A lottery has been defined to be “a distribution of prizes by lot or chance,” a definition which was accepted as correct by the Court in Taylor v. Smetten,[283] but which seems somewhat incomplete considering the complexity of the subject, see post p. 140 as to the tests of a lottery.
The setting up of lotteries has been declared illegal and penal by a long series of statutes commencing in the reign of William III. The full text of these statutes will be found in Chitty’s Statutes (title “Gaming”). It will be sufficient to summarise them for the purpose of the present work.
The Statute 10 & 11 William III., ch. 17, reciting that persons had of late fraudulently obtained great sums of money from the children and servants of merchants and traders by colour of patents or grants under the Great Seal, |Lotteries declared nuisances.| enacts by Section 1 that all such lotteries are common and public nuisances and all patents and licence for the same void.
(2.) That no person should after the 29th of December, 1699, publicly or privately exercise, keep open, show or expose to be played at, drawn at or thrown at, any kind of lottery by dice, lots, cards, balls, under penalty of £500.
(3.) All persons playing, throwing or drawing at such lotteries, or any other lotteries are liable to a penalty of £20.
By 9 George I., c. 19, a penalty of £200 is inflicted for setting up any lottery by virtue of a grant from any foreign prince or issuing any advertisement for the same; also for selling tickets within the kingdom for any foreign lottery.
It seems that the latter statute was evaded by persons issuing tickets for numbers in foreign lotteries and setting up duplicates of such lotteries in this kingdom. So by 6 George II., c. 35, a penalty of £200 is imposed for selling or procuring any ticket, receipt, chance, or number in any foreign lottery, or in or belonging to any class, part, or division of such lottery, or any ticket for any duplicate of any foreign lottery.
12 George II., c. 28, inflicts a penalty of £200 for setting up any office or place under the denomination of “a sale of houses, land, advowson, presentations, plate, jewels, ships’ goods, or other things by way of lottery,” |Advertising for advances to be distributed by way of lottery.| or for advertising for advances of sums of money amounting in the whole to large sums to be divided among the subscribers by chances of the prizes in some lottery allowed by Act of Parliament, or for exposing for sale any of the above things by any game, method or device whatsoever to be determined by any lot or drawing.
By section 2 the games of ace of hearts, pharaoh, bassett and hazard are declared to be games or lotteries within the meaning of the recited Act, with the same penalties for setting up the same.
By section 3 players or adventurers in any of the games mentioned in the Act, viz., ace of hearts, pharaoh, bassett and hazard, are liable to a penalty of £20; the same penalty is inflicted on persons taking part in any such lottery or sale.
Section 4 makes all sales by lotteries void, and the subject matter of the lottery is forfeited to the person who shall sue for the same.
Section 11 provides that it shall be lawful for joint tenants and tenants in common to make partition of their several interests by lot as though the Act had not been passed.[284]
By 13 George II., c. 19, sec. 9, passage and all other games with dice, backgammon excepted, are declared to be lotteries within the last Act, with similar penalties on persons who “maintain, set up or keep, any office, table or place,” for such games, and on persons who “play, set at, stake or adventure” in the said games.
By 18 George II., c. 34, secs. 1 and 2 impose similar penalties in respect of setting up a house or place for or allowing roly-poly, or playing thereat.[285]
By 42 George III., c. 119, section 1, all games or lotteries called “Littlegoes” are declared to be public nuisances.
By section 2 any person keeping any office or place to exercise, show, or expose, to be drawn or thrown at by dice lots, cards, balls, numbers, or figures, or any other contrivance, any lottery called a littlego or any other lottery, or any person suffering the same to be carried on in his or her house, is made liable to a penalty of £500.
Section 3. Persons not proceeded against for such penalties may be convicted as rogues and vagabonds within the meaning of 17 and 27 George II.
Section 4. Power is given to any justice of the peace upon information on oath to issue a warrant authorising any person (but if by night then in the presence of a constable) to break open and enter any house or place where they have information of any offence being committed within this Act, |Persons aiding and abetting in lotteries.| and to apprehend all offenders and all persons aiding and abetting in any such offence. The latter are punishable as rogues and vagabonds.
