delivered the opinion of the court. The plaintiff sued as holder of a prize ticket in the defendant’s lottery. They excepted to the right of the plaintiff to sue them, on the ground, that according to the act of the *453legislature, authorising the lottery, they, had disposed of their interest in it. The objection was overruled, and the same matter was pleaded in bar, and that their vendee was ready to pay every legal prize, and. denied that the ticket stated in the petition drew a prize. There was a verdict and judgment against the defendants, and they appealed.

Their counsel in this court has contended, that

1. The district judge erred, in overruling this first exception.

2. That the plaintiff is without interest in suit, and has not authorised the use of his name.

3. That he sold the ticket at a price below the nominal value.

4. The verdict is supported by the evidence of the purchase of a litigious right and he cannot recover more than he actually paid.

I. The matter pleaded as an exception, was properly a plea in bar, on which the plaintiff was entitled to join issue, and have the cause tried by a jury. The judge therefore did not err, in refusing to dismiss the suit.

II. The record indeed, that Sanc*454hez had sold his interest in the ticket before the inception of the suit, but it shows also that he authorised the vendee to sue in his name.

III. No allegation of the purchase of a litigious right was made below, as considered by the jury or court, therefore none can be inquired into in this court.

IV. The notice of a new trial, on the ground of the verdict being against evidence, was overruled below, and it does not appear to us the judge erred in doing so.

It is therefore ordered, adjudged and decreed, that the judgment of the district court be affirmed, with costs.