But where the deposit has in the first place been made with a person who sets up the lottery different considerations prevail. The general rule is that where money has been paid to a person in order to effect an illegal purpose with it the person making the payment may recover the money back before the purpose is effected. But where the illegal purpose has been fully or partially executed it cannot be recovered by the person who paid it, the rule “in pari delicto, etc.,” has been held to apply.[[306]] Therefore under the first part of the rule above stated it is clear that the depositor can always recover his money before the lottery comes off.
It seems however in a lottery to be the same as in the case of a wager, a depositor cannot sue the stakeholder without previously giving notice to him that his authority to pay the money over to the winner is determined.[[307]]
So in Gatty v. Field[[308]] where the plaintiff had deposited 15s. as subscriber to a lottery and sued the stakeholder as winner. |Demand necessary.| It was held that to entitle him to recover his own subscription it was necessary for him previously to demand it back from the stakeholder and so put an end to the illegal transaction.
But now to consider the case of the lottery having come off. The rule of “in pari delicto, etc.” does not of course apply where the delictum is not par.[[309]] Thus, in Browning v. Morris,[[310]] it was held that money paid by way of premium for the insurance of lottery tickets to the keeper of a lottery office was recoverable on the ground that the various statutes (at least so it would seem[[311]]) authorising the raising of money by State lotteries forbade the keeping of offices for the insurance of tickets, but imposed no penalty on the insurer—the statute had “marked the criminal.” It seems, however, that in the middle of the judgment it transpired that the plaintiff himself was a lottery office keeper, and therefore himself “in pari delicto”; consequently a non-suit was entered.
It would seem, therefore, that where a person sets up or maintains a lottery, receiving money on deposit in respect thereof the subscribers can at any time recover what they have paid. It is true that section 3 of the Act of William III. and section 3 of 12 Geo. II., c. 28 impose penalties on the adventurers. Still the statutes were passed for the protection of the latter, and the heavier penalty is imposed on the maintainer. In the case, however, of a sweepstakes, which is simply an agreement between the adventurers,[[312]] the same considerations do not seem to apply.
It is also clear both upon principle and on the authority of Allport v. Nutt[[313]] that no action will lie to recover money alleged to be due as the winnings of a lottery. |Illegal partnership or society.| In the case of Sykes v. Beadon,[[314]] the Master of the Rolls held a society to be illegal partly as infringing the Companies’ Acts and partly as infringing the Lottery Acts. His lordship distinctly opposed the dicta of Lord Cottenham in Sharp v. Taylor[[315]] to the effect that a suit could be maintained by a member of a firm formed for an illegal object for an account of profits realised by such illegal business on the ground that the Courts by affording such remedy in no way facilitated the illegal object, which had already been accomplished. The Master of the Rolls thought it made no difference that the illegal transaction was closed. “It is no part of the duty of a Court of Justice to aid either party in carrying out an illegal contract, or in dividing the proceeds arising from an illegal contract.”
On the other hand it will be remembered that in Beeston v. Beeston[[316]] the principle of Sharp v. Taylor was spoken of with approval: still the exact question under discussion was not then raised, and it is submitted that the remarks of Jessel, M.P., suggest the true principle. We shall deal with this subject in greater detail when we come to discuss partnership in Gaming Houses. See p. 162.
Proceedings in lottery cases.
There are three different ways in which offenders against the Lottery Acts can be proceeded against:—
Indictment for a nuisance.