Reports of cases argued and decided in the Supreme Court of the State of Texas during part of Galveston term, 1852, and the whole of Tyler term, 1852. Volume 8. Page: 6
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* 11-12 SUPREME COURT.
Hadley v. Tankersley.
quest of the [1 1] judges or of the defendants; that the judges were duly appointed,
and the horse of Bails regularly run over the track, and the note of
defendants given up to Bails as forfeiture, according to the rules of racing.
N. H. Munger, for plaintiff in error.
Alexander and Atchison, for defendants in error.
HEMPHILL, CH. J. From the testimony it appears there was no trick, unfairness,
or fraud on the part of the plaintiff or the payee in the inception of
this contract, or in any of the acts upon which by its terms the liability of the
defendants on the note was to arise. The proceedings on the race track and
the delivery of the note were all done in conformity with the customary rules
and regulations on the subject of racing.
Unless the consideration of the note was illegal and void, the defendants
were clearly liable on their undertaking. We have decided in several cases
that wagers on horse-races were recoverable at common law, and as they were
not prohibited by statute in this State, an action upon them was maintainable.
Wagers on horse-races may be regarded not only as indifferent wagers upon
indifferent matters, and therefore not obnoxious to the law, but their exclusion
from the general gaming contracts may be placed, and I presume is by the
Legislature, on the ground that they tend to stimulate and encourage an improvement
in the breed and qualities of the horse. That such is the fact the
history of this animal in England and the United States would doubtless
abundantly prove. But, be the policy which supports the validity of such
wagers what it may, it must equally extend to and sustain all contracts which
are but subsidiary and incident to the wagers themselves. The contract for
forfeiture is based upon the loss of time and charges and expenses necessarily
incurred for preparations to the race, and we see no good reason for sustaining
[12] the contract for the wager and rejecting that for the forfeiture; and it
is ordered, adjudged, and decreed that the judgment be reversed and the cause
remanded for further proceedings.
Judgment reversed.
NOTE 2.-McElroy v. Carmichael, 6 T., 454; Crump v. Secrest, 9 T., 260; Pierce v. Randolph,
12 T., 290; Wheeler v. Friend, 22 T., 683; Armstrong v. Parchman, 42 T., 185. Contracts of this
character must be honest and fair beyond exception to entitle them to favorable consideration.
(Bailes v. Williams, 15 T., 318.) A note given to secure a deposit of the amount bet on a
horse-race cannot be enforced. (Campbell v. Reeves, 14 T., 8.)
HADLEY V. TANKERSLEY.
The declaration in the 25th section of the tax law of 1840 (Hart. Dig., art. 3007) that the tax
deed should be good and effectual both in law and equity, must be regarded as giving no
special sanction to the conveyance beyond that derived from the general principles of law.
(But, queref If the doctrine had not been firmly established.) And hence, notwithstanding
that provision, it is necessary for a plaintiff claiming under a tax sale made by virtue
of that law to allege and prove that all the prerequisites were performed.
Appeal from Harris. Suit by the appellant against the appellees for partition
of a certain tract of land. The plaintiff claimed title by virtue of a sale
for taxes. His deed was made an exhibit, was dated the 27th day of November,
1841, and recited that "Whereas the said Magnus T. Rogers, as sheriff
aforesaid, and, as such, being the collector of public taxes, by virtue of an execution
issued by John Fitzgerald, a justice of the peace, against the estate of
John W. N. A. Smith, for his taxes for the year 1840, being for the sum of one
hundred and twenty-three dollars and six cents," &c., &c. There were no
allegations in the petition of any facts anterior to the deed. A demurrer to the
petition was sustained.
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Texas. Supreme Court. Reports of cases argued and decided in the Supreme Court of the State of Texas during part of Galveston term, 1852, and the whole of Tyler term, 1852. Volume 8., book, 1901; Houston, Texas. (https://texashistory.unt.edu/ark:/67531/metapth28566/m1/14/: accessed April 26, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu; .