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 CONTEACTUAL LIMITATIONS, 
 
 INCLUDING _ "TTi^ 
 
 TRADE STRIKES AND CONSPIRACIES 
 
 AND 
 
 CORPORATE TRUSTS AND COMBINATIONS. 
 
 BY 
 
 OHAELES A. RAY, LL.D., 
 
 of the new york bar, 
 Ex-Chief Justice of the Scpreme Court of Ijtdiana. 
 
 THE LAWYERS' CO-OPERATIYE PUBLISHING CO. 
 
 ROCHESTER, N. Y.' 
 1892. 
 
 gL4'52.0/9
 
 r 
 
 Entered according to Act of Congress, in the year eighteen hundred and ninety-two, by 
 
 THE LAWYERS' CO-OPERATIVE PUBLISHING CO., 
 
 In the Office of the Librarian of Congress, at Washington, D. C. 
 
 E. R. ANDREWS, PRINTER, ROCHESTER, N. Y.
 
 DEDICATION". 
 
 Individuality irresistibly exerts itself, during the process of crys- 
 tallization of the widely gathered human elements into an organ- 
 ized community. The simmering, seething mixture is precipitated 
 into solidity and forms about the fixed metal of individual character. 
 The moral, religious and mental tone of a community is attuned in 
 harmonious accord with the perfected rhythm of individual devel- 
 opment. 
 
 It was most fortunate as contributing to its present proud position, 
 that in«the formation of the State, now enclosing within its bounds, 
 and near its Capitol City, the central point of population of our 
 Union, such men there lived as Dr. Isaac Coe, James M. Ray, Eben- 
 ezer Sharpe, James Blake, Nicholas McCarty, Calvin Fletcher, 
 Morris Morris, Eev. William A. Holliday, Austin W. Morris, Dan- 
 iel Yandes and Samuel Merrill. 
 
 I record only the names of those who have made their lives object 
 lessons within my own remembrance, and have passed in person from 
 view, but yet live honored in loving memory. Under their in- 
 fluence, both in private and public transactions, moral considera- 
 tions were recognized as "limitations" even upon the right of con- 
 tract ; and public policy was ever what best served private virtue 
 and public honor. These good men lived not for themselves, but 
 that others might rightly live. United and loved in life, now 
 crowned in our memory, they rest together peacefully from their 
 labors upon "Crown Hill," overlooking the city they loved. 
 
 Let not the limit of their lives, contract the circle of their in- 
 fluence. 
 
 Charles A^stdrew Eat.
 
 PREFACE. 
 
 Wliile the law recognizes that commercial prosperity requires 
 that every one of full age and reasonable discretion should have 
 almost unlimited freedom in entering into contracts, and that all 
 engagements thus freely and fairly entered into should be held 
 sacred and enforceable in law, and all equitable rights growing 
 out of such engagements should be given full effect; yet there are 
 limitations upon this right to contract which the security of 
 society and the protection of individual rights render it imperative 
 that the law making power should impose, and that courts should 
 render effective. 
 
 It is true that public policy is uncertain and fluctuating — chang- 
 ing with the enlarged demands of commerce and the usages of 
 trade — and that even in morals, the test is not uniform, the inno- 
 cent wager of the ancient common law, becoming the gambling 
 contract of to-day; and the illegal sale of property to which no 
 title exists, becoming, in turn, the reliance of both producer and 
 manufacturer; the latter indeed purchasing futures in cotton and 
 in grain, that he may enter into contract for the delivery of the 
 product at fi: :ed and remunerative prices, thus creating for the 
 producer a present market for future dehvery. 
 
 But it still stands true, that whatever contract conflicts with the 
 moral sentiment of the times, or contravenes any established exist- 
 ing interest of society, social, commercial or political, is void, 
 as against public policy. By this test must all Contracts, Trade 
 Agreements and Strikes, and all Corporate or Partnership Trusts 
 and Combinations be judged. It is the purpose of this work to 
 bring them all to this judgment. 
 
 Charles A. Ray. 
 
 Law ofiices of Dudley, Michener & Ray, 
 40 Wall St., Kew York, March Ist, 1892.
 
 TABLE OF CONTENTS. 
 
 CHAPTER I. 
 
 LIMITATIONS UPON THE RIGHT TO CONTRACT. 
 
 Sec. 1. Duty to Avoid Invading Interests Cherished by the Law, 1. 
 Sec. 2. What are Contracts which Invade such Interests, 6. 
 
 a. Consideration Essential, Illegal in Part, Moral and Immoral, 6. 
 
 b. Good and Equitable Consideration, 8. 
 
 c. Mutual Promises, 11. 
 
 d. Valuable Consideration, 13. 
 
 e. Expectation of Results, not a Consideration, 20. 
 
 f. Voluntary Service or Promise; Existing Obligations, 21. 
 
 g. Wager Policies on Life, 22. 
 
 h. Future Delivery of Stocks, Grain, and Produce, 88. 
 Sec. 3. Courts, in Matter of Contract, will Protect the Public, 63. 
 
 CHAPTER II. 
 
 CONTRACTS AS AFFECTED BY STATUTE. 
 
 Sec. 4. Contracts to Contravene a Statute Void, 66. 
 
 Sec. 5. Contract Void though Object not Expressly Prohibited by Statute,, 
 when, 68. 
 
 Sec. 6. Statutes Simply Directory do not Invalidate Contracts, 69. 
 
 Sec. 7. Statutes Protecting the Public from Imposition and Empiricism; Ex- 
 ercise of Police Power, 70. 
 
 a. Statutes Requiring Inspection etc., of Goods, 70. 
 
 b. License to Practice Medicine, 70. 
 
 c. Solicitation to Purchase Liquors, 71. 
 
 d. Violating Foreign Laws, 73. 
 
 e. Sunday Laws, 79. 
 
 Sec. 8. Subject-matter and Purpose of Legislation Determine EfiFect on Con- 
 tracts, 79. 
 
 a. Intent of Legislators must Control; Homestead Laws, 79. 
 
 b. Penalty for Performing Marriage Ceremony, 82. 
 
 c. Usury Laws, 82. 
 
 d. Internal Revenue Laws, 82. 
 
 e. Excessive Loans by Banks, 82. 
 
 f. Offering Unbranded Goods, 83. 
 
 g. Unlicensed Peddler, Commercial Fertilizers, 83. 
 
 CHAPTER III. 
 
 MALUM IN SE AND MALUM PROHIBITUM— FOREIGN STATUTE. 
 
 Sec. 9. Rule Declaring Contracts Concerning Matter " Malumin Se," and 
 "Malum Prohibitum" Void, Applies when, 84. 
 
 Sec. 10. The Local Policy or Statute Determines the Question of Enforcement 
 of Foreign Contracts — State Comity, 85. 
 
 Sec. 11. Enforcement of Foreign Assignments for the Benefit of Creditors, 89. 
 
 Sec. 12. Question of Commercial Law — United States Supreme Court, 92. 
 
 vii
 
 Vm TABLE OF CONTENTS. ; 
 
 CHAPTER lY. I 
 
 WAR AS AFFECTING CONTRACTS. ( 
 
 ■Sec. 13. Dealings with Public Enemy, 101. 
 
 a. Duty of Citizen to Avoid, 101. ■; 
 
 b. Executory Contracts Canceled by War, 101. 
 
 c. Contracts with, Void. 102. I 
 Sec. 14. No Power to Appoint Agent after Hostilities, 102. \ 
 Sec. 15. Licenses to Trade, 103. ; 
 
 a. May be Given to Alien Enemy, 103. ' 
 
 b. Liberally Construed, 103. 
 
 Sec. 16. Insuring the Property of a Public Enemy, 104. 
 
 CHAPTER V. ] 
 
 PRIVATE CONTRACTS AND CIVIL GOVERNMENTS. ; 
 
 Sec. 17. Contracts Affecting Injuriously the Operations of the Government, 106. : 
 
 Sec. 18. Contracts Contingent upon Ministerial Action, 108. ! 
 
 Sec. 19. Contracts to Influence Legislation, 110. ■ 
 
 Sec. 20. Contracts Influencing Elections or Appointments, 111. j 
 
 Sec. 21. Contracts Obstructing Public Justice — Maintenance and Champerty, ■ 
 
 115. ; 
 
 Sec. 22. Contracts to Influence the Action of Corporations, 126. , 
 
 CHAPTER YI. j 
 
 WHEN COURTS WILL AND WHEN THEY WILL NOT RELIEVE. 
 
 Sec. 23. No Relief in Case of Fraudulent, Illegal or Immoral Contracts, 136. j 
 
 a. Illegality need not be Pleaded, 137. \ 
 
 b. Illegal in Part — Individuals may Release Damages, 140. i 
 
 c. Courts will not Enforce against Public Policy, 141. i 
 Sec. 24. Relief from Illegal Contracts, 143. ! 
 
 a. In Pari Delicto— Ultra Vires, 143. ' 
 
 b. Independent of Contract— Locus Pceaitentiae, 146. | 
 
 c. Upon Executed Contract, 147. j 
 
 i 
 
 CHAPTER YII. j 
 
 CONTRACTS AFFECTING MARRIAGE. j 
 
 Sec. 25. Contracts to Promote or Rupture the Marriage Relation, 150. 'j 
 
 Sec. 26. A Contract for Immediate Separation and Support, or for Support ] 
 
 after Accomplished Separation, Valid, 153. 
 
 Sec. 27. Agreement for Separation and Support Supersedes only in Part Marital i 
 
 Duties, 156. j 
 
 Sec. 28. Trustee in Marital Separation not Essential, but Husband Treated as ; 
 
 Trustee, and not Criminally Liable for Non-support, 157. 
 Sec. 29. Contract Void when Immediate Separation not Contemplated, 158. 
 Sec. 30, Contracts Regarding Property, but in Partial Restraint of Marriage, 158. 
 
 CHAPTER YIIL ! 
 
 CONTRACTS IN RESTRAINT OF TRADE. i 
 
 Sec. 31. Excluding One from Pursuing His Trade or Employment, 162, 
 
 Sec. 32. Contracts in General Restraint of Trade are Void, 164. \
 
 TABLE OF CONTENTS. IX 
 
 Sec. 33. Contracts Imposing Limited Restraints Territorially as a Condition of 
 Employment, 167. 
 
 Sec. 34. Territorial Limitations Sustained — Distance, how Determined — In- 
 stances, 169. 
 
 Sec. 35. Limit of State Lines, 170. 
 
 Sec. 36. Territorial Limitations Held too Restrictive — Instances, 171. 
 
 Sec. 37. Limitations in Regard to Time, 172. 
 
 Sec. 38. Brewers' Contracts, 172. 
 
 Sec. 39. Limitations Imposed on Seller to Protect Purchaser of Business or 
 Stock, 174. 
 
 Sec. 40. Sale of Discovery, 181. 
 
 Sec. 41. Monopoly Secured to a Patent Right, 183. 
 
 CHAPTER IX. 
 
 MODIFICATION OF THE RULE AS TO CONTRACTS IN 
 RESTRAINT OF TRADE. 
 
 Sec. 42. Mitchell v. Reynolds— Act of Parliament in 1844, Repealing Statutes 
 Regarding Trade, 188. 
 
 Sec. 43. Modern Doctrine that Restraint is Valid, if Co-extensive only with 
 Interest to be Protected and with Benefit Meant to be Con- 
 ferred, 194. 
 
 Sec. 44. Public Policy Concerning Trade Restrictions, 197. 
 
 Sec. 45. Examples of Modern Rules Regarding Restrictions, 198. 
 
 Sec. 46. Legality of Consideration, and Reasonableness of Restiiction, Ques- 
 tions of Law, 201. 
 
 Sec. 47. Presumption as to Legality of Contracts in Partial Restraint of Trade, 
 203. 
 
 Sec. 48. Contract in Restraint of Trade Legal in Part and Severable, 203. 
 
 Sec. 49. Partial Restriction of Trade not Permissible by Corporations, 206. 
 
 CHAPTER X. 
 
 MONOPOLY. 
 
 Sec. 50. Monopoly as Opposed to Popular Government, 211. 
 
 Sec. 51. Monopoly Based upon Oppression and Usurpation of the Rights of 
 
 Others, 212. 
 Sec. 52. Combinations to Control the Necessaries and Comforts of Life, 213. 
 Sec. 53. Effect of Constitutional Provisions Regarding Monopolies, 229. 
 Sec. 54. Combinations Tending to Impede Competition, Illegal, 233. 
 
 CHAPTER XI. 
 
 COMBINATIONS TO MONOPOLIZE. 
 
 Sec. 55. Combinations in Various Disguises to Monopolize the Market, 236. 
 Sec. 56. Union of Corporations in a Partnership to Suppress Competition, 242. 
 Sec. 57. Combination between Corporations without Partnership, 244. 
 
 CHAPTER XII. 
 
 TRADE TRUSTS. 
 
 Sec. 58. Right to Combine for Lawful Objects. 247. 
 
 a. Car Trust, 248. 
 
 b. Contracts among Corporations to Prevent Ruinous Competition. 
 
 260.
 
 X TABLE OF CONTENTS. 
 
 Sec. 59. Corporate Combinations to Prevent Competition, "Trade Trusts," 261. 
 Sec. 60. General Acts of Incorporation will not Authorize the Formation of 
 
 Trusts, 282, 
 Sec. 61. Corporation Representing a Trust cannot Act in Foreign Territory 
 
 without Local Authority, 289. 
 
 CHAPTER XIII. 
 
 CONSPIRACY AT COMMON LAW. 
 
 Sec. 62. Conspiracy as an Ofifense, of Common Law Origin, 291. 
 
 Sec. 63. Common Law Origin of the Offense of Conspiracy Sliown from the 
 Villenous Judgment, 292. 
 
 Sec. 64. Common Law Origin of Offense of Conspiracy, as it Appears from 
 Precedents and Decisions, 293. 
 
 Sec. 65. Conspiracy Defined, 313. 
 
 Sec. 66. Conspiracy against Civil Government, 319. 
 
 Sec. 67. Conspiracies Affecting the Public Injuriously or against the Public 
 Quiet, 321. 
 
 Sec. 68. Conspiracy against the Due Administration of Justice, 322. 
 
 Sec. 69. Conspiracies against Public Virtue and Individual Morality, Indict- 
 able, 323. 
 
 Sec. 70. Combinations to Cheat, 324. 
 
 CHAPTER XIY. 
 
 CONSPIRACY AT COMMON LAW — Continued. 
 
 Sec. 71. Conspiracy to Extort Anything of Value from an Individual, 332. 
 
 Sec. 72. Conspiracy to Slander, 332. 
 
 Sec. 73. Conspiracies Relating to Trade and Labor, 334. 
 
 Sec. 74. Development of the Doctrine of Conspiracy in Trade Combinations,. 
 
 335. 
 Sec. 75. Statutes in England and the United States Regarding Combination& 
 
 among Workmen, 338. 
 
 CHAPTER XV. 
 CONSPIRACY AT COMMON L AW — Continued. 
 
 Sec. 76. Legislation Affecting Common Law Concerning Combinations among 
 Workmen, 378. 
 
 Sec. 77. Present Condition of the Law Concernin? Trade or Labor Combina- 
 tions, "Picketing," " Boycotting," 406. 
 
 Sec. 78. Indictments for Conspiracy, 412. 
 
 Sec. 79. Evidence in Conspiracy, 419. 
 
 APPENDIX. 
 
 A. Cotton Futures. Letter of Alfred B. Shepperson. Editor of " Cotton 
 
 Facts." 
 
 B. Bills in 52d Congress. The Washburn Bil 
 
 C. Tlie Hatch Bill. 
 
 D. Protest of New York Produce Exchange. Bankers' Protest. 
 
 E. The Peffer Bill.
 
 C^SES CITED. 
 
 (References are to pages.) 
 
 A. 
 
 Abbott V. Johnstown, G. & K. 
 HorseR. Co., 80N.Y. 
 27 - 266 
 
 Abigail, The, Stewart's Vice Adm. 
 
 360 103 
 
 Adams x. Adams, 25 Minn. 72 155 
 
 i\ Bartlett, 5 Ga. 404 67 
 
 v. Lee, 6 JSew Eng. Rep. 
 
 413, 64 N. H. 421 254 
 
 V. O'Connor, 100 Mass. 515 76 
 
 V. People, 9 Hun ,89 356 
 
 Adams County v. Hunter, 6 L. R. 
 
 A. 615, 78 Iowa, 328-- 108 
 Adams Exp. Co. v. Reno, 48 Mo. 
 
 264 146 
 
 ^tna L. Ins. Co. v. France, 94 U. 
 
 S. 561, 24 L. ed. 287.. 26 
 Aiken v. Blaisdell, 41 Vt. 655. ..81, 82 
 Albee v. Wjman, 10 Gray, 222.. 155 
 Alcock V. Gilbertson, 5 Duer, 76, 
 
 79. .167, 181, 196 
 
 Alderman v. People, 4 Mich. 414 
 
 315, 328, 329, 420 
 Aldridge v. Muirhead, 101 U. S. 
 
 397, 25L. ed. 1013.... 3 
 Alff V. Radam, 9 L. R. A. 145, 77 
 
 Tex. 530 2 
 
 Alger V. Thacher, 19 Pick. 51, 31 
 
 Am. Dec. 119 
 
 162, 163, 212, 213 
 Allebach v. Hunsicker, 132 Pa. 349 147 
 Allen ». Affleck, 10 Daly, 512, 64 
 
 How. Pr. 381 158 
 
 r. Gardiner, 7 R. I. 22 79 
 
 V. Jackson, L. R. 1 Ch. Div. 
 
 399 158 
 
 «. Plait, 79 Iowa, 113 18 
 
 4\ Rescous, 2 Lev. 174 64 
 
 V. Williams. 12 Pick. 297. 76 
 V. Woonsocket Co., 11 R. I. 
 
 288 244 
 
 AUi-son V. Hess. 32 Iowa. 389 139 
 
 Allsopp V. Wheatcroft, 27 L. T. 
 N. S. 372, L. R. 15 Eq. 
 59.... 163, 165.171,182, 203 
 Almy V. California, 65 U. S. 24 
 
 How. 165, 16 L. ed. 644 220 
 
 Alpers V. Hunt, 9 L. R. A. 483, 86 
 
 Cai. 78 5 
 
 Alvord V. Collin, 20 Pick. 428... Ill 
 
 Amedon x. Gannon, 6 Hun, 384.. 169 
 
 American L. Ins. & T. Co. v. Dob- 
 bin, Hill & D. 259.... 137 
 
 Amherst Academy v. Cowls, 6 
 
 Pick. 427 19 
 
 Amick V. Butler, 9 West. Rep. 843, 
 
 111 Ind. 578 26, 28, 38 
 
 Andersons. Anderson, 1 Edw. Ch. 
 
 380, 6 L. ed. 179 155 
 
 ®. Com., 5 Rand. 627.64, 311, 
 
 318, 319, 322-324... . 329 
 V. Corkins, 135 U. S. 483,34 
 
 L. ed. 272.... 80 
 
 «. Jett (Ky.) 6 L. R. A. 390 
 
 234, 246 
 «. Powell, 44 Iowa, 20 204 
 
 Andrews v. Thayer, 30 Wis. 226, 
 
 228,233.. 118, 294 
 
 Androscoggin & K. R. Co. v. An- 
 droscoggin R. Co., 52 
 Me. 417, 434 196 
 
 Angell «. Van Schaick, 56 Hun, 
 
 247 88 
 
 Angier v. Webber, 14 Allen, 211, 
 and editorial note, 92 
 Am. Dec. 751 218 
 
 Anhauser-Busch Brew. Asso. v. 
 Mason, 9 L. R. A. 506, 
 44 Minn. 318..-. 72 
 
 Annandale v. Harris, 2 P. Wms. 
 
 432.. 9 
 
 Anon. 6 T. R. 626.. 315 
 
 Anon. Case, 1354, 27 Assizes, p. 
 
 138, b. pi. 44 296 
 
 Antcliffe x. June, 10 L. R. A. 621, 
 
 81 Mich. 477 153 
 
 Anthony v. Moline, 5 Taunt. 711, 
 
 715 104 
 
 Antoine v. Morshead. 6 Taunt. 237 102 
 
 Archer v. Marsh, 6 Ad. & El. 959. 
 
 966. .200,201 
 
 V. State, 4 West. Rep. 726, 
 
 106 Ind. 426-432 
 
 315, 419, 420, 423 
 V. Terre Haute & I. R. Co. , 
 
 102111.493...- 266 
 
 Xl
 
 xu 
 
 CASES CITED. 
 
 Arden v. Patterson, 5 Johns. Ch. 
 
 44, 1 L. ed. 1003. 119 
 
 Argenbright v. Campbell, 3 Hen. 
 
 &M. 144 151 
 
 Armfleld v. Tate, 29 N. C. 258.. 141 
 Armour v. Pecker, 123 Mass. 143 76 
 Armstrong v. American Exch. 
 Nat. Bank, 133 U. S. 
 
 433, 83L. ed. 747 
 
 138, 146, 148 
 «. Toler,24U. S. 11 Wlieat. 
 258, 273, 6 L. ed. 468, 
 
 472 
 
 64. 137, 141, 146, 148, 279 
 Arnot V. Pittston & E. Coal Co., 
 68 N. Y. 558.45, 55, 67, 
 107, 166, 212, 218, 232, 
 
 239, 240. 279, 309, 310 
 Arundel ». Trevillian, 1 Rep. in 
 
 Ch. 87 152 
 
 Ashburner v. Parrish, 81 Pa. 52. 67 
 Asher v. Texas, 128 U. S. 129, 32 
 
 L. ed. 368 231 
 
 Ashley's Case, 12 Coke, 90 322 
 
 Atcheson v. Mallon, 43 N. Y. 147 234 
 Atchison, T. & S. F. R. Co. v. 
 
 Johnson, 29 Kan. 318. 119 
 V. Moore, 29 Kan. 633.... 98 
 Atherton v. Ives, 20 Fed. Rep. 896 90 
 Atlanta & C. A. L. R. Co. v. Tan- 
 ner, 68 Ga. 390. 98 
 
 Attaway v. Third Nat. Bank, 10 
 West. Rep. 412, 93 Mo. 
 
 485 134, 139 
 
 Attorney v. Starling, 1 Keb. 650. 302 
 Atty-Gen. v. Blount, 4 Hawks, 
 
 384... 223 
 
 ». Cambridge, 16 Gray, 247 222 
 V. Chicago &N.W.R. Co., 
 
 35 Wis. 425 223 
 
 V. Cleave. 18 Ves. Jr. 211. 219 
 V. Hunter, 1 Dev. Eq. 12.. 223 
 V. Lichfield Corp., 13 Sim. 
 
 546 223 
 
 V. Niagara Falls Int. Bridge 
 Co., 20 Grant, Ch. (U. 
 
 C.) 34 266 
 
 V. Tudor Ice Co., 104 Mass. 
 
 244 219 
 
 V. Weeden, Park.' Exch.' 267 103 
 Atwood V. Protection Ins. Co., 14 
 
 Conn. 555 87 
 
 Aubert v. Maze, 2 Bos. & P. 374. 68 
 Augusta Nat. Bank v. Cunning- 
 ham, 75 Ga. 366 52 
 
 Austin V. Dye, 46 N. Y. 500 252 
 
 V. Markham, 44 Ga. 161... 69 
 Austyn v. M'Lure, 4 U. S. 4 Dall. 
 
 227, 1 L. ed. 811 18 
 
 Averbeck v. Hall, 14 Bush, 505.. 116 
 
 Avery v. Langford, Kay, 663, 667, 
 
 668... 163 
 
 Ayer v. Hulchins, 4 Mass. 371, 373 
 
 2, 10» 
 
 B. 
 
 Backus V. Byron. 4 Mich. 535... 118 
 
 Baehr«. Wolf, 59 111. 470 117 
 
 Bagby v. Atlantic, M. & O. R. Co., 
 
 86 Pa. 291.. 89, 90 
 
 Bailey v. Colby, 34 N. H. 39 252 
 
 Baines v. Geary, L. R. 35 Ch. Div. 
 
 154, 150... 197, 203 
 
 Baird v. New York, 96 N. Y. 567, 
 
 577 403 
 
 Baker v. Barney. 8 Johns. 73 153 
 
 V. Farris, 61 Mo. 389. 116 
 
 V. Holtpzaffell, 4 Taunt. 45 360 
 V. Union Mut. L. Ins. Co.. 
 
 43N.Y. 283.. 26 
 
 V. Walker, 14 Mees. & W. 
 
 465 14 
 
 Baldy v. Stratton, 111 Pa. 316... 7 
 Baldwin, Re. 27 Fed. Rep. 187, 
 
 193 320, 374, 375 
 
 v. Franks, 120 U. S. 678, 30 
 
 L. ed. 766.. 374, 375 
 
 Ball V. Gilbert, 12 Met. 399 49 
 
 Ballalre Goblet Co. v. Findley, 5 
 
 OhioC. C. 418 107 
 
 Ballard v. Carr, 48 Cal. 74.... 120, 122 
 Balsley v. St. Louis, A. & T. H. 
 R. Co., 6 West. Rep. 
 
 469,119111.68... 269 
 
 Baltimore & O. R. Co. v. Mary- 
 land, 88 U. S. 21 Wall. 
 
 456, 22 L. ed. 678 230 
 
 Baltimore Wheel Co. v. Berais, 89 
 
 Fed. Rep. 95 361, 865 
 
 Bangs V. Hornick. 30 Fed. Rep. 97 43 
 Bank of Augusta v. Earle, 38 TJ. 
 S. 13 Pet. 539, 10 L. 
 
 ed. 384 389 
 
 Australasia v. Breillat, 6 
 
 Moore, P. C. 152 203 
 
 Commerce v. Hoeber, 11 
 
 Mo. App. 475 69 
 
 Rochester v. Jones, 4 N. Y. 
 
 497 76 
 
 Sallna v. Babcock,31 Wend. 
 
 499-. 14 
 
 U. S. V. Owens, 37 U. S. 2 
 Pet. 537, 7L. ed. 508.. 
 
 6, 67. 68, 84, 140 
 Banks v. May. 3 A. K. Marsh. 435 116 
 Barkley v. Williams, 36 111. App. 
 
 213 --- 128 
 
 Barkly v. Copeland, 86 Cal. 483 428 
 Barlow v. Smith, 4 Vt. 144 S
 
 CASES CITED. 
 
 XUl 
 
 Barnard v. Backhaus, 52 Wis. 593 
 
 49, 51 
 
 Barnes v. Brown, 80 N. Y. 535... 284 
 
 V. Gill, 21 111. App. 129... 140 
 
 V. Strong, 54 N. C. 100 ... 120 
 
 Barnett v. Kinuey (Idaho) March 
 
 5,1890 86 
 
 Barrett v. Goddard, 3 Mason, 111 76 
 
 v. Weber, 125 N. Y. 18... 115 
 
 Barron v. Tucker, 53 Vt. 338 116 
 
 Barry «. Capen, 6 L. R. A. 808, 
 
 151 Mass. 99 107 
 
 Bartholomew «, Jackson, 20 
 
 Johns. 28 -. 21 
 
 Bartle v. Nutt, 29 U. S. 4 Pet. 184, 
 
 7L. ed. 825 1. 137,139 
 
 Bartlett v. Smith, 4McCrary, 388, 
 
 13 Fed. Rep. 263_ _42, 48, 426 
 V. Vinor, Cartli. 252, Skin. 
 
 322 68 
 
 Barton v. Hughes, 2 Brown (Pa.) 
 
 48 68 
 
 Bass V. Peevey , 22 Tex. 295 62 
 
 Batterton v. "Chiles, 12 B. Mon. 
 
 348--- 123 
 
 Baughman v. "Richmond Typo- 
 graphical Union, 11 Va. 
 
 Law Journal (April, 
 
 1887), 196 407 
 
 Baumgarten v. Broadway, 77 N. 
 
 C. 8 - 167 
 
 Bazett v. Meyer, 5 Taunt. 824. 
 
 828, 829 104 
 
 Beach v. Beach, 2 Hill, 260 . 155 
 
 V. Kezar, 1 N. H. 184 84 
 
 Beadle v. Beadle, 40 Fed. Rep. 315 140 
 Beadles v. McElrath, 85 Ky. 230. 
 
 41, 42, 57 
 
 V. Ownby, 16 Lea, 424 62 
 
 Beal V. Chase, 31 Mich. 490 167 
 
 V. Polhemus, 10 West. Rep. 
 
 885, 67 Mich. 130, 107, 109 
 Beall V. White, 94 U. S. 382, 24 
 
 L. ed. 173 257 
 
 Bean -v. Bean , 12 Mass. 20 330 
 
 V. Edge, 84 N. Y. 510 ..252, 259 
 
 Beard v. Beard. 65 Cal. 356 118 
 
 V. Dennis, 6 Ind. 200. -.171, 205 
 
 Beauchamp v. Archer, 58 Cal. 431 76 
 Beaumont ». Reeve, 8 Q. B. 483, 
 
 18 Jur. 284, 15 L. J. Q. 
 
 B. 141 7 
 
 Becker v. Smith . 59 Pa. 469 251 
 
 Beecber v. Webb, 113 111. 436... 318 
 
 Beham v. Ghio, 75 Tex. 87 109 
 
 Belcher v. State, 125 Ind. 419 42 5 
 
 Belden v. Munger, 5 Minn. 211 .. 153 
 
 Beldingz). Pitkin, 2 Cai. 149 64 
 
 Belknap v. Bender, 75 N. Y. 446. 11 
 
 Bell V. GUson, 1 Bos. & P. 345 -. 104 
 
 Bell V. Leggett, 7 N. Y. 176 
 
 69, 286, 310 
 V. Smith, 7 Dowl. & R. 846 118 
 Bellairs v. Bellairs, L. R. 18 Eq. 
 
 510 15& 
 
 Bemis v. Baker, 1 Kan. 226 6 
 
 Bender v. Been, 5 L. R. A. 596, 
 
 and 7iote, 78 Iowa, 283 13 
 Benedict v. Ehler, Lewis, Crim. 
 
 L. 126 112 
 
 V. Western U. Teleg. Co. 9 
 
 Abb. N. C. 214 238, 244 
 
 Benner v. Puffer, 114 Mass. 376. 255 
 Benson v. Morgan, 25 HI. App. 22 42 
 Bent v. Priest, 10 .Mo. App. 543-. 125 
 Bentiuck v. Franklin & G. C. Co. 
 
 38 Tex. 458 120 
 
 Bentley v. Whittemore, 19 N. J. 
 
 Eq. 462 90 
 
 Ben well v. Inns, 24 Beav. 307-.. 182 
 Bernard®. Lupping, 32 Mo. 341. 79 
 Berry v. Brown, 9 Cent. Rep. 896, 
 
 107N. Y. 659 11 
 
 V. State, 4 Tex. App. 492. 422 
 
 «. Yates, 24 Barb. 1 99 287 
 
 Berryman v. Cincinnati S. R. Co. 
 
 14 Bush, 755 -.. 108 
 
 Bestorc. Walhen, 60 111. 138 
 
 2, 126, 129, 132 
 
 Bett's App., 10 W. N. C. 431 201 
 
 Bettis V. Reynolds, 12 Ired. L. 344 28 
 Bettle V. Wilson, 14 Ohio, 257... 155 
 Beveridge v. Hewitt, 8 111. App. 
 
 467 -- 49 
 
 Bholen v. Cleveland, 5 Mason, 174 87 
 
 Bickel V. Sheets, 24 Ind. 1 55, 141 
 
 Biddis V. James. 6 Binn. 321 68 
 
 Bierbauer w.Wirth, 10 Biss. 60 116, 117 
 Bigelow V. Benedict, 70 N. Y. 202, 
 
 206 41, 44, 49, 60, 63 
 
 Bigony v. Tyson, 75 Pa. 157 201 
 
 Bingham ».'Maigne, 20 Jones & 
 
 S. 90 172 
 
 Binnington v. Wallis, 4 Barn. & 
 
 Aid. 650 7 
 
 Birdseye v. Baker, 2 L. R. A. 99, 
 
 82Ga. 142 86, 91 
 
 Bisbee v. McAllan, 39 Minn. 143.70, 81 
 Bishop V. Holcomb, 10 Conn. 444 87 
 
 V. Honev, 34 Tex. 245 141 
 
 v. Kitchen, 38 L. J. JN. S. 
 
 Q. B. 20 147 
 
 V. Palmer, 6 New Eng. Rep. 
 
 129, 146 Mass. 469 
 
 6, 162, 205 
 Bissell V. Michigan S. & N. L R. 
 
 Co., 22 KY. 258 243 
 
 Bixby V. Moor, 51 K H. 402.. .67, 141 
 Blachford v. Preston. 8 T. R. 
 
 89 .- 113
 
 XIV 
 
 CASES CITED. 
 
 Blair v. Perpetual Ins. Co., 10 Mo. 
 
 559, 47 Am. Dec. 129. 289 
 V. Scbaeflfer, 33 Fed. Rep. 
 
 218 - 247 
 
 Blaisdell v. Ahern, 4 New Eng. 
 Rep. 347, 144 Mass. 393 
 
 119, 125 
 Blaker v. Cooper, 7 Serg. & R. 500 155 
 Blasdel v. Fowle, 120 Mass. 447. 69 
 Bliss v. Brainard, 41 N. H. 256, 
 
 258, 268 68, 72, 87, 88 
 
 V. Matteson,45 N.Y. 22.-69, 135 
 
 V. Negus, 8 Mass. 46 156, 205 
 
 Bloomer v. State, 48 Md. 521.. 326, 329 
 Bloomtield v. Blake. 6 Car. & P. 
 75, 1 Hawk, P. C. 
 Curw. ed. ^ 3, p. 446 
 
 318, 323, 330, 332 
 Bloomington Mut. L. Ben. Asso. 
 V. Blue, 8 West. Rep, 
 
 642,120 111.121 27 
 
 Bly V. Second Nat. Bank, 79 Pa. 
 
 453 - 146 
 
 Blythe v. Lovinggood, 24 N. C. 20.6, 25 
 Boardman v. Thompson, 25 Iowa, 
 
 488.- 119 
 
 V. Wheeler, 15 N. Y. Week. 
 Dig. 325, 27 Hun, 615. 
 
 616 174, 175 
 
 Boggus «, State, 34 Ga. 275 317 
 
 BoLm V. Goldstein, 53 N. Y. 634. 108 
 
 Bolles V. Sachs, 37 Minn. 315 11 
 
 Bone V. Ekless, 5 Hurlst. & N. 925 147 
 Booker v. Puyear, 27 Neb. 346. . 422 
 Booth V. Bank of England, 7 Clark 
 
 &F. 509 68 
 
 V. Robinson, 55 Md. 419.. 196 
 
 v. Smith, 3 Wend. 6*^ 13 
 
 Born V. Horstmann, 5 L. R. A. 
 
 577, 80 Cal. 454 160 
 
 Bornstein v. Lans, 104 Mass. 214. 15 
 Boston V. Simmons. 6 L. R. A. 
 
 629, 150 Mass. 461 107 
 
 Boston Diatite Co. ■». Florence 
 Mfg. Co., 114 Mass. 69 
 
 361, 408 
 Boulter v. Arnott, 1 Cromp. & M. 
 
 333 76 
 
 Boutellew. Sm"ithril6 MassViii" 165 
 Bowditch V. New England Mut. 
 L. Ins. Co.. 2 New Eng. 
 Rep. 238, 141 Mass. 292 83 
 
 Bowen v. Buck, 28 Vt. 308 116 
 
 V. Hall, L. R. 6 Q. B. Div. 
 
 333, 337 305, 368 
 
 V. Matheson, 14 Allen, 503 
 
 404, 415 
 V. Tipton, 1 Cent. Rep. 494, 
 
 64Md. 275 13 
 
 Bowers v. State, 24 Tex. App. 543 421 
 
 Bowery v. Bennet, 1 Campb. 348 64 
 Bowling V. Taylor, 40 Fed. Rep. 
 
 404 182 
 
 Bowman v. Phillips, 41 Kan. 364.5, 72 
 Bowser v. Bliss, 7 Blackf. 344, 43 
 
 Am. Dec. 93 165, 172 
 
 Box V. Barnaby, Hob. 117 118 
 
 Boyd ®. Hanson, 41 Fed. Rep. 174 
 
 48, 52 
 ». Hitchcock, 20 Johns. 76 13 
 V. Rockport Mills, 7 Gray, 
 
 406 90 
 
 Boynton v. Hubbard, 7 Mass. 112, 
 
 119...- ..Ill, 126 
 
 Brace v. Evans (Pa.) 13 Ry. & 
 
 Corp. L. J. 561. 363 
 
 Brackett ®. Gresnold, 69 Hun, 617 423 
 
 «. Hoyt, 29 N. H. 264 83 
 
 Bradford v. Beyer, 17 Ohio St. 388 2 
 Bradley v. Ballard, 55 III. 413 148 
 
 Brainard v. Peck, 34 Vt. 496 255 
 
 Bramblet ». Lumsden, 80 Ga. 707 21 
 Branch v. Atlantic & G. R. Co., 
 
 3 Woods, 481 258 
 
 Branch Bank v. Crocheron, 5 Ala. 
 
 250 84 
 
 Brandon i). Curling, 4 East, 410.. 105 
 V. Nesbitt, 6 T. R. 23.. 104, 105 
 Brannock v. Bouldin, 26 N. C. 61 329 
 Brashear v. West, 32 U. S. 7 Pet. 
 
 608, 8 L. ed. 801 87 
 
 Bredin's App. 93 Pa. 241 64, 116 
 
 Breerton«. Townsend, Noy'sRep. 
 
 103 . 293 298 
 
 Breese «. State, 12" Ohio' St." 1461. ' 422 
 Brenham v. Brenham Water Co., 
 
 67 Tex. 561.. 212, 233 
 
 Brennan i). People, 15 HI. 511.315, 422 
 Breslin v. Brown, 24 Ohio St. 565 165 
 Brewer «. Marshall, 19 N. J. Eq. 
 
 537 165, 168, 198,202 
 
 Bridger «. Asheville & S. R. Co., 
 
 27S. C. 462 98 
 
 Bridges*. Miles, 152 Mass. 249.. 69 
 Brig Wilson v. United States, 1 
 
 Brock. 423 217 
 
 Briggs w.Vanderbilt, 19 Barb. 222 244 
 Brisbrane v. Adams, 3 N. Y. 
 
 129 234 
 
 Bristow V. Towers," 6" T.'r.'ss". ' '. 105 
 Brocklehurst v. Manchester S. T. 
 
 Co., 34 Week. Rep. 568 258 
 Brockway v. Mutual Ben. Ins. 
 
 Co., 9 Fed. Rep. 249.- 26 
 Bromley ®. Hawley, 5 New Eng. 
 
 Rep. 660, 60 Vt. 46... 17 
 Brook V. Hook, L. R. 6 Exch. 89 116 
 Brooke v. New York, L. E. & W. 
 
 R. Co., 108 Pa. 529, 530 
 
 88, 98
 
 CASES CITED. 
 
 XV 
 
 Brooklyn City & N. R. Co. v. Nat. 
 Bank of the Republic, 
 103 U. S. 14, 26 L. ed. 
 
 61 92 
 
 Brooks V. Martin, 69 U . S. 2 Wall. 
 
 70, 17 L. ed. 732 146 
 
 V. State. 88 Ala. 122 71 
 
 V. White, 2 lAIet. 283 18 
 
 Brown v. Alexander, 29 111. App. 
 
 626 - 53 
 
 v. Beau champ, 5 T. B. Mon. 
 
 413 118, 119 
 
 V. Brine, L. R. 1 Exch, Div. 
 
 5 ---. 115 
 
 r. Brown, 34 Barb. 536... 107 
 'c. Bueua Vista County, 95 
 U. S. 157, 160, 24 L. 
 
 ed. 422... 3 
 
 «. Camden & A. R. Co., t3 
 
 Pa. 316 88, 98 
 
 T. Fiuley, 18 Mo. 375 139 
 
 T. Herr;21 Neb. 113 426 
 
 V. Houston, 114 U. S. 622, 
 
 29L. ed. 257 222 
 
 v. Langford, 3 Bibb, 497.. 64 
 ^. Maryland, 25 U. S. 12 
 Wheat. 419, 446, 6 L. 
 
 ed. 678, 688 ...217. 220 
 
 -0. Peck, 1 Eden. 140 159 
 
 -». Reilly, 72 Md. 489 140 
 
 V. Rounsavell, 78 111. 589.. 223 
 'e. Speyers, 20 Gratt. 96... 63 
 V. State, 2 Tex. App. 115.. 315 
 V. Tarkington, 70 U. S. 3 
 
 Wall. 381, 18 L. ed. 257 67 
 V. Timmany, 20 Ohio, 81.. 146 
 V. Tuttle, 6 New Eng. Rep. 
 
 156, 80 Me. 62. _ 7 
 
 V. United States, 12 U. S. 8 
 Cranch. 110, 3 L. ed. 
 
 504 -. 101 
 
 Brownings. Morris, Cowp. 790_. 144 
 
 Brua's App., 55 Pa. 294 40, 61 
 
 Brundage v. Port Chester, 3 Cent. 
 
 Rep. 642, 102 N. Y. 494 5 
 
 Bryan v. Brisbin, 26 Mo. 423 90 
 
 V. Reynolds, 5 Wis. 200.. Ill 
 
 Bryant v. Crosby, 36 Me. 562 254 
 
 V. Hill, 9 Dana, 67. 119 
 
 Bryson «. Whitehead, 1 Sim. & 
 
 Stu. 74 181,182 
 
 Buck ». Buck, 60 111. 242 157 
 
 t). First Nat. Bank of Paw 
 
 Paw, 27 Mich. 293.... 117 
 «. Hermance, 1 Blatchf . 322 369 
 
 V. Hughes, 127 Ind. 46 161 
 
 Buckingham v. Ludlum, 2 Cent. 
 Rep. 197. 40 N. J. Eq. 
 
 422 11 
 
 Buckland v. Rice, 40 Ohio St. 526 2 
 B 
 
 Buffalo Lubricating Oil Co. v. 
 
 Everest, 30 Hun, 586. 407 
 «. Standard Oil Co. ,42 Hun. 
 
 153, 106 N. Y. 669, 8 
 
 Cent. Rep. 667 405, 407 
 
 Buford V. Louisville & N. R. Co., 
 
 82Ky. 286 5 
 
 Bullard v. Smith, 139 Mass. 492. 42 
 
 Bunn V. Guy, 4 East, 190.. 172 
 
 V. Riker, 4 Johns. 436 64 
 
 V. Winthrop, 1 Johns. Ch. 
 
 329. 1 L. ed. 159 9 
 
 Burbage v. Windley, 12 L. R. A. 
 
 409,108N.C. P57-.6, 24, 28 
 Burk V. State, 2 Harr. & J. 426.. 419 
 Burke v. Child (Trist v. Child), 88 
 
 U. S. 21 Wall. 441, 22 
 
 L. ed. 623 106, 110, 286 
 
 73. Greene, 2 Ball & B. 521. 120 
 Burkbolder v. Beetem, 65 Pa. 496 
 
 6, 67, 116 
 Burlington, C. R. & N. R. Co. v. 
 
 Northwestern Fuel Co. 
 
 31 Fed. Rep 652 67 
 
 Burlock «. Taylor, 16 Pick. 335. 90 
 Burnet v. Bisco, 4 Johns. 235 ... 6 
 Burr V. Wilcox, 13 Allen, 273... 19 
 
 Burt V. Myer, 71 Me. 467 58 
 
 V. Place, 6 Cow. 431 137 
 
 Bushell ^.jBeavan, 1 Bing. N. C. 
 
 110 6 
 
 Butchers U. S. H. & L. S. L. Co. 
 
 V. Crescent City L. S. 
 
 L. &S. H. Co., Ill U. 
 
 S. 764, 28L. ed. 589-- 213 
 Butler v. American Toy Co., 46 
 
 Conn. 136 244 
 
 V. Burleson, 16 Vt. 176.-164, 169 
 
 Butterfield v. Staton, 44 Miss. 36. 150 
 
 V. Windle, 2 East. 385.... 105 
 
 Butts T. Wood, 37 N. Y. 318 284 
 
 Buxton v. Hamblen, 32 Me. 448.. 81 
 
 Byrd «. Odem, 9 Ala. 755 119 
 
 Buzard v. First Nat. Bank of 
 
 Greenville, 67 Tex. 83 247 
 V. McAnulty, 77 Tex, 438. 247 
 
 C. 
 
 6-; 
 
 Caldwell v. Bridal. 48 Iowa, 15.. 
 v. Wentworth, 14 N. H. 431 
 
 68, 72 
 California Steam Nav. Co. v. 
 
 Wright, 6 Cal. 258... 171 
 Calkins v. Long, 22 Barb. 97, 98, 
 
 103, 106 154, 155, 158 
 
 Call V. Calef, 13 Met. 362 124 
 
 Callagan v. Hallett, 1 Cai. 104-.. 146 
 Callahan v. Donnollv, 45 Cal. 152. 
 
 13 Am. Rep. 172 1G2
 
 XVI 
 
 CASES CITED. 
 
 Cambioso v. Mafifett, 2 Wash. C. 
 
 C.98.. ....116, 137 
 
 Camden & A. R. Co. v. May's 
 
 Lauding & E. H. C. R. 
 
 Co.,4Cent. Rep.801,48 
 
 N. J. L. 530 148, 264 
 
 Cameron v. Durkheim, 55 N. Y. 
 
 425_..- 44 
 
 Cammack v. Lewis. 82 U. S. 15 
 
 Wall. 043, 21 L. ed. 
 
 244 26, 27 
 
 Campbell v. Com. , 84 Pa. 187 ... . 426 
 ®. New England Mut. L. 
 
 Ins. Co., 98 Mass. 381. 28 
 Canal Fund Comrs. v. Perry, 5 
 
 Ohio, 58- 8 
 
 Cannan v. Bryce, 8 Barn. & Aid. 
 
 179.. 5, 6, 50,68 
 
 Cannell v. Smith (Pa.) 12 L. R. A. 
 
 395 65 
 
 Cannon v. Slate (Tex. App.)Nov. 
 
 26,1890 413 
 
 Canton Masonic Mut. Benev. Soc. 
 
 V. Rockhold, 26 111. 
 
 App. 141 137 
 
 Cantu V. Bennett, 39 Tex. 303... 88, 98 
 Card V. State, 7 West. Rep. »1, 
 
 109 Ind. 415.. -422, 423, 426 
 Cardigan v. Page, 6 N. H. 183... Ill 
 Cardwell v. Sprigg, 7 Dana, 36.. 119 
 Carew ». Rutherford, 106 Mass. 
 
 1 313 317 
 
 3387383, 404, 407, 408 
 Carletonw.Whitcher, 5 N. H. 196 111 
 V. Woods, 28 K H. 290... 203 
 Carman v. Maloney (D. C.) 9 Cent. 
 
 Rep. 520 108 
 
 V. Noble, 9 Pa. 371 21 
 
 Carpenter v. Osborn, 3 Cent. Rep. 
 
 804, 102N. Y. 552..156, 158 
 V. Providence Wash. Ins. 
 
 Co., 41 U. S. 16 Pet. 
 
 495, lOL. ed. 1044 ... 93 
 
 «. Scott, 13 R. L 477 252 
 
 Carr v. Tabor Boiler Works, 15 
 
 Fed. Rep. 436 290 
 
 Carrigan v. Lycoming F. Ins. Co., 
 
 53Vt. 418. 204 
 
 Carrington v. People, 6 Park. 
 
 Crira. Rep. 336 315, 422 
 
 Carroll ®. Giles, 4 L. R. A. 154, 
 
 30 8. C. 412.... 172 
 
 V. Hicks, 10 Phila. 308 201 
 
 V. Holmes, 24 111. App. 
 
 453 42 
 
 Carroll Co. v. U. S., 18 Wall. 71, 
 
 21 L. ed. 771-... 93 
 
 Carrothers v. Russell, 53 Iowa, 
 
 346, a6 Am. Rep. 222 
 
 113, 114 
 
 Carson v. Murray, 3 Paige, 483, 
 500, 3 L. ed. 241, 248 
 
 153, 155, 158 
 
 Cart Wright «. McGown, 10 West. 
 
 Rep. 594, 121 111. 388. 11 
 
 Casco Bank is. Keene, 53 Me. 103 11& 
 
 Case of Monopolies, The, 11 Coke, 
 
 84 5., 87 « 
 
 212, 213, 232, 233, 286 
 Casey ». Cincinnati Typographical 
 
 Union No. 3, 12 L. R. 
 
 A. 193, 45 Fed. Rep. 
 
 135 359, 363 
 
 Cashman v. Root, 12 L. R. A. 511, 
 
 89Cal. 373 51 
 
 Cassard v. Hinman, 1 Bosw. 207, 
 
 6B0SW.8 40, ea 
 
 Cathcart v. Robinson, 30 U. S. 5 
 
 Pet. 264, 8 L. ed. 120. 93 
 
 Catoe «. Catoe, 32 S. C. 595 14a 
 
 Catskill Bank v. Gray, 14 Barb. 
 
 579 243 
 
 Catt «. Tourle,|L. R. 4 Ch. 654, 
 
 659... 164, 171,173 
 
 Cayuga County Nat. Bank «. Dan- 
 iels, 47 N. Y. 631 76 
 
 Cedar Raoids First Nat. Bank v. 
 
 ' Hendrie, 49 Iowa, 402 183 
 
 Central Ohio Salt Co. v. Guthrie, 
 
 85 Ohio St. 666, 672.. 
 107, 212, 213, 218, 219, 
 
 239, 240, 242, 279, 285, 809 
 Central R. Co. «. Collins, 40 Ga. 
 
 582 107, 240, 263, 
 
 269, 279, 284, 287 
 Central R. & Bkg. Co. v. Pettus, 
 113U. S. 116, 28L. ed. 
 915 . _ 123 
 
 V. Smith," 76' Ala? 5'72 '.'".'. 
 
 242, 243, 247 
 
 «. State, 54 Ga. 401 263 
 
 Central Shade Roller Co. «. Cush- 
 man, 3 New Ens:. Rep, 
 
 505, 143 Mass. 353 
 
 183, 185, 196 
 Chadwick v. Collins, 26 Pa. 138. 85 
 Chalfant v. Payton, 91 Ind. 202.. 158 
 Chamberlain v. Smith, 44 Pa. 431 251 
 
 V. Winn, 1 Wash, 501 14 
 
 Chandlers. Johnson, 39 Ga. 85.. 141 
 Chapin ». Chapin, 135 Mass. 398 
 
 153, 156 
 Chaplin ». Brown (Iowa) 12 L. R. 
 
 A. 423 177 
 
 Chapman B. Gray, 8 Ga. 341 155 
 
 Chappel V. Brockway, 21 Wend. 
 
 157,159 165,167, 
 
 171, 174, 195, 202,285 
 Charlesworth v. Holt, 43 L. J. S. 
 
 Exch. 25 156
 
 CASES CITED. 
 
 XVU 
 
 Charlton v. Newcastle & C. R. 
 Co., 5 Jur. N. S. 1096, 
 1097 106,243, 247, 273 
 
 Chenango Bridge Co. v. Bing 
 hamton (Binghamton 
 Bridge) 70 U. «. 3 Wall. 
 51. 18 L. ed. 137 229 
 
 Cheney v. Duke, 10 Gill & J 11 . . 141 
 
 Chesapeake & O. Canal Co. v. Bal- 
 timore & O. R. Co., 4 
 Gill & J. 106 281 
 
 Chesman v. Nainby, 2 Strange, 
 739, 2 Ld. Raym. 1456 
 
 165, 172 
 
 Chester County v. Barber, 97 Pa. 
 
 455 ..-- 125 
 
 Chester Glass Co. v. Dewey, 16 
 
 Mass. 94 145 
 
 Chetwynd v. Lindon, 2 Ves. Sr. 
 
 450 307 
 
 Chicago V. Rumpff, 45 111. 90 
 
 212,213, 232 
 
 Chicago & A. R. Co. «. Derkes, 1 
 West. Rep. 555, 103 
 Ind. 520 144 
 
 Chicago Bldg. Soc. v. Crowell, 65 
 
 111.453 148 
 
 Chicaco, etc. R. Co. ■«. Atty-Gen., 
 
 9 West. Jur. 347 365 
 
 Chicago Gaslight & C. Co. v. 
 People's Gaslight & C. 
 Co., 11 West. Rep. 63, 
 
 69, 121 111. 530 
 
 207, 208, 209, 233. 239, 
 
 280, 284, 286 
 
 Chicago L. Ins. Co. v. Needles, 
 113 U.S. 574,28L. ed 
 1084 281 
 
 Chicago Marine Bank v. Wright, 
 
 48N. Y. 1-. .--- 76 
 
 Chicago, P. & S. W. R.Co. v. Mar- 
 seilles, 84 111. 643 286 
 
 Chicago, St. L. & N. O. R. Co. v. 
 Pullman Southern Car 
 Co., 139 U. S.79, 35 L. 
 ed. 97.... 172 
 
 Chichester v. Vass. 1 Munf . 98 . . . 151 
 
 Chicora Co. ■v. Crews, 6 S. C. 243 282 
 
 Childe V. North, 1 Keb. 203... 298, 333 
 
 Chippewa Valley & S. R. Co. «. 
 Chicago, St. P. M. & 
 O. R. Co. 6 L. R. A. 
 601. 75 Wis. 224 134 
 
 Christie v. Sawyer, 44 Wis. 233.. 294 
 
 Church V. Becker. 115 N. Y. 562 120 
 t. Muir, 33N. J. L. 318... 2 
 V. Schoonmaker, 115 N. Y. 
 
 570... -- 120 
 
 Churchill v. Bradley, 2 New Eng. 
 
 Rep. 491, 58Vt. 403-.17, 18 
 
 Churchill «. Perkins, 5 Mass. 541. 
 
 107, 109 
 Chy Lung v. Freeman, 92 U. S. 
 
 275, 23 L. ed. 550 220 
 
 Cigar Makers Prot. Union v. Con- 
 haim, 3 L. R. A. 125, 
 
 40 Minn. 243 2 
 
 Citizens Gas & Min. Co. v. El- 
 wood, 14 West. Rep. 
 
 92, 114 Ind. 3S2 
 
 280, 231, 232 
 
 Claflin V. Toriina, 56 Mo. 369. .. . 69 
 
 Claridge v. Hoare, 14 Ves. Jr. 59. 323 
 
 Clark V. Barnes. 72 Iowa, 563 ... 247 
 
 «. Fo.sdick, 6 L. R. A. 132, 
 
 118 N. Y. 7 -.-156, 158, 161 
 
 V. Hay ward, 51 Vt. 14 76 
 
 V. Herrins:, 5 Binu. 33 8 
 
 V. Jones, So Ala. 127 1 1 
 
 v. Lynch, 4 Daly, 83 76 
 
 «. Ricker, 14 N. H. 144... 205 
 «. State, 28 Tex. App. 189. 426 
 Clarke v. Foss, 7 Biss. 540... 40, 42, 47 
 v. White, 37 U. S. 12 Pet. 
 
 178, 199, 9 L. ed. 1046 69 
 
 Clary «. Com., 4 Pa. 210 
 
 310, 325, 326, 329 
 
 Clay V. Allen, 63 Miss. 426 58 
 
 Clifford V. Brandon, 3 Campb. 358 
 
 307, 315, 317, 319 
 Clift V. Barrow. 10 Cent. Rep. 
 
 715, 108 N.Y. 187.--. 247 
 
 Clinton v. Estes, 20 Ark. 216 315 
 
 Clippinger v. Hepbaugh, 5 Watts 
 
 &S. 315-.: 110 
 
 Cleaveland v. State, 34 Ala. 254-- 341 
 Cleveland, C. C. & L R. Co. v. 
 Closser. 9 L. R. A. 754, 
 126Ind. 348.-.2, 6, 136, 243 
 Cleveland Paper Co. v. Courier 
 
 Co., 67 Mich. 152 244 
 
 Cobb V. Cowdery, 40 Vt. 25 8 
 
 V. Prell, 15 Fed. Rep. 774, 
 22 Am. L. Reg. N. S. 
 
 609, and note 
 
 39, 41, 49, 57, 426 
 Cobbs V. Hixson, 4 L. R. A. 682, 
 
 note, 75 Mich. 260.. 113, 136 
 Coburn v. Odell, 30 N. H. 540. . 204 
 Cockiell v. Thompson, 85 Mo. 510 
 
 39, 40, 41, 48 
 Coddington v. Bay, 20 Johns. 637 98 
 Codman v. Rogers, 10 Pick. 112. 3 
 Coe V. Columbus, P. & I. R. Co. 
 10 Ohio St. 372, 75 Am. 
 
 Dec. 518 258 
 
 V. Errol, 116 U. S. 517, 29 
 
 L. ed. 715... ..- 222 
 
 V. Louisville & N. R. Co. 3 
 
 Fed. Rep. 775 244, 268
 
 XVIU 
 
 CASES CITED. 
 
 Coe V. McBrown, 22 Ind. 252 256 
 
 V. New Jersey Midland R. 
 
 Co. 31 K J. Eq. 105.. 258 
 CofFman v. Young, 20 111. App. 76 53 
 Cofliug V. Kelline, S3 Ky. 649... 89 
 Cohn V. Husson, 119 N. Y. 609.. 11 
 Cole V. Berry, 42 N. J. L. 308. .. 252 
 
 V. People, 84 111. 215 
 
 64, 323, 328, 413 
 
 Collamer v. Day, 2 Vt. 144 49 
 
 Colles V. Trow City D. Co. 11 
 
 Hun, 397 2 
 
 Collins V. Blautern, 2 Wils. 341, 1 
 Smith, Lead. Cas. (8tli 
 Am. ed.) 715, 718.. 116, 204 
 «. Com. 3Serg. &R. 220.. 
 
 310, 314, 326, 415, 416 
 
 V. Hay te, 50 111. 355 381 
 
 V. Locke, L. R: 4 App. Cas. 
 
 674. 198, 309 
 
 Colmer v. Clark, 7 Mod. 230 165 
 
 Colton V. Thurland, 5 T. R. 405. 147 
 Columbus V. Columbus St. R. Co. 
 10 West. Rep. 440; 45 
 
 Ohio St. 98 18 
 
 Columbus, P. & I. R. Co. «. In- 
 dianapolis & B. R. Co. 
 
 5McLeau,450 196 
 
 Commiskey v. Williams, 2 West. 
 Rep. 604, 20 Mo. App. 
 
 606 .._ 59 
 
 Com. V. Andrews, 132 Mass. 263. 414 
 V. Barnes, 132 Mass. 242 .. 417 
 ». Bearse, 132 Mass. 551.... 213 
 V. Blackburn, 1 Duv. 4.. 31 5, 319 
 ®. Bliss, 12 Pbila. 580_ .... 315 
 V. Boynton, 2 Allen, 160.. 
 
 328, 329 
 «. Callaghan, 2 Va. Cas. 460 
 
 112, 320, 321 
 V. Campbell, 7 Allen, 541 . 422 
 V. Carlisle, Bri2;lulv, 36 
 
 "591, "31 8, 335, 336 
 V. Carlisle, Journal Jurisp. 
 
 225 313, 383 
 
 ». Corlies, 8 Phila. 450, 3 
 
 Brewst. 575 
 
 314, 412, 415, 416 
 V. Crowninshield, 10 Pick. 
 
 497 315 
 
 1). Curren, 3 P it tsb' 143.337, 424 
 V. Daley. 2 Pa. L. J. 361.. 422 
 V. Davis, 9 Mass. 415... 314, 325 
 1). Domain, Brightly, 441.. 
 
 315, 412 
 r. Denny, Lewis, dim. 
 
 Law! 625 384 
 
 t\ Douglass, 5 Met. 241 ... 322 
 
 V. Dupuy, Briijhtly 44 124 
 
 V. Dyer, 128 Mass. 70 414 
 
 Com. V. Eastman, 1 Cush. 189, 
 190, 223 
 
 213, 328, 329, 413, 
 «. Foering, Brightly, 315.. 
 V. Franklin, 4 tl. S. 4 Dall. 
 
 255, 1 L. ed. 823... 321, 
 9). Fuller, 132 Mass. 563... 
 
 «. Gannett, 1 Allen, 7 
 
 'V. Gillespie, 7 Serg. & R. 
 
 469 
 
 V. Haines, 15 Phila. 363... 
 
 «. Hale, 97 Pa. 397 
 
 «. Hare, 2 Pa. L. J. 467. .. 
 
 V. Harley, 7 Met. 462 
 
 ®. Harrington, 3 Pick. 26.. 
 V. Hunt, 4 Met. Ill, 128, 
 
 Thatch. Crim. Cas. 609, 
 
 640..213. 223,313, 314, 
 
 315, 325, 328, 329, 336, 
 
 337, 338, 379, 381, 383, 
 412, 
 V. Irwing, 8 Phila. 380... 
 
 '0. Jones, 10 Bush, 725 
 
 V. Judd, 2 Mass. 329 
 
 291, 292. 310, 314, 315, 
 325, 329, 330, 414, 415, 
 v. Kingsbury, 5 Mass. 106. 
 315, 
 
 V. Knapp, 9 Pick. 496 
 
 V. Kostenbauder (Pa.) 3 
 
 Cent. Rep. 632.315,317, 
 
 V. Leeds, 9 Phila. 569 
 
 V. McGowan, 2 Pars. Eq. 
 
 Cas. 341 
 
 V. M'Kisson, 8 Serg. & R. 
 
 420 314,329, 413, 
 
 V. McLean, 2 Pars. Eq. Cas. 
 
 367 318, 
 
 V. Manson, 2 Ashm. 31 
 
 r. Meserve, 154 Mass. 64 .. 
 V. Neills, 2 Brewst. 553... 
 ®. New York, L. E. & W. 
 
 R. Co.,7L. R. A. 634, 
 
 132 Pa. 591 
 
 V. O'Brien, 12 Cush. 84 
 
 1). Philadelphia Countv 
 
 Prison Supt. 6 Phila. 
 
 169 309, 327, 
 
 t). Prius, 9 Gray, 127 
 
 V. Putnam, 29 Pa. 296 
 
 v. Richards, 131 Pa, 209.. 
 V. Ridgway, 2 Ashm. 247. 
 ^15 
 V. Shedd, 7 Cush. 514..".'' 
 328 329 
 «. Shelton, 11 Va. L. J.' 324 ' 
 V. Sheriff, 8 Phila. 645, 15 
 
 Phila. 393 319, 376, 
 
 V. Smith, 10 Allen, 448 
 
 V. Tack, 1 Brewst. 511 
 
 420 
 325 
 
 372 
 
 414 
 418 
 
 229 
 309 
 320 
 422 
 329 
 64 
 
 413 
 419 
 113 
 
 416 
 
 316 
 422 
 
 320 
 321 
 
 416 
 
 322 
 419 
 412 
 422 
 
 281 
 315 
 
 329 
 213 
 319 
 
 157 
 
 316 
 
 413 
 364 
 
 405 
 247 
 309
 
 CASES CITED. 
 
 XIX 
 
 Com. V. Tibbetts, 2 Mass. 536.-.. 
 399. 314, 316, 319, 323, 
 
 333, 416 
 
 ^^ Tibbs, 1 Dana, 525 321 
 
 V. Walker, 108 Mass. 309.. 329 
 v. Wallace. 16 Gray, 221.. 
 
 213, 314, 328, 329, 415 
 
 V. Ward, 1 Mass. 473 
 
 329, 330, 333 
 v. Warren, 6 Mass. 72, 74. . 
 
 314, 329, 333, 413, 415, 416 
 ®. Waterman, 122 Alass. 43 
 
 64, 153 
 «. White. 123 Mass. 430. .. 416 
 V. Whitehead, 2 Boston L. 
 
 R. 148 321 
 
 Compton ». Oollinson, 2 Bro. Ch. 
 
 377 155 
 
 Comstock V. Adams, 23 Kan. 513 
 
 153, 155 
 Condon v. Barr, 4 Cent. Rep. 557, 
 
 558, 49 N. J. L. 53.... 8, 11 
 Congress & E. Sprina: Co. v. 
 Knowlton, 103 U. S. 
 49.26 L. ed. 347... 146, 147 
 Conkliug V. Washington Univer- 
 sity, 2 Md. Ch. 497... 247 
 Conley v. Nailor, 118 U. S. 127, 
 
 30L. ed. 113 9 
 
 Connecticut Mut. L. Ins. Co. v. 
 Luchs, 108 U. S. 498, 
 
 27 L. ed. 800 ...26, 37 
 
 V. Schaefer, 94 U. S. 457, 
 
 24L. ed. 251 27, 28 
 
 Connell v. Reed, 128 Mass. 477 .. 2 
 Conner ». Robertson, 37 La. Ann. 
 
 814, 55 Am. Rep. 521.39,42 
 Connor v. Kent (1891) Week. 
 
 Notes (English) 154. . . 340 
 Conover v. Stillwell, 34 N. J. L. 
 
 54 19 
 
 Conrad v. Long, 33 Mich. 78 
 
 159. 160 
 «. Waples, 96 U, S. 279, 24 
 
 L. ed. 721 103 
 
 Converse v. Norwich & N. Y. 
 Transp, Co., 33 Conn. 
 
 166.... 244 
 
 Conway v. Alexander, 11 U. S. 7 
 Cranch, 218, 3 L. ed. 
 
 321 254 
 
 Cook V. Bradley. 7 Conn. 57 8 
 
 1). Brown, 125 Mass. 503 .. 323 
 V. Johnson, 47 Conn. 175, 36 
 
 Am. Rep. 64.. .164, 170, 172 
 
 V. Phillips, 56 ISr. Y. 310.. 64 
 
 V. Sherman, 4 McCrary, 33 148 
 
 Coon «. Wood, 7 Bost. L. R. 58.. 299 
 
 Cooper V. Neil, Weekly Notes, 
 
 June 1,1878 50 
 
 Cooper V. Reilly, 2 Sim. 560 113 
 
 V. Shaeffer (Pa.) 9 Cent. 
 
 Ret>. 601 27,31, 35 
 
 V. Twibill, 3 Campb. 286. 
 
 note 164 
 
 Cooper Mfg. Co. v. Ferguson, 113 
 
 U. S.727,28L.ed.ll37 68 
 Coquillard v. Bearss, 21 Ind. 479 
 
 110, 119 
 Copeland v. Boaz, 9 Baxt. 223... 153 
 Coppell v. Hall, 74 U. S. 7 Wall. 
 
 542, 19L. ed. 244 ...67, 140 
 Coppock v. Bower, 4 Mees. & W. 
 
 361 112 
 
 Cord V. State, 7 West. Rep. 81, 
 
 109 Ind. 415 421 
 
 Cordwainer's Case, The, 1 Yates. 
 
 Sel. Cas. 113 408 
 
 Cord & Y. R. Co., E£, L. R. 4 Ch. 
 
 App. 748 67 
 
 Corley v. Williams. 1 Bail. L. 588 116 
 Corning ®. Abbott, 54 N. H. 469. 85 
 Corson v. Garnier (Pa.) 4 Cent. 
 
 Rep. 308 26, 27, 37 
 
 Corson's App., 4 Cent. Rep. 307, 
 
 113 Pa. 438.. .36. 27 
 
 Cosmopolite, The, 4 C. Bob. 8._. 103 
 Cottage St. M. E. Church v. Ken- 
 dall, 121 Mass. 528 15 
 
 Gotten v. McKenzie, 57 Mi.ss. 418 141 
 Coughlin V. New York Cent. & 
 
 H.R.R.Co.,71N.Y.443 123 
 Coup «. Wabash, St. L. & P. R. 
 
 Co., 56 Mich. Ill 99 
 
 Courtwright v. Strickler, 37 Iowa, 
 
 382 133 
 
 Covington «. Threadgill, 88 N. C. 
 
 186 .- 28, 141 
 
 Craft V. McConouchy, 79 111. 346, 
 
 22 Am. Rep. 171 
 
 107, 138, 166, 186, 207, 
 
 213, 213. 218, 219, 233, 
 
 235, 239, 240, 243, 279, 
 
 284, 309. 310 
 Cragin t>. New York Cent. R. Co., 
 
 51 N. Y. 61 94 
 
 Craig V. Missouri, 29 U. «. 4 Pet. 
 
 410, 431, 7 L. ed. 903, • 
 
 910 6, 67. 137 
 
 Crandall ®. Nevada, 73 U. S. 6 
 
 Wall. 39, 18 L. ed. 745 220 
 Cranson v. Goss, 107 Mass. 439.. 68, 79 
 Crary v. Sprague, 13 Wend. 41.. 419 
 Crawford i\ Harlow, 10 West. 
 
 Rep. 78, 92 ]\Io. 498, 1 
 
 Am. St. Reo. 745, and 
 
 note ...39,40, 41 
 
 « Russell. 62 Barb. 92-_153, 158 
 V. Wick, 18 Ohio St. 190.. 
 
 164, 166, 313, 318, 339
 
 XX 
 
 CASKS CITED. 
 
 Critcher v. Holloway,64 N. C. 526 5 
 
 Crist V. Kleber, 79 Pa. 290 251 
 
 Crisup V. Grosslight, 79 Mich. 380 117 
 Cropsey v. McKinney, 30 Barb. 47 155 
 
 Cross ■y. Bloomer, 6 Baxt. 74 125 
 
 V. Cross, 58 N. H. 378.. 153, 155 
 Crumlish v. Wilmington & W. R. 
 
 Co., 5 Del. Ch. 270... 116 
 
 Crump «. Com., 84 Va. 927 410 
 
 Cumberland Valley R.Co. v. Baab, 
 
 9 Watts, 458. 108, 133 
 
 Cummings v. Henry, 10 Ind. ]09 55 
 t\ Saux. 30 La. Ann. 207.. 110 
 Cummins v. Com. 81 Ky. 465... 315 
 Cunningham «. Augusta Nat. 
 
 Bank. 71 Ga. 400 41 
 
 V. Butler, 2 New Eug. Rep. 
 
 338, 142 Mass. 47 87, 90 
 
 v. Cunningham, 18 B. Mon. 
 
 19 110 
 
 «. Smith, 70 Pa. 450 28 
 
 Currier v. Concord R. Corp. 48 N. 
 
 H. 321 264 
 
 V. Knapp, 117 Mass. 324.. 
 
 252 254 
 Curtis V. Gokey, 68 N.T. 300, 304"' 
 
 109, 166, 199 
 CusHck V. White, 2 Mill. L. 284. 6 
 Cutler V. Welsh, 43 N. H. 497.-. 5 
 
 D. 
 
 Daggett «. Daggett, 5 Paige, 509, 
 
 3 L.^ed. 808, 28 Am. 
 
 Dec. 442 153 
 
 Dahms v. Sears, 13 Or. 47 119 
 
 Daimouth v. Bennett, 15 Barb. 541 116 
 Dalby v. India & L. L. Assur. Co., 
 
 15C. B. 365 38 
 
 Dalpay, Be (Minn.) 6 L. R. A. 108 86 
 Dalton City Co. d. Dal ton Mfg. 
 
 Co. 33 Ga. 243 244, 247 
 
 Danforth v. Streeter, 28 Vt. 490. 120 
 Daniels v. McGinuis, 97 Ind. 549. 
 
 422, 426 
 «. Willard, 16Pick. 36.... 90 
 
 Darst v. Gale, 83 111. 137 148 
 
 Dartmouth College «. Woodward, 
 
 17 U. 'S. 4 Wheat. 826, 
 
 4L. ed. 656 242 
 
 Davenport v. Lynch, 51 N. C. 545 319 
 Davidson v. Bohlraan, 37 Mo. 
 
 App. 576 71 
 
 Davies v. Davies. L. R. 36 Ch. 
 
 Div. 359, 364,381,396, 
 
 397,398 16:3, 197, 202 
 
 V. Davies, 56 L. J. Ch. 481, 
 
 35 West. Rep. 607, 697 
 
 163, 171 
 Davis 1). Davis, 119 Ind. 511 42, 53 
 
 Davis V. Gemmell (Md.) 9 Ry. & 
 
 Corp. L. J. 442. 13" 
 
 V. Marlborough, 1 Swanst. 
 
 74.. 112 
 
 V. Mason, 5 T. R. 118-.165, 201 
 
 v. Seeley, 71 Mich. 209 309 
 
 Dawkins v. Gill, 10 Ala. 206.. 116, 117 
 Dawson v. Merrille, 2 Neb. 119.. 80 
 Day ». Brownrigg, L. R. 10 Ch. 
 
 Div. 294. 408 
 
 V. Gardner, 5 Cent. Rep. 
 
 630, 42 N.J. Eq. 199.. 18, 17 
 
 V. Stuart, 6 Bing. 109 54 
 
 Dean v. Emerson, 102 Mass. 480. 
 
