general mass, and that the name of each one of the Queen's Bench. 1846. GATTY V. FIELD. Volume IX. 1846. GATTY V. FIELD. the holder of the card containing the name of the horse who should be placed as aforesaid as second in the said race should be entitled to receive in like manner the sum of 97.; and that, in like manner, &c. (the holder of the card containing the name of the horse placed third, to be entitled to 47.). And that the holders of cards containing the names of the said horses which should start in the said race, except the first, second and third, should be entitled as aforesaid to the sum of 10l.: contrary to the form of the statute in such case made and provided. Averment that, the said illegal game having been so set up, kept open, &c. in manner aforesaid, the plaintiff, the defendants, and divers, to wit sixty, other persons, afterwards, to wit on &c. and on divers other days and times afterwards and before the drawing of the said game as hereinafter mentioned, according to the said terms, rules and regulations, became and were respectively adventurers in and subscribers to the said game to the amount of the said sum of 15s. each; and they then, as such adventurers and subscribers, contributed and paid the said sum each; and the amount of the said sums, so contributed and paid by them as aforesaid, came altogether to a large sum, to wit 48l. 15s.; and the same were on the said days and times paid to and received by the said "Mr. Selway," so being secretary as aforesaid, and the said defendants, which is the acknowledged receipt of the said sums of money in the said first count mentioned. And that, after the setting up of the said illegal game, and before the said drawing, to wit on &c., (the plea then stated an agreement, between plaintiff, defendants and the other adventurers, that the terms and rules should be varied by reducing the number of the adventurers to sixty five; and that the drawing for Queen's Bench. the race should be postponed till 10th March, 1845). The plea then stated that, afterwards, and before the running of the said race, to wit on &c., and in pursuance of the said terms, rules &c., and in furtherance of the said illegal game, the name of each one of the said horses entered for the running of the said race, and the names of each of the said adventurers or subscribers, were put, placed, mixed up together, and drawn, and two disinterested persons, whose names are to the defendants unknown, were duly appointed in all respects according to the terms &c. aforesaid: And that, upon that occasion, one of the said two disinterested persons drew, openly and as chance directed, and out of the said box containing the said cards with the names of the said horses thereon, according to the said terms, &c., a card with the name of a horse thereon, to wit a horse called Merry Monarch, which had been and was proposed and entered to, and did, run the said race; and then, immediately succeeding the said drawing, the said disinterested persons drew out of the said other box containing the cards with the names of the plaintiff and the said other adventurers &c., according to the said terms, &c., a card with the name of the plaintiff thereon: contrary to the form of the statute in such case &c. And that, afterwards, and before the commencement of this suit, to wit on the said 29th May, 1845, the aforesaid race was run, and the said horse called Merry Monarch, whose name was put on the said card so drawn as aforesaid, was, in the running of the said race, placed by a certain person, "to wit one Mr. Clark," then being the judge in that behalf of the said race duly appointed, as the winner thereof: whereby the plaintiff, 1846. GATTY v. FIELD. 1846. GATTY V. FIELD. Volume IX. according to the said terms and regulations of the said illegal game, became and was entitled to receive from and out of the said subscriptions the said sum of 24l.: Which is the said sum of money in the said first count mentioned, and not other or different, and which said sum consists exclusively of portions, and is parcel, of the said subscriptions so paid and received as aforesaid. Verification. Demurrer, assigning for causes: That the said last plea does not set forth or show any illegal game or lottery; and the supposed game and supposed lottery in the said last plea mentioned is legal and not contrary to any statute: And also for that the said last plea, although pleaded to the whole declaration, does not confess that the defendants were indebted to the plaintiff in 247. for money found to be due upon an account stated, but argumentatively denies the same; and the said last plea gives the plaintiff no colour to maintain his action upon the said account stated, and, as to that count, amounts to the General issue: And also for that the said last plea is uncertain in that it does not set out the Christian or first names of the said Mr. Selway, or Mr. Richards or Mr. Clark, or aver that such Christian or first names were or are unknown to the defendants; and is further uncertain in not stating the names of the adventurers therein mentioned, or of the two disinterested persons therein mentioned; and, although it is stated that the names of the said two disinterested persons are unknown to the defendants, it does not appear that their names are unknown to each of the defendants, and it is consistent with the averments in the said plea that the names of the said two disinterested persons are known to one of the defendants: And also for that it appears 1846. GATTY by the said last plea that the defendants did receive Queen's Bench. to plaintiff's use the sum of 15s. contributed and paid by him as in the said plea admitted, and that they are liable to repay the same to the plaintiff; and the said plea, being bad in part, is bad altogether. Joinder. The demurrer was argued last Easter term (a). Pearson for the plaintiff. It cannot be contended, after the decision in Allport v. Nutt (b), that the species of lottery described in the plea is legal (c). But the declaration here is unanswered as to 15s. of the amount claimed. That sum, being the deposit made by the plaintiff as a contributor to the lottery, is not alleged to have been paid over; and he is therefore entitled to recover it; Hastelow v. Jackson (d), Hodson v. Terrill (e). The action, here, is notice to the defendants not to pay over the deposit; and, after notice, that payment would be wrongful. The plea (which was held good) in Allport v. Nult (b) excluded the deposit money from the sum claimed. Further, the plea either amounts to a general issue pleaded to the account stated, or is bad for duplicity, being an attempted answer both as to the 247. claimed in the first count and the 247. claimed in the second count. It is true that the plea professes to identify the "sum of money and causes of action" in the first (a) May 1st. Before Lord Denman C. J., Patteson, Williams and Wightman Js. (b) 1 Com. B. 974. See Jones v. Carter, 8 Q. B. 134. (c) Pearson, however, suggested that that decision was previous to stat. 8 & 9 Vict. c. 109. s. 18.; but Hugh Hill, contrà, (denying that the clause applied to this kind of transaction) observed that the present plea was pleaded before 8th August, 1845, when the act received the royal assent. (d) 8 B. & C. 221. See Mearing v. Hellings, 14 M. & W. 711. (e) 1 Cr. & M. 797.; S. C.3 Tyrwh. 929. V. FIELD, |