
    The State, use of Eckman, vs Wolfe, et al.
    
    Appeal from Frederick County Court. This was an action of debt brought at the instance and for the use of Jacob Eehnan, on a bond executed by the defendants as ; managers of a lottery, &c. The defendants, (now appellees,) pleaded general performance, to which there was a replication of non-performance, assigning the breaches, &e«
    At the trial, the plaintiff offered in evidence an office copy, under seal, of the bond of the defendants, as managers of the lottery therein mentioned, dated the 4th of April 1804, and which was taken agreeably to the act of 1808, eh. 35. The plaintiff also offered in evidence the scheme of a lottery, which is admitted to be the scheme proposed by the managers. Also a lottery ticket, No. 3626, and which was admitted to be one of the tickets issued by the managers. The plaintiff then proved, by the testimony of Charles BaUzell, that the drawing of the lottery was commenced, and that he was |>resent when part of the numbers, blanks and prizes, were put in the wheels by the managers, but does not recollect whether he saw the whole of them put in or not; that at that time he, the witness, heard of no error in counting or putting into the wheels the blanks and prizes. The plaintiff’further proved, that the managers proceeded to draw fhe lottery, and that after some days drawing, the number of the ticket above-mentioned was drawn against the prize of S80Q mentioned in the scheme. The plaintiff further proved* that Jacob Eehnan, for whose use this action was brought, presented the above ticket to Jacob Wolfe, one of the defendants, and demanded payment of the prize, and that Wolfe refused to pay it, and that this demand was made more than two months, and within six months', after the ¿rawing of the lottery was completed. The defendants then proved by a competent witness, that at the Conclusion of the drawing of the lottery, there was found in one of the wheels fourteen blanks and prizes against which there were no corresponding numbers remaining in the other wheel; that the managers then concluded to draw the lottery over again. That on the second drawing, before the wheels were exhausted, several mistakes were detected in the second drawing by them, there being duplicates of the numbers drawn from one of the wheels. That the managers discontinued the second drawing, and commenced a third drawing; on which third drawing the blanks and prizes and numbers came out even, and that neither on the second nor third drawing was the prize claimed by the plaintiff drawn by him. The plaintiff then prayed the opinion of the Court to the jury, that if they shall find from the evidence that the numbers, and blanks and prizes, were all put in the wheels before the drawing commenced, and that the drawing of the lottery was regularly begun according to law, and that the said ticket No. 3626 drew the prize of §800, that then the plaintiff is entitled to res cover. Which opinion the court, [Buchanan, Ch. J. and Clagett and Shriver A. J,] refused to give. The plaintiff excepted; and the verdict and judgment'being for the defendants, the plaintiff appealed to this court.
    
      Ttyimthe drawing of a loíleiy a certain ticket therein uwnoil by .T K. for wbot-e. use tills aeii«m "'us brought, «Trow a prize, but upon tin’ conclusion of*the drawing: there w<*rc found in oi\e of the •wheels. 14 blanks and przes, against winch fhore were'no corrctpoittUii^' numbers re main im? m iIn* otlnr wlo“el, and the manajyeis di ew the lottery over again; on the t>«*cond drawing before the wheels ■were exhansti-d, several mutakes •w»re detected, anil the manager'» discontinued the second drawing:, ami commenced a third drawing*, on which the blanks ami piizes and «nmbers tame out fcvcm In neither thesiicend nor the. third drawing was the prize ckum-d hy the plaintiff drawn — Ilcht that the action could not bo jnaintamcd. ■
    
      The cause was argued before Folk, Earle, and Johnson, J. by
    
      Taney and Brooke, for the Appellant;
    and by
    
      Warfield, for the Appellee.
   JUDGMENT AFFIRMED.  