(2 Boyce, 453) STATE V. SEDGWICK. might thereafter be written. Upon the payment of the money and the delivery of the (Court of General Sessions of Delaware. New ticket on Saturday, the purchaser selected Castle. Sept. 21, 1911.) 1. LOTTERIES (§ 3*)-ELEMENTS OF OFFENSESTATUTES. Rev. Code 1852, amended to 1893, p. 396 (12 Del. Laws, c. 33), provides that if any person shall sell or dispose of any lottery policy, certificate, or of anything by which such person or any number of persons promises or guarantees that any particular number, character, ticket, or certificate shall, in an event or on the happening of any contingency in the nature of a lottery, entitle the purchaser or holder to receive money, property, or evidence of debt, every person so offending shall on conviction be subject to a penalty. Held, that the fact that tickets representing membership in a baseball pool did not in themselves show a promise or guaranty that on the happening of an event, the holder should be entitled to money, did not save the scheme from being a violation of the statute, since the term "lottery," as used therein, includes any scheme for the distribution of money or prizes by chance, not limited to a sale of tickets nor to the terms or promises printed or written upon them. [Ed. Note. For other cases, see Lotteries, Dec. Dig. § 3.* For other definitions, see Words and Phrases, vol. 5, pp. 4245-4252; vol. 8, pp. 7710, 7711.] 2. LOTTERIES (§ 29*)-SCHEME-PROOF. Where a lottery scheme involved more than appeared on tickets issued in the conduct thereof, its character and extent could be shown by any proper testimony. and gave to the prisoner six numbers, each denoting a club, then unknown alike to him and to the prisoner. On Monday, a number was given to each club, the numbers for all the clubs being determined by a drawing, the result of which was on that day announced to all purchasers of tickets who composed the membership of the pool. They then knew for the first time what six clubs they had selected when on the previous Saturday they bought their tickets and gave in their numbers. The days of the week were shown by names upon the tickets and were arranged transversely to the names of the clubs so that the number of runs made by any club on any day might be entered in a blank opposite the name of the club and below the name of the day, and upon the margin of the tickets were blanks in which the total number of runs made by each club might be entered, and also a blank in which might be entered the grand total of runs made. during the week by the six clubs selected in the manner stated. Upon the back of each ticket when purchased from the prisoner were stamped the winnings for the previous week and the amount of prizes to be paid at the conclusion of the ball games of the ensuing week, there being nothing further 3. LOTTERIES (§ 3*)-CONTINGENCY-CHANCE. upon the tickets that indicated promises of Where a baseball pool involved a double hazard of selection of a combination of numbers designated by a drawing to be representative of certain baseball clubs, the winnings on which were determined by the baseball score, the prize being given, not to him who might forecast the results of the games either in victories or runs, but to him who selected and paid for combinations of numbers, each representing a club, not selected by, but designated for, him. the total numbers of which approached nearest the highest total of runs made in a given time by a like number of clubs, the payment of the prizes depended on the happening of a contingency in the nature of a lottery, and was prohibited by Rev. Code 1852, amended to 1893, p. 396 (12 Del. Laws, c. 33). [Ed. Note.-For other cases, see Lotteries, Dec. Dig. § 29.*] [Ed. Note.-For other cases, see Lotteries, Dec. Dig. 3.*] Harry Sedgwick was indicted for lottery. Verdict of guilty. The prisoner was indicted for a violation of the statute against lotteries and was charged with the particular offense of conducting a baseball pool, the plan of which was as follows: payment of money or the manner of winning prizes. It appeared by the evidence that the first prize was paid to the holder of a ticket who had selected by numbers, at the time and in the manner stated, a combination of six clubs, that together made a number of runs the aggregate of which approached nearest the total number of runs of those six clubs, which at the end of the week were shown by the scores to have made the highest total of any six clubs named on the tickets. The other prizes were graduated in some what the same manner. JJ. Argued before CONRAD and WOOLLEY, Josiah O. Wolcott, Deputy Atty. Gen., for the State. James Saulsbury and Philip L. Garrett, for defendant. WOOLLEY, J. (delivering the opinion of the court). We assume, for the present motion, that the law under which this indictOn or before Saturday of one week, a per- ment was found is that which appears on son who desired to take a chance in the page 396 of the Revised Code, being chapter play of the next week paid the prisoner 30 33, volume 12, of the Laws of Delaware, and cents, and in return received from him a which in part reads as follows: ticket upon which were printed