⚫person named Coulson, a farmer, was tried for unlawfully and maliciously killing a horse belonging to another farmer named Lamb. There was, it appeared, a bona fide dispute between the parties as to the right to reap a certain crop. One morning Lamb went to reap the crop, and the prisoner, after having deliberately warned him that if he persisted in driving through the gate he would shoot his horse, took aim and shot it. These facts were admitted for the defense, but it was urged that the killing of the horse was not "malicious, 99 inasmuch as it was done in order to protect what the prisoner honestly believed to be a right of property. The learned judge, however, held that this could afford no defense even if believed; that the prisoner killed and intended to kill another man's horse-an act which no grievance or supposed grievance as to the cop could justify, and on his being found guilty he was sentenced to six months imprisonment with hard labor, and to pay to Lamb £25, the value of the horse. Ignorance of the law," says Hale, will not excuse from the consequences of guilt any person who has capacity to understand the law of which all are presumed to have knowledge."

RECENT LEGAL LITERATURE.

THE AMERICAN REPORTS.

In the twenty-eighth volume of the American Reports are cases from two volumes of Alabama, Indiana, Wisconsin and Texas reports, and from one volume each of California, Illinois, Maine, Maryland, Massachusetts, Nevada, New York, North Carolina, South Carolina and Vermont reports. The present volume is unusually large, containing in all over 900 pages. The value of this series remains though its projector has passed away. It finds in Mr. Browne a fit successor and one fully competent to carry on the work which Mr. Thompson commenced. The cases are carefully selected, and the annotations thorough and instructive.

In the volume we notice among others the following decisions: A vendor of land is liable for misrepresentations in regard to the title as well as the quality. Atwood v. Chapman, 68 Me. 38. A person voluntarily assisting the servant of another in a particular emergency can not recover from the master for an injury occasioned by the negligence of the servant. Osborne v. Knox etc. R. Co. 68 Me. 49. The plaintiff carried on business under the name of "Wood Brothers," in violation of a statute which prohibited the use of fictitious names in firms. A carriage was purchased by him in the firm name and shipped to "Wood Brothers."' on defendant's railroad to be delivered to the party entitled to the same." injured in transit. Held, that the plaintiff could maintain an action for the injury. Wood v. Erre R. Co. 72 N. Y. 196. On the transfer of negotiable paper by delivery there is no implied warranty against usury. Littauer v. Goldman, 72 N. Y. 506. A purchaser and holder of counterfeit United States bonds, redeemed by the United States after his purchase, may recover the purchase money without returning the bonds and before paying the United States. Brewster v. Burnett, 125 Mass. 68. The plaintiff's intestate while at work on an insecure platform of the

It was

The American Reports containing all Decisions of General Interest decided in the court of last resort of the several States, with Notes and References by Irving Browne. Vol. 28. Albany: John D. Parsons, Jr. 1879.

defendant, fell twenty feet to the ground, became instantly unconscious and died in thirty six hours. Held, that damages could not be awarded for his mentel suffering during the fall. Kennedy v. Standard Sugar Refinery, 125 Mass. 90. Counsel in argument to the jury may not use language calculated to degrade the opposite party in the eyes of the jury and bystanders. A new trial in this case was therefore granted because of the following passage in the speech of the plaintiff's counsel. "No man who lived in defendant's neighborhood could have anything but a bad character; defendant polluted everything near him or that he touched, he was like the upas tree shedding pestilence and corruption all around him." Coble v Coble, 79 N. C. 589. An indictment for larceny which describes the property stolen as "one pound of meat," is fatally defective. State v. Patrick, 79 N. C. 655 A corn and flouring mill is not an nuisance per se in a city which will be enjoined. Green v. Lake, 54 Miss. 378. A verdict in a criminal case may be received in the absence of the prisoner's counsel, the prisoner himself being present. Beaumont v. State, 1 Tex. (App.) 424. A canvass tent may be a "disorderly house." Killman v. State, 2 Tex. (App.) 222. The sale of "prize candy'' in boxes, each box being represented to contain a prize of money or jewelry and the purchaser selecting his box in ignorance of its contents, held to be a lottery. Holoman v. State, 2 Tex. (App.) 610. A State statute required the inspection of tobacco and the storing of it in the State tobacco warehouse for that purpose. While so stored the plaintiff's tobacco was destroyed by fire. In an action brought by special leave of the legislature, held that the State was not liable as bailee, or on contract or in any other capacity. Moore v. State, 47 Md. 467. The civil damage" law of Vermont renders the seller of liquor to one who commits damage while intoxicated jointly liable with him. A, an innkeeper, sold H liquor by reason whereof he became intoxicated and assaulted A. Held, that A could not recover against H for the assault. Aldrich v. Harvey, 50 Vt. 165. Possession of a warehouse recept, regularly indorsed, is presumptive evidence of ownership of the goods described therein. Davis v. Russell, 52 Cal. 611. Confession without proof of the corpus delicti is not sufficient to support a conviction of felony. Matthews v State, 55 Ala. 187. A witness can not refuse on the ground of selfcrimination, to answer a question relating to an offense barred by the statute of limitations. Calhoun v. Thompson, 56 Ala. 166

