Layton against Pearce
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1778 |
| Date | 01 January 1778 |
| Court | Court of the King's Bench |
English Reports Citation: 99 E.R. 12
IN THE COURT OF KING'S BENCH
[15] layton against pearge. 1778. Under an agreement to perform one or two things, the option is, in the person who is to perform.-If one of the two things is prohibited under a penalty, no action will lie for the penalty, until the party makes his election by performing the prohibited part of the contract. By the Lottery Act of 1777, (17 Geo. 3, c. 46,) a penalty of 500 was given to be recovered in a qui tarn action against any person-" Who should receive any money whatsoever in consideration of repayment of any sum or sums of money, in case any ticket or tickets in the said lottery should prove fortunate, or in case of any chance or event relating to the drawing of any ticket or tickets in the said lottery, either as to the time of such ticket or tickets being drawn, or whether such ticket or tickets should be drawn fortunate or unfortunate."-This was an action upon that statute, against a lottery-office keeper. The declaration contained three counts.- The first stated tbat the defendant had received 1, 6s. from one Robert Griffin, in consideration of repaying the value of an undrawn ticket, if the above number should be drawn on the ensuing day.-The second, that he had for the like sum, and in the like event, undertaken to deliver an undrawn ticket.-The third only -liffered from the first, in stating the stipulation to have been to pay a precise sum (of 20) on the like event, and in following more accurately the words of the statute. -The agreement proved at the trial was in the alternative, viz. that Griffin had paid to the defendant 1, 6s. on condition that if the ticket No. 37,733, in the lottery then drawing, should come up, either a blank or prize on the ensuing day, he (the defendant) would either deliver to Griffin an undrawn ticket, or pay him 20. He had not in fact done the one thing or the other. The cause was tried before Lord Mansfield, at Guildhall, and, a verdict having been found for the plaintiff, Dunning moved for a rule to shew cause why it should not be set aside, and a nonsuit entered :-1. Because the agreement proved, did not correspond with that stated J F 2] This case, and those referred to in the notes, have always been considered as ing and decisive authorities. In the case of De Hahn v. Hartley, however, an attempt was made to bring them in question, but without success. In that case the insurance was at and from Africa, with a warranty...
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