The opinion of the Court ivas pronounced by

The question now presented is, whether the county court rightly adjudged,that the consideration of the note in dispute, as proved, was not a good and legal consideration. It appears, that the plaintiff held the defendant’s bond in the penal sum of $8,000, with a condition thereto annexed, which recited a detailed contract about the sale, from the plaintiff to the defendant, of the plaintiff’s right to raise money by his lottery; for which defendant was to pay the plaintiff $4000, at two payments, all in less than a year. • One thousand dollars was paid and indorsed on this bond. What other payments were made does not appear in the case : but it appears that this note was given for the balance, and was executed two or three years after the ‡4,-000 had become payable. The case settles the fact, that this note had no other consideration, than the sale from the plaintiff to the defendant of his lottery, or right of raising money by said lottery. It was suggested in argument, that this note should be treated as given to compromise a litigated claim. But no fact in the case warrants that position. Nothing appears but that the defendant gave this note without suspecting that he had any de-fence to the bond. This may also be said of two payments, indorsed upon this same note, a month or two after its date.

What, then, was the right of the plaintiff under his lottery grant, which he sold to the defendant, and wbat was its value at the time of such sale ? It had lain dormant about thirty years. The proof that Rhodes was ever appointed a manager, is very faint, We discover nothing but his giving a bond to the treasurer, as such manager, in the form the law requires. We discover nothing in the case tending to show, that any others ever were appointed, after the additional statute ofl?98. Alate application for such appointment was refused by the judges. The grant expressly requires three managers to act. The law is well settled, that, in such a case, there must be three to act, and those agree in what they do, oritwillbeof no avail. Under the actof 179S, the judges could only make appointments to fill the vacancies then existing. But it does not appear, that those were ever filled, unless the appointment of Rhodes filled one of them. During the long sleep of this grant, we may well suppose, that all who had signed bonds for managers, or for any other purpose, have died, *175or changed their residence, or become irresponsible. Indeed, it is said,- that Rhodes, the only manager living, lives out of the United States. The giving a bond to the treasurer in £2,000, as security, that the money raised by this lottery should be expended in a brewery within this state, was a condition precedent to any right to raise money by this lottery. It does not appear that such bond was ever given. If such were given soon after the grant, its available force at this day is not to be presumed. Nor is there any pretence that Hough was to expend this money, if he obtained any, in any thing connected with a brewery. While this. grant has lain dormant, the whole face of society has changed. Wealth has become more uniformly the result of enterprise. The hand of charity has become potent for the relief of the distressed. The necessity, then supposed to exist, to encourage breweries, has long since ceased. The grant has not been revived. It ought not to be revived. It had ceased to be . any authority lor issuing and vending lottery tickets. Other statutes enact severe penalties for selling lottery tickets, not authorized by some law of this state. What, then, we again ask, was the right which the plaintiff sold to the defendant, for a part of which sale this note was given ? It was the right of attempting to speculate in a void lottery, and forfeit a penalty for every ticket sold, and, probably, become liable to pay back to purchasers all the money they paid for tickets. Its value, then, at the.time of the sale, was nothing. It could not form a good and legal consideration for this note, nor for any contract whatever.

But it is said the defendant made this purchase knowingly. The plaintiff, being the grantee, is bound to know, if he had never complied with the conditions of the grant, or if there was any failure in the legal number of managers. Probably the defendant knew all about the business. Be it so, that does not injure his delence. In such case, the law will not aid either to recover of the other. The plaintiff cannot recover his note : nor'can the; defendant recover back the money he paid.

The judgement of the county court is affirmed..