stimulate the sale of the bonds by these large of appeals said (p. 8:) "It is true that Ausprizes, which were to be determined at every trian government bonds are vendible and drawing, and which every holder of a bond ought to be treated as other articles of comhad the chance of obtaining; and hence it merce, as a rule; but when those bonds are seems to me that the purpose of the scheme coupled with conditions and stipulations was not only to determine by lot when the which change their character from [462 bonds should be paid, but also to determine simple government bonds for the payment of a certain extraordinary chances to the holders certain sum of money to a species of lottery of the fortunate numbers drawn. The mere ticket which falls under the condemnation fact that these bonds are authorized by the of our statutes, it must be classed as its conlaw of a foreign country, and sanctioned by ditions characterize it, and then it is not the policy of such country, does not, as it vendible under our law, and it does not vioseems to me, in the least degree affect the late constitutional provision or treaty stipu question in this case. In Governors of Alms-lation to so hold.' The court further reHouse of New York City v. American Art marked that it had been vigorously argued, Union, 7 N. Y. 228, a lottery was defined to that because the money ventured must all be a scheme for the distribution of prizes by come back, with interest, so that there could chance; and the same definition is given in be no final loss, it could not be a lottery, Thomas v. People, 59 Ill. 160 and Dunn v. and added: "At some uncertain period dePeople, 40 Ill. 465. The bonds in question termined by the revolution of a wheel of certainly involved a lottery, within the fortune, the purchaser of a bond does get his meaning of the cases I have cited, and many money repaid; but we do not think this demore to the same effect might also be quoted. prives the thing of its evil tendency, or robs The circular sent through the mail was in-it of its lottery semblance and features. The tended to induce persons to purchase and deal inducement for investing in such bonds is in these bonds with the hope of becoming offered of getting some bonus,' large and 461] the lucky winners of some* of the high small, in the future, soon or late, according prizes to be distributed at each drawing; and to the chances of the wheel's disclosures. the fact that the purchasers of the bonds were, The investment may run one year or it may by the drawing plan, to get back their prin- run thirty years, according to the decision cipal, and in the aggregate what is equiva- of the wheel. It cannot be said this is not lent to a very small rate of interest upon that a species of gambling, and that it does not principal, does not, as it seems to me, change tend in any degree to promote a gambling the character of the transaction, or relieve it spirit and a love of making gain through the from the characteristic features of a lottery; chance of dice, cards, wheel, or other method that is, that high prizes, out of all due pro- of settling a contingency. It certainly canportion to the amount of money paid for a not be said that it is not in the nature of a bond, were to be drawn for, and distributed lottery,' and that it has no tendency to create by chance among the holders of these bonds, desire for other and more pernicious modes in the same manner as the prizes are deter-of gaming. Our statute does not justify a mined in an ordinary lottery.

"

In Ballock v. State, 73 Md. 1, 8 L. R. A. 671, the court of appeals of Maryland held that the selling of the Austrian bonds in question was a violation of the anti-lottery law of that state. The Maryland Code, article 27, § 172, provided against the drawing of any lottery, or the selling of any lottery ticket, in the state 173 provided that all devices and contrivances designed to evade the provisions of $172 should be deemed offences against it; 174 provided a punishment for offending against any of the provisions of § 172 and § 173; § 183 provided that the preceding sections should apply to all lotteries, whether authorized by any other state, district, or territory, or by any foreign country, and that the prohibition of sale of any lottery ticket or other device in the nature thereof, should apply to lotteries drawn out of Mary land as well as those drawn within it; and §184 provided that the courts should construe the foregoing provisions, relating to lotteries, liberally, and should adjudge all tickets, parts of tickets, certificates, or any other device whatsoever, by which money or any other thing was to be paid or delivered on the happening of any event or contingency, in the nature of a lottery, to be lottery tickets. Ballock was indicted and convicted for violating those provisions, by selling Austrian government bonds substantially like the bonds in question here. The court

court, expressly directed to so construe the law as to prevent every possible evasion, whether designedly or accidentally adopted, in deciding a thing is not a lottery, simply because there can be no loss, when there may be very large contingent gains, or because it lacks some element of a lottery according to some particular dictionary's definition of one, when it has all the other elements, with all the pernicions tendencies, which the state is seeking to prevent.

