was commenced by the Bank against Bingham & Co. That action is firstly above entitled. Subsequently, and on December 16th, Bingham & Co, obtained from Brown a power of attorney to indorse the check. Pursuant thereto, the check was indorsed, and payment thereafter demanded of the Bank. This was refused, and thereupon the action secondly above entitled was commenced by Bingham & Co. to recover the amount of the check. Mr. Henry Bacon, with Mr. B. R. Champion, for appellant: Bingham & Co., having taken this certified check without having or requiring an indorsement of it by Brown, held it subject to all the defenses and equities existing between the original parties. Harrop v Fisher, 30 L. J. N. S. (C. P.) 283; Calder v. Billington, 15 Me. 398; Osgood v. Artt, 17 Fed. Rep. 575; Central Trust Co. v. First Nat. Bank, 101 U. S. 68 (25 L. ed. 876); Franklin Bank v. Raymond, 3 Wend. 69; Hedges v. Sealy, 9 Barb. 214; Raynor v. Hoagland, 7 Jones & S. 11, affirmed, 64 N. Y. 630; Muller v. Pondir, 55 N. Y. 325; Freund v. Importers & T. Nat. Bank, 76 N. Y. 352; Davis Sewing Mach. Co. v. Best, 7 Cent. Rep. 63, 105 N. Y. 59; Lynch v. First Nat. Bank, 9 Cent. Rep. 564, 107 N. Y. 179. Mechanics Bank v. New York & N. H. R. Co. 13 N. Y. 599; Clark v. Sisson, 22 N. Y. 312; Bush v. Lathrop, 22 N. Y. 535; Moore v. Metropolitan Nat. Bank, 55 N. Y. 41; Fairbanks v. Sargent, 5 Cent. Rep. 919, 104 N. Y. 108. The Bank has the right to maintain an action of claim and delivery for the certified check. The action of replevin, or claim and delivery, lies in favor of an acceptor of a draft, or the maker of a note for the draft or the note itself. 3 Wait, Pr. 712; 5 Wait, Act. and Def. 477; Graves v. Dudley, 20 N. Y. 76; Black River Ins. Co. v. New York S. L. & Trust Co. 73 N. Y. 262; Knehue v. Williams, 1 Duer, 597; Munsell v. Flood, 13 Jones & S. 460. So also trover lies. Murray v. Burling, 10 Johns. 172; Decker v. Mathews, 12 N. Y. 313; Develin v. Coleman, 50 N. Y. 531; Powell v. Powell, 71 N. Y. 71; Comstock v. Hier, 73 N. Y. 269; Thayer v. Manley, 73 N. Y. 305; Decker v. Mathews, 5 Sandf. 439. Whenever trover lies replevin in the detinet will lie. Evans v. Kymer, 1 Barn. & Ad. 528; Jones v. Fort, 9 Barn. & C_764; Barrett v. Warren, 3 Hill, 348; Ross v. Cassidy, 27 How. Pr. 416; Pierce v. Van Dyke, 6 Hill, 613. Messrs. Carpenter & Mosher, for rc The indorsement by Brown, subsequently. procured after full notice and actual knowl-spondents: edge of the fraud perpetrated by Brown in obtaining the certificate, does not make Bingham & Co. bona fide holders for value without notice. Harrop v Fisher, supra; Whistler v. Forster, 14 C. B.N . 248; Savage v. King, 17 Me. 301; Haskell v. Mitchell, 53 Me. 46; Clark v. Whitaker, 50 N. H. 474; Clark v. Callison, 7 Ill. App. 263; Story, Bills, & 201; Story, Prom. Notes, 120; Lancaster Nat. Bank v. Taylor, 100 Macз. 18; Gilbert . Sharp, 2 Lans. 412. The Bank is not estopped from asserting its rights to, and defense against, this check by reason of its certificate. Where money is paid on a raised check by mistake, neither part, being in fault, the general rule is that it may be recovered back as paid without consideration. But if either party has been guilty of negligence G. carelessness by which the other has been injured, the negligent party must bear the loss. Espy v. First Nat. Bank, 85 U. S. 18 Wall. 604 (21 L. ed. 947). Where bills of exchange were drawn, accompanied with a forged bill of lading, and were discounted by a bank, and subsequently accepted and paid by the acceptors, they cannot recover back from the bank the money paid by them, on the ground of the forgery of which the bank was ignorant at the time of this discount. Hoffman v. National City Bank, 79 U. S. 12 Wall. 181 (20 L. ed. 366). See Corn Exchange Bank v. Farmers Nat. Bank, ante, p. 559. Where treasury notes were payable at the treasury, their redemption did not retire them, and if forged, until