Polk v. Coston

Supreme Court of Delaware

Polk v. Coston

1 Del. Cas. 276, 1800 Del. LEXIS 12

DecidedOctober 20, 1800

StatusPublished

This text of 1 Del. Cas. 276 (Polk v. Coston) is published on Counsel Stack Legal Research, covering Supreme Court of Delaware primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Polk v. Coston, 1 Del. Cas. 276, 1800 Del. LEXIS 12 (Del. 1800).

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Opinion

Per Curiam. Johns, C. J.

This is a demurrer to an action of trover for hogs. It appears the property was bidden off by plaintiff; that he never had the possession or paid the money according to the terms of the sale, but that he afterwards did. It also appears by the demurrer that a wager was made with Cos-ton, who won, and that he sold the property to D. and received the money. It appears that by plaintiff’s order the hogs were delivered to D. We are of opinion the wager was fraudulent and void and left the property in Polk. Defendant’s counsel have urged that the delivery, if the wager was not valid, passed the property and that Coston never had possession. We think Polk parted with his right by the order to deliver to Coston. Suppose this action was against D., could there be a doubt that the order and receipt was a good defense? In trover the plaintiff must have a general or special property. Here plaintiff had parted with his property, and his remedy, if any, should have been a special action on the case; and therefore we shall give judgment for the defendant on the demurrer.

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Per Curiam. Johns, C. J.

This is a demurrer to an action of trover for hogs. It appears the property was bidden off by plaintiff; that he never had the possession or paid the money according to the terms of the sale, but that he afterwards did. It also appears by the demurrer that a wager was made with Cos-ton, who won, and that he sold the property to D. and received the money. It appears that by plaintiff’s order the hogs were delivered to D. We are of opinion the wager was fraudulent and void and left the property in Polk. Defendant’s counsel have urged that the delivery, if the wager was not valid, passed the property and that Coston never had possession. We think Polk parted with his right by the order to deliver to Coston. Suppose this action was against D., could there be a doubt that the order and receipt was a good defense? In trover the plaintiff must have a general or special property. Here plaintiff had parted with his property, and his remedy, if any, should have been a special action on the case; and therefore we shall give judgment for the defendant on the demurrer.

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Bluebook (online)

1 Del. Cas. 276, 1800 Del. LEXIS 12, Counsel Stack Legal Research, https://law.counselstack.com/opinion/polk-v-coston-del-1800.