is to secure these prior titles; and unless there is some absolute necessity to construe the 2d section of the Act of 1836 with the greatest strictness, and to exclude from its protection all titles which can by such construction be exIcluded, it is believed that the title of the town of St. Charles may receive the benefit of this section, as a complete defense against the plaintiff.

If, then, the commons of the town can with any propriety be said to "have been previous ly located, under any law of the United States," the Act of 1836 confers no title against the claim of the town. On this question it is not thought necessary to remark, as it is to be de termined by an examination of the section referred to. The effect of the section is, to leave the claim of the plaintiff unconfirmed, so far as it interferes with the titles designed to be protected.

If I have conveyed my ideas intelligibly, I think I have maintained the following propositions:

1. That between two confirmations by different acts of Congress, where no other evidence of title is contemplated by the confirm ing acts, the elder confirmation passes the legal title.

2. That the confirmation of the commons of St. Charles, by the Act of 13th June, 1812, is a confirmation of the claim as it was spread on the records of the government.

3. That the claim, as evidenced by the survey and by actual possession, was adverse to the claim of the plaintiff.

4. That if the confirmations were to have effect, with relation to the merits of the original Spanish titles, then the title of the town of St. Charles to the land in question, as part of the common, is an older and better title than that of the plaintiff.

5. That the claim of the plaintiff to the land in question was extinguished by his neglect to present and prosecute it, under the Act of 26th May, 1824, as that act was continued in force by the Acts of 1826 and

1828.

6. That if the fee did not pass by the confirmation, it did pass by the Act of 27th January, 1831.

7. That the confirmation of the plaintiff's claim by the Act of the 4th July, 1836, did not operate to confer any title, as against the title of the town.

These points present, as it is believed, several distinct and complete defenses to this action.

372*] *Mr. Justice CATRON delivered the opinion of the court:

For the statement of the facts the report is referred to.

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is fortified by another act for the same purpose, of 1831. The decision of the Supreme Court of Missouri was opposed to the title set up under the Act of 1836 by the plaintiff. From this decision he prosecuted a writ of error to this court.

Construction is called for on the acts on which both titles are founded; and as no occasion can arise in any instance involving construction, aside from a contest, making a case, the facts giving rise to it must be ascertained before the construction can be applied. To hold otherwise, would render the 25th section a dead letter in a majority of instances. The same question arose in the case of Pollard's Heirs v. Kibbie (14 Peters, 254), and again in that of The City of Mobile v. Eslava (16 Peters, 234), both involving property at the city of Mobile; the first is not distinguishable from the present in its material features, so far as the question of jurisdiction is involved; and the latter covers the whole ground before us. In the cases cited, as in this, the record set out the titles on each side, together with the facts and charge of the court; from which it ap peared the decision of the Supreme Court of Alabama was opposed to the plaintiff's title, the judgment below having been affirmed. This court did not then doubt its powers to look behind the act of Congress, into the Spanish concession of Pollard, for the purposes of construing the act, and comparing it with that under which the defendant claimed: not with the intention of setting up the concession as an antecedent title to the act, that would support an action, but for the purposes of the construction and application of the acts on which the controversy depends. And the same rules apply here.

The plaintiff's title is prima facie a good legal title, and will support an ejectment on the Act of 1836, standing alone, if the land can be identified, as confirmed, without resort to the patent. This court held, in Strother v. Lucas (12 Peters, 454): "That a grant may be *made by a law as well as a patent pur- [*373 suant to a law, is undoubted, and a confirmation by a law is as fully, to all intents and purposes, a grant, as if it contained, in terms, a grant de novo." And as, according to the laws of Missouri, an action of ejectment could be prosecuted on Chouteau's title, by force of the confirmation, the construction of the acts of Congress under which the respective parties claim, will decide the controversy.

The character and nature of the village right, in this country, is somewhat peculiar. The inhabitants of Upper Louisiana resided in vil lages, almost exclusively, and cultivated common fields, inclosed by only one fence; each person who cultivated the soil having assigned to him, by the syndic of the town, a certain portion of land to cultivate. In this manner the chief tillage of the soil was carried on; the other parts of the country being in the forest state.

As the principal support of the population was derived from agriculture and pasturage, the village commons were deemed of primary importance by the people and government, and as a common title more favored than individual titles in cases of conflict.