the order of the Secretary of the Treasury for their redemption was made, it cannot be said that the government had accepted and adopted them as genuine. Cooke v. United States, 91 U. S. 389 23 L. ed. 237). If a bank accept a forged check, and make entry therefor to the depositor's credit, it is equivalent to cash payment; and the depositor, if innocent, The respondents have good title to the check, as against the appellant, and have a perfect right of action upon it. See 1 Daniel, Neg. Inst. §§ 769 a, 780, 781. Through inadvertence and mistake, the formality of indorsement was omitted, but equity looks upon that as done which ought to have been done, and supplies a remedy on that theory. is 1 Story, Eq. Jur. § 64 g. The act which chancery decrees to be done the same act that would have existed had it been done when it was agreed to be done. Jordan v. Cooper, 3 Scrg. & R, 564; Atwood v. has a vested right to the sum credited. Levy v. Bank of United States (Sup Ct. Pa.), 4 U. S. 4 Dall. 234 (1 L. ed. 814). A bank which has cashed a forged check presented by a clerk or agent having apparent authority to present it and receive the proceeds, is entitled to recover from the principal or employer, although the authority actually conferred did not extend to bank transactions. Levy v. Hastings First Nat. Bank (Neb.) 43 N. W. Rep. 354. A bank which pays a forged check upon compar ison of the signature with the genuine signature in its own books, and without requiring identification of the person to whom it pays, does so at its peril; and where the check is drawn upon another bank, which pays the amount to the bank cashing it, the latter will be liable to the bank upon which it is drawn, upon discovery that it is forged. First Nat. Bank v. State Bank, 22 Neb. 763. If a check payable to a payee named, or order (it having been delivered to the payee), comes into the hands of one not entitled to it, who forges the payee's indorsement, and passes the check to another person, who receives the money on it, such other person is not liable for such money to the drawer, but may be liable to the payee. Hensel v. Chicago, St. P. M. & O. R. Co. 37 Minn. 87. arises out of the rule of the law-merchant as to negotiable instruments. It is founded on the commercial policy of sustaining the credit of commercial paper. Being treated as currency Vincent, 17 Conn. 575; Hale v. Omaha Nat. Bank, 49 N. Y. 626; Husted v. Ingraham, 75 N. Y. 251; Gardener v. Pullen, 2 Vern. 394; Boardman v. Lake Shore & M. S. R. Co. 84 N. Y. 157; Ecans v. Wood, L. R. 5 Eq. 9; Paine v. Hutch-in commercial transactions, such instruments inson, L. R. 3 Ch. App. 388; Hughes v. Nelson, 29 N. J. Eq. 547; 1 Story, Eq. Jur. § 99 b; Smith v. Pickering, Peake, N. P. 69; Watkins v. Maule, 2 Jac. & W. 237; Bacon v. Cohen, 12 Smedes & M. 516. The indorsement made in pursuance of the original intention of the parties related back to the time when it should have been made,plicable to negotiable instruments which are and gave to Bingham & Co., even at law, the full rights of holders by indorsement at that time. Smith v. Pickering, supra; Wallace v. Hardacre, 1 Camp. 45; Anonymous, 1 Camp. 492; Baker v. Arnold, 3 Caines, 279; Watkins v. Maule, supra. The Bank is estopped by its certification to dispute its liability on the check. Merchants Nat. Bank v. State Nat. Bank, 77 U. S. 10 Wall. 604 (19 L. ed. 1008). See also U. S. Rev. Stat. § 5208; Bigelow, Estoppel, 3d ed. 388. This estoppel is quite independent of the indorsement of the check, and operates in favor of anyone who acts upon the faith of it. Freund v. Importers & T. Nat. Bank, 76 N. Y. 352. are subject to the same rule as money. If transferred by indorsement, for value, in good faith and before maturity, they become avail able in the hands of the holder, notwithstanding the existence of equities and defenses which would have rendered them unavailable in the hands of a prior