The section also provides that persons obstructing any such officer in the execution of his duty shall be liable to be “fined, imprisoned, and publicly whipped.”
Section 4. Persons employing others in carrying on such lotteries to be deemed rogues and vagabonds.
Section 5. No person is to agree to pay money or to deliver goods on any event or contingency relative to the drawing of any tickets, lots, or numbers in any such lottery under penalty of £100.
By 4 George IV., c. 60, s. 60, the word “place” is declared to extend to any place in or out of an enclosed building, whether on land or water.
By section 31 any person selling tickets in any lottery authorised by any foreign potentate, or to be drawn in any country, or any lottery not authorised by Act of Parliament, or publishing any scheme for the sale of tickets, is liable to a fine of £50, and to be dealt with as a rogue and vagabond.
4 George IV., c. 60, s. 41, provides that any person selling tickets in any lottery or publishing any scheme for the sale of tickets, shall be punished as a rogue and vagabond.
By 46 George III., c. 148, it is provided that all penalties under the former Act, or any act concerning lotteries, are to go to the Crown, and to be sued for only in the Attorney-General’s name.[286]
By 6 and 7 William IV., c. 66, a penalty of £50 is imposed on any person who prints or publishes any advertisement or other notice relating to the drawing of any foreign or other lottery not authorised by Act of Parliament, half the penalty to go to the informer, half to the Crown. The same penalty is imposed for printing advertisements of the sale of tickets or chances in any lottery.
By 8 and 9 Vict., c. 74, to save newspaper proprietors the annoyance of being sued for inadvertently advertising lotteries contrary to the Act, it is enacted that all penalties shall go to the Crown, and proceedings only instituted in the Attorney-General’s name.
By the Indian Penal Code, 294A, it is made an offence to keep any “office or place” for drawing any lottery not authorised by Government, also to publish any proposal to pay money or deliver goods on an event to be determined by drawing, &c.
The English cases will in most cases be applicable to the construction of the term “lottery” in the Indian law. And as to what constitutes “a place,” reference should be made to a subsequent part of this work on betting houses.
Of course a lottery is equally illegal when carried on in a private house or club as in a public place. The words of section 2, of 42 George III., put this beyond doubt. Thus, in Mearing v. Helling,[287] which was the case of an ordinary Derby sweep in a club, it was held that the drawer of the winner could not recover the stakes, the transaction being illegal.
To sum up the provisions of the statutes, the following seem to be offences constituted:—
(1.) Setting up a lottery. This, obviously directed against anyone presiding over a gambling establishment in the same way as subsequent Acts, makes it illegal to keep a bank in a gaming house, or a betting table, as against all comers.
In all the Acts, it will be noticed that this is the first offence specified.
(2.) The next offence is playing at any of the unlawful games[288]; in which matter the Lottery Acts differ from the Acts against gaming and betting houses. The leading provision in this matter is section 3 of the Act of William III., which is perfectly general in its terms. First it speaks of playing, &c., at “the said lotteries.”
If the Act had stopped there, it might have been contended that the players were only liable where the lottery was of the kind mentioned in section 2 of that Act; i.e., where there was somebody, as it were, holding the bank as against the rest; but the Act further goes on to say, “or other lotteries.” These words seem quite wide enough to include the common case of members of a club combining together to make a Derby sweep, which is quite a distinct case from a man getting up a lottery and inviting others to gamble with him; and so it seems to have been held in Mearing v. Helling.[287] See 12 George II., c. 28, s. 3.
However, it is not very likely that the law would be enforced in such a case; as we have seen above, the penalties could only be recovered at the suit of the Attorney-General. It seems clear also that the term “common nuisance,” “rogue and vagabond,” only applies to the case of a man who sets up a lottery; it does not apply to the adventurers.
(3.) Advertising lotteries at home or abroad.
(4.) Issuing or selling tickets at home or abroad.
(5.) It is clear that any one acting as agent for another in a lottery is equally guilty of “maintaining,” “setting-up,” or “exposing;” probably a stakeholder could be made liable as “aiding and abetting” within section 4 of 42 George III., c. 119.