In this situation the United States found the country when they came into possession of it, in March, 1804, as the successor of France; or rather Spain, in virtue of the treaty of cession. Sgreat has been the change by the introducton of a population with different habits, and rodes of agriculture, that it is difficult to estimate at this day the former importance of the Clage common to the French inhabitants. It was the basis on which their society was formed so material an extent, that the early acts of Congress could not be well understood, withat a reference to this important circumstance; and especially not the sweeping Act of 1812. The Lieutenant-Governor of Upper Louisiana -ually the military commandant), made conessions for lands founded on such consideratons as to him seemed just, and according to the policy of the province; ordered it to be -urveyed by the public surveyor, who put the terested party into possession, pursuant to pe heutenant-governor's order, and delivered a 374*] plat of the survey to the party, in order at he might obtain a title in form from the eral intendancy at New Orleans; to which bunal alone appertained, by royal order, the tributing and granting all classes of lands of the royal domain. The intendant-general had Le power to adjudge on the equity of the cam, and to exercise the sovereign authority, making the grant, as the king's deputy. After the country changed owners, this gov. rument had imposed on it, as the successor of Spain, the duties previously performed by the neral intendancy, of perfecting titles to conssions made by the lieutenant-governors of N. Louis, Illinois.

Shortly after the United States came into session, a tribunal was instituted consisting of a board of commissioners to investigate ims of this description according to the aws and usages of Spain, as they existed ring the French population in Upper Louisiws, and to report to Congress, such as were the tribunal deemed well founded, just, and uitable, and that ought to have been conEned by the general intendancy, had no ange of government taken place; and such ought not to have been confirmed. On these reports coming before Congress, it acted Letly by statute, on such titles as were by Legislature considered well-founded and claims. In all such instances it acted as succcessor of the general intendency, and had the same discretion to confirm; and the *vereign power to perfect the incipient right; to reject it, that the intendant-general had: Lach exercising sovereign power, in regard to the claim, with full authority to award, or to fuse, a perfect title.

Chouteau's claim had been presented to the board early in 1809. In July, 1810, the board declared the opinion that this claim ought not to be confirmed; and no action was had on it by Congress on the return of the report of 1810.

In 1812, Congress confirmed the village claims as follows:

"That the rights, titles, and claims to town or village lots, out-lots, common field lots, and commons, in, adjoining, and belonging to the several towns or villages of Portage des Sioux, St. Charles, St. Louis, &c., which lots have been inhabited, cultivated, or possessed prior to the 20th day of December, 1803, shall be, and the same are *hereby confirmed to [*375 the inhabitants of the respective towns or villages aforesaid, according to their several rights or right in common thereto."

A new board was organized according to an Act of 1832, with powers to re-examine the claims (with others) deemed unworthy of confirmation by the former board. The new board was of a different opinion from the former in regard to Chouteau's claim, and in November, 1833, recommended it for confirmation, according to his concession: and it was confirmed by the Act of the 4th of July, 1836: corresponding to a recent survey, made in conformity to the concession. The whole of the claim is included in the village common of St. Charles, as it existed on the 20th day of December, 1803; and under which the defendant protected his possession, as an outstanding title. The State Circuit Court in Missouri held the village right the better, and so charged the jury; which opinion was sustained in the Supreme Court of that State, on their former decisions: especially in the cases of Byrd v. Montgomery (6 Mo. Rep., 514), and Mackay v. Dillon (7 Mo. Rep., 10). The last involved a contest in which title was claimed by one party under the St. Louis common.

These cases maintain, in substance, that such inchoate claims (as that of Chouteau was in 1812, when the community of St. Charles took its title, previously also inchoate) were not changed in their character by the treaty by which Louisiana was acquired; that the treaty imposed on this government only a political obligation to perfect them; that this obligation, sacred as it may be, in any instance, cannot be enforced by any action of the judicial tribunals; and that the legislation of Congress, from 1804 to the present time, has proceeded upon this construction of the treaty, as is manifested by the modes adopted to investigate the claims through boards of commissioners, and then acting on them by legislation. This court held likewise in The United States v. Wiggins (14 Peters, 350).

We think this reasoning correct, and necessarily following the nature of the claim as above set forth; it not having been perfected by the general intendancy before the change of governments.

