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this case.

tion was issued and returned unsatis- or accept the shares, but merely to pay fied.

differences, according to the rise or fall of

the market, are contracts for gaming and The motion was denied three times,

void. (1) with leave to renew, (2) because no Where the character of a transaction depends proposed answer was submitted, (3) upon the intent of the party it is compeupon the merits on the proposed

tent, when that party is a witness, to inquire

of him what his intention was. answer and all the



proposed answer denied that plaintiffs Appeal from a judgment entered were the lawful owners, etc.; set up upon a verdict directed by the Court. the Statute of Limitation; alleged The action was brought upon three want of consideration; and set up contracts made by defendant and deseveral other defences.

livered to the plaintiffs. By the first, Kelly & McRae, for applt. defendant agreed that the bearer J. J. Lyons, for respt.

might deliver to him at any time withHeld, The order made at Special in sixty days, 500 shares of Lake Term, was correctly made, the rules Shore R. R. Co., at sixty-six per cent., governing that tribunal, being strict on one day's notice, the defendant to ly enforced with great propriety be- have all intervening dividends or excause of the suspicious circumstances tra dividends. By the second, defenattending the defendant's conduct in dant agreed that the bearer might at

But as the answer sets up any time within sixty days call on him a good defence, sitting as a Court of for 200 shares of the stock of the review and giving more extended Pacific Mail Steamship Co., at thirtyconsideration to the case than a single seven per cent, or, at his option, might justice could give, we think the deliver the same to him at the same defendant should be allowed to price within the same time, at one answer on terms, and giving security day's notice, all dividends to go with for any additional costs, and stipula- the stock in either case. The third conting to put case on special calendar tract was like the second, except that for the next term of the court. $15 it was for 500 shares of the Lake costs of appeal and disbursments to Shore R. R. Co., at sixty-five per cent. either party to abide event.

The defence set np was that the conOpinion Per Curiam. All concur- tracts were gaming contracts and void ing.

under 1 R. S., p. 662, § 8. The proof

showed that while the contracts were GAMING CONTRACTS.

running defendant became insolvent, N. Y. SUPREME COURT. GENERAL

and on being notified by plaintiff that

he intended to deliver the stock, said TERM. FIRST DEPT.

he had failed and could not take Charles F. Yerkes et al., respts., v. Samuel N. Salomon, applt.

them, agreed to waive the one day

notice and settle at the market price Decided July, 6, 1877.

for that day, and a memorandum to Agreement hy one party to buy and the other this effect was indorsed on the con10 seil, or one party to sell and the other

tract. to buy stocks at a specified price at a future day, where neither party intends to deliver Upon the trial plaintiff on the cross

examination was asked, whether at FRAUDULENT CONVEYANCE. the date of the contracts, he had the

TITLE UNDER. stocks referred to in the contracts. SUPREME COURT OF TENNESSEE. This was objected to as immaterial

Fowlkes v. Harris. and excluded and defendant excepted. September Terin, 1876.

Plaintiff was also asked if at the A voluntary conveyance of property, made for time the contracts were made he in- the purpose of defrauding the creditors of tended to tender or call for the stocks the grantor, will pass the title to the grantee, or merely to settle upon the differ

and the property will be subject to levy or

sale as the property of the latter, at the ences. This was also excluded and

suit of his creditors. defendant excepted.

Though the conveyance be subject to disaffirmJohn E. Devlin, for applt.

ance for fraud at the suit of the creditors of Wm. G. Choate, for respt.

the grantor, it cannot be impeached by

the representatives, heirs, or devisees of the Heu, That it was iminaterial

grantor, or by any person claiming under whether at the date of the contracts him. plaintiff had the stocks referred to in Recitals in a sheriff's deed are conclusive as contracts, and that the question as to

against third parties. whether he had the stocks or not was

Several actions of ejectment were properly excluded.

brought by the heirs of Wm. P. IIarBut the other exception, to tủe ex

ris to recover certain lands in Shelby clusion of the question as to whether County. In each case, Mrs. Sarah W. plaintiff intended when the contracts Fowlkes, executrix of Jeptha Fowlkes, were made to settle upon the differ- deceased, as she is styled, was admitences merely, was well taken.

ted to defend in the place of the perThe authorities are abundant upon sons smed, and filed in each case the the proposition that if neither party plea of not guilty. intended to deliver or accept the

The causes

were tried before a shares but merely to pay differences, special judge, a jury being waived. according to the rise or fall of the The judgments in each case were for market, the contract is for gaining. 53 the plaintiff. N. Y., 318 ; 55 Id, 425; 56 N. Y., The plaintiff below claimed title 230; 16 N. Y. Sup. Ct. Rep., 429.

through Sterling Fowlkes, under a The inquiry as to plaintiff's inten- sheriff's sale and deed, under a judgtions, when the contracts were made, ment in favor of Jolinathan L. Barwas relevent to the defence and im- nard against Jeptha and Sterling properly excluded.

