for licensing was disapproved by Congress and the act was thus left prohibiting such enterprises. The trading stamp business was held to be within this prohibition and the United States Supreme Court refused to grant a writ of certiorari.

Lot Sales. Another plan for advertising the sale of property which has been much discussed by the courts concerns the sale of lots in a newly platted addition to some city or village, usually coupled with a scheme for securing a factory or similar enterprises at or near the property platted. Substantially the same plan has been pursued in each case differing only in detail, but these differences are important upon the question of the validity of the plan. A general outline of the plan is that some one interested in promoting some industry which is to be located in a city or town secures a tract of land on which or near which it is proposed to locate the industry. This tract is platted and persons select lots on the plat subscribing therefor and paying a level price, the apportionment of lots among the subscribers being subsequently determined by chance. It will be seen that where the lots are of unequal value, as they must necessarily be in practically every case, our definition as to what constitutes a lottery is transgressed by this plan of disposition of the property, and a plan pursued along this line has generally been. condemned, and a contract for the sale of land in accordance with this method has consequently been held void on the ground that it constitutes a lottery. If, however, the subscribers purchase the property and

(7) District of Columbia v. Craft, 35 App. D. C. 253; Craft v. District of Columbia, 218 U. S. 673, 31 Sup. Ct. 223, 54 L. Ed. 1205; District of Columbia v. Gregory, 35 App. D. C. 271; Gregory v. District of Columbia, 218 U. S. 673, 31 Sup. Ct. 223, 54 L. Ed. 1205; See also In re Gregory, 219 U. S. 210, 31 Sup. Ct. 143, 55 L. Ed. 213.

(8) Paulk v. Jasper Land Co., 116 Ala. 178, 22 So. 495; Burks v. Harris, 91 Ark. 205, 120 S. W. 979, 69 Cent. L. J. 647; Lynch v. Rosenthal, 144 Ind. 86, 42 N. E. 1103, 55 Am. St. Rep. ???, 31 L. R. A. 835, 42 Cent. L. J. 435; Guenther v. Dewein, 11 Ia. 133; Wooden v. Shotwell, 24 N. J. L. (4 Zab.) 789, affirming 23 N. J. L. (3 Zab.) 465; Jackson Steel Nail Co. v. Marks, 4 Ohio Cir. Ct. R. 343.

each agrees to contribute a certain sum the fact that the parcels are later apportioned among the subscribers by lot does not invalidate the subscriber's contract as it is considered that the promoter or vendor does not participate in the method of distribution, the contract contemplating that the subscribers may use their own method and it not being illegal for tenants in common to divide the property among themselves by lot." The distinction being that the division by lot was no part of the original contract as was pointed out in the Arkansas case cited above.10

11

Likewise where to induce the sale of lots at auction each purchaser is granted the right of participating in a subsequent drawing for a lot which is not put up for sale, but which is offered as a prize to each purchaser at the auction, the entire transaction is tainted and a sale of any lot at the auction cannot be enforced. It may at first blush appear to be a little difficult to reconcile these holdings but when the situations presented in the various cases are analyzed the reason is plain. These were not criminal prosecutions for violation of the lottery law, they were suits depending upon the contracts for the purchase of the lots. Now, if these contracts were for the purchase of an indefinite interest in a tract of land which had been divided into parcels, the fact, that the purchasers subsequently resolved among themselves to determine the parcel which should go to each of them by chance or lot, in which resolution the vendor did not participate, would not inject a lottery into the contract, but if the contract contemplates that the division shall be by lot then it would be tainted with the vice of a lottery and would be void. In the one case the contract is not so tainted,

(9) Lauder v. Peoria Agricultural & Trotting Soc., 71 Ill. App. 475; Washington Glass Co. v. Mosbaugh, 19 Ind. App. 105, 49 N. E. 178; McCleary v. Chipman, 32 Ind. App. 489, 68 N. E. 320; Chaney Park Land Co. v. Hart, 104 Ia. 592, 73 N. W. 1059, 46 Cent. L. J. 234.

(10) Burks v. Harris, 91 Ark. 205, 120 S. W. 979, 69 Cent. L. J. 647.

(11) Whitley v. McConnell, 133 Ga. 738, 66 S. E. 933.

and in the other case it is and the lottery lies in the fact that one may receive more or less than what he pays for, it depending upon chance.