the names "If any person shall * * * sell or disof the baseball clubs of the National and pose of, * * any lottery policy, certifiAmerican Leagues and of the American As- cate, or anything by which such person or sociation. Before the name of each club any other person promises or guarantees there was a blank space in which a number that any particular number, character, ticket, N. II.) IN RE SULLIVAN COUNTY R. R. or certificate, shall in the event, or on the happening of any contingency in the nature of a lottery, entitle the purchaser or holder to receive money, property, or evidence of debt, * * * every person so offending shall, upon conviction," be subject to a certain penalty. Counsel for the prisoner have moved the court that the jury be instructed to return a verdict of not guilty, upon two grounds, which, as we understand them, are as follows: 473 determining the winner of all who participated in the game, it has no advantage over nor is it essentially different from the ordinary method of having a little girl or a man of position draw the decisive or determining number from a hat. We are of opinion that the scheme disclosed by the evidence constitutes a lottery within the meaning of the law and therefore decline to grant the motion that the jury be instructed to acquit the prisoner. [1] First, that the tickets sold by the pris-guilty and was paroled upon his own recogThe defendant thereupon entered a plea of oner, do not in themselves show a promise or nizance. guarantee by him that upon the happening of an event the holder shall be entitled to money. [2] Lottery is a scheme for the distribution of money or prizes by chance. That scheme is not limited to the sale of tickets nor to the terms or promises printed or written upon them. Being a scheme, involving more than appears upon the tickets, its character and extent may be shown by any proper testimony. Entertaining that view, we have ruled in certain evidence, and for the same reason we decline to grant the motion upon the first ground. [3] The second ground of the motion is that the "contingency" which determines the winning of a prize in this particular scheme is the aggregate number of runs made by a certain number of baseball clubs, which being the result of skill and not of chance, is not "a contingency in the nature of a lottery." PROVISIONS-EFFECT. Laws 1911, c. 164, § 3, subds. "a" and "c" abolishing the Board of Railroad Commissioners, creating a public service commission, and providing that the act shall not affect pending actions, but all actions pending before the Supreme Court, etc., shall thereafter be acted upon by the Commission, affects pending actions to the extent that thereafter they are to be acted upon and determined by the Commission, depriving the Supreme Court of further original jurisdiction of a pending proceeding for leave to extend railroad tracks, and for that purpose to take lands of objecting owners. [Ed. Note.-For other cases, see Eminent Domain, Dec. Dig. § 167.*] 2. WORDS AND PHRASES-"BUT." The word "but" is commonly used in the sense of "except." [Ed. Note.-For other definitions, see Words and Phrases, vol. 1, pp. 926, 927.] Petition by Sullivan County Railroad for leave to extend its tracks from Lebanon to Cornish, and for that purpose to take the Motions lands of certain objecting owners. for further proceedings denied. Branch & Branch (Oliver E. Branch, orally), for petitioner. Herbert C. Lakin and Remick & Hollis (Mr. Remick, orally), for objecting landowners. The "happening of a contingency in the nature of a lottery," as contemplated by the statute and applied to the particular facts of this case, is not the number of the runs made by different baseball clubs, which uncertainty may or may not be a matter of chance within the meaning of the law, but the contingency here, into which enters the element of chance and which partakes of the nature of a lottery, is the double hazard of the selection of a combination of numbers which are designated by a drawing to be YOUNG, J. [1] The objectors contend that representative of certain clubs, the winnings chapter 164, Laws 1911, deprives the court upon which are determined by baseball of all further original jurisdiction of this scores. The prize is given not to him who proceeding. That act creates a public service may forecast the results of the games, either commission to perform the duties of the in victories or in runs, but to him who se- Board of Railroad Commissioners (section lects and pays for a combination of numbers, 3 [a]) and those which sections 18-20, c. each representing a club not selected by but 156, Public Statutes 1901, impose on the designated for him, the total runs of which court (section 12). It also provides that its approach nearest the highest total of runs passage "shall not affect pending actions, made in a given time by a like number of * ***** but all actions pending clubs. before the Supreme Court * * or beThere is but one highest total of runs fore the Board of Railroad Commissioners made by six clubs regardless of the number*** shall thereafter be acted upon and of runs made and that highest number of determined by the Public Service Commisruns is the factor that determines who wins sion" (section 3 [c]), abolishes the Board of on the combinations of numbers selected by Railroad Commissioners (section 3 [a]), and the members of the pool. As a method of repeals sections 18-20, c. 156, Public StatFor other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes ** ntes-the statutory provisions on which this which was not consumed in administration or proceeding rests (section 21). payment of debts. [2] Whether this court has further juris [Ed. Note.