holder. This rule is only apnegotiable according to the law-merchant. When, as in this case, such an instrument is transferred, but without an indorsement, it is treated as a chose in action assigned to the purchaser. The assignee acquires all the title of the assignor, and may maintain an action thereon in his own name; and, like other choses in action, it is subject to all the equities and defenses existing in favor of the maker or acceptor against the previous holder. Prior to the indorsement of this check, therefore, Bingham & Co. were subject to the defense existing in favor of the Bank as against Brown and the payee. Evidence of an intention on the part of the transferee to indorse does not aid the plaintiff. It is the act of indorsement, not the intention, which negotiates the instrument; and it cannot be said that the intent constitutes the act. Parker, J.,delivered the opinion of the court: The effect of the indorsement made after noAs against Brown, to whose order the check tice to Bingham & Co. of the Bank's defense was payable, the Bank had a good defense. must now be considered. Did it relate back to But it could not defeat a recovery by a bona the time of the transfer, so as to constitute the fide holder, to whom the check had been in- plaintiffs holders by indorsement as of that dorsed for value. By an oversight on the part time? While the referee finds that it was inof both Brown and Bingham & Co., the check tended both by Brown and the plaintiff that was accepted and cashed without the indorse the check should be indorsed, and it was supment of the payee. Before the authority to in- posed that he had so indorsed it, he also finds dorse the name of the payee upon the check that Brown made no statement to the effect was procured, and its subsequent indorsement that the check was indorsed; neither did the thereon, Bingham & Co. had notice of the defendants request Brown'to indorse it. There fraud, which constituted a defense for the was therefore no agreement to indorse. NothBank as against Brown. Can the recovery had ing whatever was said upon the subject. Be be sustained? It is too well settled by author- fore Brown did agree to indorse, the plaintiff ity, both in England and in this country, to bad notice of the Bank's defense. Indeed, it permit of questioning, that the purchaser of a bad commenced an action to recover possession draft or check who obtains title without an in- of the check. It would seem, therefore, that, dorsement by the payee holds it subject to all having taken title by assignment,-for such equities and defenses existing between the was the legal effect of the transaction, by reaoriginal parties, even though he has paid full son of which the defense of the Bank against consideration, without notice of the existence Brown became effectual as a defense against a of such equities and defenses. Harrop v. Fish- recovery on the check in the hands of the er, 30 L. J. N. S. (C. P.) 283; Whistler v. Fors-plaintiffs as well,-Brown and Bingham & Co. ter, 14 C. B. N. S. 24; Savage v. King, 17 Me. 301; Clark v. Callison, 7 Ill. App. 263; Haskell v. Mitchell, 53 Me. 468; Clark v. Whitaker, 50 N. H. 474; Calder v. Billington, 15 Me. 398; Lancaster Nat. Bank v. Taylor, 100 Mass. 18; Gibert v. Sharp, 2 Lans. 412; Hedges V. Sealy, 9 Barb. 214-218; Franklin Bank v. Raymond, 3 Wend. 69; Raynor v. Hoagland, 7 Jones & S. 11; Muller v. Po dir, 55 N. Y. 325; Freund v. Importers & T. Nat. Bank, 76 N. Y. 352; Central Trust Co. v. First Nat. Bank, 101 U. S. 68 [25 L. ed. 876]; Osgood v. Arti, 17 Fed. Rep. 575. The reasoning on which this doctrine is founded may be briefly stated as follows: The general rule is that no one can transfer a better title than he possesses. An exception | could not by any subsequent agreement or act so change the legal character of the transfer as to affect the equities and rights which had accrued to the Bank; that the subsequent act of