 163. 165, 171, 201, 205 
 Deaver v. Bennett, 29 Neb. 812.. 59 
 De Barante v. Gott, 6 Barb. 497.. 151 
 Deering v. Chapman, 22 Me. 488 204 
 De GroflE v. American Linen 
 
 Thread Co., 21 N. Y. 
 
 124. m 
 
 De Groot v. Van Duzer, 17 Wend, 
 
 170, 20 Wend. 398. ..85, 137 
 
 Dehon v. Foster, 4 Allen, 545 87 
 
 Delavina d. Hill, 65 N. H. 94.... 72 
 Delmas v. Merchants Mut. Ins. 
 
 Co., 81 U. S. 14 Wall. 
 
 661, 20 L. ed. 757.... 92, 93 
 Delz V. Winfree, 80 Tex. 400.. 307, 316 
 Dement v. Bonham, 26 III. 158 .. 4 
 De Mers v. Daniels, 39 Minn. 158 70 
 Deming v. Merchants Cotton Press 
 
 & S. Co. (Tenn.) 18 L. 
 
 R. A. 518 143 
 
 Den V. Johnson, 18 N. J. L. 87.. 317 
 Denison v. Crawford Co. , 48 Iowa, 
 
 215 108 
 
 Dennis v. Piper, 21 111. App. 169. 12 
 Denny v. Lincoln, 5 Mass. 385... 107 
 Dent V. Ferguson, 132 U. S. 50, 
 
 33 L. ed. 242 139. 140 
 
 Denver & N. O. R. Co. v. Atchi- 
 son, T. &8. F.R. Co., 
 
 13 Fed. Rep. 546, 15 
 
 Fed. Rep. 650, 17 Fed. 
 
 Rep. 667, 4 McCrary, 
 
 325 ..: 244, 262 
 
 Denver F. Ins. Co. v. McClelland, 
 
 9 Colo. 11 148 
 
 Depeau v, Waddington, 6 Whart. 
 
 220...... 14 
 
 De Rutte v. Muldrow, 16 Cal. 505 260 
 De Saint Germain v. Wind, 3 
 
 Wash. Terr. 189 252 
 
 Desmare ■». United States, 93 U. 
 
 S. 605, 23 L. ed. 959, 
 
 10 Ct. CI. 393 101, 102 
 
 Des Moines St. R. Co. v. Des 
 
 Moines, B. G. St. R. 
 Co., 73 Iowa, 513 232
 
 CASES CITED, 
 
 XXI 
 
 De Tastet v. Taylor, 4 Taunt. 248 104 
 Devecmon v. Shaw, 12 Cent. Rep. 
 
 888, 69 Md. 199 16 
 
 Devlin v. Brady, 36 N. Y. 581... 107 
 Dewees v. Miller, 5 Harr. (Del.) 
 
 347 51 
 
 De Wit V. Kander, 72 Wis. 120.. ^ 67 
 De Witt Wire Cloth Co. v. New 
 
 Jersey Wire Cloth Co., 
 
 9 Ry. & Corp. L. J. 
 
 314_. -. 219 
 
 Diamond Match Co. v. Powers,- 51 
 
 Mich. 145.. 289 
 
 «. Roeber, 9 Cent. Rep. 
 
 181, 106 N. Y. 473, 35 
 
 Hun, 431 -...167, 169, 
 
 171, 174-177, 195, 196, 
 
 198, 199, 202 
 Dickenson v. Devlin, 14 Jones i& 
 
 S. 232 125 
 
 Dickerson «. Davis, 9 West. Rep. 
 
 680, 111 lud. 433 22 
 
 V. Pyle, 4 Phila. 259 123 
 
 Dickson v. Thomas, 97 Pa. 278.. 51, 61 
 
 Dilliu2:er's App., 35 Pa. 357 155 
 
 Dillon ®. Allen, 46 Iowa. 299 6 
 
 V. Barnard, 88 U. S. 21 
 
 Wall. 430, 22 L. ed. 673 255 
 Dinsmore v. Racine & M. R. Co., 
 
 12 Wis. 649 255 
 
 Dist. Atty. V. Lynn & B. R. Co., 
 
 16 Gray, 245 219, 222 
 
 Dixon V. Olmstead, 9 Vt. 310 116 
 
 Dodge V. Adams, 19 Pick. 429... 8 
 Doghead Glory v. State, 13 Ark. 
 
 236 315 
 
 Dolph V.Troy Laundry Mach.Co., 
 
 28 Fed. Rep. 553 164 
 
 Dolson V. Hope, 7 Kan, 161 81 
 
 Domestic Sewing Mach. Co. v. 
 
 Anderson, 23 Minn. 57 
 
 252, 255 
 Donallen v. Lennox, 6 Dana, 91 . 204 
 Dopier V. Feigel, 40 La. Ann. 848 19 
 
 Dorsey v. Pike, 50 Hun, 534 21 
 
 Dorwin v. Smith, 35 Vt. 69... 119, 294 
 Doty V. Wilson. 14 Johns. 381... 107 
 Douglass V. Pike Co., 101 U. S. 
 
 685, 25 L. ed. 971 93 
 
 V. Smith, 74 Iowa, 468 57 
 
 V. Wood, 1 Swan, 393 118 
 
 Dowd V. Clarke, 54 Cal. 48 260 
 
 Downey v. Hoffer, 16 W, N. C, 
 
 185 26 
 
 Drennan v. Douglas, 102 111. 341. 64 
 Dresser Mfg. Co. «, Watterston, 3 
 
 Met. 9 76 
 
 Drucker v. Wellhouse, 2 L. R. A. 
 
 328, 83 Ga. 129 91 
 
 Dubos V. Hoover, 25 Fla. 720. .. . 247 
 
 Dubuque & S. C. R. Co. v. Rich- 
 mond, 86 U. S. 19 Wall. 
 
 584, 22 L. ed. 173 196 
 
 Dudgeon v Pembroke, L. R. 9 
 
 Q. B 581 5 
 
 Dudley v. Suddoth, 91 Ala. 349.. 183 
 
 Duflfey's Case, 1 Lew. 194 423 
 
 Duffield's Case, 5 Cox, C. C. 404. 303 
 
 Dufify V. Shockey, 11 Ind. 70.... 164 
 Dugan «. Gittings, 3 Gill, 138, 43 
 
 Am. Dec. 312... 151 
 
 Duignan v. Walker, 33 L. T. 256 170 
 
 Duke V. Asbee, 11 Ired. L. 112... 28 
 
 Dumont «. Dufore, 27 Ind. 263.. 64 
 DuBcanson v. M'Lure, 4 U. S. 4 
 
 Dall. 308, 1 L. ed. 855 136 
 Dunham «. Cincinnati, P. & C. 
 
 R.Co.,68U. S. 1 Wall. 
 
 254, 17 L. ed. 584 255 
 
 V. Presby, 130 Mass. 285.. 67 
 
 Dunkin v. Hodge, 46 Ala. 533... 117 
 
 Dunlap V. Rogere, 47 N. H. 281. 87 
 Dunlop V. Gregory, 10 N. Y. 241. 
 
 165", 167, 170, 171, 174, 202 
 
 Dunn V. Bell, 85 Tenn. 581 43, 63 
 
 Dupre V. Rein, 56 How. Pr. 230, 
 
 7 Abb. K C. 256 ..155, 158 
 
 Durant v. Burt, 98 Mass. 161 57 
 
 V. Titley, 7 Price, 577 158 
 
 Durgin v. Dyer, 68 Me. 143 6 
 
 Durkee v. Gunn, 41 Kan. 496... 248 
 Dutchman v. Tooth, 5 Bing. N. 
 
 C. 577 18 
 
 Duval V. Wellman, 124 N. Y. 156 152 
 Dwight V. Hamilton, 113 Mass, 
 
 175 169 
 
 Dyett V. Pendleton, 8 Cow. 727.. 64 
 
 E. 
 
 Eagle v. Kohn, 84 111. 292. 54 
 
 East India Co. v. Sandys, 10 How. 
 
 St. Tr..371 238 
 
 East Tennessee, V. & G. R. Co. v. 
 
 Frazier, 139 U. S. 288. 241 
 Eastern PI. R. Co. «. Vaughan, 
 
 14 K Y. 546 289 
 
 Eaton V. Littlefield, 6 Kew Eng. 
 
 Rep. 341, 147 Mass. 123 69 
 Ebling V. Bauer, 17 Week. Dig. 
 
 497... 174 
 
 Edgell «. McLaughlin, 6 Whart. 
 
 176 -.6,49,61 
 
 Edgerly v. Bush, 81 N. Y. 199... 90 
 Edmonds v. Blaiua Furnaces Co., 
 
 L. R. 36 Ch. Div. 215. 258 
 Edwards v. Dick, 4 Barn. & Aid. 
 
 312 54 
 
 V. Grand Junction R. Co., 
 
 1 Mvl. &C. 650 110
 
 XXll 
 
 CASES CITED. 
 
 Edwards v. Hoeffinghoflf, 38 Fed. 
 
 Rep. 635 39, 42, 48, 61 
 
 V. Tandy, 36 K H. 540.-. 13 
 V. Trustees of Schools, 30 
 
 111. Apa 528 83 
 
 Egan «. Russ, 39 La. Ann. 967.. 141 
 Egerton v. Brownlow, 4 H. L. 
 
 Cas. 1-250 18 Jur. 71.65, 85 
 
 Ehle 1). Judson, 24 Wend. 97 8 
 
 Eilenbecker v. Plymouth County 
 
 Dist. Ct. 134 U. S. 31, 
 
 33L. ed.801 222 
 
 Eisner v. Heileman, 9 L. R. A. 96, 
 
 52K J. L. 378 140 
 
 Elevator Co. v. Memphis & C. R. 
 
 Co. 85 Tenn. 703 243 
 
 Elkin V. People, 28 N. Y. 177-.318, 323 
 Elkins V. Camden & A. R. Co., 
 
 36 N. J Eq. 5 269 
 
 «. Parkhurst, 17 Vt. 105.. 68 
 Elliott V. McClelland, 17 Ala. 206 125 
 V. Richardson, L. R. 5 C. 
 
 P. 744 69 
 
 Elston «. Castor, 101 Ind. 426 ... 11 
 Elting V. Vauderlyn, 4 Johns. 237 14 
 Elves V. Crofts, 10 C. B. 241 .... 201 
 El well V. Grand St. & K R. Co., 
 
 67 Barb. 83 256 
 
 Ely V. Niagara County Supers., 
 
 ■36N. Y. 297 65 
 
 Emack v. Kane, 34 Fed. Rep. 47 
 
 364, 365 
 Emanual's Case, 6 City Hall Rec, 
 
 33 319, 411 
 
 Embrey v. Jemison, 131 U. S. 
 
 338, 33 L. ed. 172 .... 
 
 41, 42, 45, 63 
 Emery v. Ohio Candle Co., 47 
 
 Ohio St. 320 234 
 
 Emmittsburg R. Co. v. Donoghue, 
 
 9 Cent. Rep. 69, 67 Md. 
 
 383 17 
 
 Enlow V. Klein, 79 Pa. 488 251 
 
 Equitable L. Assur. Soc. v. Hazle- 
 
 wood (Tex.) 7 L. R. A. 
 
 219 28 
 
 Erie R. Co. v. Union L. & Exp. 
 
 Co., 35N. J. L. 240-. 141 
 
 Evans v. Bell, 6 Dana, 479 119 
 
 V. Hughes County, 6 Dak. 
 
 162 232 
 
 V. Matson, 56 Pa. 54 419 
 
 V. People, 90 III. 384 ...329, 417 
 Evansville & T. H. R. R. Co. v. 
 
 Erwin,84Ind. 457... 76 
 Everel W.Williams, 2 Pothier, Obi. 
 
 (Evans's ed.) p. 3, ?iote a 5 
 
 Everett v. Hall, 67 Me 497 255 
 
 Eveihart v. Puckett, 73 Ind. 409 
 
 153, 155, 204 
 
 Everingham v. Meigham, 55 Wis. 
 
 354 63 
 
 Ewing V. Johnson, 34 How. Pr. 
 
 202 167 
 
 Exposito V. Bowden, 7 El. & Bl. 
 
 779 101 
 
 F. 
 
 Faiknay « Reynous, 4 Burr. 2069 146 
 Fairbank v. Leary, 40 Wis. 637. . 309 
 Faircloth v. DeLeou, 81 Ga. 158. 70 
 Fairfax v. Hunter, 11 U. S. 7 
 
 Cranch, 603, 3 L. ed. 
 
 453... 103 
 
 Fairfield v. Gallatin Co., 100 U. 
 
 S. 53, 25L. ed. 546... 93 
 Fall River Iron Works Co. v. 
 
 Croade, 15 Pick. 11... 87 
 
 Falls' App., 91 Pa. 534 2- 
 
 Fanshor v. Stout, 4 N. J. L. 319. 107 
 
 Fareira v. Gabell, 89 Pa. 89 61 
 
 Fargo V. Stevens, 121 U. S. 230, 
 
 30L. ed. 888 221 
 
 Farlow». Ellis, 15 Gray, 229.. 76, 254 
 Farmer v. Russell, 1 Bos. & P. 
 
 296 ..84, 146 
 
 Farmers Loan & T. Co. «. Cary, 
 
 13 Wis. 110 255 
 
 V. Commercial Bank, 11 
 
 Wis. 207, 15 Wis. 424. 255- 
 Farrer v. Close, L. R. 4 Q. B. 612 
 
 338, 340 
 
 Faulds V. Yates, 57 111. 416 2 
 
 Faulkner v. Hyman, 2 New Eng. 
 
 Rep. 181, 142 Mass. 53 
 
 87, 91 
 
 Fay v. Oatley, 6 Wis. 42, 59 116 
 
 Fayle v. Bourdillon, 3 Taunt. 546 104 
 Fechheimer v. Baum, 43 Fed. 
 
 Rep. 719 6^ 
 
 Feineman v. Sachs, 33 Kan. 621. 55 
 Feldman v. Gamble, 26 N. J. Eq. w 
 
 494. 69 
 
 Fennell v. Ridler, 5 Barn. & C. 
 
 406... 7» 
 
 Fensler v. Prather, 43 Ind. 119 .. 12 
 
 Fenton v. Ham, 35 Mo. 409 2 
 
 Ferguson «. Norman, 5 Bing. N. 
 
 C. 76. 6 
 
 Ferris v. Adams, 23 Vt. 136.. .111, 126 
 
 Field V. Post, 38 N. J. L. 346 258- 
 
 Fiese v. Bell, 4 Taunt. 4 104 
 
 Filson V. Himes, 5 Pa. 452 
 
 110. Ill, 141 
 First Nat. Bank v. Shaw, 61 N, 
 
 Y. 283 88- 
 
 of Creston v. Carroll, 8 L. R. 
 
 A. 275, 80 Iowa, 11--- 57
 
 CASES CITED. 
 
 XXUl 
 
 First Nat. Bank of Lyons v. 
 Oskaloosa PackingCo. , 
 
 66 Iowa, 41 41, 43, 57 
 
 Snlem ». Anderson, 75 Va. 250 255 
 
 First Presb. Cburcli v. Cooper, 3 
 L. R. A. 468, 112 K 
 T. 517 11, 108 
 
 Fishel V. Bennett, 5 New Eng. 
 
 Rep. 615, 56 Conn. 40. 72 
 
 Fisher v. Apollinaris Co., L. R. 
 
 10 Cli. 297 116 
 
 «. Bush, 35 Hun, 641 -..165, 309 
 V. Lord, 2 New Eng. Rep. 
 
 285, 63 K H. 514.... 55, 72 
 Fisk t. Townsend, 7 Yerg. 146.. 17 
 Fitch «. Jones, 5 El. & Bl. 288.. 50 
 Fitzell i\ Leakv, 72 Cal. 477 .... 248 
 Fivaz V. Nicholls, 2 C. B. 501... 64 
 Flagg V. Baldwin. 38 N. J. Eq. 
 
 219 40,42, 59, 61 
 
 V. Gilpin, 17 R. L .... 62 
 
 Fleckner v. Bank of United States, 
 
 11 U. S. 8 Wheat. 338, 
 5L. ed.631 83 
 
 Fletcher v. Harcott, Hutlon, 56. . 64 
 V. Holmes, 25 Ind. 458.... 158 
 
 v. Orcott, 1 Selden, 56 64 
 
 Flindt V. Crockett, 15 East, 522.. 104 
 
 V. Scott, 5 Taunt. 700 104 
 
 V. Waters, 15 East, 265, 9 
 
 East, 292 105 
 
 Florentine t. Wilson, Hill & D. 
 
 303. 158 
 
 Florida v. Anderson, 91 U. S.I667, 
 
 13L. ed. 290 257 
 
 Floyd «. Goodwin, 8 Yerg. 484 .. 123 
 V. Patterson, 72 Tex. 202.-42. 62 
 Foley V. Greene, 1 New Eng. Rep. 
 
 17, 14 R. L 618!... 4, 5, 116 
 V. Speir, 1 Cent. Rep. 716, 
 
 100 N.Y. 552 111, 141 
 
 Foote V. Emerson, 10 Vt. 338 ... 2 
 Forbes «. McDonald, 54 Cal. 98. 2 
 
 V. Scannel, 13 Cal. 242 87 
 
 Ford V. Gregson, 7 Mont. 89 167 
 
 V. Harrington, 16 N. Y. 285 144 
 
 v._ Stuart, 15 Beav. 499 151 
 
 Forepaugh v. Delaware, L. & W. 
 R. Co., 5 L. R. A. 508, 
 
 128 Pa. 217 88, 93 
 
 Fores v. Johns, 4 Esp. 97 64 
 
 Forrest v. Nelson, 108 Pa. 481... 251 
 
 Forsythe v. State, 6 Ohio, 19 
 
 64, 146 
 Fort Edward & F. M. PI. Road 
 Co. 11. Payne, 15 N. Y. 
 
 583... 132 
 
 Fortenbury v. State, 47 Ark. 188. 51 
 Fosdick V. Schall, 99 U. S. 235, 25 
 
 L. ed. 339 252 
 
 Fosdick v. Southwestern Car Co. ,99 
 U. S. 256, 25 L. ed. 344 
 
 252 253 
 Foster v. Goulding, 9 Gray, 52.. ' 91 
 Fowle V. Park, 131 U. S. 88, 33 L. 
 
 ed. 67.... 170, 176, 177, 182 
 
 Fowler's App., 125 Pa. 388 89^ 
 
 Fowler's Case, 1788, 1 East, 461.. 301 
 
 Fox ». Adams, 5 Me. 245 87 
 
 ». Davis, 113 Mass. 258 155 
 
 «. Tilly, 6 Mod. 225 109 
 
 Francis v. Fiynn, 118 U. S. 385, 
 
 30L. ed. 165 363 
 
 Frank «. State, 27 Ala. 37 315, 422 
 
 Frank's App ., 59 Pa. 1 94 150 
 
 Frankfort v. Winterport, 54 Me. 
 
 250.. 110 
 
 Franklin Bank v. Commercial 
 
 Bank, 36 Ohio St. 350 287 
 Franklin Co. v. Lewiston Sav. 
 
 Inst., 68 Me. 48 
 
 284, 286, 287 
 Franklin L. Ins. Co. v. Hazzard, 
 
 41 Ind. 116 26 
 
 Frazier v. Fredericks, 24 N. J. L. 
 
 162. 87, 258 
 
 v. Thompson, 2 Watts & S. 
 
 235 : 204 
 
 Freeman «. Freeman. 43 N.Y. 34, 
 
 51 Barb. 306 16 
 
 French v. Donohue, 29 Minn. Ill 
 
 243, 244 
 Friedman «. Bierman, 43 Hun, 390 158 
 Friend v. Harrison, 2 Car. & P. 
 
 584 7 
 
 Frost v. Belmont, 6 Allen, 152. 
 
 107, 110 
 
 Frubaly v. Childe, 1 Sid. 68 319 
 
 Fuller V. Claflin, 51 Hun, 609 . . IS' 
 
 1}. Dame, 18 Pick. 472 
 
 2,68,107,110,111,126, 
 
 127, 129, 131, 152 
 ®. Steiglitz, 27 Ohio St. 355, 
 
 22 Am. Rep. 312 8T 
 
 Furtado v. Rodgers, 3 Bos. & P. 
 
 191 104, 105 
 
 G. 
 
 Gaines v. Poor, 3 Met. (Ky.) 503. 155 
 
 Galet". Leckie, 2 Stark. 107 6- 
 
 Galveston, H. & H. R. Co. v. Cow- 
 drey, 78 U. S. 11 Wall. 
 
 459, 20 L. ed. 199 255 
 
 Gamba v. Le Mesurier, 4 East, 4 07 105 
 
 Garbut v. Bowling, 81 Mo. 214.. 155 
 
 Gardiner v. Morse, 25 Me. 140. .. 234 
 Gardner v. Lightfoot, 71 Iowa, 
 
 577 19*
 
 XXIV 
 
 CASES CITED. 
 
 Gardner v. Moxey, 9 B. Mon. 90 116 
 
 V. Prestou, 2 Day, 205 322 
 
 V. Tatum, 81 Cal. 370 
 
 3, 66, 70, 84 
 13. Webber, 17 Pick. 407 .. 15 
 
 Garins: v. Eraser, 76 Me. 37 327 
 
 Gaskell «. King, 11 East, 165 204 
 
 Gaskin ®. Balls, L. R. 13 Ch. Div. 
 
 324. 408 
 
 Gaslight Co. v. Turner, 7 Scott, 
 
 779 64 
 
 Gaston v. Drake, 14 Nev. 175-. Ill, 112 
 Gato V. El Modelo Cis;ar Mfg. 
 Co., 6 L. R. A. 823, 25 
 
 Fla. 886 - 2 
 
 Gay ». Parpart. 106 U. S. 679, 27 
 
 L. ed.256 9 
 
 Geier ®. Shade, 103 Pa. 180 116 
 
 Gelpcke ®. Dubuque, 68 U. S. 1 
 Wall. 175, 22], 17 L. 
 
 ed. 520.531 141, 203 
 
 George v. East Tennessee Coal 
 
 Co., 15 Lea, 455 164 
 
 V. Harris, 4 N. H. 533 12 
 
 Georgetown v. Alexandria Canal 
 
 Co., 37 U. S. 12 Pet. 219 
 German Mut. Ins. Co. v. Grim, 32 
 
 Ind. 249 123 
 
 Gerow «. Caslello, 11 Colo. 560.. 
 
 252, 254 
 Gerrish v. Clark, 6 New Ent^. 
 Rep. 414, 64 N. H. 492 
 
 252 255 
 Gibbons «. Ogden, 22 U. S. 9 ' 
 Wheat. 1, 6 L. ed. 23 
 
 217, 219, 220 
 
 Glbbs ®. Consolidated Gas Co. of 
 
 Baltimore, 130 U. S. 
 
 396, 32 L. ed. 979, 984 
 
 28, 84, 106, 171, 200, 
 
 210, 233, 239, 241, 284 
 1). Smith, 115 Mass. 592_-105, 234 
 Gibson v. Bennett, 4 New Eug. 
 
 Rep. 412. 79 Me. 302.. 150 
 V. Dickie, 3 Maule & S. 463 7 
 
 T. State, 89 Ala. 121 421 
 
 Gil «. Williams, 12 La. Ann. 
 
 219 111 
 
 Gilbert*. Gausar, 8 Biss. 214.. 44, 148 
 V. Mickle, 4 Sandf . Ch. 357, 
 
 7L. ed. 1132 408 
 
 1). Moose, 104 Pa. 74. 27, 29 
 
 Gilchrist «. Brande, 58 Wis. 
 
 184 123 
 
 Gill V. Ferris, 82 Mo. 156 175 
 
 ®. Manchester, S. & L. R. 
 Co., L. R. 8 Q. B. 186 
 
 243, 244, 247 
 
 V. Parker, 31 Vt. 610 77, 78 
 
 Oilman v. Dwight, 13 Gray, 356. 171 
 
 Gilmanw. Jones. 4 L.R.A. 113, 87 
 
 Ala. 691 121,125, 294 
 
 1). Philadelphia, 70 U. S. 3 
 
 Wall. 725, 18 L. ed. 99 219 
 Gilmore «, Woodcock, 69 Me. 118 58 
 Girardy v. Richardson, 1 Esp. 13 84 
 Given v. Corse, 2 West. Rep. 579, 
 
 20Mo.App. 132 13, 18 
 
 v. Driges, 1 Cai. 450 109 
 
 Glass V. Beach , 5 Vt. 173 8 
 
 Gleason «. Chicago, M. & St. P. 
 
 R. Co., — Iowa, — , 
 
 Oct. 17, 18S9 139 
 
 ®. Chicago, M. & St. P. R. 
 
 Co., —Iowa, — , Feb. 
 
 7.1891...- 134 
 
 ■B. McKay, 134 Mass. 419.. 250 
 
 Glenn v. Savage, 14 Or. 567 21 
 
 Gloucester Ferry Co. v. Pennsyl- 
 vania, 114 TJ. S. 196, 29 
 
 L. ed. 158. 221 
 
 Gloucester Isinglass & G. Co. v, 
 
 Russia Cement Co. 
 
 (Mass.)12L. R. A. 563 
 
 183, 238, 261 
 Glover v. Pavn, 19 Wend. 518... 254 
 V. Taylor, 38 La. Ann. 634 112 
 Gompers v. Rochester, 56 Pa. 194 
 
 163, 201 
 
 Good V. Daland, 121 N. Y. 1 182 
 
 Goodall t>. Skelton, 2 H. Bl. 316. 76 
 ■y. Thurman, 1 Head, 209.. 7 
 Goodman v. Henderson, 58 Ga. 
 
 567 172 
 
 V. Simonds, 61 U. S. 20 
 
 How. 343, 15 L. ed. 934 14 
 
 Goodsall V. Boldero, 9 East, 72.. 37 
 
 Goodwin v. Clark, 65 Me. 280... 203 
 
 «. Goodwin, 4 Day, 343... 153 
 
 Goose River Bank v. Willow Lake 
 
 School Twp., 1 N. D. 
 
 26 --.- 106 
 
 Gordon v. Howden, 12 Clark & 
 
 F. 237 1 
 
 Gorham v. Holden, 4 New Eng-. 
 
 Rep. 502, 79 Me. 3177. 252 
 Gould, Re, 1 New Eng. Rep. 925, 
 
 53 Conn. 415.. _ 108 
 
 V. Gould, 29 How. Pr. 458, 
 
 3 Kay & J. 382 158 
 
 v. Head. 28 Fed. Rep. 886, 
 
 41 Fed. Rep. 240 263 
 
 Goward v. Wa er-, 98 Mass. 596. 15 
 
 Gowen v. Nowell, 1 Me. 292 119 
 
 Graham v. Graham, 10 W. Va. 355 119 
 Grand Gulf Bank v. Archer, 8 
 
 Smedes&M. 151 83 
 
 Grandin v. Grandin, 8 Cent. Rep. 
 
 588, 49 N. J. L. 508.. 15 
 Grant v. Budd, 30 L. T. N. S. 319 156
 
 CASES CITED. 
 
 XXV 
 
 Grant v. Hamilton, 3 McLean, 100 49 
 V. Kline, 7 Cent. Rep. 626, 
 
 115 Pa. 618. -.27, 28, 31, 35 
 v. McGrath. 56 Conn. 333. 79 
 Grasselli v. Lowden, 11 Ohio St. 
 
 349 ..171,200, 201, 239 
 
 Gray v. Hamil, 6 L. R. A. 72, 82 
 
 Ga. 375 8 
 
 «.Hook,4N.T. 449.107, 110, 112 
 ®. Jackson, 51 K H. 9-... 88 
 V. Matthias. 5 Ves. Jr. 286. 7 
 v. Oxnard Bros. Co., 31 N. 
 
 Y. S. R. 968 145, 239 
 
 «. Seigler, 3 Strobh. L. 117 116 
 Great Western R. Co. «. Birming- 
 ham & O. J. R. Co., 2 
 
 Phil. Ch. 597 3G9 
 
 Green. Re, 7 Biss. 338 41 
 
 v. Collins, 3 Cliflf. 494 85 
 
 V. Corrigan, 3 West. Rep. 
 
 627, 87 Mo. 359 143 
 
 1). North Buffalo Twp., 56 
 
 Pa. 110-... 4 
 
 «. Price, 11 Mees. & W. 
 
 ^ 653, 13 Mees. & W. 695, 
 
 16 Mees. «& W. 346... 
 
 170, 203, 206 
 
 v. State, 13 Mo. 382 422 
 
 V. Van Buskirk, 72 U. S. 5 
 Wall.307,18L. ed. 599, 
 74 U. S. 7 Wall. 139, 19 
 
 L. ed. 109 ...86, 87, 90 
 
 Greenfield Bank v. Crafts, 4 Allen, 
 
 447. 116 
 
 Greenough v. Balch, 7 Me. 462.. 68 
 Greenwood v. Curtis, 6 Mass. 358, 
 
 378 87, 88 
 
 Greer e. Church, 13 Bush, 430... 
 
 252, 255 
 Gregory v. Brunswick, 6 Man. & 
 
 G. 205 368 
 
 V. Wendell, 39 Mich. 337, 
 
 40 Mich. 432,434 
 
 40, 41, 46, 48, 51, 58 
 Grell V. Levy, 16 C. B. K 8. 79. 67 
 Griffin v. Hasty, 94 K C. 438.. 6, 25, 28 
 
 V. State, 26 Ga. 493 422 
 
 Griffith 1). Weils, 3 Denio, 226... 67, 81 
 Grisewood v. Blane, 11 C. B. 526, 
 
 538 40, 49 
 
 Griswoldw.Waddinston, 15 Johns. 
 
 67, 16 Johns. 449.. 101, 103 
 Groton v. Waldoborough, 11 Me. 
 
 306. 112 
 
 Grove v. McCalla, 21 Pa. 44 116 
 
 Groves v. Slauiihter, 40 U. S. 15 
 
 Pet. 449, 10 L. ed. 800 217 
 Grundy «. Edwards, 7 J. J. Marsh. 
 368, 23 Am. Dec. 409. 
 
 169, 170, 171 
 
 Guardian Mut. L. Ins. Co. n. 
 
 Hogan, 80 111. 35 28 
 
 Guerand v. Dandelet, 32 Md. 561, 
 
 562, 570, 3 Am. Rep. 
 
 164. 163, 167, 196, 201 
 
 Guernsey v. Cook, 120 Mass. 501 
 
 2, 111, 126, 134 
 Guilford ». McKinley, 61 Ga. 232 
 
 252, 255, 259 
 Guilford County Comrs. v. March, 
 
 89 N. C. 268 116, 117 
 
 Guiilander v. Howell, 35 N. Y. 
 
 657- 87, 198 
 
 Gulf, C. & S. F. R. Co. V. State, 
 
 IL. R. A. 849, 2 Inters. 
 
 Com. Rep. 335, 72 Tex. 
 
 404 268 
 
 Gulick ■». Ward, 10 N. J. L. 102. 110 
 Gunn V. Central R. Co., 74 Ga. 
 
 509 242, 243 
 
 Gunter v. Astor, 4 Moore, 12 368 
 
 Gurvin v. Cromartie, 36 N. C. 174 151 
 
 H. 
 
 Hackett «. Multnomah R. Co., 12 
 
 Or. 129 244, 247 
 
 B.Tilley, Holt,201,llMod. 
 
 93, 2 Ld. Raym. 1207. 109 
 Hagedorn x. Bazett, 2 Maule & S. 
 
 100 104 
 
 V. Reed, 1 Maule & S. 567. 104 
 Haffgerty v. Palmer, 6 Johns. Ch. 
 
 437, 2 L. ed. 176. 76 
 
 Haigh «. Brooks, 10 Ad. & El. 309 18 
 
 Haines v. Haines, 6 Md. 435 19 
 
 V. Lewis, 54 Iowa, 301.. 11 6, 117 
 Haldeman e. Simonton, 55 Iowa, 
 
 144 169 
 
 Hale V. New Jersey Steam Nav. 
 
 Co., 15 Conn. 539 88, 98 
 
 Hall V. Ashby, 9 Ohio, 96. 120 
 
 X. Center, 40 Cal. 63. 260 
 
 v. Coppell, 74 U. S. 7 Wall. 
 
 548, 19 L. ed. 245 102 
 
 1}. Dyson, 17 Q. B, 785 69 
 
 T. Eaton, 25 Vt. 458 325 
 
 ?). Gavitt, 18 Ind. 390 115 
 
 1). Gle.ssner, 100 Mo. 155... 248 
 
 v. Huntoon, 17 Vt. 244 ... 109 
 V. Palmer, 8 Jur. 459, 13 L. 
 
 J. Ch. 353 7 
 
 «. Paris, 59 N. H. 74 148 
 
 V. Potter, 3 Lev. 411 152 
 
 Hall jNIfg. Co. V. American R. S. 
 
 Co., 48 Mich. 331 148 
 
 Ham V. Smith, 87 Pa. 63 112, 116 
 
 Hamer v. Sidway, 12 L. R. A. 
 
 463, 124 N. Y. 538 9
 
 CASES CITED. 
 
 Hamilton v. Close, 25 Mo. 166... 139 
 V. Grainger, 5 Hurlst. & N. 
 
 40 64, 81 
 
 «. Hamilton, 89 111. 349... 153 
 
 D. Scull, 26 Mo. 165 2 
 
 V. Wright, 37 N. Y. 508 .. 356 
 Hammett r. Linneman, 48 N. Y. 
 
 399 76 
 
 Hanauer v. Doane, 79 U. S. 12 
 Wall. 342, 20 L. ed. 
 
 439 5,64, 138, 141 
 
 Handy v. St. Paul Globe Pub. 
 Co., 4 L. R. A. 466, 41 
 
 Minn. 188 5, 6, 79 
 
 Hanford «. Paine, 32 Vt. 442, 78 
 
 Am. Dec. 586, 597.... 87, 89 
 Hanger v. Abbott, 73 U. S. 6 
 Wall. 532, 18 L. ed. 939 
 
 101, 102 
 Hannington v. Du Chatel, 1 Bro. 
 
 Cli.124... Ill, 126 
 
 Hankinson's App. , 78 Pa. 196 ... . 1 64 
 
 Hanks v. Naglee, 54 Cal. 51 7, 64 
 
 Hanna v. Andrews, 50 Iowa, 462 
 
 175, 198, 201 
 
 «. People, 86 111. 243 422 
 
 Hannah v. Fife, 27 Mich. 172.. 165, 242 
 Haunay v. Eve, 7 U. S. 3 Cranch, 
 
 242, 2 L. ed. 427. ..137, 279 
 
 Hard «. Seeley, 47 Barb. 428 181 
 
 Harding v. State, 54 Ind. 359 426 
 
 Hardy v. Smith, 136 Mass. 328.. 153 
 Hare «. London & N. W. R. Co., 
 
 2 Johns. &H. 80 ..238, 245 
 V. Whitmore, 49 L. T. N. 
 
 S. 335 168 
 
 Harford v. Purrier, 1 Madd. 538. 360 
 Harknessv. Russell, 118 U. S. 667, 
 
 30L. ed. 286 255 
 
 Harlan «. Harlan, 20 Pa. 303 18 
 
 Harmon «. Com., 12 Serg. & R. 
 
 69.. 419 
 
 Harms v. Parsons, 32 Beav. 328, 
 
 32 L. J. Ch. 247 
 
 167, 182, 196 
 Harrington v. Grant, 54 Vt. 236. 144 
 V. Victoria Graving Dock 
 Co., L. R. 3 Q. B. Div. 
 
 549 205 
 
 V. Wells, 12 Vt. 505 18 
 
 Harris 0. Cassaday, 5 West. Rep. 
 
 285, 107 Ind. 158 12,13 
 
 V. Roof, 10 Barb. 489... 107, 110 
 1). Runnels, 53 U. S. 12 
 How. 79, 84, 13 L. ed. 
 
 901, 903 79, 82 
 
 V. Siraonson, 28 Hun, 318. 110 
 
 v. Stevens, 31 Vt. 79 405 
 
 V. Tumbridge, 83 N. Y. 92, 
 
 95 44, 48, 49 
 
 Harrison v. Jones, 80 Ala. 412... 71 
 V. McCluney, 32 Mo. App. 
 
 481 137 
 
 V. Sterry, 9 U. S. 5 Cranch, 
 
 289, 3 L. ed. 104 87 
 
 V. Trader^ 27 Ark. 290 150 
 
 Hart V. State, 120 Ind. 83- 121 
 
 Hartford & N. H. R. Co. v. N.Y. 
 
 & N. H. R. Co., 3 
 
 Robt. 41 1.1 06. 207,208, 
 
 240, 265, 269, 270, 273. 279 
 Hartford Carpet Weavers Case 
 
 (Super Ct. Conn. 1836) 337 
 
 Hartley «. Rice, 10 East, 22 158- 
 
 Hartwell v. Hartwell, 4 Ves. Jr. 
 
 811. Ill, 126 
 
 Harvey v. Lloyd, 3 Pa. 331 267 
 
 V. Merrill, 5 L. R. A. 200. 
 
 150 Mass. 1 5, 6,58 
 
 Harwood «. Knapper, 50 Mo. 456 2 
 Haskins v. Royster, 70 N. C. 601 407 
 Hastelow i). Jackson. 8 Barn. & 
 
 C. 221 147 
 
 Hastings v. Whitley, 2 Exch. 611 172- 
 Hatch V. Burroughs, 1 Woods, 
 
 439 54 
 
 V. Douglas, 48 Conn. 116.40, 52. 
 Hathaway ?). Moran. 44 Me. 67.. 6 
 Hatztield v. Gulden, 7 Watts, 152 110 
 Hauks V. Brown, 79 Iowa, 560 .. 56. 
 Havemeyer v. Havemeyer, 11 
 
 Jones & S. 506, 515... 263 
 Haven v. Emery, 33 N. H. 66... 259 
 Haverstick v. Sipe, 33 Pa. 368... 95 
 Haviland v. Johnson, 7 Daly, 297 252: 
 Hawkeye Ins. Co. r. Brainard, 72 
 
 Iowa, 130 .116, 117 
 
 Hawley v. Farrar, 1 Vt. 420 8 
 
 Hays V. Jordan, 9 L. R. A. 373, 
 
 85 Ga. 741 253, 254 
 
 V. Risher, 32 Pa. 169 267 
 
 Hay ward v. Young, 2 Chit. 407.. 
 
 170, 201 
 
 Hazard v Day, 14 Allen, 487 79- 
 
 Hazen®. Com., 23 Pa. 355 
 
 315, 317, 320, 321, 41.5- 
 Hazlehurst v. Savannah, G. & N. 
 
 A. R. Co., 43 Ga. 13.. 
 
 2 284 287 
 Head v. Baldwin, 83 Ala. 132 ... ' 19^ 
 V. Providence Ins. Co., 6 
 
 U. S. 2 Cranch, 127, 2 
 
 L. ed.229... 242 
 
 Heaps V. Dunham, 95 111. 583 315 
 
 Heck V. McEwen, 12 Lea, 97 289- 
 
 Hecker «. Fowler, 69 U. S. 2 Wall. 
 
 123, 17 L. ed. 759 183 
 
 Hedge v. Lowe, 47 Iowa, 137, 140 
 
 163, 165, 167, 174 
 Hegeman v. Hegeman, 8 Daly, 1 177
 
 CASES CITED. 
 
 XXVU 
 
 Heichew v. Hamilton, 3 G. 
 
 Greene, 596, 598, 4 G. 
 
 Greene, 217 165, 174 
 
 Helping Hand Marriage Asso., 
 
 Be, 15 Phila. 644 273 
 
 Heman v. Hardie, 12 C. of Sess. 
 
 Cas. (S. C.) 406 41 
 
 Henderson «. JMorgan. 26 111. 431 253 
 v. New York, 92 U. S. 259, 
 
 23L. ed. 543 220 
 
 Hendrick v. Lindsay, 93 U. S. 143, 
 
 23L. ed. 855 18 
 
 Henry v. Patterson, 57 Pa. 346.. 251 
 Henwood«. Com., 52 Pa. 424.. 329 
 Herman v. Jeuchner, L. R. 15 Q. 
 
 B. Div. 561 116 
 
 Hermann Loog v. Bean, L. R. 
 
 26Ch. Div. 306 408 
 
 Herreshoff v. Boutineau, 8 L. R. 
 
 A. 469, 17 R. I. .- 
 
 167, 171, 197 
 Herrick v. Gallagher, 60 Barb. 
 
 578- 76 
 
 Herring v. Wickham, 29 Gratt. 
 
 628, 26 Am. Rep. 410. 150 
 Herron «. Nichols, 25 Cal. 555 .. 427 
 Hervey v. Rhode Island Locomo- 
 tive Works, 93 U. S. 
 
 664, 672, 23 L. ed. 1003 
 
 252. 254, 255 
 Hess v. Culver, 6 L. R. A. 598, 77 
 
 Mich. 598 144 
 
 V. Rau, 95 N. Y. 359 44 
 
 Heustis V. Kennedy, 23 111. A pp. 
 
 42 83 
 
 Heyer v. Burger, 1 Hoflfm. Ch. 
 
 1, 6 L. ed. 1043 155, 158 
 
 Heymann®. Reg., L. R. 8 Q. B. 
 
 102 325 
 
 Hickey v. Baird, 9 Mich. 32 ..123, 125 
 Hicks V. Gregory, 8 C. B. 378, 13 
 
 Jur. 1030. 19 L. J. C. 
 
 P. 84 9 
 
 Higi?ins V. Pitt, 4 Exch. 312 69 
 
 Hill V. Bell, 29 111. App. 136 81 
 
 V. Freeman, 3 Cush. 257 .. 76 
 V. Hart-Davies, L. R. 21 
 
 Ch. Div. 798 408 
 
 «. Spear, 50 N. H. 253, 262.85, 87 
 
 1). Spencer, Ambl. 641 7 
 
 Hills V. Croll, 2 Phila. 60 173 
 
 Hilton ». Eckersley, 6 El. & Bl. 
 
 47, 64, 25 L. J. Q. B. 
 
 199 197, 259, 313, 334 
 
 V. Southwick, 17 Me. 303. 15 
 Hinde v. Gray, 1 Man. & G. 195. 165 
 Hindley v. Westmeath, 6 Barn. & 
 
 C. 200 155 
 
 Hinchmana. Richie, Brightly, 143 
 
 315, 319 
 
 Hinckley v. Gildersleeve, 19 
 
 Grant, Ch. (U. C.) 212 266 
 Hinson v. Lott, 75 U. S. 8 Wall. 
 
 148, 19 L. ed. 387 222 
 
 Hintermister v. Lane, 27 Hun, 497 
 
 252, 254 
 Hirschorn v. Canney, 98 Mass. 
 
 149.. 76 
 
 Hitchcock V. Coker, 6 Ad. & El. 
 
 438, 454 
 
 18, 170. 196, 200-202 
 ©. Galveston, 96 U. S. 341, 
 
 351. 24 L. ed. 659, 662 148 
 Hoadley v. Middlesex County 
 
 Comrs., 105 Mass. 519 250 
 Hobbs V. McLean, 117 U. S. 569, 
 
 576, 29 L. ed. 941, 943 197 
 Hodge «. Sloan, 9 Cent. Rep. 870, 
 
 107 N. Y. 244, 249.195, 202 
 Hodsdon v. Wilkins, 7 Me. 113. . 
 
 67, 107, 109 
 Hoffman v. Brooks, 11 Week. L. 
 
 Bui. 258- -198, 212, 239, 242 
 
 w. Vallejo, 45 Cal. 564 128 
 
 Hogue V. McCiintock, 76 Ind. 205 422 
 
 Hoit V. Hodge, 6 N. H. 104 49 
 
 Holbrook v. Comstock, 16 Gray, 
 
 109- - 155 
 
 V. Waters, 9 How. Pr. 335 202 
 Holden v. Upton, 134 Mass. 180- . 83 
 HoUaday v. Patterson, 5 Or. 177. 132 
 Holloway v. Lowe, 7 Port. (Ala.) 
 
 488 118, 119 
 
 Hollingsworth «. Moulton, 53 
 
 Hun, 91. 6 
 
 Holman v. Johnson, Cowp. 146, 
 
 341, 343 64, 279 
 
 Holmes v. Manning, 150 Mass. 211 85 
 V. Martin, 10 Ga. 503.. .165, 202 
 v. Old Colony R. Co., 5 
 
 Gray, 58-.. 243 
 
 Home Ins. Co. v. McRichards, 121 
 
 Ind. 121 4 
 
 Homer v. Ashford, 3 Bing. B22. . 163 
 Hood V. New York & N. H. R. 
 
 Co., 22 Conn. 1 286 
 
 ^. Palm, 8 Pa. 237 323 
 
 Hook T. Gray, 6 Barb. 398 204 
 
 «. Pratt, 78 N. Y. 371 9 
 
 V. Turner, 22 Mo. 833 234 
 
 Hooker v. Vaudewater, 4 Denio, 
 
 349 107,213,214, 
 
 219, 234, 240, 242. 244, 
 
 246, 265, 269, 279, 356. 381 
 
 Hoop, The. 1 C. Rob. 196 101 
 
 Hornby v. Close, L. R. 2 Q. B. 153 
 
 338, 408 
 Hornblower v. Proud, 2 Barn. & 
 
 Aid. 327... 14 
 
 Horner i). Ashford, 3 Bing. 322, 336 167
 
 XXVlll 
 
 CASES CITED. 
 
 Horner v. Crafts, 7 Biug. 735.. . 194 
 V. Graves. 7 Biug. 735, 743, 
 
 753 170, 171, 
 
 19(5, 201, 202, 218 
 Horseman v. Reg., 16 U. C. Q. B. 
 
 543 316 
 
 Howard NaU Bank v. King, 10 
 
 Abb. N. C.346 90 
 
 Howell V. Stewart, 54 Mo. 400.. . 85 
 Howland v. Coffin, 47 Barb. 663, 
 
 663 108. 109 
 
 Howson «. Hancock, 8 T. R. 575 137 
 
 Hoy V. Sterrett, 2 Watts, 331 95 
 
 Hoyt V. Holly, 39 Conn. 326, 12 
 
 Am. Rep. 390 169 
 
 V. New York L. Ins. Co., 3 
 
 Bosw. 440. 26 
 
 V. Thompson, 19 N. Y. 207 87 
 Hubbard «. Coolidge, 1 Met. 84.. 19 
 V. Miller, 27 Mich. 15, 19, 
 
 15 Am. Rep. 153. 
 
 165, 167, 171, 175 
 Huckins v. Hunt, 138 Mass. 366.. 69 
 Hudson V. Thome, 7 Paige, 261, 4 
 
 L. ed. 148 212, 232 
 
 Huidekoper v. Hinckley Locomo- 
 tive Works, 99 U. S. 
 
 258, 25 L. ed. 344 252 
 
 Hullman v. Whitmore, 3 Maule & 
 
 S. 337 104 
 
 Hume V. United States, 132 U. S. 
 
 406, 32 L. ed. 393 4 
 
 Humphreys v. McKissock, 140 U. 
 
 S. 304, 35 L. ed. 473.. 256 
 Hunlocke v. Blacklowe, 2 Saund. 
 
 15Q, note 165 
 
 Hunt V. Brown, 5 New Eng. Rep. 
 
 810, 146 Mass. 253 16 
 
 V. Bullock, 23 111. 320 256 
 
 V. Elliott, 80 lud. 245 165 
 
 V. Frost, 4 Cush. 54 234 
 
 V. Hunt, 4 DeG. F. & J. 221 155 
 V. Hunt, 47 L. J. Mat. Cas. 
 
 22.23- 155 
 
 V. Test, 8 Ala. 713 108, 110 
 
 V. Whitehead, 42 Mo. 524. 143 
 
 Hunters. Nolf, 71 Pa. 282 
 
 111, 112, 126 
 Hunter's Case, 1 Swinton, 550... 322 
 Huntington v. Bardwell, 46 N. H. 
 
 492.. 165 
 
 Huntzinger v. Com., 10 W. N. C. 
 
 98 309 
 
 Hutchings v. Munger, 41 N. Y. 155 16 
 Hutchins v. Hutcbins, 7 Hill, 104, 
 
 108 327, 427 
 
 V. Weldin, 13 West. Rep. 
 
 349, 114 Ind. 80 64 
 
 Hutchinson v. Dornin, 23 Mo. 
 
 App. 475 204 
 
 Ilutton V. Huttou, 3 Pa. 100 155 
 
 Hynas v. Hays, 25 Ind. 31, 36.204, 205 
 
 I. 
 
 Illinois Midland R. Co. v. People. 
 
 84111.426 263 
 
 Impaneling and Instructing Grand 
 Jury, Ee, 26 Fed. Rep. 
 749 374 
 
 Indianapolis Cable St. R. Co. ®. 
 
 Citizens St. R. Co., 8 
 
 L. R, A. 539, 127 Ind. 
 
 369 233 
 
 Indianapolis, D. & S. R. Co. v. 
 
 Erviu, 6 West. Rep. 
 
 104, 118 111. 250 67 
 
 Ingersoll v. Randall, 14 Minn. 400 67 
 Ingraham v. Geyer, 13 Mass. 146. 87 
 Ingram v. Ingram, 49 N. C. 188. 
 
 6, 25, 234 
 Irvine v. Barrett, 2 Grant, Cas. 73 88 
 
 Irwin V. Weils, 1 Mo. 9 139 
 
 V. Williar, 110 U. S. 498- 
 
 510, 28 L. ed. 225-230. 
 
 6, 39-41, 47-50, 107, 
 
 148, 240, 279, 426 
 
 Isaacs 1). State, 48 Miss. 234 329 
 
 Ives V. Smith, 28 N. Y. S. R. 917 
 
 238, 260 
 
 Jackson v. Andrews, 7 Wend. 152 123 
 V. City Nat. Bank, 9 L. R. 
 
 A. 657, 125 led. 347.. 149 
 9). Ludeling, 88 U. S. 21 
 Wall. 616, 22 L. ed. 
 
 492 2 
 
 V. McLean, 36 Fed. Rep. 
 
 213 239 
 
 V. ShawK29'CaY 27Y'^']] 136 
 Jacobs v. Credit Lyonnais, L. R. 
 12 Q. B. Div. 589, 53 
 L. J. N. S. Q. B. 156. 88 
 Jacoby v. Whitmore, 40 L. J. N. 
 
 S. 335. 169 
 
 Jacques v. Golightly, 2 W. Bl. 
 
 1073 144 
 
 James v. Fulcrod, 5 Tex. 512.. 165, 234 
 V. Hoskins, 1 Tidd. Pr. 547 7 
 V. Jellison, 94 Ind. 292, 48 
 
 Am. Rep. 151.. 141, 152, 273 
 Jarvis v. Peck, 10 Paige, 118, 4 L. 
 
 ed. 910 _181, 196 
 
 Jecker v. Montgomery, 59 U. S. 
 18 How. 110, 15 L. ed. 
 311 103
 
 CASES CITED. 
 
 Jee c. Thurlow, 2 Barn. & C. 547, 
 
 4 Dow. &R. 11. ...155, 156 
 Jencks », Qiiidnick Co., 130 U. S. 
 
 457, 34 L. ed. 200 3,92 
 
 Jenkins v. Temples, 39 Ga. H55.. 
 
 107. 174, 199, 201 
 Jennings t\ Brown. 9 Mees. & W. 
 
 496, 12 L. J. Exph. 86 9 
 V. Throemorton, Ryan & 
 
 M. 251. 64 
 
 Jennison v. Staiiord, 1 Cush. 168 14 
 Jessup «. Chicago & N. W. R. 
 Co., — Iowa, — , Feb. 
 
 7,1891.. 135 
 
 V. United States, 106 U. S. 
 
 150, 27 L. ed. 86 218 
 
 Jewell V. Neidy, 61 Iowa, 299... 122 
 
 Johns V. State, 19 Md . 421 416 
 
 Johnson v. Davis, 7 Tex. 173.... 325 
 V. Hillings, 103 Pa. 498. .. 81 
 
 i). Hunt. 81 Ky. 321 152 
 
 V. Kaune, 3 West. Rep. 443, 
 
 21Mo. App. 22 59 
 
 T. People, 22 111. 314 329 
 
 T. State, 48 Ga. 116 426 
 
 V. State, 26 X. J. L. 313, 
 
 29 X. J. L. 453 
 
 291, 299, 319, 333, 3-36, 354 
 «. Union M, & F. Ins. Co., 
 
 127 Mass. 555 5 
 
 Johnston v. Russell, 37 Cal. 670.. 51 
 Johnston Harvester Co. v. Mein- 
 hardt, 60 How. Pr. 168, 
 9 Abb. N. C. 393 ...368, 407 
 Jolsen's T. E. & B. v. Thurber, 
 
 118N. Y. 684. 21 
 
 Jones tj. Baker, 7 Cow. 445 327 
 
 ». Berry, 33 N. H. 209.... 83 
 V. Blocker, 43 Ga. 331.... 407 
 V. Caswell, 3 Johns. Cas. 29 
 
 165, 234 
 
 V. Jones, — Colo. , June 
 
 30. 1891 159 
 
 V. Jones, L. R. 1 Q. B. Div. 
 
 279-- - -.. 158 
 
 V. Lees, 1 Hurlst. & N. 189 
 167, 182, 183, 196, 198, 
 
 199, 201 
 V. McCallum, 21 Fla. 392. 20 
 
 «. Marks, 40 111. 313 48 
 
 «. Parker, 20 N. H. 31, 20 
 Am. & Ene. Corp. Cas. 
 
 485 r... 243 
 
 ?). Randall, Lorn, 384 329 
 
 V. Rice, 18 Pick. 440 116 
 
 «. Root, 9 Gray, 435 79 
 
 «. Shale, 34 Mo. App. 302. 42 
 
 v. State. 64 Ind. 473 315,423 
 
 «. Surprise, 4 New Ene. 
 Rep. 292, 64 N. H. 243 
 
 68. 72, 87. 146 
 
 CITED. XXIX 
 
 Julia, The, 12 U. S. 8 Cranch, 
 
 181, 3 L. ed. 528 102 
 
 Justice V. Eddings, 75 N. C. 581. 123 
 
 K. 
 
 Kahnw. Walton, 46 Ohio St. 195.42, 61 
 Kalamazoo Hack & B. Co. v. 
 
 Sootsraa, 10 L. R. A. 
 
 819, 84 Mich. 194 232 
 
 Kansas Nat. Bauk «. Nat. Bank 
 
 of Commerce, 38 Fed. 
 
 Rep. 800 58 
 
 Kearney v. Taylor, 56 U. S. 15 
 
 How. 494, 519, 14 L. 
 
 ed. 787, 797 165 
 
 Keat V. Allen, 3 Allen (N. B.) 588 152 
 Keeler «. Field, 1 Paige, 312, 2 L. 
 
 ed. 660 76 
 
 V. Taylor, 53 Pa. 467... 167, 196 
 Keeling v. Griffin, 56 Pa. 305.- -. 267 
 Keene v. Kent, 4 N. Y. S. R. 431 310 
 Keith V. Herschberg Optical Co., 
 
 48 Ark. 138- 168 
 
 Kellar v. Blanchard, 21 La. Ann. 
 
 38 - 123 
 
 Keller «. Paine, 9 Cent. Rep. 429, 
 
 107N.Y. 83 --.86, 100 
 
 Kelley v. Bourne, 15 Or. 476 247 
 
 V. People, 55 N. Y. 566-.. 419 
 «. Sheldon, 8 Wis. 258-... 4 
 Kellner v. Le Mesurier, 4 East, 
 
 403 - 105 
 
 Kellogg V. Howes, 6 L. R. A. 588, 
 
 81 Cal. 170 65, 136 
 
 V. Larkin, 3 Finn. 124. 3 
 
 Chand. 133. ..201, 223 
 
 V. Richards, 14 Wend. 116 18 
 Kelly V. Deming, 2 McCrary, 453 76 
 V. Devlin, 58 How. Pr. 487 
 
 213, 234 
 v. Kendall, 6 West. Rep. 
 
 544, 118 111. 650 4 
 
 Kelseyy. Pfaudler P. F. Co., 19 
 
 Abb. N. C. 434, 45 
 
 Hun, 15 238,260 
 
 Kennedy v. Cowie (1891) 1 Q. B. 
 
 771 -- --- 322 
 
 Kennett v. Chambers, 55 U. S. 14 
 
 How. 38, 14 L. ed. 316 67 
 Kenney v. Ingalls, 126 Mass. 488 76 
 Kensington v. Inglis, 8 East, 273, 
 
 289, 290. .104, 105 
 
 Kentw. Miltenberger, 13 Mo. App. 
 
 503 40,47. 48, 59 
 
 V. Rand, 2 New Eng. Rep. 
 
 860, 64N. H. 45 8 
 
 Kerrison «. Cole, 8 East. 231 203 
 
 Kersey Oil Co. v. Oil Creek & A. 
 
 R. Co., 12 Phila. 374. 267
 
 XXX 
 
 CASES CITED. 
 
 Kershaw v. Kelser, 100 Mass. 576 101 
 KerwiQiJ.Doran,29Mo. App. 3i)7 72 
 Kesler's Estate (Pa.) 13 L. R. A. 
 
 581 152 
 
 Kettle River R. Co. «. Eastern R. 
 Co., 6L. R. A. 111,41 
 
 Minn. 461. ---. 133 
 
 Key V. Bradshaw, 2 Vern. 102... 158 
 Keystone Mut. Ben. Asso. v. Nor- 
 ris, 7 Cent. Rep. 204, 
 
 115 Pa. 446 26 
 
 Kidd V. Horry, 28 Fed. Rep. 773 
 
 360, 365 
 V. Pearson, 128 U. S. 1, 20, 
 
 32 L. ed. 346, 350.. 217, 222 
 
 Kilborn v. Field, 78 Pa. 194 153 
 
 Kimball v. Harmon, 34 Md. 407. 415 
 V. Lee, 4 Cent. Rep. 332, 40 
 
 N. J. Eq. 403 90 
 
 Kimbro «. Bullitt, 63 U. S. 22 
 
 How. 256,16L. ed. 313 148 
 Kimbrough v. Lane, 11 Bush, 556 
 
 116, 204 
 
 King V. Bates, 57 N. H. 446 255 
 
 V. Cope, 1 Strange, 144 319 
 
 V. Edwards, 2 Strange, 707 322 
 «. Grey, 9 How. St. Tr. 127 323 
 1-. Journeymen Tailors, 8 
 
 Mod. 10 322 
 
 V Leigh, 1 Car. & K. 28.. 319 
 
 V. Lynn, 2 T. R. 733 312 
 
 1). Ruckman, 24 N. J. Eq. 
 
 559 260 
 
 1). Thompson, 34 U. S. 9 
 
 Pet. 204, 9 L. ed. 102. 9, 15 
 1). Tymbirly, 1 Keble. 254. 298 
 V. Winants, 71 N. C. 469.. 6, 25 
 Kingsburg v. Kirwan, 77 N. Y. 
 
 612.. ..-.51,60,63 
 
 Kinsey «. Leggett, 71 N. Y. 387. 76 
 Kirkland v. Randon, 8 Tex. 10.. 62 
 Kirkpatrick v. Bonsall, 72 Pa. 
 
 155 40, 41 
 
 V. Clark, 8 L. R. A. 511, 
 
 132 111. 342 2, 5, 6, 137 
 
 Kirtley v. Deck, 2 Munf. 15 419 
 
 Kitchen v. Greenabaum, 61 Mo. 
 
 116. 143 
 
 Kling V. Fries, 33 Mich. 275, 279 109 
 Kneeland v. American Loan & T. 
 Co., 136 U. S. 89, 34 
 
 L. ed. 379 257 
 
 Knilerilz «. Eastern R. Co., 140 
 
 Mass. 673 405 
 
 Knittel v. Gushing, 57 Tex. 354. 252 
 Knowles «. Erwin, 43 Hun, 150. 8 
 Knowltonw. Congress &E. Spring 
 
 Co., 57 K Y. 518.. 137, 310 
 D. Erie R. Co., 19 Ohio St. 
 
 260. 88, 98 
 
 Knowltonw. Pitch, 52 N. Y. 288 44 
 
 Knye v. Moore, 2 Sim. & Stu. 260 7 
 Koenig «. Chicago, B. & Q. R. 
 
 Co., 27 Neb. 699 290 
 
 Kohn V. Metcher, 43 Fed. Rep. 641 73 
 Kremelberg «. Kremelberg, 52 
 
 Md. 553 156 
 
 Kribben v. Haycraft, 26 Mo. 396 2 
 Ku Klux Cases, 1 Hughes, 439, 
 
 448, 458 320 
 
 Kusterer t\ Beaver Dam, 56 Wis. 
 
 471 125 
 
 L. 
 
 Labbe v. Corbett, 69 Tex. 503... 138 
 
 Laboyteaux v. Swigart, 1 West. 
 
 Rep. 562, 103 Ind. 596 12 
 
 Lacaussade v. White, 7 T. R. 535 147 
 
 Ladd V. Dillingham, 34 Me. 316. 204 
 V. Southern Cotton Press & 
 
 Mfg. Co., 53 Tex. 172 223 
 
 Laflfan v. Naglee, 9 Cal. 663 260 
 
 Lake Fork Special Drainage Dist. 
 Comrs. V. People (111.) 
 May 11, 1891 
 
 Lakin v. Willamette Valley & C. 
 
 R. Co., 13 Or. 436.... 269 
 
 Lamb v. People, 96 111. 73 315 
 
 Lambert v. People, 7 Cow. 166, 
 
 9 Cow. 578, 625 
 
 330, 333, 336, 413, 420 
 
 Lamoille Valley R. Co. v. Bixby, 
 
 55Vt. 235 243 
 
 Lamont ». Grand Lodge L. of H., 
 
 31 Fed. Rep. 180 26 
 
 Lampleigh «. Brathwait, 1 Smith, 
 
 Lead. Cas. 151, note .. 8 
 
 Lancaster & C. R. Co. v. North- 
 western R. Co. , 2 Kay 
 & J. 293 .238,245 
 
 Landringham v. State, 49 Ind. 
 
 186 315, 347 
 
 Lane v. Shears, 1 Wend. 433 123 
 
 V. Williams. 18 Pa. 85.... 87 
 
 Lang V. Lynch, 38 Fed. Rep. 489 72 
 
 Langdon v. Gray, 52 How. Pr. 
 
 387 204 
 
 Lange v. Werk, 2 Ohio St. 519.. 
 
 202, 204, 205 
 
 Langton v. Hughes, 1 Maule & S. 
 
 593. 84 
 
 Lanman «. McGregor, 94 Ind. 301 255 
 
 Lansing Turnverein Soc. v. Car- 
 ter, 71 Mich. 607 79 
 
 Larned v. Andrews, 106 Mass. 
 
 435 68, 81-83 
 
 Lasere v. Rochereau, 84 U. S. 17 
 
 Wall. 439, 21 L. ed. 695 101
 
 CASES CITED. 
 
 XXXI 
 
 Lassen v. Mitchell, 41 111. 101... 48 
 Latham v. Reg. 9 Cox Cr. Cas. 
 
 516 413 
 
 Laughman i). Piper, 5 L. R. A. 
 
 599,128 Pa. 1 2 
 
 Lawrance •». Metropolitan Elevat- 
 ed R. Co. 13 L. R. A. 
 
 103fN. Y.) 65 
 
 Lawrence ^. Clark, 36 N. Y. 138 69 
 V. Kidder, 10 Barb. 641. 
 
 649 .-171, 172. 300, 201 
 
 V. McCalmont, 43 U. S. 3 
 How. 436, 11 L. ed. 
 
 326 18 
 
 Lawson v. State, 33 Ark. 230 315 
 
 Lawton ®. Blitch, 83 Ga. 663 41, 52 
 
 Leather Cloth Co. v. Lorsont, 39 
 L. J. Ch. 86, L. R. 9 
 Eq. 345, 21 L. T. N. S. 
 
 661 167, 
 
 171, 182, 196, 198. 199, 203 
 Leavitt v. Blatchford, 5 Barb. 9. 204 
 
 V. Palmer, 3 N. Y. 19 204 
 
 Ledsinger v. Central Line Steam- 
 ers. 75 Ga. 567 243, 247 
 
 Lee, Exrarte, 13 Ves. Jr. 64 105 
 
 «. Sellers. 81 Pa. 473 69 
 
 Lees V. Richardson, 2 Hilt. 164.. 76 
 
 Leggett V. Hyde, 58 N. Y. 278.. 244 
 
 «. Postley, 2 Paige, 599, 2 
 
 L. ed. 1046... 333 
 
 Lehman ». Feld, 37 Fed. Rep. 853 48 
 Leighton «. Wales, 3 Mees. & W. 
 
 551 201 
 
 Leisy v. Hardin" 135" 'u""s.i'ob' 
 
 34L. ed. 128. ...79, 219-221 
 Leloup B. Port of Mobile, 137 U. 
 
 S. 640, 33 L. ed. 311.. 221 
 
 Leonard v. Com., 112 Pa. 607 115 
 
 V. Poole, 4 L. R. A. 728. 
 
 114 N. Y. 371.309. 423, 426 
 Le Page v. McCrea, 1 Wend. 164 13 
 Le Roy v. Crowninshield, 2 Ma- 
 son, 157 87 
 
 «. Sidney, 1 Sid. 168, 1 
 
 Keble, 620 329 
 
 V. Starling. 1 Sid. 174 303 
 
 Leslie v. Com., 82 Ky. 250. 418 
 
 V. Lorillard, 1 L. R. A. 443, 
 456, 110 N. Y. 519, 
 
 532-534 175, 177, 
 
 195. 196, 198, 200, 208, 
 218. 238. 244, 260, 266, 270 
 Lester v. Howard Bank, 33 Md. 
 
 558 83 
 
 Levi ». Levi, 6 Car. & P. 239 
 
 214, 315, 323, 330 
 Lewis V. Bank of Kentucky, 12 
 Ohio, 133, 40 Am. Dec. 
 
 469. 289 
 
 C 
 
 Lewis w. Bright, 4 El. & Bl. 917. 82 
 V. Latham. 74 N. C. 283. .5, 141 
 V. Littlefield, 15 Me. 233.. 49 
 V. Welch, 14 N. H. 294... 
 
 68. 72, 81 
 Libbey v. Downey, 5 Allen, 299. 70 
 Lighlfoot . Tenant, 1 Bos. & P. 
 
 551. 84 
 
 Lightner v. Menzel, 35 Cal. 452.. 223 
 
 Lindell v. Rokes, 60 Mo. 249 11 
 
 Linder o.Carpenter.63 111. 309.126, 131 
 Lindsay v. Heaton, 27 Neb. 663. 16 
 V. Smith, 78 N. C. 328.... 116 
 Lindsey o. Rutherford, 17 B. Mon. 
 
 245.. 81 
 
 Liness ®. Hesing, 44111. 113 2 
 
 Linn v. Sigsbee, 67 111. 75. 81 
 
 165. 169, 200, 201, 203 
 
 Lisle v. Com., 82 Ky. 250 315 
 
 Little®. Rees, 34 Minn. 277 21 
 
 Live Stock Asso. of N. Y. ■». 
 Levy, 3 K Y. S. R. 
 
 514-... 166, 198, 199 
 
 Live Stock D. & B. Asso. ». Cres- 
 cent Cilv L. S. L. & S. 
 H. Co.,'l Abb. U. S. 
 
 388 -•. 212,252 
 
 Liverpool & G. W. Steam Co. v. 
 Phenix Ins. Co., 129 
 U. S. 397, 32 L. ed. 
 
 788 _. 
 
 Livingston ». Proseus, 2 Hill, 526 
 
 Logan County Nat. Bank v. 
 
 Townsend, 139 U. S. 
 
 67, 35 L. ed. 107 
 
 Logwood ■». Hussev, 60 Ala. 417. 
 Long V. State. 13 Tex. App. 211. 
 
 V. Towl, 42 Mo. 545. 549.163, 171 
 
 Loomis V. Bragg, 50 Conn. 228. . 252 
 
 «. Davenport & St. P. R. 
 
 Co., 17 Fed. Rep. 301. 
 
 V. Newhall, 15 Pick. 159.. 
 
 Lord V. Chadbourne, 42 Me. 429. 
 
 V. Dall, 12Ma.ss. 115 
 
 Lorillard «. Clyde. 86 N. Y. 384. 
 
 Louisville & N. R. Co. v. Palmes, 
 
 109 U. S. 244, 27 L. ed. 
 
 922. 
 
 Louisville Gas Co. v. Citizens 
 Gaslight Co., 115 U. 
 S. 683, 29 L. ed. 510.. 
 Louisville, N. A. & C. R. Co. v. 
 Sumner. 2 West. Rep. 
 663, 665, 106 Ind. 55.233, 234 
 
 Loud v. Loud, 4 Bush, 457 155 
 
 Love V. Harvey, 114 Mass. 80.6, 49, 51 
 
 Lowe V. Peers, 4 Burr. 2225 158 
 
 ®. Young, 59 Iowa, 364 42 
 
 Lowell «. Boston & L. R. Corp., 
 
 23 Pick. 24 147 
 
 92 
 123 
 
 147 
 254 
 
 423 
 
 257 
 
 8 
 
 64 
 
 26 
 
 109 
 
 93 
 
 211
 
 XXXll 
 
 CASES CITED. 
 
 Lowery v. State, 30 Tex. 402 318 
 
 Lowry v. Bourdieu, 2 Dougl. 468 147 
 V. Dillman, 59 Wis. 197.. 41. 63 
 Lubbock V. Potts, 7 East, 451... 105 
 Lucas 0. Campbell, 88 111. 447... 252 
 Ludlum v. Buckingham, 35 N. J. 
 Eq. 71, 39 N. J. Eq. 
 
 563. 11 
 
 Lumbard's Case (1369) 43 As. 276 334 
 Lumley v. Gye, 22 L. J. Q. B. N. 
 S. 471, 2 El. & Bl. 216 
 
 303. 305, 368 
 1). Wagner, 1 DeG. M. &G. 
 
 604 173 
 
 Lusk V. State, 04 Miss. 845 421 
 
 Lyne v. Siesfeld, 1 Hurlst. & N. 
 
 278 50 
 
 Lyng v. Michigan, 135 U. S. 161, 
 
 34 L. ed. 150 221, 222 
 
 Lyon V. Culbertson, 83 111. 33, 38 
 
 40, 41, 44, 51 
 v. Mitchell, 36 N. Y. 241. 
 
 249 ...107, 109, 110 
 
 ®. Waldo, 36 Mich. 353 64 
 
 Lyons v. Hodgen (Kv.) 12 Ky. L. 
 
 Rep. 211.'. 57 
 
 Lytic V. State, 17 Ark. 608 120 
 
 M. 
 
 McAllen v. Churchill, 11 Moore, 
 
 483 203 
 
 McBernie «. White Lead Co., 9 
 
 Week. L. Bui. 310 239 
 
 McBlair i). Gibbes. 58 U. S. 17 
 
 How. 232, 236, 15 L. 
 
 ed. 132, 133 146 
 
 McBratney i). Chandler, 22 Kan. 
 
 692. 110,204 
 
 McCall V. California, 136 U. S. 
 
 104, 34 L. ed. 391.... 221 
 V. Copehart, 20 Ala. 521.. 121 
 
 V. Powell. 64 Ala. 254 251 
 
 McCandless v. <^"Brien (Pa. C. P.) 
 
 21 Piitsb. L. J. N. S. 
 
 435.:... 372 
 
 McCartney v. Berlin (Neb.) Feb. 
 
 18,1891 420 
 
 McCauU V. Broham, 16 Fed. Rep. 
 
 m, 4:2, note 163 
 
 McCaw D. Burk, 31 Ind. 62 150 
 
 McClellan v. Scott, 24 Wis. 81... 4 
 McClintock v. Loisseau. 2 L. R. 
 
 A. 816, 31 W. Va. 865 136 
 M'Clure«. M'Clure, 1 Pa. 374... 9 
 V. Missouri River, F. S. & 
 
 G. R. Co., 9 Kan. 373. 133 
 
 McCl urg's App. , 58 Pa. 51 
 
 169, 199, 201 
 
 McDaniel i). Chicago & N. W. R. 
 
 Co. 24 Iowa, 412 88 
 
 V. Evans (Ky.) 12 Ky. L. 
 
 Rep. 497 14 
 
 McDermot v. Casllane, Hardw. 18 6 
 McDonald v. Chicago & N. W. R. 
 