U. S., Book 11.

20

305

some certain reward to be allowed him out of the proceeds of such pretended prize, to present De said lottery ticket as a ticket held by himIf to the plaintiffs, at their office in New York, and there demand and receive of them *- for himself, but for defendant's use and fit, payment of the said pretended prize, and for that purpose the defendant delivered De said lottery ticket to said Hill, who did acrdingly present the same to plaintiffs at their 1 office, and then and there received of them, for himself, and really and secretly for the tfendant, the amount of such prize, with such duction of fifteen per cent. as aforesaid." Phalen and Morris brought an action in the Fruit Court against Catts to recover back he amount which was thus paid, viz.: $12,The declaration contained three counts, No of which were abandoned at the trial; the be retained being for money had and received the defendant below (Catts) to the use of the Maintiffs.

The facts above seth forth were not controrted, but the defendant relied upon a law of Virginia (to take effect from the 1st of January, 257 passed for the suppression of lotteries; and so upon his being an infant, under the age of twenty-one years, when the lottery in question was drawn.

Whereupon the defendant prayed the court instruct the jury as follows, to wit:

"If the jury shall believe, from the said evience that the said lottery was drawn under the 41 act of the Commonwealth of Virginia, and aid contract so given in evidence as afore379] said, that then the *said lottery was ilal; and if plaintiffs paid the amount of said ze, under the belief that said ticket had been rly drawn, the plaintiffs cannot recover. And the jury shall further believe, from the said Hence, that in December, 1840, when the lottery was drawn, said defendant was an ant under the age of twenty-one years, that a the plaintiffs are not entitled to recover in action." Which instruction the court refused; to ich refusal of the court the defendant exand this, his bill of exceptions, is signed, ed, and ordered to be enrolled, this 9th day June, 1842.

The jury returned a verdict in favor of the Maintiffs for $12,500, to bear interest from 15th

March, 1841.

The counsel for the plaintiff in error made Le following points:

1. That the plaintiffs below made out no se establishing their right to recover-in other ds, that they did not show any interest or perty to be in them in the prize drawn on said day of December, 1840, which is in stance one of the prayers refused by the , viz.: "if plaintiffs paid the amount of prize, under the belief that said ticket had En fairly drawn, the plaintiffs cannot recover." 2. That the court erred in refusing to instruct Le jury that, under the act of Virginia referred said lottery was illegal. Plaintiff in error

will contend that the lottery was illegal, and if so, that the plaintiffs below were not entitled to a verdict.

3. That the court erred in refusing to instruct the jury that the infancy of the defendant (the same being in evidence) was a bar to the plaintiffs' right to recover.

Mr. Core, for the plaintiff in error, said: That if the lottery was prohibited by law, no contract under it could be sanctioned by law. The question whether the Prohibitory Act of Virginia was constitutional, was decided in the highest court of that State, and brought up to this court, where it is now pending. The court of Virginia decided that it did not impair the obligation of contracts. (1 Robinson, 713, Phalen v. Commonwealth.)

*In support of the general position [*380 above taken, he cited, 11 Wheat., 258, 265, 268; 10 Bingh., 107; 5 T. R., 242; 2 Hen. Bla., 379; Carth., 252; 1 Maule & Selw., 596.

Mr. Brent, for the defendants in error: As to the plea of infancy, although the action is assumpsit, yet the record shows fraud. (1 Esp. Rep., 172, 173; 2 Kent. Com., 240.)

Infancy was shown at the time of drawing, but not when the money was received. As to the illegality of the lottery: This ticket was in fact never drawn, and therefore illegality cannot be affirmed.

This ticket was sold out of Virginia.

A contract is not void on account of the imposition of a penalty. (8 Wheat.,353; 1 Bayley, 315; 2 Hawes, 526.)

[The counsel then examined the question of the illegality of lottery, and the constitutionality of the Prohibitory Act, and cited, 12 Wheat., 70; Angell & Ames, 89; 4 Gill & Johns., 198, 144, 152; 9 Gill & Johns., 405; 3 Wash. C. C. R., 319; 6 Cranch, Fletcher v. Peck.]

Mr. Jones was proceeding to argue on the same side, but the court expressed a desire to waive further argument, for the present, upon that side.

Mr. Core, in reply and conclusion, relied upon the illegality of the lottery, and the right of the Legislature of Virginia to revoke its grant before any interests had become vested under it. The circumstance that the ticket was sold in Washington, made no difference, because lotteries were prohibited there also; and he cited 4 Wash. C. Ĉ. R., 129.

