Wilkerson v. Whitney, 7 Mo. 295

Opinion of the Court, delivered by Napton, Judge. This was a bill in chancery, praying an injunction against a judgment at law, obtained upon a note for fifty-six dollars. The bill charges that the note was given for a gaming consideration. The circuit court dismissed the bill, and the only question here is, whether courts of chancery have any power to enjoin a judgment at law, regularly obtained, upon a charge of gaming in the consideration of the obligation on which the judgment was founded. The act of December 30, 1824, (Rev.

Code, ’25, p. 410,) declared that all judgments, mortgages, assurances, bonds, notes, bills, specialities, &c., given, granted, drawn, or executed contrary to the provisions of that act, might be set aside and vacated by any court of equity, upon bill filed for that purpose by the person so granting, giving, entering into, or executing the same. The act of March 9, 1835, (Rev. Code of 1835, p. 290,) merely declares, that all judgments, conveyances, bonds, bills, notes, and securities, when the consideration is money or property won at any game or gambling devi.ce, shall be void.

The act further provides, that any. defence under it may be specially pleaded or given in evidence under the general issue. The third

section of the act to restrain gaming> (It. c. Providiii^lhat “all when thecon-moneyofproS perfy, won at gamb?iug°<ie-wnd,” extends only to fSoin where iho judgment was obtained by due process been made or an unavailing on motion. defence, the judgment cannot he set aside or vacated hy a bill in equity, The judgments spoken of in the act of 1825,1 under-to be judgments by confession or warrant of attorney.

The words “given, granted, executed, entered into,” could hardly be applicable to a judgment upon plea or by default, And though the act of 1835 has omitted these words, and speaks generally of judgments, bonds, notes, and other as-a ..... , . . surances, yet it is plain that no other judgments were era-braced in its provisions, than judgments by confession. The act was intended to include all assurances, from the lowest order of specialties to those of the highest dignity in the eye the law.

To1 suppose that a judgment obtained by. due process of law, where no defence was-made, or an unavailing one, could be set aside on motion, or re-examined by7 a chancellor on allegations of a gaming consideration, would ,, , an anomaly m the law, and conflict with express provisions of our statute, declaring that courts of equity shall not have jurisdiction, when adequate relief can be had , . m. . , . . . ... at law. J lie circuit court, in my opinion, did not err in biIL Decree affirmed.