prices of commodities dealt in on said Board of Trade, nor will they knowingly continue to furnish said continuous quotations to any person, firm, or corporation who shall retransmit or furnish the same to any person, firm, or corporation conducting such bucket shop or other place; provided, however, that nothing in this contract shall be construed as imposing upon the said parties of the second and third parts the duty to investigate and determine the character of business conducted by any person, firm, or corporation applying for or receiving such continuous quotations, but the procedure to be adopted for the purpose of determining whether any applicant for such continuous quotations, or any person, firm, or corporation receiving such quotations, contemplates using them for any of the prohibited purposes aforesaid, shall be as follows:

"(1) Every applicant for such continuous quotations shall sign in duplicate an application in writing as follows: "To the Telegraph Company: We hereby apply to you for the continuous market quotations of the Chicago Board of Trade of the city of Chicago, and we represent and agree with you, and with the Board of Trade of the city of Chicago, from which you, under contract, have acquired the right to distributé said quotations.'

"I. That our business is and shall be the business of, and that we are not keeping or causing to be kept, and will not keep or cause to be kept, any bucket shop, or any office, store, or other place wherein is conducted or permitted the business of making or offering to make contracts, agreements, trades, or transactions respecting the purchase or sale or purchase and sale of any grain, provisions, or other commodity or property, wherein both parties thereto, or the undersigned, contemplate or intend that such contracts, agreements, trades, or transactions shall be, or may be, closed, adjusted, or settled according or with reference to the public market quotations of prices made by any board of trade or exchange upon which the commodities or securities referred to in said contracts, agreements, trades, or transactions are dealt in, and without a bona fide transaction on such board of trade or exchange, or wherein both parties or the undersigned shall contemplate or intend that such contracts, agreements, trades or transactions shall be, or may be, deemed closed or terminated when the public market quotations of prices made on such board of trade or exchange for the articles or securities named in said contracts, agreements, trades, or transactions shall reach a certain figure; and we agree that we will not use, or allow any one else to use, such quotations, or any of them, for any such purpose or in such bucket shop.

"II. That said quotations are to be received by the applicant only for his private and individual use, and only in his business.

"III. That a strict compliance with the above provisions shall be a condition precedent to the right to a continuance of said quotations. When such application is signed, the same is to be transmitted to the Board of Trade of Chicago, and it shall determine whether such applicant desires said quotations for said prohibited purposes."

The expression "continuous quotations" was defined as meaning every service of quotations wherein the price of any commodity shall be quoted oftener than at intervals of 10 minutes. It was further stated that the intent and purpose of the agreement was to prevent the misuse of said quotations for said unlawful purposes or in said unlawful business, and not to discriminate between persons desiring them for other than said prohibited purposes. The agreement was to remain in force for one year and thereafter until terminated by notice, and provided for the payment of a consideration of $2,500 per month by each of said telegraph companies. This paragraph of answer must be held insufficient. The body of the pleading does not set out the tenor of the contract exhibited, nor declare its effect upon the performance of the service required of appellant by the alternative writ of mandate. Proper practice requires the pleader to state the facts growing out of the writing exhibited upon which he relies as constituting a cause of action or defense. Deane v. Indiana Macadam Co., 161 Ind. 371, 68 N. E. 686; Cole, Adm'r, v. State ex rel., 131 Ind. 591, 31 N. E. 458. No legal or sufficient defense to the allegations of the writ is made to appear by this paragraph of answer, and appellees' demurrer to the same for want of facts was rightly sustained.

