Mills Max & Co. v. Brownell

Hutchinson, C. J., pronounced the openion of the Court.This cause was argued a year ago, and not decided ; but 1a~d over for further argument. After the full argument at this term, we are all agreed upon the points of sufficient importance to be noticed inour decision. The plaintiffs’ counsel urge, as an answer to some of the defendant’s exceptions to the report, that these points should have [468] been presented by pleading to the action, and not litigated before the auditor. Upon this we may observe, the provisions of our statute require the auditor to adjust all accounts down to the day of his hearing the parties. These accounts consist of numerous items, Wholly separate and distinct from each other, in every point of view ; and not being like branches from one common root, as the items of a bailiff’s account rest on the contract, which constitutes him bailiff. It seldom happens, in an action of book account, founded upon our statute, that any defence could be set up by a plea, that would meet the whole action, unless it be a settlement or discharge, and the statute oflimitations. Sometimes the statute would bar some items, and not others. Whereas, in an action against one as bailiff, that he never was bailiff^ meets the whole, though the account might consist of a thousand items. Not so in an action of book account. In this there is no general issue, that can be tried, and the cause afterwards go to auditors. If the jury were to adjust the accounts and return the balance, as Was formerly done in actions appealed from the judgement of a justice of the peace, that there is nothing due and in arrear, might form an apt general issue. But by our statute, the defendant must account, unless he pleads some special matter, which shows, that he ought not to account. Such plea must be tried by the jury; and, if they find for the plaintiff, auditors are appointed. As a defendant may have such matter to plead, that would meet a part of the account and not the remainder, and pleading it would increase the number of trials in the same action, and produce great delay and expense, this Court settled a practice, before 1 had the honor of a seat ffere, and it has been continued ever since, that a defendant may omit to plead such special matter, and may present it before auditors as a defence, in whole or in part: when it becomes the duty of the auditors to report, not the evidence exhibited before them, but the facts they find proved, as the ground of their decisions This should be in substance as a special verdict. The facts being thus found, and presented to the court, the decisions upon points of law can be revised by the court, as they could upon a special verdict. This practice requires, that the facts, upon all litigated items, should appear in the report, or it will be set aside for the defect, or recommitted for amendment. This disposes of one class of the errors pointed out by the plaintiffs’ counsel. A question is raised, whether lottery tickets can be the subject of an action ori .book. We think they may. If they are legally [469] issued, they are of value as evidence of a debt; as evidence of a chance to receive a debt, large or small. The current sales a few years past have attached a value to them, almost as to bank bills. It is difficult marking any line of distinction between what may, and may not, be charged on book, any more definite than this ; that articles of persona] property sold and delivered, the title vesting in him, who receives the property, and he becoming debtor for it to the other, may be charged on book. These lottery tickets, with the currency attached to them, by the eagerness of people to deal in chances, must be considered as property, and be the subject of book charge. With regard to charges of tickets, and of money, and of other things, proper to be charged on book, where there might be difficulty in deteofepa wrong charge, it is not a matter of course that they can ported by the oath of the party merely. He is a compeikm-w$aess to testify ; is made so by statute ; and so is the opposite party to the same items. And the auditors must decide, according to the convictions on their minds, of the correctness or incorrectness of the several charges, after weighing all the testimony adduced, which tends to support or defeat the charges. The defendant excepted to the auditor’s receiving, as evidence, certain letters from Hough, who issued the tickets, and who forwarded a part of them to the defendant, which letters were directed and sent to the plaintiffs. Should this exception, and this only, avail the defendant, its effect would be to reverse the judgement of the county court, and send the accounts again to auditors ; for it cannot now be known what effect was produced by those letters upon the mind of the auditor. But, so far as the defendant urges in his defence, that these tickets were not so the property of the plaintiffs, that they are entitled to the pay for them, but that he is accountable for them to Hough, if to any person, these letters may be properly admitted upon that question, as a part of the res gesta. They tend to silence any claim, that Hough could have, to be owner of these tickets,, after the date of those letters. There is no other view, in which they could have any legal bearing upon the cause. Another point litigated is, whether