(6.) With regard to foreign lotteries, the offences constituted are: (a) Setting up, or selling tickets for, lotteries by virtue of a grant from any foreign power. 9 Geo. I., c. 19. (b) Issuing tickets for numbers in foreign lotteries, and setting up duplicates of such lotteries. 6 Geo. II., c. 35. (c) Selling tickets for any lottery authorised by any foreign power, or in any lottery unless authorised by Act of Parliament, and publishing scheme for the sale of such tickets. 4 Geo. IV., c. 60, s. 41. (d) Publishing any advertisement relating to the drawing of any foreign lottery, or to the sale of tickets therein. 6 & 7 Wm. IV., c. 66.
In MacNee v. Persian Investment Corporation[289] the defendant company was formed for the purpose (inter alia) of carrying into effect an agreement, whereby the defendant company were to secure a monopoly of all operations in Persia relating to loans redeemable by drawings with bonuses and to lotteries, the promotion of lottery companies, and the sale of lottery tickets. The defendants’ prospectus stated the main object of the company to be to promote lottery loans on the lines in vogue on the Continent, and that five issues would be made annually in Persia. Held that the agreement was not illegal within 9 Geo. I., c. 19, which statute (semble except as to the sale of tickets) only applied to lotteries in this country. Nor was it within 6 & 7 Wm. IV., c. 66, seeing that it was a mere general intimation as to future lotteries, not an announcement of any particular lottery. It should be observed that it was consistent with the agreement and the prospectus that all the operations of the company should be conducted in Persia.
The following cases show what will constitute a lottery within the meaning of the Acts:—
In Allport v. Nutt[290] plaintiff sued for £100, having subscribed £1 to an adventure on the terms that a certain race being about to be run, the name of each of the horses entered for the running should be put on a separate card, and that all should be mixed up in a box; and the same with the names of the subscribers, which were put into another box; that one card should be drawn out of the horse box, and then one card out of the other. The person whose name should be drawn out after the horse which should afterwards win the race should win £100. Defendant pleaded that the transaction amounted to a lottery, or, in the alternative, to a wager under the Statute of Anne. In answer to this, plaintiff urged that the Lottery Acts only contemplated cases where unfair advantage was taken, relying for this argument on the recitals contained in the Statute of William III.
It was further argued that this transaction was a sweepstakes, and not a lottery. “The difference” (argued Serjeant Byles) “between a lottery and a sweepstakes is this: in a lottery, the party getting it up receives from the purchasers of tickets more than the value of the prizes; whereas in a sweepstakes all the money obtained from the subscribers is paid over to the winners; the party to whom the subscriptions are paid is a mere stakeholder.”
It was also contended that a lottery to be determined by the event of a legal horse-race was not prohibited; that “all the Lottery Acts contemplate a scheme whereby the actor is attempting to enrich himself at the expense of the community. The transaction in this case is nothing more than betting on a legal horse-race, no single individual staking more than £1.”[291] But the Court overruled all these arguments.
The words “all other lotteries,” and “any other lottery whatsoever,” used in the statutes, were wide enough to take in the present case, thus embracing what are commonly known as sweepstakes. “The mischief,” says Cresswell, J., “intended to be remedied is, the introduction of a spirit of speculation and gambling, tending to the ruin and impoverishment of families, and not, as suggested, the gain acquired by the individual. Suppose a horse were sold by tickets amounting in the aggregate to the true value, would not that be a lottery?”
This case was followed in Gatty v. Field,[292] where sums of 15s. were deposited by subscribers with a secretary previous to a horse-race. The name of each horse entered for the running was put on a separate card; these cards were mixed up in a box; the names of the subscribers were then written on other cards, and mixed up in another box. Cards were drawn alternately out of the horse box and out of the other box, just in the same way as in Allport v. Nutt; the winner being also determined in the same way. Held that this was illegal as a lottery.
