
    Thomas vs Davis.
    Appeal from the Fayette Circuit.
    Assumpsit.
    
      Case 58.
    Decree of the Circuit Court.
    Objections to the-testimony in the Circuit Court.
    It is not necessary that a written affidavit should be filed to authorize the Court. to grant a'n order' to take depositions , Secus, where the application is made to the clerk for a dedimus to take a deposition. (7 Montoe, 576.>
    
      
      Practice in suits at law. Notice. Depositions. Evidence.
    
    
      October 30.
   Judge Beech

delivered the opinion of the Court.

Davis recovered a judgment in an action of assumpsit, the law and facts'upon a plea of non-assumpsit having been submitted to the Judge, against Thomas, for two hundred and fifty dollars, and Thomas has appealed to this Court.

Before we examine the questions involved in the merits of the controversy, we will dispose of some objections to the action of the Court in regard to the admission and rejection of testimony during the progress of the trial.

Exceptions were taken by the defendant to the deposition of Pryor:

1st. That the order for taking it was unauthorized,- it not appearing that any affidavit had been filed by the plaintiff, as required by the statute.

2d. That the notice was insufficient.

In answer to the first objection, it need only be remarked, that an order for taking the deposition was granted on motion of the plaintiff, and the presumption is authoiized fhat-it was granted upon the proper affidavit as to the murteriali-fcy of the witness. It was not necessary that the affidavit should be in writing, The statute requires an affidavit to be filed with the Clerk to authorize him to issue-a commission in vacation, when no order of Court has been obtained. Such, we presume, was the case in Taylor vs Bank of Illinois, (7 Monroe, 576,) to which we have been referred.

A notice given at Lexington, Ky., in- reasonable time to lake' a deposition at Natchez, Miss., on'the 15 th, 16th, í7thorl8tli, and token on the'last named day, was held well taken. (2 J. J.Mar, 55.)

A patty' who ha's procured the rejectionof a deposition filed by his adversary, should not be permitted after-wards to read without the consent ot the other party.-

As to the second objection, we think it is equally untenable.

The notice was-to take the deposition “at the office of Lewis Sanders, in the city of Natchez, on the 15th day January, 1845, and if not on that day, on the 16ffi, and if not on that day on the 17th, and if not on that day on the 18th of the same month.” The deposition was taken on the day last named. In view of the distance between the place where the suit was pending and where the deposition was to be taken," the notice running through four days, was not unreasonable: (2 J. J. Marshall, 55.) There is no evidence, and we cannot presume that the notice was thus given for the purpose of annoyance or of seeking any undue advantage, but to- guard against the failure cf the witness, from some casualty, to attend on the first day named.

The Court, we think, was also right in- refusing the defendant permission to read the deposition of Jones. It had been filed by the plaintiff and the defendant had excepted to it, and his exceptions had been sustained.. He subsequently withdrew his exceptions and avowed an intention to read it upon the trial. The-plaintiff stated that he should object to its being read by the defendant p that it had been filed by mistake, and asked leave to withdraw it, which the Court refused. All this transpired before the jury were sworn.-

Under these circumstances, the Court properly refused the defendant permission to read the deposition upon the trial. And we may here alsQ remark, that the alledged surprise on the part of the defendant’s counsel at this refusal, constituted no sufficient ground for setting aside the order of hearing, or for granting a new trial. As an additional reason why the refusal was no ground for a new trial, it appears that the plaintiff’s counsel offered to consent to its being read, if he was permitted to amend his declaration. The deposition of Jones purported to have been taken in Mississippi, but without any order of Court or notice.

The proof in the cause.

The testimony as detailed in the bill of exceptibns, is substantially as follows: Pryor, in his deposition, states-that in the month of November, 1843, he was upon the Pharsalia Race Course, in the State of Mississippi, and heard the plaintiff tell the defendant that if he would take a negro boy the defendant had to New Orleans at the approaching races, and bet him on Lucy Dashwood the day she ran, the plaintiff would go his halves, and pay the defendant two hundred and fifty dollars if he lost said negro on said race ; that afterwards, in December, 1843, at the Meterie Race Course near New Orleans, on the day of the race when Lucy Dashw.ood ran, the defendant called on deponent a few moments before the race, and told him that he had bet the negro boy oh the race; that deponent at same time asked the defendant if he considered Davis in, and he replied he did ; that Lucy Dashwood ran and won the race.

The plaintiff also introduced George W. S'tone as' a witness, who testified that the defendant told him that he was willing to settle with the plaintiff and give him his note for $250; that he staled at the same time, he did not consider he owed the plaintiff any thing, but would give his note for $250. Defendant also stated that he did bet a negro boy on a horse race, in which Lucy Dashwood ran in New Orleans, and won $500 on the race, and lost it again. The defendant, afterwards in another conversation, told witness that he did not bet said negro boy on said race. The witness was afterwards called by defendant, and proved that the plaintiff resided in Mississippi, and the defendant in Kentucky.