The third paragraph of answer avers that the Chicago Board of Trade is a private corporation organized under a special charter granted by the state of Illinois, and that its objects are "to maintain a commercial exchange, to promote uniformity in the customs and usages of merchants, to inculcate principles of justice and equity in trade, to facilitate the speedy adjustment of the business disputes, to acquire and disseminate valuable commercial and economic information, and, generally, to secure to its members the benefits of co-operation in the furtherance of their legitimate pursuit." That it is given charter power to hold property of all kinds, and dispose of the same by sale and otherwise, and generally to do and carry on any business that is usually conducted by boards of trade or chambers of commerce; but that said charter does not impose on said board the duty of furnishing to the public, or any person whatsoever, the knowledge of quotations of prices made in transactions between its members in its exchange hall. That it has 1,800 members, and that the cost of maintaining itself is $240,000 a year, and that it has for many years provided in Chicago an exchange building, and therein an exchange hall, where its members meet every business

day to buy and sell for themselves, or as brokers for their customers, for present and future delivery, all kinds of grain and hog products; that such transactions are by open viva voce bidding, and the knowledge of prices there made is a species of property of large value to the Board of Trade. That the quotations are collected in said exchange hall by employés of the Board of Trade, and are by them transmitted to respondent, and are by it transmitted automatically to its customers throughout the United States. That prior to June 1, 1900, the Board of Trade permitted respondent to collect such quotations and to transmit the same to others without restrictions, at which time said board claimed that the indiscriminate distribution of the quotations had resulted in their use by bucket shops, to the discredit, prejudice, and financial injury of the board and its members, and terminated the license of appellant to collect said quotations, and required it to enter into the agreement in writing above mentioned, which was executed about April 15, 1901, and which is set out in full in this paragraph. That since said date respondent has been receiving said quotations under said contract, and distributing the same as therein specified, and that, if this respondent were to furnish said quotations otherwise, or to any person not signing an application therefor, as provided in said contract, such action would constitute a breach by respondent of said contract; and that by reason thereof the Board of Trade could, and, as respondent verily believes, would, terminate said contract, and thereby deprive respondent and its customers through the country of said quotations. That the Hammond Company has never tendered to respondent or the Board of Trade any application signed by it in the form set out in said contract, but insists that, without its signing such an application, it is entitled to receive, and respondent is required to furnish to it, such quotations. The fourth paragraph of answer contains the same averments as to the incorporation, powers, exchange hall, members, collection, and distribution of the quotations of the Chicago Board of Trade, the loss of said quotations by the respondent on August 1, 1900, and the execution finally of the contract of April 15, 1901, as are contained in the third paragraph above. This contract of April 15, 1901, is also set out in extenso in this paragraph. It then alleges: That since said last-mentioned date respondent has been receiving the quotations and distributing the same as provided in the contract, but not to any person not signing an application as therein provided, and that the compelling of respondent to furnish the quotations to petitioner, or any other person not signing an application therefor, would constitute a breach of said contract of April 15, 1901, and would result in respondent and its many customers being deprived of the quotations. That respondent transmits the quotations over wires running from Chicago

across Indiana, and that it is not, and has not since April 15, 1901, transmitted said quotations to any person in Indiana. That said Hammond Company is engaged at Hammond, Ind., in conducting a bucket shop, and desires the quotations sought under this writ for the purpose of conducting a bucket shop and using said quotations therein. That said Hammond Company was, at the institution of this suit, and for some time prior thereto had been, engaged in purloining said quotations, or receiving them from others known by said Hammond Company to be purloining them, and that said company has been, during said time, using said quotations in conducting a bucket shop. The fifth paragraph of answer avers that the Hammond Company, at the time it demanded said quotations and filed its petition herein, was engaged at Hammond in making bets on the fluctuations of the prices and conducting a bucket shop, and desires the quotations sought in this proceeding for the purpose of conducting a bucket shop and gambling therein, in violation of the laws of Indiana, and for no other purpose, and that the Hammond Company was, at the institution of this suit, and for some time prior thereto had been, engaged in purloining said continuous quotations, or receiving them from others known by said Hammond Company to be purloining the same, and during said time had been using the said purloined quotations in conducting a bucket shop as aforesaid. The sixth paragraph of answer avers many of the facts contained in the other paragraphs, and concludes with the allegation that the Board of Trade is a necessary party defendant to the petition, and that, without its being so, the full determination of the question involved cannot be made, and the writ would be unavailing.