Fowlkes, under which it is claimed Judgment reversed, new trial the land in controversy was levied on granted, costs to abide event.

as the land of Sterling Fowlkes and Opinion by Brady, J.; Davis, P. sold, and bought by said Johnathan J., and Daniels, J., concurring.

L. Barnard ; that afterwards, Sterling Fowlkes confessed a judgment in favor of Jeptha Fowlkes, which the latter assigned to W. R. Iarris, and thereupon said IIarris redeemed the land from Barnard, and took the “ I suppose

sheriff's deed to himself, in which case, his property should pay the Barnard also joined.

debt. When asked why the land 1. For the defendant, Mrs. Fowlkes, was conveyed to him instead of it is insisted that Jeptha Fowlkes was Jeptha Fowlkes, he says: “I the real owner of the land, and that partly to prevent the creditors of Dr. the plaintiff's ancestor acquired no Fowikes (Jeptha Fowlkes) from gettitle under his purchase of the land ting it, and partly to secure me, and as the property of Sterling Fowlkes. to get me to go his security. It was That the legal title was in Sterling setting a trap for me." Fowlkes is not denied, but it is argued Held, That this was a fraudulent that he held the naked legal title as device of Jeptha Fowlkes to avoid trustee for Jeptha Fowlkes. This his debts; that no trust could be argument is predicated upon the tes- raised in his favor out of the transactimony of Sterling Fowlkes. Ilis tion, and that the purchaser of the deposition had been taken in another land at an execution sale as the land case, and was read in this case ; from of Sterling Fowlkes, acquired a valid which it appears that one Gaines, title as against Jeptha Fowlkes, his made a deed of trust conveying this heirs or devisces. · Whether such a land to Charles Lofland and another, transaction would be strictly within to secure a debt due to the Farmers' the statute of Elizabeth, or our statand Merchants Bank of Memphis; ute, which declares void, conveyances that. Lotland sold the land under the made to hinder and delay creditors, trust deed, and it was struck off to the deed in this case not having been Sterling Fowlkes, and the trustees made by Jeptha Fowlkes, we do not deed made to him, which was duly stop to inquire. We think it clear registered. Sterling Fowlkes, in his upon general principles of equity, deposition, says that Jeptha Fowlkes that the creditors of Jeptha Fowlkes or his agent asked his permission to mnight in equity, upon the ground of 11se his name in the purchase of the the fraud, have reached the land to land; that he was not present at the satisfy their debts; and also equally trust sale, and made no bids and paid true that, as between Jeptha and nothing for it. He understood that Sterling Fowlkes, the conveyance was Jeptha Fowlkes paid the considera- valid, and that a court of equity would tion for the land; at all events he not at the instance of Jeptha Fowlkes caused the deed to be made to him, set up a trust in his favor in the land the said Sterling; and that he held against Sterling Fowlkes. The evithe land in trust for the said Jeptha dence of the fraudulent intent would and not for himself. He further says, have repelled Jeptha Fowlkes from that when the officer came to him the court. No trust could be raised with the execution in favor of Bar- in his favor out of such a transaction. nard, he gave the officer this tract of A court of equity would have left land to be levied on, telling him, the parties where it found them. however, that Jeptha Fowlkes was This being so, a purchaser at execuithe equitable owner, but as he (said tion sale of the property, as the propJeptha) was the real debtor in the lerty of Sterling Fowlkes, would get a good title as against Jeptha Fowlkes ing, therefore, in the attitude of an and those claiming as his heirs or de- entire stranger, we hold that the eviVisees, whatever inight be the rights dence sufficiently supports the sherof his creditors. Mrs. Fowlkes has iff's deed as against her. shown no title in herself, either as Let the judgment be affirmed. heir or devisee of Jeptha Fowlkes; Opinion by McFarland, J. and the effort is to defeat this action of ejectinent by showing an outstanding equitable estate in the heirs of DAMAGES. PRACTICE. Jeptha Fowlkes, upon evidence which N. Y. SUPREME Court. GENERAL we think fails to establish any such


Mary M. DeLuce, respt., v. John 2. It is next objected that the re- Kelly, sheriff, &c., applt. citals of the sheriff's deed are not

