Biddis v. James

An edition of ed°,Inderthe>hsl1’" authority °f the^ denee as well of thelwiHicíaws'it contains. a suit to recover a prize *he *°0f^ for complying tiíe'^eeretaiVs office and copied executive midence^fgainsTthe proof that he had iTonlTor'deJmsited fI,e scheme: it be* mg at the same time shewn that tllere was n0 other bond or scheme in th$ The oath of a temied the°dra"w!ns °f »lottery, is the best evidence that a particular "ernta pri^T * A ticket in a lottery, sold after the time limited the sales confers no right prize that may be !t-

IN ERROR. E iRROR to the Common Pleas of Wayne county. The action in the Court below, was brought by Otto fames against George Biddis administrator of yohn Biddis, to recover 10,000 dollars, the amount of a prize drawn by the plaintiff in a lottery made by the intestate in his life time, but not drawn till after his death. 7 , , , . - • , The act under which the lottery was formed, was passed on the 20th yanuary 1806, entitled “ An act “ fohn Biddis to vend his patent rights, for manufacturing “ potatoe starch, sago and hair powder, and for opening or “ reducing offcast woollen clothing to wool;” and contained but one section, in the following words: “ That it shall be “ lawful for yohn Biddis to vend his aforesaid patent rights “jCor eighteen months^from the date hereof, according to a “ plan to be by him lodged with, and to be approved of by “ the Governor of this Commonwealth; he the said John Biddis giving the necessary sureties for the faithful per- “ formance in the premises, and for a full and complete dis- * . . _, , - “ closure and exemplification of his patent rights, at the end “ of the said term of eighteen months, any law to the con“-trary of this act notwithstanding.” On the trial of the cause, it appeared that fohn Biddis submitted the plan of a lottery to the governor, and that it was approved by him within eighteen months of the date of i , cvt tv j ?• • i* ,7 r . •!! . - _ _ the law. John Biddis in his hie time signed about 1000 tickets, and authorized his son John to sign tickets in his name, which he did in the life time of his father to the - , ___ rm t , • amount of about 35 or 37,000 more. I he intestate died m March 1807, and after his death the defendant and the family concluded to proceed and complete the business. On the 8th February 1808, the governor commissioned persons to superintend the drawing of the lottery; and in that fohn Biddis the son, with the concurrence of the defendant, signed tickets in the name of his father to the amount, including those previously signed, of about 124,000, of which between 80 and 100,000 were put into the wheel. The ticket of the plaintiff, as was the case with all those produced, bore date the 1st April 1806. The drawing commenced on the 23d February 1808, and ended on the 1st August 1809, on which day the plaintiff’s ticket drew a prize of 10,000 dollars. Many witnesses were examined to shew that the plaintiff’s ticket was issued after the expiration of the eighteen months, and to prove that the signature was not that of John Biddis the intestate; other witnesses were produced to repel this testimony, and to shew that James had purchased this and seventy-nine other tickets, without any knowledge of the defendant’s proceedings. The plaintiff in the course of the trial offered, 1. a printed copy of the act of 20th January 1806, contained in a pamphlet of the laws, purporting to have been printed by Francis Bailey in the year 1806, under the direction of T. M. Thompson, secretary of the Commonwealth, in pursuance of a resolution of the legislature. 2. A paper writing purporting to be a scheme of a lottery signed John Biddis, and proved by a clerk in the office of the secretary of the Commonwealth, to have been found on the files of that office, and by him copied into the book of executive minutes; and that it was the only scheme of a lottery found in that office purporting to have been signed by John Biddis. 3. Two bonds purporting to be signed and sealed by John Biddis and others, in the presence of two witnesses, and proved by the same clerk to have been found on the files of the secretary’s office, with the said scheme of a lottery, and copied into the book of executive minutes. 4. A journal of the drawing of the lottery, proved by the deposition of Michael Fortune to have been truly kept by him from the commencement to the termination of the lottery, and by which it appeared that the plaintiff’s ticket drew the prize in question. To all these the defendant’s counsel objected, but the Court overruled the objections, and finally charged the jury, that according to the act, John Biddis had only the power of vending his patent rights during the eighteen months, that it was exceedingly improper for the administrator to sell after that time, and that the District Court for the city and county of Philadelphia had decided correctly in refusing to compel a payment for tickets purchased after that time from the agent of the lottery. But that the plaintiff came honestly by fhe ticket, without any knowledge-of the circumstances, that the misconduct was entirely on the part of the defendant, and therefore if the jury were of opinion that the plaintiff acquired the ticket innocently, he was entitled to recover the prize with interest, although the ticket should have issued after the eighteen months, in consequence of the fraud and artifice practised by the defendant. Bills of exceptions were tendered to the opinions of the Court upon the evidence, and to the charge. 1. The pamphlet of the laws was not evidence, because the act in question being a private act, of which the Courts do not take notice, the only mode of proof is by an exemplification from the Roll’s office, or by a sworn copy. Giib. Ev. 10. 12., Peake '26. The pamphlet was evidence of the public laws merely. In the Commonwealth v. Frazer and Porterfield, tried before the Chief Justice and Teates J., at an Oyer and Terminer in January 1813, it was decided that the printed copy of a law of Delaware, published by authority of the state, 'was not evidence of a private act. The opinion of C. J. Marshall in 4 Cranch 384’, was obiter. 