In Long v. State, 74 Md. 565, 572, it was said to be a valid exercise of power in a state to protect the morals and advance the welfare of the people by prohibiting every scheme and device bearing any semblance to lottery or gambling.

In Cohens v. Virginia, 19 U. S. 6 Wheat. 264, 441 [5: 257, 300], it was held that where an Act of Congress empowered the corporation of the city of Washington to authorize [463 the drawing of lotteries for certain purposes it could not force the sale of the tickets in Virginia, where such sale was prohibited by law. That case is a strong authority in favor of the view that, although lottery tickets are authorized by one government, such validity cannot authorize their sale within the territory of another government which forbids such sale. That is the case now before us.

As to what have been held to be lottery tickets by the courts of the several states, reference may be made to Com. v. Chubb,

of appeals stated "purported on its face to be a share or interest in and to a certain illegal lottery.

in the general court of Virginia, 5 Rand. | publicly by the seller before the sale, but (Va.) 715; Dunn v. People, 40 Ill. 465, the purchasers did not know until after the where it was held that the character of the sale what prizes they were entitled to, and transaction would not be changed by assum- the prizes varied in character and value. ing that the ticket represented an article of The tea was good and worth the money paid merchandise intrinsically worth the amount for it. It was held that the transaction conwhich the holder would be obliged to pay, stituted a lottery, within the meaning of the and that if every ticket in any ordinary lot- statute. tery represented a prize of some value, yet The only case of importance to the contrary if those prizes were of unequal values, the is that Kohn v. Koehler, 96 N. Y. 362. That scheme of distribution would still remain a was an action brought in the supreme court lottery; Thomas v. People, 59 Ill. 160, where of New York by Kohn against Koehler, una ticket was a receipt for money in payment der § 32 of part 1, chap. 20, title 8, article for the delivery of a copy of an engraving, 4, of the Revised Statutes of New York, and for admission to certain concerts and which provided that "any person who shall lectures, for which it was sold, and money purchase any share, interest, ticket, certifi was to be distributed in presents amounting cate of any share or interest, or part of a to a certain number, to the purchasers of ticket, or any paper or instrument purporting engravings, and it was held that that was a to be a ticket or share or interest in any ticket, scheme for the distribution of prizes by or purporting to be a certificate of any share chance, and constituted a lottery, it being or interest in any ticket, or in any [465 apparent that some of the purchasers would portion of any illegal lottery, may sue for fail to receive a prize, and that even if the and recover double the sum of money and ticket to the concerts and lectures, and the double the value of any goods or things in engraving, were intrinsically worth the action which he may have paid or delivered price paid, the scheme would still be a lot- in consideration of such purchase, with tery; Chavannah v. State, 49 Ala. 396, where double costs of suit." Kohn sued to recover it was held that the venturing of a small double the amount paid by him to Koehler sum of money for the chance of obtaining a for a bond issued by the authority of the greater sum was a lottery; Com. v. Sheriff, government of Austria, like the bonds now 10 Phila. 203, where it was said that what-in question before us, and which the court ever amounted to the distribution of prizes by chance was a lottery, no matter how ingeniously the object of it might be concealed; Holoman v. State, 2 Tex. App. 610, The constitution of New York of 1846, in where it was held that selling boxes of candy article 1, § 10, provided as follows: "Nor at fifty cents each, each box being repre-shall any lottery hereafter be authorized, or sented to contain a prize of money or jewelry, the purchaser selecting his box in ignorance 464] of its contents, was a* device in the nature of a lottery; State v. Lumsden, 89 N. C. 572, where a like device was held to be a lottery; aud Com. v. Wright, 137 Mass. 250. Cases in England are to the same effect. In Reg. v. Harris, 10 Cox, C. C. 352, it was held that a lottery in which tickets were drawn by subscribers of a shilling, which entitled them at all events to what purported to be of the value of a shilling, and also to the chance of a greater value than a shilling, was an illegal lottery within the statute. In Sykes v. Beadon, L. R. 11 Ch. Div. 170, 190, there were holders of certificates, who subscribed money to be invested in funds which were to be divided amongst them by lot, and divided unequally, that is, those who got the benefit of the drawings got a bond bearing interest and a bonus, which gave them different advantages from the persons whose certificates were not drawn; and it depended upon chance who got the greater or the lesser advantage. The scheme was held to be a subscription by a number of persons to a fund for the purpose of dividing that fund among them by chance, and unequally; and Sir George Jessel, Master of the Rolls, characterized the scheme as a lottery. In Taylor v. Smetten, L. R. 11 Q. B. Div. 207, packets were sold, each containing a pound of tea, at so much a packet. In each packet was a coupon entitling the purchaser to a prize, and that fact was stated