Appellant's counsel contend that the last paragraph states a cause of defense in bar of the writ, because of a defect of parties. This position is untenable, and upon that theory there was no error in sustaining ap pellees' demurrer to this paragraph of return. A defect of parties not apparent on the face of the complaint must be set up by a verified plea in abatement, filed and tried before answers in bar are pleaded. Burns' Ann. St. 1901, § 368; Carmien et al. v. Cornell et al., 148 Ind. 83, 47 N. E. 216; Moore v. Harmon, 142 Ind. 555, 41 N. E. 599; Watts, Trustee, v. Sweeney, 127 Ind. 116, 26 N. E. 680, 22 Am. St. Rep. 615; Sheridan, etc., Co. v. Pearson, 19 Ind. App. 253, 49 N. E. 357, 65 Am. St. Rep. 402. While the third, fourth, and fifth paragraphs of answer are not identical, yet they are all addressed to the same general subject, the right of the Board of Trade to require an applicant to sign a statement binding himself not to use such quotations in conducting a bucket shop, and to refuse to supply them to one engaged in a bucket shop business. Appellees' counsel vigorously as

sail these paragraphs of answer, but many of their objections have been answered by the Supreme Court of the United States in the case hereinafter cited. It is insisted that the allegations with regard to option gambling consist of inferences, conclusions, and epithets, and as such are not sufficient. In addition to the allegation of facts, with more or less particularity, it is charged that appellee is engaged in conducting a bucket shop. This contract, upon which these paragraphs of answer are founded, prohibits appellant from supplying market quotations to "bucket shops" by that name, and this term has a well-known meaning, and is defined by the Standard Dictionary as "an office where people may gamble in fractional lots of stock, grain, or other things which are bought and sold on the exchanges. The bucket shop uses the terms and outward forms of the exchanges, but differs from exchanges in that there is no delivery, and no expectation or intention to deliver or receive securities or commodities said to be sold or purchased." The definition given in the Century Dictionary is as follows: A bucket shop is "an establishment conducted nominally for the transaction of a stock exchange business, or a business of similar character, but really for the registration of bets or wagers, usually for small amounts, on the rise or fall of the prices of stocks, grain, oil, etc.; there being no transfer or delivery of the stocks or commodities nominally dealt in." We have no statute denouncing option gambling as a crime, but contracts for the purchase and sale of commodities, not to be delivered, but only to be performed by advancing and paying differences, are void at common law, in the absence of statute. Irwin v. Williar, 110 U. S. 499, 4 Sup. Ct. 160, 28 L. Ed. 225; Rumsey v. Berry, 65 Me. 575; Gregory v. Wendell, 39 Mich. 337, 33 Am. Rep. 390; Mohr v. Miesen, 47 Minn. 228, 49 N. W. 862; Cunningham v. Bank, 71 Ga. 400, 51 Am. Rep. 266; Cothran v. Ellis, 125 Ill. 496, 16 N. E. 646. This court has denounced such practices in the strongest terms. "The business or operations of the 'bucket shop' have been the source of much evil. Embezzlements and other crimes on the part of public officers and bank officials having the custody of money belonging to others have been in the past some of the evil fruits directly traceable to dealing in futures in these institutions; and the question of prohibiting such transactions or business, as it is generally conducted, merits the consideration of the Legislature." Pearce et al. v. Dill, 149 Ind. 144, 48 N. E. 788; Plank v. Jackson, 128 Ind. 424, 26 N. E. 568, 27 N. E. 1117; Davis v. Davis, 119 Ind. 511, 21 N. E. 1112; Sondheim v. Gilbert, 117 Ind. 71, 18 N. E. 687, 5 L. R. A. 432, 10 Am. St. Rep. 23; Whitesides v. Hunt, 97 Ind. 191, 49 Am. Rep.

441.

