Paine v. France

Bowie, C. J., delivered the opinion of this Court: The complainant, a citizen of New York, claiming as assignee of the defendants, of one-half interest ill all avails and profits of a contract entered into by the latter, oil the 18th duly, 1819, with the Commissioners of Lotteries of the State of Maryland, filed In’s bill on the 24íh Jañ’y, 1853, prayin.g that the defendants, (one of whom, Morris, does not reside in 'die State,) may answer, and “set forth the amounts of their sales of tickets in the Maryland lotteries by said contract referred to, and their sales of licenses for soiling tickets in Baltimore, and of those for selling out of the city of Baltimore and elsewhere in said State; that the complainant may be paid his half of the avails of said sales, after such deductions as the Court should deem equitable, and for other and further relief. The contract was exhibited as a part of the bill, and Will be hereafter more particularly referred to. The respondents admit the contract as exhibited, and a conditional assignment of one-half of the avails and profits by them, as survivors of George Cook; but insist tlie complainant did not comply with the conditions of his agreement ; that the consideration failed, and they were not bound ?n equity to perform tbo contract. They deny that the business was carried on under that contract, but allege that the same was superseded by a new contract entered into between the Commissioners of Lotteries and fine respondents, which took effect the 1st of April, 1852, since which time the Maryland lotteries have been drawn under the latter.

The respondents aver, the complainant lias received more than one-half of all avails of said contract, during its existence, and dony they are indebted to him in the amount charged, or in any other amount. A general replication was filed and commission issued, and ¹⁷⁰ testimony taken, mucli of it relating- to' sales- ottf ofitie' State, to which exceptions-wore filed by the* appellees, and' in connection with which' an agreement was- entered into* between the solicitors of the-parties; “that’oa the 18th of July, 13849,.(and from that day to the present’time, 24th ofNovem-ljer,,1856,) the drawings of the- Maiylatnd lott'eries, and the' sales of schemes and of tickets-in the said lotteries', were for~bidden in the-' United States, o-utsidb1 of Maryland, by the-statutes o-f'tfie several States of the- Union; add'this agree* mentis to avail as- ifc'the said.statutes-had been-given'- iii> evidence.” O-h the thirteenth day of July, l'SÜTy tire ease being sub-mitted and argued, upon bill, answer and depositions; the' Circuit Court of Baltimore city decided that the defendants-were liable to account' to the- complainant for all avails anc^ profits-arising from ths- enjoyment of the lottery privileges-'during the term-mentioned in the- original-contract,-but that-the account should be confined to- sales- made within the* State, and sustained the exceptions to-the'-1 evidence-taken by the defendants as to the sales-witiiott-ttha State: The cause'was-referred to the-' auditor tb state att' aeeountp. ih conformity with the opinion-; of the' Court!- Afterward s-;,the case- coming up upon exceptions to- the* accounts' and'! reports of the auditor,. the Court remanded’the same for?correction, and “ to state the same in conformity with the-* views of the Court expressed in its opinions of Julyv.1857,» and of this day (February, ISGO.)”’ At July term,-ÍS64, the appellant By his' counsel, -filed* Iii&'petition-'praying the cause might he remandedío the auditor;,, that the orders of the 13-th of July, 1857, and'ISth of February, 1860, might be rescinded,.and other-accounts statfed in?! conformity with the prayer of the petitioners, which petition:' being dismissed, the cause was remanded to the auditor to> state, an account in-cojiformity to the principles of the