The REVISED STATUTES OF ILLINOIS for 1880 have just been issued by the Chicago Legal News Company. They comprise the Revised Statutes of 1874 and all amendments thereto, together with the general acts of 1875, 1877 and 1879, being all the general statutes of the State in force on the first day of February, 1880. This edition has been under the supervision of Harvey B. Hurd, who was official editor of the revisions of 1874 and 1877. We have before adverted to the enterprise exhibited in this work. Here are all the laws of a great State presented in a large volume of over 1,200 pages, printed in clear type and on good paper, bound in excellent style and offered to the public and the profession at three dollars a copy. We may remark again that we consider the advent of such a book at such a price, an event in law book making.—The contents of the American Law Review for March are: Effect of Fraud on Subscriptions to Stock, by Seymour D. Thompson: Conflict between Federal and State Decisions, by William D. Hornblower: Forcible Detainer, by Marshall D. Ewell: Book Notices and Review of

the Month by the editor.-In the Criminal Law Magazine for March, seven leading cases in the law of crimes are reported in full. A digest of the recent criminal cases and a list of the articles of value on criminal law in the late periodicals are also given. The original matter, outside of the notes of cases and book notices, consists of a paper on the Removal of Criminal Causes from State to Federal courts, by E. W. M. Mackay. The article on Polling the Jury should have been credited to the CENTRAL LAW JOURNAL where it first appeared and not to the Southern Law Journal and Reporter, in whose pages it was subsequently printed.- -We have received from Messrs. Kay & Bro., Philadelphia, a pamphlet of 326 pages on the PHILOSOPHY OF CRIMINAL LAW, by Francis Wharton. It forms the first part of the eighth edition of Dr. Wharton's work on Criminal Law now in press. This being the Presidential year, Messrs. Robert Clarke & Co., of Cincinnati, very properly present a COMPILATION OF THE ELECTION AND NATURALIZATION LAWS OF THE UNITED STATES. It includes all constitutional provisions and laws of the United States relating to elections, elective franchise, to citizenship and to naturalization of aliens. It is annotated with the decisions construing the different sections of the different statutes. It contains 100 pages.

NOTES.

In the English courts the stenographer does not find a home. In the case of Kelly v. Byles decided by the Court of Appeal on the 10th. ult., the appeal having been dismissed with costs, the respondent's counsel asked that the costs of transcripts of a shorthand writer's notes of the evidence taken in the court below might be included. The court (James, Baggallay, and Cotton, L. JJ.) refused to allow these costs. James. L. J., said that the court would strongly discourage the taking of shorthand writer's notes of evidence As a general rule the judge's notes of the

evidence ought to be sufficient for the purposes of the appeal. After this it is not surprising that they are bound to stick to the "'red tape" at any cost. "The Master of the Rolls,"" the Solicitors Journal pathetically remarks, "moved with compassion at the spectacle of a slight injury sustained by an officer of his court while handling a document composed of several sheets fastened together with one of the brass fasteners now so much in use among solicitors, recently expressed his desire that in future these contrivances should be abandoned, and that the old practice of using silk or red tape to fasten together sheets should be reverted to in the case of all documents to be used at the Rolls.''