In Morris v. Blackman,[293] an attempt was made to evade the law by setting up a lottery under the guise of distributing presents gratuitously and capriciously among the audience. Defendant kept a shop in the King’s Road, Brighton; in the window of which watches, pieces of plate, and other articles were exhibited, with a placard: “These presents, with others, will be given away by W. Morris at the conclusion of his entertainment at N. Rooms, Brighton, to-night and every evening during the week.” There was also a notice that tickets could be had within. A witness purchased of Jeffs, Morris’ assistant, who was a co-defendant, a ticket for a seat, and received a programme, in which it was stated, “at the conclusion of the entertainment Mr. Morris will distribute amongst his audience a shower of gold and silver treasure on a scale without parallel; besides a shower of smaller presents, which will be impartially divided amongst the audience and given away.” At the close of the entertainment, a quantity of these “presents” were placed on a table. Morris took up a butter-cooler, and awarded it to the occupier of seat 345. Other “presents” were distributed in the same way, the number of a seat being sometimes called out which had no occupier.
Held that as a question of fact the magistrates had rightly decided that this was a mere contrivance to conceal what was really a game or lottery within 42 George III., c. 119. Per Pollock, C.B.: “I have no doubt that not one of the audience had the least notion that the proprietor was to give the articles to any person he pleased: but that every one thought he had a chance of winning.”
In some of the cases, it has been sought to impeach the schemes of companies which contemplate the distribution of dividends or other benefits by lot.
Thus in O’Connor v. Bradshaw,[294] the objects of the Company were to raise subscriptions in small sums, to purchase land, erect dwellings thereon and allot them to its members on such terms as should enable them to become freeholders and obtain other privileges according to the number of shares for which they subscribed. Their right to obtain these privileges was not absolute, but depended on the result of a ballot according to which a small number only of the subscribers could obtain present possession of houses, &c., and the proportion of those who had obtained them during five years was very small.
The Lord Chief Baron was of opinion that this scheme constituted a lottery.
Baron Parke was of another opinion, thinking that the case came within section 11 of 12 George II., c. 28. He also put another illustration: “Suppose a number of persons were to buy a large collection of pictures some of which far exceeded others in value, might it not be decided by lot who should have the first choice?” But as the company was illegal on another ground, this point was not decided.
The next case of this kind is Sykes v. Beadon.[295] The association was formed on the principle of investing the subscriptions of the members and dividing the capital fund and profits among themselves by means of certificates convertible by annual drawings by lot into preference dividend bonds bearing interest with a bonus.
The Master of the Rolls without deciding the point finally, said (p. 185), “I have grave doubts whether this association is not illegal, as being within the Lottery Acts. Building societies are in a different position—they are loan societies. In an association such as this, it is not a case of loans to be returned, but of subscriptions to be divided. The subscriptions are to be divided among the subscribers by drawings by lot, and the prize is a bond with a bonus.” (At p. 190) “The holders of certificates are persons who subscribe money to be invested in funds which are to be divided among them by lot and divided unequally. That is the persons who get the benefit of the drawings get a bond bearing interest and a bonus which gives them different advantages from the persons whose certificates are not drawn, and it depends upon chance which gets the lesser or the greater advantage. It is, therefore, a subscription by a number of persons to a fund for the purpose of dividing that fund between them by chance and unequally.
“If that is not a lottery it is very difficult, at all events to my mind, to understand what a lottery is. It is called a division by lot, which means lottery. It says that the selections of certificates shall be by lot, and that is to be done in the ordinary way, by chance, and the benefits, as I said before, are unequal.”
The next company which it was sought to bring within the Lottery Acts was the Mutual Society—a sort of building society.[296] |Wallingford v. Mutual Society.| The objects of this society were to accumulate capital by means of monthly subscriptions from members to advance capital to the members in rotation, to secure payment of such advances, and to divide profits among the members. The mode of operation was to obtain subscriptions from members, to advance them money, at interest, upon certificates of appropriation. Such certificates should be given to every member on joining the society, and should certify his right to receive advances and a share of profits. Holders of life certificates were entitled to tontine bonuses. An “appropriation” or advance was to be made according to the number of certificates held by the member successful in obtaining the appropriation.