indorsement could not relate back so as to destroy the intervening rights and remedics of a third party. This position is supported by authority. Harrop v. Fisher, Whitler v. Forster, Sarage v. King, Haskell v. Mitchell, Clark v. Whitaker, Clark v. Cullison, Lancaster Nat. Bank v. Taylor, Gilbert v. Sharp, cited supra. Watkins v. Maule, 2 Jac. & W. 243, and Hughes v. Nelson, 29 N. J. Eq. 547, are cited by the plaintiff in opposition to the view we have expressed. In Watkins v. Maule the holder of a note obtained without indorsement collected it from the makers. Subsequently the makers complained that the note was only given as a guaranty to the payee, who had become bankrupt. Thereupon the holder refunded the money and took up the note, upon the express agreement that the makers would pay any amount which the holders should fail to make out of the bankrupt payee's property. The makers were held liable for the deficiency. Hughes v. Nelson did not involve the precise question here presented. The views expressed, however, are in conflict with some of the cases cited; but we regard it, in such respect, as against the weight of authority. Freund v. Importers & T. Nat. Bank, supra, does not aid the plaintiff. In that case it was held that the certification by the bank of a check in the hands of a holder who had purchased it for value from the payee, but which had not been indorsed by him, rendered the bank liable to such holder for the amount thereof. By accepting the check the bank took, as it had the right to do, the risk of the title which the holder claimed to have acquired from the payee. In such case the bank enters into contract with the holder by which it accepts the check and promises to pay it to the holder, notwithstanding it lacks the indorsement provided for; and it was accordingly held that it was liable upon such acceptance, upon the same principles that control the liabilities of other acceptors of commercial paper. Lynch v. First Nat. Bank, 107 N. Y. 183, 9 Cent. Rep. 564. But one question remains. The learned referee beld, and in that respect he was sustained by the general term, that the Bank by its certification represented to everyone that Brown had on deposit with it $5,000; that such amount had been set apart for the satisfaction of the check, and that it should be so applied whenever the check should be presented for payment; and that, Bingham & Co. having acted upon the faith of these representations, and having parted with $5,000 on the strength thereof, the Bank is estopped from asserting its defense. The referee omitted an important feature of the contract of certification. The Bank did certify that it had the money, would retain it and ap ply it in payment, provided the check should be indorsed by the payee. Lynch v. First Nat. Bank, supra. If the check had been transferred to plaintiffs by indorsement, the defendant would have had no defense, not because of the doctrine of estoppel, but upon principles especially applicable to negotiable instruments. Mechanics Bank v. New York & N. H. R. Co. 13 N. Y. 633. If the maker or acceptor could ever be held to be estopped by reason of representations contained in a negotiable instrument, he certainly could not be in the absence of a compliance with the provisions upon which he had represented that his liability should depend. But it is well settled that the maker or acceptor of a negotiable instrument is not estopped from contesting its validity because of representations contained in the instrument. In such cases an estoppel can only be founded upon some separate and distinct writing or statement. Clark v. Sisson, 22 N. Y. 312; Bush v. Lathrop, Id. 535; Moore v. Metropolitan Nat. Bank, 55 N. Y. 41; Fairbanks v. Sargent, 104 N. Y. 108, 5 Cent. Rep. 919; Mechanics Bank v. New York & N. II. R. Co. supra. The views expressed especially relate to the action of Bingham & Co. against the Bank, and call for a reversal of the judgment. We are of the opinion that the action brought by the Bank against Bingham & Co. to recover possession of the check cannot be maintained, and in that case the judgment should be affirmed. All concur, except Haight, J., not sitting. ALABAMA SUPREME COURT. YELLOWSTONE KIT, Appt., v. STATE OF ALABAMA. (....Ala.....) the 1. The word "lottery," within meaning of statutes against carrying on NOTE.