tion was issued and returned unsatisfied. The motion was denied three times, (1) with leave to renew, (2) because no proposed answer was submitted, (3) upon the merits on the proposed answer and all the papers. The proposed answer denied that plaintiffs were the lawful owners, etc.; set up the Statute of Limitation; alleged want of consideration; and set up several other defences. Kelly & McRae, for applt. Held, The order made at Special Term, was correctly made, the rules governing that tribunal, being strictly enforced with great propriety because of the suspicious circumstances attending the defendant's conduct in this case. But as the answer sets up a good defence, sitting as a Court of review and giving more extended consideration to the case than a single justice could give, we think the defendant should be allowed to answer on terms, and giving security for any additional costs, and stipulating to put case on special calendar for the next term of the court. $15 costs of appeal and disbursments to either party to abide event. or accept the shares, but merely to pay differences, according to the rise or fall of the market, are contracts for gaming and void. Where the character of a transaction depends upon the intent of the party it is competent, when that party is a witness, to inquire of him what his intention was. Appeal from a judgment entered upon a verdict directed by the Court. The action was brought upon three contracts made by defendant and delivered to the plaintiffs. By the first, defendant agreed that the bearer might deliver to him at any time within sixty days, 500 shares of Lake Shore R. R. Co., at sixty-six per cent., on one day's notice, the defendant to have all intervening dividends or extra dividends. By the second, defendant agreed that the bearer might at any time within sixty days call on him for 200 shares of the stock of the Pacific Mail Steamship Co., at thirtyseven per cent, or, at his option, might deliver the same to him at the same price within the same time, at one day's notice, all dividends to go with the stock in either case. The third contract was like the second, except that it was for 500 shares of the Lake Shore R. R. Co., at sixty-five per cent. The defence set up was that the con Opinion Per Curiam. All concur- tracts were gaming contracts and void ing. GAMING CONTRACTS. N. Y. SUPREME COURT. GENERAL TERM. FIRST DEPT. under 1 R. S., p. 662, § 8. The proof showed that while the contracts were running defendant became insolvent, and on being notified by plaintiff that he intended to deliver the stock, said he had failed and could not take Charles F. Yerkes et al., respts., v. them, agreed to waive the one day Samuel N. Salomon, applt. Decided July, 6, 1877. Agreement by one party to buy and the other to sell, or one party to sell and the other to buy stocks at a specified price at a future day, where neither party intends to deliver notice and settle at the market price for that day, and a memorandum to this effect was indorsed on the con tract. Upon the trial plaintiff on the cross examination was asked, whether at the date of the contracts, he had the stocks referred to in the contracts. This was objected to as immaterial and excluded and defendant excepted. Plaintiff was also asked if at the time the contracts were made he intended to tender or call for the stocks or merely to settle upon the differences. This was also excluded and defendant excepted. John E. Devlin, for applt. FRAUDULENT CONVEYANCE. A voluntary conveyance of property, made for Though the conveyance be subject to disaffirmance for fraud at the suit of the creditors of the grantor, it cannot be impeached by the representatives, heirs, or devisees of the grantor, or by any person claiming under him. Recitals in a sheriff's deed are conclusive as against third parties. Several actions of ejectment were brought by the heirs of Wm. P. Har Held, That it was immaterial whether at the date of the contracts plaintiff had the stocks referred to in contracts, and that the question as to whether he had the stocks or not was properly excluded. But the other exception, to the ex-ris to recover certain lands in Shelby clusion of the question as to whether plaintiff intended when the contracts were made to settle upon the differences merely, was well taken. The authorities are abundant upon the proposition that if neither party intended to deliver or accept the shares but merely to pay differences, according to the rise or fall of the market, the contract is for gaming. 