Biddis v. James

Tjxghman C. J. The record contains two bills of exceptions, the first relating to four several papers offered in evidence by the plaintiff and admitted by the Court, the second to the charge of the Court. These shall be considered in their order. 1. The first paper objected to was a copy of the act of assembly, printed by the public printer under the direction of the secretary of the Commonwealth, who was authorized by the legislature to compare the copy with the original roll. By the law of England, the copies of the public laws printed by the king’s printer, are read in court, not as evidence, but as bringing to the mind of the Court, a matter ' which every man is supposed to know, because every man is a party to the public laws, 'having consented to them by his representative. But a private law is to be proved as any other matter of fact. This distinction between public and private laws, is by no means satisfactory, when applied to the actual state of the world. Whatever reason there might be for supposing that every man knew the law in ancient times, when laws were few and short, and at the end of each session a copy of the laws was sent to the sheriff of every county, who made public proclamation of them at the county court, and suffered the people to read them and take copies at their pleasure, 1 Bl. Comm. 185, yet there is no ground for this supposition at present, when laws are numerous, long and intricate, when they are not published by proclamation, and when in fact, neither the people, nor even the judges, have any opportunity of knowing them but from printed copies. It is for this reason that it has been usual for the legislatures of the several states to have the laws printed by authority. Confidential persons have been selected to compare the copies with the original rolls, and superintend the printing. The object of this provision was to furnish the people with authentic copies,- and from their nature, printed copies of this kind, either of public or private laws, are as much to be depended on as the exemplification, veri [327] £ed by an officer who is the keeper of the record. In Eng- _ land there is no provision by parliament for the publication of their laws. They are printed by the king’s printer. There ought therefore to be a difference in the law of evidence respecting printed copies in the two countries. And we find that when the subject has been preséñted to the minds of the American judges, they have not failed to be struck'with the difference. In the case of Thomson v. Musser, 1 Dall. 463, this Court admitted the printed copy of a Virginia act of assembly. This decision abolished the distinction between public and private acts, because ,it could not be supposed that the people of Pennsylvania were acquainted with the public laws of Virginia, having never made or consented to them either in person or by representative. In Young v. The Bank of Alexandria, 4 Cranch 388, the subject was brought before the Supreme Court of the United States, when Chief Justice Marshall expressed his opinion, that whether the law were public or private, yet being printed by the public printer, by order of the legislature, agreeably to- a general act of assembly for that purpose, it must be considered as sufficiently authenticated. He declared indeed at the same time, that the Court would not prevent counsel from arguing the point, if they.thought they could support - the'contrary opinion, but the counsel declined the attempt. -This opinion of Chief Justice Marshall appears tome to be perfectly correct. I am for admitting the printed copies, authorized by the legislature either of this or any other state, whether the laws be public or private. The two next papers received in evidence, I shall consider together, as they fall within the same principle. One was the scheme of a lottery signed by John Biddis, the other a bond of John Biddis with securities. Neither the execution of the bond, nor the signature of John Biddis to the scheme, was proved; but it was proved that these papers were found on the file of the secretary’s office, and copied by the clerk into the book of executive minutes, and that there was no other scheme of Biddis1 s lottery to be found in the office. In an action on the bond, it would have been necessary to prove its execution. As to the scheme, it was not essential that the name of Biddis should be signed at all, and therefore this paper being found in the office, and no other paper of the kind being" there, the presumption was [328] veiry strong that it was the scheme submitted to the govern^ in compliance with the act of assembly. With respect to the bond, the presumption was equally strong of its having been 'deposited by Biddis, and if deposited by him, I take it to be immaterial in the present action whether he executed it or not. For if he had deposited a forged bond, and thus imposed on the governor, he would not be permitted to avail himself of this plea, in bar of actions for the recovery of prizes in the lottery which he had proceeded to draw. The fourth paper was clearly evidence. It was a journal of the drawing of the lottery verified by the oath of the per- ■ son who kept it. Whether the lottery was legally drawn was another question. But it was incumbent on the plaintiff to prove, that his ticket drew the prize of 10,000 dollars; and there could be no better way of proving it than by the oath of a person who attended the whole drawing, and kept •a written account of the proceedings. The exception to the charge of the Court remains to be ‘considered. The judge was of opinion, that the act of assembly having confined the license to vend the patent rights to the term of eighteen months, no ticket could legally be sold after eighteen months, because the sale of tickets was the mode adopted for the sale of patent rights; yet he charged, that it was immaterial in the present action, whether the sale of the ticket was within the eighteen months or not, because the plaintiff having come fairly to the ticket, the defendant should not avail himself of his own fraud in selling tickets contrary to law. In the first place, as the legality of selling or of purchasing these tickets depended on an act of assembly, it was the fault of the plaintiff to purchase; nor could any fraud which the defendant could practice, prevent the plaintiff, if he had used due caution, from knowing that the eighteen months limited by law had expired. But were it otherwise, the fraud of the defendant is not sufficient to support this action, which is founded on the assumption of the intestate. This issue is joined on his assumption, and the judgment is against his estate. So that to support the action on the ground of fraud in the defendant, would be to punish one man for the offence of another. It was urged also in support of the action, that the limitation of eighteen months was but a circumstance, against which the Court may relieve by extending the time. I cannot think so. It is a cir [329] Cumstartce to be sute, but a'very material one, a substantial part of the terms imposed, by the legislature, which it is not in the power f any "court to alter. But it has been contended, that granting the drawing of this lottery to have been contrary to laW,yet the action is maintainable? because by the act of 17th"February 1762, a penalty is imposed on both buyers and sellers of lottery tickets, and by the act of 21st March 1806-it is enacted, that “in all cases where áreme- “ dy is provided, or any thing directed to be done by any “ act of assembly, the directions of the said act shall be strictly “ pursued, and ho penalty shall be inflicted, or any thing “ done, agreeably to the provisions of the common law in “such cases, farther than shall he necessary to - carry such “ act into effect.” The construction contended for by- the plaintiff, gives this provision a very unnecessary and inconvenient extent, and one which is greater than the words require. The act of February 1762, not only inflicts penalties on the buying and selling- of tickets, but expressly .enacts, “ that all lotteries whether public or private are “ common and public nuisances, and against the common “ good and welfare of this province.” So that to give efficacy to this provision, it is at least useful to call in that principle of the coihmon law, which forbids the courts to take cognizance of an action founded on a flagrant breach of law. This is not the inflicting of a penalty, or doing any thing different from or mote than is enacted. It is but a negative interference, to prevent a public injury, and to carry the law more effectually into operation. The construction has been settled already- in this court, in the case of Primer v. M-Con- - nell, and in the District Court in the case of Barton v. Hughes. In both these cases, it was decided that an action could not be supported for the price of a ticket in a lottery, which was not authorized bylaw. I am of opinion upon the whole, that there is no error in the points mentioned in the first bill of exceptions, but that there is error in the charge of the Court, for which the judgment should be reversed, and a venire facias de novo awarded. Yeates J. and Brackenridge J. delivered their opinions, in all points concurring with the Chief Justice. Judgment reversed.