, might well
enough be distinguished from the present case, by
the element of a most atrOciOus fraud which char
acterizes the latter We are not inclined however,
to rest on determination upon this distinction, but
upon the distinct principle announced IN johnson
VS.. Cooper and CrOsswhite which, in our opinion,
is the sound doctrine, and well sustained by au-
thority.
The act Of 1889 oh. s, sec. l. DEGREES, that every
promise agreement bill, bond or other contract to
pay, deliver or secure money or other thing won
or obtained by any species Of gaming, and like
wise, every SALE conveyance or transfer Of land,
slaves, or other personal property, shall be void.
And by the 18th section a remedy Is provided for
the recovery within q limited time, Of any money
or other valuable thing, so lost and paid. or de-
livered in any Court of record. having cOgnizance
thereof.
This statute makes all gaming contracts, and all
gaming securities absolutely void at law, well
as in equity and it provides remedy in the
legal forum, for the recovery Of the money or
goods lost at gaming and paid or delivered.
This limited remedy at law, is not adequate in all
1t not adequate to the relief necessary in
some instances to the carrying into full effect
the great public policy intended TO be established
by the Legislature. 1t was not designed nor can
it be construed interfere with the previously well
established jurisdiction Of the Courts of Equity
on this subject And at tie date of the passage of
the act. perhaps head of equity jurisdiction
was better established than that OF cOuneHing gam
ing securities 10 be delivered up and cancelled.
This is perhaps sufficiently demonstrated by Judge
Whyte in his elaborate opinion in Johnson vs. Coop
err and CrOsswhite
In that case Johnson conveyed to Crockett, tract
of land lost by the former game Of cards, and
the latter sold and conveyed the land TO CrOsswhIte
who was found to have had knowledge Of the illegal
consideration of the deed to Crockett and the Court
decreed the deed to be delivered up and cancelled.
The Court held that in view of the public policy
of the law, to suppress all measures of gaming
the complainant would not be repealed merely on
the ground, that he was a pdrtcepiS cruBti9S. The
Court said in the language of Lord Harnick that in
case of violations Of public policy, it is indifferent
who stands before the Court because the Court does
not regard the state and condition of the parties so
much as the nature Of the contract and the public
good. ? How. Sup ~. The Court likewise adopted
the language and sentiment Of Lord ThurlOw, III
Neville Wilkinson, (see Is Yes. 1922 that if Courts
Of Justice mean to prevent the preparation Of
crime. il must not by allowing man who las got
possession 20 remain in possession. but by putting
the parties back to the state in which they were
before. Numerous cases, Of the highest authorities
cited by Judge Whyte. TO the effect that in the
transactions cOntTavening public policy, relief may
be given in Equity to a pIticepiS craiRiS, but the
relief Is always given in aid not in subversiOn of
the public policy; the Court intereres for the sake
not Of the party but Of the public See cases refer
red to.
The doctrine Of the jurisdiction of Court of
Equity to declare gaming receentious void, and to
order them to be given up and cancelled is sustain
ed by numerous other authorities. Mr.. Story Il.
E4Ii Juris, 3O3) regards the principles as not
to be doubted, that bill in equity may be mann
tanned to have any gaming security delivered up and
cancelled. And furthermore. that money paid upon
a gaming contract may he recovered back in fur
therance Of a great public policy, independent Of
any statutable provision.
In the case of PortarlingtoH Saulby g Mylue
and Keene 1914, s COnd Eng. c.. Rep. 29S) the COM
plainant had accepted bill OF exchange for 81 600
for money lost by him at gaming, payable to one
Aldridge, by whom it was Endorsed to Brook, and
by HIM to the defendant ant the bill was brought TO
restrain the defendant from suing thereon in Ireland
The Lord Chancellor refused to dissolve the injunc
ton the ground that the consideration of the bill
not denied to be Illegal and the circumstances
leading to the belief that the defendants took the
bill with knowledge of the facts to the COnsdera-
ton. The only point of doubt in the mind of the
Chancellor arose out Of the fact that the suit had
been brought and pending in a Court of law in
ireland, and this was Obviated on the ground that
the person of the party whom the injunction was
served, was within the jurisdiction and power Of
the Chancellor
So, in Wynne U.s. Calender, Russels Oh Rep.
293, the complainant accepted bills of exchange for
money lost at gaming Several Of their bills were |
not paid when due and other bills were substituted
in their stead. Afterwards the cOmplanauts went |
TO reside in France and in the latter country accept
ed other bills of exchange, on French stamps to the
amount Of the principal and interest due the ur
paid bills and delivered them in lieu of the bills
which the parties held before. which were given in
England. And the master of the Rolls held that the
consideration of the first bills being debt contract
ed by gaming in England, and the French bills sub
sttuted for them. beng founded on the same con |
sideration for which the original securities were
giyen-the complainant entitled to have the |
French bills delivered up ard cancelled. Hotwith
standing the objection that he was pdTttcepS crjmS
Authorities might he multiplied to the same effect.
but we deem it unnecessary.
We concur in the view, that the only efTectual |
method Of discouraging gaming and carrying out
the policy of the law, is to the temptation
by denying to the offender the profits of his VIOLA
ton Of the law. The contrary principle is rather
encouragement 20 the commission Of the Ofense. !
Decree reversed, and demurrer disallowed with !
nj LIZ