Suit Clubs.-Another scheme for secur

ing the sale of goods by means of special inducements is the plan of forming a "suit club" in which there are as many members as the price of a suit of clothes which a merchant or a tailor, who organizes the club is to furnish, and into which each member contributes a dollar each week for as many weeks as the price of the suit, until he secures the suit by lot, a drawing being had each week at which some one draws a suit of clothes and drops out of the club and his place is taken by some one else. It will be seen that under this plan every member will pay no more for a suit of clothes than its value, but he may pay much less and he may secure the suit for any sum over one dollar up to its price. This device has been before the courts in a number of different cases and has been universally condemned as a lottery, the chance being to receive much more than what is paid for, determined by lot.12

Prize Packages. Another common plan of inducing the sale of goods has been to put letters or numbers, cards or articles

in packages of food or tobacco so that the purchaser of the package would receive directly or as a result of saving the coupons found in the package certain articles additional to what he purchased; important prizes only being given upon coupons placed in very few packages. These schemes have been universally condemned, for example, a cereal company in order to induce the sale of its oats placed upon coupons in each of its packages some one of the letters which would spell "Mother's," the letter "o" being placed upon only one coupon in 500; prizes of a small value be

(12) De Florin v. State, 121 Ga. 593, 49 S. E. 699, 104 Am. St. Rep. 177, 60 Cent. L. J. 422; People v. McPhee, 139 Mich. 687, 103 N. W. 174, 12 D. L. N. 41, 69 L. R. A. 505; State v. Moren, 48 Minn. 555, 51 N. W. 618.

ing given for a certain number of all of the coupons, but important prizes being given for the collection of coupons spelling the word "Mother's." This was condemned under the Federal statutes and a conviction of violating the Federal Lottery Law was upheld.13 Likewise the same lottery law. was held infringed by placing a tag in one out of each one hundred five cent cuts of plug tobacco redeemable for fifty cents,14 and also by placing portions of paper animals in food packages, an important prize being given to any one who secured seven complete animals by saving and putting together the portions found in the packages, 15 the chance consisting in being able to secure seven complete animals. So where prizes are put in boxes of candy, the purchaser selecting his box in ignorance of its contents and the prizes contained in the boxes being of different values, it was held a lottery was intended.10 It has also been held that the sale of a package of coffee on which was pasted slips, each one marked "one plate," in return for each slip the purchaser of the coffee was entitled to a plate, was a gift enterprise in violation of the Maryland statute,17 but the Court of

Appeals of New York held that the giving away of a cup and saucer with two pounds of coffee was not a lottery,18 and the lot

tery law is not transgressed by the giving of a photograph to each purchaser of a package of tobacco, although the purchaser is privileged to select the photograph he desires from among a number which are on display. It is a lottery, however, for a

19

(13) United States v. Jefferson, 134 Fed. 299; Sheedy v. District of Columbia, 19 App. D. C. 280. (14) United States v. One Box Tobacco, "Foot Prints," 111 C. C. A. 459, 190 Fed. 731.

(15) United States v. McKenna, 149 Fed. 252. (16) Holoman v. State, 27 Tex. App. 610, 28 Am. Rep. 439.

(17) Long v. State, 73 Md. 527, 21 Atl. 683, 25 Am. St. Rep. 606, 12 L. R. A. 89, 33 Cent. L. J. 170.

21

person to sell packages of candy,20 gum,2: or tea22 and with, or in the package to give a number or coupon entitling the purchaser to some article of a greater or lesser value depending upon the chance of obtaining the right number. Likewise a sale of envelopes containing popular songs, and also a card entitling the purchaser to buy any article in the store for $1.00, those articles being of a greater and lesser value is a lottery,23 and the sale of books numbered on the outside entitling to the drawing of a prize depending upon the correspondence of the number on the book purchased with a certain table of numbers in a book kept by the seller is a lottery;24 and for a merchant to display a box in his window containing a sum of money and the giving of a key with each purchase, only one key being capable of unlocking the box, and the contents of the box going to the person who secures the right key is a lottery.25

state

Guessing Contests.-A newspaper which offers a prize to a subscriber who pays a certain sum more than the regular subscription price for his subscription to the newspaper for the nearest correct guess upon the total vote to be received by officer at a coming election is a lottery;20 and the giving of a ticket to each newspaper subscriber, the holder of the lucky number as determined by a committee of the subscribers to receive a prize, is a lottery, where the committee distributed the prizes by lot.27 Examination of this last case dis

(20) Hall v. Ruggles, 56 N. Y. 424; State v. Lumsden, 89 N. C. 572.