any sale of lottery tickets allowed, within this state." By 22 of part 1, chap. 20, title 8, article 4, of the Revised Statutes of New York, a penalty was provided against a person who should set up or propose any money to be distributed by lot or chance, to any person who should have paid or contracted to pay any valuable consideration for the chance of obtaining such money; by § 24, all contracts made or executed for the payment of any money in consideration of a chance in a distribution of money should be void; and by § 26, "every lottery, game, or device of chance, in the nature of a lottery, by whatever name it may be called, other than such as have been authorized by law, shall be deemed unlawful, and a common and public nuisance."

At the special term of the supreme court, the defendant had a judgment in his favor, which was reversed by an order of the gen eral term. Kohn v. Koehler, 21 Hun, 466. The court of appeals reversed the order of the general term and affirmed the judgment of the special term. In its opinion, the court of appeals said that the purpose of the Austrian government, in issuing the bonds, was to obtain money for its own use; that the provision by which, upon a certain contingency, the holder of the bond might receive an additional sum, was no doubt an inducement held out for the purpose of obtaining money on the same, but it did not constitute the main feature and the substance of the transaction between the government

and the purchaser of the bond; and that it] could not be held, upon any sound theory, that the privilege of obtaining by lot or 466] *chance a larger sum than the principal, interest, and premium, which the holder was sure to get in any event, imparted to the loan the character, object, and accompaniments of a mere lottery scheme, in violation of the constitution and laws of the state of New York. Judge Finch dissented.

was

It is to be noted that the New York statute under which the action referred to brought, was aimed against a share or interest in an "illegal" lottery. The Act of Congress of June 8, 1872, now § 3894 of the Revised Statutes, as originally enacted, condemning only "illegal" lotteries, was amended by the Act of September 19, 1890, so as to cover "any lottery, so-called gift concert, or other similar enterprise offering

prizes dependent upon lot or chance." As the New York statute contained the word "illegal," it may be that the court of appeals gave force to the view that the Austrian loan was a legal lottery, from the fact that it dwelt so largely on the idea that the bonds were issued by the Austrian government, in accordance with its laws, for the purpose of obtaining a loan of money, in connection with the further facts stated by it, that like bonds had been issued by several governments of other countries, and that the bond in question was an evidence of debt and a public security of a foreign government, exposed for sale in the same manner as other securities upon which money is loaned. It by no means follows that the court of appeals would have made a like decision on a statute with language in it

like that of § 3894.

The case of Ex parte Shobert, 70 Cal. 632, merely followed the ruling in Kohn v. Koehler, supra.

The question whether the transaction covered by this indictment was an offense against 3894, was sought to be raised in the case of Ilorner v. United States, No. 2, 143 U. S. 570 [36: 267] which was before us prior to the finding of this indictment, on an appeal from an order of the circuit court dismissing a writ of habeas corpus sued out on the commitment of Horner by a commissioner of the court, to await the action of the grand jury. The point was raised here, on the appeal, that the Austrian bond scheme was not a lottery; but this court said (p. 577) that that question was properly triable 467] by the circuit court, if an indictment should be found, and that it was not proper for this court on the appeal, or for the circuit court on the writ of habeas corpus, to determine the question as to whether the scheme was a lottery. We have now considered that question, and are clearly of opinion that § 3894 applies to the transaction. The three questions certified must each of them be answered in the affirmative, and it is so ordered.

