Dion v. St. John Baptiste Society

Peteks, C. J. It is not readily perceived how the verdict for plaintiff can stand, in view of several objections that are urged against it. If it stands, the verdict will return to the plaintiff not only the money of his own which went into the box provided for the reception of votes cast in his favor, but also all the money that was supplied for the same purpose from all other sources. He evidently tries by his testimony to carry the impression that all the money paid in indirectly on his account, was his money. But the facts, when understood, show that the money contributed by his friends was not given by them to him, and that it was intended as a gift to the defendant society. Again, there is doubt whether the present statute allows a recovery back, unless the money be expended in a lottery of some kind, which the scheme in this case was not. The counsel for plaintiff contends that the defendants were a stakeholder or trust-holder of the contributions, and that at common law the money may be recovered back. It is a perversion of the facts to style the defendants a stakeholder. They were the principal. The money was passed to them, not to hold for others, but to keep on their own account, — to become their money. But we pass these points, after this mention of them as having a possible bearing on another question, and place our decision of the case upon a more important ground, which is, that the thing complained of was not “a lottery, scheme or device of chance,” within the intent of the statute. Everything is not a game of chance that chances-may attach to. The refinement of illustration indulged in by counsel for plaintiff to demonstrate this matter to be a game of chance, would apply with well nigh equal force to the general transactions of life. The scheme, at this time one of the fashions of society to obtain aid for charitable purposes, seems to amount to this : The charitable association offers an article for presentation to the person, in some profession, office or occupation, in whose name the most money is con [323] tributed for the article. The article is not drawn by any ticket nor by any person; the only possible chance, if it can be called such, connected with the affair, being whether one person’s admirers or another’s will give the most money to charity, in order to obtain the prize for their favorite or friend; the affair usually arousing sentiment enough to render the game profitable. No contributor expects to get any personal benefit from his contribution, nor can he, beyond a merely sentimental enjoyment, unless he immodestly and clandestinely votes (pays in) money for himself, as this plaintiff avers he did, and that would be an imposition upon the decencies of the occasion. From the nature of the plan, no one ivould attempt to carry it on for any private gain. There could be no motive to sustain it for any such purpose, it is impossible that all persons engaged in such a scheme are guilty of gambling and liable to imprisonment for it. Such a construction of the statute is illegal and unjust. Motion sustained. Walton, Virgin, Emery, Foster and Haskell, JJ., concurred.