Norvell v. Oury, 13 Tex. 31

Lipscomb, J. This suit was brought on a promissory note made by the defendant, payable to the plaintiff. The defence set up against the note was that it was given on a gambling consideration for money won at cards, and there was a verdict and judgment for the defendant. The first error assigned, is the ruling of the Court in refusing to permit the plaintiff to read a deposition of a witness taken at the instance of the defendant. The bill of exceptions shows that the deposition was taken without any cross-interrogatories, bnt that the deposition was filed among the papers ef the suit. Art. 731 (Hart.

Dig.) is as follows: “ Both par-,,u ties shall be considered as having a joint interest to (in Í) “ all depositions where cross-interrogatories have been filed “and answered, and either party shall have a right to use “ snek depositions on the trial.” It is believed, that the right being given to use the deposition where cross-interrogatol’ies had been filed and answered, repudiates such right, unless the cross-interrogatories had been so filed and answered.

The second assignment, that the Court erred in charging the jury that “ If from the evidence yon believe the consider- *£ ation for which this note was given was an indebtedness for “ money lost in a gaming affair, you must find a verdict for :1 the defendant, it matters not where the matter occurred.” It is a well settled rule, that in testing the correctness of the charge of the Judge to the jury, the charge is not to be taken as an abstract proposition, but must be considered in connection with the issue and the evidence.

Now, the pleading did not admit of any evidence to show that the contract was made at any other place, or under any other jurisdiction, where, by the rule lex loci contractus, a consideration of the contract, although illegal here, would be valid and binding, and consequently could be enforced here, if not within the exceptions to the rule, that the validity of a contract must be tried according to the law of the place where it is entered into.

Had it been alleged in the petition, or by way of replication to the plea setting up the unlawful consideration of the notes, that it had been entered into in the State of California, and that the consideration was a good and valid one by the laws of that State, the foundation would have been laid for letting in proof of those facts ; but these facts were not alleged and no proof of their existence was admissible, and the Court could not be called upon to say what would have been the effect if the contract had been made in another State.

The contract stood before the Court and the jury, on the issues presented, as one of entirely a domestic character, and to the jury, it was entirely immaterial, in point of fact, where it was really entered into; therefore there was no error in the charge. Until the question is presented properly and legally for our decision, we will forbear the expression of an opinion, whether a contract founded on a gambling consideration invalid by <mr own law, can be enforced in our Courts, when entered into íe a foreign State where such consideration would be valid and lawful.

We believe the evidence fully sustained the defence set up, and that the Court did not err in refusing a new (trial. The judgment is affirmed. Judgment affirmed.