Williams v. Duffy , 26 Tenn. 255 ( 1846 )

GREEN, J.

delivered the opinion of the court.

This is an action for debt, brought in the Circuit Court of Smith county, by the defendant in error, Duffy, against W. B. Walton, W. T. Williams, David C. Hubbard, H. H. Holland and R. A. Bennet.

The declaration alleges that the defendants, Walton, Williams, Hubbard and Hubbard, executed to R. A. Bennet their writing obligatory for $245, payable when James K. Polk is elected President of the United States in 1S44; and that Ben-net assigned the said writing obligatory to the plaintiff, — who made demand when the same became due, and gave notice thereof to the said Bennet.,

To this declaration, the defendant Holland pleaded that the said writing obligatory was executed for a gambling consideration.

The defendant Williams pleaded payment; Walton and Hubbard pleaded payment and set off; and Bennet failed to plead to the declaration. On the trial, a nol. pros, was entered as to Holland, — and a jury was sworn to try the issue between the plaintiff and the defendants, Walton, Williams, Hubbard and Bennet, who found for the plaintiff and assessed his damages to $8 70 cents; whereupon the court adjudged that the plaintiff recover of the defendants Walton, Williams, Hubbard and Bennet, the debt and damages aforesaid. The defendants, Williams and Hubbard, alone prosecute this writ of error. The plaintiffs in error, insist this is a gambling transaction, and therefore void. The clerk has copied a bill single into this record, upon which it is said, this suitis founded. But this bill cannot be noticed, as part of the record. It is not made such by a bill of exceptions, nor upon oyer in the pleadings. We can therefore only judge of the character of the obligation as it is in the declaration.

And there is nothing stated in the declaration from which we can see that the obligation sued on, was executed upon a gaming consideration. It is payable, it is true, upon the contingency of the election of James K. Polk, President of the United States; but there is nothing stated to show, that a smaller sum was to be received in case of his non-election, so as to show that a wager existed between the parties.

But we think this judgment is "erroneous, because the verdict and judgment are against Bennet, who did not plead, jointly with the other defendants, who did plead. As to Bennet, the jury improperly find a verdict as upon issue, when He, by pleading, had made no issue — and upon this verdict, the court erroneously pronounced judgment.-

It is true, Bennet does not prosecute a writ of eiror, and therefore, as to him, the judgment below remains in force; but the judgment is a joint one, against all the parties, and is an entire thing, — and being eironeous as to Bennet, is erroneous as to the present plaintiffs in error.

The judgment against the plaintiffs in error must be reversed, and the cause as to them, must be remanded for another trial.