The

-In a case in Connecticut last month the judge ruled that certain evidence was inadmissible. attorney took strong exceptions to the ruling, and insisted that the offered evidence was admissible. I know, your honor," said he warmly, "that it is proper evidence. Here I have been practising at the bar for forty years, and now I want to know if I am a fool?'' "That," quietly replied the court, is a question of fact and not of law, and so I won't pass upon it, but will let the jury decide.". A late criminal trial in England turned upon the actual use of intoxicating beverages as poison. A man

living with a mistress, whose property he desired to acquire, and whom he desired to put out of the way but did not apparently dare to destroy in any ordinary manner, conceived the idea of making her drink herself to death; and this he actually accomplished after procuring her to make a will in his favor, and to transfer her property to him. He proceeded with boldness and openess to administer constantly brandy and other spirits, urging her and sometimes forcing it upon her, but accusing her all the time of an inordinate love of it. Between the lack of other food and the effect of alcoholism she died. He was found guilty of manslaughter and sentenced to penal servitude for life. Somebody writes to a New York paper concerning the profession in that city, and says: "The truth is, that only one-fifth of the 6,000 lawyers of this city earn a livelihood and do something better than exist. The rest are half the time doing nothing, dunned by their landlords, tailors, shoemakers and every class of tradesmen.'' The Albany Law Journal has noticed this letter and combats its statements with effect.

Judge Lowell of Massachusetts has drafted, at the request of the Boston Chamber of Commerce, a proposal for a new bankrupt law. The New York Daily Register speaking of the subject says: "The bankruptcy law is a subject never to be quieted when there is one in existence. The difficulties which are found to attend its administration keep up an incessant agitation, and when it is repealed the desire for a uniform system of insolvency renews a similar discussion in another form. Thus far the bankruptcy laws of this country have all been temporary sponges to wipe out the debts of a generation, and have been destroyed as soon as they have had time to do their work. This was the case with the act of 1800, which settled up much of the hopeless indebtedness incurred during the period of the revolution and the hard times which followed; with that of 1841, under which were wiped out of existence so many of the extravagant obligations incurred in the period centering in 1835, and the act of 1867, which followed so soon after the war, had a little longer existence, but equally failed to hold a permanent place upon the statute book, or to encourage us to expect that a uniform system of bankruptcy would soon be a permanent part of the national legislation. Probably no other subject has shown so many and so striking fluctuations in legislation, and these are not to be explained by the circumstances which affect the State insolvent laws. The State insolvent laws have been the subject of frequent amendment and revision, but have shown a growth and a process of improvement tolerably steady and satisfactory. Nowhere, so far as we know, have such mushrooms as the United States Bankrupt acts ever sprung up in State legislation on these subjects. The objection to the bankrupt act made by some-that it diminished the general business of the profession at large, superseding a considerable line of service by throwing the estates of bankrupts under the professional conduct of those who practise almost exclusively in bankrupt courts-is not one which would prevail against the system if the system itself were made a desirable one, and administered for the advantage of the commercial classes. But thus far our bankrupt laws have, for the most part, been a weapon against credit, sometimes in the hands of the creditor class and used against debtors, but more commonly in the hands of the debtor class and used against their creditors, and the indirect use of it seems to have been a serious counterpoise to the direct and legitimate advantages which it afforded."

241

ST. LOUIS, MARCH 26, 1880.

OPTION SALES.-II.

Among the unsatisfactory cases may be noted Bigelow v. Benedict. Notwithstanding the seller had by the contract the entire option of delivering or not delivering the goods sold, and paid $250 for that option, still, in view of the fact that the purchaser was required to receive the goods at any time within six months, the court construed the transaction as a real one and not a wager, following Lord Coke's rule that "wheresoever the words of a deed or of the parties without deed may have a double intendment, and the one standeth with law and right, and the other is wrongful and against law, the intendment that standeth with the law shall be taken." "That there is an element of hazard in the contract is plain," said the court; but it failed to see upon the face of the contract that the parties intended a wager, and because the purchaser did not prove such an intention, the transaction was held valid. Kingsbury v. Kirwan2 was a case in which, according to the report, plaintiffs sold for future delivery by the defendant, 1000 bales of cotton, the defendant to "keep his margins good," and the plaintiffs to "carry the contracts they should make for him only so long as he did so;" and because the defendant did not prove an intention not to deliver or to accept the cotton, the court, as in Bigelow v. Benedict, ruled in favor of the validity of the transaction. In Wolcott v. Heath,3 Logan v. Musick, and Corbett v. Underwood,5 where the "commission merchant" recovered from his principal the amount of losses incurred in settling differences, the transaction was sustained because, as stated by the court in the last named case: "We perceive nothing to justify the inference that the corn would not have been delivered at the time required by the contracts;" yet no inquiry seems to have been made on the

4

170 N. Y. 202, 6 Cent. L. J. 324.

6 Cent. L. J. 228.

3 78 III. 433.

