Crawford v. Brooks , 41 Miss. 540 ( 1867 )

Harris, J.,

delivered the opinion of the court.

This is an action of assumpsit on a promissory note, to which the defendant pleaded first, the general issue, and second, that a part of the consideration of the note was for goods, &c., won on a horse-race, and void.

On these pleas there was a jury and verdict for defendant.

The plaintiff below moved for a new trial, because the verdict of the jury was contrary to the law and evidence; which motion was sustained by the court, and a new trial granted. To which opinion of the court granting a new trial the defendant below excepted, and tendered- his bill of exceptions. The evidence contained in the bill of exceptions showed, that there was included in the amount of said note the price of a pair of boots of the value of eight dollars, won by plaintiff Brooks, one of the defendants, on a horse-race.

By act 1, p. 361, Rev.' Code, all contracts, &c., * * where the whole or any part of the consideration or foundation of such contract, &c., shall be for money or other valuable thing what' ever won, &c., * * * at any game or games whatever, or on any horse-race, &c., * * * shall be utterly void.

It is impossible to avoid the force of this statute. The proof shows that a part of the consideration of the note sued on was the price of a pair of boots won by one of the plaintiffs off the defendant, on a horse-race. The note, therefore, is declared void by the statute; and this being the only cause of action relied on in the . declaration, it' necessarily follows that no recovery can be had.

The suggestion by counsel for defendant in error, that this count, on a promissory note, under our system of pleading, may be made to perform the office of a special count, as well as any common count needed, goes beyond the most flexible provisions yet enacted by the legislature.

Let the judgment of the Circuit Court, granting a new trial in this case, as well as the judgment for the plaintiff below on said new trial, be reversed, and judgment entered here for the plaintiff in error.