(21) People v. Runge, 3 N. Y. Cr. R. 85. (22) State v. Boneil, 42 La. Ann. 1110, 8 So. 298, 21 Am. St. Rep. 413, 10 L. R. A. 60, 2nd 42 La. Ann. 1207, 8 So. 300.

(23)

Dunn v. People, 40 Ill. 465.

(24) 723. (25) Davenport v. City of Ottawa, 54 Kan. 711, 39 Pac. 708, 45 Am. St. Rep. 303, 40 Cent. L J. 361.

State v. Clarke, 33 N.. 329, 66 Am. Dec.

(26) Stevens v. Cincinnati Times Star Co., 72 Ohio St. 112, 73 N. E. 1058, 106 Am. St. Rep. 586. (27) State v. Mumford, 73 Mo. 647, 39 Am. Rep. 532.

closes that if it were to be followed as precedent the scheme discussed above for distributing lots of land would have been held to be a lottery had the question been raised in a criminal prosecution instead of in an action based upon a contract.

Voting Contests.- Generally speaking, the plan of offering prizes of various natures through newspapers, or in aid of societies, churches, schools or lodges to persons who receive the highest number of votes of patrons have been held not to transgress the lottery law.28 For example, where at a church fair two boxes were placed for receiving money and labeled with the name. of some member, and the person whose box is found to contain the most money after the voting is over is to receive a prize, and the church or society to receive the contents of the box is not a lottery.20

Slot Machines.-The use of slot machines to assist trade by distributing prizes in accordance with certain showings made by the machine has been universally condemned and prosecutions have been sustained where the purchaser of goods receives with the purchase a chance to win upon the operation of the machine. This has been held to make the entire transaction a lottery and punishable as such.30

From all of which it appears certain that the law is pretty well settled that a lottery may consist in any advertising scheme or device whereby a customer receives for a consideration great or small a chance to obtain a greater consideration, his right to which is determined by lot or chance.

COLIN P. CAMPBELL.

Grand Rapids, Mich.

(28) Quatsoe v. Eggleston, 42 Ore. 315, 71 Pac. 66, 56 Cent. L. J. 332.

(29) Dion v. St. John Baptiste Soc., 82 Me. 319, 19 Atl. 825.

(30) Loiseau v. State, 114 Ala. 34, 22 So. 138, 62 Am. St. Rep. 84, 45 Cent. L. J. 68; Meyer v. State, 112 Ga. 20, 37 S. E. 96, 51 L. R. A. 496; City of New Orleans v. Collins, 52 La. Ann. 973, 27 So. 532.

DIBELL, C. Antoine Poupore died on September 4, 1909. His widow survived. On January 27, 1914, a petition in her name was presented to the Probate Court of St. Louis County, where the estate of the decedent was probated, praying the setting aside of a statutory allowance of personal property of the value of $500, as provided by G. S. 1913, § 7243, R. L. 1905, § 3653. Upon an appeal to the district court an allowance of a portion of the $500 was made and the petition was denied in part. An appeal in the name of the widow was taken to this court. The respondents move to remand to the district court; and upon the hearing of the motion it appears that the widow died on December 2, 1913, which was prior to the application made in the probate court in her name. The purpose of the remand is that the respondents may move to reopen the case and show the widow's death.

[1] 1. When a court has jurisdiction of the parties and the subject-matter and the plaintiff or the defendant dies and after his death the court renders judgment for or against the deceased party, such judgment is not void. Hayes v. Shaw, 20 Minn. 405 (Gil. 355); Stocking v. Hanson, 22 Minn. 542; note to Kager v. Vickery, 61 Kan. 342, 59 Pac. 628, in 49 L. R. A. 153, 78 Am. St. Rep. 318; note to Evans v. Spurgin, 6 Grat. (47 Va.) 107, in 52 Am. Dec. 105; note to Watt v. Brookover, 35 W. Va. 323, 13 S. E. 1007, in 29 Am. St. Rep. 811; note to Wardrobe v. Leonard, 78 Neb. 531, 111 N. W. 134, in 126 Am. St. Rep. 619. "The court, having acquired jurisdiction of the parties, possesses the power to proceed to the final disposition of the action; and while the court ought to cease to exercise its jurisdiction over a party at his death, the neglect to do so is an error to be corrected by some proceeding in the action in which the error occurs, and the judgment, though erron

eous, is not on that account to be attacked in a collatral action. In other words, the judgment is voidable when properly assailed, but not void." Hayes v. Shaw, 20 Minn. 405 (Gil. 355). The doctrine stated applies to a determination made upon the petition for a statutory allowance.