53 N. Y., 318; 55 Id., 425; 56 N. Y., 230; 16 N. Y. Sup. Ct. Rep., 429. County. In each case, Mrs. Sarah W. Fowlkes, executrix of Jeptha Fowlkes, deceased, as she is styled, was admitted to defend in the place of the persons shed, and filed in each case the plea of not guilty. The causes were tried before a special judge, a jury being waived. The judgments in each case were for the plaintiff. The plaintiff below claimed title through Sterling Fowlkes, under a sheriff's sale and deed, under a judg ment in favor of Johnathan L. Barnard against Jeptha and Sterling Fowlkes, under which it is claimed The inquiry as to plaintiff's intentions, when the contracts were made, was relevent to the defence and improperly excluded. Judgment reversed, new trial the land in controversy was levied on granted, costs to abide event. as the land of Sterling Fowlkes and Opinion by Brady, J.; Davis, P. sold, and bought by said Johnathan J., and Daniels, J., concurring. L. Barnard; that afterwards, Sterling Fowlkes confessed a judgment in favor of Jeptha Fowlkes, which the latter assigned to W. R. Harris, and thereupon said Harris redeemed the land from Barnard, and took the sheriff's deed to himself, in which case, his property should pay the Barnard also joined. 1. For the defendant, Mrs. Fowlkes, it is insisted that Jeptha Fowlkes was the real owner of the land, and that the plaintiff's ancestor acquired no title under his purchase of the land as the property of Sterling Fowlkes. That the legal title was in Sterling Fowlkes is not denied, but it is argued that he held the naked legal title as trustee for Jeptha Fowlkes. This argument is predicated upon the testimony of Sterling Fowlkes. His deposition had been taken in another case, and was read in this case; from which it appears that one Gaines, made a deed of trust conveying this land to Charles Lofland and another, to secure a debt due to the Farmers' and Merchants Bank of Memphis; that Lofland sold the land under the trust deed, and it was struck off to Sterling Fowlkes, and the trustees deed made to him, which was duly registered. Sterling Fowlkes, in his deposition, says that Jeptha Fowlkes or his agent asked his permission to use his name in the purchase of the land; that he was not present at the trust sale, and made no bids and paid nothing for it. He understood that Jeptha Fowlkes paid the considera- | tion for the land; at all events he caused the deed to be made to him, the said Sterling; and that he held the land in trust for the said Jeptha and not for himself. He further says, that when the officer came to him with the execution in favor of Barnard, he gave the officer this tract of land to be levied on, telling him, however, that Jeptha Fowlkes was the equitable owner, but as he (said Jeptha) was the real debtor in the debt. When asked why the land was conveyed to him instead of Jeptha Fowlkes, he says: "I suppose partly to prevent the creditors of Dr. Fowlkes (Jeptha Fowlkes) from getting it, and partly to secure me, and to get me to go his security. It was setting a trap for me." L Held, That this was a fraudulent device of Jeptha Fowlkes to avoid his debts; that no trust could be raised in his favor out of the transac tion, and that the purchaser of the land at an execution sale as the land. of Sterling Fowlkes, acquired a valid. title as against Jeptha Fowlkes, his heirs or devisees. Whether such a transaction would be strictly within the statute of Elizabeth, or our statute, which declares void, conveyances made to hinder and delay creditors, the deed in this case not having been made by Jeptha Fowlkes, we do not stop to inquire. We think it clear upon general principles of equity, that the creditors of Jeptha Fowlkes might in equity, upon the ground of the fraud, have reached the land to satisfy their debts; and also equally true that, as between Jeptha and Sterling Fowlkes, the conveyance was valid, and that a court of equity would not at the instance of Jeptha Fowlkes set up a trust in his favor in the land against Sterling Fowlkes. The evidence of the fraudulent intent would have repelled Jeptha Fowlkes from the court. No trust could be raised in his favor out of such a transaction. A court of equity would have left the parties where it found them. This being so, a purchaser at execution sale of the property, as the property of Sterling Fowlkes, would get a good title as against Jeptha Fowlkes and those claiming as his heirs or devisees, whatever might be the rights of his creditors. Mrs. Fowlkes has shown no title in herself, either as heir or devisee of Jeptha Fowlkes; and the effort is to defeat this action of ejectment by showing an outstanding equitable estate in the heirs of Jeptha Fowlkes, upon evidence which we think fails to establish any such equity. 