-Lottery defined. A lottery is a scheme by which a result is reached by some action or means taken, in which result man's choice or will has no part, and which human reason, foresight, sagacity or design cannot enable him to know or determine until the same has been accomplished. See note to People v. Elliott (Mich.) 3 L. R. A. 403, for a full discussion of the offense. Where for a pecuniary consideration it is determined by lot or chance, according to some scheme, what and how much he who pays the money is to have for it, it is a lottery. Hull v. Ruggles, 56 N. Y. 424; State v. Clarke, 33 N. H. 35; Wilkinson v. Gill, 74 N. Y. 66. It is a scheme for the distribution of prizes by chance (Conn. v. Man erfield, 8 Phila. 459; State v. Lovell, 39 N. J. L. 461; Randie v. State, 42 Tex. 585), ■ valuable consideration being given for the chance to draw the prize. United States v. Olney, 1 Deady, 464, 1 Abb. U. S. 275. See Anderson, Law Dict. Lottery, to which we are indebted. 7 L. R. A. lotteries, embraces only schemes in which a valuable consideration of some kind is paid directly or indirectly for the chance to draw a prize. 2. Distributing prizes by lot or chance to holders of tickets given away is not carrying on a lottery, although it may be done with the view of drawing a large crowd together in the hope of profit from such of them as may choose to buy A game in which a price is paid for the chance of a prize is a lottery. Com. v. Sullivan, 5 New Eng. Rep. 713, 146 Mass. 142; Com. v. Wright, 137 Mass. 250. The sale of "policies" entitling the purchaser to receive money on the drawing of numbers in a lottery is the sale of a lottery ticket. Smith v. State, 10 Cent. Rep. 527, 68 Md. 168. What constitutes a "lottery." The word "lottery" imports a game of hazard. France v. State, 6 Baxt. 478. "Auction pools," "French pools " and "combination pools" upon horse races are "lotteries," within the New Jersey statutes. State v. Lovell, 39 N. J. L. 458. Where chances are sold and the distribution of prizes is awarded by lot, it constitutes a "lottery." Buckalew v. State, 62 Ala. 334; Bell v. State, 5 Sneed, 507. It is not necessary that the lot should be actually cast or drawn by the managers, or that the party medicines from the distributor, or tickets to performances given by him, or to pay for scats in the tent where the prizes are selected, where no payment for any purpose is necessary as a condition of receiving a prize. (January 31, 1890.) Defendant distributed articles of value by lot cr chance, but holders of tickets paid no consideration of any kind for their tickets; in other words, no consideration of any kind was paid for the right of participating in the distribution of prizes. Such a scheme is not a lottery within the letter or spirit of § 4068 of APPEAL, by defendant from a judgment of the Code of 1886. the City Court of Mobile rendered against him after trial of an indictment charging him with the offense of setting up or being concerned in setting up or carrying on a lottery. Reversed After the evidence was all in defendant requested the court to instruct the jury that, if they believed the evidence, they must find him not guilt, The court refused to give such charge and defendant excepted. Further facts appear in the opinion. United States v. Olney, 1 Abb. (U. 8.) 