Boswell v. Lainhart

Martin, J. delivered the opinion of the court. The plaintiff and appellant complains of the judgment of the District Court, which disallowed his claim on the defendant as surety of Lainhart, on a bond given by the latter to the Governor, in consequence of the privilege granted by the Legislature to raise a certain sum of money by lottery; the plaintiff being the holder of a ticket entitled to a prize. The penalty of the bond is $12,000. By the act granting the privilege of a lottery to the defendant’s principal, a bond with surety for the drawing of the lottery and the application of $6000 to a certain purpose, was required. The governor took a bond, with the further condition, that the prizes be faithfully paid. The District Judge thought the bond required by the Legislature was intended only for the security of the state' to insure the [399] drawing of the lottery, and the faithful application of the proceeds to the use tor which they were intended. The lasua} in: of an additional no™contemplated bfníMihe surety, ^ ken with refer-construed by it. We think he did not err. The casual insertion of an additional clause, not contemplated by the Legislature; the smallness of the penalty, merely the double of the sum to applied to the intended use, will leave the rights of the pub-lie absolutely unprotected, if the sum could be objected, as it would immediately be -by the holders of the tickets. As to the principal debtor, there cannot be any doubt of his liability; but the surety bound himself only to pay the penalty to the state on certain conditions. The bond is taken with reference to the law, and must be construed by it. Nothing shews any claim under it to any part of the penalty by individuals. It is therefore ordered, adjudged, and decreed, that the judgment of the District Court be affirmed with costs.