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(— N. M. —, 245 Pac. 543.)

227; Swinney v. Edwards, 8 Wyo. 54, 80 Am. St. Rep. 916, 55 Pac. 306; Savings Bank v. National Bank (C. C.) 38 Fed. 800; Williams v. Wall, 60 Mo. 318; Appleton v. Maxwell, 10 N. M. 748, 55 L.R.A. 93, 65 Pac. 158; Holman v. Ringo, 36 Miss. 690; Unger v. Boaz, 13 Ra. 601; Lawson v. First Nat. Bank, 31 Ky. L. Rep. 318, 102 S. W. 324.

The Negotiable Instruments Law passed by the New Mexico legislature in 1907 did not repeal the gambling law passed in 1857.

Wolford v. Martinez, 28 N. M. 622, 216 Pac. 499; Thorpe v. Schooling, 7 Nev. 15; Matthews v. Murchison (C. C.) 17 Fed. 760; Territory ex rel. Albuquerque v. Pinney, 15 N. M. 625, 114 Pac. 367; State ex rel. Lorenzino v. McKinley County, 20 N. M. 67, L.R.A. 1915C, 898, 145 Pac. 1083; State ex rel. San Miguel County v. Romero, 19 N. M. 1, 140 Pac. 1069; Ex parte Townsend, 64 Tex. Crim. Rep. 350, 144 S. W. 628, Ann. Cas. 1914C, 814; Territory v. Digneo, 15 N. M. 157, 103 Pac. 975; Territory ex rel. White v. Riggle, 16 N. M. 713, 120 Pac. 318; 8 C. J. ¶ 47; Larschen v. Lantzes, 115 Misc. 616, 189 N. Y. Supp. 137; Wachovia Bank & T. Co. v. Crafton, 181 N. C. 404, 16 A.L.R. 1375, 107 S. E. 316; Sutherland, Stat. Constr. 181; 1 Dan. Neg. Inst. 196, ¶¶ 195, 196; 1 Parsons, Notes & Bills, 212; 27 C. J. 1071.

The Negotiable Instruments Law does not repeal or modify the statutes rendering void negotiable instruments given for a gambling consideration in the hands of a bona fide holder.

27 C. J. 1072, 299; Twentieth Street Bank v. Jacobs, 74 W. Va. 525, 82 S. E. 320, Ann. Cas. 1917D, 695; Martin v. Hess, 23 Pa. Dist. R. 195; Geo. Alexander & Co. v. Hazelrigg, 123 Ky. 677, 97 S. W. 353; Levy v. Doerhoeper (Levy v. Fidelity & C. Trust Co.) 188 Ky. 413, 11 A.L.R. 207, 222 S. W. 515; Plank v. Swift, 187 Iowa, 293, 8 A.L.R. 309, 174 N. W. 236; McNight v. Parsons, 136 Iowa, 397, 22 L.R.A. (N.S.) 718, 125 Am. St. Rep. 265, 113 N. W. 858, 15 Ann. Cas. 665.

Mr. O. T. Toombs for appellee. Watson, J., delivered the opinion of the court:

The complaint in this case was filed January 7, 1921, alleging the purchase and ownership in due course by the plaintiff, the Farmers' State Bank of Texhoma, of a certain draft issued by the defendant, Clay

ton National Bank, upon the First National Bank of Denver, for the sum of $500, payable to one J. B. Martinez, and indorsed by the said Martinez, and also by Mrs. R. M. Campbell and J. J. Myers. It also alleged that said draft had been by the plaintiff presented to the defendant for payment, and such payment refused, and that thereafter the same was presented to the drawee, the First National Bank of Denver, and payment thereof refused and the same protested. It also alleged that suit had been commenced in the same court by one Jabe Wolford for the cancellation of said draft. January 8, 1921, an answer was filed by the Clayton bank, admitting that the draft in question had been presented to and paid by the Texhoma bank in due course of business. The answer alleged that the draft in question was void, for the reason that it was given as a part of the stakes in a gambling game. On April 25, 1921, the Texhoma bank filed its reply denying the new matter. Meanwhile, on April 15, 1921, said Wolford had filed his amended complaint in his suit for the cancellation of said. draft, the allegations of which are sufficiently set forth in our opinion on the appeal of that case (Wolford v. Martinez, 28 N. M. 622, 216 Pac. 499). No further proceedings were had in the case at bar until after the decision by this court of the suit for cancellation, May 29, 1923, rehearing in which was denied June 25, 1923. On September 17, 1923, the said Jabe Wolford, plaintiff in the other case, filed a petition for intervention in this case, setting forth, in substance, the same facts alleged by him in his complaint in the other case, and also alleging that defendant, Clayton National Bank, had no interest in the subject-matter of the litigation, except as a depository holder of moneys pending the decision of the court. September 19, 1923, the Texhoma bank replied, denying the facts and questioning their sufficiency as matter of law. On September 20, 1923, plaintiff,