Appropriations were to be allotted in two ways, the first and every fourth one thereafter by drawing, free of any premium or interest, while those intermediate appropriations were allotted to the member or members tendering the highest premium for the same respectively. Appropriations were to be repaid by quarterly instalments.
It was urged that the constitution of this society was illegal under the Lottery Acts, as the benefits of the society were to be given to the members by drawings.
The Court were unanimous in holding that the society was not within the Lottery Acts. Per Lord Selborne: “One of those Acts plainly, on the face of its recitals (the enacting part not departing from the recitals) had reference to gambling transactions only; and in my judgment this was not a gambling transaction within the meaning of that Act.” The other had reference to persons who kept lottery offices at which the public were invited to pay for lottery tickets; and that Act could have no application to this case.
Per Lord Hatherley: “If this were held to be a lottery, nearly every building society and a great many other societies framed upon a similar footing might be found to fall within the enactments against lotteries.”
It does not seem easy to reconcile the dicta of the Master of the Rolls with the decision of the House of Lords in the above case. It is true the Master of the Rolls draws the distinction in the case of building societies that in them it is a case of loans to be returned and not of subscriptions to be divided. At the same time in both the cases seem to stand on this common ground—that certain unequal benefits of the society were to be distributed by lot or chance. Since this decision of the House of Lords it must be taken that there is nothing illegal in a company or partnership distributing dividends or profits by drawing lots. In Smith v. Anderson 15 Ch. D., 247, it was admitted that Sykes v. Beadon was overruled by the Wallingford case (but see post for the suggested text of a lottery).
In two cases it was contended that no scheme could amount to a lottery in which the holders of the tickets all get some value for their money, the amount or value being uncertain; but in both it was held that the element of uncertainty was sufficient to bring them within the Acts.
In Reg. v. Harris[297] defendant announced a bazaar to be conducted according to the principles of the Art Union. 5,000 tickets of 1s. each were to be sold; bonuses to the amount of £250 were to be distributed by lot. Every holder of a ticket got some bonus, but some bonuses were more valuable than others. Held by M. Smith, J., that the fact that every body got some bonus did not make it the less a lottery.
So in Taylor v. Smetten.[298] Defendant erected a tent, in which he sold packets containing 1 lb. of tea each. In each packet was a coupon entitling the purchaser to a prize, and this was publicly stated by the defendant before the sale. The purchasers were told to come next morning for their prizes, the nature of which were unknown to them. It is not stated in the report whether the prizes were drawn by lot, or whether they were awarded at the caprice of defendant. Held that this constituted a lottery. Hawkins, J., says: “If the coupon alone sealed up had been offered for sale, the purchaser taking his chance whether it represented a pen or a silver pencil case, or if a number written on a slip of paper were sold entitling the purchaser to some article the name of which was written against a corresponding number in an undisclosed list, could any one doubt these would have been lotteries? To use it is utterly immaterial whether a specific article was or was not conjoined with the chance.”
Nor is it essential that the nature of the prizes distributable should be publicly announced or advertised if the scheme itself is in the nature of a lottery. Hunt v. Williams.[299]
In Caminada v. Hulton[300] the legality of the racing coupons came before the Court. The case was of the ordinary kind, the defendant, to increase the sale of his paper, appended to each copy a coupon which the purchaser might, if he chose, fill up with the names of horses he thought likely to win one or more races, according to the conditions, and those persons who should be successful in selecting a given number of winners were to be entitled to a prize. It was held that this was not a lottery seeing that the competitors selected their own horses; there was no distribution by lot. This case will be noticed again in the chapter on Betting Houses.
It is suggested, not without some diffidence, that the following considerations form the test of whether a transaction is or is not a lottery. There must be an agreement or scheme contemplating that in consideration of subscriptions paid by the adventurers certain property (be it the fund subscribed or otherwise) is to be allotted to some one or more exclusively of the other adventurers, or distributed unequally among them; such allotment or distribution to be determined by lot. But it would seem material to notice:—
(1.) The agreement may be amongst the subscribers themselves, as in the case of a sweepstakes, see Allport v. Nutt,[301] or by the subscribers with a person who is getting the lottery up, perhaps for his own profit.