Mr. Justice BALDWIN delivered the opinion of the court:

Phalen and Morris brought an action in the court below, to recover from Catts the sum of $12,500. which they alleged he had received for their use, and being so indebted, promised and assumed to pay, to which the plaintiff pleaded the general issue.

It appeared in evidence on the trial, that the Legislature of Virginia bad authorized lotteries, to raise money for improving a turnpike road in that State, which were placed under the superintendence of commissioners appointed under those laws, who, by articles of agreement, contracted with the plaintiffs to manage and conduct the drawing of the lotteries [*381 authorized by the laws, on certain terms therein stipulated, one of which took place in Virginia, under the circumstances set forth in the statement of the case by the reporter.

In the argument for the plaintiff in error here, it has been contended that this lottery was illegal by the Suppressing Act of 1834, which precluded a recovery of the money he received; but as, in our opinion, this cause can be decided without an examination of that question, we shall proceed to the other points of the case, assuming for present purposes the illegality of the lottery.

Taking, as we must, the evidence adduced by the plaintiffs below, to be in all respects true after verdict, the facts of the case present a scene of a deeply concocted, deliberate, gross, and most wicked fraud, which the defendant neither attempted to disprove or mitigate at the trial, the consequence of which is, that he has 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 plaintiffs, by means of any other false pretense, and he is estopped from avowing that the lottery was in fact drawn.

Such being the legal position of Catts, the case before us is simply this: Phalen and Morris had in their possession $12,500, either in their own right, or as trustees for others interested in the lottery, no matter which, the legal right to this sum was in them; the defendant claimed and received it by false and fraudulent pretenses, as morally criminal as by larceny, forgery, or perjury; and the only question before us is, whether he can retain it by any principle or rule of law.

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 that fact: the contract which the law raises between them, is not founded on the drawing of the lottery, but on the obligation to refund the money which has been received by falsehood and fraud, by the assertion of a drawing which never took place. To state is to decide such a case, even if the instructions prayed by the defendant had been broader than they were. The instructions prayed were, 1. That if the jury believed from the evidence that the lottery was drawn under the law of Virginia, and the 382*] contract referred to, then the lottery was illegal; and that if plaintiffs paid the amount of the said prize, under the belief that said ticket had been fairly drawn, the plaintiff cannot recover. 2. That if the jury shall believe from the evidence that in December, 1840, when the lottery was drawn, the defendant was an infant, the plaintiffs are not entitled to recover in this action.

A party cannot assign for error, the refusal of an instruction to which he has not a right to the full extent as stated, and in its precise terms; the court is not bound to give a modified instruction varying from the one prayed: here they were asked to instruct the jury, that the belief of the plaintiff that the ticket had been fairly drawn, and the consequent payment,

prevented a recovery, without referring to the fact in evidence, that that belief was caused by the false and fraudulent assertions of the defendant.

The second instruction asked was, that the plaintiffs could not recover if the defendant was a minor in December, 1840, which the court properly refused, because they were not asked to decide on the effect of his minority when the money was received in February, 1841; and because, if he had then been a minor, it would have been no defense to an action founded on his fraud and falsehood.

The first instruction, if granted, would have excluded from the consideration of the jury all reference to the fraud which produced such belief in the plaintiff, and they must have given it the same effect, whether it was founded in fact, or caused by the false asseveration of the fact by the defendant, knowing it was a falsehood, and thus depriving the jury of the right to decide on the whole evidence.

The second instruction asked would, if granted, have also taken from the jury the right of finding for the plaintiff, if the defendant had been of full age when the fraud wa successfully consummated by the receipt of the money, which was the only fact on which the law could raise a promise to repay, for certainly none could be raised at any previous time; so that had these instructions been given, the verdict must have been rendered for the defendant without taking into view the only evidence on which the plaintiff relied, whether it was avail able in law or not.

For these reasons, the judgment of the Circui Court is affirmed, with costs.

NOTE. As to lapse of time, and statute of limit. tions, as affecting the remedy, or as a defense equity cases, see note to Thomas v. Harvie,10 When 146; and note to Pratt v. Carroll, 8 Cranch, 471; an note to Prevost v. Gratz, 6 Wheat., 481.