Brent v. Davis

• Decision Date: 17 March 1825
• Citation: 23 U.S. 395,10 Wheat. 395,6 L.Ed. 350
• Parties: BRENT and others v. DAVIS
• Court: U.S. Supreme Court

23 U.S. 395

6 L.Ed. 350

10 Wheat. 395

BRENT and others v. DAVIS.

March 17, 1825

ERROR to the Circuit Court for the District of Columbia.

March 14th.

This cause was argued by Mr. Key, for the plaintiffs, and by Mr. Swann and Mr. Jones, for the defendant.

March 17th.

Mr. Chief Justice MARSHALL delivered the opinion of the Court.

The defendant was the purchaser of the first class of a lottery to be drawn in the city of Washington, conformably to a scheme agreed on between the plaintiffs, who had been appointed managers, and himself; and the declaration is on the penalty of the bond given for the sum of 10,000 dollars, conditioned for the performance of articles entered into between them, one of which was, that he should pay the said sum of 10,000 dollars to the plaintiffs within sixty days after the lottery should be completed.

The defendant prayed oyer of the bond, and of the condition; after which the following entry is made: 'Non damnificatus pleaded, and issue, with leave to give the special matter in evidence on both sides.'

A jury was impanelled, who found a special verdict, which states at large the by-law of the corporation authorizing the lottery, the appointment of the managers, their sale of the first class to Davis, the scheme of the lottery, and the agreement entered into by him with them.

The verdict then states, that the managers, and the said Davis, proceeded to draw the said lottery, in the course of which, certain irregulatrities took place, which are detailed at large; and the whole progress of the lottery to its conclusion is stated.

The scheme contains a stationary prize for the first drawn number on each of twelve days, during which the drawing was to continue; which were not put into the numerical wheel. The first drawn number on the 10th day was to be entitled to 30,000 dollars, payable in part by three hundred tickets, from numbers 501 to 800 inclusive. No. 623, one of the three hundred tickets to be given in part payment of the said prize, was drawn first on that day, which was immediately proclaimed by the managers, and the prize awarded to it, by making the usual entry in a book kept for that purpose.

After the drawing for that day was concluded, the managers reconsidered their judgment, awarding the prize of 30,000 dollars to No. 623, and reversed it. They then awarded the prize to No. 4,760, which was drawn next to 623, and had drawn a prize of twenty-five dollars, which prize they decreed to No. 623; and the original entries made in the book for the registration of prizes, were transposed so as to conform to this last determination.

On the last day, it was discovered, that the wheel of blanks and prizes contained one blank less than ought to have been put into it; and to remedy this mistake, the managers, and the said Davis, agreed to throw in an additional blank.

The verdict appears to have been intended not only for this cause, but for another suit also, which was brought for the benefit of the proprietors of a ticket which had drawn a prize of 10,000 dollars, by the Corporation of Washington against one of the managers, on a bond given for the performance of his duty. It concludes with the following findings: 'If, upon the whole matter, the law be for the plaintiffs, so as to entitle the plaintiffs to demand and have of the defendant in this action, the sum of 10,000 dollars, in and by the agreement recited in the condition of the bond given by the said Gideon Davis to the said managers aforesaid, sixty days after the drawing of the said lottery is completed, then we find for the plaintiffs the debt in the declaration mentioned, and one cent damages, to be discharged by the payment of 10,000 dollars.

'And if the proprietors of the said prize tickets, or the said proprietors of the said ticket No. 1,037, be entitled to demand and have the amount of the several prizes drawn against their respective tickets in the course of the drawings as aforesaid, after making the deduction of fifteen per cent. according to the said scheme, and if the proprietors of the said ticket No. 1,037, be entitled to demand and receive payment of the said prize of 10,000 dollars, with such deduction as aforesaid against the defendant in this action, then we find for the plaintiffs the farther sum of 8,500 dollars, to the use of the said purchasers and proprietors of the said ticket No. 1,037, in equal shares and proportions aforesaid. And if upon the whole matter, the law be for the defendant, we find for the defendant.'

The judgment of the Court was in favour of the defendant; and that judgment is now before this Court on a writ of error.

If, through the confusion which is introduced into this record by the extreme irregularity of the proceedings, the Court can perceive that the plaintiffs have a real cause of action which may be barred by this judgment, the justice of the case requires that it should be reversed, although the great fault in pleading has been committed by the plaintiffs in failing to assign any breach of the condition of the bond on which the suit was instituted.

The suit is supposed to be brought for the recovery of the 10,000 dollars which the defendant engaged to pay sixty days after the lottery should be drawn. This claim is resisted, on the plea that the lottery, in point of law, is not yet drawn; that the irregularities stated in the verdict have vitiated the whole transaction; that the lottery must be redrawn; and that no right of action can accrue to the plaintiffs until sixty days after such redrawing shall be concluded.

The right of the plaintiffs, then, to maintain this action, depends on the legality of the drawing as found in the special verdict.

The defendant insists that two errors have been committed in drawing the lottery, which vitiate the whole transaction. The first is the proceeding respecting the...