Ivey v. Nicks

CHILTON, J. We think there can be no serious question as to the correctness of the decision of the orphans’ court in reversing the judgment of the county court rendered in this cause. The bill of exceptions not only shows that the defendant never did indorse the note, but put his' name upon it merely to distinguish it from the joint property of himself and partner, but that it passed from him into the hands of [567] Conner upon a gaming consideration. Waiving the consideration of the effect of defendant’s discharge in bankruptcy upon the liability sought to be enforced against him ; and without considering our statute, which authorizes the defendant to show a want of consideration as against the holder or indorsee of other than commercial paper, it is perfectly clear, that the county court mistook the law in refusing to charge the jury as requested by the defendant, viz : that if the only consideration of the indorsement was a bet or wager at a game of cards, they must find for the defendant. The statute declares, thall “ all promises, agreements, notes, bills, bonds, or other contract, judgment, &c., made, &c., upon any gaming consideration, shall be utterly void, and of no effect, to all intents and purposes whatsoever.” Dig. 257, § 1. The indorsement on the note, made upon a gaming consideration is equally void, in the hands of an innocent holder, as it is in the hands of the original indorsee, who wins it, and cannot be enforced against the indorser; for if innocent parties were allowed to recover, the winner would always avoid the statute by transferring the notes. This construction accords with the whole current of authority, both English and American, and is in conformity to the uniform tenor of the decisions upon the statute of 9 Ann, c. 14. See Manning v. Manning et al. 8 Ala. 138; Fenno et al. v. Sayre & Converse, 3 Ala. Rep. 458; Cheatham v. Young, 5 Ala. 353; Chitty on Bills, 9 Am. ed. 111; 2 Dana, 414; Bayley on Bills, 237. The same doctrine applies in cases of usury. Warren v. Crabtree, 1 Greenl. Rep. 167; Churchill v. Sutler, 4 Mass. 156; Muskgrove v. Gibbs, 1 Dall. 216; Munn v. Commission Co. 15 Johns. Rep, 44; Ib. 355. See also Tuthill v. Saltmarsh, at the last term, and Saltmarsh v. P. & M. Bank, at this term. Also, Metcalfe v. Watkins, 1 Por. R. 57. There is nothing in the record from which it can be inferred that the plaintiff took the note by reason of any representations made by Nicks. He received it, it is said, on the faith of the indorsement. As the indorsement, though placed on the note before the gaming, could have no vitali [568] ty until the note was negotiated by the indorser,- it follows that being void by the statute, the plaintiff, though a bona fide holder takes nothing under it, as against the indorser. Judgment of the circuit court affirmed.