Conner v. Autrey
| Decision Date | 01 January 1857 |
| Citation | 18 Tex. 427 |
| Parties | DANIEL A. CONNER v. R. AUTREY AND ANOTHER. |
| Court | Texas Supreme Court |
That the note sued on (with a scrawl after the signature of the defendant and the word “seal” written therein) was a “note in writing, under the seal of the party charged therewith,” and that the plea impeaching its consideration must have been supported by affidavit, is not an open question.
Where the petition called the instrument sued on, a promissory note, but alleged that it was signed “R. Autrey, [seal]” the name of the defendant, it was held that there was sufficient allegation that the note was under seal, and that the defendant was not excused from filing an affidavit in support of his plea impeaching the consideration.
Where, in a suit on a note in writing under seal of the defendant, the defendant filed a plea impeaching the consideration, to which the plaintiff excepted on the ground that the plea was not supported by affidavit, and the exception was overruled, the defendant, on error by the plaintiff, attempted to sustain the judgment on the ground that it was fully proved at the trial that the consideration was illegal and void; but the court said that admitting that it was so proved, still the error was such as to require the reversal of the judgment.
Error from Colorado. Tried below before the Hon. Nelson H. Munger.
Suit by Daniel A. Conner, plaintiff in error, against R. Autrey and the executor of W. H. Secrist, defendants in error, on a note for $1,000. The petition called the instrument sued on a promissory note, but alleged that it was signed “R. Autrey (seal), W. H. Secrist (seal).” The defendants pleaded, not under oath, that the note was given for money won at cards at a public place. To this plea the plaintiff excepted specially, on the ground that the instrument sued on was a note in writing under the seals of the parties charged therewith, and that the plea of illegal consideration and failure of consideration, was not supported by affidavit, as required by the statute. This exception was overruled. At the trial, it appeared that the money was won at cards, at the dwelling house or sleeping room of a party named; but it was not clear that the place was not one of common resort for gambling, and it was clearly proved that several persons, not engaged in the game, were present at the time of the playing. Verdict and judgment for defendants.
J. H. Robson for plaintiff in error, cited English v. Helms, 4 Tex. 228;Clopton v. Pridgen, 8 Id. 308.
G. W. Smith, for defendants in error. Though the statute does not by express provision declare that money won at cards shall not be collected, still it is believed to be well settled that money won at games prohibited by law cannot be enforced.
The case of Vannoy v. Patton, 5 B. Mon. 248 appears to recognize this doctrine to its full extent. Story on Prom. Notes, sec. 189.
It is contended by many that all gaming is contrary to sound morals and public policy, and that the consideration of a contract won at any such game would be illegal and present a valid defense to the enforcement of the contract.
Wagers on horse races have been enforced by law, but with much hesitation on the part of the courts, on the ground that they afford an innocent amusement and will tend to improve the breed of horses, and thereby promote the interest of the people at large. Gambling at cards is not attended with any of these results, but is the fruitful parent of idleness, dissipation and most of the vices. Turner v. Peacock, 2 Dev. 303; Shepherd v. Sawyer, 2 Murphy, 26; 6 Wharton, 179;16 Ohio, 54;6 N. H. 104; 1 Strobhart, 82.
The note or a copy of it was not appended to the petition. It is described as a promissory note, and in no place has the plaintiff declared on it as a deed, specialty or sealed instrument, and unless it had been set out or charged as being a sealed instrument, the plea impeaching the consideration need not be sworn to.
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Estate of Chagra v. Commissioner
...sec. 463.368 (1983). 5. We observe that Texas courts also refuse to lend their process to the enforcement of gambling debts. Conner v. Autrey, 18 Tex. 427 (1857); Springer v. Sahara Casinos Co., 322 S.W. 2d 33 (Tex. Civ. App. ...
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Conner v. Mackey
...H. Secrest and R. Autrey, on a note under seal. The case was in this court, on appeal, at Galveston, 1857, and will be found reported in 18 Tex. 427. After it was remanded, the defendants made affidavit to the truth of the plea impeaching the consideration; and the case took the same course......
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