and have not lapsed. If a court of equity will take charge of these assets, in order to prevent them from being used for this unlawful business, these assets should be returned to the true owners of the fund, that is, the holders of certificates at the present time and all persons who have contributed to the fund at any time. One reason why it appears to us that it is not the province of a court of equity to soil its hands in distributing a fund of this character is, that after all persons who have ever contributed to the fund have been repaid the amount contributed, with lawful interest thereon, and even the costs of suit and of the receivership have been paid, there will probably be remaining a surplus in the hands of the court, and it would be necessary to determine to whom this surplus belonged. A court of equity would certainly not give this fund to the holders of the lottery tickets, as it were. If it did, it would encourage people to buy lottery tickets, and would be giving to those who bought the tickets a part of the profits of the illegal enterprise. If the fund remaining in the hands of the court were not 674 given to the purchasers of the tickets, it would have to be divided among the operators of the illegal scheme; and it would certainly be an unusual spectacle for men who had been promoters of a lottery scheme, and who had had a fund raised by them taken from them by a court of equity, to wait around the doors of the court until the fund had been administered, to see how much a court of equity would return to them as the promoters of the scheme. At no time in the history of the court of chancery have persons in possession of a fund procured by unlawful means been known to wait around the doors of the court for the time to arrive when a portion of such a fund should be returned to them by the court, for the reason that the owner could not be found and the court must make some disposition of it. The doors of a court of equity are closed against such persons, and should never open to admit a fund which would have to be so administered that a time would arrive when the law-breaker, loitering at the doors of the court in anxious solici tude as to the time and terms of the final decree, must be sent for in order that the court may deliver to him a part of the fund remaining unadministered in its hands. The unadministered part of the fund in such cases cannot, consistently with any rule of law or equity, be paid to those who were enticed into the illegal scheme; and a court of equity has no right to confiscate even the property of a law-breaker; and at the end of litigation of the character indicated by the above reflections, the Am. St. Rep., Vol. 97-14

only course open to the court would be to call in the transgressor of the law and deliver to him a fund which, according to the rules of law and equity, could not with propriety be delivered to anyone else. However, as said above, we do not decide this question. These are simply some reflections growing out of the possibilities that might result from an attempt by a court of equity to administer a fund which in its inception and growth is tainted and impure. It does now seem to us that the only court that should ever open its doors to him who would improve his fortune by methods not authorized by law is that court which has jurisdiction to punish offenders against the law. Of all courts, a court of equity should not be opened to the lawless, to settle controversies concerning their spoils. The lawless should neither be allowed to pass the threshold of such a court, nor permitted to linger around its portals in anticipation of a benefit to be derived from its decrees.

675 Having reached the conclusion that the individuals engaged in this enterprise are not subject to the criticism that they are the managers of a lottery or promoters of a scheme which is unlawful, we are saved the necessity at the present time of deciding what would have been the rights of these certificate holders if their contentions had been sound.

Judgment reversed.

Fish and Candler, JJ., concur.

Lumpkin, P. J., absent.

ON MOTION FOR REHEARING.

COBB, J. The application for a rehearing in this case is based upon numerous grounds. A rehearing is asked upon the ground that the case was heard by only five justices and the judgment rendered was concurred in by only three. It is now asked that the case be reheard before a full bench of six justices. These facts alone furnish no sufficient reason for a rehearing. Under the constitution and laws, three justices may render a judgment in any case heard before less than six justices. Even if under any circumstances a litigant has a right to ask that his case be heard before a full court of six justices, the application must be made before the case is heard. The fact that one or more of the justices is absent and the judgment is rendered by three justices only constitutes no ground for a rehearing at the instance of a party. While it does not appear in the official report of the case, still the records of this court disclose that

in the case of Gilbert v. State, 116 Ga. 819, 43 S. E. 47, which was heard by four justices and the judgment rendered by three, the fourth dissenting, an application for a rehearing upon the ground above referred to was refused.

It is further contended that a rehearing should be granted for the reason in that the opinion of the majority it is recognized that the 676 scheme is dependent to some extent upon the doctrine of survivorship; and that as joint tenancy with its incident of survivorship has been abolished in this state, the ruling is unsound to the extent referred to. It is true that the common-law doctrine of survivorship among joint tenants was abolished by the constitution of 1777: Lowe v. Brooks, 23 Ga. 325; Carswell v. Schley, 56 Ga. 101, 108. See, also, Bryan v. Averett, 21 Ga. 402, 68 Am. Dec. 464; Harrison v. Harrison, 105 Ga. 520, 70 Am. St. Rep. 60, 31 S. E. 455. The code declares: "Joint tenancy does not exist in this state, and all such estates under the English law will be held to be tenancies in common under this code": Civ. Code, sec. 3142. It follows, therefore, that wherever an instrument creates an estate which at common law would be held to be a joint tenancy, in this state the instrument would be held to take effect as to all its terms, except so far as it provided by implication for survivorship among the tenants, and such tenants would be held to occupy to each other, so far as this question is concerned, the relation of tenants in common. While the doctrine of survivorship as applied to joint tenancies has been distinctly abolished and does not exist in this state, there is no law of this state that we are aware of which prevents parties to a contract, or a testator in his will, from expressly providing that an interest in property shall be dependent upon survivorship. Of course, all presumptions are against such an intention; but where the contract or will provides, either in express terms or by necessary implication, that the doctrine of survivorship shall be recognized, we know of no reason why a provision in the contract or will dependent upon such doctrine may not become operative under the laws of this state. While this question seems not to have been distinctly passed upon by this court, there are numerous cases in which the doctrine of survivorship has been recognized as being operative. Among the cases on this subject, see Riordan v. Holiday, 8 Ga. 79; Benton v. Patterson, 8 Ga. 146; Dunn v. Bryan, 38 Ga. 154; Hooper v. Howell, 50 Ga. 165, 52 Ga. 316; Parrott v. Edmondson, 64 Ga. 332; Olmstead v. Dunn, 72 Ga. 850. At common law an estate in joint tenancy, with the incident of sur

