Memphis daily appeal. [volume] (Memphis, Tenn.) 1847-1886, 1869-05-17

matter OF sound discretion Ia th9 Court,
and not OF absolute right ia the party.
The Inquiry l., has the complainant
made SUCH q case SO would, were he in
aOeent, sntitle him u relief; and if so,
does the best interest Of society require
that relief shall be sfiordsd, Dotwith-
standing the guilt Of the party2 Ii not, |
then the Court will refuse its aid, and
via leave the parties in whatever dIfi-
culties their coadGet may have Involved
them. / do not deem IL necessary to go
into an extended analysis Of authorities
outside Of our own Stste In regard to tho
general rule, which has been SO often
discussed by the courts Of this country
and of England. The rule is limited Sc
far as this, that courts will not generally,
perhaps never, unless under statutory |
provisions or when OF the guilty
parties has bean also he victim OF cut
rageOus fraud OF OPPRESSION interfere to
set aside s sale or dsliVeSy OF property or
money which hiss been made and conn
pieteIy executed in the course Of the lille
gal transactions. If one has freely
parted with the title to or possession of
property upon an illegal or IA
moral Consideration, courts ordinarily
consider the parties in equal guilt, and q
guilty party being in pdTi deLietO, shall
never invoke the aid Of the Courts TO
have it restored To him.
Much SIS the community is interested
to discountenRnce immoral and illegal
contracts, its interests will not be sub
served by settisg aside executed BON
tracts and unsettling legal titles. Smiths
Leading Cases, volume L. page 63S
Yerger ". Rains, 4; Hump. 259.
But where the illegal contract is still
~eXscutory, and the public interests will
be promoted by setting it aside, then, in
the exercise OF their sound discretion,
courts of equity will grant relief. Judge
Story states the rule thus "In general
for il fs not universally trus) when psr-
ties are engaged in Illegal agreements or
other transactions, whether they are
ndJa pTOhibjtd or RlGId IN lie, courts OF
equity, following the rule OF law as TO
! participants In 3 common crime, will
not at present iBterpose to grant any
relief-actiBg upon the known maxim
In pQTi deLictO p0Ei0r est cOadJtjO GeJelt
dents ct pOSSedeRtiS. But In cases where
the agreements or other transactions are
repudiated on account Of their being
against public policy, the circumstance
tina the relief is asked by a party who
is PdrttcepS cri1liEis, is not IN equity
material. The reason is that the public
interest requires that relief should be
given, and iG is given 10 tue public
through the party. lat Equity Jurlsi
section 29S."
That these positions sTs sustained
by the general current OF authori-
ties, I think Is ciesr, aud in con-
sidering them l ave not overlooked the
fact thSt decisions upon usuTi0us securi-
ties ard upon gaming contracts, have
but 3 qualified authority. Tue reason
that ia the first the circumstances OF ne
cessity, OF Of oppression supposed to sur
round the borrower, have usually been
supposed 10 relieve him from the impu-
tztiOn Of being Ia par delictO and cases
OF gaming md wagering contracts are
frequently accompanied by cireum
stances Cf outrageous fraud, and the &C.
CisiOus upon them are also more Or less
affected By considerations OF the general
policy of the statutes allowing property
lost at gaming to De recovered back. But
these two classes OF Gases aside, there is
no lack OF authority 10 sustain me prin
ciples above lsid down. The first case
occurring in our own reports
is thst OF Johnson vs.. Cooper,
decided ia 1881, by Judge Whyte. 2
Yerg. 524. In that esss the complainant
having staked 3 tract Of land upon q
game OF cards and Lost, conveyed ito
the winner, and afterwards flied his&A
I for the purpose OF setting aside the con-
vsysnce. Tue Court granted the relief
bssing its decision apparently upon the
policy OF the statute Ehi3h made VCid
all gaming contracts n all co~Eveysnces
Of land or other property made 10 satisfy
or secure TaOnay won by gaming. In
Allen Va. Odd, ( Hump. 1872; Ysrg. VS..
Rsins, 4 Hump. z59; Smith We. Stevens,
3 Sneed, 253; and IN S mmons VS.. KIN
caid, 3 Sneed. 45t, it is held That indie
pendentiy OF statutory authority, prop
Urty lost upon , wager or gaming con-
TRACTION sold la violation Of law, cannot
be recovered back by the loser Or vender
by ~interpcsition OF the courts.
Toe bill in Weakly vs.. Watkins, Z
Hump. $50, was filed Oy the maker OF n
note ciysn upCR consideration Of az
election wager, to have the Do5e deiiv-
cred Up and cancelled and 20 have o jads-
meIt which had been obtained thereon
against the security 10 the note enjoined.
e was held that relief could not be given
upon the broad ground that equity would
not aid either party to an Illegal agree.
ment. Judge Turley, who delivered the
4 opinion Of the Court, does so in very faE
Y words, and cites no authorities from our
own Ssste or elsewhere. Judge TErlsy
says "No Court of Chancery will en-
tertsin a bill to cancel an obligation, the
consideration OF which Wa 3 violation
OF chastity, compoundiug a felony, the
smuggling of goods in violation OF the
revenue lave, gaming, false swearing.
etc. In GiddOns vs.. Lea, 3 Hump. I3S,
s note wss given by the complainant
upon confederation of 8 wager, and 4
judgment thereon was recovered against
the complainant after due notice, and
appearance without shy defense being
intsTpose6.
The bin was fled to erj Din the judg-
msnt, aud the bill was dismissed in the
Supreme Court upon the ground Of the
Elaehes Of complainant il failing tn make
defense st law. Ia RIcker VS.. Wynne,
, Head, SIS, the bill was flied to have =
gaming security delivered up and eau
celed. The security had been obtained
from the complainant by the grosssst
fraud and imposition In connection with
the gambling transaction. Mckinney,
J delivered the decision OF the Court ia
a careful and elaborate opinion, holding
that on grounds Of public policy tie
Court would interfere 20 set aside the Sc
curity. Weakly We. Watkyns Is COM
mented upon and expressly disappr0ved,
Judge Mckinney saying that that case
WIS hastily considered, and that Though
Weakly Va. WGtkyns might b distin-
gnished from thu case then before the
Court by the element Of most outrageous
fraud which ebsrscter'z d the latter, vet
he WAS inclined to rest the decision upon
the distinct principls ~snnonnced in
Cooper VS.. Cropwait, that public policy
required that contracts Of that nature
should be Cancelled By the courts. It
Was held in Simmons vs.. Kinc&id, 5
Sneed, $50, that where a slave had been
conveyed 81 the consideration OF COM
pounding a felony, the Court would not
set the sale aside at the Instance Of one
joint owner who, being o. full age, par
tic Pated in the sale, but would rsseiDd il
as 10 the shares OF those who signed the
bill Of sale while they we're infants. In
Williams rs. TalisFero, | Coldwell, IS,
the bill vas fled by s judgnsnt creditor
Of one Sharp, to sutjsct TO his judgment
real estate which Sharp had conveyed ia
consideration Of q wager. TIE Court
held that by statute every lease or con-
"a -