481 Id. 415.

583 Id. 324.

Vol. 10-No. 13.

the

was possessed of the necessary means to make the purchases he professed to make; and these cases are determined in view of the possible intention of the unknown third party to exact a compliance with the terms of the contract, though the case arose between the purchaser and the commission merchant only, and all that appeared in the way of cash advanced to make purchases were the sums deposited as "margins." In some jurisdictions, the agent so suing would have been required to lift his case above suspicion by showing that the other party principal was contracting for merchandise and not for margins. Rumsey v. Berry involved a transaction similar to one in Kingsbury v. Kirwan. The commission merchants in Chicago sold for Berry, a resident of Bangor, Maine, 10,000 bushels wheat for future delivery, contracting in their own name to deliver the same, but agreeing with Berry for "margins" only; and because he did not furnish sufficient "margins," the agents "cancelled the contract" with the ostensible purchasers, at a loss, to recover which loss the action was brought. This transaction, so much like carrying coals to Newcastle, was sustained. To the majority of the court it did "indeed appear a little singular and even suspicious that a man residing in Bangor, having no wheat of his own, should undertake to sell and deliver wheat in Chicago;" still, the majority could not "assume that any one has violated the law and been guilty of immoral and corrupting practices in his business transactions, without proof;" and they "utterly fail to discover any wrong on the part of the plaintiffs," because "their business was a legitimate one, and so far as appears, their connection with this transaction honest; their profits were not to be affected by the result, their commissions were not to be increased or diminished by any contingency." Though it was said to be "true they were aware that the defendant at the time had no wheat," yet, "the fact itself being immaterial, their knowledge of it is equally so." And so, by a majority of four judges against three, the lower court was sustained in its refusal to leave to a jury the question whether this was a wagering contract. This case goes farther than any others of those cited in illustrating the

6 65.Me. 570.

proverb, "None so blind as those who will not see." Would not the same reasoning justify a court in allowing the keeper of a gaming house to recover from his patron a commission on the winnings at the game, if he had contracted in advance for the payment of such a commission as compensation for the use of the house and tables? Clearly in such a case the proprietors profits "were not to be affected by the result; their commissions were not to be increased or diminished by any contingency." So seemed to think two of the Maine judges, who demurred to the conclusions of the majority as "futile and evasive," and suggested that if any such contract were designed and understood to be a mere gambling transaction, the parties would be quite likely to have its terms simulate those of a real and honest bargain; and they declined to close their eyes to the real character of the transaction under examination. A third judge, less decided in his views, was "inclined to concur in this."

7

Conspicuously different from these are the views taken of such cases by other courts, which have not allowed the outward form of the transaction to disguise its real intention. In re Green, was a case where the brokers sought to recover their losses by reason of insufficient margins, and the otherwise doubtful transaction was made exceedingly plain to Hopkins, J., by considering the circumstance that the bankrupt "was a country merchant of little or no means and with no money to invest in wheat, that is to pay for wheat," which the brokers well knew. "The idea that they bought for him several thousand bushels of wheat with the expectation that he was to pay for it is preposterous," said the court. No suggestion that the brokers were innocent parties was for a moment entertained. "If the bankrupt had requested a party to pay the difference for him after the loss and such party had not been an actor, nor aided or assisted in the unlawful dealing out of which the loss grew, there would be some reason in allowing him to recover." Not so, however, when the party suing to recover his money had himself urged and induced, or participated in a plain wagering transaction.

To similar effect is the case of Marshall v.

7 15 N. B. R. 198.

Thruston, decided by the Supreme Court of Tennessee while this article has been in preparation. To a suit by a bank upon notes given for money advanced by it, the defense was interposed that the defendant having been engaged in speculating in the future prices of Tennessee State bonds, the notes in suit were given for the differences due on settlement; and the question arose whether the bank's furnishing of the money to the defendant had any necessary connection with the speculative transactions in bonds. The court at the trial had instructed the jury that if defendant in his gaming transactions had sustained losses, "and the bank at his request paid the amount of such losses, or if the bank paid such losses without being requested, and defendant afterwards ratified its action, and gave his notes for the amount so paid, such amount can be recovered of him in this action;" but "if the bank furnished defendant with money for the purpose of enabling him to engage in an unlawful undertaking, it could not recover of him the amount so furnished." Both these instructions were sustained as unexceptionable by the appellate court. In response to the suggestion that mere knowledge on the part of the bank of the intended use of the money by defendant would make it an aider and abettor in the gambling, Cooper, J., explained that the test in such cases is whether the plaintiff requires any aid from the illegal transaction in order to establish his claim, or whether he was in fact a participant in the illegal transaction. And a recovery by the bank was allowed in that case, because no such participation appeared.