The requirement of the Board of Trade that every applicant for its continuous quotations shall, as a condition precedent to receiving them, obligate himself not to use the same for such illegal purposes, is not an unlawful discrimination meriting the condemnation of the court, but, on the contrary, is a proper and reasonable regulation, to which this court unhesitatingly gives its approval. Board of Trade v. Christie Grain & Stock Co., 198 U. S. 236, 253, 25 Sup. Ct. 637, 49 L. Ed. 1031; Central Stock & Grain Exchange v. Board of Trade, 196 Ill. 396, 63 N. E. 740; Sullivan v. Postal Tel. Cable Co. et al., 123 Fed. 411, 61 C. C. A. 1. In the last case cited the court, speaking to this point, said: "The bill shows that the board and telegraph companies had established, as a regulation for the conduct of the business of supplying quotations, a rule that all applicants should sign an agreement, in which they covenanted, among other things, not to engage in bucket shopping. The appellant has failed to comply or offer to comply with that regulation, and challenges the right of the appellees and the Board of Trade to require compliance with such a rule. Without deciding, but merely assuming arguendo, as was done in Illinois v. Cleveland Telegraph Company, 119 Fed. 301, 56 C. C. A. 205, that the property right of the Board of Trade is impressed with a public use, and that the board and the appellees, as agencies through which the quotations are distributed, must serve without discrimination all who apply, there yet remains the right of the board and the appellees to establish reasonable regulations for the conduct of the business. And so the only question is whether or not it is a reasonable regulation to require the appellants to sign the contract referred to. In the Illinois Commission Company Case we held that this was a reasonable requirement."

The writ of mandamus is an extraordinary writ, and, while not discretionary, it will only be issued by a court in the exercise of a sound legal discretion. "It is a remedial process, and may be issued to remedy a wrong, not to promote one, to compel the discharge of a duty which ought to be performed, but not to compel the performance of an act which will work a public mischief, or to compel a compliance with the strict letter of the law in disregard of its spirit or in aid of a public fraud. The relator must come into court with clean hands." People ex rel. v. Assessors, etc., 137 N. Y. 201, 204, 33 N. E. 145, 146. The mischief and evil consequences resulting to the state from the operations of the bucket shop are almost beyond computation. It assumes an air of legality and respectability, and insidiously ensnares many innocent victims before the public learn of their danger. Its nefarious practices are directly responsible for innumerable bankruptcies, defalcations, em

bezzlements, larcenies, forgeries, and suicides. It ought to be outlawed by statute, as its existence is a menace to society, and its operations immoral, contrary to public policy, and illegal. In the case of Bryant et al. v. Western Union Tel. Co. (C. C.) 17 Fed. 825, the court very pertinently said: "If bucket shop means a place where wagers are made upon the fluctuations of the market prices of grain and other commodities, then I think the evidence shows the complainants keep such a shop, and are of the class to which defendants are prohibited from furnishing the market quotations of the Chicago Board of Trade. This is gambling, and a very pernicious and demoralizing species of gambling, which a court of equity should not protect, even if the Board of Trade had not taken the action it has." Christie Street Commission Co. v. Board of Trade, 94 Ill. App. 229; See, also, Smith v. Western Union Tel. Co., 84 Ky. 664, 2 S. W. 483. We are unwilling that the Board of Trade of Chicago should be a more considerate guardian of the morals of this state than its own courts, and, assuming the facts pleaded to be true, unhesitatingly declare that no court, under the guise of re quiring the performance of a duty by a public service corporation, should, either in violation of the contract pleaded or in its absence, compel the performance of acts vitally necessary to the continued operations of a bucket shop. The third, fourth, and fifth paragraphs of answer were sufficient, and the court erred in overruling appellees' demurrers to the same.

The judgment is reversed, with directions to overrule the demurrers to the third, fourth, and fifth paragraphs of answer or return to the amended complaint, and for further proceedings in harmony with this opinion.

GILLETT, J., did not participate in this decision.

(165 Ind. 513)

BAUM v. PALMER. (No. 20,523.) (Supreme Court of Indiana. Nov. 2, 1905.) 1. APPEAL-HARMLESS ERROR-RULINGS ON

PLEADINGS.

