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that as the penalty is not in. may be valid; and, on the
FIRST SITTINGS AFTER TRINITY TERM, 56 GEO. III.
SIMPSON v. Bliss.
THIS was an action for money had and re- A. lays a I ceived. The plaintiff being at Epsom races
wager of 25
guineas with in 1813, laid a bet of fifteen guineas with a Cap
B. upon the
event of a tain B. upon a horse which was to run. The de- horse race,
and C. takes fendant, who was a training groom and standing the risk of 10 by, called the plaintiff aside, and told him, “ You
IOU of the 25) as had better double the bet, for that horse will cer- his share of it.
A, wins the tainly win.” The plaintiff then betted twenty-five wager, but be
fore he reguineas, and asked the defendant to take half of ceives the moit with him ; the defendant said he would not take her
ney from B.
u nou take he pays C. 10 half, but he would “go ten guineas.” The plain
portion of the tiff agreed to this proposal, and the horse won. bet. B. never
paid the wager Shortly after the race the defendant asked the plain- to A., and all tiff to pay him his ten guineas, as he was obliged taining it was to go to Newmarket that day. The custom at that a. was Epsom races was not to pay the bet upon the
Ymhe Der "pun" withstanding ground, but to settle at Tattersall's next morning. the statutes of
gaming, to The plaintiff paid him the ten guineas, and the maintain an
action of monext morning Captain B. shot himself; the plain- ney had and tiff never obtained the original bet, and brought against C. for
received the present action to recover the ten guineas to
which he had which he had paid the defendant,
Blossett, serjeant, objected, that this action could not be maintained, as it arose out of a gaming transaction : he cited 9 Anne, c. 14. $ 2. 13 Geo. II. c. 19.
Best, serjeant, contrà.-This was not a bet upon a horse race; it was one degree removed. If it had been an action against Captain B. the objection might have been good: he cited Petrie v. Hannay, 3 T. R. 418.
Gibbs, C. J.-This is a nice point, and I will give the defendant's counsel liberty to move, if he desires it; but I think the plaintiff has a right to recover, on the ground that the consideration failed upon which he paid the money. The money was paid by the plaintiff to the defendant, upon the supposition that he should receive it back from Captain B. I am of opinion, therefore, that the statutes of gaming do not apply.
Best, serjeant, and Comyn, for plaintiff.
Blossett, serjeant, for defendant.
Vide Petrie v, Hannay, 3 T. where the cases are collected.
ADJOURNED SITTINGS AFTER TRINITY TERM,
AT WESTMINSTER, 56 GEO. III. 1816.
Davis v. Living and Others.
TTVHIS was an action against the assignees and 1. In an ac
tion of tort 1 messenger under a commission of bankrupt against seve
ral, if there be against Davis the elder. The plaintiff had succeeded to his father's business, and lived in a shop agains which had been taken in his father's name; but he against others,
it is discre carried on trade in his own name. The father was tionary with
the Judge at a bankrupt, and had not obtained his certificate. The Nisi Prius,
w whether hé assignees under his commission, suspecting that the will goods in the plaintiff's shop belonged to the father, acquittal of
such defende and that the son was only a colourable owner, ants, against
whom there is seized them under the commission against the fa- no evidence,
at the close of ther; and the present action was brought by the the plaintiff's son for the trespass. It was proved on the part of case, for the
purpose of the plaintiff, that one of the assignees was present
witnesses for with the messenger when the goods were taken; the co-defend
ants. But such but the witness did not know the messenger's name, an interme
diate acquittal and could not swear that he was one of the de
is not a matter
which the defendants.
fendants' counsel can
claim of right. Best, serjeant, insisted, that all the defendants 2. An uncer
tificated bankshould be acquitted, except the assignee, who was rupt hires a
shop; goods are supplied in the name of his son, but principally upon the father's guarantee: Held, that his assignees were liable to an action of trespass at the suit of the son, for seizing them as the goods of the bankrupt.
proved to have directed and made the seizure: this, he stated, was for the purpose of making the messenger a witness for the other defendant.
v. Living and
GIBBS, C. J.-I do not think I am called upon to direct the Jury to acquit them in this state of the cause. It is not a matter of right wbich the defendant's counsel can claim ; it is discretionary with the Judge. And were I, in this stage of the proceedings, to direct the Jury to acquit the messenger who is joined as defendant, I am not certain that, when acquitted, and called as witness, he might not prove himself a trespasser.
It appeared in the course of the plaintiff's case, that Rịchard Davis, the father, had taken the shop in his own name ; that he had brought with him the old customers from the shop in which he carried on trade when he became a bankrupt ; that he lived in the shop with his son ; that he ordered and selected the goods, though the purchases were made in the name of his son, and credit was alone given to his son ; but, in one or two instances, the father had guaranteed the payment.
Best, serjeant, contended, that these were circumstances, from which the Jury might collect that the plaintiff had only a colourable title ; and that the property seized was virtually the bankrupt's property.
GIBBS, C. J.-It is a hard rule of law upon persons in the condition of an uncertificated bank