 Co., 29 Iowa, 171 125 
 
 McDowell V. Rissell. 37 Pa. 164.. 419' 
 McDownell v. Murphy, 2 Fox & 
 
 S. 279 155 
 
 McElroy «. Hiner, 133 111. 156... 140 
 McGavock v. Puryear, 6 Coldw. 
 
 34 148 
 
 McGehee v. State, 23 Tex. App., 
 
 330 404 
 
 McGregor v. Donnelly, 67 Cal. 
 
 149 64 
 
 McGrew v. Citv Produce Exch., 
 
 85 Tenn. 572 .42, 63 
 
 McHenrv v. Sneer, 56 Iowa, 649 415 
 McHugh V. Schuykill County, 67 
 
 Pa. 391 116 
 
 McKee v. Cheney, 52 How. Pr. 144 110 
 V. Stale, 9 West. Rep. 838, 
 
 840, 111 Ind. 378 
 
 310, 414, 420, 423 
 V. United States. 75 U. S. 8 
 
 Wall. 163, 19 L. ed. 329 101 
 M'Kewan v. Sanderson, L. R. 20 
 
 Eq. 65 69 
 
 M'Kinnell v. Robinson, 3 Mees. 
 
 &W. 434 50 
 
 McKinney v. Andrews, 41 Tex. 
 
 363. 141 
 
 McLean v. Stuve, 15 Mo. App. 
 
 317. 59' 
 
 McMahan v. Bowe, 114 Mass. 140 
 
 119, 123 
 McMahon v. Boden, 39 Conn. 316 82 
 McMaster v. Illinois Cent. R. Co., 
 
 65 Miss. 271. 98 
 
 McMinn v. Phillips, 3 Sneed. 196 165 
 McNamara v. Gargett, 12 West. 
 
 Rep. 650, 653, 68 Mich. 
 
 454... 198,309 
 
 McNulty, Bx parte, 77 Cal. 164.. 71 
 McNutt V. McEwen, 10 Phila. 
 
 112 .169,203 
 
 McPherson v. Cox, 96 U. S. 404, 
 
 417, 24 L. ed. 746, 750 123 
 McQuade v. Rosecrans, 36 Ohio 
 
 St. 442 141 
 
 McVey v. Brendel, 13 L. R. A. 
 
 377 2 
 
 Mackay, Ex parte, L. R. 8 Ch. 
 
 643 .68, 69 
 
 Mackbee v. Griffith, 2 Cranch, 
 
 C. C. 336 64 
 
 Mackey v. Rausch (Sup. Ct.) 15 
 
 N. Y. Supp. 4 60
 
 OASES CITED. 
 
 Macfclin's Case, 1 Car. & K. 28, 
 
 note, 2 Campb. 372... 307 
 Macon & B. R. Co. v. Gibson, 
 
 85Ga. 1 232 
 
 Madonna Delle Gracie, 4 Rob. 195 103 
 Magee». Magee, 67 Barb. 100... 156 
 Magniac v. TliompsoD, 32 U. S. 7 
 
 Pet. 348, 8 L. ed. 709 151 
 
 Maguire v. Smock, 42 Ind. 1 214 
 
 Maiert'. Homan, 4 Daly, 168 165 
 
 Mallan v. May, 11 Mees. & W. 
 
 653, 664, 666, 667 
 
 163, 167, 196, 201-204, 206 
 Mallory v. Gillett. 21 N. Y. 412.. 11 
 V. Hanaur Oil AVorks, 86 
 
 Tenn. 598.242, 243, 247, 281 
 Manchester & L. R. Co. v. Con- 
 cord R. Co. (N. H.) 9 
 L. R. A. 689, 3 Inters. 
 
 Com. Rep. 319 
 
 144, 147, 238, 245, 260 
 Mandeville v. Harman, 5 Ceni. 
 Rep. 625, 42 N. J. Eq. 
 
 185 167, 171, 196, 203 
 
 Mandlebaum v. Gregovich, 17 
 
 Nev. 87 81 
 
 V. McDonell, 29 Mich. 78. 158 
 Manhattan Medicine Company v. 
 Wood, 108 U. S. 218, 
 
 27L. ed. 706 2 
 
 Mann v. Hulbert, 38 Hun, 31 155 
 
 Manning v. Sprague, 1 L. R. A. 
 
 516. 148 Mass. 18 123 
 
 Mapstrick v. Romge, 9 Neb. 390 407 
 
 Marble v. Grant, 73 Me. 423 69 
 
 March v. People, 7 Barb. 391.. 316, 356 
 Marie i\ Garrison, 83 N. Y. 14.- 165 
 Marine Bank v. Ogden, 29 111. 248 
 
 244. 247 
 Marsh v. Chicago, R. I. & P. R. 
 
 Co., 75 Iowa, 361 234 
 
 v. Holbrook. 3 Abb. App. 
 
 Dec. 176. 123 
 
 «. Russell, 66 N. Y. 288.. 
 
 213, 223, 234 
 Marshall v. Baltimore & O. R. 
 Co., 57 U. S. 16 How. 
 314, 324, 14 L. ed. 953, 
 
 957 .110, 111 
 
 Martin v. Amos, 13 Ired. L. 201.. 119 
 V. Bartow Iron Works, 35 
 
 Ga. 320 6 
 
 V. Clarke. 8 R. I. 389 119 
 
 V. Hodge, 47 Ark. 378... 68, 146 
 
 V. Potter, 11 Gray, 37 90 
 
 V. Ranlett, 5 Rich. L. 541 234 
 V. Second & Third St. Pass. 
 
 R. Co., 3 Phila. 316.. 110 
 V. Stubbings. 27 111. App. 
 
 121, 126 111.387 18 
 
 Martin v. Veeder, 20 Wis. 466.. 119 
 V. Wade, 37 Cal. 168.. ..Ill, 112 
 
 Martino v. Kirk, 55 Hun, 474 71 
 
 Marvin Safe Co. v. Norton, 23 
 
 Rep. N. J. 243 255 
 
 Mason «. Lathrop, 7 Gray, 354.. 79 
 V. State, 2 Tex. App. 192.. 315 
 V. Thompson, 18 Pick. 305 74 
 Master Stevedores Asso. w. Walsh, 
 
 2 Daly, 1867 
 
 223, 316, 317, 337, 338, 356 
 Masters v. Miller, 4 T. R. 320... 120 
 Mathewson v. Fitch, 22 Cal. 86.. 120 
 Matthews v. Iron Clad Mfg. 
 
 Co., 19 Fed. Rep. 521 369 
 Mattock V. Southwood, 8 Ad. & 
 
 El. 795, 1 Perry & D. 
 
 46, 1 W. W. & H. 667 17 
 Mattoon Mfg. Co. v. Oshkosh 
 
 Mut. F. Ins. Co., 69 
 
 Wis. 564 22 
 
 Maxton*. Gheen, 75 Pa. 166 44 
 
 May V. Breed, 7 Cush. 15, 54 Am. 
 
 Dec. 700_..' 87 
 
 V. Wannemacher, 111 Mass. 
 
 ' 202. 89, 91 
 
 Maybin v. Coulon, 4 U. S. 4 
 
 Dall. 298, 1 L. ed. 841 136 
 Mayer v. Journeyman StoneCut- 
 
 ters Asso., 47 N. J. Eq. 
 
 519 354, 360, 363, 376 
 
 Mayfleld v. Wadsley, 3 Barn. & C. 
 
 357, 5 Dowl. & R. 228 203 
 Maynard «. Syracuse, B. & N. Y. 
 
 R. Co.,71 N. Y. 180.. 94 
 Means v. Hapgood. 19 Pick. 105 87 
 Meguire «. Corwine, 101 U. S. 
 
 108, 25 L. ed. 899.. Ill, 126 
 Melchert v. American T. Teleg. 
 
 Co.,3McCrary, 521, 11 
 
 Fed. Rep. 193, and 
 
 note 40, 41, 51 
 
 Mell V. Mooney, 30 Ga. 413 169 
 
 Mellison v. Allen, 30 Kan. 382. 80 
 Mennet v. Bonham, 15 East, 477 104 
 Mercein v. People, 25 Wend. 64 
 
 77. 155, 158 
 
 Mercer v. Mercer, 87 Ky. 30 9 
 
 Mercer County v. Hackett, 68 U. 
 • L. 1 Wall. 83, 17 L. 
 
 ed. 548 92 
 
 Merchants Nat. Bank v. Pendle- 
 ton, 29 N. Y. S. R. 891 247 
 Merrick v. Bank of Metropolis, 8 
 
 Gill, 59 64 
 
 Merrill v. Carr. 16 N. H. 114.. 116, 117 
 V. Mclntire, 13 Gray, 157.. 82 
 V. Peaslee, 6 New Eng. 
 
 Rep. 120, 146 Mass. 460 152 
 Merritt v. Millard, 4 Keyes, 208.. 147
 
 XXXIV 
 
 CASES CITED. 
 
 Metropolitan Teleph. & Teleg. 
 
 Co. «, Domestic Teleph. 
 
 & Teleg. Co., 44 N. J. 
 
 Eq. 568 238 
 
 Metzger v. Cleveland, Marion 
 
 Sup. Ct. (Ind.) 3 Ind. 
 
 Law Mag. 42. 263 
 
 Meyer?). Johnston, 53 Ala. 237.256, 258 
 
 Michael ». Bacon, 49 Mo. 474 85 
 
 Michigan Bank «. Niles, 1 Dougl. 
 
 401, 41 Am. Dec. 583. 136 
 Michigan Cent. R. Co. v. Myrick, 
 
 107 U. S. 102, 27 L. 
 
 ed. 325 93 
 
 Midwinter v. Scroggs (1636), 1 
 
 Keb. 636 334 
 
 Mifflin V. Com., 5 Watts & S. 461 
 
 312, 315, 319, 329, 330 
 Milbank v. New York, L. E. & 
 
 W. R. Co.. 64 How. 
 
 Pr. 20 287 
 
 Miles V. State, 58 Ala. 390. 319 
 
 Milford V. Milford Water Co., 3 
 
 L.R.A.122, 124Pa. 610 5 
 v. Worcester, 7 Mass. 48.. 82 
 Millbank v. Jones, 38 N.Y. S. R. 
 
 910 110 
 
 Miller v. Bensley, 20 111. App, 528 52 
 
 ■0. Com.,78Ky. 15 315 
 
 «. Eagle L. & H. Ins. Co., 
 
 2"E. D. Smith, 268... 28 
 
 V. Miller, 64 Me. 484 158 
 
 V. Post, 1 Allen, 434 70, 81 
 
 V. State. 79 Ind. 198.. ..329, 414 
 
 V. State, 25 Wis. 384 423 
 
 Mills V. Mills, 40 N. Y. 543, 546, 
 
 36 Barb. 474 107, 110 
 
 v. New Jersey Cent. R. Co. , 
 
 2 Cent. Rep. 239, 41 
 
 N.J. Eq. 1 264 
 
 V. Wyman, 3 Pick. 207 8 
 
 Milne v. Moreton, 6 Binn. 353... 87 
 
 Milner v. Patton, 49 Ala. 423 5 
 
 Milnor v. New York & N. H. R, 
 
 Co., 53 N. Y. 363 289 
 
 Milton V. Hayden, 32 Ala. 30 66 
 
 Milwaukee & St. P. R. Co. v. 
 
 Smith, 74 111. 197 98 
 
 Miner v. Medbury, 6 Wis. 295... 4 
 Mineral Water Bot. Ex. & Tr. 
 
 Prot. Soc, 31 Solic. 
 
 Jour. 626 166 
 
 Minnesota v. Barber, 136 U. S. 
 
 314, 34 L. ed. 455.... 221 
 Mintzer v. Sheriff (Pa.) 1 Campb. 
 
 Leg. Gaz. Rep. 340 ... 319 
 
 Misner «. Knapp, 13 Or. 135 61 
 
 Mississippi & M. R. Co. v. Ward, 
 
 67 U. S. 2 Black, 485, 
 
 17L. ed. 311 219 
 
 Mltchel V. Reynolds, 1 P. Wms. 
 181, 184, 191, 10 Mod. 
 27, 85, 130, and note in 
 1 Smith, Lead. Cas.(9th 
 
 Am. ed.) 712 et seq 
 
 162, 163, 165, 167, 188, 
 
 195, 201-203, 218, 334 
 
 Mitchell V. Cline, 84 Cal. 409 81 
 
 V. King, 77111. 466.. 4 
 
 V. Scott, 62 N. H. 596 72, 141 
 
 V. Smith, 4 U. S. 4 Dall. 
 269, 1 L. ed. 828, 1 
 Binn. 110, 2 Am. Dec. 
 
 417, 4 Yeates, 84 6, 136 
 
 t). United States, 88 U. S. 
 21 Wall. 350, 22 L. ed. 
 
 584 101, 103 
 
 Mobile County v. Kimball, 102 U. 
 
 S. 691, 26 L. ed. 238.217, 219 
 Mogul Steamship Co. v. McGreg- 
 or, L. R. 15 Q. B. Div. 
 476. 483, L. R. 21 Q. 
 B. Div. 544, L. R. 23 
 Q. B. Div. 598, Eng. 
 Ct. App. (1889).. .203, 
 225, 238, 246, 262, 306, 
 317, 319, 360, 383, 410, 411 
 Montgomery v. Lampton, 3 Met. 
 
 (Ky.) 519 8 
 
 V. United States, 82 U. S. 
 15 Wall. 395, 400, 21 
 
 L. ed. 97 101.102, 103 
 
 Montgomery Gaslight Co. v. 
 Montgomery (Ala) 4 
 
 L. R. A. 616 229 
 
 Moody V. State. 6 Coldw. 299 423 
 
 Moore v. Chesley, 17 N. H. 151.. 12 
 
 ®. Hobbs. 79 N. C. 535 6 
 
 'D. Shields, 121 Ind. 267... 425 
 
 Moores v. Bricklayers Union No. 
 
 1 (Super. Ct. Cin.) 7 
 
 Ry. & Corp. L. J. 108, 
 
 23 Week. L. Bui. 48.. 
 
 360, 370, 427 
 Moran v. New Orleans, 112 U. S. 
 
 69, 28 L. ed. 653 221 
 
 More v. Bonnet, 40 Cal. 251, 6 
 
 Am. Rep. 621 170, 171 
 
 Morgan v. Bliss, 2 Mass. 112 314 
 
 V. Donovan, 58 Ala. 241.269, 270 
 
 V. Parrel, 58 Conn. 413 248 
 
 ■V. Groff , 4 Barb. 524. 147 
 
 V. Oswald, 3 Taunt. 568... 104 
 
 ®. Pettit, 4 111. 529 52 
 
 V. Potter, 17 Hun, 405 ... 158 
 V. Taylor, 5 C. B. N. S. 653 125 
 Morris v. MacCullock, 2 Eden, 
 
 190 Ill, 126 
 
 V. McCullock, Ambl. 432.. 113 
 V. Leona, The, 67 Tex. 303 209
 
 OASES CITED. 
 
 sxxv 
 
 Morris Run Coal Co. v. Barclay 
 
 Coal Co., 68 Pa. 173, 
 
 186, 8 Am. Rep. 159.. 
 
 45,68,106,165,166,213, 
 
 218, 219, 239, 240, 242, 
 
 273, 278, 284, 309, 330, 
 
 336, 406 
 Morse T. D. & M. Co. v. Morse, 
 
 103 Mass. 73, 4 Am. 
 
 Rep. 513. .163, 183, 198, 201 
 Mortlock V. Butler, 10 Ves. Jr. 
 
 292 4 
 
 Morton v. Burns, 7 Ad. & El. 19 14 
 V. Metropolitan Life Ins. 
 
 Co., 34 Hun, 366, 103 
 
 N. Y. 645 405 
 
 Moschell V. State (N. J.) June 4, 
 
 1881 412 
 
 Moses V. Scott. 84 Ala. 608 278 
 
 Mouflet V. Cole, L. R. 7 Exch. 70, 
 
 aff'd 21 Week. Rep. 
 
 175.... 170 
 
 Mowry v. Home L. Ins. Co., 9 
 
 R. 1.346 26 
 
 Muckenburg v. Holler, 29 Ind. 
 
 139 153 
 
 Mugler V. Kansas, 123 U. S. 273, 
 
 31 L. ed. 214. 223 
 
 Muirhead v. Aldridge, 14 Nat. 
 
 Bankr. Reg. 249 3 
 
 Mulcahy v. Reg., L. R. 3 H. L. 
 
 306, 1 Ir. C. L. Rep. 
 
 13 818,419 
 
 Mumford v. Gething. 7 C. B. N. 
 
 S. 305,317. 
 
 86, 167, 172, 196, 200 
 Munn V. Illinois, 94 U. S. 113, 24 
 
 L. ed. 77. 244 
 
 MuntB. Stokes, 4 T.R. 561. 147 
 
 Murch V. Wright, 46 111. 487 
 
 252, 255, 259 
 
 Murphy v. Red, 64 Miss. 614 28 
 
 Murray v. Ocheltree, 59 Iowa, 
 
 435... 42, 48, 57 
 
 V. Vanderbilt, 39 Barb. 140 270 
 Murtaugh v. CoUigan, 28 111. App. 
 
 433 18 
 
 Mussel Slough Case, The, 5 Fed. 
 
 Rep. 680 320, 375, 425 
 
 Musser v. Ferguson, 55 Pa. 475.. 8 
 Mutual Aid Asso., Re, 15 Phila. 
 
 625 278 
 
 Mutual Ben. Asso. of Michigan 
 
 V. Hoyt, 46 Mich. 473 64 
 
 Mutual L. Ins. Co. of New York 
 
 V. Watson, 30 Fed. 
 
 Rep. 653 40, 41 
 
 Myers v. Baker, 9 West. Rep. 490, 
 
 120 111. 567 213 
 
 ®. State, 1 Conn. 502 64, 68 
 
 N. 
 
 Nairn v. Prowse, 6 Ves. Jr. 752. 151 
 
 Nash V. Lathrop, 1 New Eng. 
 
 Rep. 918, 142 Mass. 29 108 
 
 Nashville «. Cooper, 73 U. S. 6 
 
 Wall. 251, 18 L.ed. 852 218 
 
 National Bank of Genesee «. 
 Whitney, 103 U. S. 99, 
 
 26L. ed. 443 83 
 
 of the Metropolis v. 
 Sprague, 20 N. J. Eq. 
 159 165 
 
 National Benefit Co. ®. Union 
 Hospital Co. (Minn.) 11 
 L. R. A. 437 238 
 
 National Prov. Bank v. Marshall, 
 
 L. R. 40Ch. Div. 112. 202 
 
 Nellis v. Clark, 20 Wend. 24, 4 
 
 Hill, 424. 137 
 
 Nelson v. Pickwick Associated 
 
 Co., 30 111. App. 333.. 21 
 
 Nevill V. State, 60 Ind. 309 315 
 
 New V. Walker, 6 West. Rep. 869, 
 878, 108 Ind. 355, 365 
 
 54, 68 
 
 New Albany & S. R. Co. v. Mc- 
 
 Cormick, 10 Ind. 499. 133 
 
 New Hampshire Sav. Bank v. 
 
 Colcord, 15 N. H. 119 13 
 
 New Hanover Bank v. Brideers, 
 
 98 N. C. 67 18 
 
 New Haven, M. & W.M. Mut.Sav. 
 Bank & Bldg. Asso. v. 
 Meriden Agency Co., 
 24 Conn. 159 287 
 
 New Orleans & O. R. Co. v. Mel- 
 len, 79 U. S. 362, 20 L. 
 ed. 434 257 
 
 New Orleans Gaslight Co. v. La. 
 Liffht&Heat Co., 115 
 U.'S. 650, 29 L.ed. 516 
 
 211, 230, 232 
 
 New Orleans Water Works Co. v. 
 Rivers, 115 U. S. 664, 
 29 L. ed. 525 211, 232 
 
 New York & R. Cement Co. v. 
 Coplay Cement Co., 10 
 L. R. A. 833, 44 Fed. 
 Rep. 277 2 
 
 New York & S. Canal Co. v. Ful- 
 ton Bank, 7 Wend. 412 243 
 
 New York Compagnie Generale 
 Transatlantique, 107 
 U. S. 59, 27 L. ed. 383 221 
 
 New York Guaranty & Ind em. 
 Co. V. Flynn, 55 N. Y. 
 653 76 
 
 New York J. G. Soc. v. Roose- 
 velt, 7 Daly, 188, 190. 360
 
 XXXVl 
 
 CASKS CITED. 
 
 New York, L. E. & W. R. Co. v. 
 
 Wenger, 17 Weeklv 
 
 Law Bulletin, 306.. 405, 406 
 New York Mut. L. Ins. Co. v. 
 
 Armstrong, 117 U. S. 
 
 591, 29 L. ed. 997.... 27 
 
 Newall V. Jenkins, 26 Pa. 159. .. 322 
 Newberry Bank «. Stegall, 41 
 
 Miss. 142 204 
 
 Newburg Petroleum Co. v. Weare, 
 
 27 Ohio St. 343. 148 
 
 Newell «. Meyendorff, 9 Met. 254 196 
 Newman v. Com. (Pa.) 5 Cent. 
 
 Rep. 497. 403 
 
 V. Newman , 4 Maule & S. 66 204 
 
 Newsom v. Thigben, 30 Miss. 414 107 
 Nicewanger i). Bevard, 17 Ind. 
 
 621 13 
 
 Nichols V. Bunting, 3 Hawks, 86 119 
 
 V. Council, 51 Ark. 26 81 
 
 V. Mudgett, 32 Vt. 546 111 
 
 V. Palmer, 5 Day, 47 155 
 
 v. lluggles, 3 Day, 145, 3 
 
 Am. Dec. 262 2, 136 
 
 Nicoll V. Beere, 53 L. T. N. S. 659 168 
 Niemeyer v. Wright, 75 Va. 239, 
 
 40 Am. Rep. 720 81, 83 
 
 Nobles v. Bates, 7 Cow. 307... 170, 174 
 
 Noel «. Drake, 28 Kan. 265 2 
 
 Noice V. Brown, 39 N. J. L. 133. 153 
 
 Noonan v. Nunan, 76 Cal. 44 248 
 
 Norris v. Norris, 9 Dana, 318 2 
 
 «. Ward, 59N. H. 487.-.- 13 
 
 North ». Nelson, 28 Ala. 511 6 
 
 «. Phillips, 89 Pa. 250 41 
 
 Norton «. Derry Nat. Bank, 61 
 
 N. H. 589 - 148 
 
 V. People, 8 Cow. 137 423 
 
 Norwich Gaslight Co. v. Norwich 
 
 City Gas Co., 25 Conn. 
 
 19 211, 212, 232 
 
 Noyes v. State, 4T N. J. L. 418-. ' 325 
 Nudd V. Burrows, 91 U. S. 420, 23 
 
 L. ed. 286 423 
 
 Nurse v. Craig, 2 Bos. & P. 148. 
 
 155, 158 
 Nye V. Moseley. 9 Dowl. & R. 
 
 165, 6 Barn & C. 133. 7 
 
 O. 
 
 81 
 
 Oaks v. Heaton, 44 Iowa, 116 
 
 Gates V. First Nat. Bank, 100 U. 
 
 S. 239, 25L. ed. 580.. 92 
 Ockerman v. Cross, 54 N. Y. 29. 89 
 OConnell?). Reg., 11 Clark & F. 
 
 155 292, 317, 319, 320 
 
 Odineal v. Barry, 24 Miss. 9 6 
 
 Ogden V. Gibbons, 4 Johns. Ch. 
 
 150, 1 L. ed. 797 217 
 
 V. Ogdeu, 1 Bland, Ch. 284 151 
 
 Ohio & M. R. Co. V. McCarthy, 
 96 U. S. 258, 267, 24 
 L. ed. 693, 695 148 
 
 Oil Creek & A. R. R. Co. v. Penn- 
 sylvania Transp. Co., 
 83 Pa. 160. 148 
 
 Old Dominion S. S. Co. v. Mc- 
 Kenna,24Blatchf. 244, 
 30 Fed. Rep. 48.368, 404, 407 
 
 01dershaw«. Knowles, 4111. App. 
 
 63, 6 111. App. 325...- 47 
 Oliver v. Towns, 14 Mart. (La.) 97 87 
 Olmsted v. Keyes, 86 N. Y. 593. 28 
 O'Neal V. State, 14 Tex. App. 346 426 
 Ontario Salt Co. v. Merchants 
 
 Salt Co., 18 Grant, Ch. 
 
 (U. C.) 540-...223, 238, 247 
 O'Rear v. Kiger, 10 Leigh, 622.. Ill 
 Oregon Pac. R. Co. v. De Forest, 
 
 32 N. Y. S. R. 178... 18 
 Oregon R. »fc Nav, Co. v. Orecon- 
 
 ianR.Co.,130U. S. 1, 
 
 32 L. ed. 837. .284, 288, 289 
 Oregon Steam Nav. Co. v. Hale, 
 
 1 Wash. 283, 34 Am. 
 
 Rep. 803 172 
 
 V. Winsor, 87 U. S. 20 Wall. 
 
 64, 22 L. ed. 315 
 
 157, 162, 165, 170, 172. 
 
 195-198, 200, 205, 218, 239 
 Ormerod «. Dearman, 100 Pa. 561 ] 16 
 Ormes «. Dauehy, 82 N. Y. 443. 109 
 Orr V. Meek, 9 West. Rep. 241, 
 
 111 Ind. 40... 71 
 
 Osbaldiston v. Simpson, 13 Sim. 
 
 513 116 
 
 Osborn v. Crosbv, 1 New Eng. 
 
 Rep. 845. 63 N. H. 583 12 
 V. Gautz, 60 N. Y. 540, 80 
 
 111. 511 76 
 
 1). United States Bank, 22 
 
 U. S. 9 Wheat. 826, 6 
 
 T ed ^"^5 217 
 
 Osborne «. Williams', 18 Ve's' Jr" 379 144 
 Oscanyan v. Winchester Repeat- 
 ing Arms Co., 103 U. 
 
 S. 261, 26 L. ed. 539. 
 
 2, 67, 87, 107, 133, 137 
 Osgood V. Bauder, 75 Iowa. 550. 52 
 Ossipee H. & W. Mfg. Co. v. 
 
 Canney, 54 N. H. 295 
 Outon v. Rodes, 3 A. K. Marsh. 
 
 433 111 
 
 Ovm«. Bruce, 12 East, 225 105 
 
 Oweus V. State, 16 Lea, 1 314, 426 
 
 Oxford Iron Co. v. Quinchett, 44 
 
 Ala. 487 .- 141
 
 CASES CITED. 
 
 XXXVll 
 
 P. 
 
 Pacific Factory Co. v. Adler, 90 
 
 Cal. 110 238,261 
 
 Pacific Guano Co. ■». Mullen, 66 
 
 Ala. 582 63, 141 
 
 Pacific R. Co. V. Seely. 45 Mo. 212 132 
 
 Page V. Trufant, 2 Mass. 159 156 
 
 Palmer v. Bate, 2 Brod. & B. 673 112 
 
 V. Forbes, 23111.301 255 
 
 V. Graham, 1 Pars. Eq. Cas. 
 
 476 200, 201 
 
 «. Harris, 60 Pa. 156 2 
 
 t. New York, 2 Sandf. 318 79 
 V. Stebbins, 3 Pick. 188, 15 
 
 Am. Dec. 204.169, 195, 201 
 Pana v. Bowler, 107 U. S. 529, 27 
 
 L. ed. 424 93 
 
 Pansborn v. Westlake, 36 Iowa, 
 
 546 81 
 
 Parish «. Foss, 75 Ga. 439 71 
 
 ®. Stone, 14 Pick. 198 206 
 
 V. Wheeler, 22 N. Y. 494.. 148 
 Parkers. Huntington, 2 Gray, 124 
 
 822, 327 
 Parmentier v. Pater, 13 Or. 121.. 5 
 Parry v. Parry (Wis.) May 5, 1891 4 
 Parsons v. Randolph, 4 West. 
 Rep. 863, 865, 21 Mo. 
 
 App. 353. .-108. 189 
 
 Parsons Oil Co v. Boyett, 44 Ark. 
 
 230 - 55 
 
 Parton v. Hervev, 1 Gray, 119... 82 
 Paschal, Ee, 77 U. S. 10 Wall. 
 
 483, 19 L. ed. 993 123 
 
 Passenger Cases, 48 U. S. 7 How. 
 
 283, 12L. ed. 702 .... 220 
 Patten «. Gurney, 17 Mass. 182.. 330 
 Patterson t. Donner, 48 Cal. 369 116 
 Patton «. Nicholson, 16 U. S. 3 
 Wheat. 204, 4 L. ed. 
 
 371 137 
 
 Paul V. Cullum, 132 U. S. 539, 38 
 
 L. ed.430-. 247 
 
 V. Slate, 12 Tex. App. 346 426 
 
 Paynes. Eden, 3 Cai. 213 69 
 
 V. Western & A. R. Co., 13 
 
 Lea, 507 407 
 
 Pearce v. Brookes, L. R. 1 Exch. 
 
 213 141 
 
 «. Foote, 113 111. 234 43 
 
 V. Wilson, 2 Cent. Rep. 57. 
 
 Ill Pa. 14... 116 
 
 Pearson v. Chapin, 44 Pa. 9 67 
 
 Pechell V. Watson, 8 Mees. & W. 
 
 691 ' 118 
 
 Peck V. Burr, 10 N. Y. 294. 6 
 
 Peek V. Peek, 1 L. R. A. 185, 77 
 
 Cal. 106 21 
 
 Peltz V. Eichele, 62 Mo. 171 ..171, 205 
 
 Pence v. St. Paul, M. & M. R. 
 
 Co., 28 Minn. 488 264 
 
 Peninsular & O. Steam Nav. Co. 
 V. Shand, 11 Jur. N. 
 
 S. 771 88 
 
 Pennington v. Todd (N. J.) 11 L. 
 
 R. A. 589 144 
 
 Pennock». Coe, 64 U. S. 23 How. 
 
 117, 16 L. ed. 436 .... 257 
 Pennsylvania v. Wheeling & B. 
 Bridge Co.. 54 U. S. 
 13 How. 518, 14 L. ed. 
 
 249. 219 
 
 Pennsylvania Co. «. Fairchild, 69 
 
 111. 260 88, 98 
 
 V. Wentz, 37 Ohio St. 333, 
 
 339. 141 
 
 Pennsylvania R. Co. v. Com. (Pa.) 
 
 4 Cent. Rep. 495, 501. 268 
 V. St. Louis, A. & T. H. 
 R. Co., 118 U. S. 290, 
 
 SOL. ed. 83 209 
 
 Pennsylvania R. Co.'s App. (Pa.) 
 
 4 Cent. Rep. 495 269 
 
 Pensacola Teleg. Co. v. Western 
 U. Teleg. Co., 96 U.S. 
 
 1, 24L. ed. 708 220 
 
 People V. American Sugar Ref. 
 Co. (Cal.) 7 Ry. & 
 Corp. L. .1. 83.261, 277, 282 
 V Arnold, 46 Mich. 268... 310 
 V. Barkelow, 37 Mich. 455 413 
 V. Barondess, 41 N. Y. S. 
 
 R. 659 384 
 
 V. Boston & A. R. Co., 70 
 
 N. Y. 569 
 
 V. Boston, H. T. & W. R. 
 Co., 12 Abb. N. C.230 
 V. Bradford, 1 Wheel. Crim. 
 Cas. 219 
 
 V. Brady, 56 N.'Y.'i90 
 
 V. Bristol &R.Turnp. Road, 
 
 23 Wend. 235. 281 
 
 ®. Brooks, 4 Denio. 469... 217 
 
 ®. Bush, 4 Hill, 133 415 
 
 v. Chase, 16 Barb. 495 356 
 
 «. Chicago Gas Trust Co., 
 8 L. R. A. 497, 130 I!!. 
 
 268 230,262,278, 
 
 277-279. 280, 289 
 V. Clark, 10 Mich. 310.... 
 
 325, 329, 413, 413 
 V. Colorado C. R. Co., 42 
 
 Fed. Rep. 638 207 
 
 v. Corporation of Albany, 
 
 11 Wend. 539 .... 68 
 
 v. Dispensary & H. Society 
 of the Women's Inst., 
 
 7Lans. 304 281 
 
 T. Evans, 68 Cal. 113 417 
 
 265 
 
 265 
 
 830 
 356
 
 XXXVlll 
 
 CASES CITED. 
 
 People V. Fields, 52 Hun, 65 
 
 V. Fisher, 14 AVend. 9, 15. 
 
 313, 316, 335. 336, 356, 
 V. Fishkill & B. PL Road 
 
 Co., 27 Barb. 445 
 
 V. Flack, 11 L. R. A. 807. 
 
 125 N. y. 324.321, 323, 
 
 V. Griffen, 2 Barb. 427 
 
 V. Jones. 12 West. Rep. 77, 
 
 67 Mich. 544... 
 
 V. Kief, 126 N. Y. 661 
 
 V. Knapp, 26 Mich. 112... 
 V. Kostka, 4 N. Y. Grim. 
 
 Rep. 429 .364, 
 
 V. Leith, 52Cal. 251 
 
 1). McDaniels, 1 Park. Cr. 
 
 198 
 
 V. Mather, 4 Wend. 229- 
 
 265 309, 314-316, 
 
 319, 416, 421, 
 V. Melvin, 2 Wheel. Crim, 
 
 Cas. 262 
 
 V. North River Sugar Ref. 
 
 Co., 2 L. R. A. 33, 23 
 
 Abb. N. C. 164, 5 L. 
 
 R. A. 387, 54 Hun, 354, 
 
 9 L. R. A. 33, 121 N. 
 
 Y. 582.... 22,209, 213- 
 
 214, 218, 219, 235, 243, 
 
 247, 261, 270, 273,274, 
 
 277, 278, 279, 281, 282, 
 V. Petheram, 7 West. Rep. 
 
 503, 593, 64 Mich. 352 
 
 303, 319, 352, 383, 
 
 412, 413, 416, 
 T. Phippin, 14 West. Rep, 
 
 247, 70 Mich. 6 
 
 V. Pool, 27Cal. 572 
 
 1). Powell, 63 N. Y. 88 
 
 V. Richards, 67 Cal. 412... 
 1). Richards, 1 Mich. 216.. 
 
 314, 329, 
 V. Saunders, 25 Mich. 124. 
 V. Seaman, 5 Denio, 413 .. 
 ■0. Shriver, 31 Alb. L. J. 
 
 163 
 
 V. Stephens, 71 N. Y. 527. 
 V. Trequier, 1 Wheel. Crim. 
 
 Cas. 142. 151.. 356, 381, 
 
 V. Trim, 39 Cal. 75 
 
 V. Underwood, 16 Wend. 
 
 546 ...325, 
 
 V. Washburn, 10 Johns. 
 
 160 
 
 1). Watson, 75 Mich. 583.. 
 
 ■B. Whaley, 6 Cow. 663 
 
 V. Wilzig, 4 N. Y. Crim. 
 
 L. Rep. 403,418.364, 384, 
 V. Woodward, 45 Cal. 293. 
 V. Woody, 45 Cal. 389 
 
 71 
 408 
 
 381 
 
 420 
 390 
 
 316 
 423 
 
 422 
 
 384 
 315 
 
 390 
 
 426 
 335 
 
 818 
 
 420 
 
 71 
 815 
 356 
 315 
 
 413 
 314 
 356 
 
 76 
 309 
 
 408 
 335 
 
 356 
 
 323 
 331 
 389 
 
 387 
 433 
 315 
 
 Peoria & R. I. R.Co.w.Coal Valley 
 
 Min. Co., 68 111. 489.. 208 
 Peoria & S. R. Co. v. Thompson, 
 
 103111.187 14» 
 
 Pepper v. Haight, 20 Barb. 488.139, 356 
 
 Perkins v. Clay. 54 N. H. 519... 168 
 
 V. Cummings, 2 Gray, 358. 141 
 
 ®. Eaton. 3 N. H. 153 49 
 
 V. Lockwood, 100 Mass. 250 13 
 
 V. Lyman, 9 Mass. 522 
 
 164, 174, 198, 200, 313 
 V. Savage, 15 Wend. 413.. 137 
 
 Perry v. Dicken, 105 Pa. 83 132 
 
 V. Pearson, 135 111. 318 ... 134 
 Peterson v. Christensen, 36 Minn. 
 
 377 6 
 
 Petrie v. Hannav, 8 T. R. 418... 146 
 
 Pettit V. Pettit, 33 Ala. 288 6 
 
 V. Pettit, 10 Cent. Rep. 255. 
 
 107 N. Y. 667 156, 158 
 
 V. State, 38 Tex. App. 340 71 
 Pfeiffer v. Campbell, 111 N. Y. 
 
 631 11, 13 
 
 Pflugar V. Pultz, 9 Cent. Rep. 488, 
 
 43iN. J.Eq. 440 19 
 
 Phelan v. New York, 38 N. Y. S. 
 
 R. 805... 106, 111 
 
 Phelps 1). Goddard, 1 Tyler. 60.. 338 
 Philadelphia & S. M. S. S. Co. v. 
 Pennsylvania, 133 U. 
 S. 336. 30 L. ed. 1200. 220- 
 Philadelphia Medical College 
 
 Case. 3 Whart. 445... 289 
 
 Philips V. Hatch, 1 Dill. 578 101 
 
 V. Stevens, 16 Mass. 238... 260 
 
 1). Thorp, 10 Or. 494 153. 155 
 
 Philpot V. Gruninger, 81 U. S. 14 
 
 Wall.570,20L.ed.743.13, 30 
 Phoenix Mut. L. Ins. Co. v. 
 Bailey, 80 U. 8. 13 
 Wall. 616, 30 L. ed. 
 
 501 26 
 
 Pickard v. Pullman Southern Car 
 Co.. 117 U. S. 34. 39 L. 
 
 ed. 785 331 
 
 Pickering v. Cease. 79 111. 828. ..39. 40 
 
 «. Fisk, 6 Vt. 102 89 
 
 V. Ilfracomb R. Co., L. R. 
 
 8C. P. 250 204,205 
 
 Pickett 1). Foster, 36 Fed. Rep. 
 
 514 89 
 
 Pierce v. Brooks, L. R. 1 Exch. 
 
 213 64 
 
 V. Chase, 8 Mass. 487 109 
 
 V. Evans, 61 Pa. 415. 6, 68 
 
 V. Fuller, 8 Mass. 223. 236, 
 
 5 Am. Dec. 103 
 
 169, 174, 300, 301, 213 
 V. O'Brien, 139 Mass. 314, 
 
 87 Am. Rep. 860 87
 
 CASES CITED. 
 
 XXXIX 
 
 Pierce v. Woodward, 6 Pick. 206 
 
 167, 172, 174 
 Pierson v. Hoag, 47 Barb. 243... 76 
 Pike V. Thomas, 4 Bibb, 486, 489, 
 
 7 Am. Dec. 741.170, 171, 174 
 Pilcher's Succession, 29 La. Ann. 
 
 362 247 
 
 Pilkington v. Scott, 15 Mees. & 
 
 W. 657, 660 200,201 
 
 Pine Grove Twp. v. Talcott, 86 
 
 U. S. 19 Wall. 666, 
 
 696, 22 L. ed. 227. 233 
 
 92, 148 
 Pingry v. Washburn, 1 Aik. 264.6, 110 
 
 Piper V. Foster, 121 Ind. 407 18 
 
 Pittsburgh & C. R. Co. v. Bedford 
 
 &B. R. Co., 81 Pa. 104 266 
 Pittsburgh, C. & St. L. R. Co. v. 
 
 Columbus, C. & 1. C. 
 
 R. Co., 8Biss. 456 ... 263 
 Pittsburgh Carbon Co. v. McMil- 
 
 lin, 7 L. R. A. 46, 119 
 
 N. Y. 46, 24 Abb. N. 
 
 C. 96, 53 Hun, 67 
 
 138 145 288 
 Pixley t). Boynton, 79 111. 351, 353.42, 43 
 Place ®. Hayward, 117 N. Y. 
 
 487 145 
 
 Planche v. Fletcher, Dougl. 251. 105 
 Planters Bank v. St. John, 1 
 
 Woods, 589 101 
 
 V. Sharp, 4 Smedes & M . 75 82 
 ®. Union Bank, 83 U. S. 16 
 
 Wall. 483, 21 L. ed. 
 
 473 146, 148 
 
 Plaskett, Be, 30 L. J. Ch. 606, 9 
 
 Week. Rep. 628, 4 L. 
 
 T. N. S. 544 9 
 
 Piatt ». Continental Ins. Co., 62 
 
 Vt. 166 90 
 
 Plunkettc. Black, 117 Ind. 14. .11, 21 
 Pneumatic Gas Co. v. Berry, 113 
 
 U. S. 322, 327, 28 L. 
 
 ed. 1003 148 
 
 Poe©. Davis, 29 Ala. 683.. 118 
 
 V. Stockton, 39 Mo. App. 
 
 550 423 
 
 Pollard ?). Evans, 2 Show. 50 419 
 
 Pope V. Terre Haute Car & Mfg. 
 
 Co., 9 Cent. Rep. 321, 
 
 107N. Y. 61 12 
 
 Poplett V. Stockdale, 1 Ryan & M. 
 
 337. 2 
 
 Porter v. Bessemer Steel Co., 122 
 
 U. S. 267, 30 L. ed. 
 
 1210 255 
 
 V. Gorman, 65 Ga. 11 177 
 
 Potts v. Bell, 8 T. R. 548 104, 105 
 
 Poulterers Case, The (1611) 9 Rep. 
 
 55, Moore, 814 295, 416 
 
 Powell V. Pennsylvania, 127 U. S. 
 
 678, 32 L. ed. 253 223 
 
 Powers, i?e, 25 Vt. 265 78 
 
 V. Skinner, 34 Vt. 274 110 
 
 Prairie Lodge v. Smith, 58 Miss. 
 
 301,308 148 
 
 Pratt V. Hutchinson, 15 East, 511 223 
 V. Ogdensburg & L. C. R. 
 
 Co., 102 Mass. 557 244 
 
 V. Pierce, 36 Me. 448 119 
 
 V. Short, 79 N. Y. 437 82 
 
 Pray v. Burbank, 10 N. H. 377.. 68, 72 
 Prescott V. Battersby, 119 Mass. 
 
 285 67, 68, 81 
 
 Preston v. Cincinnati, C. & H. "V. 
 R. Co., IL. R. A. 140, 
 
 36 Fed. Rep. 54 49, 61 
 
 Prewit V. Wilson, 103 U. S. 22, 
 
 26L. ed. 360 151 
 
 Price V. Green, 16 Mees. & W. 
 
 346 201,203 
 
 v. McCallister, 3 Grant, 
 
 Cas. 248 252 
 
 «. Summers, 5 N. J. L. 578 116 
 Priest V. Cummings, 20 Wend. 
 
 353 356 
 
 Prince v. Eighth St. Baptist 
 Church, 2 West. Rep. 
 621, 20 Mo. App. 332. 85 
 Printing & N. Reg. Co. v. Samp- 
 son, L. R. 19 Eq. 462, 
 465, 32 L. T. N. S. 354 
 
 64, 65, 176, 197, 202, 239 
 Prouty V. Lake SLore & M. S. R. 
 Co., 6 Hun, 246, 64 N. 
 
 Y. 641 266 
 
 Providence Tool Co. v. Norris, 
 69 U. S. 2 Wall. 48, 56, 
 
 17 L. ed. 868, 871 
 
 106. 108, 110, 132 
 Provident L. Ins. «& Inv. Co. v. 
 
 Baum, 29 Ind. 236 ... 28 
 Prudential Assur. Co. ■». Knott, 
 
 L. R. 10 Ch. 142 
 
 360, 361, 363, 408 
 Puckett v. Alexander, 3 L. R. A. 
 
 43, 102N. C. 95 .3,71 
 
 Pueblo & A. V. Co. v. Taylor, 6 
 
 Colo. 1 141 
 
 Q. 
 
 Quint V. Ophir Silver Mining Co., 
 
 4 Nev. 305 123 
 
 R. 
 
 Racine Co. Bank v. Ayres, 12 
 
 Wis. 512. 132
 
 xl 
 
 CASES CITED. 
 
 Rafael v. Verelst, 2 W. Bl. 1055. 368 
 
 Raguet V. Roll. 7 Ohio, 70 204 
 
 Raleigh v. Cook, 60 Tex. 438 332 
 
 Ralph V. Brown, 3 Watts & S. 
 
 395. 88 
 
 Ralston v. Boady, 20 Ga. 449 5 
 
 Ramsey «. Trent, 10 B. Mon. 341 122 
 
 Rand*. Mather, 11 Cush. 1 205 
 
 Randall ®. Randall. 37 Mich. 572 155 
 Randolph v. New jersey W. L. 
 
 R. Co., 28 N.J. Eq. 49 258 
 Rannie v. Irvine, 7 Man. & G. 
 
 969. 182 
 
 Rawls V. American Mut. L. Ins. 
 
 Co., 27 N. Y. 282...- 26 
 
 Rsijv. Mackin. 100 111. 246 6, 106 
 
 Raymond v. Leavitt, 46Mich.447, 
 
 41 Am. Rep. 170 
 
 2, 45. 166, 213, 309 
 Read v. Joannon, L. R. 25 Q. B. 
 
 Div. 300 258 
 
 Ream v. Hamilton, 15 Mo. App. 
 
 577 59 
 
 Reding v. Smith. L. R. 1 Exch. 
 
 Div. 91... 299 
 
 Reed «. Jones, 8 Wis. 392 4 
 
 V. Peper Tobacco Ware- 
 house Co., 2 Mo. App. 
 
 82 111, 126 
 
 ®. Vannorsdale, 2 Leigh, 
 
 569- 20 
 
 Reg. V. Absolon. 1 Fost. & F. 498 318 
 V. Aspinall, L. R. 1 Q. B. 
 
 Div. 730 326.327,418 
 
 V. Aspinwall, L. R. 2 Q. B. 
 
 Div. 57 2 
 
 V. Banks, 12 Cox, C. C. 
 
 393 381,412 
 
 i\ Barrett, 18 L. J. 430 364 
 
 V. Bauld, 13 Cox, C. C. 282 406 
 1). Best. 2 Ld. Raym. 1167, 
 1 Salk, 174, 6 Mod. 
 
 185 298, 299. 
 
 314. 319. 323, 330, 333 
 
 «. Blacket, 7 Mod. 39 312 
 
 1). Boulton, 12 Cox, C. C. 87 418 
 V. Brown. 7 Cox, C. C. 442. 
 
 8Cox,C. C. 69-326,329,413 
 ®. Bunn, 12 Cox. C. C. 316 
 
 313, 315. 320, 381 
 c. Button, 12 Jur. 1017. 11 
 
 Q. B.NS. 929.314, 330, 333 
 V. Carlisle, 6 Cox, C. C. 306, 
 
 23 L. J. M. C. 109.. 291, 327 
 «. Cracknell, 10 Cox, C. C. 
 
 408. - 299 
 
 V. Cruse, 8 Car. & P. 541. 422 
 •a. Druitt. 10 Cox, C. C. 
 592. 16 L. T. N. S. 855 
 
 313, 316, 881, 384 
 
 Reg. V. Duffield, 5 Cox, C. C. 404. 
 
 431, 432 291, 336, 338 
 
 V. Edwards, 1 Strange, 707, 
 8 Mod. 320, 1 Sess. Cas. 
 
 836 300 
 
 v. Esdaile, 1 Fost. & F. 
 
 213 325, 329, 413 
 
 V. Gompertz, 9 Q. B. 824.. 
 
 329, 330, 333 
 v. Gurnev, 11 Cox, C. C. 
 
 414,439 .214,326 
 
 V. Hamilton, 1 Car. & K. 
 
 212. 7 Car. & P. 443.299,413 
 V. Harris, 1 Car. & M. 661 313 
 V. Hewitt, 5 Cox, C. C. 162 
 
 316, 317, 385 
 V. Heymann, L. R. 8 Q. B. 
 
 102 413 
 
 V. Hibbert, 13 Cox, C. C. 82 
 
 338, 384, 406 
 V. Hilton, 5 U. C. L. J. 70 422 
 V. Howel, 4 Fost. & F. 160 
 
 311 319 
 V. Howell, 9 Car. & P. 437 ' 422 
 V. Hudson, 8 Cox, C. C. 305 329 
 V. Kenrick, 5Q.B. N. S. 49 
 313, 316, 327, 329, 330. 
 
 333, 413 
 •v. Lewis, 11 Cox, C. C. 404 
 
 827, 829 
 V. MacKarty, 2 Ld. Raym. 
 1179. 6 Mod. 301, 1 
 
 Salk. 286 
 
 300, 321, 328, 330, 333 
 ©. McMahon, 26 U. C. Q. 
 
 B. 195 317 
 
 «. Mears, 2 Den. C. C. 79, 
 
 20 L.J. M. C. 59 
 
 311, 319. 323, 824 
 V. Menage, 3 Fost. & F. 310 299 
 V. Most, L. R. 7 Q. B. Div. 
 
 244 426 
 
 V. Orbell, 6 Mod. 42 
 
 300, 325, 328, 380 
 1). Orraan, 14 Cox, C. C. 
 
 381 327 
 
 V. Parnell, 14 Cox, C. C. 
 
 508 318, 410, 411 
 
 «. Peck, 9 Ad. & El. 686.. 
 
 310, 318, 325 
 «. Powell, 4 Fost. & F. 160 
 
 323, 324 
 v. Richards, 11 Cox, C, C. 
 
 43 299 
 
 ®. Ro wTandsVi? q" B." 686' 
 5 Cox, C. C. 436, 460, 
 490, 2 Den. C. C. 364 
 2, 292, 313, 321. 333. 
 
 338, 381, 414 
 «. Rycroft, 6 Cox, C. C. 76 413
 
 CASES CITED. 
 
 xli 
 
 Heg. V. Selsby, 5 Cox, C. C. 495, 
 
 note 313, 418 
 
 V. Shellard, 9 Car. & P. 
 
 277 317, 320, 321 
 
 V. Shepherd, 11 Cox, C. C. 
 
 3:35 384,405 
 
 V. Slavin, 17 U. C. C. P. 805 422 
 V. Stenson, 12 Cox, C. C. 
 
 Ill 329 
 
 V. Stroulger, L. R. 17 Q. 
 
 B. Div. 327-. -- 115 
 
 V. Taylor, L. R. 2 C. C. 147 423 
 V. Thompson, 16 Q. B. 832 322 
 V. Vincent, 9 Car. & P. 91, 
 
 109 315, 317,320, 321 
 
 V. Warburton, L. R. 1 C. 
 
 C. 274 2. 313, 315, 
 
 326, 327, 328, 336 
 V. Wilson, 8 Car. & P. Ill 330 
 
 Reid v. State, 20 Ga. 681 315 
 
 Rensselaer & S. R. Co. v. Davis, 
 
 43N. Y. 137... 265 
 
 Respublica v. Hevice, 3 Yeates, 
 
 114. ..312,324 
 
 Rex V. Armstrong, 1 Vent. 304-. 
 
 298, 317, 319, 333 
 
 V. Best, 6 Mod. 185 330 
 
 V. Birmingham, 8 Barn. & 
 
 C. 29 82 
 
 V. Bryan, 2 Strange, 866.. 
 
 298, 333 
 V. Bykerdike, 1 Mood. & 
 
 Rob. 179 313, 316, 317 
 
 V. Cannon, Russ. & R. 146 390 
 
 V. Cope, 1 Strange, 144 
 
 214, 301, 330, 419 
 V. De Berenger, 3 Maule & 
 S. 67, 68.214, 308, 330, 
 
 331, 334, 414, 416 
 «. Delaval,3Burr. 1434, 1 
 
 W. Bl. 410, 439-311, 319, 323 
 V. Donnally, 1 Leach, C. 
 
 C. 193--- 390 
 
 V. Eccles, 1 Leacli, C. C. 
 
 274, 3 Douffl. 337 
 
 301, 311,3r3,316, 317, 
 
 318, 334, 416 
 v. Edwards (1725) 1 Strange, 
 707, 1 Sess. Cas. 836, 8 
 
 Mod. 320 331, 416 
 
 «. Ferguson, 2 Stark. N. P. 
 
 489 313,335, 407, 412 
 
 V. Gill(1818)2Barn.&Ald. 
 
 204.-310, 314, 325, 331, 416 
 V. Grey, 2 How. St. Tr. 519, 
 
 9 How. St. Tr. 127... 312 
 D. Hammond, 2 Esp. 719.. 426 
 V. Hevey, 2 East, P. C. 856 326 
 
 V. Higgins, 2 East, 5 423 
 
 «. Hodgson,lLeach,C.C. 7 423 
 
 Rex V. Hollingberry, 4 Barn. & 
 
 C. 329 323, 332. 333 
 
 V. Hunt, 3 Barn. & Aid. 
 
 566 315, 317 
 
 V. Johnson, 2 Show. 1 323 
 
 v. Jones, 1 Leach, C. C. 139 390 
 V. Journeyman Tailors, 8 
 
 Mod. 11... 416 
 
 V. Kenrick, 5 Q. B. 49 336 
 
 V. Kimberty, 1 Lev. 62, 1 
 
 Keb. 254 -317, 333 
 
 V. Kinnersley, 1 Strange, 
 
 193 298, 333 
 
 «. Kroehl, 2 Stark. N. P. 
 
 343 315 
 
 «. Lara, 6 T. R. 565, 3 
 
 Leach, C. C. 647.. -308, 328 
 V. Leigh, 2 Macklin's Life, 
 
 217 -. 307 
 
 V. Lockett, 7 Car. & P. 300 422 
 
 ®. Lynn, 2T. R. 733- 319 
 
 V. MacDaniel, 1 Leach, C. 
 
 C. 44 323 
 
 V. Mason, 2 T. R. 586 310 
 
 V. Mawbey, 6T. R. 619, 636 
 
 311, 313, 316, 317, 323, 
 
 330, 334 
 
 ®. Mead, 1 Burr. 542 155 
 
 V. Mear, 2 Den. C. C. 79.. 323 
 V. Munz, 2 Strange, 1127.. 310 
 ®. Norris, 2 Ld. Kenyon, 
 
 300 214, 309, 316 
 
 v. Parsons, 1 W. Bl. 392-- 
 
 299, 333, 419 
 V. Passey, 7 Car. & P. 282 422 
 V. Pullman. 3 Campb. 239 
 
 320, 321 
 V. Richardson, 1 Mood. & 
 
 Rob. 402 316 
 
 V. Rispal, 3 Burr. 1320, 
 
 1321,1 W. Bl. 368 
 
 299, 319, 333, 333, 416 
 V. Roberts, 1 Campb. 399.. 330 
 V. Robinson, 1 Leach, C. 
 
 C. 37 307, 329, 331, 419 
 
 V. Ryckerdike, 1 Mood. & 
 
 R. 179. 407 
 
 V. Sergeant, Ryan & M. N. 
 
 P. 352 312 
 
 V. Seward, 1834, 1 Ad. & 
 
 El. 706. 301 
 
 V. Sidley, K. B. 15 Car. II. 
 
 (1664) 329 
 
 «. Spragg, 3 Burr. 993.. 323, 416 
 V. Standley, Russ.& R. 305, 
 
 1 Hale, P. C. 439, 462 423 
 
 v. Starling, 1 Keb. 655 302 
 
 v. Steel, 3 Moody, Crown 
 
 Cas. 246. 221 
 
 «>.Steventon, 3East, 363.315, 323
 
 Ixii 
 
 CASES CITED. 
 
 Rex V. Taylor, 15 Cox, C. C. 265 323 
 
 «. Thorp, 5 Mod. 221 312 
 
 V. Turner, 18 East, 228... 302 
 V. Vaughn, 4 Burr. 2494.. 320 
 V. Waddingtou (1800) 1 
 
 East, 143. 167 
 
 212, 213. 232, 334 
 V. Wheatly. 2 Burr. 1127, 1 
 
 W. Bl. 273.300, 308, 328, 330 
 
 Reynell v. Sprye, 8 Hare, 222 125 
 
 Reynolds v. Crawfordsville First 
 Nat. Bank, 112 U. S. 
 
 405, 28 L. ed. 733 83 
 
 V. Nichols, 12 Iowa, 398.. 68 
 «. Nugent, 25 Ind. 328.--. 12 
 
 Rhodes v. Neal, 64 Ga. 704 116 
 
 Rice V. Courtis, 32 Vt. 460 87 
 
 V. Gist, 1 Strobh. L. 82 6, 49 
 
 V. Maxwell, 13 Smedes & 
 
 M. 289 69 
 
 V. Williams, 32 Fed. Rep. 
 
 437 65 
 
 «. Wood, 113 Mass. 133... 3 
 Richardson v. Buhl. 6 L. R. A. 
 
 457, 77 Mich. 632 
 
 136, 219, 232, 237, 242, 
 
 244. 262, 273, 318 
 V. Crandall, 48 N. Y. 348.. 107 
 V. Forepaugh, 7 Gray, 546 
 
 89,90 
 V. Independent Dist. of 
 
 Hampton. 70 Iowa, 573 14 
 «. Mellish, 2 Bing. 229, 252 197 
 V. Peaooclc, 28 N. J. Eq. 
 151, 33 N. J. Eq. 597 
 
 164, 168 
 V. Rowland. 40 Conn. 565 120 
 
 «. Schultz, 98 Ind. 425 150 
 
 V. State. 47 Ark. 562 71 
 
 Richmond v. Dubuque »& S. C. R. 
 Co., 26 Iowa, 191, 202 
 
 197, 263 
 Richmond Retail Coal Co., Re 
 (Pa.) 9 Ry. & Corp. L. 
 
 J. 31 213, 232 
 
 Richter v. Frank, 41 Fed. Rep. 
 859. 8 Ry. & Corp. L. 
 
 J. 66 ....41, 45 
 
 V. Journeymen Tailors Un- 
 ion, 24 Week. L. Bull. 
 
 189 360, 362 
 
 Ricker v. American Loan & T. 
 Co., 1 New Eng. Rep. 
 
 733, 140 Mass. 346 250 
 
 Ricketts v. Harvey, 78 Ind. 152 116 
 
 Riddle v. Hall, 99 Pa. 116 116 
 
 Rider L. Raft Co. ®. Roach, 97 
 
 N. Y. 378... 244 
 
 Riding v. Smith, L. R. 1 Exch. 
 
 Div. 91 306 
 
 Ridout V. Bristow, 1 Cromp. & 
 
 J. 231 14 
 
 Riedlew. Mulhausen, 20 111. App. 
 
 68 137 
 
 Riehl V. E vansville Foundry Asso. , 
 
 1 West. Rep. 885, 104 
 
 Ind. 70. 419< 
 
 Rigby V. Connol, L. R. 14 Ch. 
 
 Div. 482 408 
 
 Righter ». Farrel, 134 Pa. 482... 247 
 Riley «. Jordan, 122 Mass. 231.. 64 
 Ritenour v. Mathews, 42 Ind. 7.. 12 
 Riltler v. Smith, 2 L. R. A. 844, 
 
 70Md. 261 38 
 
 Robbins v. Shelby County Tax- 
 ing Dist. 120 U. S. 489, 
 
 493, 30 L. ed. 694, 696 
 
 220, 221 
 Roberts ». Frisby, 38 Tex. 229. . . 152 
 V. Roberts, 3 P. Wms. 75, 
 
 note, 1 152 
 
 Robeson v. Pittenger, 2 N. J. Eq. 
 
 57 95- 
 
 Robinson v. Green, SMet. 161... 205 
 
 «. Jewitt, 116 N. Y. 40 12 
 
 1). McAfee, 59 Mich. 375.. 21 
 1). Merchants Dispatch 
 
 Transp. Co., 45 Iowa, 
 
 470 88, 9& 
 
 V. Morris, 5 Taunt. 720 104 
 
 V. Patterson. 71 Mich. 141 64 
 V. Touray, 1 Maule & S. 
 
 217, 3 Campb. 158.... 104 
 
 Roby V. West, 4 N. H. 285 64, 204 
 
 Rochester Sav. Bank v. Chick, 6 
 
 New Eng. Rep. 383, 
 
 64N. H. 410 la 
 
 Rock River Bank i). Sherwood, 10 
 
 Wis. 230 82 
 
 Rockafellow v. Miller, 9 Cent. 
 
 Rep. 862. 107 N. Y. 
 
 507 247 
 
 Rodney v. Chambers, 2 East, 283 155 
 Roehl V. Hausmesser, 12 West. 
 
 Rep. 899, 114 Ind. 311 19- 
 Rogers v. Rogers, 4 Paige, 516, 3 
 
 L. ed. 541 155, 158 
 
 Roll V. Raguet, 4 Ohio, 400 116' 
 
 Roller ®. Beam. 6 L. R. A. 136, 
 
 137, 86 Va. 512. 28, 37 
 
 Rolling V. Pueblo County Comrs., 
 
 15 Colo. 103. 423 
 
 Root 7). Stevenson, 24 Ind. 115.. 64 
 Roquemore «. Alloway, 33 Tex. 
 
 461 5. 141 
 
 Rose V. Mitchell, 6 Colo. 102 141 
 
 V. Truax, 21 Barb. 361, 372 
 
 107, 110, 204 
 Ross V. Chicago, R. I. & P. R. 
 
 Co., 55 Iowa, 691.... 123.
 
 CASES CITED. 
 
 xliii 
 
 Ross «. Sadgbeer, 31 Wend. 166 203 
 Rottler V. Smith, 3 L. R. A. 844, 
 
 70Md. 361 27 
 
 Roundtree v. Smith, 108 U. S. 
 
 269. 37 L. ed. 723 148 
 
 Rousillon V. Rousillon, L. R. 14 
 
 Ch. Div. 351, 363 
 
 165, 167, 182, 194, 196, 
 
 198, 199, 203, 203 
 Rowan v. Union Arms Co., 36 
 
 Vt. 124 254 
 
 Rowe V. Becliett, 30 Ind. 154 123 
 
 V. Sharp, 51 Pa. 26 251 
 
 Rowland v. JMartin (Pa.) 4 Cent. 
 
 Rep. 760 137 
 
 Roy V. Skirret, 1 Siderfln, 312.299, 328 
 Rucher v. Ausley, 5 Maule & S. 
 
 25 - 104 
 
 Ruchizky ■». De Haven, 97 Pa. 
 
 203 61 
 
 Ruckman v. Bergholz, 37 N. J. 
 
 L. 437 81 
 
 Rudolf®. Winters, 7 Neb. 125. .40. 41 
 Rue V. Meirs, 10 Cent. Rep. 682, 
 
 43 N. J. Eq. 377 14 
 
 v. Missouri P. R, Co., 74 
 
 Tex. 474 128 
 
 Rufer V. State, 25 Ohio St. 465.. 315 
 Ruloflf «. People, 45 N. Y. 213.. 422 
 Rumford Chemical Works v. 
 
 Muth, 1 L. R. A. 44, 
 
 35 Fed. Rep. 524 2 
 
 Rumsey v. Berry, 65 Me. 570.. 41, 48, 58 
 Rundell v. Kalbfus, 125 Pa. 123.. 427 
 Ruse©. Mutual Ben. L. Ins. Co., 
 
 23 N. Y. 516 26 
 
 Russell V. De Grand, 15 Mass. 35, 
 
 39.. 64, 84 
 
 D. Minor, 22 Wend. 659... 76 
 
 Rust V. Larue, 4 Litt. 411 118 
 
 Rutland & B. R. Co. v. Proctor, 
 
 29 Vt. 93 148 
 
 Ryall v. Rowles. 2 Lead. Cas. Eq. 
 
 734, 1 Ves. Sr. 348... 112 
 Ryan v. Missouri, K. & T. R. Co., 
 
 65 Tex. 13 88, 98 
 
 0. School Dist. No. 13 of 
 
 Dakota County, 27 
 
 Minn. 433 63 
 
 S. 
 
 St. John V. St. John, 11 Yes. Jr. 
 
 536... 153 
 
 St. Louis «. St. Louis Gas Light 
 Co., 5 Mo. App. 484, 
 70 Mo. 69 106, 208, 273 
 
 St. Louis, J. & C. R. Co. V. Math- 
 
 era, 71 111. 592.. 131, 207, 208 
 
 St. Mark's Church v. Teed, 120 
 
 N. Y. 583 18 
 
 St. Tammany Water Works Co. 
 
 V. New Orleans Water 
 
 Works Co., 120 U. S. 
 
 64, 30 L. ed. 563 232 
 
 Sac County v. Hobbs, 72 Iowa, 
 
 69 108 
 
 Sadlier v. Biggs, 4 H. L. Cas. 
 
 437-439 197 
 
 Sagew. Sleutz, 23 Ohio St. 1 252 
 
 Sainter v. Furgosson, 7 C. B. 716 201 
 
 Sampson v. Cresson, 6 Phila. 229 153 
 
 ». Shaw, 101 Mass. 145, 150 
 
 45, 57, 309 
 
 Samuel v. Oliver, 130 III. 73 137 
 
 Samuel Bowman Distilling Co. v. 
 
 Nutt, 34 Kan. 734 55 
 
 Samuels «. Oliver, 130 111. 73 309 
 
 Sanderson v. Bradford, 10 N. H. 
 
 265 90 
 
 Sanford «. Freeman, 5 Ind. 129. . 13 
 Santa Clara Academy v. Sullivan, 
 
 4 West. Rep. 114, 116 
 
 111. 375. 285 
 
 Santa Clara M. & L. Co. v. Hayes, 
 
 76 Cal. 287-... 239, 244, 278 
 Saratoga County Bank v. King, 
 
 44 N. Y. 87, 89. ...203, 204 
 
 Sargent v. Gile, 8 N. H. 325 353 
 
 Satterlee v. Jones, 3 Duer, 103... 107 
 Saunders v. Williams, 5 N. H. 313 87 
 Savannah, G. & N. A. R. Co. v. 
 
 State, 55 Ga. 557 263 
 
 Savile v. Roberts, 1 Ld. Raym. 
 
 374,378 437 
 
 Sawyer®. Smith, 109 Mass. 330.. 70 
 V. Taggart, 14 Bush, 737.. 
 
 41, 43, 46, 48 
 Saxby v. Easterbrook, L. R. 3 C. 
 
 P. Div. 339 408 
 
 Sayles v. Sayles, 31 N. H. 312.153, 155 
 Sayre v. Louisville Union Benev. 
 
 Asso., 1 Duv. 143 369 
 
 Schermerhorn v. Talman, 14 N. 
 
 Y. 93, 94 137, 144 
 
 Schifner v. Gordon, 12 East, 304. 64 
 Schnakoneg®. Andrews, 5 Taunt. 
 
 716. 719 104 
 
 Schneider v. Turner, 27 111. App. 
 
 220, 6 L. R. A. 164, 
 
 130 111.28 43, 52, 53 
 
 Schoenberger v. Mulhollan, 8 Pa. 
 
 134 367 
 
 Schofield V. Lake Shore & M. S. 
 
 R. Co., 1 West. Rep. 
 
 812, 827, 43 Ohio St. 
 
 571 233,234 
 
 Scholefleld v. Eichelberger, 32 U. 
 
 S.7Pet.586,8L.ed. 793 101
 
 xliv 
 
 CASES CITED. 
 
 Scholey v. Goodman, 1 Car. & P. 
 
 36, 1 Bing. 349 155 
 
 Scbomp V. Schenck, 40 N. J. L. 
 
 195 120 
 
 Schroeder v. Vax, 15 East, 52, 3 
 
 Campb. 84, note 103 
 
 Schuylkill County v. Copley, 67 
 
 Pa. 386 - 4 
 
 Schwab V. Mabley, 47 Mich. 573. 418 
 Scobeyw. Ross, 13 Ind. 117... 118, 119 
 
 Scott v. Dickson, 108 Pa. 6. 27 
 
 V. Eldridge (Mass.) 13 L. 
 
 R. A. 379 319,412 
 
 V. Osborne, 2 Munf. 413.. 20 
 
 V. State, 30 Ala. 503 426 
 
 Scribblehill v. Brett, 4 Brown's 
 
 Par. Cas. 144. 153 
 
 Scudder v. Bradbury, 106 Mass. 
 
 422 76 
 
 «. State, 63 Ind. 13 815 
 
 Scully V. State, 39 Ala. 240 341 
 
 Sebring v. Sebring, 43 N. J. Eq. 
 
 59 3 
 
 Sedgwick v. Stanton, 14 N. Y. 
 
 289 107, 108, 118, 120 
 
 Seed V. Lord, 66 Me. 580 254 
 
 Seeley v. Knox, 2 Woods, 368... 375 
 Seeligson v. Lewis, 65 Tex. 218.. 
 
 41, 63, 63 
 «. Taylor Compress Co., 56 
 
 Tex. 219 323 
 
 Seidenbender v. Charles, 4 Serg. 
 
 & R. 156 ...64, 68 
 
 Seigrist v. Schmaltz, 5 Cent. Rep. 
 
 230, 113 Pa. 326 26 
 
 Seymour «. Canandaigua & N. 
 
 F. R. Co., 35 Barb. 
 
 284 256 
 
 Shadwell v. Shadwell, 9 C. B. N. 
 
 S. 159 150 
 
 Shaffner «. Pinchback, 133 111. 
 
 410, 30 111. App. 355-. 52 
 Sharp V. Farmer, 4 Dev. & B. L. 
 
 123. 6, 35 
 
 «. Teese, 9 N. J. L. 438. ..68, 69 
 V. Whiteside, 19 Fed. Rep. 
 
 lU, note 163 
 
 Shattuck V. Watson, 7 L. R. A. 
 
 551, 53 Ark. 147 139 
 
 Shaw V. Bill, 95 U. S. 10, 34 L. 
 
 ed. 333 356 
 
 V. Clark, 49 Mich. 384, 386, 
 
 387. ..56, 58, 64 
 
 v. Woodbury Glass Works, 
 
 53N. J. L. 7 21 
 
 Shelby «. Cora. (Ky.) May 30, 
 
 1891 433 
 
 Shelthar v. Gregory, 3 Wend. 422, 
 
 423 153, 154 
 
 Shephard v. Rhodes, 7 R. I. 470. 8 
 
 Shepherd v. Sawyer, 3 Murph. 
 
 26 25- 
 
 Sherman v. Barrett, 1 McMull. 
 
 L. 147 64 
 
 Sherry ®. Perkins, 6 New. Eng. 
 Rep. 561, 147 Mass. 
 
 313. 408 
 
 Shircliflf v. State, 96 Ind. 369 330 
 
 Shisler v. Vandike, 93 Pa. 447.. 116 
 Shorb V. Beaudry, 56 Cal. 446... 344 
 Shortrede v. Cheek, 1 Ad. & El. 
 
 57.. 18 
 
 Siegert v. Abbott, 61 Md. 376 3 
 
 Silver Lake Bank v. North, 4 
 Johns. Ch. 370, 1 L. 
 
 ed. 871 145 
 
 Simmons v. McElwain, 36 Barb. 
 
 419 155 
 
 Simpson v. Bloss, 7 Taunt. 346.64, 146 
 V. Montgomery, 25Ark. 365 133 
 Singer Mfg. Co. v. Cole, 4 Lea, 
 
 439 353 
 
 «. Graham, 8 Or. 17 252 
 
 Singer Sewing Mach. Co. v. Hol- 
 
 comb, 40 Iowa, 33 252 
 
 Sinker «. Green, 12 West. Rep. 
 
 912, 113 Ind. 264 16 
 
 Skinner v. Henderson, 10 Mo. 205 146 
 «. Kitch, L. R. 2 Q. B. 393 381 
 Skrainka «. Scharringhausen, 8 
 
 Mo. App. 522, 523 
 
 163, 196, 313, 233, 233, 333 
 Slade V. Arnold, 14 B. Mon. 287. 79 
 1). Rhodes, 3 Dev. & B. Eq. 
 
 24 119 
 
 V. State 29 Tex. App. 381. 425 
 Slater v. Carroll, 3 Sandf. Ch. 
 
 573, 7 L. ed. 708 87 
 
 Slater Woolen Co. «. Lamb, 3 
 New Eng. Rep. 443, 
 
 143 Mass. 420 148 
 
 Slaughter-House Cases, 83 U. S. 
 16 Wall. 36, 101, 103, 
 116, 21 L. ed. 394, 417, 
 
 421, 1 Woods, 21 
 
 211, 313, 339, 338, 233, 368 
 Slocum V. Wooley, 9 Cent. Rep. 
 659, 43 N. J. Eq. 451. 
 
 126, 138 
 Slomer v. People, 35 111. 70, 76 
 
 Am. Dec. 786. 323, 323 
 
 Small V. Mott, 32 Wend. 405 119 
 
 Smalley v. Greene, 52 Iowa, 241 . 
 
