Page:Federal Reporter, 1st Series, Volume 5.djvu/242

 230 FEDERAL REPORTER. �tion or fiction of law that upon the facts — the plaintiff being entitled ex aequo et hono to recover the money which the de- fendant had wrongly obtained from it — he promised to repay the same. �The case of Catts v. Phalen, 2 How. 376, is directly in point and decisive of the one at bar upon this question. In it the supreme court held that when a person was employed to draw an illegal lottery, and secretly procured a ticket therein, to be purchased in the name of another for himself, and thereaf^;er fraudulently pretended that such ticket drew a prize of $15,000, which was paid by the proprietors in ignorance of the fraud, that they might maintain an action against the drawer to recover the amount so fraudulently obtained. �In delivering the opinion of the court, Mr. Justice Baldwin said: "The facts of the case present a scene of deeply-con- cocted, deliberate, gross, and most wicked fraud, which the defendant neither attempted to disprove nor mitigate at the trial, the consequence of which is that he haa not, and cannot have, any better standing in court than if he had never owned a ticket in the lottery, or it had never been drawn. So far as he is concerned, the law annuls the pretended drawing of the prize he claimed; and, in point of law, he did not draw the lottery. His fraud avoids not only his acts, but places him in the same position as if there had been no drawing in fact, and he had claimed and received the money of the plain- tififs by means of any other false pretence, and he is estopped from avowing that the lottery was in fact drawn. ♦ ♦ • The transaction between the parties did not originate in the drawing of an illegal lottery; the money was not paid on a ticket which was entitled to or drew the prize. It was paid and received on the false assertion of the fact. The contract which the law raises between them is not founded on the drawing oî the lottery, but on the obligation to refund the money which bas been received by falsehood and fraud, by the assertion of a drawing which never took place. To state is to decide such a case." �So, here, assuming, as this defence admits, that this money ����