[2] 2. A judgment for or against a party who is dead at the time suit was commenced is void. Loring v. Folger, 7 Gray (Mass.) 505; Crosley v. Hutton, 98 Mo. 196, 11 S. W. 613; M. T. Jones Lumber Co. v. Rhoades, 17 Tex. Civ. App. 665, 41 S. W. 102; Greenstreet v. Thornton, 60 Ark. 369, 30 S. W. 347, 27 L. R. A. 735; Weller Mfg. Co. v. Eaton, 81 Mo. App. 657; Winship v. Conner, 42 N. H. 341; Bragg v. Thompson, 19 S. C. 572; 1 Black on Judgments, § 203; 1 Freeman on Judgments, § 153; note, Wardrobe v. Leonard, 78 Neb. 531, 111 N. W. 134, in 126 Am. St. Rep. 619; note to Kager v. Vickery, 61 Kan. 342, 59 Pac. 628, in 49 L. R. A. 153, 78 Am. St. Rep. 318. And see Auerbach v. Maynard, 26 Minn. 421, 4 N. W. 816, where it was held that when a summons was in process of service but the service was not complete at the time of the defendant's death the action could not be revived against his representative. "That there should, at some time during its progress, be living parties, to both sides of an action we think indispensable; and that no sort of jurisdiction can be obtained against one who was dead when suit was commenced against him as a defendant, or in his name as plaintiff; and that no judicial record can be made which will estop those claiming under him from showing that he died before the action was begun; and that a judgment for or against him must necessarily be void." 1 Freeman on Judgments, § 153. In Watt v. Brookover, 35 W. Va. 323, 13 S. E. 1007, reported with note in 29 Am. St. Rep. 811, it was held that where an action was in the name of a plaintiff dead at the time of its commencement, the defendant's remedy was by plea in abatement. This case does not represent the prevailing view. The general doctrine stated applies to the determination made in the district court upon the appeal of the widow from the probate court. Whether such doctrine applies to proceedings in rem or to those in the nature of proceedings in rem is not a question here.

[3] 3. Upon the suggestion in this court of the death of a party after appeal the statute provides for a substitution. G. S. 1913, §§ 8014, 8015; R. L. 1905, §§ 4378, 4379. There is no provision for a substitution when a party in whose name an action is brought or against whom it is prosecuted is dead at the time of its

commencement. However, this court will not proceed with an appeal when it is shown that a party to it is dead. When a party is dead at the time of suit brought the opposing party may move to dismiss the proceeding or vacate a judgment or dismiss an appeal. See, generally, Elliott v. Bastian, 11 Utah 452, 40 Pac. 713; Knott v. Taylor, 99 N. C. 511, 6 S. E. 788, 6 Am. St. Rep. 547; Lockridge v. Lyon, 68 Ga. 137. The respondents are not entitled to a remand to the district court so that they may move to reopen and show the fact of death. Their remedy is ample. This is not like a case where an appellant asks to remand to renew a motion for a new trial upon the ground of newly discovered evidence. Kroning v. St. Paul, etc., Co., 96 Minn. 128, 104 N. W. 888.

[4] 4. In view of further proceedings it is proper to say that the widow's right to an allowance under the statute cited becomes absolute on the death of the husband. If she dies before the allowance is made the right of selection survives to her personal representative. Sammons v. Higbie's Estate, 103 Minn. 448, 115 N. W. 265.

We do not say that upon the appointment of a personal representative of the widow a stipulation might not be made by the parties, if so disposed, that would avoid the expense of a retrial of the matters involved. The amount in litigation is small and unnecessary expense should be avoided.

The appeal of the administrator involving the disallowance in part of this account is not dependent upon the appeal in the name of the widow.

