The scheme of a lottery contained a stationary prize for the
first drawn number on each of twelve days during which the drawing
was to continue, and the first drawn number on the tenth day was to
be entitled to $30,000, payable in part by three hundred tickets,
from Nos. 501 to 800 inclusive. No. 623, one of the three hundred
tickets to be given in part payment of the said prize, was drawn
first on that day, and decided to be entitled to the prize of
$30,000. After the drawing for the day was concluded, the managers
reversed this decision and awarded the prize to No. 4760, which was
drawn next to No. 623, and had drawn a prize of $25, which they
decreed to No. 623.
In drawing the same lottery, it was discovered on the last day
that the wheel of blanks and prizes contained one blank less than
ought to have been put into it, and to remedy this mistake an
additional blank was thrown in.
In an action brought by the managers against a person who had
purchased the whole lottery for the purchase money, it was held
that these irregularities did not vitiate the drawing of the
lottery, the conduct of the managers having been
bona fide
and the affirmance of their acts not furnishing any inducement to
the repetition of the same mistake nor any motive for misconduct of
any description.
Quaere whether the ticket No. 623 or No. 4760 was
entitled to the prize of $30,000?
MR. CHIEF JUSTICE MARSHALL delivered the opinion of the
Court.
The defendant was the purchaser of the first class of a lottery
to be drawn in the City of Washington, conformably to a scheme
agreed on between the plaintiffs, who had been appointed managers,
and himself, and the declaration is on the penalty of the bond
given for the sum of $10,000, conditioned for the performance of
articles entered into between them, one of which was that he should
pay the said sum of $10,000 to the plaintiffs within sixty days
after the lottery should be completed.
The defendant prayed oyer of the bond, and of the condition,
after which the following entry is made: "
Non damnificatus
pleaded, and issue, with leave to give the special matter in
evidence on both sides."
A jury was empanelled, who found a special verdict which states
at large the bylaw of the corporation authorizing the lottery, the
appointment of the managers, their sale of the first class to
Davis, the scheme of the lottery, and the agreement entered into by
him with them.
The verdict then states that the managers and the said Davis
proceeded to draw the said
Page 23 U. S. 397
lottery, in the course of which certain irregularities took
place which are detailed at large and the whole progress of the
lottery to its conclusion is stated.
The scheme contains a stationary prize for the first drawn
number on each of twelve days during which the drawing was to
continue, which were not put into the numerical wheel. The first
drawn number on the 10th day was to be entitled to $30,000, payable
in part by three hundred tickets, from numbers 501 to 800
inclusive. No. 623, one of the three hundred tickets to be given in
part payment of the said prize, was drawn first on that day, which
was immediately proclaimed by the managers, and the prize awarded
to it, by making the usual entry in a book kept for that
purpose.
After the drawing for that day was concluded, the managers
reconsidered their judgment, awarding the prize of $30,000 to No.
623, and reversed it. They then awarded the prize to No. 4,760,
which was drawn next to 623, and had drawn a prize of $25, which
prize they decreed to No. 623, and the original entries made in the
book for the registration of prizes, were transposed so as to
conform to this last determination.
On the last day, it was discovered that the wheel of blanks and
prizes contained one blank less than ought to have been put into
it, and to remedy this mistake, the managers and the said Davis
agreed to throw in an additional blank.
Page 23 U. S. 398
The verdict appears to have been intended not only for this
cause, but for another suit also, which was brought for the benefit
of the proprietors of a ticket which had drawn a prize of $10,000,
by the Corporation of Washington against one of the managers, on a
bond given for the performance of his duty. It concludes with the
following findings:
"If, upon the whole matter, the law be for the plaintiffs, so as
to entitle the plaintiffs to demand and have of the defendant in
this action, the sum of $10,000, in and by the agreement recited in
the condition of the bond given by the said Gideon Davis to the
said managers aforesaid, sixty days after the drawing of the said
lottery is completed, then we find for the plaintiffs the debt in
the declaration mentioned, and one cent damages, to be discharged
by the payment of $10,000."
"And if the proprietors of the said prize tickets, or the said
proprietors of the said ticket No. 1,037, be entitled to demand and
have the amount of the several prizes drawn against their
respective tickets in the course of the drawings as aforesaid,
after making the deduction of fifteen percent according to the said
scheme, and if the proprietors of the said ticket No. 1,037, be
entitled to demand and receive payment of the said prize of
$10,000, with such deduction as aforesaid against the defendant in
this action, then we find for the plaintiffs the further sum of
$8,500, to the use of the said purchasers and proprietors of the
said ticket No. 1,037, in equal shares and proportions aforesaid.
