Bride v. Clark

• Decision Date: 28 March 1894
• Parties: BRIDE v. CLARK.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

161 Mass. 130

36 N.E. 745

BRIDE v. CLARK.

Supreme Judicial Court of Massachusetts, Suffolk.

March 28, 1894

COUNSEL

Horace

G. Allen, for plaintiff.

P.J Casey, for defendant.

OPINION

BARKER J.

The first exception must be overruled because there is nothing to show that the book offered as evidence of the law of the state of New York, and rejected, was competent. It did not purport to be published under the authority of the government of that state, and there was no evidence that it was commonly admitted and read as evidence in their courts. See Pub.St. c 169, § 71.

The other exception is to the refusal to give a ruling requested. The request included several elements, one of which was "that gambling, and such gambling as is described here, is illegal by the laws of New York." If parts of the ruling requested were objectionable, yet as the ruling is not stated to have been refused, as a whole, for that reason if a definite request contained in it was correct in law, and pertinent to the evidence, and was not, in substance, given in the charge, and it is clear that the excepting party was thereby prejudiced, and injustice done,--a new trial may be ordered. The action was upon a promissory note payable to the plaintiff, which the defendant conceded he had signed; and the defenses were that it was given without consideration and for an illegal consideration. The note was made and delivered in this state, but the evidence tended to show that the consideration was money which the defendant, when attending horse races in the state of New York, had there promised to pay for pools which were there sold him on such races. The only evidence of the law of New York consisted of three sections of the statutes of that state; and, as held in Kline v. Baker, 99 Mass. 253, the construction of this evidence was for the court alone. The buying of pools on horse races is gambling, and the question was fairly raised whether that form of gambling was illegal by the laws of New York; and, for the purposes of the case, it was to be decided by ascertaining the construction and effect of the statutes which had been put in evidence, and it was the duty of the presiding justice to instruct the jury upon that point. Copies of two of the sections are annexed to the bill of exceptions, and designated as sections 28 and 29 of the Revised Statutes (1 Codes and Laws N.Y. pp. 273, 274, or Pen.Code, §§ 351, 352). These...