 165, 167, 174 
 Smith V. Applegate, 35 N. J. L. 
 
 352... 110 
 
 V. Arnold, 106 Mass. 369.. 6 
 D. Bickmore, 4 Taunt. 474 147 
 
 V. Boruflf, 75 Ind. 413 12 
 
 V. Bouvier, 70 Pa. 325 40
 
 CASES CITED. 
 
 xlv 
 
 Smith V. Bromley, 3 Doug. 296, 
 
 note.. 144, 279 
 
 V. Chicago & N. W. R. Co., 
 
 23 Wis. 267, 269 86, 87 
 
 V. Cuff. 6 Maule & S. 165. 144 
 v. DuBose,78 Ga. 413_-.. 8 
 v. Fell, 5 Cent. Rep. 208. 
 
 113 Pa. 579.167,196, 203, 205 
 
 «. Freeman, 71 Ind. 85 423 
 
 «. Godfrey, 28 N. H. 384.68, 72 
 V. Greenlee, 13 N. C. 136.. 165 
 
 «. Hubbs, 10 Me. 71 137 
 
 -y. Lindo, 14 C.B.N. S. 395 82 
 
 V. Lynes, 5 N. Y. 41 76 
 
 V. McMaster, 2 Brown, 183 64 
 
 V. Mariner, 5 Wis. 551 4 
 
 V. Martin, 80 Ind. 260 
 
 164, 198, 201 
 V. Mawhood, 14 Mees. & 
 
 W. 452 ..82, 83 
 
 V. Nippert, 76 Wis. 86.307, 373 
 V. 0'Brien.5NewEng.Rep. 
 
 842, 146 Mass. 294 17 
 
 V. Owens, 21 Cal. 11 69 
 
 V. People. 25 111. 17, 24... 
 311, 313-315, 318. 319, 
 
 323. 383, 413 
 V. Phoenix Ins. Co. (Cal.) 
 
 13 L. R. A. 475 260 
 
 v. Roche. 6 C. B. N. S. 223, 
 5 Jur. N. S. 918, 28 L. 
 J C P 237 9 
 
 ^. Smith! 4 Wend.'468"ll 169 
 
 «. State, 6 Gill. 425 64 
 
 ®. State, 93 Ind. 67 315 
 
 «.State,21 Tex.App.96.. 319, 423 
 
 D. UUman, 58 Md. 183 165 
 
 ®. Walker, 57 Mich. 456... 247 
 V. Western U. Teleg. Co., 
 
 11 Fed. Rep. 10, note. 163 
 «. Western U. Teleg. Co., 
 
 84Ky. 664 57 
 
 V. White, L. R. 1 Eq. 626. 64 
 Smith's App., 5 Cent. Rep. 208, 
 
 113 Pa. 579 
 
 167. 198. 199, 205 
 Smitherman v. Sanders, 64 N. C. 
 
 522 141 
 
 Snow V. Wheeler, 113 Mass. 186. 
 
 313, 404, 406 
 Solander v. People, 2 Colo. 48... 315 
 Solomon v. Dreschler, 4 Minn. 278 
 
 67, 81 
 V. Hathaway, 126 Mass. 483 76 
 Sondheim v. Gilbert, 5 L. R. A. 
 
 432, 117 Ind. 71.-42, 48, 53 
 Sopham v. Greuside, L. R. 37 Ch, 
 
 Div. 281 258 
 
 Souhegan Nat. Bank v. Wallace, 
 
 61N. H. 34... 146 
 
 Southall V. Rigg, 11 C. B. 481... 18 
 Southard v. Boyd, 51 N. Y. 177, 
 
 179. 108, 109 
 
 Southern Exp. Co. v. Dnffey, 48 
 
 Ga. 358 116 
 
 Southern Fertilizer Co. v. Reams, 
 
 105 N. C. 383. 247 
 
 Southern L. Ins. & T. Co. «. 
 
 Lanier, 5 Fla. 110, 165 148 
 Spaulding v. Preston, 31 Vt. 9.. 
 
 3, 5. 77, 78 
 Specht ®. Collins, May 26, 1891 3 
 Speck V. Dansman, 7 Mo. App. 
 
 165 153 
 
 Speidel v. Henrici, 120 U. S. 377, 
 
 30 L. ed. 718 3 
 
 Spier V. Lambdin, 45 Ga. 319 169 
 
 Spies «. People, 10 West. Rep. 
 
 701, 122 111. 1.. 
 
 314, 319-321, 419, 421, 
 
 422, 423, 425 
 Sprague v. Warren, 3 L. R. A. 
 
 679, 26 Neb. 326 49, 59 
 
 Spray v. Burk, 123 Ind. 565 56 
 
 Springfield Bank v. Merrick, 14 
 
 Mass. 322 64 
 
 Springfield F. & M. Ins. Co. v. 
 
 Allen, 43 N. Y. 395.. 398 
 Springhead Spinning Co. i}. Riley, 
 
 L. R. 6Eq. 551 
 
 313, 380, 383, 407 
 Sprott V. United States, 87 U. S. 
 
 30 Wall. 459. 33 L. ed. 
 
 371 5 
 
 Squires v. Squires, 53 Vt. 311... 155 
 Stackpole v. Earle, 3 Wils. 133_. 112 
 Standard Oil Co. v. Scofield, 16 
 
 Abb. N. C. 372 145 
 
 Stanley v. Jones, 7 Bing. 369 
 
 118, 124, 135, 294 
 
 V. Nelson, 28 Ala. 514 68 
 
 Stansell «. Lindsay, 50 Ga. 
 
 360 125 
 
 Stanton v. Allen, 5 Denio, 434 
 
 106, 213, 214, 234, 239, 
 
 240, 242, 246, 265, 269, 
 
 273. 279, 285, 406 
 V. Embry, 63 U. S. 548, 23 
 
 L. ed. 983 108, 125 
 
 Star Route Cases. The (Washing- 
 ton) 1883 . 820 
 
 Starbuck v. Mercantile Trust Co. 
 
 (Conn.) 9 Ry. & Corp. 
 
 L. J. 203 198, 283 
 
 Starkweather v. American Bible 
 
 Soc, 72 111. 50, 33 Am. 
 
 Rep. 133. 289 
 
 State V. Adams, 1 Houst. C. C. 
 
 361 314 
 
 ®. Allen, 47 Conn. 131 .... 315
 
 xlvi 
 
 CASES CITED. 
 
 State «. American Cotton Oil 
 Trust, 40 La. Ann. 8.. 
 
 263, 277 
 V. Anderson, 92 N. C. 732 
 
 318, 417 
 V. Atchison & N. R. Co. 
 (Neb.) 32 Am. & Eng. 
 
 R. Cas.388. 209 
 
 V. Bartlett, 30 Me. 132 
 
 315, 350, 413, 415 
 V. Board of Education, 35 
 
 Ohio St. 519. ._ 141 
 
 ' ®. Boise, 1 McMill. L. 190. 419 
 «. Bnswell, 2 West. Rep. 
 
 726, 104 Ind. 541 347 
 
 V. Bradley, 48 Conn. 536, 
 
 314, 326 
 V. Brady, 107 N. C. 822, 
 
 413, 423 
 V. Buchanan, 6 Harr. & J. 
 
 317. 292, 
 
 314-316, 323, 325, 326, 
 329, 330, 333, 413, 415. 416 
 v. Burlingham, 15 Me. 104 
 
 319 333 
 V. Burnham, 15 N. H. 396. ' 
 313-315, 319, 321, 325, 
 
 328, 329, 336 
 «. Caldwell, 2 Tyler, 212.. 322 
 V. Cardoza, 11 8. C. 195, 
 
 314, 320, 324, 325 
 «. Carpenter, 54 Vt. 551... 415 
 V. Cawood, 2 Stew. (Ala.) 
 
 360 314,332, 333, 416 
 
 1). Chapin, 17 Ark. 561 ..315, 416 
 V. Christianbury, 44 N. C. 
 
 48 314, 419 
 
 «. Clary, 64 Me. 369, 370.. 
 
 329, 350, 418 
 «. Cole, 39 N.J. L. 324.... 
 
 326, 328. 336 
 V. Coleman, 5 Port.(Ala.) 32 419 
 V. Collier, 72 Mo. 13, 37 
 
 Am. Rep. 417 114 
 
 ». Comings, 28 Vt. 508 76 
 
 V. Comstock, 27 Vt. 453... 77 
 
 V. Cook, 38 Vt. 437 414 
 
 V. Crites, 48 Ohio St. .. 108 
 
 ■». Cross, 38 Kan. 696 147 
 
 ®. Crowley, 41 Wis. 271.329, 413 
 
 •0. Daubert, 42 Mo. 232 352 
 
 «. Dean, 35 N. C. 63 315 
 
 V. Delaware & A. Teleg. & 
 
 Teleph. Co., 47 Fed. 
 
 Rep. 633 3 
 
 D. Delaware, L. & W. R. 
 
 Co., 30 N. J. L. 473, 
 
 31N. J. L. 531 217 
 
 «. De Witt, a Hill, L. 282. 
 
 319, 322, 324, 326 
 
 State V. Donaldson, 32 N. J. L. 
 
 151 313, 
 
 317, 336-338, 354, 381, 407 
 
 «. Duslin, 5 Or. 375 113 
 
 ^.Earwood, 75N.C. 210.318, 329 
 V. Euloe, 4 Dev. & B. 373. 323 
 
 V. Farrier, 8 N. C. 487 321 
 
 V. Fleischer, 41 Minn. 69.. 71 
 V. Flynn, 28 Iowa, 26. -.318, 348 
 V. Ford, 37 La. Ann. 443.. 315 
 V. Fredericks, 85 Mo. 145. 422 
 «. Gaffney, 1 Rice, L. 431. 419 
 V. George, 29 N. C. 321... 315 
 V. Glidcfen, 3 New Eug. 
 
 Rep. 849, 55 Conn. 46. 
 
 292, 315, 316, 318, 330, 
 
 341,364, 368, 383, 405, 
 
 410, 411, 417, 418, 424-426 
 'B. Gooch, 105 Mo. 392.. 317, 419 
 V. Grady, 34 Conn. 118.... 315 
 V. Hamilton, 13 Nev. 386.. 416 
 V. Harris, 38 Iowa, 242 ... 322 
 ®. Hartford &N.H.R. Co., 
 
 29 Conn. 538, 539 
 
 207, 208, 244, 263, 269, 270 
 
 V. Hewett, 31 Me. 396 
 
 314, 315, 328, 329 
 V. Hey ward, 2 Nott & McC. 
 
 312 315 
 
 V. Hickfing, 41 n' J" L." 208 
 
 319, 333, 336 
 V. Howley, 65 Me. 100 .... 79 
 V. Humphrey, 5 L. R. A. 
 
 217, 74 Tex. 466 113 
 
 ®. Intox. Liq.,55 Vt. 82... 78 
 V. Jackson (Tenn.) 12 L. R. 
 
 A.310, note 412 
 
 V. Jackson, 73 Me. 91 320 
 
 V. Jackson, 83 N. C. 565.. 358 
 V. Jackson, 7 S. C. 283.. 329. 330 
 
 V. Johnson, 52 Ind. 197 108 
 
 V. Jones. 13 Iowa, 269 
 
 314, 328, 413 
 
 u. Jones, 33 Vt. 443.. 414 
 
 V. Keach, 40 Vt. 113. 
 
 329, 412, 420 
 V. Kennedy. 63 Iowa, 197 . 418 
 
 V. Keys, 8 Vt. 57 322 
 
 T. Kirkpatrick, 42 Fed. 
 
 Rep. 689 423 
 
 ©. McCahill, 73 Iowa, 111. 
 
 421, 426 
 
 V. McCann , 59 Me. 383 79 
 
 V. McGee, 81 Iowa, 17 425 
 
 V. McKinstry, 50 Ind. 465. 
 
 116, 315, 322, 323, 347 
 V. Mayberry, 48 Me. 218, 
 
 235. 314, 315, 350, 415 
 
 V. Milwaukee, L. S. & W. 
 
 R. Co., 45 Wis. 590 .. 281
 
 CASES CITED. 
 
 xlvii 
 
 State V. Minnesota Thresher Mfg. 
 Co., 3 L. R. A. 510, 40 
 
 Minn.213 281 
 
 T. Montague, 2 McCord, L. 
 
 257 419 
 
 V. Murphy, 6 Ala. 765, 41 
 
 Am. Dec. 79 
 
 64, 312, 315, 
 
 318, 319, 323, 325, 329, 341 
 V. Murray, 15 Me. 100.315, 350 
 
 V. Nash, '7 Iowa, 347 315 
 
 V. Nebraska Distilling Co. , 
 
 29 Neb. 700, 29 Am. & 
 
 Eng. R. Cas. 656 
 
 234, 262, 277 
 T. New Haven & N. Co., 
 
 41 Conn. 134 207 
 
 V. Norton,23N. J. L. 33,44 
 
 322, 325, 326, 329, 330. 
 
 354, 407, 412, 414, 415, 418 
 
 «. Noyes, 25 Vt. 415 
 
 116,313, 322, 323, 415 
 
 «. Olin, 23 Wis. 327 114 
 
 «. O'Neil, 1 New Eng. Rep. 
 
 775, 58 Vt. 140 73 
 
 V. Ormiston, 66 Iowa, 143 
 
 319, 412, 413, 415 
 f. Parker, 43 N. H. 83.... 
 
 315, 319. 329, 336 
 
 «. Peterson, 41 Vt. 504 78 
 
 V. Potter, 28 Iowa, 554, 30 
 
 Iowa, 587 64, 
 
 314, 315, 321, 322, 348, 413 
 
 v. Pulle, 12 Minn. 164 
 
 314, 319, 412 
 7}. Purdy, 36 Wis. 213, 17 
 
 Am. Rep. 485 114 
 
 V. Ragland, 31 W. Va. 453 71 
 D. Richmond & D. R. Co., 
 
 72 N. C. 634, 73 N. C. 
 
 527 - 267 
 
 n. Rickey, 8 N. J. L. 60. 9 
 
 N. J. L.364 314. 
 
 316, 325, 330, 354. 407, 416 
 v. Ridley, 48 Iowa, 370... 315 
 D. Ripley, 31 Me. 386, 314. 
 
 319, 323, 329, 350, 415, 420 
 -v. Roberts, 34 Me. 320 
 
 328, 329, 350 
 
 ?). Ross, 29 Mo. 32 353 
 
 V. Rowley, 13 Conn. 101. 
 
 291, 
 
 314, 315. 321, 328, 333, 336 
 t. Savoye, 48 Iowa, 562.. 
 
 64, 311, 323, 348 
 «. Shields, 45 Conn. 256 .. 315 
 V. Shooter, 8 Rich. L. 72.. 
 
 319, 323, 329, 330, 333 
 v. Simons, 4 Strobh. L. 266 
 
 325, 329, 330 
 D 
 
 State V. Simpson, 12 N. C. 502. 319 
 V. Spaulding, 19 Conn. 234 326 
 B. Sprague, 4R. I. 257.... 317 
 ». State Board of Medical 
 
 Exmrs. 34 Minn. 387. 71 
 V. Sterling, 34 Iowa, 443. 
 
 314, 315 
 13. Stevens, 30 Iowa, 391.. 
 
 333, 348 
 V. Stewart, 4 New Eng. 
 
 Rep. 378. 5y Vt. 273.. 
 
 298, 313,315, 317,332, 
 
 335, 336, 379, 380, 382, 
 
 410, 415, 418 
 V. Straw, 42 N. H. 393.319, 321 
 
 V. Taylor, 3 Brev. 243 321 
 
 ®. Tirn, 13 N. C. 569 315 
 
 V. Towle, 6 New Eng. Rep. 
 
 460, 80 Me. 287 153 
 
 «.Trammell, 24S.C.379-326, 330 
 
 B. Trice, 88 N. C. 628 315 
 
 ■V. Uhrig, 14 Mo. App. 
 
 413^ .:. 222 
 
 V. Van liart, 17 N. J. L. 
 
 327 325 
 
 V. Vanderbilt, 37 Ohio St. 
 
 590 267,269 
 
 v. Walker, 30 Kan. 297 82 
 
 V. Walker, 32 Me. 195 318 
 
 v. Welton, 55 Mo. 228 217 
 
 V. Wilson, 30 Conn. 500.315. 420 
 V. Winner, 17 Kan. 298, 
 
 305- - -315, 425 
 
 7j. Wolcott, 21 Conn. 281.. 419 
 v. Young, 37 N. J. L. 184 
 
 325 354 
 1}. Younger, 13 N. C. 357. ' 
 
 316, 329, 330 
 State Bank Receiver v. Plainfield 
 
 Bank, 34 N. J. Eq. 450 91 
 State Board of Agriculture v. 
 Citizens St. R. Co., 47 
 
 Ind. 407- 148 
 
 State Freight Tax Cases, 82 U. S. 
 15 Wall. 332, 21 L. ed. 
 
 146 220 
 
 Steam Nav. Co. w.Weed. 17 Barb. 
 
 378 - 145 
 
 Steamboat Co. v. McCutcheon, 13 
 
 Pa. 13 148 
 
 Stearns v. Barrett, 1 Pick. 443 .. 196 
 Stebbins v. Leowolf, 3 Cush. 137.49, 67 
 
 Steele v. Curie, 4 Dana, 381 84, 141 
 
 Steeple v. Downing, 60 Ind. 478. 123 
 Stein V. Bienville Water Supply 
 Co., 141 U. S. 67, 35 
 
 L. ed. 623-- ---. 229 
 
 Sterling®. Jaudon, 48 Barb. 459.41, 60 
 V. Sinnickson, 5 N. J. L. 
 
 756 152,158
 
 xlviii 
 
 OASES CITED. 
 
 Sternburg v. Bowman, 103 Mass. 
 
 325 69 
 
 Stetson V. City Bank of New Or- 
 leans, 2 Ohio St. 174.. 289 
 Stevens v. Bagwell, 15 Ves. Jr. 
 
 139 --Ill, 126 
 
 Stewart o. Schall, 3 Cent. Hep. 
 509, 65 Md. 289, 307- . 
 
 58, 148 
 Stewartson v. Lathrop, 12 Gray, 
 
 52 63 
 
 Stickney v. Borman, 2 Pa. 67 152 
 
 Stillwell V. Aaron, 69 Mo. 545... 18 
 Stilson v. Stilson, 46 Conn. 15-153, 155 
 Stockwith «. North, F. Moore, 
 
 781 113 
 
 Stoddard v. Martin, 1 R. I. 1 49 
 
 Stokes v. People, 53 N. Y. 179.. 
 
 321, 326 
 Stollenwerk v. Thacher. 115 Mass. 
 
 224 76 
 
 Stone V. Perry, 60 Me. 48 254 
 
 «. Pratt, 25 III. 25 4 
 
 Storey v. Storev, 1 L. R. A. 320, 
 125 ill. 608, 8 Am. St. 
 
 Rep. 417 158 
 
 Story V. Salomon, 71 N. Y. 420. 
 
 44, 51, 63 
 Stotsenburg v. Marks, 79 Ind. 197 123 
 l>. Lybrand, 13 Ohio St. 228 
 
 116, 153, 155 
 Stoutenburgh v. Hennick, 129 U. 
 
 S. 141, 32 L. ed. 637 - 221 
 Stratton v. Stratton, 77 Me. 377.. 158 
 Stroud v. Smith, 4 Houst. (Del.) 
 
 448 - Ill 
 
 Strout V. Packard, 76 Mo. 148... 422 
 
 Stuart V. Blum, 28 Pa. 225 69 
 
 Stumpfs App., 8 Cent. Rep. 113, 
 
 116 Pa. 33 9 
 
 Suark v. Malone, 34 Ind. 444 13 
 
 Suits «. Taylor, 2 West. Rep. 579, 
 
 20 Mo. App. 166.... 68, 146 
 Sullivan ®. Hergan, 9 L. R. A. 
 
 110, 17 R. I. — 72 
 
 Summerson v. Hicks, 134 Pa. 566 251 
 
 Sumner?). Cotley, 71 Mo. 121... 252 
 
 V. Marcy, 3 Woodb. & M. 
 
 105 287 
 
 V. Summers, 54 Mo. 340.67, 116 
 V. Williams, 8 Mass. 200.. 156 
 Suydenham «.Kerloway,Cro. Jac. 
 
 7 323 
 
 Swan v. Chorpeiming, 20 Caf. 182 165 
 Swann v. Swann, 21 Fed. Rep. 
 
 299 _ 197 
 
 Swartz's App., SBrewst. 131 ...40, 61 
 Swayze v. Hull, 8 N. J. L. 66.. 64, 111 
 Sweaney v. Hunter, 1 Miirph. 181 13 
 Sweeny v. McLeod, 18 Or. 330.. 110 
 
 Swett®. Poor, 11 Mass. 553... 118, 12a 
 Swift V. Tyson, 41 U. S. 16 Pet. 1, 
 
 lOL. ed. 865 96 
 
 Swope V. Lifflngwell, 105 U. S. 3, 
 
 26L. ed. 939 83 
 
 Sydserf v. Reg.. 11 Q. B. 245..-. 
 
 330, 413, 414 
 Sykes v. Beadon, L. R. 11 Ch. 
 
 Div. 195 5 
 
 V. Chadwick, 85 U. S. 18 
 
 Wall. 141,21L.ed.824 14 
 
 T. 
 
 Talbott V. Merchants Despatch 
 
 Transp. Co., 41 Iowa, 
 
 247, 470.- 88,98 
 
 V, Stemmons (Ky.) 5 L. R. 
 
 A. 856, note 10, 17 
 
 Tallis V. Tallis, 1 El. & Bl. 391.. 
 
 167, 175, 200, 202 
 
 Tamm v. Lavalle, 92 111. 263 4 
 
 Tappan «. Albany Brew, Co., 5 
 
 L. R. A. 428, 80 Cal. 
 
 570 118 
 
 Tappenden v. Randall, 2 Bos. & 
 
 P. 467 147 
 
 Tarleton v. M'Gawley, Peake, 205 368 
 Tateum v. Ross, 150 Mass. 440.. 37 
 Tatum V. Kelly, 25 Ark. 209.... 5, 84 
 Taylor v. Blanchard, 13 Allen, 
 
 370,375 163, 166, 
 
 168, 170, 171, 198, 199, 218 
 V. Bowers, L. R. 1 Q. B. 
 
 Div. 291 147 
 
 V. Crowland Gas Co., 10 
 
 Exch.293 - 81 
 
 V. Gilman, 58 N. H. 417.. 125 
 1). Penquite, 35 Mo. App. 
 
 389- 43 
 
 Teal «. Walker, 111 U. S. 242, 28 
 
 L. ed. 415 88 
 
 Tenney «. Foote, 4 111. App. 594-44, 67 
 Territory v. Carland, 6 Mont. Ter. 
 
 14 413 
 
 Terry v. Eagle Lock Co., 47 Conn. 
 
 141 148 
 
 Texas & P. R. Co. v. Southern P. 
 
 R. Co., 41 La. Ann. 
 
 970, 40 Am. & Eng. R. 
 
 Cas 475 
 
 137, "i7i,'¥3'4","239, 240 
 Thacher v. Dinsmore, 5 Mass. 302 156 
 Thacker v. Hardy, L. R. 4 Q. B, 
 
 Div. 685 49, 50 
 
 Thalimer®. Brinkerhoff, 20 Johns. 
 
 386 119 
 
 Thallhimer v. Brinckerhoff, 3 
 
 Cow. 623, 15 Am. Dec. 
 
 231, note 120,122,125
 
 CASES CITED. 
 
 xlix 
 
 Thayer t. Spear, 1 New Eng. 
 
 Rep. 356, 58 Vt. 327- 161 
 Thimning v. Miller, 13 111. App. 
 
 595 69 
 
 Third Nat. Bank v. Harrison, 3 
 ]\IcCrary, 316, 10 Fed. 
 
 Rep. 243 .44,54 
 
 T. Tinsley, 11 Mo. App. 498 54 
 Thomas v. Caulkett, 57 Mich. 393 
 
 65, 116 
 V. Miles, 3 Ohio St. 274-202, 203 
 v. Musical Mut.Prot. Union 
 
 (N. y.) 8 L. R. A. 175 401 
 V. Mat. Prot. Union, 49 
 
 Hun, 171 400 
 
 V. People. 113 111. 531 415 
 
 V. Richmond. 79 U. S. 12 
 Wall. 349, 20 L. ed. 
 
 453 - 137,147 
 
 V. State, 1 West. Rep. 309, 
 
 103Ind. 432 426 
 
 ©. West Jersey R. Co., 101 
 U. S. 71, 25 L. ed. 
 
 950 208,241, 242, 273 
 
 «. Williams, L. R. 14 Ch. 
 
 Div. 864 408 
 
 Thompson v. Bowie, 71 U. S. 4 
 Wall. 463. 18 L. ed. 
 
 423 54 
 
 v. Chumney, 8 Tex. 389... 254 
 V. Davies, 13 Johns. 112.. 234 
 V. Marshall, 36 Ala. 504 .. 121 
 
 «. State, 25 Ala. 41. 422 
 
 V. White Water Valley R. 
 Co., 132 U. S. 68, 33 
 
 L. ed. 256 255 
 
 Thompson's Estate, 15 Phila. 532.41,61 
 Thorley's Cattle Food Co. v. Mas- 
 sam, L. R. 14Ch. Div. 
 
 763 - 408 
 
 Thorntons. State. 25 Ga. 303... 418 
 Thouron v. East Tennessee, V. & 
 G. R. Co. (Ch. Ct. 
 Tenn.) 5 Ry. & Corp. 
 
 L. J. 77 270 
 
 Thrasher v. Everhart, 3 Gill & 
 
 J. 234 89 
 
 Throop Grain Cleaner Co. v. 
 Smith, 12 Cent. Rep. 
 918, 110 N. Y. 83 .... 17 
 Thurston v. Percival, 1 Pick. 415 119 
 
 Timberley v. Child, 1 Sid. 68 333 
 
 Timmerman v. Bidwell, 62 Mich. 
 
 205 64 
 
 V. Dever, 52 Mich. 34 170 
 
 Tippecanoe County v. Lafayette, 
 M. & B. R. Co., 50 
 
 Ind. 85 269 
 
 Titus T. Mabee, 25 III. 257 256 
 
 Tobey «. Robinson, 99 111. 222... 204 
 
 Todd V. Stoakes, 1 Salk. 116 155 
 
 Tomblin v. Callen, 69 Iowa, 229. 57 
 Tompkins v. State. 17 Ga. 356... 330 
 Tonawanda Valley & C. R. Co. D. 
 
 New York. L. E. & W. 
 
 R. Co., 42 Hun, 496.196, 266 
 Touro «. Cassin, 1 Nott & McC. 
 
 174. 116 
 
 Touteng v. Hubbard, 3 Bos. & P. 
 
 299 105 
 
 Townshend v. Goodfellow, 3 L. 
 
 R. A. 739, 40 Minn. 
 
 312 3 
 
 Townsley v. Sumrall, 27 U. S. 2 
 
 Pet. 170, 7 L. ed. 386. 18 
 Tracy d. Talmage, 14 N. Y. 162. 
 
 55, 141, 144, 204 
 
 Train®. Gold, 5 Pick. 380. 15, 19 
 
 Transportation Cases, Whart. 
 
 Prec. No. 658 265 
 
 Traphagen v. Voorhees, 11 Cent. 
 
 Rep. 370, 44 N. J. Eq. 
 
 21. 18 
 
 Treat «. ShoningerMelodeon Co., 
 
 35 Conn. 543 164 
 
 Trenton Mut. L. & F. Ins. Co. v. 
 
 Johnson,24N.J.L. 576 59 
 Trine v. Williamson (Pa.) 12 Cent. 
 
 Rep. 657 14,21 
 
 Trist V. Child, 88 U. S. 21 Wall. 
 
 441, 22 L. ed. 623 .240, 279 
 Troy & B. R. Co. v. Boston, H. 
 
 T. & W. R. Co.,86N. 
 
 Y. 107 266 
 
 Trust Estate of Woods, Me, 52 
 
 Md. 520 197 
 
 Trustees of N. C. Endow. Fund 
 
 V. Salchwell, 71 N. C. 
 
 Ill 273,282 
 
 Tucker v. Aiken, 7 N. H. 113... 115 
 
 V. Finch, 66 Wis. 17 426 
 
 V. West, 29 Ark. 386. 79 
 
 Tugman v. Chicago, 78 111. 405.. 213 
 Turley v. Edwards (Mo. App.) 1 
 
 West. Rep. 450 5 
 
 Turner v Johnson. 7 Dana, 435. 171 
 
 «. Patridge, 3 Pa. 172 8 
 
 V. Vaughan, 2 Wils. 339.. 7 
 Tuxbury ». Miller, 19 Johns. 311. 68 
 Twells V. Pennsylvania R. Co. 
 
 (Pa.) 3 Am. L. Reg. 
 
 N. S. 728 244 
 
 Twichell®. Com., 9 Pa. 211.. 314, 
 
 315. 325, 328-331 
 Tyler v. Carlisle, 4 New Eng.Rep. 
 
 409, 79 Me. 210, 219. .55, 148 
 v. Freeman, 3 Cush. 261.. 76 
 V. Larimore, 2 West. Rep. 
 
 177, 19 Mo. App. 445. 
 
 68, 139, 146
 
 1 
 
 CASES CITED. 
 
 Tyler v. Tyler, 126 111. 525, 9 Am. 
 St. Rep. 643. 25 111. 
 333 140,204 
 
 U. 
 
 Ulrich V. Reinoehl (Pa.) 13 L. R. 
 
 A. 433... 28, 34 
 
 Underwood v. Newport Lyceum, 
 
 5B. Mod. 129.. 148 
 
 «. Scott, 43 Kan. 714 71 
 
 Union Bank v. Middlebrook, 33 
 
 Conn. 95 116 
 
 Union Bank of Georgetown v. 
 Geary, 30 U. S. 5 Pet. 
 
 99, 8 L. ed. 60 14 
 
 Union Bridge Co. v. Troy & L. 
 
 R. Co., 7 Laos. 240... 265 
 Union Gold Min. Co. v. Rocky 
 Mountain Nat. Bank, 
 96 U. S. 640, 24 L. ed. 
 
 648 83, 145 
 
 Union Mut. Ins. Co. v. Union 
 Mills Plaster Co., 3 L. 
 R. A. 90, 37 Fed. Rep. 
 
 286 238,260 
 
 Union Nat. Bank of Chicago v. 
 
 Carr, 15 Fed. Rep. 438 48 
 Union Nat. Bank of St. Louis v. 
 Mattliews, 98 U. S. 
 
 621, 25L. ed.l88 83, 145 
 
 Union Trust Co. v. Missouri, K. 
 
 & T. R. Co. (Kan.) 7 
 
 Ry. & Corp. L. J. 485 85 
 
 Union Water Co. «. Murphy's 
 
 Flat Fluming Co., 22 
 
 Cal. 620 148 
 
 United States v. American Bell 
 Teleph. Co.. 128 U. S. 
 
 315, 32 L. ed. 430 222 
 
 V. Babcock, 3 Dill. 566, 
 581, 3 Cent. L. J. 144 
 
 318, 322, 374 
 V. Bailey, 1 McLean, 234.. 217 
 V. Barker, 25 U. S. 12 
 Wheat. 559, 6 L. ed. 
 
 728 218 
 
 «. Bayer, 4 Dill. 407, 13 
 Nat. Bankr. Reg. 88, 
 
 400. 317,418 
 
 V. Boyd, 45 Fed. Rep. 851 
 
 421, 422 
 
 V. Boyden, 1 Low. 266 
 
 320, 322, 375 
 V. Bradley, 35 U. S.IO Pet. 
 
 343, 9L. ed. 448. ..204, 218 
 V. Britton, 108 U. S. 199, 27 
 
 L. ed. 698 375, 418 
 
 V. Burgess, 3 McCrary, 278 374 
 
 United States ». Butler, 4 Hughes, 
 
 512... 374 
 
 «. Central Pac. R. Co., 118 
 
 U. S. 235. 30 L. ed. 173 197 
 V. Cole, 5 McLean, 513, 601 
 
 375, 42ft 
 «. Crosby, 1 Hughes, 448.- 321 
 V. Cruikshank, 92 U. S. 
 
 542, 23 L. ed. 588 
 
 329, 375, 41& 
 V. De Grieff, 16 Blatchf. 20 320 
 
 V. Dennee, 3 Wood.s, 47 375 
 
 V. Douau, 11 Blatchf. 168 
 
 314, 342, 375. 418 
 
 V. Dusten, 2 Bond, 332 322 
 
 V. Fehrenback, 2 Woods, 
 
 175 375 
 
 V. Frisbie, 28 Fed. Rep. 
 
 808. 320,375 
 
 V. Gardner, 42 Fed. Rep. 
 
 828 413,418 
 
 V. Goldberg, 7 Biss. 175. .. . 318 
 V. Graff, 14 Blatciif. 381.. 322 
 V. Gros.smayer, 76 U. S. 9 
 
 Wall. 73, 19 L. ed. 
 
 627 101, 102 
 
 V. Gunnell, D. C. 3 Cent. 
 
 Rep. 764 422 
 
 V. Hammond, 3 Woods, 
 
 197 375 
 
 V. Hand, 6 McLean, 274... 375 
 V. Harris, 106 U. S. 629, 27 
 
 L. ed. 290 375 
 
 V. Hirsch, 100 U. S. 33, 25 
 
 L. ed. 539 375 
 
 V. Jellico Mountain Coke& 
 
 Coal Co., 12 L. R. A. 
 
 753, 46 Fed. Rep. 432. 329' 
 V. Johnson, 26 Fed. Rep. 
 
 682 314, 315, 318, 417 
 
 V. Kane, 23 Fed. Rep. 748 
 
 367, 431 
 V. Lancaster, 10 L. R. A. 
 
 317, 44 Fed. Rep. 885 
 
 413, 415 
 t). Lapene, 84 U. S. 17 Wall. 
 
 601, 21 L. ed. 693.. 101, 102 
 V. Linn, 40 U. S. 15 Pet. 
 
 290, 10 L. ed. 742... 18, 218 
 V. Logan, 45 Fed. Rep. 872 
 
 419. 422, 423 
 ®. McDonald, 8 Biss. 439, 3 
 
 Dill. 543 320, 374 
 
 V. McKee, 3 Dill. 546 374 
 
 V. Marigold. 50 U. S. 9 
 
 How. 560, 13L. ed.257 217 
 v. Miller, 3 Hughes, 553.. 314 
 V. New Orleans R. Co., 79 
 
 U. S. 12 Wall. 362- 
 
 365. 20L. ed. 434 .... 255
 
 CASES CITED. 
 
 United States v. Nunnemacher, 
 
 7 Biss. Ill 318, 320 
 
 V. Payne, 22 Fed. Rep. 426 375 
 «. Ravara, 2 U. S. 2 Dall. 
 
 297, 1 L. ed. 388 321 
 
 «. Reese, 92 U. S. 214, 23 
 
 L. ed. 563-. 375 
 
 V. Rindskopf, 6 Biss. 259.. 322 
 
 V. Ross, 1 Gall. 624 422 
 
 v. Sacia, 2 Fed. Rep. 754.. 375 
 V. Sanche, 7 Fed. Rep. 715 375 
 «. San Jacinto Tin Co., 125 
 U. S. 273. 285, 31 L. 
 
 ed. 747, 751 ..218,222 
 
 V. Smith, 1 Dill. 212. 2 
 
 Bond, 323. 322, 323 
 
 V. Statts, 49 U. S. 8 How, 
 
 41, 12 L. ed. 979 322 
 
 V. Stevens, 44 Fed. Rep. 
 
 132 412,419 
 
 ®. Stout, 29 Fed. Rep. 897 320 
 V. Tingey, 30 U. S. 5 Pet. 
 
 115, 8 L. ed. 66 218 
 
 V. Union Pac. R. Co., 98 
 U. S. 569, 596, 25 L. 
 
 ed. 143, 150. 217, 222 
 
 V. Waddell, 16 Fed. Rep. 
 
 221.. 374 
 
 v. Watson, 17 Fed. Rep. 
 
 145 
 
 315, 320, 321, 374. 375, 418 
 «. Windom, 137 U. S. 636, 
 
 34L. ed. 811 108 
 
 V. Wootten, 29 Fed. Rep. 
 
 702.. 314, 331,374 
 
 United States Bank v. Huth, 4 B. 
 
 Mon. 423-. 87 
 
 University of Vermont v. Joslyn, 
 
 21 Vt. 52 123 
 
 Unkman v. Wright, 32 Ohio St. 
 
 405 116 
 
 Updike V. Titus, 13 N. J. Eq. 151 8 
 Upton V. Hubbard, 28 Conn. 275 87 
 Usher v. McBratney, 3 Dill. 385 110 
 Usparicha v. Noble, 13 East, 332 104 
 Utica Ins. Co. v. Kip, 8 Cow. 20 147 
 
 V. 
 
 Valentine v. Stewart, 15 Cal. 387, 
 
 388 67, 204 
 
 Valle V. Picton, 8 West. Rep. 734, 
 
 91 Mo. 207 16 
 
 Valletta. Parker, 6 Wend. 615.. 54 
 Van Dyck «. Van Beuren, 1 
 
 Johns. 362 203 
 
 Van Horn v. Van Horn, 10 L. R. 
 
 A. 184, 52 N. J. L. 284 
 
 303, 306, 327 
 
 Van Keuren v. New Jersey Cent. 
 
 R. Co.,38N. J. L. 165 256 
 Van Kuren v. Trenton L. & 
 
 Mach. Mfg. Co., 13 
 
 N. J. Eq. 302 243 
 
 Van Marter v. Babcock, 23 Barb. 
 
 633 166, 199, 223 
 
 Vance v. Wells, 8 Ala. 399 8 
 
 Vanderbilt v. Schreyer, 91 N. Y. 
 
 392 12 
 
 Varnum v. Camp, 13 N. J. L. 329 90 
 Verdier v. Simons, 2 McCord,Eq. 
 
 385 123 
 
 Vernon v. Hallam, 35 Week Rep. 
 
 156. 56 L. J. Ch. 115-- 
 
 168, 198, 199 
 Vickery v. Welch, 19 Pick. 523-. 181 
 Vidal V. Girard, 43 U. S. 2 How. 
 
 197, 11 L. ed. 204_... 197 
 Vincennes t>. Callender, 86 Ind. 
 
 484. 231 
 
 Vincent v. Groom, 1 Yerg. 430.. 116 
 Vining t). Bricker, 14 Ohio St. 
 
 331 82 
 
 Violettw. Patton, 9U. S. 5 Cranch, 
 
 142, 3 Led. 61 18 
 
 Viser v. Bertrand. 14 Ark. 267... 155 
 Vogel V. Meyer, 23 Mo. App. 427 18 
 
 W. 
 
 Wabash R. Co., Re, 24 Fed. Rep. 
 
 220 369,407 
 
 Wagner v. Breed, 29 Neb. 720... 73 
 
 V. Hallack, 3 Col. 184 76 
 
 Wainwright v. Bland, 1 Mood. & 
 
 R. 481 28 
 
 Waite V. Harper, 2 Johns. 386... 68 
 V. Jones, 1 Ring. N. C. 656, 
 
 662, 1 Scott, 730... 141, 204 
 
 Waldron v. Evans, 1 Dak. 11 112 
 
 Walker v. Bietry, 24 La. Ann. 349 125 
 V. Cronin, 107 Mass. 555, 
 
 564. ..317, 407, 408 
 
 «. Cuthbert, 10 Ala. 213.123, 125 
 
 v. Gregory, 36 Ala. 180 7, 64 
 
 V. Perkins, 3 Burr. 1568, 1 
 
 W. B1.517 . 7 
 
 V. Shepardson, 2 Wis. 384, 
 
 4 Wis. 486 
 
 V. United States, 106 U. S. 
 
 413, 27 L. ed. 166 5 
 
 «. Walker,76U. S. 9 Wall. 
 
 743, 19 L. ed. 814.. 154, 155 
 Wall V. Scales. 1 Dev. Eq. 472.. 151 
 V. Schneider, 59 Wis. 352. 
 
 42. 46, 48 
 Wallace v. Bassett, 41 Barb. 92.. 155 
 «. Long Island R. Co., 12 
 
 Hun, 460 266
 
 lii 
 
 CASES CITED. 
 
 Wallace «. Rappleye. 103 111. 229 7 
 Walling V. Michigan, 116 U. S. 
 
 446, 29 L. ed. 691 221 
 
 Wallingford «. Columbia & G. 
 
 R. Co., 26 S. C. 258.. 21 
 Wallis V. Portland, 3 Ves. Jr. 494 
 
 111, 118, 126 
 Walsby v. Anley, 3 El. & El. 516, 
 30 L. J. M. C. 121. 3 
 
 L. T.N. S. 666 
 
 313, 317, 334, 335 
 
 Walsh V. Fupsell, 6 Bing. 163 197 
 
 Walters v. Whitlock, 9 Fla. 86, 
 
 76 Am. Dec. 607 87 
 
 Walton V. Mascall, 13 Mees. & 
 
 W. 453 14 
 
 V. State, 88 Ind. 9.. 315, 423,426 
 Ward V. Bvrne, 5 ;Mees. & W. 
 
 548, 561, 562 
 
 163, 165, 172, 196, 200, 202 
 
 V. Farwell, 97 111. 593 281 
 
 V. Johnson, 95 111. 215 148 
 
 V. Morrison, 25 Vt. 595... 87 
 ®.Vosburgh,3lFed.Rep.l2 40, 47 
 Warden v. Union Pac. R. Co., 103 
 U. S. 651, 658, 26 L. 
 
 ed. 509, 511 134 
 
 Ware v. Jordan, 25 111. App. 534 48 
 «. Russell, 70 Ala. 174.... 
 
 118, 123, 125 
 
 Warfield t. Booth, 33 ISId. 63 169 
 
 Warner v. JafErey. 96 N. Y. 248. 86 
 Warnock v. Davis, 104 U. S. 775, 
 
 26 L. ed. 924. 26 
 
 Washburn v. Dosch, 68 Wis. 436. 
 
 168, 198, 200 
 Waterbury v. Laredo, 68 Tex. 565 213 
 Waterman v. Barrett, 4 Harr. 
 
 (Del.) 311 18 
 
 V. Buckland, 1 Mo. App. 45 
 
 40, 58 
 Watertown S. E. Co. v. Davis, 5 
 
 Houst. (Del.) 192 254 
 
 Watrous v. Allen, 57 Mich . 362, 
 
 58 Am. Rep. 363 172 
 
 Watson V. Harlem & N. Y. Nav. 
 
 Co., 52 How. Pr. 348. 2 
 D. State, 39 Ohio St. 123.. 320 
 V. Tarpley, 59 U. S. 18 
 
 How. 517, 15L.ed.509 92 
 Watts V. Van Ness, 1 Hill, 76... 79 
 Waugh v. Beck, 5 Cent. Rep. 
 536, 539, 540, 114 Pa. 
 422... 55, 61, 62, 67, 68, 148 
 «. Schlenk, 23 111. App. 433 116 
 Wayne Pike Co. v. Hammons 
 (Ind.) 10 Ry. & Corp. 
 
 L. J. 43 135, 405 
 
 Weatherbee v. Cockrell, 44 Kan. 
 
 380 140 
 
 Webb V. Allington, 27 Mo, App. 
 
 559 204 
 
 V. Camp, 26 Ga. 354 120 
 
 Webber v. Barry, 9 West. Rep. 
 
 872, 66 Mich. 127.. 400, 405 
 Webbers v. Blunt, 19 Wend. 188 107 
 Webster v. Buss, 61 N. H. 40, 60 
 
 Am. Rep. 317 172 
 
 V. Sturges, 7 111. App. 560. 44 
 Weed V. Black, 2 McArth. 268.. Ill 
 Weedon v. Wallace. Meigs, 286.. 119 
 
 Weeks v. Hill, 38 N. H. 199 153 
 
 Weener «. Brayton, 8 L. R. A. 
 
 640, 152 Mass. 101 2 
 
 Weetjen v. St. Paul P. R. Co., 4 
 
 Hun, 429. 255 
 
 Weider t. Maddox, 66 Tex. 372, 
 
 59 Am. Rep. 617 87 
 
 Weller v. Hersee, 10 Hun, 431.162, 201 
 Wellington v. Apthorp, 4 New 
 Eng. Rep. 883, 145 
 
 Mass. 69 15,19 
 
 Wells v. Millet, 23 Wis. 64 4 
 
 V. People, 71 111. 532 63 
 
 V. Stout, 9 Cal. 494 155 
 
 Welton V. Missouri, 91 U. S. 275, 
 
 23 L. ed. 347 217,220 
 
 West V. Camden, 135 U. S. 507, 
 
 34 L. ed. 254 135, 241 
 
 V. Holmes, 26 Vt. 530 49 
 
 V. Raymond, 21 Ind. 305.. 123 
 West Virginia Transp. Co. v. 
 Ohio R. P. L. Co. , 22 
 W. Va. 600, 617, 46 
 
 Am. Rep. 527 
 
 2, 200, 208, 218, 239, 
 
 284, 285 
 Western News Co. v. Kilmartin, 
 
 33 Kan. 510 405 
 
 Western U. Teleg. Co. v. Ameri- 
 can U. Teleg. Co., 65 
 
 Ga. 160 
 
 2, 208, 212, 232, 239, 309 
 V. Burlington & S. W. R. 
 Co., 3 McCrary, 130, 
 11 Fed. Rep. 1.141, 148, 205 
 V. Chicago & P. R. Co., 86 
 
 111. 246.. 244,309 
 
 V. Texas, 105 U. S. 460, 26 
 
 L. ed. 1067 220 
 
 Western Wooden Ware Asso. v. 
 Starkey, 11 L. R. A. 
 
 503, 84 Mich. 76 181 
 
 Westmeath v. Westmeath, 1 Dow. 
 
 &C. 519 155 
 
 Wheaton v. Ansley, 71 Ga. 35... 116 
 
 Wheeler v. Hawkins, 116 Ind. 515 70 
 
 V. Russell, 17 Mass. 258... 64, 68 
 
 V. Slocumb, 16 Pick. 52.. 14 
 
 V. Spencer, 15 Conn. 28... 49
 
 CASES CITED. 
 
 liii 
 
 Wbeeling Bridge Co. v. Wheeling 
 & B. Bridge Co., M 
 
 W. Va. 155 232 
 
 Whipple v. Thayer, 16 Pick. 25, 
 
 26 Am. Dec. 626 87, 90 
 
 Whitcomb v. Woodworth, 54 Vt. 
 
 544 252 
 
 White V. Barber, 123 U. S. 392, 
 
 31 L. ed. 243 39,40, 44 
 
 D. Burnley,61 U. S.20 How. 
 
 235, 15 L. ed. 886 101 
 
 «. Buss, 3 Cush. 448-450... 
 
 5, 6, 68, 205 
 «. Franklin Bank, 22 Pick. 
 
 181, 184 64, 144, 146, 147 
 
 V. Howard, 46 N. Y. 144. 289 
 
 «. Smith, 54 N. T. 522 44 
 
 Whitehead v. Kitson, 119 Mass. 
 
 484 361 
 
 Whitesides v. Hunt, 97 Ind. 191.46, 53 
 Whithead v. Ducker, 11 Smedes 
 
 &M.98 122 
 
 Whitman v. Porter, 107 Mass. 523 250 
 ®. Spencer, 3 R. I. 124.... 325 
 Whitmore v. Farley, 45 L. T. N. 
 
 S. 99. 116 
 
 Whitney ®. Clarv, 5 New Eng. 
 
 Rep. 152, 145 Mass. 156 16 
 V. Eaton, 15 Gray, 225.. 76, 254 
 V. Stayton, 40 Me. 224, 230 
 
 163, 164, 169 
 Whitney Arms Co. v. Barlow, 63 
 
 N. Y. 62. 144, 148 
 
 Whittaker ®. Howe, 3 Beav. 333, 
 
 383.. 170, 196,198.202 
 
 Whittenton Mills ®. Upton, 10 
 Gray, 582, 596, 71 Am. 
 Dec. 685-. 242, 243, 247, 276 
 Whittingham v. Burgoyne, 3 
 
 Anstr. 900 112 
 
 Whitwell ®. Vincent, 4 Pick. 451 76 
 Wickeus v. Evans, 3 Younge & 
 
 J. 318 172, 223, 238 
 
 Wickham v. Conklin, 8 Johns. 
 
 228 -. 294 
 
 Widiman v. Brown, 83 Mich. 241 12 
 Widoe V. Webb, 20 Ohio St. 431. 
 
 141, 204 
 Wigg V. Shuttleworth. 13 East, 87 204 
 Wiggins «. Bush, 12 Johns. 306. 68 
 Wiggins Ferry Co. v. Chicago & 
 A. R. Co., 73 Mo. 389 
 
 165, 264 
 V. Ohio&M. R. Co., 72 111. 
 
 360 309 
 
 Wight V. Rindskopf, 43 Wis. 344 67 
 Wilbur V. New York Electric 
 Const. Co., 26 Jones «& 
 S. 539, 35 N. Y. S. R. 
 81 107 
 
 Wildee ». McKee, 1 Cent. Rep. 
 
 919, 111 Pa. 335 319,427 
 
 Wiley V. Baumgardner, 97 Ind. 
 
 66. 49 Am. Rep. 427.. 199 
 Wilhite V. Roberts, 4 Dana, 172. 119 
 Wilkerson v. Rahrer, 140 U. S. 
 
 545, 35 L. ed. 572 79 
 
 Willamette Iron Bridge Co. v. 
 Hatch, 125 U. S. 1, 31 
 
 L. ed. 629 219 
 
 Willets ». Waite, 25 N. Y. 577.. 87 
 Willey V. State, 22 Tex. App. 408 426 
 Williams i). Carr, 80 N. C. 295... 6, 25 
 
 V. Com., 34 Pa. 178 326 
 
 V. Cowden, 13 Mo. 211 158 
 
 «. Evans, 6 L. R. A. 218, 
 
 87 Ala. 725 134 
 
 7>. Hedley, 8 East, 378.... 144 
 V. People, 54 111.422,9 West. 
 
 Rep. 461, 121 111. 84.71, 422 
 
 D. State, 47 Ind. 568 
 
 315. 422. 423, 426 
 V. Tappan, 23 N. H. 385.. 83 
 «. Tiedemann, 6 Mo. App. 
 
 369 48 
 
 Williamson v. New Jersey S. R. 
 Co., 28 N. J. Eq. 277. 
 29 N. J. Eq. 311-..258, 259 
 
 Williar v. Irwin, 11 Biss. 57 47 
 
 Willison V. Patterson, 7 Taunt. 
 
 448 104 
 
 Wills v. Ross, 77 Ind. 1, 40 Am. 
 
 Rep. 279 11, 14 
 
 Wilson V. Edmonds, 130 U. S. 
 
 472, 32 L. ed. 1025... 248 
 v. Ensworth, 85 Ind. 399.. 7, 64 
 ®. Hart, L. R. 1 Ch. 463.. 173 
 V. Jordan, 3 Woods, 642.. 69 
 V. New York Cent. & H. 
 
 R. R. Co., 97N. Y.87 94 
 V. Prewett, 3 Wood, 631.. 69 
 V. Rankin, L. R. 1 Q. B. 
 
 163 5,141 
 
 ®. Spencer, 1 Rand. 76 68 
 
 Wilton v. Eaton, 127 Mass. 174.. 19 
 Winchester v. Nutter, 52 N. H. 
 
 507 6, 59 
 
 Windhill Local Board of Health 
 V. Vint, L. R. 45 Ch. 
 
 Div. 351. 115 
 
 Wing v. Glick, 56 Iowa. 473 48 
 
 Winn D. Sanford, 1 L. R. A. 512, 
 
 148 Mass. 39 157 
 
 Winpenny v. French, 18 Ohio St. 
 
 469 109 
 
 Winter v. Coit, 7 N. Y. 288 76 
 
 Wisner i>. Bardwell, 38 Mich. 
 
 278 _.. 116 
 
 Withrell v. Jones, 3 Barn. & Ad. 
 
 221 64
 
 liv 
 
 CASES CITED. 
 
 Woodruff 1). Wentworth, 133 
 
 Mass. 369, 314. 134 
 
 Wolf, Be, 27 Fed. Rep. 606 
 
 329, 374, 375 
 
 Wolfe ». Pugh, 101 Ind. 293 422 
 
 AVolffe V. Ferryman, April 6, 
 
 1891 43, 51 
 
 Wolverton v. Davis, 1 Bulst. 38. 67 
 Wood V. Jackson, 8 Wend. 26... 151 
 
 V. Kelso, 27 Pa. 243 88 
 
 V. McCann, 6 Dana, 366.110, 111 
 V. State, 1 Cent. Rep. 441, 
 
 47 N. J. L. 461.321,414,420 
 Woodburn v. Woodburn, 23 111. 
 App. 289, 11 West. 
 Rep. 789, 13 West. 
 Rep. 505, 123 111. 608.16, 18 
 Woodman v. Innes. July 9, 1891. 109 
 Woodruff V. Berry, 40 Ark. 251 
 
 107. 185, 213, 234, 240, 279 
 V. Erie R. Co., 25 Hun, 246 266 
 V. Hiuman, 11 Vt. 592. .204, 205 
 V. Parham, 75 U. S. 8 Wall. 
 
 123, 19 L. ed. 382.... 222 
 V. Wentworth, 133 Mass. 
 
 309. 314. .2,205 
 
 Woods V. Armstrong, 54 Ala. 150 
 
 67, 68, 81 
 Woodstock Iron Co. v. Richmond 
 & D. Extension Co., 
 129 U. S. 643, 32L. ed. 
 
 819 
 
 106, 126, 139-131, 134, 
 
 239, 240, 244, 279 
 Woodward v. Brooks, 3 L. R. A. 
 
 702, 128 111. 222 89 
 
 Wooten V. Hinkle, 20 Mo. 290... 165 
 Worcester v. Eaton, 11 Mass. 368 144 
 Workman v. Campbell, 46 Mo. 308 133 
 V. Wright, 44 Ohio St. 405 116 
 Worrall v. Jacob, 3 Meriv. 256.. 155 
 Wray v. Chandler, 64 Ind. 146.. 13 
 
 Wren v. Bradley, 2 DeG. & S. 49 159 
 Wright V. Cain, 93 N. C. 296.... 120 
 
 V. Crabbs, 78 Ind. 487 309 
 
 V. Jones, 2 West. Rep. 356, 
 
 105 Ind. 17 11 
 
 V. Kentucky & G. E. R. Co., 
 
 117 U. S. 72, 29 L. ed. 
 
 Q01 257 
 
 V. Mi Her,' i'Sandf' Ch" I'os' 
 
 7L. ed. 256 .... 156 
 
 V. Pipe Line Co., 101 Pa. 
 
 204 145 
 
 V. Riudskopf, 43 Wis. 344.2, 139 
 V. Ryder, 36 Cal. 242, 357 
 
 170,171, 200, 202 
 
 V. Wright, 54 N. Y. 440.150, 151 
 
 Yarbrough, Ex parte, 110 U. S. 
 
 651, 28 L. ed. 274 375 
 
 Yates V. Foot, 12 Johns. 1 64 
 
 Yerkes v. Salomon, 11 Hun, 471.40, 60 
 
 York V. Merritt, 77 N. C. 213 138 
 
 York & M. L. R. Co. v. Winans. 
 
 58 U.S. 17 How. 30, 15 
 
 L. ed.27 273 
 
 York Mfg. Co. v. Illinois Cent. 
 
 R. Co., 70 U. S. 3 
 
 Wall. 107, 18 L. ed. 
 
 170 15 
 
 Young, Ex parte, 6 Biss. 53.. 39-41, 44 
 V. Robertson, 6 Phila. 184. 116 
 Young's Case (1780), cited in 1788 
 
 in2T. R. 733 312,819 
 
 Youngs V. Lee, 12 N. Y. 551 14 
 
 Z. 
 
 Zipcey v. Thompson, 1 Gray, 243.87, 91
 
 CONTRACTUAL LIMITATIONS. 
 
 CHAPTER I. 
 
 LIMITATIONS UPON THE RIGHT TO CONTRACT. 
 
 ^ I. Duty to Avoid Invading Interests Cherislied hij the Law. 
 % 2. What are Contracts loMch Invade such Interests . 
 
 a. Consideration Essential, Illegal in Part, Moral and Im- 
 
 moral. 
 
 b. Good and Equitaile Consideration. 
 
 c. Mutual Promises. 
 
 d. Valuable Consideration. 
 
 e. Expectation of Besulfs, not a Consideration. 
 
 i. Voluntary Service or Promise; Existing Obligations, 
 g. Wager Policies on Life. 
 
 h. Future Delivery of Stocks, Grain, and Produce. 
 ^ 3. Courts, in Matter of Contract, toiU Protect the Public. 
 
 § 1. Duty to Avoid Invading Interests Cherished by the 
 
 Law. — While at common law the right of everyone, not belong- 
 i ns^ to a class specially disqualified — as infants, married women, or 
 hmatics — to enter into a contract upon a sufficient consideration, 
 is recognized, yet all persons are forbidden to enter into any con- 
 tract which is contrary to " the policy of the law " or the welfare 
 of the State. This is giving practical effect to the rule that every- 
 one in exercising a right must have regard to the effect of such 
 exercise upon his neighbor. But while the rule in torts is only 
 held to require that a man must see that his neighbor does not suffer 
 from hie negligent exercise of his right (Ray, !Neg. Pers. 8), in 
 the matter of contracts, it declares that the right to make them 
 does not include the right to enter into any engagement which 
 contemplates injury to the rights of another.' An agreement to 
 
 ^Bartle v. Nutt, 29 U. S. 4 Pet. 184, 7 L. ed. 825; Gordon v. Howden, 12 
 Clark & F. 237. 
 
 1 1
 
 2 LIMITATIONS UPON THE EIGHT TO CONTKACT. 
 
 accomplish a purpose in itself not unlawful, by means of a violation 
 of a contract with a third party, or a fraud upon him, or a breach 
 of trust, or a trespass against his person or property, is illegal/ 
 
 So, also, all contracts invading any one of the interests which 
 the law cherishes, though not indictable and not prohibited by 
 statute, are against public policy and void." 
 
 The common law will not permit individuals to legally place 
 themselves in a position by contract where they are required either 
 to do or not to do a particular thing, when the thing to be done 
 or omitted is in any degree injurious to the public.^ 
 
 A trade-mark liable to deceive the public will not be a protec- 
 tion to its owner ; * or one discriminating between union and non- 
 union labor/ 
 
 So a contract to pay an unlicensed physician for his services as 
 a physician, when a statute prohibits him from practicing, is void 
 
 ^Woodruff V. Wentworth, 133 Mass. 309; Onernseyv. Cook, 120 Mass. 501; Rice 
 
 V. Wood, 113 Mass. 133; Fuller \. Dame, 18 Pick. 472; Spauldingv. Preston, 
 
 21 Vt. 9; Foote v. Emerson, 10 Vt. 338; Oscanyon v. Winchester Arms Co. 
 
 103 U. S. 261, 26 L. ed. 539; Forbes v. McDonald, 54 Cal. 98; Jackson v. 
 
 Ludeling, 88 U. S. 21 Wall. 616, 22 L. ed. 492; Noel v. Drake, 28 Kan. 
 
 265; Nichols v. Buggies, 3 Day, 145; Reg. v. Rowlands, 17 Q. B. 671; Reg. 
 
 V. Warburton, L. R. 1 C.C. 274; Reg. v. Aspinall, L. R. 2 Q. B. Div. 57; Po^?- 
 
 lett V. Stockdale, 1 Ryan & M. 337; Shep. Touch. 370. 
 *Oscanyon v. Winchester Arms Co. 103 U. S. 261, 26 L. ed. 539; Fuller v. 
 
 Dame, 18 Pick. 472; Bestor v. Wathen, 60 111. 138; Ayer v. Hntchins, 4 
 
 Mass. 372; Liness v. Hesing, 44 111. llS; Hamilton v. Scull, 26 Mo. 165; 
 
 Fcnton v. Ham, 35 Mo. 409; Hanoood v. Enapper, 50 Mo. 456; Church v. 
 
 Mtiir, 33 N. J. L. 318; Bradford v. Beyer, 17 Ohio St. 388; Norris v. Noi-- 
 
 ris, 9 Dana, 318; Eribben v. Haycraft, 26 Mo. 396; Wright v. Rindskopf, 
 
 43 Wis. 348. 
 *West Virginia Transp. Co. v. Ohio River Pipe Line Co., 22 W. Va. 617; West- 
 ern U. Teleg. Co. v. American JJ. Teleg. Co. 65 Ga. 160; Hazlehurst v. 
 
 Savannah, G. <fc N. A. R. Co. 43 Ga. 13; Raymond v. Leavitt, 46 Mich. 
 
 447; Colles v. Trow City D. Co. 11 Hun, 397; Watson v. Harlem & N. 7. 
 
 Nav. Co. 52 How. Pr." 348; Faulds v. Tales, 57 111. 416; Falls' App., 91 
 
 Pa. 534. 
 ^Manhattan Medicine Co. v. Wood, 108 U. S. 218, 27 L. ed. 706; Palmer v. 
 
 Harris, 60 Pa. 156; Connelly. Reed, 128 Mass. 477; Buckland v. Rice, 40' 
 
 Ohio St. 526; Siegeri v. Abbott, 61 Md. 276; Cleveland, C. C. <fe /. R. Co. 
 
 V. Closset\ 9 L. R. A. 754, 126 Ind. 348; Eirkpatrick v. Clark, 8 L. R. A. 
 
 511, 132 111. 342. 
 ^McVey v. Brendel, 13 L. R. A. 377. See, on subject of trade-marks, New 
 
 York & R. Cement Co. v. Coplay Cement Co. 10 L. R. A. 833, 44 Fed. Rep. 
 
 277; Alffy. Radam, 9 L. R. A. 145, 77 Tex. 530; Weener v. Brayton, 
 
 8 L. R. A. 640, 152 Mass. 101; Oato v. El Modelo Cigar Mfg. Co. 6 L. R. 
 
 A. 823, 25 Fla. 886; Laughman v. Piper, 5 L. R. A. 599, 128 Pa. 1; 
 
 Cigar Makers Prot. Union v. Conhaim, 3 L. R. A. 125, 40 Minn. 243; 
 
 Bumford Chemical Works v. Muth, 1 L. R. A. 44, 35 Fed. Rep. 524; and 
 
 notes to the cases.
 
 DUTY TO AVOID INVADING INTERESTS CHEEISHED BY THE LAW. 3 
 
 in its inception, as imperiling the public health.' A contract by 
 which a teleplione company agrees to give a telegraph company 
 the exclusive use for a term of years of the telephone for receiving 
 and transmiting telegraph messages is void as limiting public use, 
 and therefore against public policy.* A man's contract to give 
 another the first right to purchase the interest of his deceased 
 wife's estate in school lands, as soon as administration is had npon 
 the estate, is contrary to public policy and void, where he had no 
 power to bind the estate.^ 
 
 Where property of large value, both real and personal, is incum- 
 bered with mortgages or other liens to an amount sometliing like 
 its value, so that there remains in the owner but an equity of 
 redemption of trifling value; and a creditor at execution sale, or 
 otherwise, buys at a small price such equity, with a view to re- 
 demption from the liens, a court of equity will lend its aid to put 
 him in a position where he may safely redeem; but where such pur- 
 chase is purely speculative, simply in fact to trade upon the chances 
 of successfully attacking transfers of large property, made for the 
 benefit of creditors, and with the view of depriving them of the 
 benefits of such transfers, it is a case where equity, true to its 
 ideas of substantial justice, refuses to be bound by the letter of 
 legal procedure, or to lend its aid to a mere speculative purchase 
 which threatens injury and ruin to a large body of honest credit- 
 ors, who have trusted for the payment of their debts to the legal 
 validity of proceedings theretofore taken.* 
 
 JSTothing can call a court of equity into activity but conscience and 
 good faith toward the public and individuals, and reasonable dil- 
 igence. Where these are wanting, the court is passive, and does 
 nothing.* 
 
 ^Packet V. Alexander, 3 L. R. A. 43, 102 N. C. 95; Gardner v. Tatura, 81 Cal. 
 
 370. 
 ^State V. Delaware & A. Teleg. & Teleph. Co. 47 Fed. Rep. 683. 
 ^Specht V. Collins, — Tex. , 16 S. VV. Rep. 934. 
 
 *Jencks v. Quidnick Co. 130 U. S. 457, 34 L. ed. 200. See Toicnshend v. 
 Goodfellow, 3 L. R. A. 739, 40 Minn. 312. 
 
 ^Broionv. Buena Vista County, 95 U. S. 157, 160, 24 L. ed. 422; Speidel v. 
 Eenrici, 120 U. 8. 377-387, 30 L. ed. 718-720; Aldridge v. Muirhead, 101 
 U. S. 397, 25 L. ed. 1013; Muirhead v. Aldridge, 14 Nat. Bankr. Reg. 
 249; CodmanY. Rogers, 10 Pick. 112; Angell, Lim. (6th ed.) ^ 96; Bus- 
 •well, Lim. & Adv. Poss. § 159; Wood, Lim, § 118; Sehring v. Hebring, 43 
 N. J. Eq. 59; Pom. Eq. Jur. §§ 418, 419.
 
 4 LIMITATIONS UPON THE EIGHT TO CONTRACT. 
 
 If a contract be unreasonable and unconscionable, but not void 
 for fraud, a court of law will give to the party who sues for its 
 breach damages, not according to its letter, but only such as he is 
 equitably entitled to;' for one who has been led into a contract upon 
 which lie has received something of value cannot ignore the con- 
 tract, however induced, and proceed as if the relations of the parties 
 were wholly unaffected thereby, and cannot while retaining its 
 benefits and thus affirming the contract, treat it as though it did 
 not exist.^ 
 
 One kind of unfairness which stays the interference of the court 
 arises where the enforcement of the contract would be injurious 
 to third parties.' 
 
 A contract obtained under circumstances which are not fair and 
 honest cannot be enforced in equity.' 
 
 Thus, where an illiterate man signs a writing which has been 
 falsely read to him, he cannot be compelled to execute it.^ 
 
 A sale will be set aside at the petition of a vendor not guilty of 
 laches under 'the circumstances in which he acted, who has been 
 induced to sell, at an inadequate price, property at a great distance 
 from his residence, and of the value of which he was ignorant, by 
 the false representations as to such value of a purchaser who has 
 secured his trust and confidence for this purpose and who is fully 
 informed as to such value and acquainted with the property, but 
 does not disclose the facts respecting it." 
 
 Nor can there be any contract enforceable in a court, where a 
 physical act of concurrence therein has been coerced through du- 
 ress or imprisonment; and a threat followed by fear of its execu- 
 
 ^Hume V. United States, 133 U. S. 406, 32 L. ed. 393. 
 
 "^Home Ins. Co. v. McRicJiards, 121 Ind. 121; Hu7ne v. United States, 182 U. S. 
 406, 33 L. ed. 393. 
 
 ^Fry, Specific Perf. § 245. 
 
 *Foley V Greene, 1 New Eng. Rep. 17, 14 R. I. 618; Kelly v. Kendall, 6 
 West. Rep. 544, 118 111. 650; Fry, Specific Perf. § 241; Dement v. Bon- 
 ham, 26 111. 158; Mitchell v. King, 77 111. 466; Tarnm v. Lavalle, 92 111. 
 2Qd-'KeUei/ v. Sheldon, 8 Wis. 258; Miner v. Medbury, 6 Wis. 295; Smith 
 V Mariner, 5 Wis. 551; Reed v. Jones, 8 Wis. 392; Wells v. Millet, 23 Wis. 
 64; McClellanY. Scott, 24 Wis. 81; Mortlock v. BuLler, 10 Ves. Jr. 292; 
 Stone V. Pratt, 25 111. 25. 
 
 ^Green v. North Buffalo Twp. 56 Pa. 110; Schuylkill Cou7ity v. Copley, 67 Pa. 
 386. This is also the doctrine of Thorougligood' s Case. 
 
 ^Parry v. Pa/iry, — Wis. — , 48 N. W. Rep. 654.
 
 DUTY TO AVOID INVADING INTEKESTS CHERISHED BY THE LAW. 
 
 tion, constitutes duress sufficient to invalidate a contract made 
 under its influence.' 
 
 So if a person be in pecuniary distress so that he would be dis- 
 posed to make an undue sacrifice, and advantage is taken of his 
 condition to obtain from him a contract for an insufficient consid- 
 eration, he will be relieved therefrom.'' 
 
 And a settlement and release obtained by threats and menaces 
 from a creditor of a weak mind is invalid.' 
 
 Where the direct purpose of the engagement is in itself unlaw- 
 ful, the contract is incapable of enforcement;* and a contract 
 whose invalidity is caused by its stipulating for the commission of 
 an act forbidden by law at the time when it is to be done, cannot 
 be ratified, even after a change in the law has rendered the doing 
 of the act not unlawful.' 
 
 A court will not sit to take an accounting between two rob- 
 bers.' 
 
 A contract between an attorney and a non-professional, to pro- 
 cure the former employment by a litigant, in consideration of a 
 part of whatever remuneration the attorney receives for his ser- 
 vices from the litigant, is contrary to public policy and void.' 
 
 Nor can an attorney contract for a monthly compensation, to 
 defend all cases brought against his employers, engaged in the 
 illegal sale of liquor, for future violations of law.* 
 
 ^Turley v. Edwards (Mo. App.) 1 West. Rep. 450; Brundage v. Port Chester, 
 3 Cent. Rep. 643. 102 N. Y. 494; Foley v. Gree7ie, 1 New Eng. Rep. 17, 
 14 R. I. 618. 
 
 ^Buford V. Louisville & iV. E. Go. 82 Ky. 286. 
 
 ^Parmentier v. Pater, 13 Or. 121. 
 
 *Uanauer\. Doane, 79 U. 8. 12 Wall. 342. 346, 20 L. ed. 439; Kirkimtrick 
 V. Clark, 8 L. R. A. 511,132 III. 342; Milner v. Patton, 49 Ala. 423: Lewis 
 V. Latham, 74 N. C. 283; Hari-ey v. Merrill, 5 L. R. A. 200, 150 Mass. 1; 
 Milfordv. Milford Water Co. 3 L. R. A. 122, 124 Pa. 610; Tatmny. Kelly, 25 
 Ark. 209; RoquemoreY. Alloway, 33 Tex. 461; Gannany. Bryce, 3 Burn. & 
 Aid. 179; Cutler v. Welsh, 43 N. H. 497; Whiter. Buss, 3 Cush. 448; 
 Critcherv. Holloioay, 64 N. C. 526; Ralston v. Boady, 20 Ga. 449; Sprott 
 V. United States, 87 U. S. 20 Wall. 459, 22 L. ed. 371; Dudgeon v. Pem- 
 broke, L. R. 9 Q. B. 581; Walker v. United States, 106 U. S. 413; Wilson 
 V. Rankin, L. R. 1 Q. B. 163; Johnson v. Union M. & F. Ins. Co. 127 
 Mass. 555. 
 
 ^Ha7idy v. Globe Pub. Go. 4 L. R. A. 466, 41 Minn. 188. 
 
 ^Everel v. Williams, 2 Pothier, Obi. (Evans's ed.) p. 3, note a; Spauldinq v. 
 Preston, 21 Vt. 9; Shep. Touch. 370; Sykes v. Beadon,L. R. 11 Ch. Div. 
 195. 
 
 "•Alpers V. Hunt, 9 L. R. A. 483. 86 Cal. 78. 
 
 ^Boip^ian V. PhilUpjs, 41 Kan. 364.
 
 6 LIMITATIONS UPON THE EIGHT TO CONTKACT. 
 
 § 2. What are Contracts which Invade such Interests. — 
 
 Contracts violating, or whatever, even in spirit, is in violation 
 of a statute, or obstructs justice, or is against good morals (includ- 
 ing contracts injuriously affecting the marriage relation and wager- 
 ing contracts), or is in restraint of liberty of commerce, or of 
 natural or of legal right, comes within this prohibition and is 
 void.' 
 
 The surrender of letters and telegrams of the maker of a note? 
 and of a protested check given in payment of a gambling debt, 
 constitutes an insufficient consideration for a note." 
 
