Brent

V.

Davis.

1825. bers. 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 and others, (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

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 et al. 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 and others, 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 dollars. The judgment, therefore, in favour 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 farther proceedings may be had therein according to law.

Judgment reversed, and a venire facias de novo awarded.

1825.

Brent

V.

Davis.

1825.

Corporation of Washing

ton

V.

Young.

March 18th.

[PRACTICE.]

The CORPORATION OF WASHINGTON, for the use of M'CUE and others, v. MoSES YOUNG.

Where the manager of a lottery, drawn in pursuance of an ordinance of the Corporation of the city of Washington, gave a bond to the corporation, conditioned " truly and impartially to execute the duty and authority vested in him by the ordinance;" held, that the person entitled to a prize ticket had no right to bring a suit for the prize against the manager, upon his bond, in the name of the corporation, without their consent.

THIS cause was argued by the same counsel with the preceding.

Mr. Chief Justice MARSHALL delivered the opinion of the Court.

The defendant was the manager of a lottery, drawn in pursuance of an ordinance of the Corporation of Washington, and gave his bond to the corporation in the penalty of 10,000 dollars, conditioned "truly and impartially to execute the duty and authority vested in him by the ordinance."

The declaration was on the penalty of the bond; after oyer of which, and of the condition, the defendant pleaded non damnificatus, upon which there was issue, with leave to give the special matter in evidence on both sides.

A jury was impanelled, who found the special verdict stated in the preceding case of Brent et

ton

V.

al. v. Davis, with this additional circumstance, 1825. which, having no connexion with that case, was Corporation not stated in it. The ticket No. 1,037, drew a of Washingprize of 10,000 dollars. It had been sold in quarter shares to several persons, but had remain- Young. ed in possession of the said Gideon Davis, who gave to each purchaser a certificate specifying the interest he held in the ticket. After the drawing was completed, but before the institution of this suit, Gideon Davis delivered the said ticket, No. 1,037, to the managers, towards securing and paying of the moneys stipulated to be paid by him under his contract for the purchase of the lottery.

This suit is instituted for the benefit of the purchasers of the ticket No. 1,037, without the consent of the corporation.

The judgment of the Court was in favour of the defendant, and the plaintiffs have sued out a writ of error to bring the cause into this Court.

The first inquiry is, into the right of the proprietors of the ticket No. 1,037, to sue in the name of the corporation without its consent. Their counsel insists, that the bond was taken for the benefit of the fortunate adventurers in the lottery, and that each has a right to use it. In support of this proposition, he has cited the case of M Mechen v. The Mayor and City Counsel of Baltimore, decided in the Court of Appeals of Maryland in the year 1806. That was a writ of error to a judgment confessed in the General Court, in an action brought by the corporation on a bond given by Thomas Yates and Archibald

ton

V.

1825. Campbell, with their sureties, conditioned for the performance of their duty as auctioneers. The Corporation of Washing-Court determined, that the suit was to be considered as brought by authority of the corpowarrant of attorney was confession was an admission of the right to recover the penalty of the bond; whether in their own right, or for the use of another, was immaterial.

Young. ration, although no shown; and that the

The opinion was also expressed, as stated by the reporters in a note, that every person whose money was withheld by the auctioneers, had a right to apply to the city council to direct a suit to be instituted on the bond; and the corporation could not, consistently with their duty under the ordinance, refuse such application, and might be enjoined by suit in Chancery to allow the person to use their name to prosecute his claim.

Had this been the direct judgment of the Court, it could not have sustained the pretensions of the proprietors of this ticket to maintain this suit under the circumstances which attend it. They had undoubtedly "a right to apply to the corporation to direct the suit, and the corporation could not, consistently with their duty, have refused such application," if the purpose of the bond was to secure the fortunate adventurers in the lottery, not to protect the corporation itself. But the propriety of bringing such suit was a subject on which the obligees had themselves a right to judge. If the proprietors of one prize ticket had an interest in this bond, the proprietors of every other prize ticket had the same in