¶1The opinion of the court was delivered by
¶2A lottery is defined as being a scheme for the distribution of prizes by chance, (Bouv. Law Dict.)—a game of hazard, in which small sums are ventured for the chance of obtaining a larger value, either in money or other valuables. Worcester’s Lid. Where a pecuniary consideration is paid, and it is determined by lot or chance, according to some scheme held out to the public, what the party who pays the money is to have for it, or whether he is to have anything, it is a lottery. State v. Clarke, 33 N. Hamp. 329; Hull v. Ruggles, 56 N. Y. 424.
¶3It was not disputed on the argument, nor is it disputable, that all the elements of these definitions existed in the facts found by the court below, save only that of chance. The *462scheme of “pools” set up by the defendant, was one in which the public were invited to hazard small sums of money, for the purpose of receiving, as prizes, larger sums. But it was insisted, on behalf of the defendant, that whether the person hazarding the small sum was to receive a larger one or not, depended, not upon chance, but upon his own good or bad judgment in selecting the horse on which he placed his bet; and this, therefore, is the point to be decided. In State v. Shorts, 3 Vivom 398, it was held to be sufficiently a matter of chance to constitute the scheme a lottery, when the receipt of the prize or gift was contingent upon the exhibitor’s being in a mood to bestow it, and upon his approving the personal appearance of the holder of the ticket whose number he had announced. Few persons who have witnessed a horse-race will, I think, hesitate to affirm that the success of any given horse is a more fortuitous event than such contingencies as these, The physical condition of the horse and his rider, the fastenings of his shoes, the honesty of purpose that actuates his rider and his owner in running him, the state of the weather and the track, and these same circumstances in the case of every horse that races against him, are all matters about which the judgment of the outside better can avail him no more than the arithmetical calculation of chances can avail the dice-thrower. They have just enough of the appearance of certainty to attract the confident, and, if he wins, he praises his skill, but, if he loses, he blames his luck.
¶4There is, however, aside from the result of the race, another element of chance in these games, which is clearly pointed out in Tollett v. Thomas, L. R., 6 Q. B. 514, and that is, the element which determines what the winner is to gain. That element, in the “auction pool,” depends upon how much others may bet against him, and, in the “ French pool ” and “ combination pool,” upon how many others may bet against him and how many others may bet as he does. None of the betters, save the last one, can possibly learn these matters. I need not repeat what is said in the case cited, as to these ingredients making the transaction a game of chance.
¶5*463I conclude, therefore, that the facts found contain every essential of a lottery, and that the business in which the defendant was engaged comes plainly within the animadversions of the court in Den, ex dem. Wooden, v. Shotwell, 4 Zab. 789, as “ engendering that imprudent spirit of gambling which the prospect of adventitious gain usually excites, and having a direct tendency to produce those pernicious mischiefs in a community which the act for the suppression of lotteries was intended to prevent.”
¶6The judgment below should be affirmed, with costs.