Sybert v. Jones

• Decision Date: 31 October 1853
• Citation: Sybert v. Jones, 19 Mo. 86 (Mo. 1853)
• Parties: SYBERT, Respondent, v. JONES, Appellant.
• Court: Missouri Supreme Court

19 Mo. 86

SYBERT, Respondent,

v.JONES, Appellant.

Supreme Court of Missouri.

October Term, 1853.

1. A party sued upon a note, who relies upon the defence that it was given for a wager upon an election, under section 10 of the act concerning ““gaming” (R. C. 1845) must state in his answer, not only that the election was one authorized by the constitution and laws of the state, but what particular election it was, between whom pending, &c., or he will be precluded from giving evidence on the subject.

Appeal from St. Louis Law Commissioner's Court.

Cline and Thompson, for appellant.

A. H. Buckner, for respondent.

RYLAND, Judge, delivered the opinion of the court.

This was an action brought by Sybert, as indorsee of Charles H. Ashby, on a promissory note, against the defendant, Jones, in the law commissioner's court. The defendant, in his answer, states that the note sued on was given on the 31st of July, 1852, by the defendant to said Ashby, “upon a bet made upon the August election, and was wholly without consideration, and that there was never any consideration for the same, which the above named plaintiff well knew at the time he received the same from said Ashby; that said note was transferred by the said Ashby to the said plaintiff, without valuable consideration and for the purpose of collection, &c. The plaintiff never paid any valuable consideration for said note and was well aware at the time of receiving the same, that it was given by said Jones upon a bet upon the August election of 1852, and wholly without any legal consideration.”

Upon the trial, the defendant offered to prove that the note was given by him as a “bet or wager on the August election.” The plaintiff objected to the introduction of evidence concerning any particular election, as the defendant's answer did not specifically refer to any; nor did it refer to any election authorized by the constitution and laws of the state of Missouri. The court sustained the objection, and rejected the testimony, and the defendant excepted. The defendant then offered to prove that the note was given as a bet or wager on the August election, 1852, for state and county officers; an election authorized by the constitution and laws of the state of Missouri. The plaintiff objected, and his objection was sustained, and the defendant excepted. The defendant then moved the court for permission to amend his answer, so as to state that said August election was an election authorized by the constitution and laws...