Where defendant is awarded no relief on his cross-complaint, rulings as to that pleading cannot be complained of on plaintiff's appeal. 2. TRIAL-INSTRUCTIONS-SUFFICIENCY.

Where, in an action on a note, the court instructed fully as to the issue of estoppel raised by the reply, plaintiff could not complain because that issue was not referred to in all the other instructions.

3. APPEAL-HARMLESS ERROR-INSTRUCTIONS. Where the jury by answer to special interrogatories found against plaintiff on her reply of estoppel, failure to refer to that issue in certain instructions was harmless.

4. TRIAL-Order of Proof-GENUINENESS OF WRITTEN INSTRUMENT.

Where plaintiff denies under oath the execution of a written instrument pleaded by defendant, the latter must in the first instance introduce all his proof of the genuineness of the instrument, and cannot make out a prima

facie case to allow the admission of the instrument in evidence, and after plaintiff's attack on the instrument give further evidence of its genuineness.

5. BILLS AND NOTES - CONSIDERATION - ADVANCEMENTS.

Where a mother gave money to her son as an advancement, a note afterwards given to evidence the advancement was without consideration.

6. DESCENT AND DISTRIBUTION - ADVANCEMENTS SUBSEQUENT EXECUTION OF NOTE.

Where a mother advanced money to her son, the fact that he afterwards gave a note to evidence the advancement, and agreed to and did pay interest on the note, did not create the relation of debtor and creditor.

[Ed. Note.-For cases in point, see vol. 16, Cent. Dig. Descent and Distribution, §§ 4104112.]

7. SAME-CHANGING LOAN TO ADVANCEMENT. Where a son gave a note for money given him by his mother, the subsequent execution of a written agreement to regard the transaction as an advancement, and to hold the note only as evidence thereof, changed the loan into an advancement.

[Ed. Note.-For cases in point, see vol. 16, Cent. Dig. Descent and Distribution, § 410.]

Appeal from Circuit Court, Cass County; John S. Lairy, Judge.

Action by Louisa Baum against George W. Palmer. From a judgment for defendant, | plaintiff appeals to the Appellate Court, from whence the cause was transferred to this court under Burns' Ann. St. 1901, § 1337u. Affirmed.

McConnell & Fickle, for appellant. McConnell, Jenkines, Jenkines & Stuart, for appellee.

JORDAN, J. Appellant sued appellee on a promissory note whereby, as alleged in the complaint, he on February 1, 1892, promised to pay, one year after date, to Fenetta Palmer, of Logansport, Ind., at the State National Bank of said city, $1,000 with interest at 7 per cent. per annum, and attorney's fees. The complaint further avers that after the execution of the note in suit Fenetta Palmer died testate at Cass county, Ind., and that plaintiff, appellant herein, and Rose J. Barnett are sole legatees and devisees under the will of the said Fenetta. It is further alleged that plaintiff was administrator of the estate of the said deceased, and that the same has been fully settled, and that in the settlement thereof the note in suit was for value received transferred and assigned by the administrator to the plaintiff and Rose J. Barnett. Subsequently the latter, in a settlement between herself and the plaintiff of the respective interests in the property which came to them from their mother, said Fenetta Palmer, the interest of the said Rose in the note in suit was assigned and transferred to the plaintiff, and she thereby became the sole owner and holder of the said note, which is past due and wholly unpaid. Wherefore, judgment is demanded for principal, interest, and attorney's fees, to the amount of $2,200. A copy of the note and copies of the assignments mentioned in the complaint

are filed with and made a part of that pleading.