-For other cases, see Wills, Cent. Dig. §§ 178-182; Dec. Dig. § 68.*] 4. SPECIFIC PERFORMANCE (§ 86*)-CONTRACT TO WILL ADEQUATE REMEDY AT LAW. Where a suit in equity was originally brought against decedent's administrator by claimants under his will, and complainant filed a claim for specific performance of decedent's contract to will her all his property, the proceeding could be treated as a bill of interplead plainant's claim was not objectionable, on the ground that she had an adequate remedy at law. formance, Cent. Dig. §§ 223, 224; Dec. Dig. § [Ed. Note.-For other cases, see Specific Per86.*] 5. SPECIFIC PERFORMANCE (§ 127*)-PROBATE -ANNULMENT-CONTRACT. diction depends on what is intended by section 3 (c). If chapter 164 in no way affects pending actions, this court has final jurisdiction of this cause; but, if that was not the Legislature's intention, it must be either transferred to the Public Service Commission, or dismissed. The only evidence relevant to the issue of intention is the lan-er, brought by the administrator, so that comguage the Legislature used, and that provides in so many words that after the act becomes a law actions of this kind shall "be acted upon and determined" by the Commission. Therefore it could not have intended the act to have no effect whatever upon them. It is more probable that section 3 (c) was intended to limit the effect of the act on such actions. In other words, the Legislature used "but," in the second line of section 3 (c), in the sense of "except"; and that is one of its most common meanings. Webster, New Int. Dict., But, 1, 2. If it was used in that sense, the act so far affects pending actions that thereafter they are to "be acted upon" by the Commission. The fact that section 3 (c) is meaningless, if that was not the sense in which "but" was used, tends to the same conclusion; and, as there is nothing in the act to rebut this presumption, it must be held that it affects pending actions to this extent, and to this extent only, that thereafter they are to be acted upon and determined by the Commission. Motions for further proceedings in this court denied. All concurred. (76 N. H. 203) DAY v. WASHBURN et al. (Supreme Court of New Hampshire. Grafton. Oct. 3, 1911.) 1. WILLS (§ 67*)-CONTRACT TO DEVISE--ENFORCEMENT. An agreement by testator to leave all his estate to complainant, in consideration of board and care during the balance of his life, was a contract which testator had power to make, and which, in case of default, was enforceable against his administrator. [Ed. Note. For other cases, see Wills, Cent. Dig. $ 175-177; Dec. Dig. § 67.*] 2. SPECIFIC PERFORMANCE (§ 24*)-CONTRACT TO WILL-ENFORCEMENT-PARTIES. Where decedent did not perform a contract to will all his property to complainant, her claim for the enforcement of such agreement should be prosecuted against decedent's administrators, and not against his heirs or legatees. [Ed. Note.-For other cases, see Specific Performance, Cent.Dig. §§ 54, 55; Dec.Dig. § 24.*] 3. WILLS (§ 68*) CONTRACT TO WILL BREACH-DAMAGES. Where testator did not perform his contract to leave all his property to complainant by will, complainant's damage was the value of the property left by him, not willed to her, a contract to will claimant all decedent's propWhere, in a suit for specific performance of erty, a former will was offered merely as evidence of a contract alleged, the superior court in that proceeding had no jurisdiction, on finding in favor of the contract, to set up the former will, or to annul the probate of a later one, by which a part of testator's property was willed to others. [Ed. Note.-For other cases, see Specific Performance, Cent. Dig. 88 406-411; Dec. Dig. 127.*] 6. EVIDENCE (§ 419*)-PAROL EVIDENCE-CON SIDERATION. In a suit to enforce performance of a contract to will complainant all testator's property, parol evidence to show the consideration of complainant's alleged contract with decedent was admissible, and not subject to objection that it tended to vary or contradict the written evidence. [Ed. Note.-For other cases, see Evidence, Cent. Dig. §§ 1912-1928; Dec. Dig. § 419.