Gipson v. Knard , 96 Ala. 419 ( 1892 )

COLEMAN, J.

The action is assumpsit, and brought to recover one thousand dollars. The facts averred in the complaint are, that plaintiff and defendant were joint owners of a lottery-ticket held against the New Orleans Lottery; that the ticket drew two thousand dollars, which sum was paid over to the defendant, one-half for his own use, “and one-half for the use of plaintiff; and that one-half, to-wit, one thousand dollars, was received by the defendant for the plaintiff’s use.” The defendant demurred to the complaint, on the grounds that “the money was collected on a lottery-ticket, and the alleged transaction was illegal and prohibited by the laws of Alabama;” and on the further ground, “that the claim or cause of action originated in a lottery enterprise, and was in violation of sections 4068 and 4069 of the Criminal Code of Alabama.” The court sustained the demurrer, and the plaintiff declining to amend, his suit was dismissed out of court.

The sections of the Code referred to read as follows: Section 4068 — “Any person who sets up, carries on, or is concerned in sétting up or carrying on, any lottery or device of the like kind, or who sells, or is interested or concerned in selling, any tickets or shares in such lottery, must, on conviction, be fined,” &o. Section 4069 — “Any person who sells or disposes of any lottery or gift-enterprise tickets, or tickets in any scheme in the nature of a lottery, or who receives money, or takes an order for any lottery or gift-enterprise ticket, or for any ticket in any scheme in the nature of a lottery, or who acts for or represents any other person in selling or disposing of any such ticket, must, on conviction, be find,” &e.

' We do not think the ruling of the court can be sustained. The relation of the plaintiff and defendant to each other as joint owners of a lottery-ticket in no way contravenes the provisions of these sections. The siut is not to enforce a contract in which the lottery itself, or an agent of the lottery, is interested. The statute is directed against those who “setup, carry on, or are concerned in setting up, or carrying on, a lottery or device of like kind, or who sell, or are interested or concerned in selling, tickets or shares in the lottery, or disposes of lottery or gift-enterprise tickets, or schemes in the nature of a lottery, or who receives money or takes an order for any lottery or gift-enterprise ticket . ' . or who acts for or represents any other person in selling or disposing of such tickets,” <fce.

There is no averment of fact in the complaint which in any manner shows that plaintiff’s claim, as against the defendant, to the money, accrued from a yiolation of tbe statute by eitlier of tlie parties. — Salomon v. The State, 28 Ala. 87. If sucli were tlie facts, tlie question might be presented by a plea, but cannot be raised by demurrer to tbe complaint as framed. According to tlie averments of tlie complaint, tlie money sued for never belonged to tbe defendant. It was paid over to him for and on account of tbe plaintiff, and it was in this capacity that tbe defendant received it. A third person who lias received money for tbe use of another can not withhold and appropriate it to his own use on the ground that it arose out of an illegal transaction between the payer and claimant. — 2 Chit. on Con. 918; 1 Pom., § 403, and note. Such a principle can find no support in law ox morals, and its invocation but scantily conceals the fact that selfishness, rather than a desire to promote public morals, prompted the defense. The court erred in sustaining the demurrer to the complaint.

Be versed and remanded.