In Lyon v.Culbertsons the court looked to the fact that no wheat was offered or demanded, as showing that neither party expected the delivery of any wheat, and that both expected to settle on the basis of differences; and in Pickering v. Cease, the fact that the grain "bought" was immediately "sold back" to the same party without being paid for, was conclusive on the question that it was a mere speculation in differences. In Brua's10 Appeal, it was said: "That the transaction in this case assumed the form of a contract about a matter lawful in itself, was not conclusive as to

8 83 Ill. 33.

9 79 Id. 328.

10 55 Pa. St. 294.

its real motive, as the finding shows. That was the form which the South Sea Bubble took in England, the tulip speculation in Holland and the morus multicaulis in this country; and the form served only as a thin covering of one of the most frightful systems of gambling ever known." In Clark v. Foss,11 Bunn, J., said: "The contracts sought to be set aside are written contracts, and the mortgage is under seal. Nevertheless the weight of authority, and I think of doctrine, is that you shall go behind the writing and show what the real intent and meaning of the parties were; and if it appears that the writing does not express the real intent of the parties, but is merely colorable, and used as a cloak to cover a gambling transaction, the court will not lend its aid to enforce the contract, however fair on its face." In ex parte Young, 12 Blodgett, J., deduced from all the sounder authorities this as the proper test: "Did the parties intend to sell on one side and buy on the other the stocks which purported to be the subject matter of the transaction, or did they only intend to adjust the differences?"-adding that whenever "it was found that they meant only differences when they said shares, the contracts were held to be essentially gambling contracts, and therefore void."

These cases, with the accordant ones before cited, show the weight of authority to be in favor of the utmost astuteness on the part of the courts in investigating the real nature of all dealings in stocks or merchandise for future delivery. Names should be disregarded; masks should be fearlessly stripped off that the actual features of the transaction may be revealed. The courts that have failed to resort to this heroic treatment have not intended to sanction gambling transactions; they have on the contrary, as a rule, denounced them. But it seems, from the frequency with which gambling masquerades in the disguise of legitimate trade, that courts are in danger of being imposed upon; and when this is the case it is proper to require, not that the defendant assume the difficult task of proving an intent to gamble, but that the plaintiff carry the comparatively slight burden of showing that the transaction which may seem

11 10 C. L. N. 211..

12 6 Biss. 53.

so nearly akin to a gaming device was in reality a genuine sale. Not only are the rules of law suspended when the reasons for such rules have ceased, but the courts are often required to establish rules, when adequate reasons therefor spring into being. It is necessary in these modern times that courts shall consider the forms which speculation assumes, and the disguises she puts on in imitation of legitimate trade, if they would avoid imposition and would see things as they are. It was said, on this point, in Clark v. Foss: 13 "The law does not undertake to prevent speculation. It does not undertake the Quixotic task of nicely governing men in all the relations of life, and compelling them to do, under all circumstances, what is prudent and reasonable. The truth is, men are speculating creatures as certainly as they are eating and sleeping ones. And although it is undoubtedly true that much harm comes to the community from over-speculation, it is more than donbtful if the world would be better off without speculators; or if it would be, that the law can do much in the way of abol

ishing them." But a plain distinction as to the view to be taken by the courts of this subject was recognized in Kirkpatrick v. Bonsall,14 where it was said: "Merchants speculate upon the future prices of that in which they deal, and buy and sell accordingly. In other words, they think of and weigh, that is, speculate upon the probabilities of the coming market, and act upon this lookout into the future in their business transactions. Their speculations display talent and forecast, but they act upon their conclusions and buy or sell, in a bona fide way. Such speculation can not be denounced. But when ventures are made upon the turn of prices alone, with no bona fide intent to deal in the article, but merely to risk the difference between the rise and fall of the price at a given time, the case is changed. No money or capital is invested in the purchase, but so much only is required as will cover the difference; a margin as it is figuratively termed. Then the bargain represents not a transfer of property, but a mere stake or wager upon its future price. The difference requires the ownership of only a few hundreds or thousands of dollars, while

figuratively termed.

13 10 C. L. N. 211. 14 72 Pa. St. 155.