 All contracts against the pohcy of the law and such as contra- 
 vene sound morality are, on these grounds, void. They are contra 
 honos mores, and therefore void.' 
 
 a. Consideration Essential; Illegal in Part; Moral and 
 Immoral. — An entire contract, which is founded upon a consid- 
 eration in part illegal is void, and incapable of confirmation.* 
 
 The consideration alleged must be lawful, and not in its nature, 
 because of some tainting or vitiating quality in it, void.^ 
 
 Agreements entered into with a view to future cohabitation 
 
 ^Cleveland, G. dk C. & 1. R. Co. v. Glosser, 9 L. R. A. 754, 126 Ind. 348; Harvey 
 V. Memll, 5 L. R. A. 200, 150 Mass. \;McDermotY. Castlane, Hard. 18; Pi?i- 
 grey v. Waslibourne, 1 Aik. 264; Craig v. Missouri, 24 U. S. 4 Pet. 431, 7 L. 
 ed.910; Mitchell v. Sniith, 4 Yeates, 84; Bushell v. Beavan, 1 Biug. 
 N. C. 110; Cusack v. White, 2 Mill. L. 284; Kirkpatrick v. Clark, 8 L. R. 
 A. 511, 132 111. 342; Peck v. Burr, 10 N. Y. 294; Hathaicay v. MoranA'i 
 Me. 67; White v. Buss, 3 Cush. 448; Dillon v. Allen, 46 Iowa, 299; Bemis 
 V. Baker, 1 Kan. 226; Ray v. Mackin, 100 111. 246; Martin v. Bartow Iron 
 Works, 85 Ga. 320; Peterson v. Christensen, 26 Minn. 377; North v. Nel- 
 son, 28 Ala. 511; Odineal v. Barry, 24 Miss. 9; Ferguson v. Norman, 5 
 Bing. N. C. 76; Cannan v. Bryce, 3 Barn. & Ad. 179; Gale v. Leckie, 3 
 Stark. 107; Bishop v. Palmer, 6 New Eng. Rep. 129, 146 Mass. 469; 
 Smith V. Arnold, 106 Mass. 269; Pierce v. Evans, 61 Pa. 415; Burkholder 
 V. Beetem, 65 Pa. 496; Durqin v. Dyer, 68 Me. 143; Bank of United States 
 V. Owens, 27 U. S. 2 Pet. 527, 7 L. ed. 508; Irwin v. Williar. 110 U. S. 
 498, 510, 28 L. ed. 225, 230; Love v. Harvey, 114 Mass. 80; WincJiester v. 
 Nutter. 52 N. H. 507; Rice v. Gist, 1 Strobh. L. 82; EdgeU v. McLaugh- 
 lin, 6 Wliart. 176. 
 
 ^Hollingsworth v. Moulton, 53 Hun, 91. 
 
 ^Sharv v. Farmer, 4 Dev. & B. L. 123; Blythe v. Lovinggood, 24 N. C. 20; 
 Ingram v. Ingram, 49 N. C. 188; King v. Winants, 71 N. C. 469; Williams 
 V. Carr, 80 N. C. 295; Griffin v. Hasty, 94 N. C. 438; Burbage v. Wind- 
 ley, 12 L. R. A. 409, 108 N. C. 357. 
 
 *Pettit V. Pettit, 32 Ala. 288; Handy v. Globe Pub. Co. 4 L. R. A. 466, 41 
 Minn. 188. 
 
 ^ Moore V. Hobbs, 79 N. C. 535; Burnet v. Bisco, 4 Johns. 235; 1 Chitty, PI. 
 294.
 
 CONSIDERATION ESSENTIAL; ILLEGAL IN PAKT. 7 
 
 and prostitution are illegal and void, as being against public mor- 
 ality/ 
 
 A warrant of attorney, given to induce a plaintiff to live in 
 prostitution with the defendant, is void, and will be decreed to be 
 given np.' 
 
 A woman living by agreement with a man as his wife cannot, 
 after his marriage, recover in assumpsit for services and money 
 contributed towards family expenses during such unlawful rela- 
 tion, even if there was express promise to pay/ 
 
 But an agreement by defendant to allow plaintiff, with whom 
 he cohabited, in case they should separate, an annuity for life, 
 provided she should continue single, is a valid agreement/ 
 
 So a bond given in consideration of past cohabitation is good ; * 
 but a bond for cohabitation with a woman seduced by the 
 obligor, for maintenance after his death, is void." 
 
 Past seduction and cohabitation have been held not a good con- 
 sideration to support a grant of an annuity/ 
 
 Where a complaint stated that the plaintiff had cohabited with 
 defendant as his mistress, and that it was agreed that no further 
 immoral connection should take place between them, and that 
 defendant should allow her an annuity as long as she should con- 
 tinue of good and virtuous life and demeanor, it was held that 
 there was no good consideration, it not being averred that defend- 
 ant was the seducer, and there is no authority to show that past 
 cohabitation alone, or the ceasing to cohabit in the future, is a 
 good consideration for such a promise/ 
 
 But a moral consideration is held sufficient to support a con. 
 
 ^ Walker V. Perkins, 3 Burr. 1568, 1 W. Bl. 517; Friend v. Harrison, 2 Car 
 & P. 584; Wilson v. Emworth, 85 Met. 399; Walker v. Gregory, 36 Ala 
 180; Wallace v. Rappleye, 103 111. 229, 249. 
 
 •^James v. Hoskins, 1 Tidd, Pr. 547. 
 
 ^Brown v. Tuttle, 6 New Eng. Rep. 156, 80 Me. 63. 
 
 *Gibson v. Dickie, 3 Maule & S. 463. 
 
 ^Hill V. Spencer, Ambl. 641; Knye v. Moore, 2 Sim. & Stu. 260; Turner v. 
 
 Vavghan, 2 Wils. 339; Nge v. Moseley, 9 Dowl. & R. 165, 6 Barn. & C. 
 
 133; Gray v. Matthias, 5 Ves. Jr. 286; Hall v. Palmer, 8 Jur. 459 13 L* 
 
 J. Ch. 353. 
 ^Walker v. Perkins, 3 Burr. 1568, 1 W. Bl. 517; Hanks v. Naglee, 54 Cal. 
 
 51; Baldy v. Stratton, 11 Pa. 316; Goodall v. Thurman, 1 Head, 209. 
 "'Beaumont v. Reeve, 8 Q. B. 483, 18 Jur. 284, 15 L. J. Q. B. 141. 
 ^Binnington v. Wallis, 4 Barn. & Aid. 650.
 
 8 LIMITATIONS UPON THE RIGHT TO CONTRACT. 
 
 tract under some circumstances. The Code of Georgia (§ 2741) 
 expressly recognizes a strong moral obligation as a consideration 
 for a contract; and there is no reason for conhning this to executed 
 contracts. 
 
 Thus a contract to make compensation for past illegal cohabi- 
 tation, not contemplating its continuance, is legal.' 
 
 An agreement by one partner who had become voluntarily dis- 
 abled from service for the firm, made after dissolution, but before 
 full settlement, to allow his copartner out of the assets a certain 
 sum for past services, to compensate him for his own lack of 
 services, is supported by a strong moral obligation, sufficient under 
 Ga. Code, § 2741, although it would not be valid at common law.* 
 But in the absence of statute according to the common law, as now 
 generally understood and administered, such an obligation would 
 not suffice as a consideration for an executory promise.^ IS^either 
 "love and affection," nor "blood relationship," nor "friendship," 
 nor any mere moral duty or obligation, nor any voluntary courtesy, 
 it has been held, constitutes a sufficient consideration for a promise 
 not under seal.* A mere moral obligation or duty already dis- 
 charged is not a sufficient consideration to support a subsequent 
 express promise to pay.* 
 
 b. Good and Equitable Consideration. — The duty of a 
 father is a sufficient consideration to support the gift of land by 
 him to a third person for the benefit of his daughter; and such 
 gift cannot thereafter be revoked or altered without the consent 
 of the daughter. ° 
 
 ^SraitTi v, Du Base, 78 Ga. 413. 
 
 Wray v. Hamil, 6 L. R. A. 72, 82 Ga. 375. 
 
 ^Gray v. Hamil, 6 L. R. A. 72 ,82 Ga. 385; Chitty, Cont. 11th Am. ed. 52 et seq.; 
 
 Wharton, Cont. g§ 512, 514; Bishop, Cont. § 44; Hare, Cont. 262 et seq.; 
 
 Lampleigh v. Braihwait, 1 Smith, Lead. Cas. 151, note. 
 *Vance v. Wells, 8 Ala. 399; Montgomery v. Lampton, 3 Met. (Ky.) 519; Mills 
 
 V. Wyman, 3 Pick. 207; Cook v. Bradley. 7 Conn. 57; Loomis v. Neiohall, 
 
 15 Pick. 159; Haideyv. Farrar, 1 Vt. 420; Updike v. Titus, 13 N. J. 
 
 Eq 151- Musser v. Ferguson, 55 Pa. 475; Cobb v. Cowdery, 40 Vt. 25-,. 
 
 Shephard v. Rhodes, 7 R. I. 470; Olass v. Beach, 5 Vt. 173; Canal Fund 
 
 Comrs. V. Perry, 5 Ohio, 58; Turnery. Patridge, 3 Pa. 172; Barlow v. 
 
 Smith', 4 Vt. 144; Clark v. Herring, 5 Binn. 33; Dodge v. Adams, 19' 
 
 Pick. 429; Ehle v. Judson, 24 Wend. 97, cited in 1 Addison, Cont. 13. 
 '■Condon v. Barr, 4 Cent. Rep. 558, 49 K J. L. 53; Kent v. Rand, 2 New 
 
 Eng. Rep. 860, 64 N. H. 45. 
 ^Enowles v. Erwin, 43 Hun, 150.
 
 GOOD AND EQUITABLE CONSIDEKATION. 1> 
 
 A conveyance of land made by a father for the benefit of his 
 illegitimate child is upon a good consideration.' Natural affection 
 is a good consideration for an executed contract." But a promise 
 by a father to give his son a tract of land by his will, followed by 
 expenditure in improvements, not, however, in execution of the 
 contract or at the father's request, is without consideration, and 
 cannot be enforced,^ and the natural affection of the father alone 
 and his moral obligation and duty to provide for a bastard child, 
 do not constitute a sufficient consideration to make him liable for 
 its support, where there was no compromise ^vith the mother or 
 any demand by her for a verbal promise to provide for the child.* 
 But a deed made by a father for the benefit of his illegitimate 
 child is upon a good consideration.' 
 
 A promise by the father of an illegitimate child to the mother 
 to pay her an annuity if she would maintain the child, is, <jn per- 
 formance by the mother, founded on sufficient consideration.^ 
 
 A bond to pay an annuity to the mother of an illegitimate 
 child, executed by the father, on condition that she should give 
 him its custody or management, is given on good consideration.^ 
 
 A settlement and discontinuance of a prosecution for l)astardv 
 and fornication is a good and legal consideration for a judo-ment 
 note given by the reputed father to the mother of the child.' 
 
 Where a man having a legal wife deceives another woman by 
 a void marriage, and has children by her, the facts furnish a good 
 consideration for the assignment to her of a mortgage security.' 
 
 In Hamer v. Sidway, 12 L. R. A. 463, 124 X.Y. 538, a minor's 
 abstinence from intoxicating liquors and tobacco, and from swear- 
 
 Wonley-v. Nailor, 118 IT. S. 127, 30 L. ed. 112; Gay w. Parpart, 106 U. S. 
 679, 27 L. ed. 256; Bunn v. Winthrop, 1 Johns. Ch. 329, 1 L. ed. 159; 
 Hook V. Pratt, 78 N. Y. 371: Annnndalev. HaiTi8, 2 P. Wms. 432; Jen- 
 nings V. Brown, 9 Mees. &, W. 496. 
 
 ^King v. TliQmpson, 34 U. S. 9 Pet. 204, 9 L. ed. 102. 
 
 ^M'Clure v. M'Clure, 1 Pa. 374. 
 
 *Mercer v. Mercer, 87 Ky. 30. 
 
 ^Conley v. Nailor, 118 U. S. 127, 30 L. ed. 112. 
 
 ^Jennings v. Brown, 9 Mees. <fe W. 496, 12 L. J. Exch. 86; Hicks v. Gregory ^ 
 8 C. B. 378, 13 Jur. 1080, 19 L. J. C. P. 84; Smith v. Roche, 6 C. B. X. 
 S. 223, 5 Jur. N. S. 918, 28 L. J. C. P. 2o7. 
 
 ■'Re Plaskett, 30 L. J. Ch. 606, 9 Week. Rep. 628, 4 L. T. N. S. 544. 
 
 ^Stumpf's App. 8 Cent. Rep. 113, 116 Pa. 33. 
 
 ^Gay V. Purpart, 106 U. S. 679, 27 L. ed. 256.
 
 10 LIMITATIONS UPON THE RIGHT TO CONTRACT. 
 
 ing or playing cards or billiards for money, is decided a good con- 
 sideration for a promise by his uncle to pay him a sum of money. 
 The defendant there contends that the contract was without con- 
 sideration to support it, and therefore invalid. He asserts that 
 the promisee, by refraining from the use of liquor and tobacco, 
 was not harmed, but benefited; that that which he did was best 
 for him to do, independently of his uncle's promise, — and insisted 
 that it followed that, unless the promisor was benefited, the con- 
 tract was without consideration, — a contention which, if well 
 founded, it is said, would seem to leave open for controversy in 
 many cases whether that which the promisee did or omitted to 
 do was in fact of such benefit to him as to leave no consideration 
 to support the enforcement of the promisor's agreement. Such 
 a rule the court said could not be tolerated, and is without foun- 
 dation in the law. In Lacota v. Neioton (an unreported case in 
 the superior court of Worcester, Mass.), the complaint averred 
 defendant's promise that "if you [meaning the plaintiff] will leave 
 off drinking for a year I will give 3'ou $100," plaintiff's assent 
 thereto, performance of the condition by him, and it demanded 
 judgment therefor. Defendant demurred, on the ground, among 
 others, that the plaintiff's declaration did not allege a valid and 
 sufficient consideration for the agreement of the defendant. The 
 demurrer was overruled. In Talbott v. Stemmons (Ky.), 5 L. R. 
 A. 856 (a Kentucky case, not yet oflficially reported), the step- 
 grandmother of the plaintiff made with him the following agree- 
 ment: "I do promise and bind myself to give my grandson 
 Albert R. Talbott $500 at my death if he will never take another 
 chew of tobacco or smoke another cigar during my life, from this 
 dat^ up to my death; and if he breaks this pledge he is to refund 
 double the amount to his mother." The executor of Mrs. Stem- 
 mons demurred to the complaint on the ground that the agree- 
 ment was not based on a sufficient consideration. The demurrer 
 was, sustained, and an appeal taken therefrom to the Court of 
 Appeals, where the decision of the court below was reversed. In 
 the opinion of the court it is said that "the right to use and enjoy 
 the use of tobacco was a right that belonged to the plaintiff, and 
 not forbidden by law. The abandonment of its use may have 
 saved him money, or contributed to his health; nevertheless, the
 
 MUTUAL PKOMISES. 11 
 
 surrender of that right caused the promise, and, having the right 
 to contract with reference to the subject matter, the abandonment 
 ■of the use was a sufficient consideration to uphold the promise," 
 Abstinence from the use of intoxicating liquors was held to fur- 
 nish a good consideration for a promissory note in Lindell v. 
 EoTces. 60 Mo. 249. Certain cases sometimes cited on this ques- 
 tion are not in point. In Mallory v. Gillett, 21 N. Y. 412; Bel- 
 Jcnap V. Bender, T5 N.Y. 446, and Berry v. Broion, 9 Cent. Rep. 
 :896, 107 N. Y. 659, — the promise was in contravention of that 
 provision of the Statute of Frauds which declares void all promises 
 to answer for the debts of third persons unless reduced to writing. 
 A contract will be sustained if it rests upon an equitable considera- 
 tion.' But no action can be maintained to enforce a gratuitous 
 promise, however worthy the object in contemplation of the par- 
 ties." 
 
 c. Mutual Promises. — Contract must be mutually binding on 
 the parties proposing to enter into it or it is void for want of 
 mutuality.^ 
 
 But concurrent promises, resting the one upon the other, and 
 creating a reciprocity of obligation, constitute a good considera- 
 tion for each other.* 
 
 Although a written agreement does not show upon its face that 
 in the promises there is a mutuality of obligation or other consid- 
 erations such mutuality or consideration may be proved by another 
 written contract entered into at the same time, and shown to have 
 been supported by an independent consideration, or treated in 
 itself as a consideration for the former agreement.* 
 
 An exchange of notes of aa equal amount made in good faith 
 is based on a mutual and adequate consideration' and a promise to 
 
 ^Wright v. Jones, 2 West. Rep. 356, 105 Ind. 17; Condon v. Barr, 4 Cent. 
 
 Rep. 557, 49 N. J. L. 53; Wills v. Ross, 77 lad. 1. 40 Am. Rep, 279; 
 
 Ehton V, Castor, 101 Ind. 426. See 15 Cent. L. J. 386. 
 ''First Presb. Church v. Cooper, 3 L. R. A. 468, 112 K Y, 517; Plunkett 
 
 V. Black, 117 Ind. 14; Ffeiffer v, Campbell, 111 N. Y. 631; Clark v. 
 
 Jones, 85 Ala. 127. 
 ^Cartwrirjht v, McQown, 10 West. Rep. 594, 121 111. 388. 
 ^Buckingham v. Ludluvi. 2 Cent. Rep. 197, 40 N. J. Eq. 422. See Ludlum 
 
 V. Buckingham, 35 N. J. Eq. 71, on appeal 39 N. J. Eq. 563; 1 Chitty, 
 
 Cont. (11th ed.) 50; 1 Parsons, Cont, 477j 
 *Bolles V, Sachs, 37 Minn. 315. 
 *Cohn V. Husson, 119 N. Y. 609.
 
 12 LIMITATIONS UPON THE EIGHT TO CONTRACT. 
 
 sell goods and a promise to purchase and to pay therefor are mutnal 
 and concurrent.' 
 
 A conveyance of property made to a firm, under which the 
 firm acquires title to the property, which it treats as firm prop- 
 erty, is an adequate consideration for a note on the firm made by 
 one of the firm.^ 
 
 Where several mutually agree to pay money to be expended 
 for a lawful object of common interest to the parties, the promise 
 of each is considered as made in consideration of the promise of 
 the others to contribute to the common object; and the fact that 
 one promisor did not actively unite in subsequent acts, in advance- 
 ment of tlie common object, done in the mode indicated in the 
 contract of subscription, where he had due notice of all the pro- 
 ceedings and was invited to participate and did not object to the 
 proceeding will not excuse his failure to pay.* 
 
 In Vanderhilt v. ScJcreyer, 91 N. Y. 392, the plaintiff contracted 
 with defendant to build a house, agreeing to accept in part pay- 
 ment therefor a specific bond and mortgage. Afterwards he 
 refused to finish his contract unless the defendant would guar- 
 antee its payment, which was done. It was held that the guar- 
 anty could not be enforced for want of consideration, for in build- 
 ing the house the plaintiff only did that which he had contracted 
 to do. And in liohinson v. Jewitt, 116 j^. Y. 40, the court simply 
 held that " the performance of an act which the party is under a 
 legal obligation to perform cannot constitute a consideration for a 
 new contract."* 
 
 Nor does a promise to pay a debt for which the promisor has 
 already promised or is already bound, constitute a consideration 
 sufficient to support a contract.* 
 
 ^Pope V. Terre Haute Car & Mfg. Co. 9 Cent. Kep. 321, 107 N. Y. 61. 
 
 ^Philpot V. Oruninrjer, 81 U. S. 14 Wall. 570, 20 L. ed. 743. 
 
 ^Osborn v. Crosby, 1 New Eng. Rep. 845, 63 N. H. 583; George v. Harris, 4 
 N. H. 533; Moore v. Chesley, 17 N. H. 151. 
 
 ^Dennis v. Piper, 21 111. App. 169. 
 
 ^Harris v. Cassaday, 5 West. Rep. 285, 107 Ind. 158; Laboyteaux v. Swigart, 
 1 West. Rep. 562, 103 Ind. 596; Smith v. Boruff, 75 Ind. 412; FenMer v. 
 Prather,4'S Ind. 119; Ritenour v. Mathews, 43 Ind. 7; Reynolds v. Nfiganty 
 25 Ind. 328; Robinson v. Jewett, 116 N. Y. 40; Widiman v. Brown, 83 Mich. 
 241.
 
 VALUABLE CONSIDERATION. 13 
 
 An agreement, without other consideration than a promise to 
 pay, to wait for money then due, is of no vahdity.' 
 
 A promise to pay a note, by a surety, in ignorance of an exten- 
 sion whereby he is discharged, is without consideration and not 
 enforceable.* 
 
 A promise by a creditor to forgive or relinquish part of his 
 debt on the payment of the other part in money, in accordance 
 with the existing contract, is without consideration and void.' 
 
 A release by an indorser of a promissory note of a joint maker 
 on payment of part only of tlie amount due is, in the absence of 
 any other consideration, without consideration and void.* 
 
 A promise by a party to save a witness harmless as to a for- 
 feiture for failing, at a former term, to attend, on condition of his 
 amending at the next term, is without consideration and void.* 
 
 d. A'alual)le Consideration. — The exchequer chamber in 1875 
 
 defined "consideration" as follows: "A valuable consideration, 
 in the sense of the law, may consist either in some right, interest, 
 profit or benefit accruing to the one party, or some forbearance, 
 detriment, loss or responsibility given, suffered or undertaken by 
 the other." 
 
 A release or a waiver of a legal right, at the request of another 
 party, is a suflicient consideration for a promise.* 
 
 Forbearance of existing legal or equitable rights forms a good 
 consideration for a contract, and will make it binding, although 
 no benefit accrues to the party contracting.^ 
 
 ^Pfeiffer v. CampbeU, 111 N. Y. 631. 
 
 ■^Rochester Sav. Bank v. Chick, 6 New Eng. Rep. 383, 64 N. H. 410; Neto 
 Hampshire Sav. Bank v. Colcord. 15 N. H. 119; Edwards v. Tandy, 36 N. 
 H. 540; Norris v. Ward, 59 N. H. 487. 
 
 ^Day V. Gardner, 5 Cent. Rep. 630, 42 N. J. Eq. 199, citing Boyd v. Hitch- 
 cock, 20 Johns. 76; Le Page v. McCrea, 1 Wend. 164; Booth v. Smith, 3 
 Wend. 66; Perkins v. Lockwood, 100 Mass. 250. 
 
 ^Bender v. Been, 5 L. R. A. 596, and note, 78 Iowa, 283. 
 
 '■'Sweaney v. Hunter, 1 Murph. 181. 
 
 ^Given v. Corse, 2 West. Rep. 579, 20 Mo. App. 132, citing 1 Parsons, Cont. 
 (7th ed.) 473. 
 
 ''Boiren v. Tipton, 1 Cent. Rep. 494, 64 Md. 275; Harris v. Cassaday, 5 
 West. Rep. 386, 107 Ind. 158, citing Wray v. Chandler, 64 Ind. 146; 
 Saiiford v. Freeman, 5 Ind. 129; Suark v. Maloae, 34 lad. 444; Nice- 
 icanger v. Bevard, 17 Ind. 621.
 
 14 LIMITATIONS UPON THE EIGHT TO CONTRACT. 
 
 Forbearance of suit for which plausible grounds exist, is a good 
 consideration for a promise to pay money.' 
 
 A suspension of an existing actual demand is a sufficient and 
 valid consideration.'^ 
 
 A compromise for a doubtful claim is a good consideration for 
 a promise if the claim is made in good faith.^ 
 
 A contract made in a compromise of differences in regard to 
 the rights of the parties under a former contract, with regard to 
 the construction of which they were not honestly agreed, was 
 held to be founded upon a good consideration." 
 
 The surrender of other instruments, held as collateral security, 
 is a good consideration.* 
 
 The relinquishment of a defense asserted in good faith is a 
 good consideration for a promissory note, although the defense i& 
 subsequently shown by a judicial decision to have been invalid.' 
 
 Release of the right to share in royalties on coal from certain 
 lands is a sufficient consideration for a note for an agreed sum in 
 lieu thereof.'' 
 
 An agreement by which a vendor releases a valuable right 
 under his contract in consideration of the vendee's agreement ta 
 let judgment go against him by default for the price of the land 
 is based upon a sufficient consideration.' 
 
 If a release is considered to be requisite to confirm the title of 
 lands with which one has been connected, such release will be a 
 good consideration for a promise, or for the payment of money.* 
 
 ^Rue V. Meirs, 10 Cent. Rep. 682, 43 N. J. Eq. 377. 
 
 '^Goodman v. Simonds, 61 U. S. 20 How. 343, 15 L. ed. 934; WiUs v. Boss, 77 
 
 Ind. 1; Elting v. Vanderlyn, 4 Johns. 237; Morton v. Burns, 7 Ad. ik El. 
 
 19: Baker v. Walker, 14 Mees. & W. 465; Jennison v. Stafford, 1 Cush. 
 
 168; Walton v. Mascall, 13 Mees. & W. 453; Wheeler v. Slocumb, 16 Pick. 
 
 52; Story, Prom. Notes, § 186. 
 ^Cliamherlain v. Wi7in, 1 Wash. 501, 
 
 ^Richardson v. Independent Dist. of Hampton, 70 Iowa, 573. 
 <>Goodman v. Simonds, 61 U. S. 20 How. 343, 15 L. ed. 934, citing Depeau 
 
 V. Waddington, 6 Whart. 220; Hornbloicer v. Proud, 2 Barn. & Aid. 327; 
 
 Ridoutv. Bristow, 1 Cromp. & J. 2S1; Bank of Salinay. Babcock, 21 Wend. 
 
 499; Youngs v. Lee, 12 N. Y. 551. 
 « Union Bank of Georgetown v. Geary, 30 U. S. 5 Pet. 99, 8 L. ed. 60. 
 "> Trine' s App. (Pa.) 12 Cent. Rep. 657. 
 ^McDaniel v. Evans (Ky.) 12 Ky. L. Rep. 497. 
 ^Sykes v. Chadwick, 85 U. S. 18 Wall. 141, 21 L. ed. 824.
 
 VALUABLE CONSIDERATION. 15 
 
 A performance of the consideration generally renders the con- 
 tract binding, and gives a right of action upon it.* 
 
 A promise to pay upon the performance of an act, by which 
 the party is injured, becomes binding when the act is performed, 
 unless stipulations as to time are not complied with and time is 
 of the essence.' Courts " will not ask whether the thing which 
 forms the consideration does in fact benefit the promisee or a third 
 party, or is of any substantial value to anyone. It is enough that 
 something is promised, done, forborne or suffered by the party to 
 whom the promise is made as consideration for the promise made 
 to him." ' 
 
 A consideration expressed in an agreement is sufficient to sup- 
 port it in the absence of evidence to prove a lack of consideration.* 
 
 " In general a waiver of any legal right at the request of an- 
 other party is a sufficient consideration for a promise."* "Any 
 damage, or suspension, or forbearance of a right will be sufficient to 
 sustain a promise."* Pollock, in his work on Contracts (p. 166), af- 
 ter citing the definition given by the exchequer chamber, already 
 quoted, says: " The second branch of this judicial description is 
 really the most important one. ' Consideration ' means not so much 
 that one party is profiting as that the other abandons some legal right 
 in the present, or Hmits his legal freedom of action in the future, 
 as an inducement for the promise of the first." 
 
 The withdrawal of a caveat by an heir-at-law is a sufficient con- 
 sideration for a promise by devisees under the will as it stands, to 
 pay the heir a specific sum.'' 
 
 Money expended on the faith of a contract constitutes a valua- 
 ble consideration.* 
 
 Expenditures made upon permanent improvements upon land, 
 with the knowledge of the owner, induced by his promise, made 
 
 ' Wellington v. Apthorp, 4 New Eng. Rep. 883, 145 Mass. 69, citing Train v. 
 Gold, 5 Pick. 380; Gardner y. Webber, 17 Pick. 407; Bornstein v. Lans, 
 104 Mass. 214; Goward v. Waters 98 Mass. 596; Cottage St. M. E. Church 
 V. Kendall, 121 Mass. 528. 
 
 ^Hilton V. Southwick, 17 Me. 303. 
 
 ^Anson, Cont. 
 
 *Tork Mfg. Co. v. Illinois Cent. B. Co. 70 U. S. 3 Wall. 107, 18 L. ed. 170. 
 
 ^Parsons, Cont. *444. 
 
 62 Kent, Cora. 12tli ed. *465. 
 
 ''Grandin v. Grandin, 8 Cent. Rep. 588, 49 N. J. L. 508. 
 
 ^King v. Thompson, 34 U. S. 9 Pet. 204, 9 L. ed. 103.
 
 16 LIMITATIONS UPON THE KIGHT TO CONTKACT. 
 
 "to the party making the expenditure, to give the land to such 
 party, constitute in equity a consideration for the promise.' 
 
 Expenditure of one's own money for his own benefit where 
 actually induced by the promise of another to repay the same, is 
 a sufficient consideration for the promise." 
 
 The surrender of a note given by the defendant's son upon a 
 consideration, although not enforceable at law, is a sufficient con- 
 sideration for a new note by the defendant.' 
 
 A promise to pay for goods furnished a third party prior to 
 their delivery, upon the faith of which a sale and delivery are 
 thereafter made," is upon a sufficient consideration." 
 
 A promise conditioned upon the conveyance to the promisor of 
 a possible interest which he believes the promisee has, but which 
 the latter to his knowledge does not claim, is supported by a suf- 
 ficient consideration.' 
 
 Extension of time of payment, under a conditional sale of 
 engines, and the permitted use of the engines during such time by 
 the vendee, is a sufficient consideration for note and mortgage by 
 him." 
 
 The maker's assent to the proposed compromise of his claim 
 against a third person is sufficient consideration of a promise by 
 the holder of notes against such maker to accept in full payment 
 such percentage as was received in the settlement of such claim.'' 
 
 Where land was about to be sold to create a fund to pay an 
 annuity to a widow, an agreement by which she reduced her 
 claim, with one honestly claiming an interest which created a 
 cloud upon title, the removal of which would enhance the price, 
 was upon a sufficient consideration.* 
 
 A promise by a habitual drunkard to his physician, that he 
 would pay him $100, in consideration of which the physician 
 
 ^Freeman v. Freeman, 43 N. Y. 34, affirming 51 Barb. 306. 
 
 ^Devecmon v. Shaw, 12 Cent. Rep. 886, 69 Md. 199. 
 
 ^W/u't?iey V. Clary, 5 New Eng. Rep. 152, 145 Mass. 156; Wilton v. Eaton, 
 
 127 Mass. 174. 
 ^Lindsay v. Beaton, 27 Neb. 662. 
 5 Valle V. Picton, 8 West. Rep. 734, 91 Mo. 207. 
 ^Sinker v. Green, 12 West. Rep. 912, 113 Ind. 264; HutcMngs v. Munger, 41 
 
 N. Y. 155. 
 ''Hunt V. Broicn, 5 New Eng. Rep. 810, 146 Mass. 253. 
 8 Woadbarn v. Woodburn, 11 West. Rep. 789, 123 111. 608.
 
 VALUABLE CONSIDERATION. il 
 
 oindertook and promised to cure him of his appetite for ardent 
 spirits, is a binding contract.' 
 
 S, lord of the manor, had the power of appointment of steward 
 of the manor, and G, the then steward, resigned his office in con- 
 sideration that S would pay him an annuity for life; and K, in 
 consideration of S permitting him to hold the office at the will of 
 8 as lord, promised S to pay, out of the fees of the office, such 
 annuity to G during G's life so long as K should execute the said 
 office. S appointed K to such office for K's life, and died. It 
 was held that the consideration of the promise was sufficient, and 
 that K was liable to pay the annuity to G after the death of S, so 
 long as K held such office.^ 
 
 The surrender of an overdue note, enforceable as against one of 
 the indorsers, is a valuable consideration for a new note between 
 the same parties, with an additional indorser.^ 
 
 The payment of a doubtful claim in full, to prevent litigation, 
 Avill constitute a valuable consideration, but it is otherwise when 
 the amount simply is in dispute, and no more was paid than was 
 actually due." 
 
 An agreement, on part payment of a judgment debtor to pay 
 the balance of the judgment in a few days, upon an agreement of 
 the other party to refrain from enforcing an execution, is founded 
 upon a valuable consideration.^ 
 
 An agreement to credit a transferred debt upon a precedent 
 •debt is a valuable consideration.* 
 
 A consideration may be defined to be either a benefit accruing 
 to the promisor, or a loss or disadvantage sustained by the prom- 
 isee/ 
 
 '^Fisk V. Townsend, 7 Yerg. 146. 
 
 ^Mattock V. Souihtcood, 8 Ad. & El. 795, 1 Perry & D. 46, 1 W. W. & H. 667. 
 See note to TcUbott v. Stemmons (Ky.) 5 L. R. A. 856. 
 
 ^Bromley v. Haxcley, 5 New Eog. Rep. 660, 60 Vt. 46; Churchill v. Bradley, 
 58 Vt. 403; Rob. Dig. p. 100, § 127. 
 
 *Emmittsburg R. Co. v. Donoghue, 9 Cent. Rep. 69, 67 Md. 383; 1 Parsons, 
 Cont. 469; 1 Addison, Cont. 11. 
 
 ^Smith V. O'Brien, 5 New Eng. Rep. 842, 146 Mass. 294. 
 
 ^Throop Grain Cleaner Co. v. Smith, 12 Cent. Rep. 918, 110 N. Y. 83. 
 
 ''Day V. Gardner, 42 N. J. Eq. 199, 5 Cent. Rep. 631. 
 
 2
 
 18 LIMITATIONS UPON THE KIGHT TO CONTEACT. 
 
 Any benefit to defendant or detriment, however sliglit, to 
 plaintiff is a sufficient consideration.' 
 
 A consideration to support a promise need not inure to the 
 personal benefit of the promisor; it is sufficient if it consists in a 
 detriment to the person to whom the promise is made.' 
 
 Xor is it at all essential that a person to whom the considera- 
 tion of a promise moves should be benefited provided the person 
 from whom it moves Ls in even a legal sense injured; and the in- 
 jury may consist of a release or a compromise of a disputed elaim 
 or forbearance to exercise a legal right, the alteration in position 
 of the parties being regarded as a detriment forming a considera- 
 tion independent of the actual value of the right forborne.' 
 
 Damage to the promisee as a matter of law constitutes as good 
 a consideration to support a contract as benefit to the promisor.* 
 
 A very slight advantage to one party, or what he considers 
 such, constitutes a sufficient consideration to support a contract, 
 in the absence of fraud or mistake.* 
 
 A valuable consideration, however small, if given or stipulated 
 for in good faith, is, in the absence of fraud, sufficient to support 
 an action on any parol contract, or contract of guaranty.' 
 
 Although a verbal promise three or four years old, made by a 
 
 ^Gitfin V. Corse, 2 West. Rep. 580, 20 Mo. App. 132; Waterraanv. DarreU, 4 
 Harr. (Del.) 811; Ilarrington v. WeUs, 12 Vt. 505; Columbus v. CoLum'iUit 
 Hi. R. Co. 10 West. Rep. 440, 45 Ohio St. 98; Story, Cont. % 548; 1 Par- 
 sons, Cont. 7tb ed. 4?:^.; llitcUock v. Coker, 6 Ad. & EI. 438; S'MtlmU v. 
 PJfjfj, 11 C. B. 481; Uaigh v. Brooks, 10 Ad. «fc El. 309; 8Iu)rtre(le v. 
 Ch^ek, 1 Ad. & El. 57. 
 
 'iVew Ilarujver Bank v. Brvdrjers, 98 N. C. 67; Churchill v. Bradley, 2 New 
 Eng. Kep. 401. 33 Vt. 403. 
 
 ^St. Mark's Church v. Tecfl, 120 X. Y. 583; WoorVmrri, v. WooOMrn, 23 111. 
 App. 280, reversed on other grounds in 11 We.st. Rep. 789, 13 West. Rep. 
 505, 123 111. 608; Martin v. SlulMnys, 27 111. App. 121, affirmed in 126- 
 111. 387; Murtawjh v. Collifjan, 28 111. App. 4.33; Piper v. Foster, 121 Ind. 
 407; Allen v. Flatt, 79 Iowa, 113; Vof/elv. Meyer, 23 Mo. App. 427; BhA- 
 ler V. Claflin, 51 Hun, 609; Oregon Vnc. li. Co. v. DeForest, 32 N. Y. S. 
 R. 178. 
 
 *TcmnsUy v. Sumrall, 27 U. S. 2 Pet. 170. 7L. ed. 386; VioUttv. Patt/m, 9U. 
 S. 5 (Jranch, 142, 3 L. ed. 61; Uniled SUites v. Linn, 4() U. 8. 15 Pel. 
 290, 10 L. ed. 742; IleruJ.rick v. Lindsay, 93 U. S. 143,23 L. ed. 855; titill- 
 well V. Aaron, G9 Mo. 545. 
 
 *Traphaf;env. Voo^rhees, 11 Cent. Rep. 370, 44 N. .1. Eq. 21; Jlarlfinv. Uar- 
 Um, 20 Pa. 303; 2 Co. Litt. ?? 212, 344«; KdUj'jg v. UicluirdJs, 14 Wend. 
 116; Brooks v. White, 2 Met.^283. 
 
 *Dmren.ce v. McCalrn/jnt. 43 U. S. 2 How. 426, 11 L. ed. 320; Austyn v. 
 M'Lure, 4 U. S. 4 Dall. 227, 1 L. ed. 811, citing Dutchman v. Tooth, T> 
 Bintr. N. C. 577.
 
 VALUABLE CONSIDERATION. 10 
 
 father to his son, to give the latter land of a certain valne, in ex- 
 cess of the share which will fall to liis other children, if he will 
 not leave home, as another son has done, it not being shown that 
 the son abandoned an intended removal in consequence of such 
 promise, is not a sufficient consideration for a promissory note 
 for an amount equal to the value of the land mentioned,' yet 
 it is held in Burr v. Wilcox^ 13 Allen, 273, that "any act done 
 at the defendant's request and for his convenience or to the in- 
 convenience of the plaintiff would be sufficient" to support a prom- 
 ise by the defendant, — citing Train v. Gold^ 5 Pick. 380; Amherst 
 Academy v. Cowls, 6 Pick. 427; Htihhard v. Coolidge, 1 Met. 84. 
 And see Conover v. Stillwell, 34 N. J. L. 54. 
 
 Where a contract or gift sought to be annulled can only be 
 treated as a disguised, onerous and remunerative donation in which 
 the value of the consideration, charges, and services exceed one 
 half the value of the object, it stands as an onerous contract, and 
 is subject to no vice applicable to such contracts which would 
 authorize its annulment, under the Louisiana Civil Code." 
 
 An agreement, in a conveyance, to perform certain services for 
 the grantors, during the life of themselves and their survivor, and 
 an executed life lease of lands to the grantors, constitute a good 
 consideration for a conveyance." 
 
 Where in pursuance of a verbal agreement between father and 
 son that the latter should have a certain farm of the father, the 
 son took possession of the premises and expended money and 
 labor upon them, such acts and expenditures constitute a valuable 
 consideration for the contract." 
 
 An agreement with his sister, to leave to her daughter one 
 moiety of his estate, made by a brother, if the daughter would take 
 the care of his wife and himself, can be enforced against the uncle's 
 estate after the performance by the ueice.^ 
 
 An inducement to another, a relative by marriage of the prom- 
 isor's daughter, that if he would purchase certain land, the pro- 
 
 ^Head v. Baldwin, 83 Ala. 132. 
 
 ''Dopier V. Feigel, 40 La. Ann. 848. 
 
 ^Gardner v. Lightfoot, 71 Iowa, 577. 
 
 *Raines v. Haines, 6 Md. 435. 
 
 ^Boehl V. Hausmesser, 12 West. Rep. 899, 114 Ind. 311. See to same effect 
 
 Wellington v. Apthorp, 4 New Eng. Rep. 883, 145 Mass. 69; Pjfugar v. 
 
 Puliz, 43 N. J. Eq. 440, 9 Cent. Rep. 488.
 
 20 LIMITATIONS UPON THE EIGHT TO CONTRACT. 
 
 ceeds of certain securities would be given him, when collected, 
 can be enforced.' 
 
 Bat where A, being wealthy and childless, verbally promised 
 his br()tlier B, who was poor and with many children, that if he 
 would not remove to the west country, but would move to and 
 settle on a lot of land of A, he would convey it to him, and B 
 accepted the offer, and took possession of the land, it was held 
 that the promise was not supported by either a valuable or merit- 
 orious consideration, and would not be enforced specifically against 
 the heirs of B.' 
 
 A part performance of service, under a contract for a year, ter- 
 minated by the death of the promisee, may be recovered for in 
 full by the widow of the promisee, where the promise was of a 
 gross sum, to be paid the promisee, or in the event of his death, to 
 his wife.' 
 
 e. Expectation of Results, not a Consideration. — But while 
 the hope or strong probability of realized results often leads to 
 the execution of a contract, it must be remembered that there is 
 a clear distinction sometimes between the motive that may induce 
 to entering into the contract and the consideration of the contract. 
 Nothing is consideration that is not regarded as such by both 
 parties. It is the price voluntarily paid for the promisor's under- 
 taking. Tholigh the expectation has led to the formation of the 
 contract, neither the expectation nor the result is "the cause or 
 meritorious occasion requiring a mutual recompense in fact or in 
 law." Dyer, 306, h. Thus a creditor may do a favor to his 
 debtor, or may enter into a new and independent contract with 
 him, induced by which, the debtor may assent to giving a note 
 for the previous existing indebtedness. "Without the favor or the 
 new contract, thei'e is in such a case a full consideration for the 
 note, and the parties may not have contemplated that the favor or 
 the new contract was to be paid for. To regard them as entering 
 into the consideration of the note, would be to make a contract 
 for the parties to which their minds never assented.* 
 
 ^ Scott V. Osborne, 2 Munf. 413. 
 
 ^Beed v. Vannorsdale, 2 Leigh, 569. 
 
 »Jones V. McCallum, 31 Fla. 392. 
 
 *PhiVpot V. Oruninger, 81 U. S. 14 Wall. 570, 20 L. ed. 743.
 
 VOLUNTAKY SEKVICE OR PROMISE. 21 
 
 f. Voluntary Service or Promise; Existing Obligations. 
 
 — A mere voluntary promise, without consideration of any kind, 
 either legal or equitable, is not enforceable.' 
 
 A promise by a husband to his wife on her death-bed that their 
 son should have certain property, does not constitute a valuable 
 consideration for a conveyance by him to the son.^ 
 
 There must be a consideration to sustain an agreement by a 
 creditor to allow a new trial to a defeated debtor, in a suit on the 
 debt.^" 
 
 Voluntary service or labor done without the privity or consent 
 of the defendant, however beneficial to him, as a voluntary ser- 
 vice in saving his property from destruction by fire, will not sup- 
 port a promise; * for an act done for the benefit of another, with- 
 out his request, is to be deemed a voluntary act, for wliich no action 
 can be sustained. But, it has been held, that if, after knowing of 
 the service the person benefited promises to pay for it, an action 
 may under certain circumstances be sustained on the promise.* 
 But generally, if there be no request, nor promise to pay for ser- 
 vice, a subsequent promise to make compensation therefor is void.* 
 
 A promise to pay a niece for services in one's family, of which 
 she was a member, made after she had married and left the fam- 
 ily, is void for want of consideration.' But it is equally true that 
 a past act or service rendered pursuant to a previous request of 
 the promisor is suflicient to sustain an action on a subsequent 
 promise.* 
 
 There must be the concurrence of the minds of all parties in 
 reference to the thing to be done, as the essence of a contract is 
 the mutual agreement.' 
 
 ^Bramblet v. Lumsden, 80 Ga. 707; Nehon v. Pickwick Associated Co. 30 111. 
 
 App. 333. 
 ^Peek V. Peek, 1 L. R. A. 185, 77 Cal. 106. 
 ^Plunkett V. Black, 117 Ind. 14. 
 ^Bartholomew v. Jackson, 20 Johns. 28. 
 ^ Glenn v. Savage, 14 Or. 567. 
 ^Little V. Rees, 34 Minn. 277. 
 ''Robinson v. McAfee, 59 Mich. 375. 
 »Trine v. Williamson (Pa.) 12 Cent. Eep. 657, 1 Chitty, Cont. 69; Dyer, 272, 
 
 note b; Carman v. Noble, 9 Pa. 371. 
 *JoIsen's T. E. & B. y. Thnvber, 118 N. Y. 684; Shaw v. Woodbury Glass 
 
 Works, 52 N. J. L. 7; Wallingford v. Columbia & G. R. Co. 26 S. C. 258; 
 
 Dorsey v. Pike, 50 Hun, 534.
 
 22 LIMITATIONS UPON THE RIGHT TO CONTRACT. 
 
 Therefore if anything is left open or undetermined which is an 
 essential part of the contract and not a mere incident, so that 
 the minds of the parties have not met, no contract exists.' 
 
 There can he no meeting of minds if one party has no mind 
 capable of consenting to the terms of the proposed contract which 
 can meet the mind of the other party, in full consideration of the 
 subject matter.* 
 
 g. Wager Policies on Lite. — The revelations made in the 
 course of an action against an insurance company at the 1891, Maii- 
 cliester, England, assizes, have forced into the public notice as 
 hideous a traffic in human life as ever disgraced a civilized coun- 
 try. Gambling in lives has in many Lancashire towns, but chiefly 
 in Blackburn, long been a lucrative occupation. The insurance 
 companies are hoodwinked and defrauded, and the miserable vic- 
 tims of the conspiracy are, by means not actually criminal, shuf- 
 fled out of life. Husbands insure their wives, wives their hus- 
 bands, children their parents. 
 
 Auvone who is believed to be "within measurable distance" of 
 the grave is fair game for the speculator. He scans his neighbor 
 as a valuer scans a household of furniture. Let but the symptoms 
 of consumption or any other fatal disease appear and he makes 
 insinuating advances to secure a policy on the doomed one's life. 
 Of course his victims are, as a rule, selected from the very dregs 
 of humanity — the drunken, diseased and feeble — who for the 
 sake of prospective drinks readily sign the "bit o' paper," and 
 thenceforward have their path to the grave smoothed and facili- 
 tated by 'the creatures who fatten upon them. 
 
 The case heard at the Manchester assizes differs in no essential 
 respect from a hundred others. The victim in that case was a 
 wretched old hostler or hanger-on of a public house. He had not 
 a copper in the world to call his own, but he had something much 
 more valuable to others; he had unequivocal symptoms of speedy 
 disease. Forthwith he was honored with the anxious attention of 
 the harpies. Glowing reports were made to the insurance com- 
 panies of the prospects of reaching a patriarchal age, and m the 
 
 ^Mattoon Mfg. Co. v. Oshkosli Mut. F. Ins. Co. 69 Wis. 564. 
 ^Dickerson v. Davis, 9 West. Rep. 680, 111 Ind. 433; 1 Parsons, Notes and 
 Bills, 149.
 
 WAGER POLICIES ON LIFE. ^"^ 
 
 € id the poor old fellow, trembling on the brink of eternity, bore 
 the burden of twenty policies, with a total value of £1,700. Hap- 
 pily, one of the insurance companies had the courage to fight the 
 conspiracy bv disputing the claim, and was victorious. Indeed, 
 the barrister engaged for the plaintiff, when he saw the sort of 
 <;ase he was put up to champion, honorably threw up his brief. 
 
 This case is but a type of hundreds of others which have made 
 life insurance a term of evil import in the north of England. In 
 Blackburn a common loiterer about the market place is insured in 
 various companies for nearly £9,000. He is aware of the fact 
 that death will materially increase his commercial value, but so 
 long as his income of a few shillings is supplemented by fees for 
 sicrning insurance papers "he does not care how long the thing 
 o-oes oil." The poor wretch is respectably connected and once 
 held a decent position in society, but a life of dissipation has 
 broucrht him into the web of the insurance speculator, whence he 
 M-ill never escape save in a coffin. In another case a man who 
 spends a large portion of his time in the work-house is insured for 
 £3,880. and in a third a hawker of bags of coal, who, living, is 
 worth hardly the clothes upon his back, Avill as a corpse be valued 
 
 M £1.900. " ' 
 
 Many of the miserable beings thus traded upon are totally 
 unconscious of the enormous sums which are involved when they 
 "sign a bit of paper" for a "friend" and a drink. In one 
 instance a poor, sickly weaver, who is insured in one office alone 
 for £1,000, when asked whether he knew the amount of his insur- 
 ance, replied, "Well, nobbut a few pounds; twenty or thirty, hap- 
 pen." He admitted that he had never paid the premiums and 
 that he did not know the person who had acted as referee. Fur- 
 thur investigation showed that the policy had been effected by an 
 intermediary, who, in consideration of a portion of the commission, 
 had served to conceal the identity of the insurer. 
 
 GamVjling in lives, like gambling in stocks or on the turf, not 
 infrequently involves loss to the gambler. Some of the wrecks of 
 humanity, who are the special objects of the solicitude of the spec- 
 ulator, display a most unexpected tenacity to their thread of life. 
 With one foot in the grave they yet manage to keep the other out 
 for an unconscionable time. Even the constant supply of neat
 
 24 LIMITATIONS UPON THE KIOHT TO CONTRACT. 
 
 brandj with which their patrons indulge them, with the view of 
 assisting them more speedily to a better world, is often ineffectual. 
 Nay, it seems only to increase the vitality of the remaining leg. 
 One typical case will suffice as an instance. 
 
 A certain feeble and apparently moribund old man has been the- 
 subject of very particular attention from the speculating frater- 
 nity, who have insured him wholesale. His signature to policies 
 has been eagerly sought after and he has reveled in unlimited su^)- 
 plies of spirits for years. lie has, however, proved himself an 
 uncommonly tough morsel for his patrons. Racked by cough, 
 afflicted hy rheumatism, he yet " lags superfluous on the stage," 
 and not a few policies upon his life have been allowed to lapse. 
 One speculator alone has paid more than £40 above what he will 
 receive when the hardy old man's final adsum is uttered. 
 
 Doubtless the wonder will be that these conspiracies against the 
 insurance companies are possible. The system, however, is very 
 simple. The speculators are in league with the more unscrupu- 
 lous insurance agents, from whom they receive a portion of the 
 commission the companies allow on new policies. They act as the 
 agents' touts^ and after taking an inventory of the victim's pros- 
 pects of a reasonable early death, induce him or her to be insured. 
 
 This done, the rest is easy, for ^vith the agent co-operating with 
 him the speculator has little difficulty in hoodwinking the company 
 and palming upon it a life which, were the true facts made 
 known, would be accepted on no conditions whatever. It is only 
 fair to say that the majority of the agents are honorable men, but 
 the proportion of unscrupulous agents who lend themselves to the 
 ghoulish practices of the speculators is alarmingly large. The 
 insurance companies chiefly concerned are at last becoming alive 
 to the enormity of the conspiracies against them, and now that one 
 of them has had the courage to expose the system and has scored 
 an easy triumph, drastic measures may be adopted to stop the 
 accursed traffic in human life. 
 
 A promise, in consideration of permission to insure the life of a 
 person, to pay his wife a sum of money after his death is on a void 
 consideration where the promisor has no insurable interest in the life 
 on which the insurance is taken, and therefore cannot be enforced. ' 
 
 ^Burbage v. Wmdley, 12 L. R. A. 409, 108 N. C. 357.
 
 WAGER POLICIES ON LIFE. 25 
 
 Where the assured had no insurable interest in the life of the cestui 
 qtoe vie, the contract of insurance was simply a washer; it was not 
 founded upon any just or lawful consideration; it was a mere 
 gambling speculation. The assured was not to be indemnified 
 against loss, injury or disadvantage in any respect growing out of 
 the life he insured; the insurance was not intended to serve any 
 legitimate business purpose or end; it was purely a matter of spec- 
 ulation, founded upon nothing but hazard. Such contracts and 
 speculations are wholly unnecessary. They cannot serve or pro- 
 mote any useful and wholesome purposes of individuals, society or 
 government. They do not stimulate, promote or encourage indus- 
 try, enterprise, legitimate business, sound morality or increase the 
 wealth of the people, or the strength and power of the State. On 
 the contrary, their nature and uniform experience go to show that 
 they represent nothing substantial or valuable, or of practical 
 advantage to persons or communities. They strongly tend to de- 
 moralize society, and embarrass industries and general business. 
 In their very nature they stimulate, aiford incentives to and 
 encourage those who become parties to them, to resort to sinister, 
 oftentimes criminal, means to turn or end the hazard in their 
 favor, and thus gain unjust and dishonest advantage. They 
 encourage men to engage in the business of speculation in hazards, 
 not necessary or useful in the general purposes and businesses of 
 life, but which is positively and seriously injurious to them. Such 
 contracts and speculations contravene the justice and policy of the 
 law, — they are coni/ra honos mores, and are therefore void. It is 
 well settled, by a multitude of uniform decisions, that all con- 
 tracts against the policy of the law, and such as contravene sound 
 morality, are on such account void.' 
 
 In Shepherd v. Sawyer, 2 Murph. 26, the court held that when 
 " A agreed with B, for 2^ per cent premium paid down, to insure 
 a negro slave reported to be lost in Pasquotank Kiver. B had no 
 interest in the negro; yet, his loss being proved, B is entitled to 
 recover his value." The decision is placed upon the ground that 
 it was an "innocent wager," and that such wagers were sanc- 
 tioned by the common law. The opinion of the court is very 
 
 ^Sharp V. Farmer, 4 Dev. & B. L. 123; BiytJie v, Lovinggood, 2 Ired. L. 30; 
 Ingram v. Ingram, 4 Jones. L. 188; King v. Wina7its, 71 N. C. 469; Wii 
 Hams V. Carr, 80 N. C. 295; Grlfflji v. Hasti/, 94 N. C. 438.
 
 2Q LIMITATIONS UPON THE KKiHT TO CONTRACT. 
 
 brief, and no authority is cited to show that it was " innocent," 
 nor is any reason stated wliy it was sucli wa^er. If the court 
 intended that the case should have general application to wagers 
 in insurance, embracing cases like the present one, it is not sus- 
 tained by the greater weight of reason, or the greater weight of 
 authority, certainly at the present day.' 
 
 A policy taken upon the life of another for speculative pur- 
 poses is regarded as nothing more than a wager." 
 
 The insurable interest must be of a substantial character, and 
 such as, under all the circumstances, to take from the transaction 
 all suspicion of wagering.' But an insurable interest must be ac- 
 tual and such as will reasonably justify a well grounded expecta- 
 tion of advantage, dei^endent upon the life of the insured.' 
 
 The law seems to be well settled that it is virholly unnecessary to 
 prove an insurable interest in the life of the assured, at the ma- 
 turity of the policy, if it was valid at its inception; and in the ab- 
 sence of express stipulation to the contrary, the sum expressed on 
 the face of the policy is the measure of recovery.^ 
 
 "Where a third party, without any insurable interest in the life 
 of another, procures a policy of insurance on the life of such per- 
 son, either by having a policy issued directly to himself, or by 
 having the person whose life is insured take out a policy to him- 
 self and then assign it, the transaction is a mere speculation on 
 the life of another, and, as such, contrary to public policy and 
 void.' 
 
 ^Eiise V. Mutual Ben. L. Ins. Co. 23 N. Y. 516: Lord v. Dull, 12 Mass. 115; 
 
 Pranklin L. Ins. Go. v. Uazzard, 41 Ind. 116; Cammack v. Lewis, 82 U. 
 
 S. 15 Wall. 643, 21 L. ed. 244; ^tna L. Ins. Co. v. France, 94 U. S. 561, 
 
 24 L. ed. 287; Warnock v. Dads, 104 U. S. 775, 26 L. ed. 924. 
 ^Arnick V. Butler, 9 West. Rep. 843, 111 Iud.»578; Ruse v. Mutual Ben. L. 
 
 Ins. Co. 23 N. Y. 516; Brockway v. Mutual Ben. Ins. Co. 9 Fed. Rep. 249; 
 
 Bliss, L, Ins. § 9. 
 ^Amick V. Butler, 9 West. Rep. 843, 111 Ind. 578; Connecticut Mut. L. Ins. 
 
 Co. V. Ltichs, 108 U. S. 498, 27 L. ed. 800; Corson's App. 4 Cent. Rep. 
 
 307, 113 Pa. 438. 
 *Corson v. Oarnier, (Pa.) 4 Cent. Rep. 308; Baker v. Union Mut. L. Ins. Co. 
 
 43 N. Y. 283; Keystone Mut. Ben. Asso. v. Norris, 7 Cent. Rep. 204, 
 
 115 Pa. 446; Warroock v. Davis. 104 U. S. 775. 26 L. ed. 924. 
 '^Raids V. American, Mut. L. Ins. Co. 27 N. Y. 232; Moiory v. Home L. Ins. 
 
 Co. 9 R. I. 346; Hoyt v. Neio York L. his. Go. 3 Bosw. 440; Phoenix Mut. 
 
 L. Ins. Co. V. Bailey, 80 U. S. 13 Wall. 616, 20 L. ed. 501, 
 ^Lainont v. Grand Lodge Iowa L. of II. 31 Fed. Rep. 180; Warmck v. Davis, 
 
 104 U. S. 775, 26 L. ed. 924. See Seigrist v. Schmaltz, 5 Cent. Rep. 230, 
 
 113 Pa. 326; Downey v. Hoffer, 16 W. N. C. 185.
 
 WAGER POLICIES ON LIFE. 27 
 
 A policy of insurance taken out on the life of a third party by 
 a beneiiciary in the continuance of whose life the beneficiary has 
 no pecuniary interest, is a wagering policy and as such is void.' 
 
 A life insurance policy for $3,000 as security for a $100 debt 
 is a wager.* 
 
 A policy on the life of another for $8,000, to cover a debt of 
 $70, is a mere wagering policy.^ 
 
 A policy taken out by a creditor on the life of his debtor in the 
 sum of $3,000, $2,000 for his own benefit and $1,000 for the ben- 
 efit of his debtor, while the debtor in fact owned him only $70, is 
 a wagering policy." 
 
 Where a creditor had insured his debtor's life on two several 
 •occasions, and had to abandon the policies on account of insolv- 
 ency of the companies, then took out a third policy for $3,000, 
 paying $302 therefor, the debtor being sixty-five years old, it was 
 held that there was no disproportion of which the debtor's admin- 
 istrators could take advantage." 
 
 An insurance on the life of the debtor for $2,000, where the 
 indebtedness was uncertain, but was afterwards ascertained to be 
 between $500 and $750, was held under the circumstances not a 
 wager/ 
 
 So where he took out policies, on which he became liable to be 
 assessed as a member of the association, and paid thereon, within 
 about nine months thereafter, the sum of $351.75, and the amount 
 <jollected on which, on the debtor's death, was $2,124.82, being an 
 excess of $474.53 over the amount of the debt, there was no such 
 disproportion as would warrant a condemnation of the transaction 
 as a speculation or wager/ 
 
 ^ Bloomington Mut. L. Ben. Asso. v. Blue, 8 West. Rep. 642, 120 111. 121; 
 
 Cammack v. Lewis, 82 U. S. 15 Wall. 643, 21 L. ed. ^4; Connecticut Mut. 
 
 L. Ins. Co. V. Schaefer, 94 U. S. 457, 24 L. ed. 251; Neic York Mut. L. 
 
 Ins. Co. V. Armstrong, 117 U. S. 591, 29 L. ed. 997; Gilhert v. Moose, 104 
 
 Pa. 74; Scott V. Dickson, 108 Pa. 6. 
 * Cooper V. Shaeffer (Pa.) 9 Cent. Rep. 601: Gilbert v. Moose, 104 Pa. 74; Cor- 
 
 son's App. 4 Cent. Rep. 307, 113 Pa. 438; Grant v. Kline, 7 Cent. Rep. 626, 
 
 115 Pa. 618. 
 ^Camtnack v. Lewis. 82 TJ. S. 15 Wall. 643, 23 L. ed. 244. 
 ^Connecticut Mut. L. Ins. Co. v. Lucks, 108 U. S. 498, 27 L. ed. 800. 
 ^ Grant v. Kline, 7 Cent. Rep. 626, 115 Pa. 618. 
 ^Corson v. Gamier (Pa.) 4 Cent. Rep. 308. 
 ''Rittler v. Smith, 2 L. R. A. 844. 70 Md. 261.
 
 '2S LIMITATIONS UPON THE RIGHT TO CONTRACT. 
 
 The sum insured must not be grossly disproportionate to the 
 interest the holder of the policy has in the life insured, without 
 leaving the transaction open to the imputation of being a specu- 
 lation or wager upon the hazard of a life.' 
 
 The essential point is that the transaction be bona fide, and not 
 a device to evade the law.' 
 
 In Burhage v. Whulley, 12 L. R. A. 409, 108 N. C. ?>5T, as 
 expressly alleged, the permission was granted to the testator of 
 the defendant by the former husband of the feme plaintiff, Ham- 
 mond, to insure the lattei-'s life. If such permission, in any case 
 or connection, could be a valuable privilege or advantage, in this 
 ease it was granted with the view and for the purpose of enabling 
 and helping Windley to make an unlawful contract — a wager — 
 on the life of Ilanmiond. Thus the latter became connected with 
 and intended to share in the wagering transaction. The promise 
 to pay $500 to the feme plaintiff was expressly based upon and 
 grew out of it; it was, as to Hammond and his wife, part of it. 
 It partook of the wager, — the vicious nature of the contract of 
 insurance. Such consideration was therefore void. Hence the 
 promise founded upon it was without legal sanction, and of no 
 binding effect, in contemplation of laAv. Ex terpi causa non 
 oritur actio ^ 
 
 If, in good faith, the purpose liad been to insure the life of 
 Hammond for the benefit of his wife, the case, as to her, might 
 be very different. But this was not the purpose, or any part of 
 it. The insurance M^as for the benefit of Windley; the policies 
 were granted to and made payable to him; he promised to pay 
 the small sum mentioned to the feme plaintiff for permission to 
 insure the life. 
 
 The Supreme Court of Pennsylvania has recently, in Ulrich v. 
 
 ^Wainwright v. Bland, 1 Mood. & K. 481; Miller v. EagU L. & H. Ins. Co. 
 2 E. D. Smith, 268; Grant v. Kline, 7 Cent. Rep. 826, 115 Pa. 6li>. 
 
 ^Amick V. Butler, 9 West. Rep. 843, 111 Ind. 578, cMing Provident L. Ins. & 
 Inv. Co. V. Baum, 29 Ind. 236; Olmsted v. Keyes, 86 N. Y. 593; Campbell 
 V. New England Mut. L. Ins. Co. 98 Mass. 381 ; Connecticut Mut. L. Ins. 
 Co. V. Schaefer, 94 U. S. 457, 24 L. ed. 251; Guardian Mut. L. Ins. Co. v. 
 Hogan, 80 111. 35; Mui-p7iy v. lied, 64 Miss. 614; Cunningham v. Smith, 
 70 Pa. 450. See notes to Equitable L. Assur. Sac. v. Hazlewood (Tex.) 7 L. 
 R. A. 219; Roller v. Beam (Va.) 6 L. R. A. 137. 
 
 '^Duke V. Asbee, 11 Ired. L. 112; Bettis v. Reynolds, 12 Ired. L. 344; Coving- 
 tan V. Threadgill, 88 N. C. 186; Griffin v. Hasty, 94 N. C. 438,
 
 WAGER POLICIES ON LIFE. 29 
 
 Relnochl, — Pa. , 13 L. R. A. 433, decided that the ques- 
 tion as to the validity of a policy depending on the excess of 
 the amount of insurance over the debt, the facts being admitted, 
 is a question of law. And a rule is also stated for determining 
 the question of what is an unreasonable excess. In that case the 
 defendants were doing a tirm business at Lebanon, Pa., and hold a 
 judgment against one Andrew Bleistine, in the Court of Common 
 Pleas of Lebanon County, which, with interest and costs amouuted 
 to $110.02. The judgment was sufficiently secured on real estate, 
 and the defendants were not pressing their debtor for the money. 
 He was being pressed by other creditors who held subsequent liens 
 on his property. It was necessary to quiet them for Bleistine to 
 pay off the judgment held by the defendants, or get rid of it in 
 some manner. Not having the money he applied to the defend- 
 ants to satisfy it, and take a policy on his life instead. The evi- 
 dence is uncontradicted that the defendants were averse to this, 
 and for a time declined, but linally yielded to Bleistine's entreaties, 
 and his wife's tears, to save their home. The evidence shows 
 that Bleistine oifered them an insurance of $3,000, or $5,000, or 
 $10,000, or any amount they wanted. The negotiation resulted 
 in the defendants taking a policy of $3,000 on the life of Bleistine 
 in the U. B. Mutual Aid Society. The policy was issued in the 
 name of Bleistine as beneticiary and afterwards assigned by him 
 to the defendants, who paid the entrance fee and all subsequent 
 assessments. The assignment was absolute and not as collateral 
 security, and the judgment referred to was satisfied of record. 
 After Bleistine's death the insurance money was paid by the com- 
 pany to the defendants. Subsequently this suit was brought by 
 the executor of Bleistine to recover from them the amount 
 received over the debt and interest, and premiums paid, the 
 plaintiff alleging that the amount of insurance was so dispropor- 
 tioned to the debt as to make it a gambling transaction within 
 the doctrine of Gilbert v. Moose, 104 Pa. 74, and the cases follow- 
 ing it. 
 
 The court in deciding the case say that we may safely assume 
 that the debt due by Bleistine to the defendants was bona fide; 
 that so far from the latter having procured the former to insure 
 his life for their benefit for speculative purposes, they entered
 
 30 LIMITATIONS UPON THE KIGIIT TO CONTRACT. 
 
 into it with reluctance at the earnest request of Bleistino and liis 
 wife, to relieve them from financial emharrassment and to save 
 their home. This, it is lield, takes out of the case the controHintr 
 element wliich existed in Gilbert v, Moose^ and that line of cases. 
 Yet if the defendants, even for an honest purpose, have trans- 
 gressed the law, and made this a gambling transaction, they must 
 suffer the j^enalty for such violation. 
 
 The first and second assignments of error are said to present the 
 main question in the case. Upon the trial below the defendants 
 proved, under exception, the life expectancy of Bleistine, and the 
 amount of assessments on this policy had he lived out his full life 
 expectancy. It appears from this evidence that the insured was 
 forty-two years of age, and that his expectation of life, according 
 to the Carlisle Tables, was twenty-six years; that had he lived that 
 length of time the interest on the judgment, with the annual dues 
 and assessments and interest thereon, would have amounted to 
 $4,336.31, being $1,336.31 in excess of the amount of the policy. 
 This evidence was not contradicted. Its admission forms the sub- 
 ject of the first assignment. 
 
 In the second assignment of error complaint is made that the 
 judge erred in his answer to the plaintiff's sixth point. The point 
 is as follows: "The amonnt allowed and paid as the consideration 
 of the transfer of the insurance, to wit, the sum of $99.51, with 
 interest thereon from December 7, 1875, to April 2, 1877, and the 
 costs were grossly inadequate; and the disproportion between that 
 amount and the amount of the insurance — $3,(J00 — is so great as 
 to require the court to say, as matter of law, that the transaction 
 was a wager, and that in this action Eeinoehl <fe Menily have no 
 right to retain more of the insurance money received by them 
 than the amount of their satisfied judgment w^ith interest and 
 costs, and the premiums and assessments paid by them, with inter- 
 est thereon, and therefore the verdict of the jury must be in favor 
 of the plaintiff for the amount received by the defendants, with 
 interest from the date of its receipt, less the amount of the judg- 
 ment, interest and costs, and assessments and premiums paid with 
 interest." This point was refused. 
 
 In examining this ruling it is said that whether the question of 
 excess of insurance is to be disposed of by the court as a matter
 
 WAGER POLICIES ON LIFE. 31 
 
 of law, or by the jury as a question of fact, it is essential that 
 there should be a fixed rule. The importance of this was recog- 
 nized by the judge in delivering the opinion of the court in 
 Grant v. Kline, 115 Pa. 618, 7 Cent. Rep. 626, where he said: 
 "" Speaking for myself, it may be that a policy taken out by a 
 creditor on the life of his debtor ought to be limited to the amount 
 of the debt with interest, and the amount of premiums with inter- 
 est thereon, during the expectancy of life, as shown by the Car- 
 lisle Tables. This view, however, has never been adopted by this 
 court in any adjudicated case, nor do we feel compelled to define 
 the disproportion now in view of the particular facts of the case 
 in hand." In the subsequent case of Coojier v. Shaeffer (Pa.) 9' 
 Cent. liep. 601, Sterrett, J., after quoting the above, remarked: 
 " This appears to be a just and practicable rule." ■ No such rule 
 was established, however, in Cooper v. Shaeffer. In that case 
 there was an insurance of $8,000 to cover a debt of $100, and the 
 court said, through Mr. Justice Sterrett: "In view of the undis- 
 puted facts, the learned judge of the common pleas held that the 
 disproportion between the insurance of $3,000 and the debt of 
 $100 was so great as to require him to say, as matter of law, that 
 the transaction was a wager, and that the assignors of the policy 
 had no right to retain more of the insurance money recovered by 
 them than the amount of the debt, plus the premiums paid and 
 interest thereon. In this he was clearly right. The disproj^or- 
 tion is so great as to make the insurance a palpable wager, and no 
 court should hesitate to declare it so as matter of law." 
 
 It seems clear that in a proper case where the facts are not dis- 
 puted, it is the duty of the court to pronounce upon the character 
 of the policy. Thus in Grant v. Kline^ supra,it was said: "To 
 take out a policy of $5,000 to secure a debt of $5 would be such 
 a palpable wager that no court would hesitate to declare it so as 
 matter of law." It is true this remark was made by way of illus- 
 tration, and it is only referred to for that purpose now. Cooper 
 v. Shaeffer decided nothing but that particular litigation. It laid 
 down no rule for the future beyond its owm particular facts, viz: 
 That an insurance of $3,000 for a debt of $100, unexplained, was 
 a gambling policy. It may be asked why it does not rule a case 
 where the amount of insurance was the same and a difference of
 
 '32 LIMITATIONS UPON THE RIGHT TO CONTRACT. 
 
 a few dollars only in the amount of the debt? The answer is not 
 difficult. Cooper v. Shaeffer was decided upon the single ground 
 of the disproportion between the insurance and the debt. There 
 were no facts in evidence by which this disproportion could be 
 explained, or shown to be justifiable. This appears by the report 
 of the case as well as from the opinion of Judge Simonton, who 
 tried that, as well as this case below. In refusing a new trial in 
 the case in hand, that learned and able judge said in reference to 
 Cooper V. Shaeffer: "Even the age of tlie insured was not dwelt 
 upon as an element of the problem, and tliere was not a word of 
 evidence as to the expectancy of life or the probable amoimt of 
 annual payments to be made. Here, however, these important 
 matters were urged as a principal ground of defense and required 
 consideration. In our opinion they necessarily carried the case to 
 the jury, and abundantly justified the verdict. The defendants 
 insured a healthy man of forty-two years in the sum of $3,000 to 
 protect a debt of $100. If he had merely lived out his expec- 
 tancy and no longer, they would have been obliged to pay for 
 assessments and annual dues $2,436.32, to which, if interest be 
 added, the amount of their investment would have been $4,336.31. 
 In return they would have received $3,000, thus suffering a con- 
 siderable loss. Surely to call such a transaction speculation is to 
 misuse the word. That it happened to be profitable, because the 
 insured died within a few years, is manifestly not to the point." 
 This extract emphasizes the distinction between Cooper v. Shaef- 
 fer and the case of Ulrich v. Reinoehl. 
 
 The law very properly lays a mailed hand upon speculative life 
 insurance. Of all the forjns of gambling, it is one of the most 
 objectionable. The records of our courts show that it sometimes 
 leads to murder. The holder of a policy upon a life in which he 
 has no interest either of a social or pecuniary nature has a strong 
 interest in the death of the assured. This interest grows and 
 strengthens with each payment of premium. He has made a bid 
 upon the life of another person. A man who will engage in such 
 a transaction cannot safely be regarded as a saint. He sees with 
 growing impatience that life prolonged from year to year, and his 
 money slipping away in premiums. A man thus situated soon 
 becomes familiar with the thought of the death of the person who
 
 WAGEB POLICIES ON LIFE. 33 
 
 stands between him and wliat, in bis morbid fancy, lie may regard 
 as his rights. That crime follows in some instances is a fact of 
 which conrts have judicial knowledge. 
 
