Judgment.—In the case of Gregory & Co. vs. Glazier, adm’r. of Bailey:—And now, to wit, this twelfth day of June, in the year of our Lord one thousand eight hundred and forty-five, the questions of law arising upon the record in this cause having been heard before the Court of Errors and Appeals of the State of Delaware, composed of all the judges of the said State, and fully debated on both sides, by counsel learned in the law, and fully understood by the said court, it is considered by the court;
First. That lottery tickets are a proper subject of charge in a book account.
Second. That the plaintiffs’ using the name and firm of James G. Gregory and Company, being the vendees or contractors, under the commissioners, trustees or managers, of certain lotteries authorized by the legislature of the State of Delaware, have the right to sell lottery tickets by wholesale within this State without taking out any license.
Third. That the intestate, Edward T. Bailey, having admitted that the amount claimed by the plaintiffs upon the account stated and settled between them was due, the plaintiffs are entitled to recover in an action of assumpsit, against the defendant as administrator of the said Edward T. Bailey, deceased, upon a count in the declaration on “ an account stated,” without going into proof of the items of said accounts.
Fourth. That the want of a license to sell lottery tickets does not impair or affect the validity of the contract of sale.
Fifth. That the acting or managing partner or partners of a firm must join in making probate against a deceased debtor. A member of a copartnership who has not taken upon himself any part of the business of the concern, or who has retired before the debt or demand became due, or the cause of action accrued, or who is a dormant partner, need not join in the probate; nor will it be required of a partner where by reason of permanent absence from the country, or from any other cause, it is impossible to procure his affidavit. And where the same firm carries on business at houses in different States, or in Europe, the probate need be made only by the acting or managing partner or partners conducting the business of the firm at the house where the contract was made, or the debt became due. The *264probate in the present case is made only by one partner; and it does not appear from the record, that the membets of the firm who have not joined in the probate are other than acting and managing partners, with the member of the firm who has made the probate.
Whitely and Rogers, for plaintiffs. Gilpin and Wales, for defendants.It is therefore considered by the court, this sixteenth day of June in the year aforesaid, that by reason of the insufficiency of the probate in this cause, the verdict rendered in the Superior Court be set aside and a nonsuit entered: and that the plaintiffs pay the costs in this court, and also in the Superior Court. And it is ordered, that' the decision of this court upon the aforesaid questions of law be certified to the said Superior Court in and for New Castle county.
In the case of Rogers vs. Glazier, adm’r. of Bailey:—And now to wit, &c., it is considered by the court,
First. That lottery tickets are a proper subject of charge in a book account.
Second. That the law of New Jersey, passed the 13th of February, A. D. 1797, respecting the drawing of lotteries, &c., sale of lottery tickets, See., does not prevent the plaintiff from recovering in this action, because its operation is confined to the sale of lottery tickets, and lotteries to be drawn in that State, without the authority of the legislature, or without the authority of an act of Congress of the United States; and the evidence in this case is that the tickets sold were in lotteries thus authorized.
Third. That the contract between the plaintiff and the defendant’s intestate in regard to the sale and purchase of lottery tickets, is a legal contract under the laws of the State of Delaware.
Fourth. That the intestate having admitted that the amount claimed by the plaintiff upon the account stated and settled between them was due, the plaintiff is entitled to recover upon the count on “ an account slated,” without going into proof of the items of said accounts.
It is therefore considered by the court, this sixteenth day of June, in the year first aforesaid, that judgment be entered for the plaintiff upon the verdict rendered in the said Superior Court; and that the defendant pay the costs in this court, and also in the said Superior Court. And it is further ordered, that the decision of this court upon the aforesaid questions of law, be certified to the said Superior Court in and for New Castle county.