Terry v. Olcott

Hosmer, Ch. J. By the act for preventing and suppressing lotteries, it is enacted, “That no person or persons whatever shall, within this state, buy, purchase, sell or otherwise dispose of any lottery ticket, issued from or under the authority of any other state whatever.” (a) This law was aimed not only against the sale of tickets, authorized by any of the United States, but against the sale of such as proceeded from any [445] other sovereignty. The words of the law, undoubtedly, reach to this extent; and the object of it entirely harmonizes with the expression. It was the intent of the legislature to prohibit a species of gambling highly detrimental to the state; and the sale of tickets, issued by the authority of other governments, is equally pernicious as the vending of those, which emanate from a sister state. The decisions of the supreme court of the United States, cited from the reports of Cranch and Wheaton, in which it was adjudged, that the term state, as used in the federal constitution, contemplated this confederacy only, were unquestionably correct. The comprehensive sense of the word, is, in the constitution, restrained by the subject matter; while, in its more enlarged signification, it includes all republics, and governments not monarchial; and even monarchies, if they fall within the reason of its use. The original transaction between Kilbourn and Buck, was opposed to the direct prohibition of the statute; and of consequence, it was illegal and void. Lowe v. Peers, 4 Burr. 2225. Bartlett v. Vinor, Carth. 252. I do not consider it necessary to decide the question, whether the note indorsed by the defendant, was on a new consideration, and thus rescued from the objection of illegality. Admitting, for the sake of argument, that it was not; yet, if the plaintiffs, at the time when they became the assignees of Buck, and when the note in suit was executed, were uninformed, that the ticket was sold “within this state,” their contract was lawful and unimpeachable. Cuthbert v. Haley, 8 Term Rep. 390. Coventry v. Barton, 17 Johns. Rep. 142. 1 Vin. Abr. 299. pl. 27. On inspecting the motion, it appears neither expressly, nor by construction, that the plaintiff had knowledge where the ticket was sold, or that it was purchased by Buck in violation of the statute. Kilbourn's certificate does not mention the place of sale; and the motion merely states, that the parties knew “said ticket was not issued under the authority of this state.” It is entirely compatible with this assertion, that the ticket was sold to Buck in the city of New-York. The charge of the judge, that the note in suit was void, was incorrect; and for this reason, I would advise a new trial. In this opinion the other Judges concurred, on the ground taken by the Chief Justice. Chapman, Brainard and Bris [446] tol, Js. were also of opinion, that there was a new consideration for the note. New trial to be granted. Footnotes [(a)] Stat. 477. ed. 1808.