 All life insurance is in one sense speculative, yet within proper 
 restrictions it has been found to be highly beneficent and not in 
 conflict with public policy. It enables a man in the days of his 
 early struggles to provide for his family in case of his death. It 
 renders it possible for a business man to borrow the capital needed 
 for success. It furnishes the means and the only means by which 
 a creditor may sometmies secure a doubtful claim. Yet in all 
 these cases there is the element of speculation, for if the assured 
 dies shortly after the policy is issued, the beneficiary, whether he 
 be a blood relation or a creditor, gets a sum of money greatly dis- 
 proportioned to the amount paid. But in these cases the law does 
 not regard tlie speculative element as one of danger. It is true 
 that a son who takes out a policy on the life of his father, or a 
 creditor upon the life of his debtor, may have an interest in the 
 death of the assured, and resort to crime to procure it, but expe- 
 rience shows that such instances are extremely rare, and the 
 temptation no greater than in thousands of other instances in 
 which one person may be benefited pecuniarily by the death of 
 another. But a policy taken out by one who has no interest either 
 as a creditor or a relative in the life of the assured, is always a 
 dang-er sio-nal. 
 
 It is settled law that a creditor has an insurable interest in the 
 life of his debtor, but up to this time there is no decision as to the 
 limit of this right. Each case has been decided upon its own 
 facts. In Cooper v. Shaeffer, as before observed, it was said the 
 insurance was too large; in Grant v. Kline, on the other hand, the 
 amount of insurance was held not disproportioned to the debt. 
 But it is necessary to lay down some fixed rule by which such 
 cases can be disposed of in the' future, otherwise the rulings of 
 the courts and the verdicts of juries upon such questions will be 
 arbitrary, and where there is nothing in a case but the amount of 
 the insurance and the amount of the debt it is impossible for either 
 a court or a jury to arrive at a correct result. 
 
 Starting out with the conceded proposition that a creditor 
 has an insurable interest in the life of his debtor, and may 
 3
 
 34 LIMITATIONS UPON THE RIGHT TO CONTRACT. 
 
 lawfully take out a policy thereon, the court in Ulrich v. Rei- 
 noehl, 13 L. R. A. 433, declares it follows logically that he may 
 take out the policy in such a sum as may reasonably secure the 
 debt. It needs no argument to show that if my debtor owes me 
 $1,000 a policy for $1,000 would be inadequate, for if my debtor 
 dies within twenty-four hours after the policy is taken out, I am 
 a loser by the amount of the premium paid, and it would be but 
 a few years before the interest on tlie debt and the premiums 
 would exceed the debt. Every future payment then would be a 
 loss, with the only alternative of adding to this loss year by year, 
 or abandoning the policy altogether, and sinking the whole amount 
 paid. It. seems clear upon reason that the creditor may take out a 
 policy in excess of his debt. But to what excess ? The answer to 
 this question obviously depends upon circumstances. An import- 
 ant element in the consideration of this question is the age of the 
 assured. The difference between a policy on the life of a man of 
 twenty-five years of age and one of seventy-five is clear to the dull- 
 est understanding. In the above case the assured was only forty-two 
 years of age; and his expectancy of life was twenty-six years. The 
 chances were greatly in favor of his living out his expectancy. The 
 Carlisle Tables were prepared with care by competent experts, and 
 are the result of actual experience. The court, therefore, felt 
 justified in saying that the chances were in favor of the assured 
 living out his expectancy, in which case there would be the loss 
 of interest on the debt for twenty-six years added to the dues and 
 assessments, with interest thereon, for the same period. The evi- 
 dence shows that in such event the defendants would have been 
 losers by a considerable sum. In fact it is inferred from the tables 
 furnished that after about seventeen years the defendants would 
 have carried this policy at a loss. The defendants assumed this 
 risk when they took out the policy. They also had the chance of 
 the assured not living out his expectancy. This is a risk which an 
 insurance company assumes upon every policy which it issues. In 
 a particular instance the assured may live many years beyond his 
 expectancy, which is a large gain to the company. But this gain 
 is equalized by the loss in instances where the assured dies before 
 the expiration of his expectancy, so that in the vast volume of 
 business of such corporations the average result is reasonably uni-
 
 WAGER POLICIES ON LIFE. 35 
 
 form. But the holder of a single policy can have no average re- 
 sult. He takes the risk with the chances fairly balanced. Had 
 lie taken out one hundred policies on the lives of as many 
 debtors, it is more than probable that some of them would have 
 largely exceeded their expectation, while others would not have 
 reached it. In such case there would not have been material gain 
 or loss. 
 
 If the assured should live out his expectancy of life no ques- 
 tion could probably arise as to the right of the holder to retain 
 the whole of the money. It could not then be successfully assailed 
 as a gambling transaction. But the character of the contract can- 
 not depend upon results, or the accident of death. If not lawful 
 in its inception it could never become so. 
 
 In order to ascertain whether an insurance is disproportioned to 
 the debt, regard must be had to the age of the assured, his expec- 
 tation of life and the cost of carrying the insurance with interest 
 thereon, as well as upon the amount of the debt. The evidence 
 which forms the subject of the first assignment, the court say, was 
 not only proper, but essential, to an intelligent understanding of 
 the case. It is just what was lacking in Grant v. Kline, and was 
 one of the reasons why the court avoided deciding the broad ques- 
 tion in that case. But anyone who reads that opinion between the 
 lines can see that the judicial mind must have been influenced to 
 some extent by the suggestion in reference to the Carlisle Tables. 
 
 The rule announced in TJlricli v. Reinoehl, supra, it is admitted 
 may not be the best, but the court has not been able to find a bet- 
 ter, after a most careful and anxious consideration of the question. 
 That it will not produce exact justice in all cases is possible. 
 There will always be cases of individual hardship in the applica- 
 tion of all general rules. Ko general rule can be made to fit each 
 particular case, otherwise it would cease to be a rule. Attention 
 was especially called to this difficulty by the following extract from 
 the opinion of the learned judge below in refusing a new trial: 
 
 "With much respect it is suggested that the principle indicated in 
 Grant v. Kline, 115 Pa. 625, 7 Cent. Kep. 626, and Cooper v. Shaef- 
 fer (Pa.) 9 Cent. Rep. 601, as the proper rule to determine for what 
 sum a creditor's policy should be taken out, ought to be somewhat 
 expanded before it is positively adopted. As now stated, it would
 
 30 LIMITATIONS UPON THE RIGHT TO CONTRACT. 
 
 not provide for a case like this, where the poHcy is taken out in a 
 company which levies annual (monthly ?) assessments, and where 
 therefore allowance must be made in the creditor's forecast for 
 possible fluctuations; neither would it now provide for the not in- 
 frequent contingency of the insured outliving his expectancy. 
 Under the present form of the indicated rule, the creditor must 
 always lose if the debtor hves beyond his expectancy; and it can- 
 not be accurately applied to assessment insurance, because in this 
 variety of the business the annual payments are not a previously 
 known and certain sum." 
 
 But the court has no difficulty in disposing of the objection that 
 the rule does not provide for the case of the assured hving beyond 
 his expectancy and thus entaihng a loss upon the creditor. If we 
 go beyond the expectency^ where are we to stop ? A man may live 
 to the age of a hundred, and such a length of days is of frequent 
 occurrence. To sanction a policy covering such a period, and yet 
 to allow the holder to recover the full amount in case of death 
 within a year would be a retrograde step in the decisions. Under 
 such a system the creditor would be absolutely secure, with the 
 possibility of an enormous gain in case of an early death. Whereas 
 at present, the risk of a debtor's exceeding his expectancy is equal- 
 ized by the possibility of his death within it, and in a given num- 
 ber of cases the result produces uniformity. The want of uni- 
 formity is not the fault of the rule, but of its apphcation to a single 
 case. 
 
 There is more difficulty, the court admits, in the other objection. 
 The policy in question, however, it is said, was taken out in a mu- 
 tual company, where assessments are made from time to time, and 
 there appears to have been no difficulty upon the trial below in 
 ascertaining with sufficient accuracy the amount of assessments 
 which the defendants would have been called upon to pay had the 
 assured lived out his expectancy. The precise amount of such 
 assessments cannot of course be estimated with the same accuracy 
 as in the case of a company in which the annual premium is a fixed 
 sum. But the assessments even in a mutual company can be ap- 
 proximated by the experience of other similar companies with suf- 
 ficient accuracy to base an insurance upon it. And where a policy 
 has been taken out in good faith by a creditor, the law does not
 
 WAGER POLICIES ON LIFE. 37 
 
 exact impossibilities. A slight mistake, one waj or the other, ow- 
 ing to the condition of the company's business, by which assessments 
 are increased or diminished, would not necessarily vitiate a policy. 
 The cost of life insurance by whatever system adopted, it is be- 
 lieved, does not vary so greatly as to prevent a reasonal^le approxi- 
 mation thereof. 
 
 It may be that few men would take out a hfe policy to secure a 
 debt of $100, where there is an expectancy of life for twenty-six 
 years, and pay an annual assessment or premium in excess of the 
 whole amount of the debt. But courts do not pass upon the wis- 
 dom of contracts. They only consider their legahty and care must 
 be taken in the enforcement of an admittedly sound rule of policy 
 not to impinge upon the right of the citizen to contract. In TJl- 
 rich V. Reinoehl, sujyra, the contract was lawful, and the defend- 
 ants appear to have entered in not so much for their own benefit as 
 for the accommodation of the assured. The court is not to meas- 
 ure its legality by its results but by its surroundings at the time it 
 was made. 
 
 In conclusion the opinion is expressed that a creditor may law- 
 fully take out a policy on the life of his debtor in an amount to 
 cover the debt with interest, and the cost of such insurance with 
 interest thereon during the period of the expectancy of hfe of the 
 assured, according to the Carlisle Tables. 
 
 In some states a creditor holding a poHcy on the life of his 
 debtor as security for his debt is held a trustee to the extent of the 
 proceeds above the debt and expenses, and may be called on to 
 account therefor by the personal representatives of the debtor.' 
 
 A creditor who takes an assignment of a hfe policy as security 
 for a loan can hold the proceeds of that policy only to the extent 
 of the sums actually advanced by him.* 
 
 In other states in the absence of evidence that the policy was 
 held in trust for the debtor, where the rights of the parties appear 
 upon the face of the policy, the presumption is against such trust.' 
 
 It has been said, however, on the authority of Goodsall v. Bol- 
 dero^ 9 East, 72, that an insurance upon the life of a delator, in 
 
 ^Tateum v. Ross, 150 Mass. 440. 
 
 ^Roller V. Beam, 6 L. R. A. 136, 86 Va. 512. 
 
 ^Corson v. Gamier (Pa.) 4 Cent. Rep. 308.
 
 38 LIMITATIONS Ul'ON THE RIGHT TO CONTRACT. 
 
 belialf of a creditor, is in legal effect but a guaranty of the debt, 
 and if the debt is paid the insurance is at an end. But it is now 
 settled that this case is not the law. It was directly drawn in 
 question and was expressly overruled in Daily v. India <& L. L. 
 Assur. Co., decided in the exchequer chamber, 15 C. B. 365. 
 
 It is perhaps true that a policy in favor of a creditor is to be 
 regarded as collateral security only where the debtor is under ob- 
 ligation to pay the premiums; but where the creditor pays the pre- 
 miums, the right of the creditor is absolute ; ' and a creditor who 
 insures the life of his debtor, and is obliged to keep alive the policy 
 by paying premiums, may hold all he can recover on the policy, 
 unless there is a gross disproportion between the debt and the 
 amount of the policy." 
 
 h. Future Delivery of Stocks, Grain aud Produce.— The 
 rule at common law that, "articles which had no actual or poten- 
 tial existence at the time of the contract, were not subjects of 
 sale," was at one time well recognized. But it was found that 
 this was too restrictive upon commercial transactions. The manu- 
 facturer, desiring to contract for the delivery of his product at a 
 future date, wlien the purchaser w^ould find use for it, if excluded 
 from contracting for the raw material deliverable to him at a 
 fixed price a sutficient time before it was to be operated upon, 
 was compelled to purchase in the present market, and store the 
 article until he could make it available for manufacturing pur- 
 poses. 
 
 There was thus, the investment of capital without interest, the 
 cost of storage, the hazard of decay and loss by fire or casualty, 
 as well as loss of weight and measure, and expense of cooperage 
 in case of fluid. 
 
 But the relaxation of the rule, so that a contract for the sale 
 and future delivery of a commodity of a designated kind or class, 
 which the seller does not own, or which has at the time no actual 
 existence, but which may be supplied by purchase in the market 
 at the proper time, or produced of material to be so acquired; 
 enables the manufacturer to contract to sell his product at a fixed 
 future date, for a determined price, wdthout such investment of 
 
 ^AmicJo V. Butler, 9 West. Rep. 845, 111 Ind. 578. 
 ^Eittler v. Smith, 2 L. R. A. 844, 70 Md. 261.
 
 FUTl-BE DELIVERY OF STOCKS, GKA.N AKD PRODUCE. 39 
 
 caDital or cost or l.azard of storage, and without risk of an 
 Advance Tn the raw material; having already contracted for .t 
 deuterable at a sufficiently early date, which will enable hi.n to 
 comply with his contract of sale. . ^ x • +Ln+ 
 
 Such contracts are now recognized where the intent is at 
 the commodity shall actually be procured by the seller, and siip- 
 phed tX purchaser, upon the maturity of the contract ot sale. 
 Co, tracts in regard to the sale and future delivery of gram and 
 cot~* found to be equally necessary, in ^J^^^ ^'^ 
 farmer and planter, as well as the manufacturer and ■"•"'^.'•; A' 
 he rdmodities come upon the market at annual periods m 
 mmense quantities, exceeding the present demand of he man^ 
 facturer or miller, it produces corresponding gluts m 
 
 Both the capital and the storage capacity of the mdividual 
 miUe s and manufacturers were limited, and if the nceess ty 
 "x^ted to make present purchases for immediate delivery, the 
 S;e of grain or cotton was inevitably depressed by the enormous 
 suDplv demanding immediate payment and storage. 
 
 U wa. found necessary, therefore, in these cases also to relax 
 the ™le and permit the farmer and planter to sell by sample, 
 eont mg for'^future delivery at specified dates;' and the law is 
 now evervwhere recognized that an e.vecutory contract for the 
 2 rf goods for future delivery is not infected with the quality 
 of a wa^er by reason of the fact that at the date ot a contract the 
 veitdor had not the goods ; had not entered into any arrangement 
 rprovide them, and had no expectation of aequmng then, 
 uul s bv a subsequent purchase in the market;- and i is equal^ 
 :™ ;'; a bona hcle purchase of grain for specn ation though it^be 
 for future delivery, is as legitimate as a purchase foi actual use 
 So executory contracts for the sale of stock may be made with 
 
 a. Ann. 
 Prell, 
 
 .m.ar^ V. Eoeffi.,l.ff, 38 ^ed. Rep. 635 . (^^r^ glS^'^ v. 
 
 814; Irioin v. Wdluir 110 U. ^ 499^jOS, -J>^|^«^ Crawford v. Bit- 
 
 1.5 Fed. Rep. 774, 2-^,^'^-,L^,^'^f.c?\^ Am StR^p. 745, and note; Ex 
 low, 10 \Ve.t Rep.78, f. ,^}%-^f^' }.^^^^\xx^^^^^^ Cockrell v. Thomp- 
 parte Young, 6 Biss^^53; Pichenng ^.- ^^{^/^'^^^ooo sfL ed. 243. 
 son, 85 Mo. 510; White v. Barber, 12d U. S. 394, 31 l,. eu. « 
 
 '■Conner v. Robertson, 37 La. Ann. 814. 
 ^Edwards v. Eoeffinghoff, 38 Fed. Rep. 635.
 
 40 LIMITATIOKS Ul'ON THE KIGIIT TO CONTRACT. 
 
 an intent to actually deliver tlie stock, and at common law, they 
 are legal and valid.' 
 
 Such [contracts, although entered into for pure j^urposes of 
 speculation, however censurable, are, nevertheless, not prohibited 
 by law unless, as in some states, by special statute;"" even though the 
 seller has not the goods nor any other means of getting them than 
 to go into the market and buy them.' 
 
 The law is now well settled that the sale of goods to be deliv- 
 ered in the future is valid. Such a contract is valid, although 
 there is an option as to the time of delivery and though the seller 
 has no other means of acquiring than to go upon the market and 
 order them ; but if, under the guise of such a contract, valid on 
 its face, the real purpose and intention of the parties is merely to 
 speculate on the rise or fall of prices, and the goods are not to be 
 delivered, but the difference between the contracts and market 
 price only paid, then the transaction is a wager, and the contract 
 is void. It is not enough, however, to render the contract void 
 that only one party intends by it a speculation in prices ; it must 
 be shown that both parties did not intend a delivery of the goods, 
 but contemplated and intended a settlement only of differences. 
 The burden of sliowing the' invalidity of the contract rests upon 
 the party asserting it.* 
 
 This is the law of England since the Statute of 8 and 9 Vict, 
 chap. 109, § 18." 
 
 ^Iririn v. Willtar. 110 U. S. 499, 508. 28 L. ed. 225, 229; Cook, Stock and 
 Stockholders, 352-361. 
 
 ^Smith V. Bottvier, 70 Pa. 325; Kirkpatrick v. Bonsall. 72 Pa. 155; Hatch v. 
 Doxialas, 48 Conn. 116; Hagg v. Baldwin, 38 N. J. Eq. 219; Rent v. Mil 
 tenberger, I'd Mo. App. 503. 
 
 ^Clarke v. Foss, 7 Biss. 540. 
 
 *Cockrell v. Thompson, 85 Mo. 510; Crawfoi'd v. Barlow, 10 West. Rep. 78, 
 92 Mo. 489; Vfhite v. Barber, 123 U. S. 392, 31 L. ed. 243; Mutual L. 
 Ins. Co. V. Watson, 30 Fed. Rep. 653; Ward v. Vosburgh, 31 Fed. Rep. 12; 
 Irwin V. Williar, 110 U. S. 499, 28 L. ed. 225; Ex parte Young, 6 Biss. 53; 
 Pickering v. Cease, 79 111. 328; Lyon v. Culbertson, 83 III. 33; Cassard v. 
 Hinman, 1 Bosw. 207, 6 Bosw. 8; Brua's App. 55 Pa. 294; Waterman v. 
 Buckland, 1 Mo. App. 45; Rudolf v. Winters, 7 Neb. 125; Stoartz's App. 
 3 Brewst. 131; Gregory v. WendMl, 39 Mich. 337, 40 Mich. 432; Yerkes v. 
 Salomon, 11 Hun, 471; Cockrell v. Thompson, 85 Mo. 510; Melchert v. 
 American U. Teleg. Co. 11 Fed. Rep. 193. 
 
 ^Orizewood v. Bla)ie, 11 C. B. 538.
 
 FUTURE DELIVERY OF STOCKS, URAIN AND JfRODUOE. 41 
 
 Where the parties intend to speculate upon the future market 
 and to settle the profit or loss upon the differences, there can be 
 no recovery.' 
 
 In Iowa and in Maine the same doctrine is held.' 
 
 Losses sustained by buying and selling what is commonly called 
 *' futures," cannot be recovered in a court of law.* 
 
 While the courts recognize the legitimacy of these transactions^ 
 both in the raw material for manufacturing, and in stock transac- 
 tions,* yet, where the form of a future sale is resorted to, the real pur- 
 pose and intention of the parties being merely to speculate on the 
 rise and fall of the prices, and the goods are not to be de-livered? 
 but the difference between the contract and market price only to 
 be paid, then the transaction is a wager, and the contract \vill not 
 be enforced. 
 
 A contract with a broker to purchase "cotton futures" on a 
 margin, by which the purchase or delivery of actual cotton is not 
 contemjjlated by either party, but the settlement is to be made 
 between the parties by one party paying the other the difference 
 between the contract price and the market price of such "'cotton 
 future," according to the fluctuations in the market, — is a wagei- 
 ing contract.* 
 
 Where the real intent is, that no pro})erty sliall pass, but mere 
 differences in price, between the value at the date of the contract 
 and the time stipulated for delivery shall be paid, no matter how 
 formal the contract of sale may be, it is a mere wager and void." 
 
 ^Cobb V. Prell, 15 Fed. Rep. 774. 
 
 "^ First Nat. Bank v. Oxkaloosa Packing Co. 66 Iowa, 44; Rutmey v. Berry, 65 
 
 Me. 570. 
 ^Lawton v. Blitch, 83 Ga. 663. 
 ^Sterling v. Jordan, 48 Barb. 459; Richter v. Frank,4:\ Fed. Rep. 859; Irwin 
 
 V. Williar, 110 U. S. 499, 28 L. ed. 225. 
 
 ^Embrey v. Jenmon, 131 U. S. 336, 33 L. ed. 172. 
 
 Hrwin v. Williar, 110 U. S. 499, 28 L, ed. 225; Mutual L. Ins. Co. of Neio 
 York V. WaUon, 30 Fed. Rep. 653; MelcJiert v. American U. Teleg. Co. 3 
 McCrary, 521; Re Green, 7 Biss. 338: Ex parte Young, 6 Bi.ss. 53; Cobb v. 
 Prell, 15 Fed. Rep. 774; Sawyer v. Taggart, 14 Bush, 727; Kirkpatnck v. 
 Bonsall, 72 Pa. 155; North v. Phillips, 89 Pa. 250; Thompson's Estate, 15 
 Phila. 532 ; Bigelow v. Benedict, 70 N. Y. 202; Gregory v. Wendell, 39 Mich. 
 337; Lpon v. Calbertson, 83 111. 33, 38; Beudlcs v. McElrath,S5 Ky. 230; Cock- 
 rellv. Thompson, 85Mo.510; CunningJiarnv. AugustaNat. Bank, 71 Ga.4()0; 
 Rudolf y. Winter, 7 Neb. 125; Rumsei/ v. Berry, Q5 ^\e.510;Hemaa v. Hardie, 
 12 Ct. of Sess. Gas. (S. C.) 406; Seeligson v. Lewis, 65 Tex. 215; Lowry v. . 
 Dillman, 59 Wis. 197; Crawford v. Harlow, 10 West. Rep. 78, 92 Mo. 498;
 
 42 LIMITATIOMS UFON THE KIOHT TO CONTliAOT. 
 
 But the intention of one party to settle by payment of differ- 
 ence in value between the dates will not render the contract void 
 if the other party has contracted, intending to execute the con- 
 tract legally.' 
 
 Where one of the parties has purchased stock on a margin, an 
 agreement to share profits or losses on sale of the stock is not 
 illegal as a wager or stock-jobbing contract." 
 
 The fact that the vendor does not then own the j^roperty will 
 not render its sale for future delivery a wager or void contract, 
 unless it was intended by both parties as a mere speculation on 
 the future price.' 
 
 It is not enough to render the contract void, that only one 
 party intends by it a siDCculation in prices. It must be shown 
 that neither party intends a delivery of the goods, but contemplates 
 and intends a settlement only, of differences.* 
 
 Wliere there is a mutual intent that the purchase shall never be 
 consummated, that there shall be no delivery, and that the trans- 
 action shall be merely a gambling or wagering transaction, to win 
 or lose money according to the advance or decrease of the price of 
 the article, the contract is invalid as a gambling contract. But an 
 intention of one of the parties only that it shall be a gambling 
 transaction will not make it so/ if the other party acts in good 
 faith, and carries out the contract by buymg and selling as in- 
 structed, and renders himself liable.' 
 
 A broker -who makes a valid contract knowing that his princi- 
 pal intends a wager, and who at his principal's directions, pays the 
 
 First Nat. Bank of Lyons v. Oskaloosa Pitching Go. 66 Iowa, 41; Flagg v. 
 
 Baldwin, 38 N. J. Eq. 219; Lowe v. Young, 59 Iowa, 364; McQrewv. 
 
 City Produce Exch. 85 Tenn. 572; Dunn v. Bell, 85 Tenn. 581; Floyd v. 
 
 Patterson, 72 Tex. 203; Davis v. Davis, 119 Ind. 511; Kahn v. Walton, 46 
 
 Ohio St. 195; Beadles v. McElrath, 85 Ky. 230; Embry v. Jemison, 131 U. 
 
 S. 336, 33 L. ed. 172. 
 ^Bartlett v. Smith, 4 McCrary, 388; Clarice v. Foss, 7 Biss. 540; Saicyer v. 
 
 Taggart, 14 Bush, 727; Wall v. Schneider, 59 Wis. 352; Murray v, Ochel- 
 
 tree, 59 Iowa, 435; Pixley v. Boynton, 79 111. 351. 
 ^Bullard v. Smith, 139 Mass. 492. 
 ^Conner y, Robertson, 37 La. Ann. 814, 55 Am. Rep. 521 ; Bangs v. Eoi'nickt 
 
 30 Fed. Rep. 97. 
 ■^Sondheim v. Gilbert, 5 L. R. A. 432, 117 Ind. 71. • 
 
 ^Benson v. Morgan, 25 111. App. 22; Jor^es v. Shale, 34 Mo. App. 302; Car- 
 roll V. Holmes, 24 111. App. 453. 
 ^Edwards v. HoeffingJwff, 38 Fed. Rep. 635.
 
 iUTLRE DEI.IVEKY OF STOCKS, GEAIN AND PRODUCE. 43 
 
 money in closing it out, can recover the money paid and commis- 
 sions.* 
 
 In transactions upon the stock exchanges, where the sale of 
 futures in stock securities are contemplated, there have grown up 
 various forms of contracts in sellers' or buyers' "options," which 
 are desiijnated by appropriate names. Among these are what are 
 styled '-puts" and "calls." A "put" being the privilege, for a cer- 
 tain consideration, of delivering, or not delivering, personalty 
 within a certain time at a specified price. The person who makes 
 such a contract and receives the consideration, contracts that he 
 will accept and pay for the specified articles. A "call" is the 
 privilege of calling or not calling for the subject matter of the 
 contract. 
 
 The one receiving the consideration agrees to deliver, at the 
 option of the party to whom it is given or his order, at a time 
 named, certain stocks, securities or goods, at a certain price. 
 "Puts" and "calls" are merely options to sell or buy.^ 
 
 The true idea of an oj^tion is impressed within the terms "puts" 
 and "calls," the former being the privilege of delivering or not 
 delivering the thing sold; tlie latter, being the privilege of calling 
 or not calling for the thing bought' 
 
 A contract for the sale of corporate stock to be delivered at the 
 expiration of twelve months, with the seller's option to deliver at 
 any time during that period, is prima facie valid, and not found- 
 ed on a gambling consideration so as to render it void under Ala. 
 Code, §1742/ 
 
 A contract reciting that for a certain consideration one agrees 
 to sell to another certain stock for a certain sum, "if taken on or 
 before'' a certain future day, is a contract to give the latter the 
 option to buy stock at a future time.^ 
 
 Where the double privilege of a "put" and "call" is given, 
 securing to the holder the right to demand of the seller at an 
 agreed price, within given time, a certain number of shares of 
 specified stock, or to require him to take within the time, the 
 
 ^Taylor v. Penquite, 35 Mo. App. 389. 
 
 ^Puiey V. Boynton, 79 111. 3.j3. 
 
 ^Pearce v. Foote, 113 111. 234. 
 
 ^Wolffe V. Perryman, — Ala. — , 9 S. Rep. 148. 
 
 ^Schneider v. Turner. 6 L. R. A. 164. 130 111. 28.
 
 44: LIMITATIONS UPON THE RIGHT TO CONTRACT. 
 
 same shares of stock, it is called a "straddle" or "spread eagle." ' 
 The form of the latter, is usually: 
 
 New York, , 1S92. 
 
 For value received, the bearer may call on the undersigned, 
 
 for shares of common stock, of the 
 
 Co., at per cent, at any time in 
 
 days from date. Or, the bearer may, at his option, 
 
 deliver the same to the undersigned, at per cent, any 
 
 time within the period named. All dividends and extra divi- 
 dends declared within the time, are to go with the stock in either 
 case, and this instrument is to be surrendered upon the stock 
 being either called or delivered. 
 
 Expires, 
 
 A "call" is contained in the first clause of this agreement, and 
 a "put" in the second. Under the "call" the bearer is entitled to 
 all dividends or extra dividends declared during the time, which 
 fact is specified in the "call." Whereas, in the "put," the one 
 who agrees to receive, is entitled to all dividends or extra divi- 
 dends declared during the time. No fictitious sales of stock can 
 l^e made under the rules, but actual delivery of stock must be 
 made. 
 
 An " option," " put," " call," " straddle," or other similar stock 
 exchange contract may be made with an intent to actually deliver 
 the stock, and, if so, is unobjectionable and is enforceable." 
 
 The question for the jury to determine is whether the contracts, 
 made on the board of trade were valid, or whether they were 
 pure options, that is, " puts " and " calls," or agreements, whereby 
 one party pays another for the privilege of delivering to him or 
 ]iot a certain kind of merchandise at a future time at a certain 
 j)rice.^ 
 
 ^Harris v. Tumbridge, 83 N. Y. 95. 
 
 ^Bigelowv. Benedict. 70 N.Y. 202; Harris v. Tambndge, 83 N. Y. 92; Story 
 V. Saloman, 71 N. Y. 420; Ex parte Young, 8 Biss. 53; Webster v. Sturges, 
 7 111. App. 560; Teniiey v. Foote, 4 111. App. 594; Lyon, v. Culbert!<on, 83 
 111. 33; Gilberts. Qaugar, 8 Biss. 214; Maxton v. Olieen, 75 Pa. 166; 
 Eessv. Rau, 95 N. Y. 359; Knowltonx. Fitch, 52 N. Y. 288: White v. 
 Smith, 54 N. Y. 522; Cameron v. Durkheim, 55 N. Y. 425; Third Nat. 
 Bank v. Harrison, 10 Fed. Rep. 243. 
 
 ^ White V. Barber, 123 U. S. 392, 409, 31 L. ed. 243, 249.
 
 FUTURE DELIVERY OF STOCKS, GRAIX AND PRODUCE. 45 
 
 An agreement by the seller of stock to repurchase it at the end of 
 three years for a sum equal to the original purchase price, with 
 simple interest at 10 per cent, is not a gambling contract, under 
 111. Rev. Stat., chap. 38, § 130, making it a penal offense to give 
 an option to sell or buy stock, etc., at a future time.' But an 
 agreement to make a "corner" in stock, by buying it up so as to 
 control the market and then purchasing for future deliveries, is 
 illegal.' 
 
 On the Cotton Exchange, the transaction not contemplating 
 present delivery, is called a "future." A contract with a broker 
 to purchase for defendant "cotton futures" on a margin, by which 
 the purchase or delivery of actual cotton was never contemplated 
 by either party, but the settlement was to be made between the 
 parties by one party paying to the other the difference between 
 the contract price and the market price of said cotton futures, 
 according to the fluctuations in the market, — is a wagering con- 
 tract and void.* 
 
 In the Produce Exchange, the "option" is as to the day when 
 the delivery may be made or demanded. On the Cotton Exchange, 
 all stipulations or understandings that no actual delivery of cotton 
 is to be made are forbidden. The rules provide, that deliver- 
 ies of cotton shall be made in this manner: The seller must give 
 written notice to the buyer that he will deliver on a day named. 
 If the seller has resold the goods, he passes the notice to his ven- 
 dee, accompanied with a transferable order, and so on, until it 
 reaches a vendee who has not sold. The seller must then dehver 
 to this buyer, an order on a warehouse or place of delivery before 
 VA M. of the day preceding that on which the delivery is due; 
 if the buyer has not resold, he is bound to present the order and 
 receive and pay for the goods. If he has sold, he passes the order 
 to his vendee, and so on until it reaches a vendee who has not 
 sold, and he is bound to receive and pay for the goods at the 
 original contract price; the difference between that price and that 
 of each subsequent sale being settled between the immediate par- 
 
 ^Richter v. Frank, 41 Fed. Rep. 859, 8 Ry. & Corp. L. J. 66. 
 
 ^Sampsonv. Shaio, 101 Mass. 145; Raymond v. Leavitt, 46 Mich. 447, 13 
 
 Cent. L. J. 110; Morris Run Coal Co. v. Barclay Coal Co. 68 Pa. 173; 
 
 Arnot V. Pittston & E. Coal Co. 68 N. Y. 558. 
 *Embrey v. Jemison, 131 U. S. 336, 33 L. ed. 173.
 
 46 LIMITATIOJS'S UPON THE KIGUT TO COMTRACT. 
 
 ties to each sale. Delivery orders must be received by any mem- 
 ber of the exchange, to whom goods of the kind called for are 
 due from another member. The equivalent of this system exists 
 in most exchanges. 
 
 Among London bankers settlements are effected each day, 
 through what is called the "Clearing House" through a committee 
 appointed by the bankers. Each house transmits, during the day, 
 the checks and bills which it receives on the others, and keeps a 
 note of the obligations coming against itself. Accounts are closed 
 at 4 o'clock in the afternoon. The bills and checks are classified 
 at the "Clearing House" and at a later hour the accounts are 
 adjusted; each bank paying or receiving the balance due by or to it. 
 
 The same system is adopted by the New York banks. And 
 this system has been applied in the various stock exchanges 
 where the agency of a trust company is generally employed to 
 adjust mutual accounts of the members of the exchange, who 
 agree that deliveries shall be made under the superintendence of 
 such trust company; deliveries being settled by delivery orders or 
 certificates. This method of delivery by warehouse receipts, cer- 
 tificates or delivery orders has been recognized in the courts.' 
 
 Many transactions are however settled outside the clearing 
 houses. Take a transaction when a commission merchant is act- 
 ing for two dealers. He sells, for present or future delivery, grain 
 at 30 cents a bushel to A, while the latter has sold a like amount 
 for 40 cents a bushel to B. And B it turns out has sold the 
 same quantity for delivery to the commission merchant at 60 
 cents, l^ow, when the commission merchant on demand receives 
 the grain from his principal, he delivers it to A, and receives the 
 30 cents per bushel. A delivers it to B and collects the 40 cents 
 due, and B in turn delivers it to the commission merchant, and 
 receives 60 cents per bushel, and then settles with his second 
 principal and collects the 60 cents per bushel from him. On 
 these transactions he charges his commissions. 
 
 If the details of this transaction are not literally worked out, 
 the commission merchant will simply deliver the grain, or rather 
 the warehouse receipt received from his first principal to his 
 
 ^Sawyer V. Tagqart, 14 Bush, 727; WallY. Schneider, 59 Wis. 353; Gregwyr 
 V. Wendell, 39 Mich. 337.
 
 FUTUKE DELIVERY OF STOCKS, OKAIN AND PKODUCE. 47 
 
 second principal, and pay to A 10 cents per bushel, and to B 20 
 cents per bushel, the amount of advance accruing to each, dis- 
 pensing with the intermediate deliveries. This is styled '•a ring" 
 and the completion or settlement of the transaction a "ringing 
 out." This method is used in settling accounts between commis- 
 sion merchants, where one has sold for one customer, and pur- 
 chased a like amount, for an identical delivery, for another, deal- 
 ing with some other commission merchant, who has been acting 
 for other investors. This method of settlement cannot be enforced 
 against the customers (unless they be held chargeable with knowl- 
 edge of an existing rule), as they may demand the actual delivery 
 of the grain, and thus defeat a "ring" settlement. 
 
 To meet the difficulty that a commission merchant may be 
 "rung out" in a genuine transaction, where he has contracted tO' 
 deliver the actual cotton to a particular customer, who desires to 
 enforce the contract, the Kew York Cotton Exchange has 
 adopted a new rule, declaring that all orders for future delivery 
 transactions in cotton are understood to permit the commission 
 merchant to substitute other contracts for like delivery, for con- 
 tracts which have been "rung out," and this he may do without 
 notification to his principal. As the commission merchant 
 guarantees the contract personally, this can work no wrong to the 
 customer, who is never known in the transaction except to his 
 commission merchant, and who relies entirely on the broker and 
 not on the party to the contract, who is unknown to him. The 
 rule of the 'New York Cotton Exchange, enforces this " ring " 
 method of settlement among its members, when any of them are 
 found in a ring of contracts. Many of the stock exchanges, some 
 of them in compliance with statute enactments, and some under 
 their rules, require settlements through a clearing house. 
 
 It has been said that "ring" settlements are valid.' These set- 
 tlements are but giving practical effect to the clearing house 
 method, and it has been held, that the rule of a board of trade, 
 where cross trades exist between the commission merchants under 
 such circumstances that they can be canceled, that shall be done 
 
 ^Clarke ^. Foss,l Biss. 540; Kent\. Miltenberger, 13 Mo. App. 503; Ward 
 \.Vosburgh, 31 Fed. Rep. 13; Oldershaw v. Kmles. 4 111. App. 63, 6 III. 
 App. 325; Williar v. Irwin, 11 Biss. 57; Irmn v. Williar, 110 U. S. 499, 
 28 L. ed. 325.
 
 48 LIMITATIONS UPON THE EIGHT TO CONTRACT. 
 
 and the one shall be offset for the other, and a new contract shall 
 be substituted must be known to a party, to be binding on him; 
 but the knowledge of his broker is the knowledge of himself.' 
 
 The rules and regulations adopted by the New Orleans Cotton 
 Exchange in the settlement and substitution of contracts for the 
 future delivery of cotton, when not used to promote a gambling 
 transaction, are valid and legal, and are binding upon all persons 
 familiar with such rules and regulations, or chargeable with knowl- 
 edge thereof, when they employ members of said exchange to 
 buy or sell, on the floor of said exchange, cotton for future deliv- 
 ery, who in good faith buy and sell in accordance with the said 
 rules and regulations." 
 
 Settlements of bona fide contracts for the sale of actual wheat 
 by offsets, under the rules and regulations of a board of trade, do 
 not affect the validity of the contract if the original intent was to 
 purchase and receive the actual wheat.' 
 
 Ln the stock exchanges the call by either party for a margin of 
 10 per cent, and keeping this margin good, when from fluctations in 
 the stock it is reduced below 5 per cent is authorized. So in 
 produce exchanges the margin rate is fixed specially, upon vari- 
 ous grains and upon pork, lard, etc. Upon this question the 
 courts have ruled that if a contract for the future delivery is law- 
 ful, the putting up of margins to cover losses which may accrue 
 from fluctuations in prices does not render it an unlawful transac- 
 tion.* 
 
 The bm-den of showing that no actual contract was contem- 
 plated, but a mere wager upon a future price of the commodities, 
 rests upon the party asserting it.* But where doubt is cast upon 
 
 ^Edioards v. Hoeffinghoff, 38 Fed. Rep. 635, 
 
 ^Lehman v. Feld, 37 Fed. Rep. 852. 
 
 ^Ware v. Jordan, 25 111. App. 534; Boyd v, Hanson, 41 Fed. Rep. 174. 
 
 *Boyd V. Hanson, 41 Fed. Rep. 174; Sondheim v. OiWert, 5 L. R. A. 432, 117 
 Ind. 71; Cockrell v. Thompson, 85 Mo. 510; Wall v. Schneider, 59 Wis. 
 352; Gregory v. Wendell, 39 Mich. 337; Union Nat. Bank of Chicago v. 
 Carr, 15 Fed. Rep. 438; Whitesides v. Hunt, 97 Ind. 191; Jones v. Marks, 
 40 111. 313; Lassen v. Mitcltell, 41 111. 101; Sawyer v. Taggart, 14 Bush, 
 727; Bumsey v. Berry, 65 Me. 570; Bartlett v. Smith, 13 Fed. Rep. 263. 
 
 ^Harris v. Tumbridge, 83 N. Y. 92; Irwin v. Williar, 110 U. S. 499, 28 L. ed. 
 225; Whitesides v. Hunt, 97 Ind. 191; Bumsey v. Berry, 65 Me. 570; Wing 
 V. Glick, 56 Iowa, 473; Saioyer v. Taggart, 14 Bush, 727; Gregory v. 
 Wendell, 39 Mich. 337; Williams v. Tiedemann, 6 Mo. App. 369; Murray 
 V. Ocheltree, 59 Iowa, 435; Kent v. Miltenberger, 13 Mo. App, 503.
 
 FUTURE DELIVERY OF STOCKS, GRAIN AND PRODUCE. 4^ 
 
 the validity of a contract for tlie sale of grain, by the testimony, 
 it rests upon the party claiming any rights under it to make it 
 satisfactorily and affirmatively appear that the contract was made 
 with the intention to deliver the grain.' 
 
 Where the statutes forbid short sales of stock, the seller, to 
 •enfore his contract, must show he was the owner at the time of 
 sale.' 
 
 By the common law of England, wagers respecting matters 
 which involve neither scandal nor matters inimical to good order 
 were lawful; but the common law on this subject has never been 
 adopted in most of the states, not harmonizing with colonial 
 policy.' 
 
 Generally, in this country, all wagering contracts are treated as 
 illegal and void, as being against public policy.* 
 
 In England, since the statutes of 8 and 9 Yict., chap. 109, § 18, 
 a contract in the form of a future sale of stocks, where neither 
 party contemplated a real transaction, but simply intended to 
 settle differences, is held a gambling transaction and not enforce- 
 able.^ 
 
 In Thacker v. Hardy ^ L. R. 4 Q. B. Div. 685, the court found 
 that the plaintiff was employed to make contracts, and ruled that 
 the understanding between the plaintiff and his customer, that the 
 contract should be so managed that only differences in prices 
 should be paid, did not violate this statute. Lindley, J!, in giv- 
 ing the opinion at the trial, said: "What the plaintiff was 
 -employed to do, was to buy and sell in the stock exchange, and 
 this he did; and everything he did was perfectly legal, unless it 
 
 ^Bprague v. Warren, 3 L. R. A. 679, 26 Neb. 326. See Cobb v. Prell, 15 
 Fed. Rep. 774; Barnard v. Backhand, 52 Wis. 593; Beveridge v. Hewitt, 
 8 111. App. 467. 
 
 *Stebbim v. Leowolf, 3 Cush. 137. 
 
 *Lov6 V. Harvey, 114 Mass. 80. See Ball v. Oilbert, 12 Met. 399; Lewis v. 
 Littlejield, 15 Me. 233; Perkina v. Eaton, 3 N. H. 152; Hoit v. Hodqe, 6 N. 
 H. 104; Collamer v. Day, 2 Vt. 144; Went v. Holmes, 26 Vt. 5-30; Stoddard 
 V. Martin, 1 R. I. 1; Wheeler v. Spencer, 15 Conn. 28; Edgell v. 
 M'Laughlin, 6 Wart. 176; Rice v. Gist, 1 Strobh. L. 82; Bigelow v. Bene- 
 dict, 70 N. Y. 203; Harris v. Tumbridge, 83 N. Y. 92; 3 Kent, Com. 277, 
 278; Metcalf, Cont. (Heard's ed.) 277. 
 
 *Irwin V. Williar, 110 U. S. 499. 28 L. ed. 225; Grant v. Hamilton, 3 Mc- 
 Lean, 100. See, however, Preston v. Cincinnati, 0. <& H. V. R. Co. 36 
 Fed. Rep. 54. 
 
 *Orisewood v. BUine, 11 C. B. 526.
 
 50 LIMITATIONS UPON THE KIGIIT TO CONTRACT. 
 
 was I'endered illegal as between the defendant and liiniself, by 
 reason of the illea;ality of the object they had in view, or of the 
 transaction in which they were engaged. IS^ow, if gaming and 
 wagering were illegal, I shonld be of the opinion that the illegal- 
 ity of the transaction would have tainted, as between themselves, 
 whatever the plaintifE had done in furtherance of their illegal 
 designs, and would have precluded him from claiming, in a court 
 of law, any indemnity from the defendant in respect of the lia- 
 bilities he had incurred.' But it has been held that, although 
 gaming and wagering contracts cannot be enforced, they are not 
 illegal. Fitch v. Jones^ 5 El. & Bl. 238, is plain to that effect." 
 
 On appeal Brett, Z. «/!, said: "It was further suggested in 
 Cooper V. Nell,, Weekly Notes, June 1, 1878, that the agree- 
 ment was that, although the plaintiff, being broker to the defend- 
 ant, but contracting in his own person as principal, should enter 
 into real bargains, yet the defendant should be called upon only 
 to pay the loss if the market should be unfavorable, and should 
 receive only the prolit if it proved favorable; and that no further 
 liability should accrue to the principal whatever might become of 
 the broker upon the stock exchange; so that, as regarded the real 
 principal, the defendant in the action, it should be a mere gam- 
 bling transaction. I then considered that a transaction of that 
 kind might fall within the provisions of 8 and 9 Yict., chap. 109, 
 § 18, but I thought that there was no evidence of it. And with, 
 respect to the present action I say that there is no evidence that 
 the bargain between the parties amounted to a transaction of that 
 nature. I retract nothing from what I said in that case." 
 
 In England wagering contracts concerning stocks or merchan- 
 dise are not void at common law, and all the judges in Thacker 
 V. Hardy were of opinion that the facts in that case did not show 
 that the transactions between the parties were in violation of the 
 statute. 
 
 In IriDin v. Wllliar, 110 U. S. 499, 510, 28 L. ed. 225, 230, the 
 Supreme Court of the United States says of wagering contracts, 
 that "in England it is held that the contracts, although wagers, 
 were not void at common law, and that the statute has not made 
 
 ^Cannan v. Bryce, 3 Barn. & Aid. 179; M'Kinnell v. Bobinson, 3 Mees. & 
 W. 434; Lyne v. Siesfeld, 1 Hurlst. & N. 378.
 
 FUTLTEE DELIVERY OF STOCKS, GKAIX AND PRODUCE. 51 
 
 them illegal, but only non-enforceable; while generally in this 
 country all wagering contracts are held to be illegal and void as 
 against public policy.' 
 
 In the various states there has been much experimental legisla- 
 tion aimed at gambling in stocks, and creating artificial corners in 
 the grain and produce market. 
 
 In Alabama, the code section 1742 is not construed so as to 
 render void a sale of stock of a corporation deliverable a year 
 from date, with an option to deliver at any earlier date that the 
 purchaser may choose.' 
 
 In Arkansas, the Act of March 30, 1883, to prohibit dealing in 
 futures, is not in restraint of trade. It does not prevent contracts 
 for future delivery when entered into in good faith and with an 
 actual intention of fulfillment, but is intended to suppress mere 
 speculations upon chances, where the grain, cotton, or stocks dealt 
 in exist only in imagination, and where no delivery is contem- 
 plated, but the parties expect to settle upon the difference in the 
 market. The written contracts for future purchase and delivery 
 are not conclusive upon the question of good faith. The real 
 question always is. Did the parties intend an actual, bona fide sale, 
 or a wager? One who acts as a broker in dealing in futures is 
 particeps criminis and punishable as principal. An indictment 
 for dealing in futures, in the language of the statute, is sufficient.' 
 
 In California a purchase of stock by a broker for his customer, 
 who puts up a margin, and, aside from commissions and interest, 
 simply receives or pays the diiference between the buying and 
 selling values, is invalid under Cal. Const., art. 4, § 26, as a sale of 
 stock on margin, and can give the broker no right to enforce the 
 customer's indebtedness to him thereon,* But a wager upon in- 
 different matters, not involving questions of morality or police. 
 is valid." And this is true in Delaware also.^ In Connecticut 
 
 ^Dickson V. Thomas, 97 Pa. 278; Gregory v. Wenddl, 40 Mich. 434; Lyonv. 
 Culberison, 83 111. 33; Melchert v. American U. Teleg. Co. 3 McCrary, 521, 
 11 Fed. Kep. 193, and note; Barnard v. Backhaus, 52 Wis. 593; Eings- 
 bitrg V. Kirwan, 77 N. Y. 612; Story v. Salomon, 71 N. Y, 420; Loxe v. 
 Harvey, 114 Mass. 80. 
 
 ^Wolffe V. Ferryman, — Ala. , 9 So. Rep. 148. 
 
 ^Foi-tenbury v. State, 47 Ark. 188. 
 
 *Cashman v. Boot, 12 L. R. A. 511, 89 Cal. 373. 
 
 ^Johnston v. Russell, 37 Cal. 670. 
 
 ^Deirees v. Miller, 5 Harr. (Del.) 347
 
 52 LIMITATIONS CPON THE KIGIIT TO CONTRACT. 
 
 a contract to be discharged by payment of differences is in- 
 valid.! 
 
 In Georgia, by statute, a sale of goods to be delivered at a fu- 
 ture day, where both parties are aware the seller expects to 
 purchase himself to make the delivery, and no skill, labor or 
 expense enters into the consideration, but the same is a pure 
 speculation, cannot be enforced by either party. Code, § 2636. 
 
 Contracts for the purchase and sale of cotton futures are 
 gaming contracts, and immoral, illegal, and contrary to public 
 policy; and all evidences of debt executed on such a considera- 
 tion are void in the hands of any person, even though it be a bona 
 fide purchaser before due and without notice." Losses sustained 
 by buying and selUng wliat is commonly called "futures" cannot 
 be recovered in a court of law,* 
 
 In Illinois, wagers are not prohibited generally.* But when a 
 contract is precisely within the letter and spirit of the statute 
 airainst wagers it is void, without regard to the question of intent." 
 IS^either party to a partnership venture in the business of making 
 books on horse races in violation of law can obtain the aid of the 
 court for the purpose of securing his share of the funds in the 
 other's hands. Money advanced, either as a loan or on joint ac- 
 count, to be bet on a horse race cannot be recovered.' A sale or 
 purchase of actual wheat for future delivery is not invalid under 
 the Illinois statute against option contracts.'' An option as to 
 time of delivery is not prohibited.' 
 
 But the purchase of 150 cars of coal, with a privilege of taking 
 250 cars more, is void as to the 250 cars as a wagering contract 
 under the statute making illegal an option to buy or sell at a fu- 
 ture time any grain or commodity.' 
 
 An ao-reement to satisfy a contract by adjustment of differences 
 
 ^Hatch V. Douglas, 48 Conn. 116. 
 
 ■Augusta Nat. Bank v. Ciinningliam, 75 Ga. 366. 
 
 ^Laicton v. Bliich, 83 Ga. 663. 
 
 *Morgan v. Petiit, 4 111. 529. 
 
 ^Schneider v. Turner, 37 111. App. 220, aff'd in 6 L. R. A. 164, 130 III. 28. 
 
 ^Shaffner v. Pinchhack, 133 111. 410, aff'g 30 111. App. 355. 
 
 "^Boyd V. Hanson, 41 Fed. Rep. 174. 
 
 miller V. Bensley, 20 111. App. 528. 
 
 ^Osgood V. Bauder, 75 Iowa, 550.
 
 FUTURE DELIVEKY OF STOCKS, GKAIIN^ AND PRODUCE. 53 
 
 between the contract and tlie market price is not necessary to 
 make an agreement void as an option contract under 111. Crim. 
 Code, § 130. And a contract for a sale of stock, "if taken on or 
 before" a certain day, is void as an option contract, under such 
 Code, although it would not be void at common law.' Where no 
 delivery is intended the contract is illegal.^ 
 
 In Indiana where a commodity is bought for future delivery, 
 no matter what the contract is, if it is mutually understood and 
 intended that the purchaser shall pay for and the seller shall de- 
 liver the commodity at the maturity of the contract, the contract 
 is legal and valid; and the fact that the purchaser is required to 
 deposit a margin and increase the same at any time the market 
 requires it, in order to receive payment at maturity, or that tiie 
 seller shall deposit a margin in order to secure delivery, does not 
 vitiate the contract. But if such a contract does not intend future 
 payment and delivery, but only loss or gain of the margins, it is 
 illegal and void as a o-ambling contract.^ 
 
 If under the guise of a contract which has the appearance of 
 validity upon its face, the real intention is merely to speculate on 
 the rise or fall of the market, without any purpose that any prop- 
 erty shall be delivered or received, but with the understanding 
 that at the appointed time the account is to be adjusted by paying 
 or receiving the difference between the contract and the current 
 price, then the whole transaction is illegal, as against public pol- 
 icy, and falls under the condemnation of the law." 
 
 It is said in Sondheim v, Gilbert, that in order to uphold a 
 judgment which invalidates commercial paper in the hands of 
 innocent holders, it is essential that a statute should be shown 
 ffovernino; the case, which in direct terms declares that transactions 
 on which the paper is based, are unlawful, and that notes given 
 under the circumstances exhibited by the facts are absolutely 
 void. The principle may be considered as well established that 
 when a statute in express terms pronounces contracts, notes, bills, 
 securities and the like, resulting from or growing out of wagering 
 
 ^Schneider v. Turner, 6 L. R. A. 164, 130 111. 28. 
 
 '^Browny. Alexander, 29 111. App. 626; Goffiaan v. Young, 20 111. App. 76. 
 '^Davis V. Daris, 119 Ind. 511. 
 
 ^Sondheim v. Gilbert, 5 L. R. A. 433, 117 Ind. 71; Whitesides v. Hunt, 97 
 Ind. 191.
 
 5i LIMlTATIO^iS UPON THE KIGHT TO CONTRACT. 
 
 or gambling transactions, which are prohibited by statute, abso- 
 kitely void, no recovery can be had thereon; and the doctrine 
 that transactions which a statute in direct terms declares to be 
 unlawful cannot acquire validity by the transfer of commercial 
 paper based thereon, which is also under direct legislative denun- 
 ciation, is fully supported by authority.' 
 
 In such a case the note will be declared void in the hands of an 
 innocent holder, in pursuance of the peremptory words of a stat- 
 ute which embraces in its terms the contract or obligation under 
 consideration,^ 
 
 The authorities justify the statement that a defendant may in- 
 sist upon the illegality of the contract or consideration, notwith- 
 standing the note in the hands of an innocent holder for value, in 
 all those cases in which he can point to an express declaration of 
 the Legislature that the illegality insisted upon shall make the 
 security, whether contract, bill or note, void; but unless the Leg- 
 islature has so declared, then, no matter how illegal or immoral 
 the consideration may be, a commercial note, in the hands of an 
 innocent holder for value, will be held valid and enforceable.' 
 
 Where the facts make it clear that the transactions contem- 
 plated were not the actual purchase and acceptance of cotton, but 
 were speculative wagers uj^on the price of that commodity, from 
 time to time, as it might be quoted on the New York Cotton 
 Exchange, the agreement is to engage in mere wild speculation, 
 in the nature of gambling or wagering upon the fluctuations in 
 the price of cotton. Such transactions demoralize and embarrass 
 legitimate trade, and are subversive of all correct business princi- 
 ples, destructive of commercial integrity and morality, and result, 
 directly or indirectly, in most of the bankruptcies, defalcations 
 and forgeries which startle and distract business circles. Between 
 the parties to such a transaction, and all others who participate in 
 the specific illegal design, with the intention of aiding in its exe- 
 
 ^Ne^o V. Walker, 6 West. Rep. 869, 108 Ind. 355; Thompson v. Bowie, 71 U. 
 S. 4 Wall. 4C3, 18 L. ed. 423; Vallett v. Parker, 6 Wend. 615; 1 Daniel, 
 Neg. Inst. §§ 197, 807. 
 
 "^Eagle v. Eohn, 84 111. 292. 
 
 ^Hatch V. Burroughs, 1 Woods, 439; Eagle v. Kohn, 84 111. 292; Third Bank y. 
 Tinsley. 11 Mo. App. 498; Third Nat. Bank v. Harrison, 3 McCrary, 316, 
 10 Fed. Rep. 243; Edwards v. Dick, 4 Barn. & Aid. 212; Day v. Sluart, 
 6 Bing. 109; Cbitty, Bills, 402; 2 Randolph, Com. Paper, § 511.
 
 FUTUKE DELIYEKT OF STOCKS, GKAIN AND PKODUCE. Oi) 
 
 <?ution, SO as to become principals or accessories thereto, any con- 
 tract or other security resulting therefrom will be wholly invalid. 
 But in the absence of a statute in direct terms prohibiting trans- 
 actions of the character, and declaring them unlawful, or expressly 
 declaring promissory notes growing out of such a transaction in- 
 valid, while the courts will, on general common law principles, 
 declare such notes invalid between the parties and those who 
 were accessory to the illegal act, yet, in order to invalidate a note 
 or other security in the hands of one who advanced money which 
 the borrower intended to and did employ in carrying on an illegal 
 enterprise, it has been held that it was not enough to defeat a 
 recovery that the lender knew the borrower's purpose. He must 
 have been in some way implicated as a confederate in the specific 
 illegal design under contemplation. It must have been a part of 
 the contract, or there must have been in some way such a combi- 
 nation of intention between the lender and borrower that the 
 money furnished should be used in aid of and to promote the 
 unlawful enterjDrise, that they hec&me particeps criminisJ' 
 
 Thus it was held in Nickel v. Sheets, Si Ind. 1, that a contract 
 for the sale of property which the purchaser intended to use for 
 gaming pur]30ses, in violation of a statute, was not void, although 
 the seller was informed at the time of the sale of the purpose for 
 which the property was to be applied." There must be knowl- 
 edge of and participation in the illegal or immoral purpose. 
 
 It would be an unwarranted perversion of common and correct 
 speech to hold that the consideration of a note which had been 
 executed in order to obtain money with which to purchase options, 
 or to put up as margins in cotton speculations, was money won by 
 plajdng at a game, or by betting on the hands of others who do 
 play, or to repa}^ money lent at the time and place of such play. 
 However much dealing in o]3tions may resemble gambling or bet- 
 ting, and demoralizing and pernicious as it may be, it cannot with 
 any degree of propriety be said to be winning or losing money by 
 playing at or betting upon any game within the meaning of the 
 
 ^Ti/ler V. Carlisle, 4 New Eng. Rep. 409. 79 Me. 219; Wavgh v. Beck, 5 
 Cent. Rep. 536, 114 Pa. 422; Tract/ v. Talmage, 14 N. T. 162; Arnot v. 
 Pittston <& E. Coal Co. 68 N. Y. 558. 
 
 ^Cummings v. Henry, 10 Ind. 109; Feineman v. Sachs, 33 Kan. 621; Samuel 
 Bowman DistUling Co. v. Natt, 84 Kan. 724; Fisher v. Lord, 2 New Eng 
 Rep. 285, 63 N. H. 514; Parsons Oil Co. v. Boyett, U Ark. 230.
 
 56 LIJVIITATIOKS UrON THE KIGUT TO CONTRACT. 
 
 statute. Statutes involving penal consequences cannot be extended 
 by construction so as to include acts not in terms forbidden, 
 merely because of their resemblance to the acts prohibited, or 
 because they may be equally demoralizing and injurious.' 
 
 The statutes against gaming, which render all wagers, bets and 
 stakes unlawful, and avoid all contracts for or on account of any 
 money wagered or bet, or any notes or other securities, when the 
 whole or any part of the consideration thereof shall be for money 
 won or lost on any game or wager, and statutes which make it a 
 criminal offense to bet upon any game, or the like, although not 
 applicable in term to the purchase of options, are sufficiently 
 indicative of the policy of the law as respects mere wagering con- 
 tracts, of whatever description or name, to require the court to pro- 
 nounce all such contracts and securities invalid in the hands of 
 those who were implicated in violating public policy by specifically 
 aiding or directly participating in the furtherance of such trans- 
 actions. They do not, however, go to the extent of destroying 
 commercial securities in the hands of innocent holders for value, 
 even though such securities may have had their inception in a 
 transaction thus condemned. 
 
 But a note given for a gambling debt is not valid and collectible 
 in the hands of an assignee who purchased with knowledge that 
 the note was given for such debt, but after a statement made to 
 him by the maker that the note was all right and would be paid, 
 where it does not appear that he relied upon or was deceived by 
 such statement." 
 
 In Iowa, a note given for " Bohemian oats " purchased pursu- 
 ant to an agreement that the transaction is of a speculative char- 
 acter, and is not based upon the real value of the grain, is not 
 void on the ground that it was given pursuant to a gambling con- 
 tract, within the meaning of Iowa Code, § 4029, as the agreement 
 does not rest upon any condition.' 
 
 Contracts for the future delivery of grain, where a delivery in 
 fact is contemplated, are legitimate, even though the parties may 
 at the same time contemplate the possibility of a settlement by a 
 
 ^Shaw V. Clark, 49 Mich. 384. 
 ^Spray v. Bvrk, 123 Ind. 565. 
 *Hauks V. Brown, 79 Iowa, 560.
 
 JFUTUKE DELIVERY OF STOCKS, GRAIN AND PRODUCE. • Di 
 
 payment of the differences between the contract price and the 
 market price without the dehvery of the grain.' 
 
 A guaranty that cattle of another person will sell in market foi* 
 4 cents per pound, made in consideration of the payment of $30^ 
 and an agreement by the other party to pay the guarantor any 
 excess in the selling price above 4 cents per pound is a gambling 
 contract." So is a contract to settle differences.^ 
 
 In Kansas the Statute covers all devices for gaming or wagering 
 and declares them criminal, and in Cohh v. Prell, 15 Fed. Rep. 
 774, the court said that the case turns upon the question whether 
 or not it was the intention of the parties that the corn should be 
 delivered. 
 
 In Kentucky the intended settlement by payment of difference 
 is held void as a wagering contract.* The device known as a 
 " bucket shop," being a mere wager on the future price of grain^ 
 is illegal.^ 
 
 In Massachusetts wagers are invalid." There, under a statute, a 
 party must be the owner of shares he attempts to sell, or he must 
 be the agent of the owner, and he must prove this fact. But this 
 will not prevent a recovery by a broker, who has rendered him- 
 self personally liable, and advances money at the purchaser's 
 request, although the seller did not own the stock when sold/ 
 
 A contract that the defendant should give orders from time to 
 time to the plaintiff for the purchase and sale, on account of the 
 defendant, of equal amounts of pork to be delivered in the future; 
 that the plaintiff sliould, in his own name, make these purchases 
 and sales on the board of trade, and should, at or before the time 
 of delivery, procure these contracts to be set off against each other 
 according to the usages of that board; that the defendant should 
 not be required to receive any pork and pay for it, or to deliver 
 any pork and receive the pay for it, but should only be 
 
 ^Tomblin v. Callen, G9 Iowa, 229; Bouglan v. Smith, 74 Iowa, 468. 
 ^First Nat. Bank of Creston v. Carroll, 8 L. R. A. 275, 80 Iowa, 11. 
 ^Murray v. OcJieltree, 59 Iowa, 435; First Nat. Bank of LyorLS v. Oskaloosa 
 
 Packing Co. 66 Iowa, 41. 
 *Lyon8 V. Rodgen (Ky.) 13 Ky. L. Rep. 211. 
 
 ^S)nithy. Western U. Teleg. Co. 84 Ky. 664; Beadles v. McElrath, 85 Ky. 230- 
 'Sampson v. Shaw, 101 Mass. 150. 
 ''Durant v. Burt, 98 Mass. 161.
 
 58 LIMITATIONS UPON THE KIGIIT TO CONTRACT. 
 
 required to pay to the plaintiff, or entitled to receive from 
 him, the differences between the amounts of money which the 
 pork was bought for and was sold for; and that the defendant 
 should furnish a certain margin and should pay tlie plaintiff his 
 commissions, — is a wagering contract/ 
 
 In Maryland a contract to purchase shares of stock, without 
 the intention to deliver, is a gambling contract; and, the con- 
 tract being for the purchase of stocks, bonds, and grain in other 
 states, deliveries to be made in Pennsylvania, the law of Penn- 
 sylvania would govern an action by the broker for money ad- 
 vanced. 
 
 AVhere a contract between principals is a mere w^agering one, 
 the broker cannot recover for services, money advanced, interest 
 on sales, the purchase of stock, etc. The fact that the broker 
 acted only in negotiating the contract, and is not suing to enforce 
 the original contract, but only for services, etc., makes no differ- 
 ence.^ 
 
 Dealings in margins are gambling contracts and not enforceable.' 
 
 In Maine wagers are invalid,^ and payment 'of differences, if 
 intended in making the contract, renders it void.* In Michigan 
 the same result follows.* 
 
 In Mississippi a contract of sale for the future delivery of cot- 
 ton is binding, unless it be shown that it was the intention of both 
 parties thereto that there should be no actual delivery, but only a 
 settlement by the payment of the difference between the contract 
 price and the market price w^hen the delivery is to be made.' 
 
 In Missouri wagers are invalid.* An action on a certilicate of 
 deposit payable to order, indorsed by the payee in consideration 
 of a gambling transaction cannot be maintained.* 
 
 A contract that A should receive the excess over, or pay the 
 
 ^Harvey v. Merrill, 5 L. R. A. 200, 150 Mass. 1. 
 
 ^Stewart v. Schall, 3 Ceut. Rep. 509, 65 Md. 289. 
 
 ^Burt V. Myer, 71 Md. 467. 
 
 ^Oilmore v. Woodcock, 69 Me. 118. 
 
 ^Bumsey v. Berry, 65 Me. 570. 
 
 ^Uregoi-y v. Wendell, 40 Mich. 432, 39 Mich. 337; Shmc v. aark, 49 Mich. 
 
 3S6. 
 ■>Clay V. Allen, 63 Miss. 426. 
 8 Waterman v. Buckland, 1 Mo. App. 45 
 ^Kansas Nat. Bank v. National Bank of Commerce, 38 Fed. Rep. 800.
 
 future; deliveky of stocks, grain and produce, 59 
 
 difference, from a certain amount compared with what B should 
 receiv^e on market sale of hogs owned by him, contemplating no 
 ■delivery or other payment, is a wager.' 
 
 The defense that the contract sued on was a wagering contract 
 must be specially pleaded. It cannot be shown under the general 
 issue." 
 
 A contract contemplating the mere payment of differences will 
 not be sustained.^ 
 
 In jSTebraska it is ruled that in determining upon the validity of 
 contracts to purchase and receive grain, although the outward 
 forms of law may have been complied with, yet where the defense 
 is that the contract is a wagering one, and not intended for the 
 actual sale and delivery of the property, it is the duty of the 
 courts to go behind the contract, and examine the facts and cir- 
 cumstances which attended the making of it, in order to ascertain 
 its true character. And where doubt is cast upon the real char- 
 acter of the transaction, the testimony of the commission merchant 
 that he never received a warehouse receipt for the grain he 
 -claimed to have purchased, and that he did not know where it 
 was stored, and that he settled the alleged losses by "ringing up" 
 in the board of trade, does not show such a bona lide purchase as 
 it became his duty to show after doubt was cast upon the matter." 
 
 Money wagered on the result of a horse race may be recovered 
 from the stakeholder by the party depositing the same, if, before 
 the stake is paid over to the Avinner, a demand has been made 
 upon the stakeholder for its return.^ 
 
 In ]S^ew Hampshire wagers are treated as void.* 
 
 In New Jersey wagers on indifferent questions are not prohibit- 
 -ed;' contracts for future delivery contemplating the payment of 
 differences only are illegal." 
 
 In New York, wagers, bets, or stakes upon any race, game, lot 
 
 ^Johnson v. Eaune, 3 West. Rep. 443, 21 Mo. App. 22. 
 
 "^Gommiskey v. Williams, 2 West. Rep. 604, 20 Mo. App. 606. 
 
 ^Kent V. MiUenberger, 13 Mo. App. 503; Ream v. Hamilton, 10 Mo. App. 
 
 577; McLean v. Stuve, 15 Mo. App. 317. 
 *SpragiM v. Warren, 3 L. R. A. 679, 26 Neb. 326. 
 ^Deaver v. Bennett, 29 Neb. 812. 
 « Winchester v. Nutter, 52 N. H. 507. 
 
 ''Trenton Mut. L. & F. Ins. Co. v. Johnson, 24 N. J. L. 576. 
 ^Flagg v. Baldwin, 38 N. J. Eq. 219.
 
 60 LIMITATIONS UPON THE RIGHT TO CONTRACT. 
 
 or chance, casualty or unknown or contingent event are unlawf ul, 
 and all contracts for or on account of any money or property or 
 thing in action so wagered, bet or staked is void,* 
 
 Contracts, where authority is actually given to defendants to 
 make an executory contract for the sale of stock deliverable at a 
 future day, being legal, it is the duty of the courts to protect 
 agents who in good faith make them for their principals, but the 
 authority must be given and the agency actually assumed. It 
 will not do to set up an agency after a loss has happened upon a 
 vague and indefinite transaction," 
 
 A contract between coffee brokers doing business upon the 
 New York Coffee Exchange and an individual, purporting to be 
 for the sale and purchase of coffee, is a w^agering contract, and 
 void if the parties intended that there should be no actual deliv- 
 ery, but merely speculations as to the future price of the commod- 
 ity, with settlements of differences, notwithstanding the exist- 
 ence of rules of the exchange rer[uiring actual delivery.' 
 
 In Ohio, all contracts to purchase food products, grain or flesh,, 
 the seller not having the property in ownership or the property 
 on hand for delivery, or when the purchaser has not the means to 
 pay, or there is no intention to deliver or receive, are declared 
 void. This condemnation is also extended to stocks and petrole- 
 um, and to sales by margins or futures either in person or by 
 broker. An offer to sell, accepted or not, is declared a crime ; as 
 is the statement of any offer to sell, or quotation of prices of mar. 
 gins, futures or options; doing which renders one an accessory and 
 punishable as a principal. The Act does not apply to legally 
 incorporated produce exchanges, chambers of commerce or boards 
 of trade, or to members thereof, or their agents, when transactions 
 are done in accordance with the rules, and executed therein ; or 
 to persons dealing with or through them, or reporting their trans- 
 actions ; and it is declared that the Act shall not apply to or inter- 
 fere with legitimate business transactions in the regular course of 
 trade.* 
 
 '3 N. Y. Rev. Stat. 1963. 
 
 ^Sterling v, Jaudon, 48 Barb. 459. 
 
 ^Miu'keii V. Bausch (Sup. Ct.) 15 N. Y. Supp. 4. See Kingsbury v. Kirwan, 
 
 77 N. Y. 612; Bigelow v. Benedict, 70 N. Y. 202; Yerkss v. Salomon, 11 
 
 Hun, 471; Cassard v. Hinnian, 1 Bosw. 207. 
 *Act May, 1885.
 
 FUTUKE DELIVERY OF STOCKS, GRAIN AND PRODUCE. Gl 
 
 (Jnder this Statute evidence that a debt was a balance in deal- 
 ings on the board of trade in margins in wheat, is not sufficient to 
 prove the transaction a gambling one.' 
 
 But any contract of future delivery, contemplating only pay- 
 ment of differences is void.'* 
 
 In Oregon wagers are not illegal.* 
 
 In Pennsylvania the Statute formerly forbade any contract of 
 sale of corporate stock or securities, when it is understood or 
 stipulated that the contract may be executed or performed at any 
 future time, exceeding five judicial days, next ensuing the date 
 of the contract. Laws of 1841, p. 398, § 6. This Act has since 
 been repealed. But all wagers are held illegal, as Penn did not 
 biing this part of the common law with him.* 
 
 Anything which induces men to risk their money or property, 
 without any other hope of return than to get for nothing any 
 given amount from another, is gambling. 
 
 Every species of gaming contract, whether of insurance by a 
 valued policy where the insured has no interest, or the purchase 
 of stocks or other commodities without the intention to deliver or 
 receive them, is unlawful in this State. 
 
 A transaction in stocks by way of margin, settlement of differ- 
 ence, and payment of gain or loss, without intending to deliver 
 stocks, is a mere wager, which the law does not sanction and will 
 not carry into effect.^ 
 
 It has been held in Pennsylvania and Kew Jersey that if the 
 customer intended only to deal in differences, and not to deliver 
 himself the actual commodities, it made no difference that the 
 broker made actual and enforceable contracts.* 
 
 If no intention existed to make a delivery and acceptance, of 
 course the transaction was illegal.' 
 
 ^Preston v. Cincinnati, 0. & H. V. R. Co. 1 L. R. A. 140, 36 Fed. Rep. 54. 
 
 *Eahn v. Walton, 46 Ohio St. 195; Edwards v. Hoefflnghoff, 38 Fed. Rep. 635. 
 
 ^Misner v. Enapp, 13 Or. 135. 
 
 *Edgell v. M'LaugMin, 6 Wheat. 176; Brua's App. 55 Pa. 294. 
 
 'Waugh v. Beck, 5 Cent. Rep. 539, 114 Pa. 432. 
 
 *Fareira v. Qabell, 89 Pa. 89; Flagg v. Baldwin, 38 N. J. Eq. 219. 
 
 ''Brua's App. 55 Pa. 294; Swartz's App. 3 Brewst. 131; Fareira v. Oahell, 89 
 
 Pa. 89; Ruchizky v. De Haven, 97 Pa. 202; Dickson v. Thomas, 97 Pa. 
 
 278; Thompson's Estate, 15 Phila. 532.
 
 62 LIMITATIONS UPON THE KIGHT TO CONTRACT. 
 
 Money loaned for the specific purpose that it shall be used bj 
 the borrower to do an act in violation of the law, — such as stock 
 jobbing, — and which has been so used, cannot be recovered back 
 by the lender. 
 
 Where a broker is privy to a wagering contract, and brings the 
 parties together for the very purpose of entering into an illegal 
 agreement, he is particeps c?'wiinis, and cannot recover for ser- 
 vices rendered or loss incurred by him in forwarding the transac- 
 tion. 
 