The plaintiff then read from a printed book, purporting, from its title page, to contain the civil code of the State of Louisiana, and to have been published by authority, the following article:

“Art. 2952. The law grants no action for the pay, roent of what has been won at gaming or by a bet, ex-eept for games tending to promote skill in the use of arms, such as the exercise of the gun, foot, horse and chariot racing. And as to such games, the Judge may reject the demand when the sum appears to him excessive.”-

Printed books purporting to be published by authority, and to contain the laws of sister States, are competent evidence toprove those laws. (7 Monroe, 576; 3 £. Monroe, 363.)

To this evidence in regard to the law of Louisiana, the defendant objected, but the objection was overruled. Under the construction given by this Court, in Taylor vs Bank of Illinois, supra, and in Breckinridge vs Moore, &c., (3 B. Monroe, 636,) to our statute of 1809, (1 Stat. Laws, 187,) the book from which the article was read, w'as competent testimony of the laws of Louisiana, and the objection, therefore, was properly overruled.

This was all the evidence adduced by either party upon the trial, and in view of it we think the assumption is authorized, that the defendant did bet his negro boy upon Lucy Dashwood at the race run by her at New Orleans in December, 1843, and thereby won $500. And of the sum thus won, that the plaintiff was entitled to a moiety.

From the defendant’s statement to the witness, that he considered the plaintiff in the bet with him, we think it fairly to be inferred that he had reference to the arrangement between them shortly before in Mississippi. It is true the witness does not prove from what he states passed between the parties in Mississippi, that the contract was then closed. But from the fact that the defendant was at the race and making the bet as proposed ; from his reply to the witness when asked whether he considered the plaintiff in the bet; and from his subsequent statements, it seems to us the inference is fully authorized, that the bet was made in accordance with a settled previous agreement between the parties. Whether the agreement was finally concluded at the time the witness states the terms were proposed by the plaintiff or after-wards, is not important. It is sufficient that it may be inferred from the testimony and the circumstances, that the bet was made by the defendant, and that he considered the plaintiff in with him, pursuant to an agreement between them.

A contract valid by the laws of Louisiana,where it was to be performed, and by the commonlaw, will be enforced in Kentucky.

Two individuals jointly bet on a horse race in Mississippi and win IfiSñOO, one received the money and refused to pay, held that the amount was recoverable by-action of assumpsit in Kentucky. It was not money won, but received for the plaintiff’s use.

If the contract was actually closed in the State of Mississippi, we have no evidence that it was forbidden by the laws of that State. Such a contract, if it had even been a bet between the parties, was not prohibited by the.common law, which may be presumed, in the absence of proof of any statutory provision, to be the law of that State in regard to it.

But if the contract was made in Mississippi, but to be performed in Louisiana, it would be governed as to its validity, obligation and interpretation by the laws of Louisiana, the place of performance. (Story's Con. Laws, 233.)

The contract as to the bet upon the race, was performed in Louisiana. The act, as we have seen, was not forbidden, but expressly authorized by the laws of that State. It results, therefore, that the defendant by an operation tolerated by the laws of Louisiana, won for himself and the plaintiff, five hundred dollars. The question then arises, and it is the only remaining question for consideration, whether the judicial tribunals in Kentucky should lend their aid to the plaintiff for the recovery of his moiety of this fund from the defendant.?

It is strenuously contended, that-as betting on horse racing is prohibited by our laws, that our Courts of Justice should, on that ground, refuse the relief sought. That they are not bound by the law or comity of nations, to enforce a contract which is against the policy of our own laws.

This as a general proposition, is undoubtedly true; but the principle, we think, is not applicable to this case. The plaintiff is not here seeking to recover $250, which he has won from the defendant. He has won nothing from him — made no bet with him. He merely seeks to recover $250 which the defendant has in fact received for his use and benefit. The transaction by which this money was acquired and came into the hands of the defendant, was in violation of no law of Mississippi nor of Louisiana. In view of the laws of those States, it was legally acquired and received by the defendant for the use of the plaintiff. His right to it was absolute and perfect, and to afford him the aid of the laws and tribunals of Kentucky for its recovery, we cannot regard, as contended, as in violation of any principle of public policy, or as a judicial sanction of any act denounced as an of-fence by the laws of Kentucky.

Robertson for appellant; Pindell for appellee.

Upon the whole, we perceive no sufficient reason for disturbing the judgment of the Court below, and it is, therefore, affirmed.  