Rhodes could delegate to Hough all his authority as manager. It appears by the auditor’s report, that Rhodes, claiming to be manager, gave Hough, or undertook to give him, full power to perform all the duties of manager: in fact, to make him manager, but to act in the name of Rhodes. It also appears,[that Rhodes lives out of the United States,.and did [470] so w^en executed bis power of attorney to Hough. There are many acts, which the manager of this lottery must be able to do by sub-agents, such as selling tickets, receiving pay for them, &,c.; but we think the whole power of arranging schemes, fixing on the number and price of tickets, and the number and amount of prizes, when to draw the lottery, &c., cannot be thus exercised by proxy. The whole system of this grant, regulated by three statutes, treats the managers as officers of the government, in some sense. They are required to give bonds to the treasurer, to secure their fidelity, before they enter upon their business as managers. It must be treated as a personal trust in the managers, to act upon their own judgement in the principal concerns of the lottery. If Rhodes had tbcis^acted upon his own judgement in the business, was he a legally»constituted mannager, at the time of issuing these tickets? This leads to an examination of the several statutes upon the subject, to see what constitutes a person manager. The first statute appoints the managers by name : the second supplies vacancies by inserting the names of the persons appointed : the third provides, that the judges of the county court of Addison county may appoint persons to fill vacancies as occasion may require. All these statutes require a bond to the treasurer, as already mentioned. Rhodes is not one of the persons named as manager in either of these statutes. There is no evidence of his having been appointed, except his own deposition, and the copy of his bond to the treasurer. In bis deposition, he does not pretend to know how, or by whom, he was appointed, or when ; but thinks it was by judge Strong, of Addison, and one or more of his associates. But he expresses, that he has no doubt but he was legally appointed in some way ; but whether to be sole manager, or jointly with Samuel Miller, or some other person, he docs not know. His bond to the treasurer bears date in February, 1798, and purports to have been signed by Jabez Rogers, Jabez Rogers, jr., said Anthony Rhodes, and Lebbeus Harris ; and the condition is that, whereas the said Rhodes and Harris are, and are about to be, appointed managers of said lottery, if they shall faithfully perform, &c. We think this testimony does not show Rhodes ever to have been legally appointed manager. Ifhewas appointed by the judges, their certificate .of such appointment would be the most natural and correct evidence of it. Indeed, it is scarcely a supposable case, that they would make such an appointment, without such a certificate. If such there was, Rhodes would be the keeper of it. He neither accounts for not producing [471] it, nor knows it’s contents. Again, the bond would seem of no force at all, unless accompanied with further testimony. It purports to be the joint official bond of Rhodes and Harris, appointed, and to be appointed, managers. This bond ought not to be considered of force to secure the fidelity of either as sole manager, but of both acting jointly. Such and such only was the undertaking of the sureties. The testimony reported neither shows an appointment, nor a regular bond. We are under no necessity of deciding, what should be presumed at this late day about the regularity of appointment and bonds. My own individual opinion is, that, from the facts presented in this report, it ought to be presumed, that the object of the lottery was satisfied thirty years ago, or else that the whole was then abandoned. If the managers had all this time been exercising their right as such, and this was suffered by the government, it might furnish a ground of presumption that their appointment was once regular. But the entire non user, exhibited in the report, tends wholly to a contrary presumption. It is not a suppo-sable case, without proof, that a bond, with four signers, executed in the year 179S, is now of any avail to secure the faithfulness of the managers, in their proceedings of a recent date. There ought, at least, to have been a new bond to the treasurer, binding persons of property, who are known to be living. A further question has been raised, whether Rhodes, even if regularly appointed, had any power as sole manager. We are of opinion he could have none at all. These statutes all require three managers ; and the provision for filling vacancies extends to all vacancies, so as to keep three managers in any event whatever. If the legislature could have intrusted this business with, one person alone, they have not done it; and no one can have any power,till two others are qualified to act in conjunction with him. The result of these considerations is, that there was no authority to issue these tickets, that they are wholly void, and not a subject of contract or sale, and, for this reason, no subject of book charge ; and it is not readily discovered, why those who sell them are not subject to the penalties of our general statute, as for selling tickets in private lotteries. The judgement of the county court is affirmed.