 A bond given to cover margins in a gambling transaction will 
 not be enforced in favor of the assignee, unless obligor precluded 
 defense by stating that he had none, to the assignee, before his 
 j)urchase from the obligee.' 
 
 In Rhode Island a contract in future delivery to be settled in 
 differences, is void.'' 
 
 In Tennessee it is a good defense to a complainant's bill to 
 recover money advanced, that the advances were made in tlie 
 purchase of cotton futures, with the distinct understanding that 
 no cotton was to be delivered or price paid therefor, and that the 
 intention of the parties was to speculate in the rise and fall of the 
 price of cotton.* 
 
 In Texas all wagers are recoverable except such as are prohib- 
 ited by statute, or are against public policy, or tend to affect the 
 interest, character, or feelings of third parties. A wager on a 
 horse-race is recoverable." 
 
 A contract for the sale of goods to be delivered at a future day 
 is valid, even though the seller has not the goods, or any other 
 means of getting them than to go into the market and buy them ; 
 but such a contract is valid only when the [parties really intend 
 and agree that the goods are to be delivered by the seller and the 
 price is to be paid by the buyer. ^ 
 
 If, under the guise of such a contract, the real intent of the 
 parties be merely to speculate in the rise or fall of prices, the 
 
 1 Waugh v. Beck, 114 Pa. 422, 5 Cent. Rep. 539. 
 
 ^Flagg v. Gilpin, 17 R. I. . 
 
 ^Beadles v. Ow?iby, 16 Lea, 424; McGreio v. City Produce Exch. 85 Tenn. 57'?; 
 
 Dunn V. Bell, 85 Tenn. 581. 
 *Kirkland v. Randon, 8 Tex. 10; Bass v. Peevey, 22 Tex. 395. 
 ^Seeligson v, Lewis, 65 Tex. 215; Floyd v. Paterson, 72 Tex. 202.
 
 COURTS, IN MATTER OF CONTRACT, WILL PROTECT THE PUBLIC. 63 
 
 whole transaction constitutes not king more than a wager, is con- 
 trary to public policy, and is void.' 
 
 Under the Statute of Virginia, Code, 1873, jd. 984, § 2, as under 
 that of Xew York, 1 Kev. Stat. I^J". Y. title 8, art. 3, § 8, p. 662, 
 money advanced solely for the purpose of carrying "cotton futures," 
 for which the party advancing has contracted with another, cannot 
 be recovered, wliere the payment of " differences " only was in- 
 tended.' The decision in Brown v. Speyers, 20 Gratt. 96, does 
 not conflict with this construction of the Yiro-inia statute. 
 
 In Wisconsin whatever form these engagements assume, if 
 neither party actually intend to sell and deliver or buy and pay 
 for the article specified, but only mean to call for and pay the- 
 diiference between the contract price and the price at a future 
 day, the transaction is not enforceable.^ 
 
 § 3. Courts, iu Matter of Contract, Will first Protect the 
 Public — Legislative Action. — It may be regarded as well settled 
 that, in the law of contracts, the first purpose of the courts is to 
 look to the welfare of the public, and that if tlie enforcement of 
 an agreement would be inimical to its interests, no relief can be 
 granted to the party injured, although it might result bene- 
 ficially to the party who may violate the agreement. 
 
 That a person executed a note given on an illegal consideration, 
 with full knowledge of all the facts, is of no moment. The 
 defense he makes is not allowed for his sake, but to maintain the 
 policy of the law.'' 
 
 Contracts to mislead the public in imjjosing on them a spurious 
 article or unqualified person," contracts in fraud of the revenue or 
 to pervert elections or to bribe public officers, compounding fel- 
 onies, and gambling contracts, or agreements in violation of law 
 
 ^Seeligson v. Lewis, 65 Tex. 215. 
 
 '^Emhrey v. Jemison. 131 U. S. 336, 33 L. ed. 172; Bigeloio v. Benedict, 70 
 N. Y. 202, 206; Story v. Salomon, 71 N. Y. 420. 422; Kingsbury v. Kir- 
 wan, 77 N. Y. 612. 
 
 ^Everingham v. Meigham, 55 Wis. 354; Lowry v. Dillman, 59 Wis. 197, 
 
 *Emhrey v. Jemison, 131 U. S. 336, 33 L. ed. 172. 
 
 ''Pacific Guano Co. v. Moran, 66 Ala. 582; Ryan v. Scfiool List. Wo. 13 of 
 Dakota County, 27 Minn. 433; Wells v. People, 71 111. 533: Steicartson v. 
 Lat?irop, 12 Gray, 52.
 
 64 LIMITATIONS UPON THE KIGHT TO CONTRACT. 
 
 or moralitj, and by statutes, all wager or gambling contracts, all 
 come within the restriction.' 
 
 Contracts whose tendencies violate moral principles, are disap- 
 proved on the grounds of public policy.' 
 
 Contracts which are based upon immoral considerations or 
 which require the performance of immoral acts are void. The 
 common law proliibits anything which is unjust or contra honos 
 mores. ^ 
 
 Neither one who knowingly rents a house nor he who knowingly 
 furnishes it to be used for the purposes of prostitution can recover 
 either the rental value or the price of the goods.* 
 
 When satisfied that a transaction is demoralizing in its charac- 
 ter, a court will not hesitate to hold all contracts or promises based 
 thereon void as against public morals.* 
 
 ^Bunn V. Biker, 4 Johns. 436; Fates v. Foot, 12 Johns. 1 ; Smith v. Mc3faster, 2 
 Brown, 182; Sujayze v. llnll, 8 N. J. L. 6G; Seidenhender y . Charles, 4 Serg. & 
 R. 156; Myersv. Slate, 1 Conn. 504; Pars. Cont. (7th ed.) *746, citing Schif- 
 ner v. Gordon, 12 East, 304; Belding v, Pitkin, 2 Cai. 149; Springfield Bank 
 V. Merrick, 14 Mass, 322; Rvsnell v. De Grand, 15 Mass. 35; Allen v. Res- 
 cous, 2 Lev. 174; Fletcher v. Orcott, 1 Selden, 56; Holman v. Johnson, 
 Cowp. 146; Gaslight Co. v. Turner, 7 Scott, 779; Witherell v. Jones, 8 
 Barn. & Ad. 221; Fivaz v. Nicholls, 2 C. B. 501; Simpscm v. Bloss, 7 
 Taunt. 446; Robinson v. Patterson, 71 Mich. 141; Cook v. Phillips. 56 N. 
 Y. 310. L^rd v. Chadbourne, 42 Me. 429; R>by v. West, 4 N. H. 285; Arm- 
 strong V. Toler, 24 U. S. 11 Wheat. 248, 6 L. ed. 468; McGregor v. Don- 
 nelly, 67 Cal. 149: Wheeler v. Russell, 17 Mass. 258. 
 
 ^Beldivg v. Pitkin, 2 Cal. 149; White v. Franklin Bank, 22 Pick. 184; Com. 
 V. Waterman, 122 Mass. 43; Wilson v. Ensworth, 85 Ind. 399; Bredin's 
 App. 92 Pa. 241; State v. Savoye, 48 Iowa, 562; State v. Murphy, 6 Ala. 
 765; Walker V. Gregory, 36 Ala. 180; Forsythe v. State, 6 Ohio, 19; Cole 
 V. People, 84 111. 215; Sherman v. Barrett, 1 McMull. L. 147; Drennan 
 V. Douglas, 102 111. 341; Anderson v. Com. 5 Rand. (Va.) 627; Hanks v. 
 Naglee, 54 Cal. 51 ; Broion v. Langford, 3 Bibb, 497. 
 
 *Allen v. Roscoxis, 2 Lev. 174; Fletcher v. Harcott, Hutton, 56; Holman v. 
 Johnson, Cowp. 343; Printing Co. v. Sampson, L. R. 19 Eq. 465; Hutchins 
 V. Weldin, 13 West. Rep. 349, 114 Ind. 80; Men-ick v. Bank of Metropolis, 
 8 Gill, 59; Dumont v. Dufore, 27 Ind. 263; Root v. Stevenson, 24 Ind. 115; 
 Forsythe v. State, 6 Ohio, 19; Fores v. Johns, 4 Esp. 97; CW. v. Water- 
 man, 122 Mass. 43; White v. Franklin Bank, 22 Pick. 1&4; Fiisora v. 
 Ensworth, 85 Ind. 399; -Sto^e v. Savoye, 48 Iowa, 562; Belding v. Pitkin, 
 2 Cai. 149. 
 
 ^i??"% V. Jordan, 122 Mass. 231; ^SwtY^ v. ^tefe, 6 Gill, 425; Mackbee v, 
 G'n:/^;;/^, 2 Cranch, C. C. 336; Hanauer v. iJoarae, 79 U. S. 12 Wall. 342. 
 20 L. ed. 439; Dyett v. Pendleton, 8 Cow. 727; State v. Potter, 28 Iowa, 
 557; Bowery \. Bennet, 1 Campb. 348; Pierce y. Brooks, L. R. 1 Exch. 
 213; Jennings Y. Throgmorton, Ryan & M. 251; Smith v. White, L, R. 1 
 Eq. 626; Hamilton v. Granger, 5 Tlurlst. & N. 40; Com. v. Harrington, 3 
 Pick. 26; -Sto^e v. Potter, 30 Iowa, 587. 
 
 *Zyon V. TFaZc?o, 86 Mich. 353; Shaw v. CTarA;, 49 Mich. 387; Mutual Ben.Asso. 
 of Michigan'^. Hoyt, 40 Mich. 473; Timmerman v. Bidwell, 62 Mich. 205.
 
 <30URTS, IN MATTER OF CONTRACT, WILL PROTECT THE PUBLIC. 65 
 
 It is void as to every person whose riglits would be in any man- 
 ner involved if it were legal.' 
 
 A contract to sell letters written by persons afflicted with diseases 
 to one advertising to cure such diseases is contra honos mores, and 
 void upon grounds of public policy.'' 
 
 The right to recover back money paid to a real estate broker 
 who has concealed the fact that he was acting for both parties 
 rests upon grounds of public policy, and not upon the advantage- 
 ous or disadvantageous character of the sale.' 
 
 A contract that one selected to give his best judgment between 
 two adverse parties shall be paid in proportion to the sum awarded 
 by him against one of the parties, is void as against public policy.* 
 
 The rules that declare certain contracts are void as against pub- 
 lic policy, are not to be arbitrarily extended ; for if there is one 
 thing more than another that public policy requires it is that per- 
 sons of full age and competent understanding shall have the 
 utmost liberty, at all consistent with the public good, of contract- 
 ing, and that their contracts when entered into freely and volun- 
 tarily, shall be held sacred, and shall be enforced by courts of 
 justice. This freedom of contract is not lightly to be interfered 
 with.' Nor will the illegal contract defeat an action for an injury, 
 disconnected with the transaction itself. Thus the rule that courts 
 will not enforce immoral or illegal claims cannot affect the liability 
 of a railroad company for constructing and operating an elevated 
 railway in the street, in front of a house used as a place of prosti- 
 tution, when such elevated railway depreciates the rental value of 
 tha house for ordinary purposes. The occupation of the house for 
 purposes of prostitution does not justify the injury to its value 
 g-enerally. The particular use of the house has nothing to do with 
 the injmy suffered by its owner from the elevated roadway, but 
 the injury is wholly independent of such use. The claim for dam- 
 ages does not rest upon the occupation for the special purpose, nor 
 does its enforcement sanction nor encourage such use.' 
 
 ^ Kellogg T. Howes, 81 Cal. 170. 
 
 ^Rice V. Williama, 33 Fed. Rep. 437. 
 
 ^Cannell v. Smith (Pa.) 12 L. R. A. 395. 
 
 * Thomas v. Caulkett, 57 Mich. 392. 
 
 ^Egerton v. Brownlow, 4 H. L. Cas. 1 — 250; Sir G. Jessel, M. R. in Pnnt- 
 
 ing & Numerical Registering Co. v. Sampson, 19 Eq. 462, 465. 
 ^Lawrance ^.Metropolitan ElexatedR. Co. 13 L. R. A. 102, 126 N. Y. 483; Ely 
 
 V. Niagara County Supers. 36 N. T. 297. 
 
 5
 
 CHAPTER 11. 
 
 CONTRACTS AS AFFECTED BY STATUTE. 
 
 § 4. Contracts to Contravene a Statute Void. 
 
 5. Contract Void though Object 7iot Expressly Prohibited by Stat- 
 
 ute, 'when. 
 
 6. Statutes simply Directory do not Invalidate Contracts. 
 
 7. Statutes Protecting the Public from Imposition and Empiri- 
 
 cism; Exercise of Police Power. 
 
 a. Statutes Requiring Inspection, etc,, of Goods. 
 
 b. License to Practice Medicine. 
 
 c. Solicitation to Purchase Liquors — Illegal Sale. 
 
 d. Violating Foreign Laius. 
 
 e. Sunday Laics. 
 
 8. Subject Matter and Purpose of Legislation Defernmie Effect 
 
 on Contracts. 
 
 a. Intent of Legislators must Control; Homestead Laws. 
 
 b. Penalty for Performing Marriage Ceremony. 
 
 c. Usury Laws. 
 
 d. Internal Revetiue Laws. 
 
 e. Excessive Loans by Banks. 
 
 f. Offering Unbranded Goods. 
 
 g. Unlicensed Peddler, Commercial Fertilizers. 
 
 § 4. Contracts to Contravene a Statute Void. — The rule 
 that a contract made for the purpose of furthering any matter or 
 thing prohibited by the statute, or to aid or assist any party 
 therein, is void, applies to every contract founded on a transaction 
 "inalwrn in se, or which is prohibited by statute on the ground of 
 public policy.' 
 
 A contract founded on an act which is prohibited by statute, 
 under a penalty, is void." 
 
 Wherever the consideration which is the ground of the prom- 
 
 ^ Gardner v. Tatum, 81 Cal. 370. 
 ^Milton V. Hayden, 32 Ala. 30.
 
 (JONIKACTS TO CONTRAVENE A STATUTE VOID. 67 
 
 isc, or tlie promise which is the consequence or effect of the con- 
 sideration, be unlawful, tlie whole contract is void. * 
 
 A contract for the accomplishment of something forbidden by 
 a statute, in the sense of making it unlawful for anyone to enter 
 into such a contract, is void.^ Contracts which have in contem- 
 plation any act contrary to the statute, are void.' A contract 
 which contemplates the performance of acts against public policy? 
 or which are forbidden by statute, is absolutely void.* A 
 promise made in consideration of an act which is forbidden by 
 the United States Constitution is void,"" and no contract can be en- 
 forced if it is in violation of the laws of the United States, or is 
 in contravention of the public policy of the government, or in 
 conflict with subsisting treaties. * 
 
 When a contract is forbidden by the common or statute law, no 
 court, either of law or equity, will lend its assistance to give it 
 effect. ' 
 
 That which the law prohibits, either in terms or by aflixing a 
 penalty to it, is unlawful ; and it will not promote in one form 
 that which it declares wrong in another. " 
 
 Contracts to do an illegal act or to omit a legal public duty are 
 void. ' 
 
 1 Wolverton v. Davin, 1 Bulst. 38; Bank of United States v. Owem, 27 U 8 2 
 
 Pet. 527, 7 L. ed. 508. 
 ^Qriffith V. Wells, 3 Denio, 226; Burkholdcr v. Beetem, 65 Pa. 496; Sumner v. 
 
 Summers, 54 Mo. 340; Adams v. Bartktt, 5 Ga. 404; Ashburner v Purrish 
 
 81 Pa. 52; Coppell v. Hall, 74 U. S. 7 Wall. 558, 19 L. ed. 248; Brown v. 
 
 Tarkington, 70 U. S. 3 Wall. 381. 18 L. ed. 257; Hodsdon v. Wilkins, 7 Me. 
 
 113; Stebbinsv. Leoioolf, 3 Cush. 137. 
 
 ^Caldwell v. Bridal, 48 Iowa, 15; Tenney v. Foote, 4 111. App. 594; Prescott v. 
 
 Battersby, 119 Mass. 285; Woods v. Armstrong, 54 Ala. 150; Grdl v. Levy 
 
 16 C. B. N. S. 79; i2e Cork & Y. B. Co. L. R. 4 Ch. App. 748. 
 *Greenhood, Pub. Pol. Rule 2, etc.; Metcalf, Cont. (Heard's ed. 1888,) pp. 
 
 301, 302; Oscanyan V.Winchester Rep. Arms Co. 103 U. S. 267, 26 L. ed. 
 
 542; Wight v. Rindskopf, 43 Wis. 344; De Wit v. Lander, 72 Wis. 120; 
 
 Arnot V. Pittston & E. Coal Go. 68 N. Y. 558; Burlington, G. R. & N. B. 
 
 Co. V. Northwestern Fuel Co. 31 Fed. Rep. 652; Dunham v. Presby, 120 
 
 Mass. 285; Valentine v. Stewart, 15 Cal. 387, 388; Bixby v. Moor, 51 N. 
 
 H. 402; Solomon v. Dreschler, 4 Minn. 278; IngersoU v. Randall, 14 Mion. 
 
 400. 
 ^Graig v. Mo. 29 U. S. 4 Pet. 410, 7 L. ed. 903. 
 ^Kennett v. Chambers, 55 U. S. 14 How. 38, 14 L. ed. 316. 
 "> Indianapolis, D. & S. R. Co. v. Ei-vin, 6 West. Rep. 104, 118 111. 250. 
 8 Waugh v. Beck, 5 Cent. Rep. 540, 114 Pa. 422. 
 » PearsoU v. Chapin, 44 Pa. 9.
 
 68 CO>'TKA0TS AS AFFECTED BY STATUTE. 
 
 If one promises to do a tliinc^ that is unlawful, such promise 
 is void/ 
 
 Every act is now re<^arded as unlawful which the law forbids to 
 be done ; and every contract is declared void which contravenes 
 any legal principle or enactment," 
 
 Any act forbidden by the common law cannot be the foundation 
 of a valid contract.' 
 
 § 5. Contract Void though Ohject not Expressly Prohibited 
 by Statute, wlien. — This rule declaring such contracts illegal 
 applies if necessary to accomplish the purpose of the statute 
 whether the statute contains an express prohibition of an attempt 
 to contravene it or not." 
 
 Every contract made for or about any matter or thing which is 
 prohibited and made unlawful by any statute, is a void contract, 
 thouo-h the statute itself does not mention that it shall be so, but 
 only inflicts a penalty on the offender, because a penalty implies 
 a prohibition, though there were no prohibitory words in the 
 statute/ 
 
 It cannot be the foundation of a right as between the immedi- 
 ate parties." And cannot be enforced in any court sitting in the 
 State.' 
 
 » Bank of U. 8. v. Owens, 37 U. S. 2 Pet. 527, 7 L. ed. 508. 
 
 « Aubert v. Maze, 2 Bos. & P. 374; Oannan v. Bn/ee, 3 Barn. & Aid. 183; 
 
 Oreenough v. Balch, 7 Me. 463; Whife v. Buss, 3 Cush. 450; Granson v. 
 
 Goss, 107 Mass. 440, 441; Tyler v. Larimore, 19 Mo. App. 445; Suits v. 
 
 Taylor, 20 Mo. App. 160. 2 West. Rep. 579. 
 « Reynolds v. NichMs, 12 Iowa. 398; Wheeler v. Russell, 111 Mass. 282. 
 * Seidenbender v. Charles, 4 Serg. & R. 156; Earned v. Andrews, 106 Mass. 
 
 435; Myers v. States, 1 Conn. 502; Stanley v. Nelson, 28 Ala. 514; Biddis 
 
 V. James, 6 Binn. 321; Morris Bun Coal Go. v. Barclay Coal Co. 68 Pa. 
 
 173; Barton v. Ilufjhes, 2 Brown (Pa ) 48; Woods v. Armstrong, 54 Ala. 
 
 150; Wilson v. Spencer, 1 Rand. 76; Prescott v. Battersby, 119 Mass. 285; 
 
 Tuxhury v. Miller. 19 Johns. 311 ; People v. Corporation of Albany, 11 Wend. 
 
 539; Sharp v. Teese, 9 N. J. C. 438; Elkins v. Parkhxirst, 17 Vt. 105; 
 
 Bank of United States v. Oicens, 27 U. S. 2 Pet. 527, 7 L. ed. 508; Pierce 
 
 V. Mans, 61 Pa. 415; Waite v. Harper, 2 Johns. 386; Booth v. Bank of 
 
 England, 7 Clark & F. 509; Ex parte Mackay, L. R. 8 Ch. 643; Fuller v. 
 
 Bame, 18 Pick. 472; Wiggins v. Bush, 12 Johns. 306. 
 » Jones V. Surprise, 64 N. H. 243, 4 New Eng. Rep. 292; Bartlett v. Vinor, 
 
 Carth. 252, Skin. 322; Bliss v. Brainard, 41 N. H. 256. 268; Smith v. 
 
 Godfrey, 28 N. H. 384; Caldwell v. Wentworth, 14 N. H. 431; Lewis v. 
 Welch, 14 N. H. 294; Pray v. Burbank, 10 N. H. 377; Martin v. Hodge, 
 
 47 Ark. 378; Waugh v. Beck, 5 Cent. Rep. 540, 114 Pa. 423. 
 « New V. Walker, 6 West. Rep. 872, 108 Ind. 365. 
 ' Cooper Mfg. Go. v. Ferguson, 113 U. S. 727, 38 L. ed. 1137.
 
 WHEN STATUTES ARE SIMFLY DIKECTOKY. '^"-^ 
 
 Contracts to secure the vote of a creditor for the discharge of a 
 bankrupt are void,as are all contracts tending to evade the bankrupt 
 law.' An agreement by which the creditor of an insolvent is to re- 
 ceive money, by which his vote for the assignee is affected, is ille- 
 cral » Whether the contract is with the debtor or a stranger, it is 
 equally void, ' and whether paid from debtor's assets or else- 
 where. * T ■ 4- 
 
 But a promise to prefer a creditor in case of insolvency is not 
 invalid where the statutes permit preferences by insolvents. 
 And the validity of a mortgage executed by a wife personally 
 and not through the agency of her husband, will not be affected 
 by his intention to give unlawful preference to the mortgagee and 
 have the wife go into insolvency in fraud of the insolvent laws, it 
 the mortgagee had no knowledge of the wife's insolvency or of 
 the husband's intention. ' 
 
 Where a debtor and his general creditors enter into a contract 
 of settlement, to which all are understood to be parties, a secret 
 agreement made by the debtor, or on his behalf, favoring a par- 
 ticular creditor, to secure his assent, is void. ' 
 
 8 6 Statutes Simply Directory do not Invalidate Contracts. 
 ■ —The rule is universally accepted, that if a statute prohibits a con- 
 tract in the sense of making it unlawful for anyone to enter into it, 
 such a contract, if made, is whoUy void and cannot be enforced. 
 
 ^. . . ir-7;.,. 1Q Til Ann "iOri • Blasdel V. Fowle, 120 Mass. 447 ; Wil- 
 
 ' ^''''TU-i^iwii^'ul-m^^^^ 3 Woods. 631; Claflin v. 
 
 derson L. R. 20 Eq. 65; Ex parte McKay, L. R. 8 Ch. 64^, Mliou \. 
 
 Ew/tardso/i, L. R. 5 C. P. 744. .„„ „ ^, n , 
 
 r^m^-fi^hi fi TsTpw Enff Rep 341, 147 Mass. 123; MarhU v. Grant, 
 
 ^?rVe m-^maMrSe\ f2oVass: 447; Payr^ -/^-> ^ Cai. 213; 
 
 Ricev Maxwell, 13 Smedes & M. 289; Austin v. Markham, 44 Ga. 161; 
 
 Sharp V. Teese, 9 N. J. L. 438. r . n ^t ^' ^^a 
 
 » Bank of Oom^nerce v. Hoeber, 11 Mo. App. 475; Bell v. Leggett, 7 N. \ . 1 -6; 
 
 Higghis v. Pitt, 4 Excb. 312. 
 * Hall V. Dyson, 17 Q. B. 785. 
 » FecKfieimer v. Baum, 43 Fed. Rep. 719. 
 6 5/-%^ V. Mfes, 152 Mass. 249. ^; ^ on ^ v 1os. 
 
 b7irg V. Bowman, 103 Mass. 325.
 
 iO CO^TKACTS AS AFFECTED BV STATUTE. 
 
 But it is not always clear whether a statute forbidding the doing 
 of a thing,' or imposing a penalty,^ or enjoining the mode of doing 
 it, is prohibitory so as to make any conti-aet in violation of it abso- 
 lutely void, or whether it is directory in its purpose, and does not 
 necessarily invalidate the contract. The best considered and clear- 
 est expressed decisions recognize a clear distinction between these 
 two class of cases, although in deciding special cases it is often 
 not alluded to and general propositions are stated not apparently 
 regarding the distinction. It will be found however that, with 
 perhaps a few exceptions, the cases will fall in line under the 
 foregoing and following rules. 
 
 § 7. Statutes Protecting the Public from Imposition and 
 Empiricism ; Exercise of Police Power. 
 
 a. Statutes Requiring Inspection, etc., of Ooods. — Statutes 
 in the United States and in England have been enacted in sub- 
 stance that goods should only be sold in certain measures or in a 
 certain manner, or after being inspected or branded by public 
 officers, and it has been held that contracts of sale which do not 
 meet the requirements of such statutes are absolutely void, and 
 that a contract in violation of a statute imposing a penalty for 
 the sale of goods by unsealed scales or measure is void.' The pur- 
 pose of such statutes is to protect the buyer from the imposition 
 of the seller, a purpose which could not be accomplished unless 
 the contracts are held void, and therefore the courts are bound to 
 assume this to have been the legislative intent.* 
 
 b. License to Practice Medicine. — A contract made to render 
 medical services with one who has not obtained a certificate show- 
 ing that he possesses the necessary qualifications, is contrary to pub- 
 lic policy and void.^ 
 
 A contract to pay a fee for services rendered by a physician 
 who is not licensed is void in its inception, where a statute pro- 
 
 ' Wheeler v. Hawkins, 116 Ind. 515. 
 
 « De Mers v. Daniels, 39 Minn 158. 
 
 ^Bisbee v. McA/len, 39 Minn. 143. 
 
 *£Mee v. McAllen, 39 Minn. 143; Faircloth v. DeLeon, 81 Ga. 158; Miller v. 
 
 Post, 434, and cases cited; Lihbey v. Boxoney. 5 Allen, 399; Saxoyer v. 
 
 Smith, 109 Mass. 220, and cases cited. Benj., Sales, p. 
 ^Gardner v. Tatum, 81 Cal. 370.
 
 SOLICITATION TO PUKCHASE LIQUORS ILLEGAL SALE. 71 
 
 liibits liim from practicing for fee or reward.' Under an Act to 
 protect the people from empii'icism, and to elevate the standing 
 •of the medical profession, declaring it unlawful for a person to 
 furnish medicines as a practicing physician, unless authorized to 
 practice in accordance with the provisions of the statute, one so 
 furnishing medicine cannot recover in a civil action for medicine 
 so prescribed as a physician." 
 
 It is within the police power of the State to prescribe rules and 
 tests for the ascertainment of the qualifications of applicants for 
 authority to practice medicine as a livelihood.^ Such a statute 
 may include one who as a physician merely gives electric treat- 
 ments.* 
 
 Such statutes, however, do not confer upon the examining 
 board the right or power to absolutely disregard the learning and 
 qualitications of an apphcant, or to unreasonably or arbitrarily 
 reject his claims, or, at will, grant or refuse its certificate or 
 license.' 
 
 But if a physician acts under a mistake of fact as to the record 
 of his license, he is not liable under the statute to its penalties;' 
 ^nd a physician who, in consequence of the fact that the proper 
 officer did not have a book in which he could register, did not 
 succeed in doing so, as required by law, but who was called to 
 attend a patient and did so, practicing without such register, can 
 recover his fee, where it appears that he did register as soon as 
 the book was obtained by the officer, and within the date a writ 
 of mandate could have been effective upon the officer. ' 
 
 c. Solicitation to Purchase Liquors — Illegal Sale. — Under 
 a statute making it an offense for a person to solicit or take orders 
 
 ^Puckett V. Alexander, 3 L. R. A. 43, 103 N. C. 95. 
 
 - Underwood v. Scott, 43 Kao. 714; Harrison v. Jones, 80 Ala. 412; State v. 
 
 State Board of Medical Exmrs. 34 Minn. 387; Puckett v. Alexander, 3 L 
 
 R. A. 43, 103 N. C. 95. 
 ^Brooks V. State, 88 Ala. 123; People v. Fields, 53 Hun, 65; Martino v. Kirk, 
 
 55 Hun, 474; Ex parte McNulty, 77 Cal. 164; State v. Raqland, 31 W. 
 
 Va. 453; Orr v. Meek, 9 West. Rep. 241, 111 Ind. 40; Williams v. People, 
 
 9 West. Rep. 461, 121 111. 84; People v. Phippin, 14 West. Rep. 247, 70 
 
 Mich. 6; Richardson v. State, 47 Ark. 562. 
 ^Davidson v. Bohlman, 37 Mo. App. 576. 
 '^Pettit V. StaU, 28 Tex. App. 240. 
 ^State V. Fleischer, 41 IVIinn. 69. 
 "I Parish y. Foss, 75 Ga. 439.
 
 ( '2 CONTRACTS AS AFFECTED BY STATUTE. 
 
 for spirituous liquors in the State, to he delivered at a place without 
 the State, having cause to believe the intent is to bring them within 
 the State for sale, a contract made in violation of thet satute is 
 void ; * and the seller is chargeable with the knowledge of his 
 agents. " 
 
 Where the hiring of a clerk and bookkeeper, by a grocery 
 keeper, who also sold liquor illegally, was for one entire consider- 
 ation, the employe cannot recover anything on his contract of 
 employment, even upon quantum meruit for services in the gro- 
 cery part of the business.^ 
 
 But where a corporation sold and delivered beer to the keepe:' 
 of a house of prostitution, and the agent knew his business, but 
 did not know just what was to be done with it, but supposed it 
 was to be used or sold in the brothel, a recovery was allowed.* 
 
 But the owner of a building willfully permitting the illegal 
 sale within it of liquor, cannot recover rent for its use." 
 
 The court will not recognize a contract between attorneys and 
 other persons engaged in the illegal sale of liquor to defend all 
 cases brought against the latter for violations of prohibitory liquor 
 laws, in consideration of a certain monthly compensation; as such 
 a contract is against public policy.* 
 
 Wherever an indictment can be sustained for the illegal sale of 
 liquors, there the price cannot be recovered. '' 
 
 But the vendor's mere knowledge that the vendee intends ■"© 
 make an unlawful use of the goods sold is not sufficient to invalidate 
 the sale. * 
 
 A sale of cigars is not rendered illegal by knowledge of the- 
 seller that the purchaser will dispose of them for the advancement, 
 of his illegal business in trafficking in intoxicating liquors. * 
 
 > Lang v. Lynch, 38 Fed. Rep. 489. 
 
 « Fisliel y. Bennett, 5 New Eng. Rep. 615, 56 Conn. 40. 
 
 ^Sullivan v. Eergan, 9 L. R. A. 110, 17 R. I. . 
 
 *Anhauser-Busch Brew. Asso. v. Mason, 9 L. R. A. 506, 44 Minn. 318. 
 
 ^Mitchell V. Scott, 62 N. H. 596. 
 
 ^Bowman v. Phillips, 41 Kan. 364. 
 
 ' Bliss V. Brainard, 41 N. H. 256, 268; Smith v. Oodfrey, 28 N. H. 384; Cald- 
 well V. Wentworth, 14 N. H. 431; Lewis v. Welch, 14 N. H. 294; Pray v. 
 Burbank, 10 N. fl. 377; Jones v. Surprise, 4 New Eng. Rep. 293, 64 N^ 
 H: 243; Fisher v. Lord, 2 New Eng. Rep. 285, 63 N. H. 514. 
 
 ' Kerioin v. Doran, 29 Mo. App. 397. 
 
 « Delamna v. Hill, 65 N. H. 94.
 
 VIOLATING FOREIGN STATUTE. id 
 
 d. Tiolating Foreign Laws. — Xo recovery can be had for 
 iiitoxicatiug liquors shipped into a State to a pharmacist, with the 
 knowledge that he is forbidden by the state law to sell them as a 
 beverage, where the seller, in order to aid him in evading the 
 statute, forwards some of the liquors in concealed packages to a fic- 
 titious assignee, and furnishes false invoices to aid him in the 
 commission of perjury, as well as in other violations of the law, 
 although the sale of liquors in itself would be legal. ' 
 
 But the law, that an executory contract which contemplates the 
 violation of the law of the jjlace or State where the act or thing 
 contemplated by the contract is to be done or performed is void, 
 does not apply where the party against whom it is sought to have 
 the contract adjudged void did not know of any law or policy of 
 such State, the violation of which was contemplated by the other 
 party, or of the violation by the latter of any such law or policy. " 
 
 In State' v. O'JS^ed, 1 Xew Eng. Kep. 775, 58 Yt. 140, and 
 three other cases heard together, the first and most important ques- 
 tion presented is, whether or not the intoxicating liquors in 
 question were, in the first two cases, in contemplation of law sold^ 
 or furnished, by the respondent in the county of Rutland and 
 State of Vermont; or, in the last two cases, held and kept for the 
 purpose of sale, furnishing or distribution contrary to the statute, 
 within said county and State. The answer depends upon whether 
 the National Express Co. by which some of said liquors were 
 delivered to the consignees thereof, and in whose possession the 
 remainder were found and seized before the delivery, was in law 
 the agent of the vendors or of the vendees. If the purchase and 
 sale of the liquors was fully completed in the State of Xew York, 
 so that upon delivery of them to the express company for trans- 
 portation the title vested in the consignees, as in the case of a 
 completed and unconditional sale, then no offense against the laws 
 of Vermont has been committed. If, on the other hand, the sale 
 by its terms could only become complete so as to pass the title in 
 the liquors to the consignees upon the doing of some act, or the 
 fulfilling of some condition precedent after they had reached Rut- 
 land, then the law is violated. 
 
 ' Kohn V. Metcher, 43 Fed. Rep. 641. 
 « Wagner v. Breed, 29 Neb. 720.
 
 ii CONTKACTS AS AFFECTED BY STATUTE. 
 
 The liquors were ordered by residents of Yermont from dealers 
 doing business in the State of l^ew York, who selected from their 
 stock such quantities and kinds of goods as they thought proper, 
 in compliance with the terms of the orders, put them up in pack- 
 ages, directed them to the consignees, and delivered them to the 
 express company as a common carrier of goods for transporta- 
 tion, accompanied with a bill or invoice for collection. The ship- 
 ment was, in each instance, C. O. D., and the cases show that the 
 ■effect of the transaction was a direction by the shippers to the 
 express company not to deliver the goods to the consignees 
 except upon payment of the amount specified in the C. O. D. bills, 
 together with the charges for the transportation of the packages 
 and for the return of the money paid. This direction was under- 
 stood by the express company, which received the shipments 
 coupled therewith. 
 
 Whether or not, and when the legal title in property sold passes 
 from the vendor to the vendee, is always a question of the inten- 
 tion of the parties, which is to be gathered from their acts and all 
 the facts and circumstances of the case taken together. 
 
 In order that the title may pass, as was said by Morton, -/!, in M<i- 
 ^on V. Thoiupson, 18 Pick. 305: "The owner must intend to part 
 with his property, and the purchaser to become the immediate 
 owner. Their two minds must meet on this point, and if any- 
 thing remains to be done before either assents, it may be an 
 inchoate contract, but it is not a perfect sale." The authorities 
 seem to be uniform on this point; and the acts of the parties are 
 regarded as evidence by which the court or jury may ascertain 
 and determine their intent.' Wlien there is a condition precedent 
 attached to the contract, the title in the property does not pass to 
 the vendee until performance or waiver of the condition, even 
 though there be an actual delivery of possession. ^ The Yer- 
 mont cases to the above points are referred to in Roberts' Digest, 
 610, et seq., and need not be specially reviewed here. 
 
 In the cases under consideration the vendors of the liquors 
 shipped them in accordance with the terms of the orders received, 
 and the mode of shipment was as above stated. They delivered 
 
 ' Benj. Sales, §§ 311, 319. note c. 
 2 Benj. Sales, § 330, note d.
 
 VIOLATING FOKEIGN STATUTE. 
 
 75 
 
 tlie packages of liquors, proper!}' addressed to the several persons 
 •ordering the same, to the express company, to be transported by 
 "that eomj)any and delivered by it to the consignees upon fulfill- 
 ment by them of a specified condition precedent, namely: pay- 
 ment of the purchase price and transportation charges and not 
 ■otherwise. Attached to the very body of the contract and to the 
 act of delivery to the carrier was the condition of payment before 
 ■delivery of possession to the consignee. With this condition 
 unfulfilled and not waived, it would be impossible to say that a 
 •delivery to the carrier was mtended by the consignor as a delivery 
 to the consignee, or as a surrender of the legal title. The goods 
 were intrusted to the carrier to transport to the place of destina- 
 tion named, there to present them for acceptance to the consignee 
 -and, if he accepted them and paid the accompanying invoice and 
 the transportation charges, to deliver them to him; otherwise to 
 notify the consignor and hold them subject to his order. It is 
 difficult to see how^ a sellei* could more positively and unequivo- 
 cally express his intention not to relinquish his right of property 
 ■or possession in goods, until payment of purchase price, than by 
 this method of shipment. The case is undistinguishable in prin- 
 ciple from that of a vendor who sends his clerk or agent to deliver 
 the goods, or forward them to, or make them deliverable upon 
 the order of his agent, with instructions not to deliver them 
 ■except on payment of the price, or performance of some other 
 specified condition precedent by the vendee. The vendors made 
 the ex])ress company their agent in the matter of the delivery of 
 the goods with instructions not to part with the possession of them, 
 ■except upon prior or contemporaneous receipt of the price. The 
 •contract of sale therefore remained inchoate or executory, while 
 the goods were in transit or in the hands of the express company, 
 and could only become executed and complete by their delivery to 
 the consignees. There was a completed executory contract of sale 
 in New York; but the completed sale was or was to be in Vermont. 
 The authorities upon the above points and principles are nu- 
 merous.* See text and notes of Benjamin on Sales, 4th Am. ed. 
 bk. 2. 
 
 *EveD the delivery of the goods on a sale, with the expectation of receiving 
 immediate payment, is not an absolute delivery, and no title vests in the pur-
 
 76 CONTKACTS AS Al'FKOTKD liV STATLTK. 
 
 Tliesc are fully supported by the decision of the United States 
 District Conrt in Illinois in People v. Shriver, 31 Alb. L. J. 163, 
 a case involving precisely the same question. Treat, «/!, says in the 
 opinion: "In the case of liquor shipped by the defendant to 
 Fairfield by express, C. O. D.; the liquor is received by the ex- 
 press company at Shawneetown as the agent of the seller, and not 
 as the agent of the buyer; and on its reaching Fairfield it is there 
 held by the company, as the agent of the seller, until the con- 
 signee comes and pays the money; and then the company, as the 
 agent of the seller, delivers the liquor to the purchaser. In such 
 case the possession of the express company is the possession of the 
 seller, and generally the right of property remains in. the seller 
 nntil the payment of the price. An order from a person in Fair- 
 field to the defendant at Shawneetown for two gallons of liquor 
 to be shipped to Fairfield, C. O. D., is a mere offer by the person 
 sending such order to purchase two gallons of liquor from the 
 defendant and pay him for it w^ien he delivers it to him at Fair- 
 field; and a shipment by the defendant according to such order i^ 
 practically the same as if defendant had himself taken two gallons^ 
 
 chaser until the price is paid or payment waived. Adams v. O'Connor, 100 
 Mass. 515; Tyler y. Freeman, 3 Cush. 261; Whitney v. Eaton, 15 Gray, 225; 
 Farlow v. Ellis, 15 Gray, 229. See Herrick v. Gallagher, 60 Barb. 578; Wagner 
 V. Hallack, 3 Colo. 184; Benj. Sales, § 320; Beauchamp v. Archer, 58 Cal. 431: 
 Evansville & T. H. R. Co. v. Ericin, 84 lad. 457; Clark v. Hay ward, 51 Vt. 14. 
 A conditional assignment and delivery of goods to carrier does not vest the 
 title in the consignee until performance of the condition, although the goods 
 •were shipped in pursuance of a prior agreement upon a good consideration. 
 Kelly V. Deming, 2 McCrary, 453; Osbnrn v. Gautz, 60 N. Y. 540; 80 III. 511;. 
 Cayuga County Nat. Bank v. Daniels, 47 N. Y. 631; Bank of Rochester v. Jones, 
 4 N. Y. 497; Kinsey v. Leggett, 71 N. Y. 387; Smith v. Lynes, 5 N. Y. 41; Rus- 
 sell V. Minor, 22 Wend. 659; Keeler v. Field, 1 Paige, 312, 2 L. ed. 660; Hagger- 
 ty V. Palmer, 6 Johns. Ch. 437, 2 L. ed. 176; Chicago Marine Bank v. Wright. 
 48 KY. \; Allen V. Williams, 12 Pick. 297; Pierson v. Hoag, 47 Barb. 243; 
 JVew York Guaranty & Indem. Co. v. Flynri, 55 N. Y. 653; Lees v. Richardson, 2 
 Hilton (N. Y.) 164; Scudder v. Bradbury. 106 Mass. 422; Whitwell v, Vincent. 4 
 Pick. 451; Dresser Mfg. Co. v. Watterston, 3 Met. 9; Rill v. Freema?i, 3 Cush. 
 257; Hammett v. Linneman, 48 N. Y. 399; Barrett v. Goddard, 3 Mason, 111; 
 Stollenwerkv. Thacher, 115 Mass. 224; Armour v. Pecker, 123 Mass. 143; Solo- 
 motiv. Hathaicay, 126 Mass. 482; Kenney v. Ingalls, 126 Mass. 488; HirscJiorn 
 v. Canney, 98 Mass. 149; State v. Comings, 28 Vt. 508; Benj. Sales, § 320, note 
 d; Winter v. Coit, 7 N. Y. 288; Goodall v. Skelton, 2 H. Bl. 316; Boulter v. Ar- 
 nott, 1 Cromp. & M. 333; Benj. Sales, § 693; Clark v. Lynch, 4 Daly, 83.
 
 VIOLATING FOREIGN STATUTE. i « 
 
 of liquor from his store in Shawneetown, and carried it in person 
 to Fairfield and there delivered it to the purchaser and received 
 the price of it. It would be different if the order from Fairfield 
 to the defendant was a simple order to ship two gallons of liquor 
 by express to the person ordering, whether such order was accom- 
 panied by the money or not. The moment the liquor under such 
 an order was delivered to the express company at Shawneetown 
 it would become the property of the person ordering, and the 
 j)ossession of the express company at Shawneetown would be the 
 possession of the purchaser; the sale would be a sale at Shawnee- 
 town, and if it were lost or destroyed in transit the loss would fall 
 upon the purchaser. But in the case at bar, by the shipping of the 
 liquor to Fairfield, C. O. D., the defendant made no sale at Shaw- 
 neetown; the right of property remained in himself, and the right 
 of possession, as well as the actual possession, remained in him 
 through his agent. Had it been lost or destroyed in transit the 
 loss would have fallen upon himself. He simply acted upon the 
 request of the purchaser, and sent the liquor to Fairfield by his 
 own agent, and there effected a sale by receiving the money and 
 delivering tlie liquor." 
 
 It is insisted on the part of the claimant in the case of State 
 V. Sixty-Eight Jugs, etc., that § 2 of ISTo. 43 of the Act of 1882, 
 under which the liquors in that case were seized, is unconstitu- 
 tional. Conceding the points that there is a well recognized right 
 of property in intoxicating liquors, that they are not malum in se, 
 and that their use is not by law prohibited to citizens of Yermont, 
 these propositions are nevertheless clearly subject to the qual- 
 ification that when kept and intended for unlawful use, such 
 liquors fall at once under the ban of the law and become subject 
 to seizure and confiscation by such methods as are provided by 
 law in conformity with the Constitution. That intoxicating 
 liquors when once branded with this unlawful intent on the part 
 of the owner or possessor become subject to confiscation by the 
 Government, and that the methods and means of their seizure and 
 condemnation are within the police powers delegated to the Leg- 
 islature by article 5, pt. 1 of the Constitution, is too well settled 
 to require extended discussion.' 
 
 ^Spalding v. Preston, 21 Vt. 9; State v. Gonlin, 27 Vt. 318, 325, 337; State 
 V. Cormtock, 27 Vt. 453; QUI v. Parker, 31 Vt. 610; Potter, Dwar. Stat. 
 chap. 14; Cooley, Const. Lira. (4th ed.) 714, 727.
 
 78 CONTKACTS AS AFFECTED BY STATUTE. 
 
 This section gives the officer power to seize without warrant 
 liquor found under circumstances warranting the belief that it i^> 
 intended for sale or distribution contrary to the provisions of chap. 
 169, R. L. It does not purport to confer the power of search;, 
 nor does anything appear to show that the officer assumed to ex- 
 ercise such power in this case. It simply provides for the seizure 
 without warrant previously issued, of something which the law 
 has declared subject to seizure and condemnation, under the police 
 power delegated by the Constitution, as an instrument intended 
 by the owner or possessor for a use unlawful by express statute, 
 and dangerous to the peace, health and good morals of the com- 
 munity. That the article in itself may be innocuous, may be the 
 subject of lawful ownership, or may even be susceptible of bene- 
 ficial use, can no more affect the question than could the fact that 
 certain tools were susceptible of lawful and beneficial use in me- 
 chanics save them from becoming subject to seizure and confisca- 
 tion if intended by their owner or possessor for use as the instru- 
 ments for accomplishing a contemplated burglary; or the harmless 
 character of the metal and its owner's right of property therein 
 to protect his ownership when fashioned and intended for passing 
 as counterfeit coin. 
 
 It cannot be doubted in Vermont, since the case of Spauldhuj 
 V. Preston, 21 Vt. 9, and has not been elsewhere, that article.- 
 or instrumentalities once impressed with the characteristics of 
 adaptation and intended use for purposes prohibited by law and 
 contrary to the public peace, health or morals, are subject to sum- 
 mary seizure under statutory or even general police regulations. 
 That the liquors in question were intended for such use has been 
 determined in this case as a question of fact by the tribunal des- 
 ignated by law, and that adjudication is conclusive. 
 
 The scope and appHcation of article 5, pt. 1 of the Constitution 
 have been defined in the cases above referred to, and in Re Pow- 
 ers, 25 Yt. 265, which has ever since been regarded as conclusive 
 against such application of that section of the Bill of Rights as is 
 here contended for by the claimant,* 
 
 In Massachusetts a statute practically identical with the one in 
 
 ^Gill V. ParTcer, 31 Vt. 610; Slate v. Peterson, 41 Vt. 504; State v. Intox. Liq. 
 
 55 Vl. 82.
 
 SUNDAY LAWS. (D 
 
 question has been held not to contravene a similar constitutional 
 provision.* 
 
 The decisions in Maine are to the same effect.' 
 
 Concerning the claim that the Federal Constitution has appli- 
 cation, all difficulty under the 8th section, conferring on Congress 
 the exclusive right to regulate commerce between the states, (see 
 Leisy v. Hanlin, 135 U. S. 100, ?A L. ed. 128) is relieved by the 
 Act of August 8th, 1890, declaring that intoxicating liquors trans- 
 ported into a State or Territory, shall be subject to the laws of the 
 State or Territory enacted in the exercise of its police power, as 
 such legislation has been declared constitutional and valid.' 
 
 e. Sunday Laws. — A contract by which a person is to have- 
 full charge and control of the real estate advertising business in 
 the daily, Sunday and weekly editions of a newspaper, the owner 
 to receive certain rates, the other to have all above those rates, 
 the contract to continue for five years, is void, where the publish- 
 ing, issuing and circulating of a Sunday newspaper is illegal, as 
 the contract requires the maintenance of the Sunday newspaper 
 for the five years. " 
 
 And statutes prohibiting any work on the Lord's day except 
 works of necessity or cliarity have been construed to make en- 
 tirely void contracts in violation of their provisions. * 
 
 § 8. Subject Matter and Purpose of Legislation Determine 
 
 Effect on Contracts. 
 a. Intent of Legislators must Control; Homestead Laws. 
 
 — The statute itself must be examined as a whole, to find out 
 whether or not the makers meant that a contract in contravention 
 of it was to be absolutely void, so as not to be enforced in a court 
 of justice. * 
 
 ^ Jones V. Root, 9 Gray, 435 ; Mason v. Lathrop, 7 Gray, 354. 
 ^State V. McCann, 59 Me. 383; State v. Howley, 65 Me. 100. 
 ^Wilkerson v. Rahrer, 140 U. S. 545, 35 L. ed. 572. 
 
 * Handy v. St. Paul Globe Pub. Go. 4 L. R. A. 466, 41 Minn. 188. 
 
 ^ Grants. McGrath, 56 Conn. 333; Lansinq Turnwrein Soc. v. Carter, 71 
 Mich. 607; Watts v. Van Ness, 1 Hill, 7i5; Palmer v. New York, 2 Sandf. 
 318, Fennell v. Bidler, 5 Barn. & C. 406; Allen v. Gardiner, 7 R. I. 22; 
 Hazard v. Day, 14 Allen, 487; Tucker v. West, 29 Ark. 386; Cransen v. 
 Goss. 107 Mass. 439; Bernard v. Lupping, 32 Mo. 341; Slade v. Arnold, 
 14 B. Mon. 287. For a full examination of the subject see Ray, Negli- 
 gence of Carriers, chap. 19, § 95. 
 
 * Harris v. Runnels, 53 U. S. 12 How. 79, 13 L. ed. 901.
 
 so CONTKACTS AS AFFECTED BY STATUTE. 
 
 Tlie rule tliat courts will respect the purpose of legislation, in 
 the enforcement or refusal to give relief in matters of contract, 
 where legislative action has been had on the subject matter of 
 the contract, is illustrated in the decisions of the courts under the 
 homestead laws of the United States. The homestead is a gift 
 from the government to the homesteader, conditioned upon his 
 occupation for five years and upon his making no disposition or 
 alienation during such term; the affidavit of non-alienation is as 
 ■clear an expression of the legislative intent as a direct prohibition; 
 the whole policy of government in this respect would be thwarted 
 if the homesteader were permitted to alienate prior to the expira- 
 tion of the five years. A successful alienation could be accom- 
 plished only by perjury, and an attempted alienation would only 
 offer a constant inducement to the homesteader to abandon his 
 occupation, and thus deprive the purchaser of any possibility of 
 acquiring title to the land; a contract whose consummation neces- 
 sarily rests on perjury is illegal; both purchaser and vendor are 
 ])arties to the wrong, and courts refuse to enforce such a contract, 
 not from any regard to the vendor, but from motives of public 
 policy; and courts of equity have always exercised a discretion in 
 enforcing the specific performance of contracts to convey, and it 
 would be strange indeed if a court of equity lent its aid to enforce 
 the performance of a contract founded upon perjury and entered 
 into in defiance of a clearly expressed will of the government. 
 Whether the contract be absolutely void or not, it is so clearly 
 against the will and policy of the government, and so necessarily 
 resting upon perjury, that a court of equity will have nothing to 
 do with it.* 
 
 Similar views were expressed by the Supreme Court of N^ebras- 
 ka in the case of Dawson v. Merrille, 2 Neb. 119, in which it was 
 held that " the policy of the Act of Congress granting homesteads 
 on the pubhc lands, as disclosed by its requirement of affidavit 
 and other provisions, is adverse to the right of a party availing 
 himself of it to convey, or agree to convey the land, before he 
 receives the patent therefor;" and that " the court will not lend 
 its aid to the enforcement of a contract which is against public 
 
 » Anderson v. Corkins. 135 U. S. 483, 34 L. ed. 372; Mellison v. AUen, 30 
 Kan. 382-384.
 
 IKTENT OF LEGISLATORS MUST CONTROL HOMESTEAD LAWS. 81 
 
 policy." And the judgment of the trial court, denying specific 
 performance of a contract for the sale of lands, made by the home- 
 steader before he had acquired the legal title to the premises, was 
 affirmed/ 
 
 An agreement between a person since deceased and others, for 
 the purj)ose of locating as mineral land a tract larger than they 
 were entitled to under U. S. Eev. Stat. § 2331, the names of others 
 being used who subsequently conveyed to the parties to the agree- 
 ment without consideration, is void and cannot be the basis of 
 any relief.^ 
 
 When conditions are presented by statute for the management 
 of any particular business or profession, and such conditions are 
 not observed, agreements made in the course of such business or 
 profession are void if it appears by the context that the object of 
 the legislature in imposing the conditions was the maintenance of 
 public order or safety, or the protection of the persons dealing 
 with those on whom the condition is imposed.' 
 
 A contract in violation of the statute imposing a penalty for the 
 sale of goods by unsealed scales or measure is void.* 
 
 A judgment obtained for services in hulling clover will be 
 reversed where the evidence shows that the plaintiff refused to com- 
 ply with the statute in regard to the protection of tumbling rods.^ 
 
 But if no specific penalty is affixed by the statute to the partic- 
 ular transaction and the context shows that while the statute does 
 not in terms declare the transaction void, the condition was simply 
 imposed for administrative purposes, that is, to aid in the collec- 
 tion of the revenue or like result, the effect of the statute will not 
 
 Waks V. Beaton, 44 Iowa, 116; Nichols v. Council, 51 Ark. 26. 
 
 ^Mitchell V. Cline, 84 Cal. 409. 
 
 ^Miller v. Post, 1 Allen, 434; Smith v. Arnold, 106 Mass. 269; Prescott v. Bat- 
 tershy, 119 Mass. 285; Woods v. Armstrong, 54 Ala. 150; Buxton v. Ham- 
 Men, 33 Me. 448; Dolson v. Hope, 7 Kan.tl61; Lewis v. Welch, 14 N. H. 
 294; Taylor v. Growland Gas Go. 10 Exch. 293; Johnson v. Hulings, 103 
 Pa. 498; Solomon v. Dreschler, 4 Minn. 278; Hamilton v. Grainger, 5 
 Hurlst. «& N. 40; Griffith v. Wells, 3 Denio, 226. 
 
 *Bisbee v. McAllen, 39 Minn. 143. 
 
 mm V. Bell, 29 111. App. 136. 
 
 ^Niemeyer v. Wright, 75 Va. 239; Aiken v. Blaisdell, 41 Vt. 655; Mandlebaum 
 V. Gregovich, 17 Nev. 87; Larned v. Andrews, 106 Mass. 435; Pangborn v. 
 Westlake, 36 Iowa, 546; Ruckraan v. Bergholz, 37 N. J. L. 437; Lindsey 
 V. Rutherford, 17 B. Mon. 245. 
 
 6
 
 82 CONTRACTS AS AFFECTED BY STATUTE. 
 
 be to avoid the act.' Before the rule can be appHed in any case 
 of a statute prohibiting or enjoining things to be done, with a pro- 
 hibition and a penalty or a penalty, only for doing a thing which 
 it forbids, the statute must be examined as a whole to iind out 
 whether or not the makers of it meant that a contract in contra- 
 vention of it should be void, or that it was not to be so.' If the 
 statute, although it forbids a contract, declares it shall not be 
 void if made, the court must give it effect,' 
 
 b. Penalty for Performing Marriage Ceremony. — Where a 
 statute imposes a penalty on an officer for solemnizing a marriage 
 under certain circumstances, but does not declare the marriage 
 void, the marriage is valid, but the penalty attaches to the officer 
 who did the prohibited act. * 
 
 c. Usury Laws. — Where a bank is limited by its charter to a 
 specified rate of interest, but no penal consequence is denounced 
 for taking more, it has been held that a contract for more is not 
 wholly void. ' 
 
 Where usurious contracts are forbidden under a penalty of for- 
 feiture of three times the interest taken, the act of making such a 
 contract is illegal, but to hold the contract wholly void would be 
 to add another penalty to that imposed. * 
 
 d. Internal Revenue Laws. — That a wholesale dealer failed 
 to comply with the provision of the internal revenue laws of the 
 United States prohibiting any person from carrying on the busi- 
 ness of wholesale dealers in merchandise until they had paid the 
 special tax, did not invalidate the sales made by him or prevent his 
 recovery for the goods sold. 
 
 e. Excessive Loans toy Banks or Insurance Companies. — 
 Where officers of a savings bank or insurance company invest 
 money in a manner forbidden by statute, or loan money in contra- 
 
 ^Harris v. Runnels, 53 U. S. 12 How. 79, 84, 13 L. ed. 901, 903; Pratt v. 
 Short, 79 N. Y. 437; Smith v. Lindo, 14 C. B. N. S. 395; Smith v. Maw- 
 hood, 14 Mees. & W. 453. 
 
 ^McMahon v. Boden, 39 Conn. 316; Lewis v. Bright, 4 El. & Bl. 917; Vining 
 ' V. Bricker, 14 Ohio St. 331. 
 
 ^Rex V. Birmingham, 8 Barn. & C. 29; State v. Walker, 36 Kan. 297; Barton 
 V. Hervey, 1 Gray, 119; Milford v. Worcester, 7 Mass. 48. 
 
 * Planters Bank v. Sharp, 4 Smedes & M. 75; Grand Oulf Bank v. Archer, 
 8 Smedes & M. 151; Rock River Bank v. Sherwood, 10 Wis. 330. 
 
 ^ Merrill v. Mclntire, 13 Gray, 157. 
 
 « Aiken v. Blaisdell, 41 Vt. 655; Lamed v. Andrews, 106 Mass. 435.
 
 OFFERING TJNBRANDED GOODS. 83 
 
 vention of the statute, such illegal action does not render the in- 
 vestment worthless. ' The requirement that a national bank shall 
 limit its loans to any one person, firm or corporation to one tenth 
 part of its paid capital and forbidding the taking of real estate as 
 collateral security for original debts, does not render securities 
 taken in violation of this statute void." 
 
 A loan of school fnnds upon personal security, in a larger 
 amount than is prescribed by statute, will not render void a note 
 given therefor.' 
 
 f. Offering Unbraiided Goods. — So it has been held that a 
 statute declaring that all shingles oif ered for sale without being 
 surveyed and marked shall be forfeited to the use of the town 
 where offered, did not invalidate an actual sale of shingles not so 
 surveyed or marked.* So a statute which punished an "offer" to 
 sell unbranded hay, did not render a sale of such hay invalid.^ 
 
 g. Unlicensed Peddler, Commercial Fertilizers. — Sales by 
 a peddler were not made illegal by reason of a j)enalty imposed 
 upon him for his failure to take out a license. ' Where statutes 
 required of sellers of commercial manures the observance of cer- 
 tain conditions, under penalty, but did not declare contracts for 
 sale void for non-observance, it was held the non-complying seller 
 might recover upon the contract. "" 
 
 An action to recover for services rendered with a threshing- 
 machine is not defeated by the Illinois statute by the fact that the 
 tumbling rods and boxes of the machine were not boxed, unless 
 the machine was run by horse-power. * 
 
 ' Eolden V. Upton, 134 Mass. 180; Bowditch v. New England Mut. L. Ins. 
 
 Co. 2 New Eng. Rep. 238, 141 Mass. 2^2; Lester y. Howard Bank, 38 Md. 
 
 558. 
 ' National Bank of Oenesee v. WJiitney, 103 U. S. 99, 26 L. ed. 443; Union, 
 
 Nat. Bank of St. Louis v. Matthews, 98 U. S. 621, 25 L. ed. 188; Fleekner 
 
 V. Bank of United States, 11 U. S. 8 Wheat. 338-358, 5 L. ed. 631-636; 
 
 Reynolds v. Crawfordsville First Nat. Bank, 112 U. S. 405, 28 L. ed. 733; 
 Union Gold Min. Co. v. Rocky Mountain Nat. Bank, 96 U, S. 640, 24 L. 
 
 ed. 648; Swopev. Liffingwell, 105 U. S. 3, 26 L. ed. 939. 
 8 Edwards v. Trustees of Schools, 30 111. App. 528. 
 « Williams v. Tappan, 23 N. H. 385. 
 ' Brackett v. Hoyt, 29 N. H. 264. 
 « Jones V. Berry, 33 N. H. 209. 
 ' Niemeyer v. Wright, 75 Va. 239, 40 Am. Rep. 720. See Lamed v. Andrews, 
 
 106 Mass. 435; Smith v. Mawhood, 14 Mees. & W. 452. 
 * Heustis V. Kennedy, 23 111. App. 42.
 
 CHAPTER III. 
 
 MALUM IN 8E AND MALUM PROHIBIT CM-FOREIGN STATUTE. 
 
 § 9. Rule Declaring Contracts Concerning Matter " Malum in Sc. 
 and Malum Prohibitum" Void, Applies when. 
 
 10. The Local Policy or Statute Determines the Question of En- 
 
 forcement of Foreign Contracts — State Comity. 
 
 11. Enforcement of Foreign Assignments for tJie Benefit of Credi- 
 
 tors. 
 
 12. Qucfftions of Commercial Law, Rule in United States Supreme 
 
 Court. 
 
 § 9. Rule Declaring Contracts Concerning Matter "Malum 
 in Se and Malum Prohibitum" Void, Applies when. — The 
 
 rule that a contract made for the purpose of furthering any mat- 
 ter or thing prohibited by the statute, or to aid or assist any party 
 therein, is void, applies to every contract founded on a transaction 
 raalura in se, or which is prohibited by statute on the ground of 
 public policy.' 
 
 Illegal contracts are not such only as stipulate for something 
 that is unlawful, but where the mtention of one of the parties is 
 to enable the other to violate the law, it is corrupted by such 
 illegal intention and is void.' 
 
 The distinction between malum in se and malum prohibitum 
 has long since been exploded, and as " there can be no civil right 
 where there can be no legal remedy, and there can be no legal 
 remedy for that which is itself illegal," * it is clear that contracts 
 in direct violation of statutes expressly forbidding their execution 
 cannot be enforced.* 
 
 "The rule of law," said Parker, Ch. J. in Bussell v. De Grand, 
 
 ^Gardner v. Tatum, 81 Cal. 370. 
 
 *Tatum V. Kelley, 25 Ark. 211; Branch Bank v. Orocheron, 5 Ala. 250; 
 Btach V, Kezar, 1 N. H. 184; SteeU v. CurU, 4 Dana, 381; Girardy v. 
 HicTiardmn, 1 Esp. 13; Langton v. HugTiei, 1 Maule & S. 593; Lightfoot 
 V. Tenant, 1 Bos. & P. 551; Farmer v. Ru^ll, 1 Bos. & P. 296. 
 
 *Bank of United States v. Owens, 27 U. S. 2 Pet. 527, 539. 7 L. ed. 503. 
 
 *Gim V. Consolidated Gas Co. 130 U. S. 396, 32 L. ed. 979. 
 
 8i
 
 LOCAL POLICY OK STATUTE STATE COMITY. 6c> 
 
 15 Mass. 35, 39, "is of universal operation, that none shall, by the 
 aid of a court of justice obtain the fruits of an unlawful Ijargain." 
 
 Contracts are illegal because of their tendency to promote un- 
 lawful acts without regard to any circumstances which go to 
 affect the probability of the unlawful act being done.' But it has 
 been held that a contract, innocent in itself, will not be avoided 
 because it may by possibility facilitate an illegal transaction; to 
 render it void the connection with the illegal transaction must be 
 direct and not remote or conjectural.* 
 
 There is a distinction between a contract prohibited by law 
 and one made by parties exercising a calling which is prohibited 
 unless licensed, or one made in furtherance of an illegal business;' 
 thus, an ordinance making it a misdemeanor for anyone to trans- 
 act business as a house and real estate agent, without a license 
 therefor, will not prevent the enforcement of a contract between 
 an unlicensed agent and a vendor which has been executed by the 
 former.* 
 
 § 10. The Local Policy or Statute Determines the Question 
 of Enforcement of Foreign Contracts — State Comity. — The 
 
 law of the contract, it is said, as a general proposition, travels with 
 it, wherever the parties thereto are to be found, and into what- 
 ever forum resort is had for its enforcement." 
 
 In the absence of any agreement as to the law of a contract, the 
 law of the place of performance controls.' 
 
 And as a general rule, a debt or chose in action, being incor- 
 poreal, is deemed to follow the person of the owner, and to be 
 present with him; thus, a note dated and made payable at Boston^ 
 by a resident of that place in favor of a resident of l^ew York, 
 in pursuance of an agreement made by the maker's agent in 'New 
 York, is to be governed by the laws of New York.^ 
 
 ^Egerton v. Brownlow, 18 Jur, 71; 4 H. L. Cas, 1; 23 L. J. Eq. 348. 
 
 ^De Groot v. Van Duzer, 17 "Wend. 170. 
 
 ^Prince v. Eighth St. Baptist Church, 2 West. Rep. 621, 20 Mo. App. 332; 
 
 Howell V. Stewart, 54 Mo. 400; Chadwick v. Collins, 26 Pa. 138; Michael 
 
 V. Bacon, 49 ilo. 474. 
 *P)^ince V. Eighth St. Baptist Church, 2 West. Rep. 621, 20 Mo. App. 332. 
 ^Green v. Collins, 3 Cliff. 494; Bill v. Spear, 50 N. H. 262, and cases cited; 
 
 Corning v. Abbott, 54 N. H. 469; Story, Confl. L. § 242. 
 ^Zfnion Trust Co. v. Missouri, K. d- T. B. Co. (Kan.) 7 Ry. & Corp. L. J. 
 
 485. 
 ^Eolrnes v. Manning, 150 Mass. 211.
 
 bti MALUM IN SE AND MALUM PEOHIBITUM FOREIGN STATUTE. 
 
 The situB of a debt follows the creditor; and where the debtor 
 and creditor reside in different states, the law of the doniicil of 
 the creditor prevails.' 
 
 But for some purposes the courts treat such property or inter- 
 ests as having a situs at the place of the owner's domicil. It is 
 so for the purposes of taxation, and in insolvency or other pro- 
 ceedings by creditors." 
 
 And this general rule always yields when the law and policy of 
 the State where the property is actually located, have provided a 
 different rule of transfer from that of the State where the owner 
 lives. Thus the policy, as shown in a statute of a State, requir- 
 ing a chattel mortgage upon any boat navigating the canals, to be 
 filed in the office of the canal commissioner, where such mortgage 
 is not accompanied by immediate delivery and followed by actual 
 and continued change of possession, or declaring it void as against 
 creditors of the mortgagor, cannot be made subject to the law of 
 the domicil of the mortgagor residing in another State.* The 
 residence of the attaching creditor in such case is held not ma- 
 terial. The liability of property to be attached and sold under 
 legal process, issuing from the courts of the State in which the 
 property is actually situated, must be determined by the law of 
 that State, rather than by the jurisdiction w^here the owner lives.* 
 
 The fiction of law that the domicil of the owner draws to it his 
 personal estate yields, whenever, for the purposes of state policy 
 or justice, the actual situs of the property should be examined.* 
 
 An assignment of personal property in Idaho, contrary to the 
 laws of that Territory, and in accordance with the laws of Utah, 
 where the assignor resides, will not be upheld against attaching 
 creditors in Idaho.' 
 
 Nor is this fiction of law ever adopted when it would contra- 
 vene local criminal laws, or would sanction vice or immorality, or 
 is against a positive prohibition of law.'' 
 
 ^Birdseye v. Baker, 2 L. R. A. 99, 83 Ga. 142. 
 
 ■^ Smith V. Chicago & N. W. R. Go. 23 Wis. 269; Wharton, Confl. L. § 363; 
 
 Re Dalpay (Minn.) 6 L. R. A. 108. 
 ^Keller v. Paine, 9 Cent. Rep. 429, 107 N. Y. 83. 
 4 Warner v. Jaffrey, 96 N. Y. 248. 
 
 ^Green v. Van Buskirk, 72 U. S. 5 Wall. 307, 18 L. ed. 599. 
 ^Burnett v. Kinney, — Idaho, — , 23 Pac. Rep. 922. 
 ■'Mumford v. Canty, 50 111. 370.
 
 LOCAL POLICY OK STATUTE — STATE COMITY. 87 
 
 Contracts permissible in the locality where made, are nonen- 
 f orceable elsewhere, if they contravene existing 'laws, or mles of 
 morality or local policy.' 
 
 The courtesy or comity of a State which gives to the laws of a 
 foreign State an extra-territorial force, will not be exercised against 
 positive statute or in opposition to the public policy of the State 
 in which the court is acting. There are many considerations 
 which seem to render it proper that the public policy of the State 
 should be declared through its legislation rather than expressed 
 through its courts; but in the absence of legislation, the duty 
 doubtless devolves upon the court." 
 
 No people are bound to hold valid in their courts of justice a 
 <3ontract which' is injurious to their public rights or offends their 
 morals, or contravenes their policy, or violates public law, and 
 every independent community will judge for itself how far the 
 rule of comity between states is to be permitted to interfere with 
 its domestic interests and policy.' 
 
 A contract contrary to the public policy of the State where it 
 
 ^Oscanyan v. Winchester Repeating Arms Co. 103 U. S. 261, 26 L. ed. 539. 
 ''Story, Confl. L. §§ 7, 38, 240, 390, 464, 512; Pierce v. O'Brien, 129 Mass. 
 
 314, 37 Am. Rep. 360; Zipcey v. Thompson, 1 Gray, 243; Greenicood v. 
 
 Curtis, 6 Mass. 378; Ingrnham v. Qeyer. 13 Mass. 146; May v. Breed, 7 
 
 Cush. 15, 54 Am. Dec. 700; Means v.' Hapgood, 19 Pick. 105; Whipple v. 
 
 Thayer, 16 Pick. 25, 26 Am. Dec. 626; Dehon v. Foster, 4 Allen, 553; 
 
 Fall River Iron Works Go. v. Croade, 15 Pick. 11; Fox v. Adams, 5 Me. 
 
 245; Saunders v. Williams, 5 N. H. 213; Dunlap v. Rogers, 47 N. H. 281; 
 
 Rice V. Courtis, 33 Vt. 460; Hanford v. Paine, 32 Vt. 442, 78 Am. Dec. 
 
 586, 597; Ward v. Morrison, 25 Vt. 595; Bishop v. Holeomh, 10 Conn. 
 
 444; Aticood v. Protection Ins. Co. 14 Conn. 555; Upton v. Hubbard, 28 
 
 Conn. 275; Oliver v. Towns, 14 Mart. (La.) 97; Hoyt v. Thompson, 19 
 
 N. Y. 207; Guillander v. Hoioell, 35 N. Y. 657; Willets v. Waite, 25 N. 
 
 Y. 577; Sinter v, Carroll, 2 Sandf. Ch. 573, 7 L. ed. 708; Fuller v. Steig- 
 
 litz, 27 Ohio St. 355, 22 Am. Rep. 312; Blwlen v. Cleveland, 5 Mason, 
 
 174; Le Roy v. Cioicninshield, 2 Mason, 157; Harrison v. Sterry, 9 U. S. 
 
 5 Cranch. 289, 3 L. ed. 104; Theret v. Jenkins, 4 B. Mon. 423; Green v. 
 
 Van Buskirk, 74 U. S. 7 Wall. 139, 19 L. ed. 109; Thuret v. Jenkins, 7 
 
 7 Mart. (La.) 315; Brashear v. West, 32 U. S. 7 Pet. 608, 8 L. ed. 801; 
 
 United States Bank v. Huth, 4 B. Mon. 423; Frazier v. Fredericks, 24 N. 
 
 J. L. 162; S7nith v. Chicago & N. W. R. Co. 23 Wis. 267; Lane v. Williams, 
 
 18 Pa. 85; Walters v. Whitlock, 9 Fla. 86, 76 Am. Dec. 607; Weider v. 
 
 Maddox, 66 Tex. 372, 59 Am. Rep. 617; Milne v. Moreton, 6 Binn. 353; 
 
 Forbes v. Scannel, 13 Cal. 242. 
 ^Kent, Com. 457, 458; Hill v. Spear, 50 N. H. 253, 262; Bliss v. Brain- 
 
 ard, 41 N. H. 256, 258; Jones v. Surprise, 4 New Eng. Rep. 292, 64 N. 
 
