upon the whole matter, the law be for the defend- 1825. ant, we find for the defendant."

The judgment of the Court was in favour 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 dollars 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

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1825. relation to the deficient ticket in the wheel of blanks and prizes.

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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

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wheel is undoubtedly an irregularity; but the 1825. 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

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1825. 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 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.

same.

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 and others 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.

In that case, a number corresponding 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 thirtynine tickets were omitted, and in the same wheel, there were duplicates of thirty-nine num

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