(2.) It must be part of the scheme that some of the adventurers should win and others should lose, as Lord Selborne observed in Wallingford v. The Mutual Society, that the statutes have reference to gambling transactions only. This is as in wagers, vide sup. p. 32.
(3.) The distribution of the prizes must be by lot or chance, herein differing from a wager.
(4.) The distribution of the prizes must be in consideration of property subscribed by the adventurers out of property belonging to them individually. There would appear to be nothing contrary to the Lottery Acts in joint owners dividing their property by lot. Sec. 11 of 12 George II., c. 28, specially exempts partition by lot among joint owners of land. But this is quite a different idea from making a contribution for the purpose of a division by lot.
(5.) The distribution of the prizes by lot must be the main substantial part of the scheme to which the adventurers subscribe. This may serve as the true explanation why companies whose regulations provide for a distribution of profits by lot are not within the Lottery Acts. In these cases we have commercial undertakings, whose main and primary object is to make money in a legitimate way, whether by profitable investment, as in Sykes v. Beadon, or trade enterprise. The distribution of these profits is, though important, purely secondary. It does not seem to be, as suggested by the Master of the Rolls in that case, a case merely “of subscriptions to be divided”; the profits had to be earned first. No doubt the line between the cases may sometimes be very fine. Several people agree to subscribe to buy a mare and then to raffle for it. This would seem clearly to be a lottery,[302] though secus if the agreement to raffle were made after the purchase. But suppose the agreement were to buy several mares for the purpose of breeding from them and to raffle for the offspring; this case would seem to stand on the same footing as the case of the companies; the primary object is the breeding of horses.
The question never seems to have been raised whether bazaars conducted on the now somewhat common system of selling things by drawing of lots do not infringe the Lottery Acts. Such bazaars are usually held for the purpose of raising money for a charity. The method of operation in many cases is for a certain number of subscribers to pay down a specified sum of money each, and then articles of a different value are distributed among those subscribers, by drawing of lots, some of the articles being of greater value than others, every subscriber getting something for his ticket. It is clear from the authorities above quoted, that the latter circumstance does not take the case out of the Lottery Acts. |“Fish ponds.”| So also articles are sold at these bazaars by raffle, or by a more modern institution called a “fish pond,” in which a quantity of articles of unequal value, and all under cover, are placed together; and the subscribers, with a sort of fishing rod and line and a hook attached at the end, endeavour to fish up some article, the value of which of course is uncertain until taken out of its cover. It seems difficult to avoid the conclusion that if such bazaars are conducted on any of the systems above alluded to they infringe the provisions of 12 George II., c. 28, section 1., which prohibits the sale or exposing for sale of goods, &c., by any method or device to be determined by lot or drawing, thus prohibiting any lottery being carried on under the guise of a sale. Section 3 of the same Act seems to apply to any person buying at any such sales—it inflicts a penalty of £20 on any adventurer in the games forbidden by the Act, and on any person taking part in such lottery or sale. Whether it would be wise or tolerable that the law should be enforced in every case in all its strictness is another question, but it would be wise for persons who get up these bazaars, even with the most charitable motives, and ladies who take stalls therein, to consider the Lottery Acts.
Of course as the statutes have imposed penalties for setting up lotteries it follows that an agreement which has for its object any transaction which amounts to a lottery or of which such transaction forms any part is tainted with illegality. |Results of illegality.| The chief results of a contract being illegal have been noted above in treating of bills and securities given for an illegal consideration. In some few cases the application of these rules to lottery transactions is illustrated.
In Fisher v. Bridges[303] defendant agreed to sell to plaintiff a piece of land at a certain price, for the purpose, as plaintiff well knew, that the land should be exposed for sale by lottery contrary to the statute.[304] Defendant having paid only a part of the purchase money after the sale was over, entered into a covenant with plaintiff to pay the balance. The defendant pleaded that the deed was given for an illegal consideration, viz., the sale by lottery.
