Sec. 67. The cases in regard to wagers in general have been reviewed and cited thus extensively for the purpose of presenting the views of the various courts on the question of chance and what it is to make the payment of money dependent upon chance. In many of these cases statutory provisions had a controlling influence. But one can not read the opinions of the courts on this subject without being impressed with the proposition that chance, after all, consists in our ignorance of the event upon which a wager is laid, rather than upon anything that inheres in that event itself. If a man does not know whether an event will turn out one way or the other and he stakes money on it, as to him the event will happen by chance, because it is brought about without his will or choice.

Sec. 68. In the review of these cases a distinction must be made between those where the party wagered his money upon some act to be performed by himself and those where the result depended upon the act of another person or upon the act of a dumb brute which was to be controlled by another person. In the former cases the bettor may, very well, be regarded as entering the contest with another motive than the mere winning of money and as feeling that the result depends largely on his own effort, while in the latter cases he stakes his money not on his own ability to bring about the result according to his will but simply on his opinion of what another person or some animal can do. A boy playing marbles for "keeps," a marksman at a shooting match for beef, turkey or other prize, and a party entering a foot or boat race or some athletic contest care less about what is to be won than the glory of becoming a champion. It is not to be inferred from what is here said that a party may not be guilty of gambling upon an event to bring about which he personally participates in the contest but these obesrvations are intended to point the distinction in the two classes of cases above mentioned. The distinction is broad and wide between what a party may do and what he thinks another can or will do and especially what

he thinks a horse or other animal under the control of a third person can do.

It is important to keep this distinction in mind in the review of the foregoing cases because in many of them the parties staked their money on the result of games or contests in which they personally participated.

These cases, involving ordinary wagers, have been reviewed for another purpose and that is to show what a wager is, because that is not only a very important but an essential element of a lottery scheme and one can not escape the conclusion that if this fact had been kept steadily in mind by the courts the results in some of the cases would have been different.

NON-ESSENTIALS OF A LOTTERY SCHEME.

Sec. 69. Having ascertained and stated the essential elements of a lottery scheme, what is not essential in such a scheme will now be briefly stated.

1. In order to constitute a scheme a lottery or similar enterprise it is not necessary that it should specify the method by which the award of the prizes should be made.

In Wooden vs. Shotwell, 23 N. J. L. (loc. cit.) 470, it was held that the chance element inhered in a scheme for the sale of lots of land, though the contract provided that the prize lots should be awarded in the manner to be agreed upon by the parties interested, i. e. by the adventurers.

In Thomas vs. The State, 59 Illinois, 160, the court held a scheme for the distribution of $200,000 in presents "in a just and legal manner " to be a lottery.

It was urged in defense of this scheme that no plan of distribution of the prizes had been determined upon; that the purchasers were to receive certain articles "in a just and legal manner" and that a plan might at the proper time be devised, which would neither violate the law nor contravene good morals. In reply to this contention the court said: "The distribution was to be in a just and legal manner. It should then be in an honest, upright and equitable mode. There

should be perfect fairness and equality. This plan would be utterly violated, if any one of the numerous purchasers should fail to receive a prize. The distribution could not be in a just and legal manner, unless the number of the purchasers was the same as the number of the prizes and the prize received proportional, as nearly as possible, to the amount of money paid."

And so in Lynch vs. Rosenthal, 42 N. E. Rep. 1103; 31 Law Rep. Ann. 835, it was held by the Supreme Court of Indiana that in a town lot scheme, the chance element inhered in the award of the "prize lot," though the contract provided it should be given away and should be awarded in some manner to be agreed upon by the parties interested.

And in England the same rule prevails. In Morris vs. Blackman, 2 H. and C. 912, where presents were to be "impartially divided among the audience and given away," the scheme was held to be a lottery.

In McLanahan vs. Mott, 73 Hun. 131, $400,000 was to be set apart at each semi-annual payment of interest to redeem bonds to be designated by a named trustee at their maturity value. The other elements of a lottery being found to be present the court held the scheme a lottery.

2. It is not necessary that there should be any blanks. In many of the cases, which will be hereafter reviewed, every investor received something of value, but the articles distributed were either not of the same kind or not of the same value.

3. It makes no difference whether the investors get all their money back or not, if prizes are given by lot or chance to some and not to others. This was specifically decided in the Horner case. 147 U. S. 449.

4. It is not necessary that there be any drawing by the promoter, oftentimes the investors doing the drawing.

5. It is not necessary that there should be tickets. This will appear in the most of the guessing contests. The tickets may be in the form of bonds as in the Horner and Bond

Investment cases hereafter cited or in the form of coupons, or keys, etc., etc.

Sec. 70. A lottery may exist even where there are no blanks. Some of the courts have said that a lottery is a scheme in which all except the prize tickets are blanks. In a sense this is incorrect. In many of the scehmes that have been adjudged lotteries by the courts apparently there were no blanks, for all investors drew something of value; and yet in a certain sense there are blanks in all lotteries. While the scheme may be such, that all investors draw something of value, yet that something, very frequently, does not constitute a prize, for the simple reason, that it is not of the same value as, but of less value than the amount invested, and in such case it would be in line with the exact truth to say that some of the investors draw blanks. Take the Horner case for an illustration. All holders of the Austrain bonds in that case were guaranteed the amount of money they invested, with interest, soon or late, but at the periodical drawings some of the numbers drawn entitled the holders of certain bonds, not only to the principal and interest of the bonds, but also to prizes ranging in amcunt from 400 florins to 250,000 florins. The holder of a bond, who drew the lowest prize of 400 florins, could not be said to have drawn a blank, though another more fortunate adventurer, in the same enterprise, may have drawn a prize of 250,000 florins. Both drew prizes, that is they both received more than they invested The adventurers, however, whose bonds were not drawn for payment, with a bonus, may very well be held to have drawn blanks, at least for that particular drawing. They retained, nevertheless, their chances for prizes in the future drawings. The same may be said of the so-called Bond Investment schemes. At stated periods, according to these schemes, certain bonds were reached and paid, with large profits, constituting prizes, while the holders of the other bonds failed to get anything, but the latter, so long as they continued to pay their dues, retained chances for prizes in the future. But there are other cases where there seem to be no blanks

and the courts have gone so far as to say, in some of them, that there were no blanks. Take the cases of Seidenbender vs. Charles, 4 Serg. and Rawle, 151 (8 Am. Dec. 682), and Dunn vs. The State, 40 Illinois, 465, as illustrating this class of cases. In Seidenbender vs. Charles, each adventurer drew a lot of land but the scheme was held to be a lottery, because the lots were of unequal value, some being worth much more and some much less than the uniform price, which each adventurer was required to pay. Tilgman, Chief Justice of the Supreme Court of Pennsylvania, on this point, remarked: "If it be said that in this case there are no blanks, I answer that no material difference arises from that circumstance. Some of the most fraudulent lotteries ever known have been those in which there were no blanks. They are an imposition on the folly of mankind; for of what importance is it, if a man who pays a considerable sum for a ticket has a prize of very little value?"

In Dunn vs. The People, 40 Illinois, 465, prizes, ranging in value from a cheap trinket to a grand piano, were offered to the public. There every adventurer drew something and yet the scheme was held to be a lottery on the ground that the prizes were of unequal value. The Supreme Court of Illinois denounced this scheme in the following language: "If it differs from ordinary lotteries, the difference is chiefly in the fact that it is more artfully contrived to impose upon the ignorant and credulous, and is, therefore, more thoroughly dishonest and injurious to society."