Whitesides v. McGrath

Duffel, 3. This is an action by the payee against the maker of a lost note for its payment. The execution of the note, and its destruction by fire are proved. The defence is, that the note was given for a gaming transaction.' Skaggs, plaintiff’s witness, declared, on his cross-examination, that he, the parties to the suit, and a brother to the plaintiff, formed an association to carry on, as bankers, a faro game, which lasted about two months ; that the loss of the bank in this game was near fifteen thousand dollars. Witness adds : “ I settled up my portion of the loss next morning, and advanced a portion of McGrath’s loss; for the balance of his loss, McGrath gave his note to Berry Whitesides for twelve hundred and fifty dollars, being the sum alleged to have been advanced by Wm. Whitesides, for his account. The plaintiff w'as interrogated on facts and articles, and so far corroborates the testimony of his own witness, as to admit that “ the consideration was partly for money loaned by me to the defendant, and partly for a mutual claim held by E. H. Skaggs and myself.” It is true that he states, in answer to the second interrogatory, that the note “ was not given in settlement of a gaming transaction between myself and defendant ”; but this was not enough, he should, in answer to the 3d interrogatory, have stated the nature and character of the settlement which left him a balance, and the object for which the money had been advanced by him. The impression left on our minds, after reading the answers of the plaintiff, the testimony of Skaggs, and comparing the two together, is that the note was given by the defendant to make up Ms loss, as a partner of the plaintiff and others, in a faro banking game; and as it was within the power of the plaintiff to dispel any vestige of doubt, his failure to do so precludes a recovery. The association was not only against good morals, but highly criminal. Revised Statutes, p. 151, see. 96. Oourts of Justice are not opened to litigations of this kind. It is, therefore, ordered, that the judgment of the lower court be reversed, and that the demand of the plaintiff be rejected, with costs in both courts. Land, J., absent.