*] Transferred from Superior Court, Grafton County; Chamberlin, Judge. Suit by Hattie L. Day against Fred Washburn, administrator of Edgar A. Washburn, and another, praying that an instrument, proved and allowed as the last will of Orson Day, be declared null and void, and for the specific performance of a contract entered into by Orson Day and the plaintiff. Trial by the court. The bill was originally brought against Fred Washburn, administrator of the estate of Edgar A. Washburn, and William Kimball, claimants under the will of Orson Day. By agreement of the parties, Wilbur F. Smith was appointed administrator with the will annexed of the estate of Orson Day, and appeared as a party defendant. defendants demurred and answered. The demurrer was overruled, subject to exception. Case discharged. The agreed with the plaintiff that he would, by Upon a hearing, it was found that Orson his last will, give and devise to her all his estate. In order that she might have sufficient income to meet her current expenses, Orson further agreed to pay her $4 at the end of each week and a reasonable sum for necessary nursing during sickness; and in consideration of Orson's agreements, the N. H.) BERLIN NAT. BANK v. GUAY plaintiff promised to board and care for him during his life. September 22, 1906, Orson made a will, by which he gave all his estate to the plaintiff. On the same day and as a part of the same transaction, Orson and the plaintiff signed a contract, whereby she agreed to board him during his natural life for $4 a week, and he promised to pay her that sum. The plaintiff performed the contract on her part. August 20, August 20, 1907, Orson made a will, which has been proved and allowed as his last will, by which he bequeathed to the defendant Kimball and Edgar A. Washburn personal property exceeding $2,400 in value. The plaintiff was offered as a witness, but her testimony was excluded and not considered as to matters occurring in the lifetime of Orson. The defendants excepted to evidence of the first will, on the ground that the court had no jurisdiction to pass on its validity, and to it and other evidence, as contradicting the written contract between the parties. Smith & Smith, Albin & Sawyer, and Charles A. Dole, for plaintiff. Scott Sloane, for defendants. 475 law. Justice does not require a separate [5, 6] The superior court, of course, had no jurisdiction in this proceeding to set up the first will, or to annul the probate had of the later. The decree has no such effect. The first will was offered merely as evidence of the contract alleged, and the decree does not PARSONS, C. J. [1-3] Upon competent affect the probate of the second. The parol evidence, the testimony of the plaintiff hav- evidence objected to was not introduced to ing been excluded and not considered, the vary or control the written evidence, but court has found that the deceased, Orson merely tended to show the consideration, Day, in consideration of services to be per- and was competent. Quimby v. Stebbins, 55 formed by the plaintiff, agreed, among oth-N. H. 420. Whether the instrument executer things, to leave her all his property, by his last will, at his decease. This was a contract which the deceased had the power to make, and which, in default of performance by him, could be enforced against his administrator. Peterborough Savings Bank v. Hartshorn, 67 N. H. 156, 33 Atl. 729; Clements v. Marston, 52 N. H. 31, 39; Parsell v. Stryker, 41 N. Y. 480, 487. The contract was performed by the plaintiff; but, by the instrument which has been proved as the last will of Day, although the plaintiff is made residuary legatee, certain items of personal property of considerable value 1. PRINCIPAL AND SURETY (§ 115*) - Dis were given to Kimball and Washburn, the original defendants. The estate of Day is represented by his administrator, and claims against it should be prosecuted against the administrator, and not against heirs or legatees. As Day did not fully perform his contract to give the plaintiff all his property by will, the plaintiff's damages by the breach are the value of all property left by him, not willed to the plaintiff, which is not consumed in administration; there being no debts. ed by Day as his will, September 22, 1906, Case discharged. All concurred. (76 N. H. 216) BERLIN NAT. BANK v. GUAY. (Supreme Court of New Hampshire. Coos. Oct. 3, 1911.) CHARGE OF SURETY-ADDITIONAL SECURITY That a creditor, by the exercise of diligence, might have secured additional security from the principal debtor did not release the surety, under the rule that a creditor is under no obligation to the surety to accept collateral security when offered by the principal debtor. Surety, Cent. Dig. §§ 244-268; Dec. Dig. § [Ed. Note.-For other cases, see Principal and 115.*1 2. PRINCIPAL AND SURETY (§ 115*) - DISCHARGE OF SURETY-ACTS OF CREDITORS. Defendant signed a note as surety for D., payable to plaintiff bank, for $2,000, and, while this debt was owing the bank, discounted for D. a note for $5,350, and received as collateral certain notes executed to D. by B. for $9,600; these notes being taken by the bank to secure all of D.'s indebtedness, including that on which defendant was surety. Thereafter these notes were further secured by stock in a corporation For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes which B. organized, whereupon it was agreed | sureties. When the Burbank notes were in writing that, after payment to the bank of taken by the plaintiff, an arrangement was B.'s notes, held as collateral, and the discharge made to have purchases of stock in trade inof D.'s liability as indorser or otherwise to the bank, the proceeds of B.'s notes should be ap- sured; the policies to