The defendant, appellee herein, filed an answer to the complaint in four paragraphs: First. General denial. Second. A payment. Third. No consideration. The fourth paragraph of the answer avers substantially the following facts: That defendant is the son of Fenetta Palmer, the payee of the note in suit, the execution of which he admits, but alleges that it was executed under the following facts: Some time in the year 1890, said Fenetta had money on hand for which she had no present use. She gave $1,000 thereof to defendant to be used by him, with the understanding at the time between them that said money should not be returned to her, but should be retained and accepted by the defendant from her as an advancement to him out of her estate. The defendant, by the understanding and agreement between them, was to pay his mother, Fenetta, interest on the $1,000 so long as she should desire that he pay her interest thereon. It is further alleged that defendant held the money, without giving any written evidence thereof, until February 1, 1892, on which date he executed to his said mother the promissory note set out in the complaint, and paid interest on the said note at 7 per cent. until July 31, 1895, on which day it was mutually agreed in writing between him and his said mother, payee of the note, that interest thereon should cease from that date, and that the note itself should be held by her as evidence only of the fact that she had advanced to the defendant the sum of $1,000 out of her estate.

The written agreement is incorporated in the fourth paragraph of the complaint and made a part thereof and is as follows: "July 31, 1895. Received of George W. Palmer the full amount of interest on the one thousand dollar note which I hold against him, dated February 1, 1892, up to August 1, 1895, and I hereby agree that the interest on said note shall cease from this date and that the note itself is to be held by me as an evidence only of an advancement to my son George of one thousand dollars. [Signed] Fenetta Palmer." It is alleged that defendant then and there agreed to and accepted the said writing and the said one thousand dollars as an advancement and thereafter retained and held the same as an irrevocable advancement to him from the estate of his mother. Therefore, he demands judgment for costs.

Appellant unsuccessfully demurred to the second, third, and fourth paragraphs of the answer. Appellee also filed a cross-complaint, setting up the same facts alleged in the fourth paragraph of answer, and thereunder he demanded that the note in the suit be canceled. Appellant replied to the answer in three paragraphs: First. General denial. Second. Denying under oath the execution by Fenetta Palmer of the instrument in writing set out in the fourth paragraph of the answer. Third.

Facts showing that appellee was estopped from interposing any defense to the note as against appellant. Appellant filed an answer to the cross-complaint. The cause being at issue was tried by a jury, which returned a general verdict for appellee, and along with the latter verdict, the jurors returned answers to a number of interrogatories. Appellant's motion for new trial was denied, and thereupon judgment was rendered that the plaintiff take nothing in the action, and that defendant recover costs. No judgment was rendered awarding appellee any affirmative relief on his cross-complaint, therefore, under the circumstances, that pleading and the rulings thereon by the court afford appellant no grounds for complaint.

Under the assignment of errors, appellant in the main urges for reversal the overruling of the demurrer to the fourth paragraph of answer and the giving of certain instructions relative to the character and effect of the written instrument set up in the fourth paragraph of answer. In fact, appellant's counsel assert that the main point in this appeal is the insufficiency of the written instrument in question. Counsel also criticised instructions Nos. 7 and 9, on the ground that they are faulty, because each of them ignores appellant's plea of estoppel. In regard to this insistence, however, it may be said that the trial court by its instructions fully advised the jury in respect to this plea, hence, under the circumstances, it was not essential that the court should refer to the issue of estoppel in each and all of its other charges to the jury. Atkinson v. Dailey, 107 Ind. 117, 118, 7 N. E. 902. Again, upon another view, the jury upon evidence amply sufficient expressly found in their answers to interrogatories against appellant on her plea of estoppel. Consequently under the circumstances she cannot be said to have been harmed because the instructions in question ignored said issue. Putt v. Putt, 149 Ind. 30, 48 N. E. 356, 51 N. E. 337, and cases there cited.

It is also claimed that instruction No. 12, given by the court at the request of appellee, is erroneous, for the reason that it charged that the effect of plaintiff's plea of non est factum was to require the defendant to make a prima facie case of the execution of the written instrument set up in the fourth paragraph of the answer before it was entitled to be introduced in evidence; that after the making of such prima facie case it was then the right of the plaintiff to introduce evidence to show that the instrument in controversy had not been executed by Fenetta Palmer, after which defendant had the right to introduce evidence in rebuttal of the plaintiff's evidence given in respect to the execution of the instrument, and also to introduce further evidence in support of said execution. While the statement of the court in the instruction