
    John Beard v. James Brandon.
    Where the defendant gave the plaintiff a note of hand on a third person, in payment for property pnrohased, which note had "been, given for money won on a horse-race, therefore void. Held, that the plaintiff may recover the value of the property from defendant, although the note was never presented to the maker for payment.
    This process was brought to recover $20, being part of $32, which the defendant had agreed to pay to the plaintiff for a watch purchased of him.
    The defence insisted on was, that the plaintiff had agreed to accept, in part payment, a note of hand on two men, by the names of Word and Hollis1, for $20, at his risk, and that, at all events, the defendant was not to be answerable till all legal means had been used by the plaintiff, to collect the amount from Word and Hollis.
    It appeared in evidence that the plaintiff, shortly after the contract, ascertained that the note in question had been given for money won on a horse race, and called upon the defendant, in order that the contract might be rescinded. This he proposed, which the defendant refused. The circumstance of the note having been given on a gambling consideration, was concealed from the plaintiff, at the time of the contract, *and the defendant, at the time r*, of the proposed rescisión by the plaintiff, admitted that the note had L u been so won It appeared from the ,evidence further, that the plaintiff had demanded the money from one of the defendants, but not from the other.
    When the evidence had closed, the counsel for’the defendant moved for a nonsuit, supposing that the plaintiff had not shown that he was entitled to a recovery.
    1. Because he had not used due diligence to get the money from the drawers, Word and Hollis.
    2. Because no fraud was alleged in the process.
    3. Because, from the terms of the contract,-the plaintiff had taken the note at his own risk.
    The presiding judge (Mr. Justice Gamt,) having, decreed for the plaintiff, an appeal was made. The defendant claimed a right to a nonsuit upon the same grounds that were taken in the Court below :
   The opinion of the Court was delivered by

G-antt, J.

The leading and governing circumstances in this case, are:

1. Concealment by the defendant of a fact which ought to have been disclosed at the time of the contract.

2. That a note, passed to the plaintiff, was absolutely void in1 law, proved by the defendant’s acknowledgment, that the same was a security taken for money won on a horse race.

3. The defendant’s refusal to rescind the contract.

It is evident that the plaintiff would not have entered into this contract, had the defendant disclosed the nature of the security passed to .him. This is inferrible from the plaintiff’s desire to rescind, on the day of the contract, after having ascertained the, fact, that the note was given on a horse race.

The rule which has so long prevailed, of requiring a fair disclosure of all the circumstances which might govern the determination of the contracting parties, *would be strangely perverted, if it did not, r^i 0 i upon an occasion like the present, bear with full force upon this L' defendant. Why should the plaintiff have prosecuted a suit with diligence, upon a security acknowledged by the defendant to be irrecoverable at law ? The attempt would have been vain and idle, and this the lawr does not require of any man. Of right, therefore, the plaintiff demanded payment of the defendant in the first instance ; nor was it necessary, that he should have stated with greater precision the nature of his claim. Had there been any strength in the defence which was attempted, the same might have been specially noticed, and brought to view, by the plea or defence on the part of the defendant; and this would have been the regular course of procedure. 'The note which was passed to the plaintiff, being a nullity in itself, and the defendant having received a dona fide consideration for the amount called for by it, on his refusal to take it back, a personal responsibility immediately devolved upon the defendant to pay that amount to the plaintiff. Nor can the Court discover any ground on which a nonsuit could have been avoided. The defendant, by the decree, is called on for the amount agreed to be given for the watch, and the security passed to the plaintiff will remain his property' still. The plaintiff not having been made acquainted with its true nature, and thereby imposed upon, had a right to abandon it, as a thing of no value, and leave to the defendant, who, had obtained it of the drawers, the task of contravening (if it can be effected), the provisions of the Act which declares it to be void.

Thompson, for the motion. Glarlce, Solicitor, contra.

The Court is of opinion that the defendant can take nothing by his motion.

Colcock, Nott, Johnson and BjchaRdson, JJ., concurred.

1 vol. 180, and notes; Post. 127.  