275. To constitute a lottery, there must be two elements: first, there must be something paid for the ticket or chance to draw a prize; and second, there must be a distribution of prizes by lot or chance. Almshouse v. American Art Union, 7 N. Y. 228; Bishop, Stat. Cr. § 952; State v. Shorts, 32 N. J. L. 398; Boyd v. State, 61 Ala. 177; Buckalew v. State, 62 Ala. 334; Eslava v. State, 44 Ala, 406; Salomon v. State, 28 Ala. 83; Messrs. McCarron & Lewis and B. M. Kohn v. Koehler, 96 N. Y. 362, 48 Am. Rep. Aller. for appellant: paying should personall; participate in the drawing. Fleming v. Bils, 3 Or. 286. The distribution of prizes by lot tc the holders of tickets given to subscribers to a newspaper is a "lottery" scheme. State v. Mumford, 73 Mo. 647. A scheme of a benevolent association to provide for the care and maintenance of the state insane, to distribute among ticket-holders to a public entertainment prizes by raffle or other similar schemes, is a "lottery." State v. Overton, 16 Nev. 136. A sale of envelopes containing, with other things, a card indicating an article to be purchased for a sum of money is a violation of the Statute against sale of lottery tickets. Dunn v. People, 40 11 465. The issue of bonds by a foreign government to obtain a loan, the government obliging itself to pay any additional sum over the principal and interest, and the premium named, in case the number of the bond purchased should draw a prize, is not an "illegal lottery," within the New York statutes. Kohl v. Koebler, 96 N. Y. 362. A sale of certificates of subscription to a scientific and art association, which entitles holders to any articles which may be awarded to them by lot, is not a "lottery." Boyd v. State, 61 Ala. 177. See Tuscaloosa Scientific & Art Asso. y State, 58 Ala. 54. Keno, although a game of chance, and therefore unlawful, is not a lottery." Eslava v. State, 44 Ala. 406; United States v. Hornibrook, 2 Dill. 229. A raffle is not a "lottery" in the sense of the South Carolina statute. State v. Pinchback, 2 Mill. Const. Rep. (S. C.) 128. For earlier decisions, see Com. v. Thacher, 97 Mass. 583; Den v. Shotwell, 23 N. J. L. 465, 24 N. J. L. 789; Rolfe v. Delmar, 7 Robt. 80. Gift enterprise, a lottery. A gift enterprise is a lottery. State v. Bryant, 74 N. C. 207; State v. Shorts, 32 N. J. L. 398. A ticket to admit to a grand concert and to whatever gift may be awarded to its number is a lottery ticket. Negley v. Devlin, 12 Abb. Pr. N. S. 210; Ex parte Blanchard, 9 Nev. 101. A ticket given for $5 in payment for a steel engraving and admission to entertainments at the close of which money in presents was to be distributed to the purchasers, is a scheme for the distribution of prizes by chance. Thomas v. People, 59 111. 160; Almshouse v. American Art Union, 32 How. Pr. 341, 7 N. Y. 228; People v. Ameri an Art Union, 7 N. Y. 240; People v. American Art Union, 13 Barb. 577; Bennett v. American Art Union, 5 Sandi. 614. 628; Com. v. Wright, 187 Mass. 250, 50 Am. chance is a lottery. Randle v. State, 42 Tex. 580. See Hull v. Ruggles, 56 N. Y. 424; Swain v. Bussell, 10 Ind. 438. A scheme for the disposal of two lots where the chance of obtaining a reserved or prize lot forms part of the inducement of the purchase is a lottery. United States v. Olney, 1 Abb. (U. S.) 275. Selling candy in boxes, each box represented as containing a prize, the purchaser to select his box, is in the nature of a lottery. Holoman v. State, 2 Tex. App. 610; Eubanks v. State, 3 Heisk. 488; Hull v. Ruggles, 56 N. Y. 424. The sale of packages of candy, in some of which coupons were placed payable at the counter on presentation, is a distribution of prizes by chance, and heuce a lottery. Com. v. Sherid (Pa.) 10 Phila. 