Yates & McIntyre v. O'Neale & Smith , 3 G. & J. 253 ( 1831 )

Dorsey, J.,

delivered the opinion of the court.

The only question which this court are called on to determine, is, did the county court err in granting the defendants’ ;prayer in the first bill of exceptions ? and to our minds, it is obvious that they did. The agreements between O’Neale and Yates and McIntyre, are simply an engagement bn the part of the former, to sell lottery tickets, as the agent of the latter. The act of 1821, ch. 232, does not forbid this; nor were any of its provisions designed to prevent the mere sale oí lottery tickets, or to impose upon the seller the necessity of obtaining a license therefor. The only prohibition therein contained, is to the opening, setting up, exercising or keeping, any office or other place for selling tickets, or registering the numbers, or by writing, .printing, or otherwise to publish the setting up, opening or ■using any such office or offices, or other place, without having first obtained a license for that purpose. There is nothing in the agreements, upon any principle of construction applicable to .penal statutes, which could warrant a jury, much less the court, in inferring that O’Neale had engaged to open an offiee, &c. of the character described by this act of assembly; and the testimony is equally silent as to his obligations or acts under those agreements. But even suppose that these contracts bound (YNeale to keep an office, &c., is it a fair legal presumption to be drawn by the court, that Yates and McIntyre intended a violation of the law, and the keeping of such office without license ? There is nothing in the nature or terms of the agreements themselves, or in the testimony contained in the bill of exceptions, which could justify such a conclusion. Dissenting therefore from the opinion delivered by the county court in the first bill of exceptions, we reverse their judgment.

JUDGMENT REVERSED AND PROCEDENDO AWARDED.