vivorship, was created in any case where lands or tenements were granted to two or more persons, to be held in fee simple, fee tail, for life, for years, or at will. The mere creation of the estate in two or more persons, without more, drew to it the incident of survivorship: See 2 Blackstone's Commentaries, 180. In Georgia the mere creation 677 of the estate in two or more persons never draws to it survivorship as an incident, and the presumption is in all cases that survivorship was not intended. But where, by express terms or necessary implication, a survivorship is provided for, the law of Georgia allows it to exist. This exact question has been passed upon in other states having statutes abolishing the doctrine of survivorship as applied to joint tenancies. In Arnold v. Jack, 24 Pa. St. 57, the supreme court of Pennsylvania held that, though survivorship as an incident to joint tenancies had been abolished in that state, it might be expressly provided for by will or deed, Knox, J., in the opinion saying: "But conceding that the right of survivorship, as an incident of a joint tenancy, no matter how created, is gone, it by no means follows that this right may not be expressly given, either by a devise in a will or by grant in a deed of conveyance. It may cease to exist as an incident, and yet be legally created as a principal": See, also, Jones v. Cable, 114 Pa. St. 586, 7 Atl. 791; Sturm v. Sawyer, 2 Pa. Sup. Ct. Rep. 254; Lentz v. Lentz, 2 Phila. 148. In the case of Taylor v. Smith, 116 N. C. 531, 21 S. E. 202, the supreme court of North Carolina held that the act abolishing survivorship in estates in joint tenancy did not prohibit contracts making the rights of the parties dependent on survivorship. In the opinion Avery, J., said: "The act of 1784 (Code, sec. 1326) abolishes survivorship where the joint tenancy would otherwise have been created by the law, but does not operate to prohibit persons from entering into written contracts as to land, or verbal agreements as to personalty, such as to make the future rights of the parties upon the fact of survivorship": See, also, 17 Am. & Eng. Ency. of Law, 2d ed., 650.

The remaining grounds of the application for a rehearing relate to matters which were fully discussed and carefully considered. Attention is called in the motion for a rehearing to the case of State v. Hawkins, 95 Md. 133, 93 Am. St. Rep. 328, 51 Atl. 850. Even if this case can be considered as antagonistic to the conclusion reached in the present case, we find nothing in the reasoning of the court which dissatisfies us with the conclusions we have reached. In addition to the cases cited in the original opinion on the question of what constitutes a lottery,

we take this occasion to call attention to the following: Hall v. Cox, 1 Q. B. 198; Regina v. Dodds, 4 Ont. 390; Regina v. Jamieson, Ont. 149; Stoddart v. Argus Printing Co., 2 K. B. 474; Dunham v. St. Croix Mfg. Co., 34 N. B. 243; United 678 States v. Rosenblum, 121 Fed. 180.

While the differences of opinion among the justices of this court, as indicated by the opinions filed still exist, so far as the merits of this controversy are concerned, we are all agreed that Do sufficient reason has been given why this case should be reargued.

Application denied.

In a Dissenting Opinion Justice Lamar, with whom concurred Chief Simmons, stated his view of the law in the following form and language: The company issued certificates (Class "A") by which it promised to pay the holder five hundred and five dollars and fifty-four cents on condition that he should pay one dollar and twenty-five cents monthly for one hundred and thirty months, he agreeing to surrender his certificate for redemption at a value fixed by a sliding scale, by which, if redeemed one month after date, fifteen dollars was to be received, if two months eighteen dollars, and so on, the value increasing three dollars with each installment paid. Certificates to be redeemed were not selected in numerical order, but according to a table using multiples of "three," under the operation of which younger certificates could be called in before those of older date. A cash payment of four dollars, besides twenty-five cents per month for one hundred and thirty months, was to be applied to expense account. Certificates not matured by the multiple table were, at the end of one hundred and thirty months, to receive five hundred and five dollars and fifty-four cents for one hundred and sixty-six dollars and fifty cents paid in. On failure to pay any monthly installment a fine of fifty cents was imposed, and if not paid by the succeeding month the certificate lapsed, and the holder forfeited all payments and fines. The United States postal authorities held this to be a lottery, and the mails were closed against the company. Retaining the scheme of lapses, and the device of a multiple table to determine what certificates should be redeemed, the company thereupon issued another form of certificate (Class "B") substantially like the foregoing, except that it promised to pay five hundred dollars instead of five hundred and four dollars; the number of installments was raised to one hundred and sixty-eight; certificates were to be redeemed out of the profits on payment to the holder of the total amount which he had paid in, with eight per cent interest thereon, together with his proportion of all fines and lapses. Holders of certificates not called in under the device of the multiple table during one hundred and sixty-eight months would pay in two hundred and fourteen dol