Nor is it essential that the nature of the prizes distributable should be publicly announced or advertised if the scheme itself is in the nature of a lottery. Hunt v. Williams.[[299]]
Racing coupons.
In Caminada v. Hulton[[300]] the legality of the racing coupons came before the Court. The case was of the ordinary kind, the defendant, to increase the sale of his paper, appended to each copy a coupon which the purchaser might, if he chose, fill up with the names of horses he thought likely to win one or more races, according to the conditions, and those persons who should be successful in selecting a given number of winners were to be entitled to a prize. It was held that this was not a lottery seeing that the competitors selected their own horses; there was no distribution by lot. This case will be noticed again in the chapter on Betting Houses.
Suggested test of a lottery.
It is suggested, not without some diffidence, that the following considerations form the test of whether a transaction is or is not a lottery. There must be an agreement or scheme contemplating that in consideration of subscriptions paid by the adventurers certain property (be it the fund subscribed or otherwise) is to be allotted to some one or more exclusively of the other adventurers, or distributed unequally among them; such allotment or distribution to be determined by lot. But it would seem material to notice:—
(1.) The agreement may be amongst the subscribers themselves, as in the case of a sweepstakes, see Allport v. Nutt,[[301]] or by the subscribers with a person who is getting the lottery up, perhaps for his own profit.
(2.) It must be part of the scheme that some of the adventurers should win and others should lose, as Lord Selborne observed in Wallingford v. The Mutual Society, that the statutes have reference to gambling transactions only. This is as in wagers, vide sup. p. 32.
(3.) The distribution of the prizes must be by lot or chance, herein differing from a wager.
(4.) The distribution of the prizes must be in consideration of property subscribed by the adventurers out of property belonging to them individually. There would appear to be nothing contrary to the Lottery Acts in joint owners dividing their property by lot. Sec. 11 of 12 George II., c. 28, specially exempts partition by lot among joint owners of land. But this is quite a different idea from making a contribution for the purpose of a division by lot.
(5.) The distribution of the prizes by lot must be the main substantial part of the scheme to which the adventurers subscribe. This may serve as the true explanation why companies whose regulations provide for a distribution of profits by lot are not within the Lottery Acts. In these cases we have commercial undertakings, whose main and primary object is to make money in a legitimate way, whether by profitable investment, as in Sykes v. Beadon, or trade enterprise. The distribution of these profits is, though important, purely secondary. It does not seem to be, as suggested by the Master of the Rolls in that case, a case merely “of subscriptions to be divided”; the profits had to be earned first. No doubt the line between the cases may sometimes be very fine. Several people agree to subscribe to buy a mare and then to raffle for it. This would seem clearly to be a lottery,[[302]] though secus if the agreement to raffle were made after the purchase. But suppose the agreement were to buy several mares for the purpose of breeding from them and to raffle for the offspring; this case would seem to stand on the same footing as the case of the companies; the primary object is the breeding of horses.