The Court of Queen’s Bench held that as the deed was made after the illegal transaction was over, and did not appear by the plea to have been entered into in pursuance of the previous illegal agreement, it was not affected with the illegality; the grounds of their decision being that the purchase money and the sum secured by the bond were not necessarily identified.
But the Court of Exchequer Chamber reversed this judgment on the ground that “the covenant was given to secure the payment of a part of the purchase or consideration money for the lands the subject of the agreement, and no action could have been brought to recover the purchase money of the lands. The covenant springs from, and is a creation of, the legal agreement; and as the law would not enforce the original illegal contract, so neither will it allow the parties to enforce a security for the purchase money, which by the original bargain was tainted with illegality.
Another consequence of lotteries being illegal is seen in the right of the person who has paid money in respect of it to recover it back. Where the money has been deposited with a stakeholder, the series of cases ending with Diggle v. Higgs,[305] given under “Wager Contracts,” show that notice can in any case be given by the depositor to recall the money before it has been paid over by the stakeholder.
But where the deposit has in the first place been made with a person who sets up the lottery different considerations prevail. The general rule is that where money has been paid to a person in order to effect an illegal purpose with it the person making the payment may recover the money back before the purpose is effected. But where the illegal purpose has been fully or partially executed it cannot be recovered by the person who paid it, the rule “in pari delicto, etc.,” has been held to apply.[306] Therefore under the first part of the rule above stated it is clear that the depositor can always recover his money before the lottery comes off.
It seems however in a lottery to be the same as in the case of a wager, a depositor cannot sue the stakeholder without previously giving notice to him that his authority to pay the money over to the winner is determined.[307]
So in Gatty v. Field[308] where the plaintiff had deposited 15s. as subscriber to a lottery and sued the stakeholder as winner. |Demand necessary.| It was held that to entitle him to recover his own subscription it was necessary for him previously to demand it back from the stakeholder and so put an end to the illegal transaction.
But now to consider the case of the lottery having come off. The rule of “in pari delicto, etc.” does not of course apply where the delictum is not par.[309] Thus, in Browning v. Morris,[310] it was held that money paid by way of premium for the insurance of lottery tickets to the keeper of a lottery office was recoverable on the ground that the various statutes (at least so it would seem[311]) authorising the raising of money by State lotteries forbade the keeping of offices for the insurance of tickets, but imposed no penalty on the insurer—the statute had “marked the criminal.” It seems, however, that in the middle of the judgment it transpired that the plaintiff himself was a lottery office keeper, and therefore himself “in pari delicto”; consequently a non-suit was entered.
It would seem, therefore, that where a person sets up or maintains a lottery, receiving money on deposit in respect thereof the subscribers can at any time recover what they have paid. It is true that section 3 of the Act of William III. and section 3 of 12 Geo. II., c. 28 impose penalties on the adventurers. Still the statutes were passed for the protection of the latter, and the heavier penalty is imposed on the maintainer. In the case, however, of a sweepstakes, which is simply an agreement between the adventurers,[312] the same considerations do not seem to apply.
It is also clear both upon principle and on the authority of Allport v. Nutt[313] that no action will lie to recover money alleged to be due as the winnings of a lottery. |Illegal partnership or society.| In the case of Sykes v. Beadon,[314] the Master of the Rolls held a society to be illegal partly as infringing the Companies’ Acts and partly as infringing the Lottery Acts. His lordship distinctly opposed the dicta of Lord Cottenham in Sharp v. Taylor[315] to the effect that a suit could be maintained by a member of a firm formed for an illegal object for an account of profits realised by such illegal business on the ground that the Courts by affording such remedy in no way facilitated the illegal object, which had already been accomplished. The Master of the Rolls thought it made no difference that the illegal transaction was closed. “It is no part of the duty of a Court of Justice to aid either party in carrying out an illegal contract, or in dividing the proceeds arising from an illegal contract.”
On the other hand it will be remembered that in Beeston v. Beeston[316] the principle of Sharp v. Taylor was spoken of with approval: still the exact question under discussion was not then raised, and it is submitted that the remarks of Jessel, M.P., suggest the true principle. We shall deal with this subject in greater detail when we come to discuss partnership in Gaming Houses. See p. 162.