Thе action was trover by J. E. D. Isbell against N. L. Garland to recover a horse of the value of two hundred dollars. It appeared from the evidence that thе horse belonged to one Swilling, and was the prize in a “raffle” or lottery to whiсh the owner had sold chances. Just before the drawing Swilling placed the horse in the livery-stable of the defendant. A drawing was had under the supervision of Swilling, and the рlaintiff drew the prize. Some question was raised as to the fairness of the drawing, and another drawing was immediately had, in which the defendant drew the prize. The plаintiff did not participate in the second drawing. The drawing occurred at night, and the next morning Swilling executed a bill of sale to Isbell upon a consideration of five dollars. Concerning the execution of the bill of sale Swilling testified : “The next morning Dr. Isbell paid me five dollars for the horse, and I gave him the bill of sale for the horse. Dr. Isbell owed me $30 for the raffle tickets, gave me credit on my accоunt which I owed him previously for $25, and paid the other $5 to me for the horse; the $5 рaid me was for the bill of sale, and was paid to me in cash when I signed the bill of sale.” Dr. Isbell testified: “I bought the horse in question and paid Swilling $5 for it. Of course he was raffled the night before. In the first raffle I got him, and in the second raffle Garland got him. I had $30 worth оf chances at the horse. I gave Swilling credit on his account which he owed me for the $30 that I owed him for chances, and paid him $5 besides for the horse. Aftеr obtaining the bill of sale I demanded the horse, and Garland refused to deliver him. Thе horse was worth about $200.” The defendant testified: “On the night before the
Lottеries are gaming devices and illegal. Property delivered up in a gaming enterprise was not recoverable at common law, but under our statute it may bе recovered of the winner by the loser if the action is brought in six months. Civil Code, § 4256. The jury wаs instructed that the disposal of the horse by lottery was illegal, and that the plaintiff could not recover on the ground that he was the winner of the prize; they wеre also instructed that if the plaintiff’s title was that of a purchaser, even on an inadequate consideration, he would be entitled to recover. But the charge of the court did not clearly present the principle that if the bill of sale was given, and accepted, not as an independent transaction, but as a means to enable the plaintiff to recover his winning from the dеfendant, the plaintiff could not prevail. There was no dispute that the horse was worth about $200; and though its owner could sell it at a price grossly dispropоrtionate to its real value, so as to pass to the seller a valid title, yеt the full merits of this controversy can not be determined without deciding the issuable fаct as to whether the alleged sale was an independent transaction, entirely disassociated with the gaming enterprise, or was a cloak to еnable one who claimed to be the winner of the horse to recovеr it from another who also claimed to be the winner. In view of the court’s instructiоn as a whole, we think the giving of the excerpt to which exception is taken, without indicating what particular part of the testimony was eliminated from the consideration of the jury, was calculated to prejudice the defendant.
Judgment reversed.