Texhoma bank, moved for judgment on the pleadings, which was denied. The cause proceeded to trial September 21, 1923, and judgment in favor of plaintiff, the Texhoma bank, was entered on September 25, 1923.

of

We have set forth the proceedings in these two cases with such particularity in order to show their interrelation, the importance of which will appear later. As appears from our former opinion the lower court, in the cancellation case, took the view that the allegations of the complaint were sufficient to show that the Texhoma bank was the legal holder and owner of the draft in due course, for which reason he sustained a demurrer to the complaint and entered judgment for the defendant, Texhoma bank. We reversed this judgment, and held that the facts alleged in the complaint showed that J. W. Campbell, who won the draft from the appellant Wolford, held a defective title thereto because of the provisions of the gaming law of this state (Code 1915, §§ 2507 and 2510), and that under § 651, Code of 1915, a holder in due course of such an instrument holds it free from defects of title of prior parties, and free from any defenses available to prior parties among themselves; but that under § 653, Code of 1915, the defective title of the prior holder having been shown, the burden rested on defendant, the Texhoma bank, to show that it was a holder in due course, it being our theory that the provisions of the gaming law making such an instrument void were modified by the subsequent provisions of the Negotiable Instruments Law.

In the case at bar, the lower court found, as requested by the defendant and the intervener, that the intervener Wolford purchased the draft in question from the defendant, Clayton National Bank, and paid for the said draft and owned it, and on the same day put it up as stakes in a gambling game and lost it to said J. W. Campbell. He found also that plaintiff, Texhoma bank,

had become the owner of said draft in due course of business, and, applying the law as announced in our former decision, rendered judgment in favor of the Texhoma bank.

Section 2510, Code of 1915, above referred to, is a part of an act relating to gambling, enacted in 1857, and reads as follows: "All judgments, securities, bonds, bills, notes or conveyances, when the consideration is money or property won at gambling, or at any game or gambling device, shall be void, and may be set aside or vacated by any court of equity upon a bill filed for that purpose, by the person so granting, giving, entering into, or executing the same or by any creditor or by his executors, administrators, or by any heir, purchaser or other persons interested therein."

The sections of the Negotiable Instruments Act, passed in 1907, above referred to, are as follows:

"Sec. 646. A holder in due course is a holder who has taken the instrument under the following conditions:

"I. That it is complete and regular upon its face;

"II. That he became the holder of it before it was overdue, and without notice that it had been previously dishonored, if such was the fact;

"III. That he took it in good faith and for value;

“IV. That at the time it was negotiated to him he had no notice of any infirmity in the instrument or defect in the title of the person negotiating it." U. N. I. Act, § 52.

"Sec. 649. The title of a person who negotiates an instrument is defective within the meaning of this chapter when he obtained the instrument, or any signature thereto, by fraud, duress or force and fear or other unlawful means, or for an illegal consideration or when he negotiates it in breach of faith, or under such circumstances as amount to a fraud." U. N. I. Act, § 55.

"Sec. 651. A holder in due course holds the instrument free from any defect of title or prior parties, and free from defense available to prior

(— N. M. —, 245 Pac. 543.)

parties among themselves, and may
enforce payment of the instrument
for the full amount thereof against
all parties liable thereon." U. N. I.
Act, § 57.
"Sec. 653. Every holder is
deemed prima facie to be a holder in
due course; but when it is shown
that the title of any person who has
negotiated the instrument was de-
fective, the burden is on the holder
to prove that he or some person un-
der whom he claims acquired the
title as holder in due course. But
the last-mentioned rule does not ap-
ply in favor of a party who became
bound on the instrument prior to
the acquisition of such defective
title." U. N. I. Act, § 59.

The question involved is whether one who in due course obtains title to a negotiable instrument, the consideration of which is money won at gambling, holds it free from defenses. This question we answered affirmatively in our former opinion, but appellants vigorously urge that we were wrong in so holding.