Motion to remand denied.

NOTE.-Judgment Entered Against a Defendant Dying After Suit Begun.-It seems to be true, by a majority of the cases, that, if a party to a suit dies, after jurisdiction has been obtained in an action against him, a judgment rendered against him after death is not void, but only voidable and good against collateral attack. The instant case gives a number of the cases holding this way. Many more are given in annotation to Kojer v. Vickery, in 49 L. R. A. 153.

This rule meets with some variation in decision with reference to the stage of the proceedings at which the judgment was rendered, the record being silent as to death. Thus in Hamilton v. Holcomb, I Johns. Cas. 29, it was held that where between imparlance and judgment one of two defendants died, the judgment as to both could be amended on error coram nobis by suggesting his death. In Louisiana it was held that if a served defendant dies before issue joined, judgment against him is a nullity. N. O. S. C. R. Co. v. Bosworth, 8 La. Ann. 80; Norton v. Jamison, 23 ibid. 102.

Where defendant dies before time to answer, it was said his death cannot put him in default and "a default cannot be taken against a dead

man, any more than a summons can be served on a dead body." Borsdorff v. Dayton (N. Y.), 17 Abb. Pr. 36. But if the default occurred in defendant's lifetime without knowledge by plaintiff of his death, judgment thereafter will not be avoided. Reid v. Holmes, 127 Mass. 326. The error was said to be a mere irregularity, not subjecting the judgment to collateral attack; however, the irregularity might be corrected by writ of error.

If defendant dies after judgment by default and before writ of inquiry is executed, his administrators may take advantage of the fact by plea to a scire facias issued against them. Carter v. Carriger, 3 Yerg (Tenn.) 411, 24 Am. Dec. 585.

Under New York statute it is provided that a judgment is not authorized to be entered against a party who dies before a verdict, report or decision is actually rendered against him. This renders judgments in such cases absolutely void. Gerry v. Post, 13 How. Pr. 118; Adams v. Nellis, 59 How. Pr. 385; Lemon v. Smith, 47 N. Y. Supp. 158; Stephens v. Humphyes, 73 Hun. 199, 25 N. Y. Supp. 946.

But

Judgments rendered after death sometimes have relation back. Thus in England if rendered during the term it may have date from its beginning. Magner v. Langmead, 7 T. R. 20. this relates only to the signing and not actual rendition of the judgment. If the cause is actually heard but decree is not pronounced, it may be, notwithstanding death in the meantime. Hall v. Clifton, 2McChord Eq. 88. So if judgment is entered in the minutes, the record may be signed afterwards. Salter v. Neaville, 1 Bradf. 488.

In Flock v. Wyatt. 49 Iowa 466, it was ruled that entry of a decree of a date subsequent to death was irregular, but it ought to have been entered as of a prior date.

The only rule at common law was that a judgment rendered against a dead man was in all cases void. Weston v. James, 1 Sack. 42; Randall's Case, 2 Mod. 308. The injustice of this rule brought out the fiction of having all judgments bear date from the first day of the term. Broos v. Mersereau, 18 Wend. 653: Life Assn. v. Fassett, 102 Ill. 315; Claflin v. Dunne, 129 Ill. 241, 21 N. E. 834, 16 Am. St. Rep. 263.

If the entry of a judgment is merely delayed until after the death of one of the parties, it may be entered nunc pro tunc as of a date when he was alive, other party then being entitled to a judgment. Powe v. McLeod, 76 Ala. 418; Seymour v. Fueling Co., 205 Ill. 77, 68 N. E: 716: Richardson v. Green, 130 U. S. 104, 43 L. ed. 872.

If from laches in not calling the court's attention to death before judgment is entered, a moving party to have same set aside may be denied relief. Rogers v. McMillan, 6 Colo. App. 14, 39 Pac. 891; Wood v. Watson, 107 N. C. 52, 12 S. E. 49, 10 L. R. A. 541; State v. Tate, 109 Mo. 265, 18 S. W. 1088, 32 Am. St. Rep. 664.

In Schmelzer v. Central Furniture Co., 252 Mo. 12, 158 S. W. 353, there was death pending appeal, but the court adopts the following principle stated in 1st Freeman on Judgments, 4th Ed., § 153: "If an action is begun by or against living parties over whom the court ob