ON MOTION FOB REHEARING.
Smith, P. J.An agreement enteredinto in this state
to purchase a lottery ticket in another state does not fall within the prohibition of the statute of this state in reference to lotteries. R. S. 1889, sec. 3833. The purchase in this case was not made in this state, but in the state of Louisiana where it was entirely legal. We prohibit the making of certain contracts in this state; we *338do not undertake to give our laws any extra territorial operation. New York, by its statute, prohibits lottery advertisements. A contract made in that state to advertise a lottery in other states, where such advertisements were not prohibited, was held not to be illegal, and that the statute against lotteries was in no manner infringed. Ormes v. Danchey, 82 N. Y. 443 ; People v. Nollke, 94 N. Y. 137.
The allegation of the facts which led up to the transaction of the purchase of the lottery tickets in this case was, perhaps, necessary to show the title of the plaintiff to -an interest in the prize money which the defendant had received in part for his use.
Whether the plaintiff applied-by letter or in person to the lottery company or at its office in the state of Louisiana, is immaterial, for the reason, that in either case the minds of the plaintiff and the lottery company, a legal entity, there first met, and it was there the contract was made. It was under this contract that the defendant was paid the prize money which she now seeks to retain, because it was a wagering contract which the courts will not lend their aid in enforcing. The agreement to purchase the tickets infringed no statute of this state, nor did the purchase of the tickets in the state of Louisiana, so it is quite difficult to see why the plaintiff’s cause of action cannot be sustained in this state. Funk v. Galliger, 49 Conn. 124, is exactly in line with Kitchen v. Greenbaum, 61 Mo. 110, and decides no more than is there decided. It was*a case where a claim was made for property under a title derived through a lottery transaction which had taken place in violation of the statute of Connecticut. The case is in no respect analogous to this, and we think it is wholly inapplicable to it, and the same remark is equally applicable to the case of Watson v. Fletcher, 7 Gratt. 1.
The case of Watson v. Murray, 23 N. J. Eq. 257, goes far towards upholding the defendant’s contention. *339It declares lotteries to be mala in se, while the supreme court of the United States declares them, in legal acceptance of the term mala prohibita. Stone v. Mississippi, 101 U. S. 814 ; Ewell v. Doggs, 108 U. S. 143. Malum prohibitum is defined in Anderson’s Law Dictionary, 650, to be an act made wrong by legislation — a forbidden evil. The whole opinion proceeds upon an idea that lotteries are mala in se, and, therefore, the courts of justice are nowhere bound to accord to contracts respecting them any validity, though valid in the jurisdiction where made. This ruling stands opposed to the well-established current of judicial decision, as we have seen from the cases referred to in the opinion in respect to the interpretation of contracts, that, though prohibited by the laws where it was sought to enforce themj they were valid in the states where made. In the state of Massachusetts slavery was declared to be contrary to natural right, the principles of justice and sound policy. In Com. v. Aves, 19 Pick. 215, Chief Justice Si-iaw, in delivering the opinion of the court, declared that a note given in the state of Louisiana for the purchase price of a slave could be enforced in that state because legal by the laws of the state where made. It was further remarked in the same connection by this eminent judge, that, if a state saw fit to establish slavery by law, “we are bound1 to take notice of the existence of those laws, and we are not at liberty to declare and hold an act done within their limits unlawful and void upon our views of morality and policy, which the sovereign power and legislature lias pronounced lawful.” And to the same effect is Greenwood v. Curtis, 6 Mass. 358.
While the question presented is very close, and one of great nicety, we think the law is with the plaintiff, After giving the points and authorities cited in support thereof in the brief of the counsel for the defendant the most attentive consideration, we feel constrained to adhere to the conclusion announced in the opinion.