CLEMENT, EUSTIS & COMPANY,
Piffs. in Err.,

v.

J. A. FIELD & COMPANY.

(See 8. C. Reporter's ed. 467-476.) Former recovery, when a bar.

In an action of replevin to recover a mill under and by virtue of a chattel mortgage thereon where defendant set up as a defense damages for a breach of a warranty of the mill and for delay in delivering it and was allowed such damages as a set-off in that action, he is precluded from bringing a further action for the recovery of such damages, and the judgment in the former action is a bar to the subsequent one.

[No. 111.]

Submitted Jan. 3, 1893. Decided Jan. 30, 1893.

United States for the District of Kansas, to

IN ERROR to the Circuit Court of the

review a judgment for defendants in an action to recover damages for the breach of a warranty in a contract and for delay in delivering property in which the defense was a former recovery. Affirmed.

Statement by Mr. Justice Shiras:

This action was commenced in the district

court of Rice county, Kansas, August 10, 1885, by the plaintiffs in error, and in the following month, after the pleadings were filed, was removed into the Circuit Court of The essential averments of the petition are the United States for the District of Kansas. that on or before June 22, 1883, W. P. Clement, M. B. Clement, and Charles Eustis, partners doing business under the firm name in raising sorghum cane, and manufacturof Clement, Eustis & Co., were engaged ing sugar and molasses therefrom, in Rice County, Kansas, and that J. A. Field and Alexander McGee, of St. Louis, Missouri, partners doing business under the firm name [468 of J. A. Field & Co., were engaged in making cane mills: that on or about that date Clement, Eustis, & Co., the plaintiffs, employed J. A. Fields & Co., the defendants, to make for them a certain kind of cane mill, to be delivered on board the cars in St. Louis on or before August 1, 1883, and agreed to pay for the same the sum of $1850-$500 cash in hand, $500 on November 1, 1883, and $850 on November 1, 1884, with interest at six per cent per annum on the second deferred payment from the said date of shipment, and that promissory notes were given by the plaintiffs for the deferred payments, secured by a chattel mortgage on the mill. plaintiffs averred that the defendants war

The

NOTE. As to conclusiveness of judgment, see note to Bank of United States v. Beverly, 11: 75.

As to judgment in admiralty, when conclusive, and when may be re-examined, see note to Williams v. Armroyd, 3: 392.

As to parol evidence to explain judgment by showing issues litigated and decided, and grounds of de

cision, see note to Miles v. Caldwell, 17: 755.

As to estoppel by judgment, see note to Aspden v. Nixon, 11: 1059.

As to consequences of a nonsuit or dismissal of complaint, see note to Homer v. Brown, 14: 970.

As to autrefois acquit or convict: effect of, in criminal cases, see note to United States v. Perez, 6: 165.

ranted the inill to be as good and to be ca- in the petition in the present case; that the pable of doing as much work and as good notes and chattel mortgage in the action of work as any mill made, and promised, in replevin were the same notes and mortgage case of its failure to operate as warranted, to described in the said petition; that the claims replace it at their own expense with a mill for damages in that action were based upon that would so operate, or refund the purchase the same grounds as the causes of action set money; that the mill proved not to be as war-out in the said petition; that the replevin ranted; that the defendants failed, neglected, action was tried upon its merits and suband refused to perform their contract regard-mitted to a jury upon the evidence and the ing the said warranty, and that the mill was instructions of the court, and determined as not delivered on board the cars in St. Louis stated in the answer in the present suit; that until August 15, 1883, by reason of which the defendants in that action (plaintiffs in delay, as well as by the said breach of war- this case in the court below) introduced eviranty, the plaintiffs were deprived of profits dence tending to establish their said claim for which they should have realized, and were damages, and that *none of the evid. [470 compelled to incur certain expenses, where-ence offered in support of such claim for damby they sustained damages which they sought ages was ruled out by the court or excluded in the action to recover. from the jury.