be payable to the plied to the payment of the debt for which de- plaintiff in case of loss, and the proceeds to fendant was an indorser. The property of B.'s be first applied in payment of the Burbank corporation having been destroyed by fire, insurance policies were assigned to plaintiff's notes, and then in discharge of the liabilcashier as trustee, whereupon creditors of the ities to which the Burbank notes were colcorporation brought suits and summoned the in- lateral. surance companies as trustees. Defendant was notified by the bank to assist in the defense of these suits, but refused to do so, whereupon they were compromised by the cashier, and the amount received, less certain fees and expenses. and an amount, paid on other indebtedness of D., was applied in reduction of the former indebtedness. Held, that the bank was not bound to notify defendant before making an adjustment of the litigation, and, having conducted the same in good faith, defendant was not discharged of liability because of the bank's failure to collect more. The defendant and Brooks became uneasy because of the existing situation; and, on September 4, 1907, Miles, the plaintiff's cashier, procured from Decker the following agreement, and delivered it to Brooks and Guay: "Whereas C. Brooks and Joseph Guay, of Berlin, N. H., have indorsed my note for the sum of four thousand dollars ($4,000), dated July 13, 1907, payable to the order of the Berlin National Bank, of Ber[Ed. Note.-For other cases, see Principal and lin, N. H., and I have also given my note to Surety, Dec. Dig. § 115.*] said Berlin National Bank for the sum of Transferred from Superior Court, Coos fifty-three hundred and fifty ($5,350) dollars, County; Chamberlin, Judge. Assumpsit by the Berlin National Bank against Joseph Guay, on a note for $2,000, dated March 13, 1908, payable to plaintiff and signed by defendant as surety. Case transferred from Superior Court. Judgment for plaintiff. as The original consideration for the note was a loan by the plaintiff, July 14, 1906, of $5,000 to one Decker, the principal upon the note in suit. This loan was made upon a promissory note of that amount and date, signed by Decker as principal, and by the defendant and one Brooks sureties. March 14, 1907, Decker paid $1,000, and a new note for $4,000 was signed by the same parties in the same way. March 13, 1908, the $4,000 note was replaced by two notes for $2,000 each, both signed by Decker as principal; one-the note in suit-was signed by the defendant as surety, and the other by Brooks. April 28, 1907, Decker sold the stock and business of the Cousens Hardware Company, of which he was owner, to one Burbank for $9,600, taking the latter's notes in payment. May 31, 1907, Decker secured of the plaintiff a loan of $5,350 on his note, with the Burbank notes as collateral. Burbank subsequently incorporated the business under the name of the Burbank Company, and deposited the stock certificates, amounting to $12,000 (120 shares), with the plaintiff as additional security for the payment of the Burbank notes, which were all indorsed by one Woodward. The Burbank notes were taken by the plaintiff as collateral security for (1) the payment of Decker's note for $5,350, (2) the payment of all liabilities of Decker to the plaintiff as indorser or otherwise, and (3) the payment of the two Decker notes for $2,000 each; one signed by the defendant, and the other by Brooks, as dated May 31, 1907, said last-mentioned note being secured by 128 notes for different sums, amounting to nine thousand six hundred ($9,600) dollars, signed by E. A. Burbank and indorsed by Jason Woodward and by me indorsed to said Berlin National Bank, said Burbank notes being secured by 120 shares of the stock of the Burbank Company as collateral: Now, therefore, I agree that after the payment to said bank of said last mentioned note-that is, the note of E. A. Burbank-and the discharge of all my liability as indorser or otherwise to said Berlin National Bank, that the proceeds of said E. A. Burbank's note shall be applied as fast as they are paid to the payment of the note for four thousand ($4,000) dollars indorsed by said C. Brooks and Joseph Guay." February 4, 1908, all the property of the Burbank Company was destroyed by fire. There was no insurance, payable to the plaintiff, as arranged when the Burbank notes were taken as collateral; but immediately after the fire Miles, acting for the bank, and to protect the interests of all parties arising out of the transactions hereinbefore stated, took an assignment to himself, as trustee, of policies amounting to $10,500. After the assignment of the policies, suits were brought by creditors of the Burbank Company, in which the insurance companies were summoned as trustees. These suits were duly entered in court, and Miles appeared as claimant of the funds trusteed. During the September term, 1909, at Colebrook, the suits came on for trial. While the cases were pending and about to be tried, the defendant and Brooks, upon request, attended with their counsel a meeting had at the plaintiff's banking rooms in Berlin. It was proposed by some of the directors of the bank that Brooks and Guay |