Memphis daily appeal. [volume] (Memphis, Tenn.) 1847-1886, 1869-05-15

pistely executed ID 5he course or the He
ga tr4nsactions. If Z hes fieely
parted with the title to ~ p0ssss ION OF
property upon an Illegal or i'm
moral considerations, cosrts ordinarily
consider tbs parties IN equ9i guilt, and a
guilty party being il paTj deiict0, shall
never invoke the cid Of the Courts TO
have IL restored 20 him.
Much 81 the community Is interested
to discOuateusnce Immoral and illegal
/ contracts, is interests viii not be sub
served by ssttisg aside executed con
tracts AND uasettliBg legal titles. Smiths
leading Cases, volume l, page 63S /;
Yerger V. Rains, 4 f; Hump. $50.
But where the Illegal contract is still
e~xecUtory, aud the public interests will
be promoted by setting it aside, then, in
the exercise Of their sound discretion,
courts Of equity viii grant relief. Judge
Story states the rule thus "Ia general
(for it is net universally tTus) when par
ties are engaged IN illegal agreements or
other transactions, Whsthef they are
mdIG pT0hi6itd or I5GLG in lie, courts Of
equity, following the rule OF law as to
participants IN 3 common crime, will
not az present interposs to grant any
relief-Acting upon the known maxim
In pdTj deJict0 pOli0T est c0Rdjtjo defeA
CeCttteo % DJoacACflS@u. OAs IL C9orH HACAC
the agreements or other transactions are
r~epudiatsd on account Of their bsing
against public policy, the circumstance
that the relief is asked by a party who
is par icepS criminals, Is not il equity
material. The reason is that the pubic
interest requires shat relief should be
given, and il is given To the public
through the party. lst Equity Jaris,
section 29S."
That thsse positions are sustained
by tbs general current OF authori-
ties, l think is clear, and in con-
sidsriBg them I have not overlooked the
fact thai decisions upon usurious securi-
ties and upon gaming contracts, have
bus q qualified authority. TIE reason
that in the first the circumstances Of ne
csssity, or OF oppression supposed TO sur
T0uad the Borrower, have usually been
supposed TO relieve him from the impu-
tation OF being in pari deIictO +; and cases
Of gsmirg and wagering coaIEaets are
frequently accompanied ~ eireum-
stances q outrageous fraud, and the de-
CisiCns upon them are also more or less
affected by considerations OF the general
policy OF the statutes allowing property
lost st gaming to De recovered back. But
these two elssses of CASES aside, there IS
no lack OF authority to sustain the p<in-
ciples shove laid down. The first case
o5c urrlns Ii our own rep5rss
is that OF Johnson vs. Cooper.
decided in 1881, by Judge Whyte, .
Yerg. 524. In thzt cass the copcSizi,,anA
having sSakei = tract OF lssa upon a
game OF cards and iasI, conveyed it to
the winner, aud afterwards fled his bill
for tAa pgZpose OF setting ssids the con-
Veysnce. The Court granted the relief,
bssipg its decision apparently upon the
policy OF the statute Whieh mads void
al gaming contracts and all ~eonveyaneas
Il land or other property mads to satisfy
or secure money won ay gaming. In
Alien vs. Odd, I Hump. 1872; Yerg. vs..
Raias, 4 Hunp. 259; Smith VS.. Stevens,
; Sneed, 253 sad in S mmOns VS.. Kju-
eaid, 8 Sdesd. asa, il is held that indie
pendently Of statutory authority, prop
erty lost upon 3 wager or gaming con-
tract, or sold in violation OF law, cannot
be recovered back by the loser or vender
by -interpositiOa of the courts.
The bill in Weakly VS.. Watkins, 7
Hump. SOD, vas iIed Oy the maker OF a
note given upon consideration Of an
election wager, to 8sve the nOte deliv-
cred up and Cancelled and to have e judy-
mem which had been obtained thereon
against the security to the note enjoined.
l. was hell that relief could not be given
upon the broad ground that equity would
not aid either party to an Illegal agree
ment. Judge TURKEY, who delivered the
OpinioLpf the Court, does 90 in very few
WOTfARd cites no authorities from cur
own State or elsewhere. Judge THrley
says mo Court Of Chaneery will en-
tertsin : bill to cancel an oblig alton, the
consideration Of which was q violation
OF CHASTITY, compromising a felony, the
smuggling Of goods ia violation OF the
revenue la1s, gaming, false swearing.
etc. Ia GiddOns Vi. Lea, 3 Hump. 1873.
3 note VISA given by the complainant
upon consideration Of 3 wager, and a
judgment thereon was recovered agakst
the complainant after due notice, and
appearances without any defense being
intsrposeJ.
The bill was filed to enjoin the judg-
ment, and the bill was dismissed In the
Supreme Court upon the ground Of the
i2ches Of complsiusut ia failing to make
defense st law. In R1eker vs.. Wynne,
2 Head, 6I8, the bill wac filed to have q
gsn1ing security delivered up and can
celad. The security had been obtained
from the complainant by the grossest
fraud and Imposition il connection with
the gambling Transaction. Mckinney,
J delivered the decision Of the Court in
s careful ana elaborate opinion, holding
that on grounds Of public policy the
Court would interfere to set aside the ss-
eurity. Weakly vs. Wstkyns is CON-
meated upon and expressly disspproved,
Judge Mckinney saying that that case
WAS hastily considered, and that though
Weakly ys. Watkyns might be distin-
gUisbed from tbs case then before the
Curt by the element OF most outrageous
fraud which chsrScSsTiz I'd the latter, yet
he was inclined 20 rest The decision upon
the distinct principle ANNOUNCED in
Cooper Va. CropWsit, that public policy
required that contracts Of that nature
should be cancelled by the courts. Il
was held in Simmons vs.. Kincsid, 5
Sneed, $50, that where q slave had been
conveyed as the consideration OF COM
pounding 9 felony, the Court would not
set the sale aside st the instance of one
jlilt owner who, being o. foil age, par
Iic.p3ted Ia the sale, but would resciud it
as to the shares OF those who signed the
bill Ct sale while they were infants. In
Williams vs.. Tslisfero, l Coldwell, So,
the bill was fled by 9 Judgment creditor
Of enc Sharp, TO subject to his judgment
real estate which Sharp had conveyed in
consideration of a wager. The Court
held that by statute every lease or con-
veyance Of land made upon q gaming
consideration 10 absolutely void, and
therefore the creditors of Sharp had q
right to subject his land 30 conveyed to
the payment Of their debts. Mckinney ].
says that Sharp himself might have
gone i1to equity to have the deed
Cancelled as 8 cloud upon his title; but
he does not allude to the case Of Alien We.
D0dd, 4 Hump. 131, which decides that
betting upon elections is not within the
statutes on the subject Of gaming nor to
the principle decided in that case, and in
Xerger VS.. Rains, 4 Hump. $50, Smith
vs. Stephens, 8 Sneed 253, and in Sim
mons VS.. Kincaid, 5 Sneed, Asa, that in
d~ependently OF the statutory authority
property lest upon q wager or sold in viO-
latiOn Of Law cannot be recovered back.
It might, perhaps, be held that in such
a case the creditors would have more ex-
teDsive rights than the debtor himself.
Ill ~, Eharn A Gold~ O7S Uaa q