Decided July 6th, 1877. sustained by proof, especially as to

When a motion is made for a new trial on the the levy of an execution, and sale.

minutes, it is the duty of counsel to specify The judgment was produced, but the

on what particular grounds the motion is execution was shown to have been made. lost. It is shown that an execution The rule of law is that the measure of damissned, and the execution docketed

ages, in an action by the owner of property

to recover damages for a seizure and sale of shows that it was returned levied on

property on an execution against a third land, but no description of the land party, when on such sale the property is is given. Sterling Fowlkes proves,

purchased by the owner, is the price paid

with interest. however, that he gave in this land to

The Court is not bound to charge a proposition the sheriff to be levied on for the

of law based on a state of facts which there satisfaction of the Barnard judgment, is no evidence in the case to support, and that he confessed a judgment, Appeal from judgment entered on in favor of Jeptha Fowlkes to enable a verdict, and from order denying him to redeem the land from Bar- new trial on minutes of the Court. nard, who was the purchaser at the Action for unlawful taking and desale. Recitals of a sheriff's deed havetention of personal property. Anbeen held as against third persons to swer, denied that plaintiff was the be prima facie sufficient. Trotter v. owner, and alleged that the husband Nelson, 1 Swan, 7, 13; Bartlett v. of the plaintiff was the owner, and Watson, 3 Sneed, 288 ; Henderson that it was seized by virtue of an exv. Gallaway, 8 Hum., 692. In this ecution against him. The jury found case Mrs. Fowlkes, although she is that plaintiff was the owner, and renstyled executrix of Jeptha Fowlkes, dered a verdict for $2,712.76. There deceased, is not shown to have any was some evidence tending to show connection with the title of Jeptha that the property in the Sheriff's sale Fowlkes. It does not even appear was bought in for the plaintiff. that she is his widow or executrix, or The Court was asked to charge that that he made any will; and she cer- if the jury found that the propert tainly has no connection with the was bought in by or on account of title of Sterling Fowlkes. She stand- plaintiff, the measure of damages was the amount paid by her, and interest evidence. The evidence would not thereon. The Court refused to charge oblige the jury to infer that the purthis in terms, but said, “I charge it chase of the property was made on substantially and leave the facts as to account of the plaintiff. The judywhether the property was purchased ment and order should be affirmed. for or on account of the plaintiff to Opinion by Davis, P. J.; Daniels, the jury. Defendant's counsel ex- | J. concurring. cepted to the refusal to charge it in

Brady, J., writes an opinion in terms.

favor of modifying the judgment and The Court also refused to charge allowing only the price paid for the in these words, “Where property is

goods at Sheriff's sale, and interest to sold under execution and is bought time of trial. in by the owner, the measure of damages is the amount which such prop- ASSIGNMENT OF CHIOSE IN erty brings upon such sale," on the

ACTION. ground that there was no evidence on N. Y. SUPREME Court. GENERAL which to base such a proposition, but

TERM. First DEPT. stated that the question whether it

David Risley, applt., v. The Phoewas purchased for the plaintiff's bene- nix Bank of the City of New York, fit would be left to the jury. De

respt. fendant's counsel excepted. The ap

Decided July 6, 1877. peal papers also show that defendant

An assignment of a chose in action by parol is moved for a new trial on the minutes, but show no special grounds of such No liability is established against a drawee of motion.

a check unless there is an acceptance of it.

A check has been said to be a bill of exRobert S. Green, for applt.

change payable on demand. Charles E. Miller, for respt.

Appeal from a judgment dismissHeld, The exceptions were not well taken. That the measure of damages ing the complaint at the Circuit.

The plaintiff's complaint contained when property is sold on an execution,

three causes of action. First, upon a and bought in by, or on account of

a check of which the following is a the owner, in an action by the owner

Copy: to recover damages, is the amount paid and interest. That the Court “ BANK OF GEORGETOWN, S. C., charged substantially the request, and GEORGETOWN, May 20, 1861. defendant had no right to insist on

“Pay to the order of David Risley the precise language, as it contained Ten thousand dollars. two alternatives, to one of which there

“J. G. HENING, is no pretence that it applied.

President. The motion for a new trial was too “ To PHENIX BANK, indefinite. It is the duty of counsel

New York." on such motion to point ont the ground of error, whether upon the After first alleging that defendant exceptions, or upon the ground that had funds of the Bank of Georgethe verdict is against the weight of town at the time exceeding $10,000,

Vol. 5–No. 2*.


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