The National Register.
London, England, 1811-08-04 00:00:00

• THE NATIONAL REGISTER.

LAW REPOR TS.

COURT OF CHANCERY, Aucusr 2.

NISBETT V. SWIFT.
This was a case of demurrer of some curiosity. The facts as
stated in the argument of Mr. Hirt, for the defendant, were
these :

Some time since the plaintiff applied to the defendant Henry
Edward Swift, a Lottery-office-keeper, fur the purpose of pur-
chasing of two particular tickets, Nos. 111 and 27, previously
to their being issued from the Bank of England. The plaintiff
placing a very mysterious faith in those two tickets, paid a gra-
tuity of five shillings, which he was told by defendant was cus-
tomary in cases where a person fixed on a favourite number.
These five shillings went to a clerk in the Bank, who marked
the numbers chosen in a way that they might be koown after the
issue, and secured for the persons engaging them. In fine, the
plaintiff bespoke, and the defendant agreed to obtain for him the
numbers specified. in the sequel, however, he only procured
the No. 111, one quarter of which the plaintiff took ; but the
N 0.27, one half of which he bad contracted to purchase, never
came into his possession. The No. 111 happened to come out a
blank, hut the other came out a prize of 20.0001. The plaintiff
then brought his action to recover the 10,0001. to which the
half-ticket 27 was entitled ; and by a bill in equity asked for a
discovery of certain particular facie, without the knowledge of
which, in evidence, his action could not be supported. These
facts were sought to be discovered in a series of questions put
by plaintiff to defendant, as to whether, in such cases, marks
were usually put on tickets while depo-ited in the Bank ?
whether defendant pronVsed to bespeak and procure the shares
of the particular tickets for plaftitiff ?—whether he did not ad-
mit, in a conversation with others, :het he had agreed so to be-
speak and procure• them I—whether the frve.shilliegs were not
actually paid for the purpose of having this mark affixed ? whe-
ther in part fulfilment of their contract defendant did not pro-
cure the ticket No. 111 ? &c. To the answering of these ques-
tions defendant demurred ; and in support of the demurrer, he
(Mr. Hart) referred to the Act of Parliatneut, the 49th of
-Geo. 111. which authorised the drawing of the lottery in ques-
tion. '1 his Act declared, that any person dividing tickets into
shares, or issnittg chances in any manner but that specified in
the Act, should be subject to particular penalties It directed
that every share or agreement. for a share should he stamped in
a form specified ; that persons selling shares or chances except
on stamped paper should forfeit 501. for every such illegal act ;
that all persons taking out a license should, before the drawieg,
deposit in the Bank 150 shares, or 30 whole tickets, otherwise
the license would be void ; that those shares or tickets so depo-
sited should not he sold or disposed of previously to their being
brought from the Bank : and it further directed, that all persons
convicted under this Act of illegal transactions should be deemed
rogues and va,rabonds, and given over to the justices of the peace
to be punished accordingly. 'Anil were the enactments of this
Act ; and he contended, that by answering the Bill of the plain-
tiff, his client would, by confession, impeach himself with two
breaches of it.
Sir S. Roradly, for the plaintiff, said, that it was not ex-
tremely creditable for th.- deft:admit, after a breach of contract,
to plead illegality against the consecuences of its non-fulfil:net'
He contended, however, that an erionenus construction had
been put upon the Act. It was a Penal Act, and ought to be.
construed most strictly. The declarations of the Act did not
bear against a previous agreement on the part of the defendant
to do all in his power short of selling tcl:cts , it was against
the actual sale of the tickets that the provisions of the Act were
iiirreted. It could not be against agreements of this kind that
the Legislature levtiled the act, because, if the defendaet had
agreed to obtain an indefinite number of tickets, surely such an
agreement would not be illegal.
LORD CHANCELLOR.—It would he necessary for me to read
the whole Act, to understand the meaning and spirit of these
. particular clauses. Is it not a question whether this agree-
/tient be not an agreement in the words of the Act " for selling
chances." _ _ _

Sir S. Romilly still contended, that the construction put upon
the Act was erroneous; but independent of its construction the
demurrer must fall to the ground, because it covered too much.
They themselves had overruled their demurrer by their answer.
Their answer contained averments, the discovery of which
could not be possibly illegal. The bespeaking of the tickets was
cot illegal—the payment of the five shillings was not illegal—the
admission of the contract to procure the tickets in a conversa-
tion with other persons, was not illegal.
Mr. Luvatt argued on the same side, and particularly
on the informality of the demurrer, on account of its covering
too- much.
The Loan CHANCELLOR Was of the same opinion; but

said that the overruling of it in that view did the defendant no
harm.

Mr. Hart made some pbsertations on the asperity of Sir
Samuel Ron;illy's language in speaking of the conduct of the
defendant.

The LORD CHANCELLOR was convinced that it was not the
penalties of 1001. or 501. that the defendant feared, but the
imputation of rognes and vagabonds, which the law deemed
persons to be who carried on these illegal transactions.—Demur-
rer overruled.