And if,
Page 23 U. S. 399
upon the whole matter, the law be for the defendant, we find for
the defendant."
The judgment of the court was in favor of the defendant, and
that judgment is now before this Court on a writ of error.
If, through the confusion which is introduced into this record
by the extreme irregularity of the proceedings, the Court can
perceive that the plaintiffs have a real cause of action which may
be barred by this judgment, the justice of the case requires that
it should be reversed although the great fault in pleading has been
committed by the plaintiffs in failing to assign any breach of the
condition of the bond on which the suit was instituted.
The suit is supposed to be brought for the recovery of the
$10,000 which the defendant engaged to pay sixty days after the
lottery should be drawn. This claim is resisted on the plea that
the lottery, in point of law, is not yet drawn; that the
irregularities stated in the verdict have vitiated the whole
transaction; that the lottery must be redrawn; and that no right of
action can accrue to the plaintiffs until sixty days after such
redrawing shall be concluded.
The right of the plaintiffs, then, to maintain this action
depends on the legality of the drawing as found in the special
verdict.
The defendant insists that two errors have been committed in
drawing the lottery which vitiate the whole transaction. The first
is the proceeding respecting the first drawn ticket on the 10th
day, and the last the circumstances in
Page 23 U. S. 400
relation to the deficient ticket in the wheel of blanks and
prizes.
If the ticket which was first drawn in fact ought to be
considered as entitled to the prize, as was first decided by the
managers, then no irregularity whatever took place in their
proceedings with regard to this ticket and this objection is
clearly at an end. If the last decision of the managers was right,
still there was no irregularity in the drawing unless the ticket
No. 623 ought to have been restored to the wheel and have taken its
chance for a blank or a prize. We are not satisfied that the
managers ought to have taken this course. The ticket was properly
put in the wheel, and was consequently liable to be drawn out of it
at any time. The scheme did not say that if any of those tickets
which were to be paid in part discharge of the stationary prizes
should itself draw the prize, it should be returned to the wheel
and redrawn, and great objections would without doubt have been
made to such a proceeding. It would have diminished the chance of
every remaining ticket for the undrawn prizes, and would have
constituted a much more valid objection than can be made to what
was actually done. Had No. 623 been replaced in the wheel and been
fortunate enough again to draw a large prize, it would have been
very difficult to sustain its title to that prize. This first
objection to the conduct of the managers is not, we think,
supported.
More difficulty is presented by the last. The mistake in the
number of tickets placed in the
Page 23 U. S. 401
wheel is undoubtedly an irregularity, but the effect it ought to
have on the lottery is not so obvious. The ticket not put in the
wheel was a blank, and consequently the omission did not diminish
the chances of the adventurers. The last drawn number would find no
corresponding ticket in the other wheel, but the chance of each to
be the last drawn was precisely the same as the chance of each
would have been to draw the blank, which ought to have been in the
wheel. Had the lottery been completed without attempting to correct
the error by throwing in another blank, the owner of the last drawn
ticket would have been in the same situation as if the blank had
remained in the wheel, and if he could be considered as having any
just cause of complaint, it would seem more reasonable that the
proprietors of the lottery should restore him the price of his
ticket than that the whole proceeding should be declared a nullity.
The general quiet is more consulted by considering his particular
contract as void for want of consideration than by annulling all
the rights acquired in the course of the drawing.
We do not think the case materially varied by placing the blank
in the wheel in the course of the last day. The tickets previously
drawn could not be affected by this act. The rights to prizes which
had been previously vested could not be devested by this act. It
could affect nothing which had been done, and was of importance to
those tickets only which remained in the wheel. It did not in the
slightest degree vary their
Page 23 U. S. 402
chance. There were the same number of prizes and the same number
of blanks, with this only difference -- had the blank not been put
in the wheel, the last ticket would have drawn nothing, whereas by
putting it in the wheel, it did not necessarily fall to the lot of
the last ticket. But the aggregate of chances remained precisely
the same. It appears to have been one of those unimportant
incidents which, having been found to be accidental, ought not to
have so essential and so disquieting an effect as unsettling all
that had been done would have.