It appears that in five states having gaming laws similar to ours, the question has arisen whether the subsequent adoption of the Negotiable Instruments Act has modified them. Geo. Alexander & Co. v. Hazelrigg, 123 Ky. 677, 97 S. W. 353; Levy v. Doerhoefer (Levy v. Fidelity & C. Trust Co.) 188 Ky. 413, 11 A.L.R. 207, 222 S. W. 515; Martin v. Hess, 23 Pa. Dist. R. 195; Twentieth Street Bank v. Jacobs, 74 W. Va. 525, 82 S. E. 320, Ann. Cas. 1917D, 695; Plank v. Swift, 187 Iowa, 293, 8 A.L.R. 309, 174 N. W. 236; Larschen v. Lantzes, 115 Misc. 616, 189 N. Y. Supp. 137. In all of these cases, the decision has been contrary to ours. Reviewing them, the author of the note (8 A.L.R. 314), says: "The majority of the cases which have passed directly on the question hold that a statute invalidating negotiable instruments given for a gambling consideration is not repealed by the adoption of the Uniform Negotiable Instruments Act, which contains a provision to the effect that a holder in due course

holds the instrument free from any defect of title of prior parties and free from defenses available to prior parties among themselves."

In a later note (11 A.L.R. 211), at the foot of Levy v. Fidelity & C. Trust Co. supra, the author says: "The reported case is apparently the only recent decision which considers the effect of the Negotiable Instruments Act on a statute making invalid an instrument given for a gambling consideration."

In 8 C. J. 768, title "Bills and Notes," it is said: "If the instrument or contract is declared 'void' by statute it cannot be enforced even by a bona fide holder, and this is so even in those states where the Negotiable Instruments Law has been enacted."

And in 27 C. J. 1072, title, "Gaming," it is said: "Although there is some authority tending to the contrary, the weight of authority favors the rule that, in the absence of express provision, the Negotiable Instruments Law does not repeal or modify the statutes rendering void negotiable instruments given for a gambling consideration and in the hands of bona fide holders."

The authority cited to the contrary in the last quotation is Wirt v. Stubblefield, 17 App. D. C. 283. That decision places stress upon the general object of the act to obtain uniformity of law and decision, which purpose that court thinks would not be effected "so long as the instrument was rendered absolutely null and void by local statute." However, as we understand, in that jurisdiction there existed no gaming law similar to ours, but only the English statutes (16 Car. II. and 9 Anne), considered a part of their common law.

In other cases, the courts have considered statutes relating to usury, "peddler's note," notes stipulating for attorney's fees, and perhaps other subjects, and it appears that it is almost unanimously held that if the statute declares such instruments void, they are no less so since the adoption of the Uniform Nego

tiable Instruments Act. Professor Brannan, in his work, "The Negotiable Instruments Law," p. 186, after considering these decisions, says: "It is submitted that the weight of authority and the better reasoning is in favor of the view that the Negotiable Instruments Law does not impliedly repeal statutes which expressly or by necessary implication declare an instrument void."

Reviewing these decisions holding contrary to ours, we conclude that the courts rendering them were influenced mainly by the view that the legislature, in passing an act relating to negotiable instruments, could not be presumed to have intended to modify the established legislative policy as to gaming. Generally speaking, they applied the rules of construction that repeals by implication are not favored, and that a later enactment of general scope will not be held to modify a former enactment whose scope is special. We find these rules of construction frequently referred to in our own decisions. Territory v. Digneo, 15 N. M. 157, 103 Pac. 975; United States v. Meyers, 14 N. M. 522, 99 Pac. 336; Territory ex rel. White v. Riggle, 16 N. M. 713, 120 Pac. 318; Ex parte De Vore, 18 N. M. 246, 136 Pac. 47; Smith v. Raton, 18 N. M. 613, 140 Pac. 109; State ex rel. San Miguel County v. Romero, 19 N. M. 1, 140 Pac. 1069; State v. Coppinger, 21 N. M. 435, 155 Pac. 732; James v. Socorro County, 24 N. M. 509, 174 Pac. 1001; State ex rel. Walker v. Bridges, 27 N. M. 169, 199 Pac. 370; State v. Davisson, 28 N. M. 653, 217 Pac. 240. But rules of construction are resorted to merely as aids in determining the true legislative intent. No such rule is of any force when the legislative intent is plain. In this jurisdiction, the rule that a later enactment of general scope will not affect a former specific enactment has been disregarded where the court was otherwise satisfied of the legislative intent. State ex rel. San Miguel County v. Romero, 19 N. M. 1, 140 Pac. 1069; State ex rel. Walker v.

Bridges, 27 N. M. 169, 199 Pac. 370. See also United States v. Meyers, 14 N. M. 522, 99 Pac. 336.

But any contention that the gaming law has been modified by the Negotiable Instru- Bills and notes ments Act must be repugnancy based upon some conflict in their provisions. Wherein is the repugnancy?

in statute.

