
    
      J. M. E. Sharp vs. John Smith.
    
    The payee of a note, payable to himself or bearer, said on the day after it bore date, he then having the note in his possession, that it was given for a gaming consideration, and that he had sold it. The action was by the bearer: —I[cld, that such declarations were competent to go to the jury to show that the note was given for a gaming consideration.
    
      Before Withers, J., at Laurens, Spring Term, 1853.
    The report of his Honor, the presiding Judge, is as follows:
    “The action was assumpsit, on a note for $>500, dated December 1st, 1851, at one day, in favor of Jacob Haller or bearer. Defence — a gambling consideration.
    
      “I permitted the following evidence to go to the jury, obtained from Wm. Maybin, of Columbia: That he saw the note in the hands of Haller, the payee, about the 1st or 2d of December; that he had possession of it as a depositary; thought the whole transaction was so public that Sharp must have known all about it; that Haller said he had won the amount of the note from defendant, at faro. I held the note void, if this testimony was believed.
    “ The verdict was for defendant.”
    The plaintiff appealed, and now moved for a new trial, on the grounds,
    1. Because the declarations of Jacob Haller, the payee of the note, and who was a competent witness for defendant, were permitted to be read.
    2. Because, according to the testimony, Jacob Haller had transferred the note in question before he made the declarations, and at that time had no interest in it.
    Henderson, for appellant.
    
      Young, Simpson, contra.
   The opinion of the Court was delivered by

O’Neall, J.

The only question of law in this case is, whether the declarations of the payee were admissible, in evidence.

The note was payable to bearer, and, of course, passed on delivery. The payee (Haller) had the note in his hands, when he made the declarations. This was on the day, or the next after, it was drawn. It is true, he then said, he had sold the note; but that might or might not have been true. He had the possession, and until he parted with that, no one could be rightfully said to be the bearer.

The case of Snelgrove vs. Martin & Patrick, 2 McC., 241, is full to the very point.

The case of Land vs. Lee, 2 Rich. 168, which ruled the declarations of a vendor made while in possession, to be competent evidence, is also abundant authority to sustain the decision made below.

Indeed, if such shuffling, as that which was resorted to here, the payee holding the note in his hand, asking for payment, admitting that the note was given for a gaming consideration, but at the same time saying he had sold it, could exclude his declarations in favor of the defendant, every gambler might, in the name of his associate, recover notes given for money won. The motion is dismissed.

Wardlaw, Frost, Withers, Whither and Glover, JJ., concurred.

Motion dismissed.  