The establishment of the lottery thus drawn can be attended with
no pernicious consequence. The transaction was, throughout,
perfectly fair, and if the managers have committed an error, it was
unintentional and unimportant. The affirmance of their acts can
furnish no inducement to the repetition of the same mistakes nor
any motive for misconduct of any description. But let it be settled
that the absence of a blank at the conclusion of a lottery shall
vitiate the whole transaction, and it is not difficult to perceive
how frequently motives may exist for producing that state of
things. However questionable may be the policy of tolerating
lotteries, there can be no question respecting the policy of
removing, as far as possible, from those who are concerned in them
all temptation to fraud.
The case of
Madison v. Vaughan, decided in the Court of
Appeals of Virginia, is supposed by the defendants to be an
authority for declaring that this lottery ought to be redrawn.
Page 23 U. S. 403
In that case, a number correspondent to the number of one of the
tickets was not put into the wheel, and two blanks more than the
proper number were put into it. Chancellor Wythe considered the
lottery as well drawn, but his decree was reversed in the Court of
Appeals. Supposing the decree of reversal to be correct, there is
some difference between the cases. One ticket not being in the
wheel, the proprietor of it did not partake of the chance to which
every adventurer had an equal right, and there being two more
blanks in the wheel than were allowed by the scheme, the chances of
every ticket were diminished. If, when all the numbers for the
tickets which had been put in the wheel were drawn, two blanks had
remained undrawn, it would be difficult to show that any injury had
been done to a ticket holder by the two additional blanks; but if
one or two prizes had remained undrawn, it would be obvious that
some ticket had drawn a blank which ought to have drawn a prize,
and this circumstance would have afforded stronger reason for the
decree that the whole proceeding must be considered as a
nullity.
The case of
Neilson v. Mott, 2 Binn. 301, was a suit
brought by the proprietor of a lottery against a purchaser of 500
lottery tickets on a note given by him for the purchase money which
was payable one day after the conclusion of the drawing of the
lottery. In the wheel containing the numbers of the tickets the
numbers of thirty-nine tickets were omitted, and in the same wheel
there were duplicates of thirty-nine numbers.
Page 23 U. S. 404
The proprietors had satisfied all the holders of the duplicate
numbers except four or five, and had offered to indemnify all by
public advertisement. A day or two before the last day's drawing,
the managers opened the wheel and discovered that there was one
number omitted and another put in twice, which they altered.
The defendant resisted the payment of his note because the
lottery was not legally drawn, the whole being vitiated by this
mistake.
Judgment was given for the plaintiff on the ground that the
drawing was not vitiated by these irregularities. Two of the Judges
were of opinion that as the defendant had sustained no injury by
them, he could not avail himself of them, and the third (the court
consisting of three) thought he had waived his right by not
returning his tickets and by receiving the prizes he had drawn.
The case of
Schinotti v. Bumstead, 6 D. & E. 646,
was an action brought by the holder of a ticket claiming a prize
allotted in the scheme to that which should be last drawn in the
lottery.
The number of one ticket had not been put into the wheel, and
the demand made by the owner of the ticket which was last actually
drawn was resisted on the ground that the ticket not yet drawn, for
which a correspondent blank remained in the wheel, must be the
last. Lord Kenyon said that as the plaintiff's ticket was the last
drawn, he is entitled to the prize; the
Page 23 U. S. 405
only competitor with him was the owner of a ticket which never
was drawn, and that person has no claim to it whatever.
So far as respects the omission to put the number of one ticket
into the wheel, this case bears an exact resemblance to
Madison
v. Vaughan, and is perhaps stronger than the case under
consideration. The omission of a ticket is at least as irregular
and as important as the omission of a blank, and yet in
Schinotti v. Bumstead, no suggestion was made against the
validity of the drawing.
Upon these authorities and upon the reason and substantial
justice of the case, this Court is of opinion that the lottery in
the special verdict mentioned has been legally drawn, and that the
defendant became liable to the plaintiffs, sixty days after it was
concluded, for the sum of $10,000. The judgment, therefore, in
favor of the defendant must be reversed. But the pleadings are too
defective to sustain a judgment on this verdict for the plaintiffs.
The verdict, therefore, and the pleadings up to the declaration
must be set aside and the cause remanded to the circuit court that
further proceedings may be had therein according to law.
Judgment reversed and a venire facias de novo
awarded.