Section 55 of the Negotiable Instruments Act (Code 1915, § 649), provides: "The title of a person who negotiates an instrument is defective within the meaning of this chapter when he obtained the instrument . for an illegal consideration.

The consideration of an instrument won at gambling may, of course, be said to be "illegal," but that is not all. The instrument itself is void. Prior to the adoption of the Negotiable Instruments Act, there was a well-recognized distinction between an instrument whose consideration was

-enforcement

strument.

illegal and one by of illegal instatute expressly declared void. Union Trust Co. v. Preston Nat. Bank, 136 Mich. 460, 112 Am. St. Rep. 370, 99 N. W. 399, 4 Ann. Cas. 347. And it was the generally accepted doctrine that instruments, whose consideration was illegal, were enforceable in the hands of the holder in due course, while an instrument by statute expressly declared void was not so enforceable. See Lynchburg Nat. Bank v. Scott Bros. 91 Va. 652, 29 L.R.A. 827, 50 Am. St. Rep. 860, 22 S. E. 487, quoting from Daniel on Negotiable Instruments, Story on Promissory Notes, Kent's Commentaries, and a number of decided cases. See also Union Trust Co. v. Preston Nat. Bank, supra, and note appended thereto, 4 Ann. Cas. 353; Dan. Neg. Inst. 6th ed. § 197; Ogden, Neg. Inst. §§ 130 et seq.; note in Ann. Cas. 1917D, 696. For the definition of the terms employed in the Uniform Negotiable Instruments Act, we look, of course, to the law merchant, universally recognized as part of our common law, and we

(— N. M. —, 245 Pac. 543.)

thus find that the supposed repug- piled in the Code of 1915 as §§ 589nancy does not exist.

This directs attention to another situation. The adoption of the Uniform Negotiable Instruments Act introduced no new system. Generally speaking, and particularly as to the sections under consideration, it is merely declaratory of the existing law merchant or common law. Prior to 1907, when we adopted it, a very few sections embodied all of our statute law of negotiable instruments. Our law was the common law, which we adopted in 1876 as the rule of practice and decision. Code 1915, § 1354. Giving the term "illegal consideration" the interpretation placed upon it at the common law, no change took place in the law of this state when we adopted §§ 55 and 57 of the Negotiable Instruments Law, If the legislature did not change, nor intend to change even the law of negotiable instruments, it, of course, did not intend to change the gaming law.

The repealing clause of the Uniform Negotiable Instruments Act, as adopted in this state (Laws 1907, § 197, chap. 83), is as follows: "All acts and parts of acts in conflict herewith and all acts relative to negotiable instruments are hereby repealed, and this act shall be in force and effect from and after its passage."

Counsel for appellee calls attention to the fact that the words "and all acts relative to negotiable instruments" do not appear in the repealer of any of the four states which have directly passed upon the question. But we do not think this distinction can affect the decision. The Act of 1857 is not an act relative to negotiable instruments. It is relative to gaming. Its effects on negotiable instruments are incidental to the main purpose to suppress gaming. There were in our books at the time the act approved January 8, 1852 (Laws 1851-52, p. 283) entitled "An Act Authorizing the Assignment of Notes, Bills, and Other Instruments in Writing, and for Other Purposes," the four sections of which were com

592, and two of the three sections of "An Act Relating to Days of Grace and Protest of Commercial Paper," chapter 30, Laws of 1876, Code of 1915, as §§ 593, 594. Whether a repeal of these sections was effected or intended, we need not consider. However, they, much more than the gaming law, answer the description "acts relative to negotiable instruments." Considering the immediately preceding section (196), "In any case not provided for in this act the rules of the law merchant shall govern," the title, "A General Act Relating to Negotiable Instruments, Being an Act to Establish a Law Uniform with the Laws of Other States on that Subject," and the well-known history of the work to promote uniformity of the law of commercial paper, we readily agree that the broad object of uniformity should be given effect by the courts where it can be done without violence to legislative intent. Yet we cannot hold that, by the adoption of sections merely declaratory of existing law as to negotiable instruments in general, it was intended to breathe life into a void gambling instrument. These considerations constrain us to hold that our former decision was wrong, and should be overruled.

-note for

gambling debt enforcement.

Here another question arises. The case at bar is substantially the same case as that in which our erroneous decision was rendered. The subjectmatter is the same-the void draft. The parties with respect to their beneficial interest are the same-the Texhoma bank on one side and Wolford on the other. The same legal proposition is involved. The facts are the same. Both were commenced at about the same time, the present case having lain dormant while the ruling of this court was obtained in the other, since which time the other has apparently lain dormant until this cause could be tried in the lower court and brought here in the effort to obtain a contrary ruling. It is unquestionably

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