#### Stone vs. Mitchell.

S. sued M. o.n a bond for $50. M., by way of impeaching the consideration of Iks bond, proved that he gave a bond to L. for $300', L. placed it in the hands of A. for collection, who gamed it off, at cards, to S. — S. presented it to M. for payment, and M. paid him part and gave him the bond sued on for the balance; afterwards L. notified M. that A. had wrongfully gamed the note to S., that it was still his property^ that he should not pay S. the bond for $50, and threatened to sue him if he did not pay him, L., the amount of the bond for $300; whereupon M. settled it with him to avoid a suit — Held that S. haying wrongfully obtained the $300 bond by gaming, i.t furnished no consideration for the bond sued on.

Writ of Error to the Circuit Court of Hempstead County,

This suit was commenced before a justice of the peace of Hemp-stead county, by S. A. Stone against Charles B. Mitchell, on a writing obligatory executed by Mitchell to Stone for fifty dollars. The defendant pleaded want of consideration, the justice rendered judgment in his favor, and the plaintiff appealed to the circuit court of the county, where the cause was determined at the May term 1845, before the Hon. J. O. Hightower, special judge.

The case was submitted to the court, silting as a jury; the court found that the “consideration for which the obligation sued on was executed had wholly failed,” and rendered judgment for Mitchell. Stone moved for a new trial, which the court refused, he excepted, and took a bill of exceptions setting out the evidence, which was substantially as follows:

The defendant, Mitchell, executed a writing obligatory to Lewis Ambrose for $300 in the year 1840. Sometime after the making of the bond, Lewis Ambrose placed it, among other papers, in the *92hands of Marquise Ambrose who was engaged to “assist him in winding up his business.” Afterwards Lewis, being about to set ,out for the State of Missouri, directed Marquise to deliver the bond to .one Harpy Young; which he did not do, but staked it at a game of cards yvith the plaintiff Stone, Stone won it, and he indorsed it ■to ftim in his own name. Stone presented the bond, after winning it, to the defendant Mitchell for payment, Mitchell settled part of it with him, and executed to him the obligation for $50 upon which this suit was founded for the balance. Afterwards Elijah Ferguson, having become the .agent of Lewis Ambrose, who was still absent, gave Mitchell notice that the bond for $300 was still the rightful property of Lewis Ambrose, that Marquise Ambrose had gamed it off wrongfully; gave him further notice not to pay Stone the ñíty dollar hqnd, and threatened to sue him for the amount of the $300 obligation if he did not arrange it. Whereupoij, to avoid a suit, and under the advice of counsel, Mitchell setxled the amount of the bond with Ferguson as agent of Lewis Ambrose.

Stone brought error.

Hempstead, for the plaintjff.

Roystost fc Cocke, contra.

The only question presented by the record in this case is whether the court erred in overruling the ap-, pellant’s motion for a new trial. It is clearly established by the evidence that the note sued upon was given to Stone in part for the note due from Mitchell to Ambrose. Had Stone any title either in law or equity to that note: had he a right to assign and transfer it so as to pass the legal or equitable interest to any one ; and even if Mitchell had paid the note in full, would that have prevented Lewis Ambrose from recovering the money of him ? We think it would not. The note was payable to Lewis Ambrose or order ,- the legal interest was in him: he had never assigned it to Marquise Ambrose, but had delivered it to hirja merely as a carrier to convey it to a third person. Marquise Ambrose himself had no right either in law or equity to this note, and could convey no right to Stone whatever, and if Mitchell had paid the note while the legal intgrpsf *93was still in Lewis Ambrose lie would have done so in his own wrong and at his peril, and that payment could not have been pleaded in bar of Lewis Ambrose’s recovery against him. It was a fraud in Marquise Ambrose in transferring to Stone a note that did not belong to him, and that too upon a gaming and illegal consideration, and in this fraud Stone was a party. The fifty dollar note given by Mitchell was entirely without consideration for it could not discharge him from the payment of his note to Lewis Ambrose, and it is clearly proven it was given to take up that note and upon no other consideration whatever. The court below therefore was con’ect in finding for Mitchell upon the issue joined.

JoiiNsoN, C. J.

This case will necessarily turn upon the single question whether a payment by the defendant of the note sued upon would constitute a bar to an action instituted by Lewis Ambrose upon the original obligation. The 4th sec. of the 68th chap, of the Revised Code provides that “all judgments, conveyances, bonds, bills, notes, securities and contracts, where the consideration or any part thereof is money or property won at any game or gambling device, or any bet or wager whatever, or for money or property lent to be bet at any gaming or gambling device, or at any sport or pastime whatever shall be void.” It was admitted by the plaintiff' that he won the original instrument of Marquise Ambrose, and also that said instrument constituted the sole basis of the note upon which this suit was instituted. No attempt was made to impeach the consideration of the original writing as between the immediate parties to it. The consideration of the contract, as between the parties to it, is admitted to be good in law and binding upon them. But it is insisted that Stone, in the mode adopted by him to acquire the possession, derived no title whatever, and that as a necessary consequence the instrument itself could not furnish such a foundation as would support another and separate contract. If the plaintiff in this case had acquired possession of the original instrument by means of a fair and bona fide contract with Marquise Ambrose and had instituted suit upon the same against the defendant, he would most clearly have been authorized to show the want pf authority *94in Marquise to transfer the legal title and upon such a showing would have defeated the action. If he could have successfully resisted a suit upon the original instrument although acquired by Stone in virtue of a bona fide, contract, then for a much stronger reason could he have defeated him when he had come to the possession by fraud or the process of gaining. It is not believed that the principle is changed or in the least affected by the substitute of the new note though made to a different party. The defendant was not only warranted in setting up the defence, but having been notified of the entire want of title in Stone to the original writing, he would have been left wholly without excuse, and not even entitled to the simpathy of the law. To permit this suit to prevail and at the same time to hold that such recovery would forever bar the obligee in the original obligation would be to give sanction to a most palpable and iniquitous fraud upon his rights. The present plaintiff has but little reason to complain as he has participated in the fraud. It is a universal principle of law that no man shall derive a benefit from a fraudulent transaction where he has wilfully and deliberately participated in the fraud. We consider it clear therefore that, from the state of facts as disclosed by the bill of exceptions in this case, the defendant would not have been protected against an action instituted upon the original contract, and that' therefore his defence is clearly admissible and a complete bar to the plaintiff’s action. Judgment affirmed.