The court thereupon decided that the plaintiffs had had a former recovery against the defendants upon the cause of action set up and tried in the replevin proceedings; that the proceedings and judgment therein constituted a complete bar to the plaintiffs' cause of action herein, and gave judgment for the defendants.

The plaintiffs then moved for a new trial. This motion was overruled, whereupon they brought the case before this court upon a writ of error.

The answer denied generally the averments of the petition, and contained several special defenses, one of which was, that on October 2, 1884, the said defendants brought an action against the said plaintiffs in the Circuit Court of the United States for the District of Kansas, to recover possession of the said mill, alleging that they were entitled thereto by reason of an alleged breach of the conditions of said chattel mortgage, and that their interest in the mill amounted to the value of the said promissory notes, with interest, or $1450; that the plaintiffs filed an answer to that petition, alleging that the defendants had no interest in the mill, and that nothing was due on account of the notes, for The evidence offered by the defendants bethe reason that the mill was not shipped on low upon their plea of former recovery, under August 1, 1883, and that it did not prove to the fourth defense of their answer, constitutes 469] be *as warranted, whereby the defend- no bar to the right of recovery of the plaintiffs ants became liable to the plaintiffs for dam-in error. The most that can be claimed, if ages in a sum greater than the amount of the anything, is, that it constitutes only a partial notes and interest, and asking that the alleged | damages might be set off against the notes and interest, and that the plaintiffs might have judgment for such balance over the amount of the defendants' claim.

Messrs. A. P. Jetmore and A. B. Jetmore, for plaintiffs in error:

bar.

Spencer v. Dearth, 43 Vt. 105.

The rule of res adjudicata is, that if a fact has been once direc ly tried and determined by a court of competent jurisdiction, the same The answer averred that the action of re-parties cannot properly be again allowed to plevin was tried upon its merits before the contest the same matters, either in that court court and a jury; that the jury found that the or any other. defendants were entitled to possession of the mill, and that the value of their interest therein was $1151.20; that, in accordance with the verdict, judgment was duly entered, and that by reason thereof the plaintiffs had had a former recovery against the defendants upon the cause of action set out in the petition to which the answer is addressed.

The reply of the plaintiffs admitted that the defendants brought the action of replevin, and that the plaintiffs appeared therein and sought to have judgment for their damages sustained by reason of the said breach of contract and warranty, but averred that they were not permitted by the court to make such defense to the action, and that their damages were not therein adjudicated.

The case came for trial December 7, 1887, in the said circuit court of the United States, and, a jury waived, was tried by the court. The defendants produced for the inspection of the court the record in the replevin action, and offered other evidence, which, in the opinion of the court, showed that the property sought to be recovered in that action was the same property mentioned 147 U. S. U. S., Book 37.

16

Wells, Res Adjudicata, SS 4, 12, 13; Ho!comb v. Phelps, 18 Conn. 131; Johnson v. White, 13 Smedes & M. 587.

But the rule does not apply, as in the case at bar, to matters which come only collaterally under consideration, or are only incidentally considered, or can only be argumentatively inferred from the judgment.

Hopkins v. Lee, 19 U. S. 6 Wheat. 109 (5: 218); 2 Smith, Lead. Cas. (6th ed.) 648, 649, 792, 794; 1 Greenl. Ev. § 528; Story, Conf. L. § 593.

The jury in the replevin action may have found a verdict in favor of the defendants be low without considering the question of dam ages.

Burlen v. Shannon, 14 Gray, 433, 439; Wood v. Jackson, 8 Wend. 9, 22 Am. Dec. 603; Aiken v. Peck, 22 Vt. 255; Smith v. Weeks, 26 Barb. 463; Ridgley v. Stillwell, 27 Mo. 128; Washington, A. & G. S. P. Co. v. Sickles, 65 U. S. 24 How. 333 (16: 650); Lawrence v. Hunt, 10 Wend. 88, 25 Am. Dec. 539; Norton v. Hurley, 13 Gray, 285: Finley v. Hanbest, 30 Pa. 190.

It is only the matter upon which the plaintiffs prevailed in their replevin action, to wit,

245

the possession of the property under the chattel | of $1850, whereof $500 was payable in cash, mortgage, that was in issue.