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Genealogical Gleanings From
Reports of Cases Determined in the
Supreme Court of Alabama, 1820-1826
Assumpsit by Horatio Dade against George Buchannon, Benjamin S. Smoot, and Matthew D. Wilson, charging that, as managers of the St. Stephens’ Academy Lottery, they sold and delivered to him a ticket in the lottery, to which a prize of $5,000 was drawn; and that from the time of the sale he was and still is the bearer of the ticket, etc., etc. The defendants plead,
At April term, 1823, the record states that the parties came, by the attorneys, and show a verdict “that the defendants did not, nor did either of them assume or undertake in manner and form,” etc., and a judgment in favor of Buchannon, Smoot, and the administrators of Wilson for their costs.
On the trial the plaintiff proved that Buchannon, Smoot, and Wilson, were managers of the lottery, which was authorized by law; that the lottery was drawn in the spring of the year 1819; that a prize of $5,000 was drawn to the number of the plaintiff’s ticket; that, according to the terms of the lottery, he demanded of the defendants payment of the prize; that the persons who conducted the lottery acted under the direction of the defendants, who were a committee appointed by the president and trustee; that, in drawing, there had been a mistake, eleven tickets at the close of the drawing remaining in one wheel, and but one in the other. There was no evidence that either of the defendants sold any tickets. It was proved that Buchannon had, at different times, made special deposits in the bank for the board of trustees. It was not proved that Smoot or Wilson had ever received any money for tickets. (Other evidence was stated in the bill of exceptions, which is not material to the decision.) The Circuit Court charged the jury that, as the defendants were only the agents for the president and trustees of the St. Stephens Academy, they were not liable to the plaintiff; and that, in law, the plaintiff was not entitled to a verdict against them. To which plaintiff excepted, etc., and here assigned as errors
1, 2, 3, and 4. No issues were submitted to or found by the jury on the second or third pleas of defendants, or on the plea of the administrators of Wilson; and, these pleas were not disposed of,
5 and 6. The verdict finds that the administrators of Wilson, as well as the other defendants, did not assume, when the plea of the administrators admits that Wilson did assume.
7 and 8. The court erred in the instructions to the jury.
JUDGE SAFFOLDAs to the first six assignments, the want of replication to the second and third pleas was the plaintiff’s own omission. The plea of the representatives of Wilson is believed to have been irregular. The plaintiff has not right to complain of omissions or irregularities which could not prejudice him. Had issues been formed on all the plea, a general verdict would have been decisive of all material averments in the declaration and pleas. The record shows that the parties appeared and went to trial on the merits; and we are left to infer that they waived the special pleas or the went of replications thereto, and to attach to the verdict the same effect as if it had found or ascertained all the matters of fact controverter by the parties. Not to give it this effect would be to permit a party to take advantage of his own wrong.
The 7th and 8th assignments relate to the charge of the court as stated in the bill of exceptions. To charge that from the evidence the plaintiff could not recover, would have assumed matters of fact which belonged to the jury to decide, unless they were conceded, and especially such as relate to the mistake. There does not appear to have been any distinct adjudication in the court below as to the effect of the mistake, unless it be in the charge as above referred to.
As to the latter part of the chargethat “inasmuch as the defendants were agents of the trustees they were not liable”it is the opinion of this court that the liability of agents depends on the nature, extent, and form of their engagements; and in many instances they may be liable for their acts as such. Here then the record represents no copy of the ticket, nor anything from which its precise form and legal effect can be ascertained; nor is it shown whether the mistake in the drawing was a fact conceded or left to the jury to determine. We are of opinion that the court erred in the instructions of the jury, and that the judgment must be reversed and the cause be remanded for further proceedings.
Source: Henry Minor, Reporter, Reports of Cases Determined in the Supreme Court of Alabama From May, 1820, to July, 1826 (Atlanta: 1891), pp. 415-417.