Commonwealth of Kentucky v. Bassford — 6 Hill & Den. 526

Majority

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The Commonwealth of Kentucky vs. Bassford and Nones.

Headnote

In geneva!, the law of the place wheve a contvact is to be performed, and not that of the place where it was made, is to govern in determining its validity and effect.

An action was brought on a bond conditioned for the faithful performance of the duties enjoined by a law of Kentucky authorizing the obligees to sell lottery tickets for the. benefit of a college in that; state. Held, that as the bond was valid at the place Where the condition was to be performed, the courts of this state should uphold it, notwithstanding our statute against lotteries.

Otherwise of a bond or obligation executed to carry into effect a foreign law sanctioning what is plainly contrary to morality &c. Per Nelson, Ch. J.

Laws are of no force, ex proprio vigore, beyond the territory of the sovereignty ■ which enacted them, and the respect which is paid to them elsewhere depends upon comity. Per Nelson, Ch. J.

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Every sovereignty has the right of determining for itself how far this comity shall be extended. Per Nelson, Ch. J.

Debt on a joint and several bond executed to the plaintiff by N. G. Jewett and J. S. Smith, together with. the defendants, in the penal sum of $8500, bearing date the 18th of June, 1840. The bond was conditioned as follows : “ Whereas 'the above bounden N. G. Jewett and J. S. Smith have purchased the grant of the ‘Shelby College Lottery’ from the managers of the said lottery, authorized by an act of the general assembly of the commonwealth of Kentucky, entitled ‘An act for the benefit of Shelby College,’ approved February the 16th, 1837, and the said N. G. Jewett and J. S. Smith intend not to have any prizes in the drawings of said lottery greater than the sum of ten thousand dollars: Now -if the said Jewett and Smith shall, within ninety days after any of the drawings of said lottery, pay or cause to be paid to the fortunate person or persons holding a ticket or tickets thereof, all such prizes as may be drawn by any individual or individuals agreeably to any such drawings, and shall furthermore not reserve more than twenty per cent, upon any such prize so drawn,- and shall not increase the capital prize in any such drawings beyond the said sum of ten thousand dollars, without first executing a new bond, with good security, in such penalty as may be sufficient to secure the payment of such increased prize, and in all things conform to and well and faithfully comply with all the terms and conditions of said recited act, then this obligation to be void” dec. The declaration, after setting forth the substance of the bond, together with the condition, averred that on the 16th of February, 1837, a public statute was passed by the general assembly of the commonwealth of Kentucky, entitled an “ Act for the benefit of Shelby College,” which authorized the establishment of the lottery mentioned in the condition of the bond, and provided that the managers might sell and dispose of -the scheme, or any class or classes dec., to any person or persons who should enter into a bond, with good security, conditioned well and faithfully to comply with all the terms and conditions of the act, dec.; the bond to be filed in the Shelby county court before

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said lottery or any class or classes thereof should be drawn &o. It was further averred in the declaration, among other things, that N. G. Jewett and J. S. Smith, “ heretofore to wit, on the 18th day of June, 1840, at Louisville in the county of Shelby and state of Kentucky, purchased of the said managers, for and in consideration &c., the grant or scheme of said ‘ Shelby College Lottery,’ and did thereupon, together with the said defendants, enter into the said bond aforesaid set forth;” that “under and by virtue of said act, a drawing of said lottery was had, heretofore to wit, on the 9th of December, 1841, at the city of Louisville in the state of Kentucky, in pursuance of a published scheme of said lottery &c.; that one Rufus Ford, a citizen of Kentucky, drew a ticket entitling him to the sum of $1000, subject to a deduction of fifteen per cent. &c.;” and that “ although more than ninety days elapsed since the time of the drawing, and although often requested so to do, yet the said N. G. Jewett and J. S. Smith have not, nor hath either of them paid or caused to be paid the said prize of $1000, &c., but the said Jewett and Smith and the said defendants have hitherto wholly neglected and refused” &c.

The defendants demurred to the declaration, and the plaintiff joined in demurrer.

J. T. Brady, for the defendants.

J. W White, for the plaintiff.

The principal ground of the demurrer is, that the bond set out in the declaration, and upon which the action is founded, appears to have been given to secure the payment of money to be raised and distributed by a lottery, contrary to the laws of this state, and against good morals ; and further, that it appears from the declaration that the bond was executed in New-York.

The defendants not having craved oyer of the bond, we cannot regard the copy set forth as any part of the plead

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ings for the purpose of deciding the question raised,^[1] but must look solely to the declaration; and then, I apprehend, it will be difficult to maintain, as matter of fact, that the bond was executed in this state. On the contrary, I think the presumption would be that it was executed in' the state of Kentucky, where beyond all question it would be upheld as a legal and valid obligation.

But whether the bond was executed in New-York or Kentucky cannot I think vary or affect the determination of the question. For it is manifest that the performance of the several stipulations on the part of the defendants, provided for by the condition, was to take place in Kentucky, in which case the rule respecting the construction and effect of the instrument is the same as if it had been made in that state. (Andrews v. Herriot, 4 Cowen, 508, 511, note (a); Story On Confl. of Laws, 233.) That these stipulations were to be performed in Kentucky, is too plain for argument, especially when the provisions of the-statute establishing and regulating the lottery are viewed in connection with the condition of the bond. The object of the condition was to secure a compliance with the requisitions of the statute in the state where the lottery was established. If any authority were necessary on this point, I might refer to the cases of Cox v. The United States, (6 Peters, 172,) and Duncan's heirs v. The United States, (7 id. 435,) which are decisive.

True, as foreign laws are of no efficacy here ex proprio vigore, but by comity only, our courts may and-ought to determine in each case how far that comity shall extend. If the law sanction what is plainly contrary to morality, the public rights &c., the courts of this state -will not aid in administering it. (Story On Confl. of Laws, 213, § 258.) But I do not regard the one in question as falling within this class of excepted cases; any more than a foreign law allowing interest on money beyond the rate established by our own statute. (Andrews v.

(a) (a) See Rockefeller v. Hoysradt, ( 2 Hill, 616 .)

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Pond, 13 Peters’ Rep. 65 .) Indeed, the policy of raising money by lottery for public purposes, such as for literary and benevolent institutions, continued. to prevail in this state until 1833, (Sess. Laws of 1833, p. 484,) though before prohibited as unwise and inexpedient in the constitution of 1821, so far as respected the future power of the legislature. (Const, of N. Y. Art. 7, § 11.) It would be rather ungracious for our courts, under these circumstances, to refuse to uphold the contract in question, within the rule of comity, on the ground that it was founded in moral turpitude.

Judgment for the plaintiff.