203; State v. Lumsden, 89 N. C. 572. Mailing circulars an offense under U. S. Rev. Stat. The mailing of circulars describing a scheme for drawing prizes by chance or by lot, by which a city or foreign government induces the purchase of Its bonds, is a mailing of lottery circulars, and as such unlawful. United States v. Zeisler, 30 Fed. Rep. 499. The offense is complete though the circulars are sent in reply to a detective's decoy letter. United States v. Moore, 19 Fed. Rep. 39. But § 3894, U. S. Rev. Stat., does not apply to the naked sending to the post office (United States v. Dauphin, 20 Fed. Rep, 625); for before the custody of the letter by the postoffice or its agents, and after their voluntary termination of such custody, the rights of the proprietor are under the protection of the local law. lbid. A letter addressed to a fictitious name is within the statute prohibiting the deposit in the mail of a lottery circular. United States v. Duff, 19 Blatchf. 9. As to distinction between letter and circular, see United States v. Noelke, 17 Blatchf. 554, The provisions of U. S. Rev. Stat., giving to the Postmaster-General power to return registered let ters and suspend payment of money orders addressed to those conducting lotteries, are constitu tional. Dauphin v. Key, MacArth. & Mack. 23. An indictment for sending "500 circulars" charges but one offense. United States v. Patty, 9 Biss. 429. But where it charges them as delivered on different days, it is bad for duplicity. Ibid. Legislation on the subject of lotteries. There is no law in Michigan which prohibits or punishes the receiving of a prize drawn in a lottery, if it is voluntarily paid. People v. Watson, 75 Mich. Every scheme for the distribution of prizes by 582. Rep. 806; Den v. Shotwell, 23 N. J. L. 465; | blanks by chance; a game of bazard in which Johnson v. State, 83 Ala. 65. Messrs. William L. Martin and Leslie B. Sheldon for the State. Somerville, J., delivered the opinion of the court: small sums are ventured for the chance of obtaining a larger value." So the American Cyclopedia thus defines a lottery: "A sort of gaming contract, by which, for a valuable consideration, one may, by favor of the lot, obtain a prize of a value superior to the amount of value of that which he risks." In Buckalew v. State, 62 Ala. 334, it was said, after citing Webster's definition, that "whereever chances are sold, and the distribution of prizes determined by lot, this, it would seem, is a lottery. This, we think, is the popular acceptation of the term." The defendant was convicted of the offense of carrying on a lottery in this State. The case turns largely on what is to be taken as a proper definition of the word "lottery," within the meaning of the Statute and the Constitution of Alabama. Code 1886, § 4063, 4069; Const. 1875, art. 4, § 26. The word can not be regarded as having any technical or In Bishop on Statutory Crimes, § 952, it is legal siguitication different from the popular said: "A lottery may be defined to be any one. It is defined by Webster as a dis- scheme whereby one, in paying money or other tribution of prizes by lot or chance." This valuable thing to another, becomes entitled definition is substantially adopted by Bouvier to receive from him such a return in value, or and Rapalje in their Law Dictionaries. Wor-nothing, as some formula of chance may de cester defines it as "a distribution of prizes and termine." But, under How. Stat. (Mich.), §931, setting up, 401; Riggs v. Adams, 12 Ind. 199; Lucas v. McBlair, and promoting a lottery for money is prohibited. 12 Gill & J. 1. People v. Elliott, 3 L. R. A. 403, and note. The Louisiana Constitution of 1879, expressly recognizing as a contract, except as to its monopoly clause, the charter of the Louisiana State Lottery Company which had been previously repealed, revived that charter as therein modified. New Orleans v. Houston, 119 U. S. 265 (30 L. ed. 411). The clause in the charter, limiting taxation upon It to $40,000 per annum, is thus by constitutional provision made a contract which the Legislature cannot impair, although the subject matter would be otherwise within the police power of the State. Ibid. Where the Legiclature grants a lottery franchise, and authorizes its sale, the purchaser may for a valuable consideration permit others to enjoy