Delaware state journal. [volume] (Wilmington, Del.) 1870-1883, 1873-05-31

PENDANT was entitled " a reduction In the .
amount OF the claim and gave a verdict
for plaintiff for 81 ,S06.59 l.. G. Bird, q
Esq, for PLAINTIFF 4. +. Bayard, ESQ.,, {
for defendant, f...t.....r.
Beiij amin G. Pearce, b. a. "a. Edmund {
Provost, p. b. r. appeal from Justice of
the Peace on a bet case. The defendant,
Provost, In October, 1883, entered into
wager with Archibald Given that Jacob
Richardson (who was at that time rum
ming for the Office OF Sheriff Of this
county, was a member of the "Union
League" The stakes, 800 side, were
deposited with Benjamin G. Pearce, who
was 10 berthe umpire in the case and
hand over the stakes to the winner. Suit
was brought in 1853 for the whole
amount Of the stakes, $500, by the same
plaintiff against the same defendant, but
on demurrer the Court decided II was
against public policy for a man to bet
upon the private character or life of an
other, and now this suit was brought 70
recover the stakes only Of plaintiff from
the stakeholder, the defendant, who re-
fused to give them up when demanded by
Provost.
The defence sought TO be set up was
that the record shows the case to have |
been decided, the Hrst suit precludes The |
trying Of the second. The money was
put up with the agreement OF Provost
that Pearce should decide the bet, and
that Pearce had decided 1t, and was OF
the opinion that Provost had failed to es-
tablish Richardson's membership In the
League. In 1868, plaintiff sued for two
sums, both were mentioned, and now In
1871, (when this suit was instituted) he
sues for one OF the Identical sums de-
clared upon in 1865. The identical par
ties, the identical SUN declared upon.
The record of Judgment In former case
upon both of the sums.
George c. Gordon, ESQ, for plaintiff
below had opened his case aud examined
his witnesses, and 7. F. Bayard ESQ.,,
for appellant, stated his case and exam
ined one witness when the Court adjourned
ill to morrow morning at l0.a. IN.
New Castle, May cath, 1s7S.--The
Courts were opened this morning al the
usual hour.
In No. 1888, Russell Voc Us. Wilson
q Walton, Judgment for plaintiff for
S0oS "a interest from May 2bth, 1873.
Stay execution for three months. L. Z.
Bird, Esq, for plaintiff; c. b. Lore, Esq,
for defendant.
The trial Of Benjamin q. PeRrce,d. b. o.,
U.s. EQuOhu IioNOoNg paw - " NJ ANsNAaSNl
the defendant below conducting his ex-
animation of witnesses. The facts OF the
case were given In the Court proceedings
of Friday, and need not be repeated here.
The counsel for Provost CHR. Gordon)
coutendiug that counsel for Pearce (Mr.
Bayard) vas estoyped by the demurrer,
In the suit TOR the same money, from
any proof as to the fact Of the bet.
That the FIRST suit had settled the law
of this State In this that such bets as this
was contrary 10 sound aud settled piinci-
pies Of law and public pol'cy,yet that that
suit did not 20 SO far as to say that one
OF the pal ties had not the right 10 recover
40 much money as be had deposited In the
hands of the stakeholder, He cited quite
. a number OF authorities to support this
point, and argued the point at length.
Mr.. Bayard in reply said that the subject
of this auit was part of the matter OF the
, former one and that the demurrer onwhlch
he had gotten judgment In the former
, debarred the plaintiff from any recovery,
, on the broad ground that no man could
be twice yixed for the same cause Of
[ action. That they had chosen TO bring
the first action In such manner as ina
4 a general and special demurrer on whlct
Judgment had been rendered already t6
/ them would forever concede them, ane
= that they now, could not now on the SAINT
!. matter SO vary the form OF their ACTOR
as to change them.
And that even IL the bet was Illegal
they must to charge the defendants II
n this action, give them notice, aud maxi
a demand for their share of the stake
q before they cou charge the defendants
r. aud that no such notice or demand hat
q been proven In this case, admitting thei
!. position as far as the question oil IN
!, Judgment IN demurrer was true.
|. Mr.. Bavard pressed this point, as wei
! as the first and most important, I'm
- large uart) one TO quit eitinl
4 ouiIe number of authorities. The Cour
" here discharged with the exception
y those impapneled In this case) the jur
N until 10 O'Clock q. m. At about p. IN.
n the arguments were concluded, and a
= the hour of adjournment was near q
n hand, declined to charge the jury, nc
er wishing to keep them over Sunday
even into the night, US no Judge woul
ID be at hand to take the verdict, 80 the
Is were accordingly discharged.
d. The next matter was on motion OF Nj
N W. @. spruance TO set aside the sale
the Sheriff of the laud Of Erastus Lodg,
III under a LeUdri Fdcids to present Term,
rs the ease of Foreman Us. Lodge and wifi
a After the examination OF three or fol
Nv witnesses, the Court adjourned until
a O'Clock, a ~, Monday.
If Az this is the first case in which u
nm question Ia raised under the new law,
m. 10 the publication of SherifPs sales In u
81 paper having the largest circulation,
RE- will give all the facts and points OF
Of when the matter has been tried, as It
an of considerable interest to the communit
Of New CASTLE, May 26th, 1S73.-ll
ia Courts were opened this morning at 4
IA. usual hour.
no The first matter on hand was the char
Nh of the Court to the jury, in the case
ia BenIamin q. Pearce, d. b. a., Us. Edmu
.oi Provost, D. b.r. The points of inter-
nd in the charge were in substance these
nd Ia the former action the plaintiff "
bound to recoverson the special coutrs
.ty or not at all. If he recovered the SUN
nd 5000 at all, he was bound TO do so on I
lue contract. But this suit is not on
the contract at all, and If Pearee was e.
sed bound 70 return this amount (slOO)
bv Provost. II is on the principles OF
Oh common law-that principle Of ECU
sm and Justice on which one is bound To ?
neT over the sum which he holds of another
A and the question is, Is not Pearee bou
he 10 paw to Provost the 800, as the sum
on. deposited, and whether the plaiptih
nav estopped and precluded In this action
his the Judgment on the demurrer on
XIII frst one Is this identical with the FIR
M. We are of the ODiHion that Il Is not
ase Ia be discharged by his having p
This over the atakesl II is commended that
the paid II over without notice or sutfici
ces- notice from Provost, that be claimed
and hind. and not to pay II to Given, TIL
the a question of fact for you to conslt
the The stakeholder is a trustee for b
hat parties, and he Is bound TO act in g
,uld faith 10 them all. If he had In
care faith and without notice paid 1t owe
pom would, in many cases, have dischar
ock, him, and the plaintiff cannot reco
, de- but this l say, Is a question OF TACT
UNI van. YOU are to determine whether
d of bringing of the first suit on Noven
ming l4th, 1868, before the money was
e Of over. December 2lst, 1861 was nc
the TO Pearce that he claimed the stakes,
u be whether that fact of bringing suit,
ence other sum having been found TO o
for Pearce's hands claimed-by him. was
ncieut notice. Was it a caution to bill
that Act 10 perfect goo1 faith TO both part
pro- Did he do sol II you are Of The OPT
aim that notice was given in dny way, or
Provost made any claim to II, we SO
uh7s You, that he having paid Il over u
Or by such circumstances, he cannot exont
no himself from liability. Il Is proper
wall YOU to take into consideration In
first connection, all the circumstances att
Tying ing this transaction from the beginI
were The taking by Pearce of the bond Of
efore demnIty, receipt, &C., that II he pa
skill with notice and that nouee wa