2. 3. The scheme should have been proved. There was no evidence that it had been placed in the office by Biddis or by any one for him, nor was his handwriting to it proved. This was the very foundation of the plaintiff’s suit, and better evidence was in the power of the party than he furnished. The same objection applies in a great degree to the bonds. There was no evidence of the handwriting of witnesses or parties. 4. The journal was inadmissible, because the drawing was illegal; most of the sales, and the whole of the drawing, having taken, place after the death of Biddis, whereas the lottery was a personal trust in him. 5. The charge of the Court was clearly wrong. In the first place because the fraud of the defendant, if he was guilty of any, could not make the estate of the intestate liable; and the judgment here is against the estate of the intestate, the defendant being sued in his representative character. In the next place, because there was no cause of action upon a ticket issued after the eighteen months. By the act of 17th February 1762, lotteries are declared to be common nuisances. A penalty of 500/. is inflicted upon the maker, and 20/. on the purchaser, of a ticket. The act of 20th January 1806 gave to Biddis the right to sell his patent rights, by lottery, only for eighteen months after the date. After that the sale of tickets was illegal, and passed no right. A bond for the price of them was held in the District Court to be void. Barton v. Hughes (a). Whatever might have been the conduct of the respective parties, no court of this Commonwealth can do less than refuse their aid to the plaintiff, because the contract was in violation of a public law. Maybin v. Coulon (b), Mitchell v. Smith (c), Huntv. Knickerbacler (d). In addition to this limitation of timé in the law, there iá a -'personal limitation to Biddis. Neither the act nor the nature of the trust extends to administrators. Biddis could not have assigned the privilege; it could not have been taken in execution; it was not assets in the hands of executors. Where the law intends to embrace representatives, as in the case of copyrights and patents, it names them. 1 U. S. Laws, 118., 2 U. S. Latos 200. It follows from this that a sale within the eighteen months, but after Biddis’s death, passed no right. The act of 21st March-1806 has nothing to do with the case. It only prevents the application of the common law to cases provided for by the act of assembly, further than may be necessary to carry the act into effect.’ Here the act of 1762 can not be carried into effect without defeating the contract. • 1. There is no difference between public and private laws, when both are printed by public authority. The printed book is as high evidence,, as an exemplification under seal. The reason why in England a distinction has been taken, is because private statutes are not printed by the king’s printer, and the judges it is said take notice of public statutes, and only refresh their memories by the book. Where however a private statute is so printed,, in consequence pf its relating to many persons,. as to a whole county, it may be read from the statute book even in,that country; 2 Bao. Abr. 609; and in our own state, this distinction between public and private statutes was done away, in the.pp.se:of Thompson v. Musser (a), where the Court received after full argument the printed laws of Virginia as evidence of a public statute, of which at the same time, being the law of another state, the judges certainly could not take notice, more than of a private law. In Toung v. The Bank of Alexandria (b), C. J. Marshall considers a private law to be well proved by a copy of the laws printed by public authority. 2.3. The scheme was the only one in the office, and therefore as Biddis had made a lottery, which was drawn, and the plan of which he was bound to lodge with the governor, this circumstance was at least presumptive evidence that the scheme was placed there by him. His signature to it was unnecessary. So as to the bonds. In an action upon them, it would have been necessary to prove them; but when the only question was whether they had been deposited in conformity with law, their being genuine or not was of no importance between these parties. 4. Whether the drawing was lawful or otherwise, the journal supported by oath was the best evidence of the fact, that the plaintiff’s ticket drew the prize.. 5. The charge of the Court is not liable to the objections which have been raised. The act extended to the administrators of Biddis, because it was a trust coupled with an interest. If he had sold many tickets in his life time, and then died, the purchasers might have insisted upon a drawing, and what injury could arise, or what difference did it make, to the public? The charge of the judge must be taken altogether. There was enough before the jury to shew that the ticket was sold within the eighteen months. But if not, still it does not follow that the sale was void. It was not the intent of the law that Biddis should be absolutely restricted to that time. The lottery was concluded within a reasonable time. In the Earl of Salisbury v. Bennet (c), a legacy of 20,000/. was to be reduced to 10,000/. unless the legatee married after sixteen, and with the consent of three persons; she married with their consent, but before sixteen, and the full legacy was decreed, the time being bnly a circumstance'. Lapse of time in tendering a conveyance or the like, is constantly relieved against. Gibson v. Patterson (d). If howevef the time is essential, and the contract would have been Void by the operation of the common law upon the act of 1Ü62, yet since the act of 21st March 1806,4 Smith 332, the Court cannot declare it void, because the act first mentioned provides another remedy, namely a penalty of 20/., and by the act last mentioned the penalty of the common law cannot be applied, where the statute has created one.