2. It is next objected that the recitals of the sheriff's deed are not sustained by proof, especially as to the levy of an execution, and sale. The judgment was produced, but the execution was shown to have been lost. It is shown that an execution issued, and the execution docketed. shows that it was returned levied on land, but no description of the land is given. Sterling Fowlkes proves, however, that he gave in this land to the sheriff to be levied on for the satisfaction of the Barnard judgment, and that he confessed a judgment, in favor of Jeptha Fowlkes to enable him to redeem the land from Barnard, who was the purchaser at the sale. Recitals of a sheriff's deed have been held as against third persons to be prima facie sufficient. Trotter v. Nelson, 1 Swan, 7, 13; Bartlett v. Watson, 3 Sneed, 288; Henderson v. Gallaway, 8 Hum., 692. In this case Mrs. Fowlkes, although she is styled executrix of Jeptha Fowlkes, deceased, is not shown to have any connection with the title of Jeptha Fowlkes. It does not even appear that she is his widow or executrix, or that he made any will; and she certainly has no connection with the title of Sterling Fowlkes. She stand ing, therefore, in the attitude of an entire stranger, we hold that the evidence sufficiently supports the sheriff's deed as against her. Let the judginent be affirmed. DAMAGES. PRACTICE. N. Y. SUPREME COURT. GENERAL TERM. FIRST DEPT. Mary M. DeLuce, respt., v. John Kelly, sheriff, &c., applt. Decided July 6th, 1877. When a motion is made for a new trial on the minutes, it is the duty of counsel to specify on what particular grounds the motion is made. The rule of law is that the measure of damages, in an action by the owner of property to recover damages for a seizure and sale of property on an execution against a third party, when on such sale the property is purchased by the owner, is the price paid with interest. The Court is not bound to charge a proposition of law based on a state of facts which there is no evidence in the case to support. Appeal from judgment entered on verdict, and from order denying new trial on minutes of the Court. a Action for unlawful taking and detention of personal property. Answer, denied that plaintiff was the owner, and alleged that the husband of the plaintiff was the owner, and that it was seized by virtue of an execution against him. The jury found that plaintiff was the owner, and rendered a verdict for $2,712.76. There was some evidence tending to show that the property in the Sheriff's sale was bought in for the plaintiff. The Court was asked to charge that if the jury found that the property was bought in by or on account of plaintiff, the measure of damages was the amount paid by her, and interest thereon. The Court refused to charge this in terms, but said, "I charge it substantially and leave the facts as to whether the property was purchased for or on account of the plaintiff to the jury. Defendant's counsel excepted to the refusal to charge it in. terms. evidence. The evidence would not oblige the jury to infer that the purchase of the property was made on account of the plaintiff. The judg ment and order should be affirmed. Opinion by Davis, P. J.; Daniels, J. concurring. Brady, J., writes an opinion in favor of modifying the judgment and allowing only the price paid for the goods at Sheriff's sale, and interest to time of trial. ASSIGNMENT OF CHOSE IN TERM. FIRST DEPT. The Court also refused to charge in these words, “Where property is sold under execution and is bought in by the owner, the measure of damages is the amount which such property brings upon such sale," on the ground that there was no evidence on N. Y. SUPREME COURT. GENERAL which to base such a proposition, but stated that the question whether it was purchased for the plaintiff's benefit would be left to the jury. Defendant's counsel excepted. The appeal papers also show that defendant moved for a new trial on the minutes, but show no special grounds of such motion. Robert S. Green, for applt. Charles E. Miller, for respt. Held, The exceptions were not well taken. That the measure of damages when property is sold on an execution, and bought in by, or on account of the owner, in an action by the owner to recover damages, is the amount paid and interest. That the Court charged substantially the request, and defendant had no right to insist on the precise language, as it contained two alternatives, to one of which there is no pretence that it applied. The motion for a new trial was too indefinite. It is the duty of counsel on such motion to point out the ground of error, whether upon the exceptions, or upon the ground that the verdict is against the weight of Vol. 5-No. 2*. David Risley, applt., v. The Phonix Bank of the City of New York, respt. Decided July 6, 1877. An assignment of a chose in action by parol is valid. No liability is established against a drawee of a check unless there is an acceptance of it. A check has been said to be a bill of exchange payable on demand. Appeal from a judgment dismissing the complaint at the Circuit. The plaintiff's complaint contained three causes of action. First, upon a a check of which the following is a copy: "BANK OF GEORGETOWN, S. C., GEORGETOWN, May 20, 1861. Pay to the order of David Risley Ten thousand dollars. "J. G. HENING, President. "To PHOENIX BANK, After first alleging that defendant had funds of the Bank of Georgetown at the time exceeding $10,000, |