a part of the protits, but cannot assign the franchise so as to enable each assignee to conduct a separate lottery. Lawrence v. Simmons (Ky.)1 L. R. A. 172. See, as to the history of legislation on this subJect, Anderson, Law Dict. Lottery, 640. A scheme to aid a benevolent association in so far as it authorized a lottery or allowed the sale of lottery tickets is unconstitutional. Ex parte Blanchard, 9 Nev. 101. See State v. Phalen, 3 Harr. (Del.) 441. In Texas the Constitution prohibits the authorization of a lottery by the State, and the sale of lottery tickets within the State, and renders nugatory legislation as to a gift enterprise and the license tax imposed on such business. Randle v. State, 42 Tex. 580. Under the Tennessee Code the vending or attempt to vend a lottery ticket is made a misdemeanor, and a due bill given by an agent to his principal on account of money received for sale of tickets cannot be enforced. Lanahan v. Pattison, 1 Flipp. 410. Early cases construing statutory prohibitions of lotteries and sale of lottery tickets. Terry v. Olcott, 4 Conn. 442; Williams v. Woodman, 8 Pick. 78; Com. v. Lottery Tickets, 5 Cush. 369; Com. v. Lotteries, being injurious to the public morals, Harris, 13 Allen, 534; Freleigh v. State, 8 Mo. 606; cannot be made the subject of a contract; and State v. Sterling, 8 Mo. 697; Ridgeway v. Underhence a lottery franchise is not under the protec-wood, 4 Wash. C. C. 129; Van Doren v. Staats, 3 N. tion of the Federal Constitution (Moore v. State, J. L 887; Hunt v. Knickerbacker, 5 Johns. 327; 48 Miss. 147); nor the State Constitution. Mississippi Mount v. Waite, 7 Johns. 434; Butler v. Kent, 19 Society of Arts and Sciences v. Musgrove, 44 Miss. Johns. 223; McLaughlin v. Waite, 9 Cow. 670: People v. Warner, 4 Barb. 314; Phalen v. Com. 1 Rob. (Va.) 713. 820. The charter of a lottery company is not within the constitutional protection as to the impairment of the obligation of contracts. Stone v. Mississippi, 101 U. S. 814 (25 L. ed. 1079). The right to suppress lotteries is governmental, to be exercised at all times in the discretion of the government. Ibid.; Boyd v. Alabama, 94 U. S. 615 (24 L. ed. 302). The contracts which the Constitution protects are such as relate to property rights, not governmental rights. Boyd v. Alabama, supra. An Act granting to commissioners the right to sell lottery tickets to raise a fund for the repair of a turnpike is not illimitable as to time. Phalen v. Virginia, 49 U. S. 8 How. 163 (12 L. ed. 1000). Constitutional and statutory prohibition. A constitutional provision inhibiting lotteries or the sale of lottery tickets is prohibitive on those subjects. State v. Woodward, 89 Ind. 110. Such prohibition is within the exercise of the police power, in the interest of public morals, and is constitutional. Ibid., following Stone v. Mississippi, 101 U. S. 814 (25 L. ed. 1079), and overruling Kellum v. State, 66 Ind. 588. See Whitney v. State, 10 Ind. Authorization of lotteries, and regulation by statute. No uncertain or doubtful terms or provisions in a charter will be construed to authorize a lottery scheme. Boyd v. State, 53 Ala. 601. An express authorization by a constitutional law to maintain a lottery may be exercised although the general laws prohibit lotteries. Broadbent v. Tuskaloosa Scientific & Art Asso. 45 Ala. 170. A lottery franchise expires when the amount to be raised is provided for by contract, whether the whole amount has been paid to the beneficiary or not. State v. France, 72 Mo. 41. See Phalen v. State, 12 Gill & J. 18. In such an association the designation of things which may be distributed by lot excludes other things not comprehended in the franchise; hence money cannot be substituted for the award drawn. Marks v. State, 45 Ala. 38. The punitory section of the Louisiana Act as to sale of lottery tickets was not abrogated by the Constitution of that State declaring void all laws |