Lurton v. Gilliam

2 Ill. 577

• Court: Illinois Supreme Court
• Decided: December 15, 1839
• Status: Published

Opinion

Smith, Justice,

delivered the opinion of the Court:

In this case the grounds of error assigned and relied on, are,

1st. That Brown and Lurton should have been joined in the action, the credit being joint.

2d. That the defendants in error were parties to an illegal contract.

3d. That the evidence offered to prove the result of the election, being the State paper, was inadmissible as evidence.

4th. That the addition of interest to the principal, ought not to have been allowed.

The first objection is not good. If the parties were only jointly liable, the plaintiff in error should have pleaded that matter in abatement. But the contract was manifestly in severalty.

From the facts disclosed by the bill of exceptions, it appears that the contract for the cloth, although a contingent one as to the ultimate liability of the one or the other of the parties, was to be absolute, as to the party who should lose the bet. The purchase was made and the credit given, after the consummation of the bet.

It does not appear that the defendants in error were in any way parties to the bet, or encouraged it; and we do not perceive that their contract for the sale and delivery of the cloth, was tainted with a participation in the original agreement between the parties. Their mere knowledge of it could not certainly connect them with it; and having parted with their property under the arrangement, common honesty surely requires that the party at whose instance it was delivered, conformably to his agreement, should be held answerable for the value of the mer-' chandise delivered. Money loaned to be used in gaming, could heretofore have been recovered back at common law, but it is now prohibited by the statute against gaming.

(1)

It is not now necessary to go into the various reasons given for the decisions which have prevailed in courts, relative to gaming contracts, because this contract cannot be considered contra bonos mores, or against sound policy. The case in 4th Johnson, of Bum v. Rucker, has no affinity to the present action. The State Register, being made by law the public paper in which the official acts of the Governor required to be made public, are to be published, was evidence of the existence of the Proclamation, and the facts stated in it, until the contrary was shown. On the question of interest, we are of opinion that it was properly allowed. The statute giving interest on all liquidated accounts, embraces the case directly.

The judgment is affirmed with costs.

Judgment affirmed.

Note. See Tindall v. Meeker, Ante 137.

R. L. 230; Gale’s Stat. 320.