 H. 243; Faulkner v. Hyman, 2 New Eng. Rep. 181, 142 Mass. 53; Green 
 
 V. Van Buskirk, 12 U. S. 5 Wall. 307, 18 L. ed. 599, 74 U. S. 7 Wall. 
 
 139, 19 L. ed. 109; Cunningham v. Butler, 2 New Eng. Rep. 338, 142 
 
 Mass. 47; Dehon v. Foster, 4 Allen, 545.
 
 bb MALUM IN SE AND MALUM PROHIBITUM FOREIGN STATUTE. 
 
 is made or to be enforced, although not expressly prohibited hj 
 law, cannot be enforced.* 
 
 The general rule is that courts will enforce contracts valid by 
 the law of the place where made, unless they are injurious to the 
 interests of the State or of its citizens." 
 
 The injury may be indirect by offending against justice or 
 morality, or by tending to subvert settled public policy.' 
 
 But tliis does not imply that courts will not sustain contracts 
 that would not be valid if made within their jurisdiction, or will 
 not enforce rights that could not be acquired there. 
 
 A mere repugnancy of a contract to a statute designed appa- 
 rently alone to raise revenue is not sufficient to prevent a recov- 
 ery under the contract in another State.* Thus, for example, the 
 courts of Pennsylvania have always enforced contracts for a 
 higher rate of interest than would be valid under the laws of that 
 State.' 
 
 So a contract by the proprietor of a circus, with a railroad com- 
 pany, for the transportation of his own cars, at a reduced i*ate, 
 exempting the carrier from liability for the negligent acts of its 
 employes, if valid under the laws of the State where it is made 
 and is to be wholly performed, and in which the breach occurs, is 
 enforceable in another State where such contract would be invalid 
 under its laws, if made in its jurisdiction.' 
 
 The principle has been directly applied in many cases to con- 
 tracts made by common carriers.'' In England the same result 
 has been reached. * 
 
 ^Teal V. Walker, 111 U. S. 242, 28 L. ed. 415. 
 
 'Story, Confl. L. §§ 38, 244. 
 
 *2 Keut, Com. 458; Qreemoood v. Curtis, 6 Mass. 358; Bliss v. Brainard^ 
 41 N. H. 256. 
 
 *Angell v. Van Schaick, 56 Hun, 247. 
 
 ^ Ralph V. Broion, 3 Watts & S. 395; Wood v. Kelso, 27 Pa. 248; Irvine v. 
 Barrett, 2 Grant, Cas. 73. 
 
 ^Forepaugh v. Delaware, L. & W. R. Co. 5 L. R. A. 508, 128 Pa. 217. 
 
 ■> Brown v. Cainden & A. B. Co. 83 Pa. 316; Brooke v. New York, L. E. & W. 
 B. Co. 108 Pa. 529; Knoiolion v. Erie B. Co. 19 Ohio St. 260; Talbott v. 
 Merchants Despatch Transp. Co. 41 Iowa, 247; Bobinson v. Merchants 
 Despatch Tramp. Co. 45 Iowa, 470; Hale v. Neio Jersey Steam Nav. Co. 15 
 Conn. 539; Bennsylvania Co. v. Fairchild, 69 111. 260; Gray v. Jackson, 
 51 N. H. 9; Cantu v. Bennett, 39 Tex. 303; Byan v. Missouri, K. & T. B. 
 Co. 65 Tex. 13. See also First Nat. Bank v. Shaw, 61 N. Y. 283; Mc- 
 Daniel v. Chicago & N W. R. Co. 24 Iowa, 412. 
 
 ^Fenimular & 0. Steam Nav. Co. v. Shand, 11 Jur. N. S. 771; Jacobs v. 
 • Credit Lyonnais, L. R. 12 Q. B. Div. 589, 53 L. J. N. S. Q. B. 156.
 
 KNFOROEMBNT OF FOREIGN ASSIGNMENTS FOB CREDITOR. 89 
 
 § 11. Enforcement of Foreign Assignments for tlie Benefit 
 of Creditors. — As between the parties to an assignment for the 
 benefit of creditors, if vaHd by the lex loci contractus^ it wonld be 
 upheld everywhere. It would also be sustained against creditors, 
 if valid where made, and not in contravention of the law of the 
 j)lace where sought to be enforced, both as to property situated 
 in the foreign jurisdiction and property within the jurisdiction 
 of the trial court.* 
 
 An assignment for the benefit of creditors, if valid by the law of 
 the place of domicil of assignor, will pass all his personal property 
 wherever situated, unless restrained by some local law or state 
 policy of the State where the property is situated.' 
 
 A deed of trust made by a citizen of one State, of securities of 
 foreign corporations, for the benefit of a citizen of another State, 
 if valid by the law of the State where it was made and of the 
 State where it is enjoyed, will not be held invalid because of tli& 
 mere fact that the trustee is a corporation of a State where such 
 trusts are invalid." 
 
 A deed of trust executed in another State on property in Lou- 
 isiana, to secure the payment of promissory notes, will be enforced 
 as a conventional mortgage.* 
 
 In Richardson v. Forepaugh, 7 Gray, 546, a Pennsylvania 
 assignment was held valid in Massachusetts, against a citizen of 
 the latter State who had purchased of a citizen of Pennsylvania 
 after the assignment, an overdue note, though without notice of 
 the assignment. Such assignments are sustained so far as affects 
 property which was at the time in the jurisdiction where it was 
 made ; and also as against all citizens of that jurisdiction, when 
 seeking a remedy in another State against property found there.^ 
 So also as to receivers.' 
 
 ^Forepaugh v. Delaware. L. & W. R. Co. 5 L. R. A. 508, 128 Pa. 217. 
 
 »2 Kent, Com. 455; Thrasher v. Everhart, 3 Gill «fe J. 234; Pickering v. FisJc, 
 6 Vt. 103; Hanford v. Paine, 32 Vt. 442; Story, Confl. L. 201; Cofling v. 
 Eelling, 83 Ky. 649; Ockerman v. Cross, 54 N. Y. 29. 
 
 ^Fowler's App. 125 Pa. 388. 
 *PickeU V. Foster, 36 Fed. Rep. 514. 
 ^May V. Wannemacher, 111 Mass. 202, 209. 
 
 ^Bagby v. Atlantic M. & 0. R. Co. 86 Pa. 291; Woodward v. Brooks, 3 L. R. 
 A. 702, 128 111. 222.
 
 do MALUM IN SE AND MALUM PROHIBITUM FOREIGN STATUTE. 
 
 In Burloch v. Taylor, 16 Pick. 335, an assignment of personal 
 property by a debtor in New York, valid under the laws of that 
 State, was sustained against a subsequent attachment by a citizen 
 of !New York of property in Massachusetts, although the assign- 
 ment would have been invalid if made in Massachusetts. 
 
 The courts of a State will not sustain the claim of attaching 
 creditors, not citizens of the State whose process is invoked, in 
 preference to the claim of an assignee obtaining title under the 
 laws of the State of the insolvent debtor.' 
 
 An assignment executed in another State, will not always be 
 enforced to the manifest injury of citizens of the State in which 
 its enforcement is sought," and a receiver of an insolvent corpo- 
 ration in the State where it was created cannot claim the proceeds 
 of a policy of insurance on its property in another State, where 
 the loss was made payable, as against an assignee for its creditors 
 who has been appointed in the latter State.' 
 
 The title acquired by an assignee for the benefit of creditors, 
 although good as to the property assigned, is (as to assets in 
 other states, whose policy it is not to recognize as against the 
 claims of creditors of the assignee domiciled therein, the validity 
 of general assignments with preferences) liable to be defeated by 
 attachments sued out of the courts of such other states by cred- 
 itors domiciled therein, to recover their debts out of such assets.* 
 But when declared fraudulent or invalid at the place where the 
 property is situated they will not be sustained even if valid in the 
 State where made ; * or where a different law exists.' 
 
 Clearly the courts of a State cannot be required to give effect 
 to an assignment or transfer of property within it, or of debts due 
 to its citizens, which is found to be contrary to the policy and 
 
 ^Cunningham v. Butler, 2 New Eng. Rep. 338, 42 Mass. 47; Bentley v. Whit- 
 temore, 19 N. J. Eq. 462; Sanderson v. Bradford, 10 N. H. 265. 
 
 ^Daniels v. Willard, 16 Pick. 36; Whipple v. Thayer, 16 Pick. 25; Martin v. 
 Potter, 11 Gray, 37; Richardson v. Forepaugh, 7 Gray, 546; Bagby v. At- 
 lantic, M. & 0. R. Co. 86 Pa. 291. 
 
 ^Platt V. Continental Ins. Co. 62 Vt. 166. 
 
 ^Kimball v. Lee, 4 Cent. Rep. 332, 40 N. J. Eq. 403. 
 
 ^Zipccy V. Thompson, 1 Gray, 243; Boyd v. Rockport Mills, 7 Gray, 406; 
 Bryan v. Brisbin, 26 Mo. 423: Varnum v. Camp, 13 N. J. L. 329. 
 
 ^Edgerley v. Bush, 81 N. Y. 199; Green v. Van Baskirk, 74 U.* S. 7 Wall. 
 139. 19 L. ed. 109. See Howard Nat. Bank v. King, 10 Abb. N. C. 346; 
 Atherton v. Ives, 20 Fed. Rep. 896.
 
 ENFOKCEMENT OF FOREIGN ASSIGNMENTS FOR CREDITORS. 91 
 
 laws of the State. To upliold the opposite doctrine would be to 
 encourage fraudulent contrivances to defeat the operation of local 
 insolvent or collection laws/ 
 
 In Faulkner v. Jli/man, 2 New Eug. Rep. 181, 142 Mass. 53, 
 it was held that a voluntary assignment in trust for creditors, 
 made in New York, and valid there, is not valid in Massachusetts, 
 against an attachment, if such an assignment is one which, if 
 made between citizens of Massachusetts, would be inoperative for 
 want of compliance with legal requisitions. If the suit had been 
 brought by New York plaintiffs alone, it was conceded that they 
 could not be heard to deny the validity of the assignment, because 
 as citizens of New York they would be bound by its laws even in 
 Massachusetts.'' If brought by Massachusetts creditors alone, it 
 is equally true, as the assignment is not valid by the law of Mas- 
 sachusetts, that the attachment would prevail. All the parties 
 are necessarily compelled to join in the action, and the New York 
 plaintiffs are under no. disability to sue in Massachusetts. The 
 principle of comity, it was held, did not require the Massachusetts 
 court to enforce the New York law, different from its own, 
 against the just rights of its own citizens and to their prejudice, 
 because if it failed to do so, the residents of New York would 
 incidentally obtain a benefit which they could not otherwise. A 
 Massachusetts court is not required to deny its own citizens their 
 lawful rights for the sake of denying to residents of New York 
 that which could be accorded them only by reason of respect 
 for the laws of New York, if they had brought suit alone. Con- 
 sidering that the other plaintiffs were residents of Massachusetts, 
 the fact that some are residents of New York was not considered 
 sufficient to place the Massachusetts court under a duty to enforce 
 the New York law as to assignments. 
 
 But the rule that contracts made out of the State, which con- 
 travene the policy of the State, will be held void, does not make 
 void an assignment for creditors merely because it does not have 
 annexed to it the schedule required in such cases by the laws of 
 the State, as such schedules are not parts of the contract.' 
 
 ^Zipceyv. Thompson, 1 Gray. 245; Foster v. Goulding, 9 Gray, 53, 53; State 
 
 Bank Receiver v. Plainfield Bank, 34 N. J. Eq. 450. 
 "^May V. Wannemacher, 111 Mass. 202. 
 ^Birdseye v. Baker, 2 L. R. A. 99, 82 Ga. 142. See Drucker v. Wellhouse, 2 
 
 L. R. A. 328, 82 Ga. 129.
 
 92 MALUM m SE AND MALUM PKOHIBITUM — FOREIGN STATUTE. 
 
 The Supreme Court of the United States has shown a strong 
 disposition to follow the ruling of a state court, in which the par- 
 ties resided, where the conveyance for the benefit of creditors was 
 executed and in which the bulk of the property is situated, sus- 
 taining such conveyance, even in case of a conveyance of doubt- 
 ful validity. Especially is this true where the instrument was 
 executed with the general acquiescence of creditors, and its pur- 
 pose is equality between them, and it was not challenged for 
 years, and the trustee, on the faith of its validity, assumed large 
 liabilities, and carried on business to an enormous extent, and the 
 creditors accepted payment resulting therefrom. Indeed, where 
 a debtor, having large and scattered properties, and being much 
 embarrassed, transfers his property for the benefit of his creditors 
 equally, equity requires that any creditor who is not satisfied with 
 the provisions of such transfer shall act promptly in challenge 
 thereof, or else be adjudged to have waived any right of challenge 
 to the instrument.' 
 
 § 12. Questions of Commercial Law, Rule in United States 
 Supreme Court. — But the Supreme Court of the United States 
 has declined to be bound by the decision of a state court where 
 such decision " is not based on a statute of the State, nor on any 
 rule of law affecting title to lands, nor any principle which has 
 become a settled rule of property, but on those principles of pub. 
 lie pohcy designed for the protection of the State or the public, 
 of which it must judge for itself, as the state courts do when the 
 question is fairly presented." * 
 
 The courts of the United States are not controlled by the decis- 
 ions of state courts on questions of general commercial law." 
 
 On any question depending upon mercantile law, and not alone 
 on local statute or usage, the courts of the United States are not 
 bound by the decisions of the courts of a State.* 
 
 Decisions of state courts are not binding upon questions con- 
 
 ^JencU V. The Quidnick Co. 135 U. S. 457, 34 L. ed. 200. 
 
 *Delmas v. Merchants Mut. Ins. Co. 81 U. S. 14 Wall. 661, 20 L. ed. 757. 
 
 Brooklyn City & N. R. Go. v. Nat. Bank of the Republic, 102 U. S. 14, 26 L. 
 
 ed. 61; Watson v. Tarpley, 59 U. S. 18 How. 517, 15 L. ed. 509; Mercer 
 
 County V. Hackett, 68 U. S. 1 Wall. 83, 17 L. ed. 548; Pine Orove Twp. 
 
 V. Talcott. 86 U. S. 19 Wall. 666, 22 L. ed. 227; Oatea v. First Nat. 
 
 Bank, 100 U. S. 239, 25 L. ed. 580. 
 ^Liverpool & G. W. Steam Co. v. Phenix Ins. Co. 129 U. S. 397, 32 L. ed. 788.
 
 QUESTIONS OF COMMEKCIAL LAW. 93 
 
 cerning contracts of insurance, those being questions of general 
 commercial law.' 
 
 Upon the general principles and doctrines of common jurispru- 
 dence, it is the duty of this com-t to form an independent judg- 
 ment.'' 
 
 What constitutes a contract of carriage is not a question of local 
 law upon which the decision of a state court must control. It is 
 a matter of general law, ujDon which this court will exercise its 
 •own judgment.' 
 
 The decision of the state court holding a contract invalid on 
 grounds of public policy is not binding on the Supreme Court of 
 the United States.* 
 
 If the decision of the existence of an alleged contract requires a 
 construction of the State Constitutions and laws, this court is not 
 necessarily governed by previous decisions of the state courts, 
 except where they have been so firmly established as to constitute 
 a rule of property.' 
 
 Subsequent fluctuations in the construction of a Statute, by the 
 courts of the originating State or country, though they may be 
 entitled to great respect, are not within the meaning of the rule.* 
 
 This principle applies with equal force to aU contracts which 
 come within its jurisdiction.'' 
 
 In a recent case the Supreme Court of Pennsylvania has ques- 
 tioned this line of ruling.* 
 
 Plaintifi, being the proprietor of a circus, made a special con- 
 tract with defendant for the transportation of a number of his 
 own cars upon certain conditions and terms, elaborately set out in 
 writing, among wliich was a stipulation that in consideration that 
 the ser^dce was to be performed " for much less than the ordi- 
 nary, usual and legal rates charged other parties for a like amount 
 
 Carpenter v. Pi'ovidence Wash. Ins. Co. 41 U. S. 16 Pet. 495, 10 L. ed. 1044. 
 
 ^Pana v. Bolder, 107 U. S. 529, 27 L. ed. 424. 
 
 ^Michigan Cent. R. Co. v. Myrick, 107 U. S. 102, 27 L. ed. 325. 
 
 *Delmas v. Merchants Mut. Ins. Co. 81 U. S. 14 Wall. 661, 20 L. ed. 757. 
 
 ^Louisville & N. R. Co. v. Palmes, 109 U. S. 244, 27 L. ed. 922. 
 
 ^Cathcart v. Robinson, 30 U. S. 5 Pet. 264, 8 L. ed. 120; Endlich, Interpre- 
 tation of Statutes, 519. 
 
 1 Carroll Co. v. JI. S. 18 Wall. 71, 21 L. ed. 771; Fairfield v. Gallatin Co. 100 
 U. S. 53, 25 L. ed. 546; Bouglass v. Pike Co. 101 U. S. 685, 25 L. ed. 971. 
 
 ^Forepaugh v. Delaware, L. & W. R. Co. 5 L. R. A. 508, 128 Pa. 217.
 
 94 MALUM IN SE AND MALUM PROHIBITUM FOREIGN STATUTE. 
 
 of transportation," the plaintiff released the defendant from all 
 liability for or on account of loss, damage or injury to any of the 
 animals, property or things thus transported, " although such loss, 
 damage or injury may be caused by the negligence of the (defend- 
 ant), its agents or employes." Damage having occurred by the 
 negligence of defendant, plaintiff brought this suit, and the sole 
 question was whether it could be maintained in the face of the 
 stipulation above set forth. 
 
 The contract was made, was to be performed, and the alleged 
 breach occurred m New York. No possible element was wanting, 
 therefore, to make it a New York contract. It is admitted that 
 in New York the stipulation is valid, and this action could not be 
 maintained.' 
 
 Why, then, it is asked, should plaintiff, by stepping across the 
 boundary into Pennsylvania, acquire rights which he has not paid 
 for, and his contract does not give him ? 
 
 It is argued that the validity of this contract is a question of 
 commercial law, and therefore the mere decisions of the New 
 York courts are not bhiding, and in the absence of any statute in 
 New York exjorcssly authorizing such a contract, the courts of 
 this State must follow their own views of the commercial, as part 
 of the general common law, though different views may be held 
 as to such law by the courts of New York. 
 
 As this argument is one which is frequently advanced, and 
 affects a number of important questions, it is, the court announces, 
 time to say plainly that it rests upon an utterly inadmissible and 
 untenable basis. The court deny that there is such a thing as a 
 general commercial or general common law, separate from and 
 irrespective of a particular State or government whose authority 
 makes it law. It is said that law is a rule prescribed by the 
 sovereign power. By whom, it is asked, is a general commercial 
 law prescribed, and what tribunal has authority or recognition to 
 declare or enforce it outside of the local jurisdiction of the govern- 
 ment it represents ? Even the law of nations, the widest reaching 
 of all, is said to be a law only in name. It has but a moral sanc- 
 tion and the only tribunal that undertakes to enforce it is the 
 
 ^Graqin v. New York Cent. R. Go. 51 N. Y. 61; Maynard v. Syracuse, B. & 
 N. 7. B. Co. 71 N. y. 180; Wilson v. Mw York Cent. & H. B. R. Co. 97 
 N. Y. 87.
 
 QUESTIONS OF COMMERCIAL LAW. 95 
 
 armed hand, the ultima ratio region. The so-called commercial 
 law is likewise a law only in name. Upon many questions arising 
 in the business dealings of men, the laws of modern civilized 
 states are substantially the same, and it is therefore common to 
 say that such is the commercial law, but, except as a convenient 
 phrase, such general law does not exist. There must be a State, 
 or government, of which every law can be predicated, and to 
 whose authority it owes its existence as law. Without such sanc- 
 tion it is not law at all ; with such sanction it is law without refer- 
 ence to its origin or the concurrence of other states or i^eople. 
 Such sanction it is the prerogative of the courts of each State 
 itself to declare. Their jurisdiction is final and exclusive, and in 
 this respect there is no distinction between statute and common 
 law. It is universally conceded that, as to statutes, the decisions 
 of the state courts are binding upon all other tribunals ; yet such 
 decisions have no higher sanction than those upon the common 
 law, for what the latter determine, equally with the former, is 
 the law of the particular State. 
 
 The law of a State consists, it is said, of the Constitution, treaties, 
 and statutes of the United States, the Constitution and statutes of 
 the State, and the common law, not of any or all other counties, 
 but of that State. There is a common law of England, and a 
 common law of the State mainly founded thereon, but with cer- 
 tain differences, and the only tribunal competent to pass authori- 
 tatively on such differences is the state court. This familar 
 illustration is used. In the United States the universal doctrine 
 has always been that the English colonists brought vdth them, 
 and made part of their laws, all the common law of England that 
 was not un suited to their new situation. No part of the common 
 law of Enorland is better settled than the doctrine of ancient 
 hghts. The Court of Chancery of New Jersey, in Robeson v. 
 Pittenger, 2 N. J. Eq. 57 (183S), held that the same doctrine was 
 part of the common law of New Jersey. The Supreme Court of 
 Pennsylvania, on the other hand, starting with the same premises, 
 and reasoning on the same principles, but proceeding cautiously 
 from the dictum of Kogers, </"., in Hoy v. Sterrett, 2 Watts, 331 
 (1834), to the unanimous decision of the court in Haver stick v. 
 Sijpe^ 33 Pa. 368 (1859), held that the doctrine of ancient ligliis
 
 96 MALUM IN SE AND MALUM PKOHIBITDM — FOEEIGN STATUTE. 
 
 by prescription was not part of tlie common law of Pennsylvania. 
 ISTo tribunals of any other State presumed to question that the 
 common law of 'New Jersey and the common law of Pennsylvania 
 differ on this point. What is law in one State is not law in the 
 other, not because it was or was not the common law of England, 
 but because it is or is not the law of the respective states. And, 
 though it rests only on the decisions of the courts, it is none the 
 less absolutely and indisputably the law than if it had been made 
 so by statute. 
 
 It is insisted the so-called commercial law derives all its 
 force from its adoption as part of the common law, and a decision 
 on the commercial law of a State stands upon precisely the same 
 basis as a decision upon any other branch of the common law, and 
 that the only ground upon which any foreign tribunal can ques- 
 tion either, is that it does not agree with the premises or the rea- 
 soning of the court. But the same ground, it is argued, would 
 enable it to question a decision upon a statute because a different 
 construction seemed to it nearer the true intent of the legislative 
 language, and this it is universally, conceded no foreign court can 
 do. There is no difference, it is claimed, in principle. The decis- 
 ions of a state cburt upon its common law and on its statutes 
 must therefore, it is said, stand unquestioned, because it is the only 
 authority competent to decide, or they must be alike questionable 
 by any tribunal which may choose to differ with its reasons or its 
 conclusions. Mitchell, e/., who pronounced the opinion, declares 
 that it is not probable that the doctrine of such a distinction 
 would ever have got a foothold in jurisprudence, and it would 
 certainly have been long ago abandoned, had it not been for what 
 he calls the unfortunate misstep that was made in the opinion in 
 Swift V. Tyson, 41 U. S. 16 Pet. 1, 10 L. ed. 865. Since then 
 the courts of the United States have, he says, persisted in the 
 recognition of a mythical commercial law, and have professed to 
 decide so-called commercial questions by it in entire disregard of 
 the law of the State where the question arose. To the proposition 
 tliat as to such questions the state courts also have similiar liberty, 
 he replies that it would be sufficient answer that such a course, by 
 reading into a contract a new duty not in contemplation of the 
 parties, and not part of it by the law of the place where it is
 
 QUESTIONS OF COMMERCIAL LAW. 97 
 
 made, is in principle and in practical effect impairing the obliga- 
 tion of the contract, which even the sovereign power of a State 
 is prohibited from doing. But he rests the decision on the 
 broader ground that the doctrine itself is unsound. 
 
 It is asserted that the best professional opinion has long regarded 
 it as indefensible on principle, and is thus verj recently summed 
 up by the opinion of Stytes, " one of the most learned of living 
 jurists " : " Questions growing out of contracts made and to be 
 performed in a State are decided by the national court of last 
 resort, not in accordance with the customary or unwritten law of 
 the State where they orignated, as exj)Ounded by its courts, but 
 agreeably to some theoretic view of a general commercial law, 
 which does not exist, and is not to be found in the books. The 
 state courts, on the other hand, adhere to their own precedents, 
 and do not consider themselves entitled to impair the obligation 
 of contracts that have been made in reliance on the principles 
 which they have laid down through a long series of years. The 
 result is a conflict of jurisdiction which there are no means of 
 allaying. . . . Whether a recovery shall be had on a promis- 
 sory note, which has been taken as collateral security for an ante- 
 cedent debt against a maker, from whom it was obtained by fraud, 
 is thus made to turn in New York, Pennsylvania and Ohio, not 
 on any settled rule, but on the tribunal by which the cause is 
 lieard; and if that is federal, the plaintiff will prevail; if it is local, 
 the defendant. Such a result tends to discredit the law. . . . 
 The enumeration might be carried further, but enough has, per- 
 haps, been said to show that no uniform rule can be deduced from 
 the decisions of the English and American courts under the com- 
 mercial law, and that the certainty requisite to justice can be 
 obtained only by following the local tribunals as regards the con- 
 tracts made in each locality. 
 
 " The several states of this country are collectively one nation, 
 but they are as self-governing in all that concerns their purely inter- 
 nal commerce as if the general government did not exist; and 
 when the will of the people of New York or Pennsylvania is 
 declared on such matters through their representatives in the local 
 legislatures, expressly, or by long continued acquiescence in the 
 rules enunciated by their judges, it cannot be set aside by Con- 
 7
 
 98 MALUM IK SE AND MALUM PKOHIBITUM FOREIGN STATUTE. 
 
 gress short of an amendment of the Constitution. Had the New 
 York Legislature declared that notes made and negotiated in that 
 State should follow tlie rule laid down in Coddington v, Bay^ 20 
 Johns. 637, the federal tribunals would have been bound to carry 
 it into effect, notwithstanding any attempt of the national Legis- 
 lature to introduce a different principle; and it is inconceivable 
 that the judicial department of the government can exercise a 
 greater authority in this respect than the legislative." ' 
 
 The opinion concludes that the distinction recognized by the 
 federal court between the binding effect of decisions on commer- 
 cial law, and on statutes, is utterly untenable; that the law declared 
 by state courts to govern on contracts made within their jurisdic- 
 tion is conclusive everywhere; and the departure made by the 
 United States courts is to be regretted and certainly not to be 
 followed. 
 
 In entire accordance with this view, are, it is insisted, the Penn- 
 sylvania cases of Brown v. Camden c& A. H. Co. 83 Pa. 316, and 
 Broohe v. New York, L. E. & ^¥. R. Co. 108 Pa. 530; and the 
 decisions in Ohio, Knowlton v. JErie R. Co. 19 Ohio St. 260; in 
 Illinois, Pennsylvania Co. v. Fairchild, 69 111. 260; Milwaukee 
 <& St. P. R. Co. V. Smith, 74 111. 197; in Iowa, Talhott v. Mer- 
 chants Despatch Transjp. Co. 41 Iowa, 247; Robinson v. Mer- 
 chants Despatch Transp. Co. 45 Iowa, 470; in Connecticut, Hale 
 V. New Jersey Steam Nav. Co. 15 Conn. 539; in Kansas, Atchi- 
 son, T. c& S. F. R. Co. V. Moore, 29 Kan. 632; in South CaroHna, 
 Bridger v. Asheville c& S. R. Co. 27 S. C. 462; in Georgia, At- 
 lanta c& C. A. L. R. Co. V. Tanner, 68 Ga. 390; in Mississippi, 
 McMaster v. Illinois Cent. R. Co. 65 Miss. 271; in Texas, Cantu 
 V. Bennett, 39 Tex. 303; Ryan v. Missouri, K. <& T. R. Co. 65 
 Tex. 13; and perhaps in other states. 
 
 These cases are not noticed in detail, further than to quote the 
 terse and forcible summary made by Scott, J., in Knowlton v. Erie 
 R. Co. 19 Ohio St. 260: "As the contract was made within the 
 jurisdiction of ]^ew York, and contemplated no action outside of 
 that jurisdiction, it is clear that the question of its validity must 
 be determined solely by the laws of New York. The rights and 
 obligations of the parties to such a contract, and in respect to the 
 
 ' Hare, Const, pp. 1107, 1117, and see Lecture 51, passim.
 
 QUESTIONS OF COniEKUlAL LAW. 99 
 
 manner of its execution, cannot be affected by the laws or policy 
 of other states. If no cause of action arose to the plaintiff under 
 his contract when the accident occurred, the transaction cannot be 
 converted into a cause of action by the fact that the parties have 
 subsequently come within the jurisdiction of Ohio. 
 
 The result of the decision is that as the validity of the contract 
 is to be determined by the law of l^ew York, as decided by the 
 courts of that State, there is no reason why the courts of Penn- 
 sylvania should not enforce it, for the general rule is, that courts 
 will enforce contracts valid by the law of the place where made, 
 unless they are injm-ious to the State, or to its citizens.* 
 
 The contract in question, it is said, does not directly affect the 
 State or its citizens in any way, nor is it in any way contrary to 
 justice or morality. It is even doubted whether it is so far con- 
 trary to the policy of the State that it would have been invalid if it 
 had been made in Pennsylvania. It is admitted that it had some 
 exceptional features, which, it might be argued, take it out of the 
 ordinary rule governing the contracts of common carriers, and the 
 case of Coicp v. Wabash, St. L. da I*. R. Co., 56 Mich, 111, is a 
 strong authority for that position. But without stopping to dis- 
 cuss that point, which the general view adopted renders unneces- 
 sary, it was considered sufficient to say that even if it would not 
 have been vahd if made in Pennsylvania, its enforcement as a 
 New York contract does not in any way derogate from the laws 
 of Penusylvania, or injure or affect the policy of the State, any 
 more than would a foreign contract for what would be usurious 
 in Pennsylvania, and that the courts have never hesitated to en- 
 force. 
 
 So far as the decision can be considered as yielding state policy 
 to comity, if it can be so regarded, while the opinion expressly 
 disclaims such a concession, its force is weakened by the fact that 
 Paxson, Ch. J., and Clark, J., were absent, and Sterrett united in 
 the following dissent of Williams, J.: " I dissent from the judg- 
 ment in this case because I cannot agree that a well settled rule of 
 public policy of this Commonwealth must give way to considera- 
 tions of mere comity. The contract set up as a defense to this 
 action is a release to a common carrier from liability for its own 
 
 »Story, Confl. L. §g 38, 244.
 
 loo MALUM IX SE AND MALUM TKOHIBITUM FOKEIGN STATUTE. 
 
 negligence. It is well settled in this State that such a release is 
 against public policy. Comity does not require more of us than 
 to eive effect to the lex loci contractus when not subversive of the 
 public policy of our own State. This has been distinctly held by the 
 Court of Appeals of Kew York,* in which this release was exe- 
 cuted, and in whose behalf comity is asked. I would follow the 
 Court of Appeals, because comity can require no more of us in 
 any given case than the courts of the place of the contract would 
 yield to us for comity's sake; and because I believe the rule to 
 rest on solid ground." 
 
 *NoTE. — The case referred to is doubtless Keller v. Paine, 9 Cent. Rep. 429, 
 107 N. Y. 83.
 
 CHAPTER IV. 
 
 WAR AS AFFECTIjSrG CONTKACTS. 
 
 § 13. Dealings with Puhlic Enemy. 
 
 a. Duty of Citizen to Avoid. 
 
 b. Executory Contracts Canceled hy War. 
 
 c. Contracts with, Void. 
 
 r4. No Power to Appoint Agent after Hostilities. 
 
 15. Licenses to Trade. 
 
 a. May he Given to Alien Enemy. 
 
 b. Lilerally Construed. 
 
 16. Insuring the Property of a PuUic Enemy. 
 
 § 13. Dealings with Public Enemy. 
 
 a. Duty of Citizen to Avoid. — The duty imposed upon the 
 citizen of sustaining the government which protects him in his 
 social rights, cstabHshes the rule, as courts and jurists everywhere 
 agree, that all trading in time of war with the public enemy, un- 
 less by permission of the sovereign, is interdicted when war is 
 declared or duly recognized by the belligerent parties.' 
 
 As soon as war is commenced, all trading, negotiation, commu. 
 nication or intercourse between the citizens of the belligerent 
 countries must cease, unless authorized by the direct permission 
 of the sovereign power.' 
 
 b. Executory Contracts Canceled by War. — All contracts 
 made with an enemy during war are utterly void/ 
 
 ^cKee V. United States, 75 U. S. 8 Wall. 163. 19 L. ed. 329; Hanffer v. Ab- 
 bott, 73 U. S. 6 Wall. .533, 18 L. ed. 939; T/ie Hoop, 1 C. Rob. 196; ScJiole- 
 field V. Eichelberger, 33 U. S. 7 Pet. 586, 8 I,, ed. 793; Expositor. Boicden, 
 7 El. & Bl, 779; Qrimold v. WaddiiK/ton, 15 Johns. 57, 16 Johns. 449; 3 
 Phill. Ins. L. 108; White v. Burnley, 61 U. S. 20 How. 235, 15 L. ed. 886. 
 
 "^ Latere v. Rochereau, 84 U. S. 17 Wall. 439, 21 L. ed. 695; Desmare v. United 
 States, lOCt.Cl. 393; Philips Y. Hatch, 1 Dill. 578; Planters Bank v .St. John, 
 1 Woods, 589; 1 Chit. Com. Law, 379; 1 Duer, Ins. 419, United States v. 
 Grnssmayer, 76 D. S. 9 Wall. 72, 19 L. ed. 637; Mitchell v. United States, 
 88 U. S. 21 Wall. 350, 22 L. ed. 584; Kershaw v. Kelsey, 100 Mass. 576. 
 
 *V"attel, Law of Nations, § 220; United States v. Grossmayer, 76 U. S. 9 Wall. 
 73 19 L. ed. 627; Montgomery v. United States, 82 U. S. 15 Wall. 395. 21 
 L. ed. 97; United States v. Lapene, 84 U. S. 17 Wall. 601, 21 L. ed. 693 ; 
 Broim V. United States, 13 U. S. 8 Cranch, 110, 3 L. ed. 504. 
 
 101
 
 102 WAR AS AFFECTINGr GONTBACTS. 
 
 Executory contracts, if they cannot be performed except in the 
 way of commercial intercourse with the enemy, are dissolved hj 
 the declaration of war.' 
 
 Under an attempted purchase from an enemy of enemy's prop- 
 erty during war, no title can be acquired.'' 
 
 c. Contracts with, Toid. — Where a citizen of New Orleans, 
 after its subjugation by the federal forces, went within the rebel 
 lines, engaged actively in the service of the rebel government, and 
 while so engaged acquired the ownership of cotton, his contracts 
 for the cotton were illegal and void.^ 
 
 Contracts by the British consul at J^ew Orleans, made during 
 the civil war, to cause cotton to be protected and transported 
 from place to place within the insui-gent lines to 'New Orleans 
 were void.* 
 
 A sailing license issued by one in command of a hostile fleet, 
 within the territory of the belligerent, will be evidence of such 
 illegal trading as will authorize the latter to condemn the ves- 
 sel using the license.* 
 
 The payment of money by the subject of one of the belliger- 
 ents, in the country of another is condemned, and all contracts 
 and securities looking to that end are illegal and void.' 
 
 So of a bill of exchange drawn by an alien in an enemy's coun- 
 try during a war, on a subject of the other belligerent at his 
 home. It cannot be collected after peace.'' 
 
 § 14. No Power to Appoint Agent after Hostilities. — 
 
 After hostilities have actually commenced, an individual in one 
 territory has no power to appoint an agent for any purpose in the 
 other hostile territory.* 
 
 A resident, however, of the territory of one belligerent, may 
 
 ^Hanger v. Abhott, 73 U. S'. 6 Wall. 532, 18 L. ed. 939. 
 
 *MonUjomery\. United Slates, 83 U. S. 15 Wall. 395, 21 L. ed. 97; United 
 
 States V. Lapene, 84 U. S. 17 Wall. 601, 21 L. ed. 693; Mitchell v. United 
 
 States, 88 U. S. 21 Wall. 350, 22 L. ed. 584. 
 ^Dcsmare v. United States, 93 U. S. 605, 23 L. ed. 959. 
 *HaU V. Coppell, 74 U. S. 7 Wall. 548, 19 L. ed. 245. 
 ^The Julia, 12 U. S. 8 Crancb, 181, 3 L. ed. 528. 
 ^Griswold V. Waddington, 16 Johns. 459. 
 ''Antoine v. Morshead, 6 Taunt. 237. 
 ^United States v. Qrossmayer, 76 U. S. 9 Wall. 72, 19 L. ed. 627.
 
 LICENSES TO TKADE. 103 
 
 liave, in times of war, an aojent residing in the territory of the 
 •other belHgerent, to whom his debtor must pay the debt or deliver 
 property in discharge of it. Such payments on dehveries involve 
 no intercourse between enemies/ 
 
 A devise to an alien enemy vests a title in the devisee which 
 is good until office found.'' 
 
 A bequest to an alien enemy is good, and after peace can be en- 
 forced," 
 
 Parties within an enemy's country, engaged in hostility to 
 their own government, may transfer and receive the title to real 
 property situated within the limits of their own government.* 
 
 § 15. Licenses to Trade. 
 
 a. May be Given to Alien Enemy. — License may be granted 
 l)y the proper authority to trade with the public enemy. Trading 
 with the enemy, except by license, subjects the property to confis- 
 cation. This rule applies to allies. The interposition of a prior 
 neutral port does not relieve the illegality.* 
 
 b. Liberally Construed. — Where a license is issued even to 
 an alien enemy, to trade, it must be liberally construed to carry 
 out the purpose of the grant, and its terms are not to be limited 
 by construction, where the adventure contemplated has been 
 fairly and reasonably carried out.* 
 
 A license of this nature, legalizing a particular venture, inci- 
 dentally legalizes all the measures necessary to be used for its 
 prosecution; it impliedly allows a person whose commerce is 
 authorized, although he be an alien enemy, to protect his interest 
 by insurance, and an agent of the power granting the license to 
 ;an alien enemy, in whose name the insurance is effected, may 
 
 ^Montgomery v. United States, 82 U. S. 15 Wall. 400, 21 L. ed. 97. 
 
 •^Fairfax v. Hunter, 11 U. S. 7 Cranch, 603, 3 L. ed. 453. 
 
 'Atty-Gen. v. Weeden, Park. Exch. 2G7. 
 
 *Conrad v. Waples, 96 U. S. 279, 24 L. ed. 721. 
 
 '"Jecker v. Montgomery, 59 U. S. 18 How. 110, 15 L. ed. 311 : 3Iadonna Belle 
 Oracle, 4 Rob. 195. 
 
 ^T.ie Cosmopolite, 4 C. Rob. 8; Grotius, b. 3, chap. 21, § 14; T/te Abigail Stew- 
 art's Vice Adm. 360; Schroeder v. Vax, 15 East, 52, 3 Campb. 84, note; 1 
 Edward, Adm. 95.
 
 104 WAK AS AFFECTING COJSTKACTS. 
 
 bring an action upon the policy even during the continuance of 
 the war.' 
 
 § 16. Insuring the Property of a Public Enemy. — Insuring 
 the property of a public enemy is condemned by all publicists 
 who have discussed the question, as well the earliest as the latest. 
 Valin (liv. 3, title 6, art. 3), Emerigon (tom. 1, 128), and Bynkor- 
 shoek (2 Juris. Pub. chap. 21), are not less emphatic than Wheaton 
 (Dana, Wheat. § 317), and Phillimore (vol. 5, 109). Such also is 
 the rule of the common law.' 
 
 A distinction was taken in Bell v. Gilson, 1 Bos. & P. 345, 
 where it was held that the insurance of goods purchased in an 
 enemy's country during war, by a British agent, and shipped for 
 British subjects, was lawful insurance. But in Furtado v. Rogers, 
 3 Bos. & P. 191, every distinction of that kind was abandoned^ 
 and in case of French property, previous to war, insurance was 
 held not to cover a loss by British capture after the war was 
 renewed, even though the action was not brought until after 
 peace was declared.* The ordinances of Barcelona, as early as 
 1484, declared such insurance void.* 
 
 Bynkershoek, discussing this question, concludes that the very 
 fact and reason of the existence of war absolutely forbids the 
 insurance of enemy's property, because by assuming such risks, 
 we promote the maritime commerce of the enemy. Valin consid- 
 ered that insuring enemy's property and trading with the enemy 
 
 ^Kensington v. Inglis, 8 East, 273; Flindt v. Scott, 5 Taunt. 705; De Tastet 
 V. Taylor, 4 Taunt. 248; Fmjle v. Bourdillon, 3 Taunt. 546; Hullinan v. 
 Wliitmore, 3 i\Iaule & S. 337; WiUison v. Pattersoti, 7 Taunt. 448; Uspari 
 cha V. Noble. 13 East, 332; Morgan v. O^^irald, 3 Taunt. o6S; Flindt v. Scott, 
 5 Taunt. 700, 701; Edw. Lead. Dec. Brit. Luc. 20; Bucher v. Avsley, 5> 
 Maule & S. 25; Anthony v. Moline, 5 Taunt. 711, 715; Schnakoneg v. An- 
 dreics, 5 Taunt. 716, 719; Robinson v. Morris, 5 Taunt. 720; Bazett v. 
 Meyer, 5 Taunt. 824, 828, 829; Fiese v. Bell, 4 Taunt. 4; Robinson v. Tou- 
 ray, 1 Maule & S. 217, 3 Campb. 158; Hagedorn v. Reed, 1 Maule & S. 
 567. But see Hagedorn v. Bazett, 2 Maule & S. 100, as to which see ob- 
 servations 5 Maule & S. 31; Mennet v. Bonham, 15 East, 477; Flindt v. 
 Crockett, 15 East, 522. 
 
 ^Brandon v. Nesbitt, 6 T. R. 23; Potts v. Bell, 8 T. R. 548; Furtado v. Rog- 
 ers, 3 Bos. & P. 191. 
 
 33 Kent, Com. 254. 
 
 ^Consulat de la Mer, per Boucher, tome 2, 717. See also Le Guidon, chap. 
 2, § 5, in Cleirac, Us et Contumes de la Mer, 197, edit. 1671. Ord. of 
 Stockholm. 1756; 2 Magen, 257. Ord. of States General of the Nether- 
 lands, in 1622, 1657, 1665, and 1689. Cited in Bynk. Quaes. J. Pub. lib. 1, 
 chap. 21. Emerigon, des Ass. tome 1, 128.
 
 INSURING THE PROPERTY OF A PUBLIC ENEMY. 105 
 
 was substantially the same thing.* As to how far a foreign domicil 
 communicates to a citizen the disabilities of an alien enemy, see 
 1 Kent, Com. § 4. 
 
 Such contracts are not only illegal and void, but repugnant to 
 every principle of public policy. The law will not permit one 
 under the obligations of patriotic duty, to subject himself to such 
 a temptation to disloyalty. A subject in time of war, cannot with- 
 out license from his government, bring home even in a neutral 
 vessel, goods purchased in the enemy's port after the commence- 
 ment of hostilities.* 
 
 A policy of insurance entered into in the name of a British sub- 
 ject, as trustee for the persons interested, though the property 
 insured is of British manufacture and exported from that country, 
 cannot be enforced under the law of England.' Even if the con- 
 tracting parties are ignorant, at the time of entering into the 
 contract, of the existence of the war, the rule is the same.* Al- 
 though the war breaks out after the effecting of the policy and 
 after the commencement of the risk, yet in no instance can the 
 policy be enforced, or the interest insured be protected while it 
 remains impressed with the character of hostility.* 
 
 •Valin, Com. tome 3, 32. 
 
 ^rotts V. Bell, 8 T. R. 548. 
 
 ^Brandon v. Nesbitt, 6 T, R. 23; Bristow v. Toicers, 6 T. R. 35; Kensington 
 V. Inglis, 8 East, 289, 290; Ex parte Lee, 13 Ves. Jr. 64. 
 
 *Otm V. Bruce, 12 East, 225. 
 
 ''Brandon v. Curling, 4 East, 410; Garnha v. Le Mesurier, 4 East, 407; Kell- 
 ner v. Le Mcsuner, 4 East, 403, 404; Tauteng v. Hubbard, 3 Bos. & P. 
 299-301; Lubbock v. Potts, 7 East, 451; Flindt v. Waters, 15 East, 265, 9 
 East, 292; Blanche v. Fletcher, Douffl. 251; Die. of Lord Mansfield. co?i^;a/ 
 f\irtado V. liodgers, 3 Bos. & P. 201, confines the doctrine to losses by 
 British capture. Abb. Shipp. 439, 440. But see cases supra, la But 
 terjield v. Windle, 2 East, 385, the objection was not taken.
 
 CHAPTER Y. 
 
 PRIVATE CONTRACTS AND CIVIL GOVERNMENTS. 
 
 §17. Contracts Affecting Injuriously the Operations of the Govern- 
 ment. 
 
 18. Contracts Contingent upon Ministerial Action. 
 
 19. Contracts to Influence legislation. 
 
 20. Contracts Influencing Elections or Appointments. 
 
 21. Contracts Obstructing Public Justice — Mainteiiance ami 
 
 Champerty. 
 
 22. Contracts to Influence the Action of Corporations. 
 
 § 17. Contracts Affecting Injuriously the Operations of the 
 CrOvernnient. — A contract which looks to the injury of the puh- 
 lic service is void, as contravening the interest which the pubhc 
 have in the proper performance of that service.' 
 
 All agreements for pecuniary consideration to control the busi- 
 ness operations of the government, or the regular administration 
 of justice, or the appointments to public offices, or the ordinary 
 course of legislation, are void as against public policy, without 
 referejice to the question whether improper means are contem- 
 plated or used in their execution.' 
 
 A person who assists a public officer in depriving the public of 
 the benefits of a statutory protection designed to guard the people 
 against unfit and incompetent school teachers has no standing in 
 court, and his assignee will receive no greater consideration.' 
 
 Agreements whereby the due performance of public duties is 
 endangered or prevented are illegal." 
 
 ^Bay V. MacUn, 100 111. 246; Providenee Tool Co. v. Nbrris, 69 U. S. 2 Wall. 
 45, 17 L. ed. 868. 
 
 ^Providence Tool Co. v. JVorris, 69 U. S. 2 Wall. 45, 17 L. ed. 868. But as to 
 appointments, see Phelan v. New York, 38 N.Y. S. R. 805. 
 
 ^Goose River Bank v. Willow Lake School Twp. (N. D.) 44 N. W. Rep. 1002. 
 
 ''■GibU V. Consolidated Oas Co. of Baltimore, 130 U. S. 396. 32 L. ed. 979; 
 Morris Bun Coal Co. v. Barclay Coal Co. 68 Pa. 173; Hartford & N. H. 
 B. Co. V. N. T. & N. H. B. Co. 3 Robt. 411 ; Stanton v. Allen, 5 Denio, 484; 
 Cliarltm, v. Netccastle & C. B. Co. 5 Jur. N. S. 1096; /Si. Louis v. St. Louis 
 Gas Light Co. 5 Mo. App. 484; Woodstock Iron Co. v. Bichmond & D. Ex- 
 tension Co. 129 U. S. 643, 32 L. ed. 819; Burke v. Child, 88 U. S. 21 
 
 106
 
 CONTEACTS AFFECTING OPERATIONS OF THE GOVERNMENT. lOT 
 
 Personal influence to be exercised over an officer of the govern- 
 ment for the procurement of contracts is not a vendible article.* 
 A contract which contemplates the use of personal influence or 
 solicitation with municipal authorities to procure a contract from 
 the citj is void as against public policy.'' 
 
 But a contract to pay a lawyer a certain sum to appear before 
 the street commissioners, and advocate the laying out of a street 
 through land of the promisor, and to get as much as he can as 
 damages therefor, is not against public policy, but it is a valid 
 contract, which will not be invalidated by evidence tending to show 
 the subsequent use by the lawyer of his personal influence as 
 chairman of the city committee of a pohtical party in fulfilling 
 his part of the contract.^ 
 
 An agreement to induce a public officer to do an illegal act or 
 to neglect his duty is void.* 
 
 Where a city officer corruptly agrees with another person that 
 the latter shall buy certain property selected by a board of which 
 the officer is a member as suitable for a certain public purpose, 
 and that the officer shall use his influence to induce the board to 
 purchase it from the other at an advanced price, the profits to be 
 divided between them; and the fraud is consummated by means 
 of the information given by the officer and his influence with the 
 board, — they are alike liable to the city for the injury sustained.' 
 
 Wall. 441, 22 L. ed. 623; Irwin v. Williar, 110 U. S. 499. 28 L. ed. 225; 
 
 Arnot V. Fittston & E. Coal Co. 68 N. Y. 558; Central Ohio Salt Co. v. 
 
 Guthrie, 35 Ohio St. 666; Woodruff v. Berry, 40 Ark. 261; Craft v. Mc 
 
 Conoughy, 79 111. 346; Hooker v. Vandewater, 4 Denio, 349; Central R. 
 
 Co. V. Collim, 40 Ga. 582. 
 ^Oscanyan v. Winchester Repeating Arms Co. 103 U. S. 261, 26 L. ed. 539; 
 
 Real V. Polhemus, 10 West. Rep. 885, 67 Mich. 180; Brown v. Brown, 34 
 
 Barb. 536; Orai/ v. Hook, 4 N. Y. 449: Sedgwick v. Stanton, 14 N. Y. 294; 
 
 Lyon V. Mitchell, 36 N. Y. 241; MUls v. Mills, 40 N. Y. 543; Fuller v. 
 
 Dame, 18 Pick. 472; Frost v. Belmont, 6 Allen, 152; Harris v. Roof, 10 
 
 Barb. 489; Rose v. Truax, 21 Barb. 372 ; Wilbur v. New York Electric 
 
 Const. Co. 26 Jones & S. 539; Ballaire Qoblet Co. v. Findley, 5 Ohio C. C. 
 
 418. 
 '^Wilbur V. New York Electric Const. Co. 35 N. Y. S. R. 81. 
 ^Barry v. Capen, 6 L. R. A. 808, 151 Mass. 99. 
 *Hodsdon v. Wilkins, 7 Me. 113; Denny v. Lincoln, 5 Mass. 385; Churchill v. 
 
 Perkins, 5 Mass. 541; Newsom v. Thighen, 30 Miss. 414; Fanshor v. Stout, 
 
 4 N. J. L. 319; Satierlee v. Jones, 3 Diier. 103; Doty v. Wilson^ 14 Johns. 
 
 381; Richardson v. Crandall, 48 N. Y. 348; Devlin v. Brady, 36 N. Y. 
 
 531; Webbers v. Blunt, 19 Wend. 188. 
 ^Boston V. Simmons, 6 L. R. A. 629, 150 Mass. 461.
 
 lOb I'KIVATE COJN'i'liAOTS AND CIVIL GOVEKNMBNTS. 
 
 An agreement for compensation, to procure a contract from the 
 government to furnish its supphes, cannot be enforced by the 
 courts, it being against public poHcy,' 
 
 A contract by a municipal corporation to pay a public oflBcer a 
 percentage compensation, in addition to, or instead of that pre- 
 scribed by law, is against public policy and void." But a contract 
 made pursuant to an Act to secure a fuller and better return of 
 property for taxation, and to prevent omissions of property from 
 the tax duplicate, is valid/ 
 
 A promissory note given by a defaulting outgoing county treas- 
 urer to his successor, upon condition that action should not be 
 brought on his official bond, is supported by a good consideration.* 
 
 Every citizen has a right of access to the official records and to 
 use them for any legitimate purpose; and an agreement made by 
 a circuit clerk and recorder of the county, stipulating that he 
 should exclude others than the party with whom he was contract- 
 ing, from using the records for the purpose of making out an 
 abstract of title, or using his influence to prevent and hinder their 
 free use, is void, as being in contravention of public policy. A 
 recovery cannot be had on a promissory note given in considera- 
 tion of such agreement/ 
 
 § 18. (/Oiitracts Contingent upon Ministerial Action. — Con- 
 tracts, the performance of which is made contingent on adminis- 
 trative or ministerial action, are, however, sustained, except when 
 the contingency has been connected with some promise to induce 
 such action by fraudulent and corrupt influence." 
 
 ^Providence Tool Co. v. Norris, 69 U. S. 2 Wall. 45, 17 L. ed. 868; Carman 
 
 V. Maloney (D. C.) 9 Cent. Rep. 520. 
 '^ Adams County v. Hunter, 6 L. R. A. 615, 78 Iowa, 328. 
 ^State V. Crites, 48 Ohio St. — . 
 *8ac County v. Hobbs, 72 Iowa, 69. See note to First Presb. Church v. 
 
 Cooper (N. Y.) 3 L. R. A. 468. See United States v. Wiudo?n, 137 U. S. 
 
 636, 34 L. ed. 811 ; but see Lake Fork Special Drainage Dist. Comrs. v. 
 
 People, — 111. — 27 N. E. Rep. 857. 
 '^Parsons v. Randolph, 4 West. Rep. 863, 21 Mo. App. 353; Nash v. Lathrop, 
 
 1 New Eng. Rep. 918, 142 Mass. 29; Be Gould, 1 New Eng. Rep. 925, 5a 
 
 Conn. 415. 
 *Sedgwick v. Stanton, 14 N. Y. 294; Rowland v. Coffin, 47 Barb. 663; South- 
 ard V. Boyd, 51 N. Y. 179; Slate v. Johnson, 52 Ind. 197; Cumberland 
 
 Valley B. Co. v. Baab, 9 Watts, 458; Berry man v. Cincinnati S. B. Co. 
 
 14 Busli, 755; Stanton v. Embry, 63 U. S. 548, 23 L. ed. 983; Denison v. 
 
 Oraicford Co. 48 Iowa, 215; Bohm v. Goldstein, 53 N. Y. 634; Hunt v. 
 
 Test, 8 Ala. 713.
 
 CONTKACTS CONTHSTGENT UPON MINISTEKIAL ACTION. 109 
 
 The right to sell and dispose of property is an essential element 
 of ownership. The appearance of a party before the heads of 
 departments for such purpose, in person or by agent, is proper and 
 necessary for the administration of the government. Government 
 property cannot, in any other way, be leased, bought or sold.' 
 The rule is that the law will not presume a contract void as against 
 public policy if it is capable of a construction making it valid," 
 
 A promissory note payable on condition that the payee shall 
 erect a building at a point designated in a city and that the build- 
 ing, as designated, shall be occupied as a post-office, where the 
 court found the contract was a valid one and for a valuable con- 
 sideration without fraud on the part of the payee, and that it was 
 not in contravention of any law or contrary to public policy, and 
 that, in seeking the post-office to be located in the building, the 
 payee used no undue influence upon any departments or officer of 
 the government, and was not guilty of any corruption or corrupt 
 practice in making such contract, — was sustained as a valid con- 
 tract.* 
 
 But a contract to pay a certain sum to induce the retention of 
 a postoffice at a given point for individual or private benefit or 
 gain is said to be against public policy." 
 
 Contracts for the location of a county-seat are not void as against 
 public policy because individuals directly interested held out 
 inducements, by way of donations of land or money, to influence 
 the action of those charged with the duty of making the selec- 
 tion.' 
 
 Though an agreement to indemnify an officer for doing an 
 unlawful act, or contract to indemnify an officer for neglecting his 
 duty, is void,' yet a bond to save an officer harmless for an unlaw- 
 ful act already done is valid.' 
 
 ^Lyon V. Mitchell, 36 N. Y. 249; Howland v. Cojfin, 47 Barb. 662, 663; 
 
 Southard v. Boyd, 51 N. Y. 177; Winpenny v. French, 18 Ohio St. 469. 
 ^KUng V. Fries, 38 Mich. 275, 279; Curtis v. Ookey, 68 N. Y. 300; Ormes 
 
 V. Dauchy, 82 N. Y. 443; Lorillard v. Clyde, 86 N. Y. 384. 
 ^Beal V. Polhemus, 10 West. Rep. 887, 67 Mich. 130. 
 
 * Woodman v. Innes, — Kan. , 27 Pac. Rep. 125. 
 
 ^Beham v. Oliio, 75 Tex. 87. 
 
 ^Hodsdon Y.Wilkins, 7 Me. 113; Churchill v. Perkins, 5 Mass. 381; Ayer v. 
 
 Hutchins, 4 Mass. 371; Pierce v. Chase, 8 Mass. 487. 
 ''Eackett v. Tilley, Holt, 201, 11 Mod. 93, 2 Ld. Raym. 1207; Fox v. Tilly, 6 
 
 Mod. 225; GiTen v. Driggs, 1 Cai. 450, 460; Hall v. Huntoon, 17 Vt. 244; 
 
 Metcalf, Cont. (Heard's ed.) 284.
 
 110 PKIVATE CONTKACTS AND CIVIL UOVEKNMKNTS. 
 
 § 19. Contracts to Influence Legislation. — Persons who are 
 personally interested in pending legislation, are not guilty of a 
 breach, either of morals or of the law in calling the attention of 
 the members of the legislative body to the measure whose passage 
 they desire, nor can personal solicitation, within the bounds of 
 moderation, unaccompanied by any promise of reward, be justly 
 criticised.^ 
 
 While a contract for the employment of a person to present a 
 measure pending before the Legislature, or to be presented before 
 it, is legitimate, where it involves the presentation before a com- 
 mittee, of facts and arguments favorable to such legislation, and 
 may be fairly sustained, yet an attempt to secure legislative action 
 or to influence the action of the executive or judicial officers by 
 personal influence or solicitation, is against public policy; and all 
 contracts and promises of reward for such services are void.'' 
 
 A contract for the performance of lobby service for another for 
 a consideration is against public policy and void.' 
 
 A contract founded on an agreement to obtain signatures for a 
 protest, or to procure the passage of an Act of the Legislature by 
 using personal influence, is void." 
 
 A contract by which one party stipulates to employ a number 
 of secret agents, in order to obtain the passage of a particular 
 law, in consideration of a large sum of money, is void.^ 
 
 ^Gulick V, Ward, 10 N. J. L. 103; Harris v. Simonson, 28 Hud, 318; Pingr'if 
 
 V. Washburn, 1 Aik. 264; Fuller v. Dame, 18 Pick. 472; Clippinger v. 
 
 Hepbaugh, 5 Watts & S. 315. 
 •^Lyon V. Mitchell, 36 N. T. 241; Mills v. Mills, 40 N. Y. 546, 36 Barb. 474; 
 
 Gray v. Hook, 4 N. Y. 449; Providence Tool Co. v. JSorris, 6 U. S. 2 Wall. 
 
 45. 17 L. ed. 868; Marshall v. Baltimore & 0. JR. Co. 57 U. S. 16 How. 
 
 314, 14 L. ed. 953; McKee v. Cheney, 52 How. Pr. 144; Edicards v. Grand 
 
 Junction B. Co. 1 Myl. & C. 650; Harris v. Eoof, 10 Barb. 489; Rose v. Tru- 
 
 ax, 21 Barb. 361; Powers v. Skinner, 34 Vt. 214; Smithy. Applegate, 25 N. 
 
 J. L. 352; Frost v. Belmont, 6 Allen, 152; Hatzfield v. Gulden, 7 Watts, 152; 
 
 Martin v. Second & Third St. Pass. R. Co. 3 Phila. 316; C^inningham v. 
 
 Cunningham, 18 B. Mon. 19; WoodY. MeCann, 6 Dana, 366; Hunt v. Test, 
 
 8 Ala. 713; McBratney v. Chandler, 22 Kan. 692; Filson v. Himes, 5 Pa. 
 
 452; Cummings v. Sa\ix, 30 La. Ann. 207 ; Frankfort v. Winterport, 54 
 
 Me. 250; Usher v. McBratney, 3 Dill, 385; Coquillard v. Bearss, 21 Ind. 
 
 479 As to presumption of illegality, see Millhank v. Jones, 38 N. Y. S. 
 
 R. 910. 
 ^Burke v. Child (Trist v. Child), 88 U. S. 21 Wall. 441, 22 L. ed. 623; Sweeny 
 
 V. 3icLeod, 18 Or. 330. 
 *Hatzileld v. Gtilden, 7 Watts, 152; Clippinger v. Hepbaugh, 3 Watts & S. 
 
 315. 
 ''Marshall v. Baltimore & 0. R. Co. 57 U. S. 16 How. 314, 14 L. ed. 953.
 
 C0>;TKACTS I^iFLUE^Cl^U ELECTIONS OR AFPOIMTMEN IS. Ill 
 
 Contingent compensation for securing the passage of legislation 
 is likelj to induce an attempt to use improper means to accom- 
 plish success, and such contracts are looked upon with disfavor by 
 the com'ts.* 
 
 § 20. Contracts Influencing Elections or Appointments. — 
 
 All agreements which interfere with the integrity, discretion, or 
 freedom of the electing or appointing power are illegal.'' 
 
 Promises by candidates for offices, made with intention to 
 swerve a voter from his duty to consider qualification for office 
 only, and to trammel the free exercise of his right of suffrage, are 
 subversive of the plainest dictates of public policy.' 
 
 The agreement of a candidate for public office that he will 
 reimburse an association promoting his canvass, for its expenses 
 for advertising, clerk hire, room rent, etc., is unlawful and void. * 
 So a contract to obtain, by private means, appointment to a pulj- 
 lic office is void.^ 
 
 A promise to aid in the election of another cannot be made the 
 foundation of an action.^ 
 
 The sale of a person's influence to obtain office for another is 
 void at common law.'' 
 
 Contracts for the sale of public office are void;* or to secure 
 support in a candidature.' So of a contract to give a subordinate 
 
 ^Marshall v. Baltimore & 0. R. Co. 57 U. S. 16 How. 324. 14 L. ed. 957- 
 Wood V. McCann, 6 Dana, 366; Gil v. Williams, 13 La. Ann. 219; Bryau 
 V. Reynolds, 5 Wis. 200; iuller v. Dame, 18 Pick. 472; Weed v. Black, 2 
 McArth. 268. 
 
 ^Martmell v. EarUcell, 4 Ves. Jr. 811; Wallis v. Portland, 3 Ves. Jr. 494; 
 Stevens v. Bagictll, 15 Ves. Jr. 139; Morris v. MacCullock, 2 Eden, 190; 
 Ilaningion v. Du Chatel. 1 Bro. Ch. 124; Boynton v. Hubbard, 7 Mass. 
 112, 119; Ferris v. Adams, 23 Vt. 136; Hunter v, Nolf, 71 Pa. 282; Me 
 guire v. Corwine, 101 U. S. 108, 25 L. ed. 899; Reed v. Pex»er Tobacco 
 Warehouse Co. 2 Mo. App. 82; Guernsey v. Cook, 120 Mass. 501. Set 
 PMan V. New York 38 N. T. S. R. 805. 
 
 ^Ah-ord V. Collin, 20 Pick. 428. 
 
 *Foley V. Speir, 1 Cent. Rep. 716, 100 N. Y. 552. 
 
 ^Meguire v. Corwine, 101 U. S. 108, 25 L. ed. 899; Filson v. Himes, 5 Pa. 
 452; Lewis, Crim. L. 123. 
 
 ^Martin v. Wade, 37 Cal. 168; Nichols v. Mudgett, 32 Vt. 546; O'Rear v. 
 
 Kiger, 10 Leigh, 622. 
 ''Meguire v. Corwine, 101 U. S. 108, 25 L. ed. 899; Martin v. Wade, 37 Cal. 
 
 168; Carlton v. Whitcher, 5 N. H. 196; Cardigan v. Page, 6 N. H. 183; 
 
 Boynton v. Hubbard," Mass. 119; Stroud v. Smith, 4 Houst. (Del.) 448; 
 
 Gaston v. Brake, 14 Nev, 175. 
 »Outon V. Rodes, 3 A. K. Marsh. 433. 
 ^Swayze v. Hull, 8 N. J. L. 66.
 
 112 PRIVATE CONTKAOTS AND CIVIL GOVEKNMENTS. 
 
 office in consideration of receiving personal services from the 
 appointee.' 
 
 A agreed to pay B 2 per cent commission to procure a pur- 
 chaser for the office of surveyor of baggage of the city of Q. 
 Such an agreement is void." 
 
 A purchased the office of constable from the town of W. and 
 afterwards brought suit to recover the price paid. He was non- 
 suited.^ 
 
 An agreement between candidates that each will pay to the 
 other one half of the net proceeds of his office is against public 
 policy and cannot be enforced.* 
 
 An agreement to abandon an election contest in consideration 
 of a sum of money is void.' So, an agreement between candi- 
 dates that one shall withdraw in favor of the other is void.' 
 
 A corrupt agreement between two officers in whom were vested 
 certain county nominations for the allotment of certain votes, is a 
 conspiracy at common law.^ 
 
 Any agreement to divide the emoluments of an office is void.* 
 
 A contract by which the salary of an office is assigned to other 
 parties is void as against public policy.' 
 
 Where an outgoing city treasurer, a defaulter, and the candi- 
 date who, if elected, would be his successor in office (the malver- 
 sations of the incumbent being known to such candidate at the 
 time, and who, to screen his friend, the outgoing incumbent, from 
 liability, consented to run for the office), entered into a contract 
 wherein it was agreed that the defaulter incumbent should con- 
 tinue during the term of his successor to retain custody of the 
 
 ' Waldron v. Evans, 1 Dak. 11. 
 
 ■Stackpole v. Earle, 2 Wils. 133; Greenhood, Pub. Pol. 593. 
 
 ^Qroton v. Waldoborough, 11 Me. 306. Contra, Wliittingham v. Burgoyne, 
 3 Anstr. 900; Morris v. McCuUock, Ambl. 433. 
 
 •^Glover v. Taylor, 38 La. Ann. 634. 
 
 ^Coppock V. Bower, 4 Mees. & W. 361. 
 
 ^Eam V. Smith, 87 Pa. 63; Hunter v. Nolf, 71 Pa. 282; Martin v. Wade, 37 
 Cal. 168; Oray v. Book, 4 N. Y. 449; Benedict v. Bhler, Lewis, Crim. L. 
 126. 
 
 ''Com. V. Callaghan, 2 Va. Cas.460. 
 
 * Gaston v. Brake, 14 Nev. 175. 
 
 ^Eyall V. Bowles, 2 Lead. Cas. Eq. *734, 1 Ves. Sr. 348; Bavis v. Marlbor- 
 ough, 1 Swanst. 74; Cooper v. Beilly, 2 Sim. 560; Balmer v. Bate, 2 Brod. 
 &B. 673; Pollock, Cont. 289; Leake, Cont. 727.
 
 CONTRACTS INFLUENCING ELECTIONS OK APrOLSTMENTS. 113 
 
 funds and generally perform all the duties of the office, his suc- 
 cessor merely to sign the official reports and be treasurer merelj 
 in name, such contract is void as against public policy.' 
 
 It has been held that there is no difference in principle between 
 the sale of an office for a valuable consideration and the disposing 
 of it to the person who will perform its duties for the lowest com- 
 pensation.' 
 
 To permit a candidate, in order to influence the voters, to bold 
 out a promise that he will serve, in case of election, for less than 
 the fees or salary fixed by law, is to thwart the will of the Legis- 
 lature, and to defeat the object of the law. It is unjust to honest 
 aspirants who rely upon their merits for political preferment, and 
 tends to degrade the public service by making the offices not the 
 reward of official capacity and honoral)le conduct, but the prey of 
 those who by reason of incapacity to earn a livelihood in the com- 
 mon pursuits of life are willing to undertake the duties of public 
 service for a less sum than the Legislature has deemed an ade- 
 quate compensation for the work. It puts up the offices of the 
 State to the lowest bidder and conduces to influence the voters to 
 lose sight of the personal fitness of the respective candidates and 
 to be governed by considerations of a false economy." 
 
 It may be that an offer by a candidate for county clerk to remit, 
 in case of his election, his fees for ex officio services, should be 
 deemed an offer to contribute to each taxpayer his proportion of 
 the taxes necessary to raise the sum so remitted. 
 
 In Carrothers v. Riissell, 53 Iowa, 346, 36 Am. Eep. 222, the 
 Supreme Court of Iowa held such a promise virtually an offer to 
 bribe the voters. But it does not follow that, in the absence of 
 some constitutional or statutory provision, a candidate who has 
 made such promise and has received the highest number of votes 
 and has taken the required oath can be removed from office by 
 the mere proof of the fact in the proceeding in which he is sought 
 to be ousted. 
 
 The case of Com. v. Jones, 10 Bush, 725, is an authority bear- 
 
 ^Cobhs V. Hixson, 4 L. R. A. 682, 75 Mich. 260. 
 
 ^Bacon, Abr. Offices, F; Stockwith v. North, F. Moore, 781; Blackford v. 
 
 Preston, 8 T. R. 89; 1 Hawk. P. C. chap. 67, § 3; State v. Dustin, 5 Or. 
 
 375. 
 estate V. Hnmphrey, 5 L. R. A. 217. 74 Tex. 466. 
 S
 
 114 riilVATE COiSTKACTS AND CIVIL GOVER^'MEJ!ifTS. 
 
 ing upon the qnestion. The Constitution of Kentucky reqnire& 
 every person before accepting office to take an oath that he has 
 not fonght a duel or sent or accepted a cliallonge to tight a duel. 
 That Constitution also contained the furtlier provision which de- 
 clared that anyone who had fought a duel or sent or accepted a 
 challenge should be disqualified from holding office. In the case 
 cited it was held that a party who liad been elected to an office and 
 had qualified by taking the prescribed oath could not be deprived 
 of his office until he had been legally convicted of the offense of 
 having sent a challenge, in a pro])er criminal proceeding, upon an 
 indictment charging him with that olfense. 
 
 In Greenhood on Public Policy (p. 341) it is said : "So far lias 
 the doctrine, which prohibits anything which might influence the' 
 selection of public officers from other considerations than that of 
 personal merit, been carried, that an election secured by a promise 
 on the part of a candidate to perform the duties of the office to 
 which he aspires, if elected, for less than the legal fees or salary) 
 is void." The same doctrine is recognized in McCrary on Elections 
 (3d ed.) § 181. If the authors mean to assert that an election so 
 procured is void, without reference to the question whetiier or not 
 a sufficient number of voters were induced by the promise, to 
 vote for the successful candidate, to have changed the result, they 
 are not supported by the authorities which they cite. 
 
 In Ccwrothers v. Russell, 53 Iowa, 346, the Iowa court held 
 that a promise by a candidate to pay into the treasury, if elected, 
 all the fees of his office in excess of $1,000, rendered him inehgi- 
 ble; but the decision is expressly based upon the provisions of a 
 statute of that State. 
 
 In State v. Pitrchj, 36 Wis. 213, 17 Am. Rep. 485, it was de- 
 cided, merely, that the votes which were procured by a similar 
 promise should be rejected. To the same effect was State v. Olin, 
 23 Wis. 327. 
 
 In State v. Collier, 72 Mo. 13, 37 Am. Rep. 417, the informa- 
 tion charged that a like promise had been made and that a suffi- 
 cient number of votes had been influenced thereby to change the 
 result. The court held that a demurrer to the information was 
 improperly sustained; but it did not hold either that the election 
 was void or that the candidate was disqualified.
 
 CONTRACTS OBSTKUCTING PUBLIC JUSTICE. 115 
 
 In Tucker v. Aiken .. 7 N. H. 113, tlie selectmen of a town had 
 put up the office of collector of taxes to the lowest bidder, and 
 his right to the office was collaterally brought into question in the 
 suit. It was held that the question could not be determined in a 
 collateral proceeding. 
 
 In Hall V. Gavitt, 18 Ind. 390, it was decided that the sale bj 
 a sheriff of the office of deputy was void; and that a bond given 
 as a part of the bargain by the deputy to the sheriff for the faith- 
 ful performance of his duties was also void. 
 
 There are some other cases which might be cited, but these 
 approach most nearly the question; and it is clear tliat none of 
 them bold that an election procured by such a promise is void, or 
 that, in the absence of a written law so declaring, the incuml^ent 
 so elected can be ousted for that reason alone. 
 
 It has however been held that proof that a candidate for the 
 nomination of county commissioner in Pennsylvania violated the 
 statute of that State, enacted to prevent fraud at nominating elec- 
 tions, is, under the Constitution disqualifying such person from 
 holding office, sutHcient, after his election, to oust him from the 
 office.' 
 
 Where it was proved that a candidate for Parliament promised 
 money to voters to induce them to vote, the indictment, though 
 bad for uncertainty, was cured by the verdict of guilty." 
 
 §21. Coiitrjicts Obstructing Public Justice — Maiuteiiaiice 
 and Champerty. — Any agi-eement which looks to the concealment 
 of immoral or vicious or criminal conduct, is opposed to public 
 policy and void.' 
 
 In general it is to the interest of the public that the discontinu- 
 ance of a prosecution, for an offense which seriously affected the 
 public, whether a felony or a misdemeanor, should not be made 
 matter of private bargain; and hence the suppression or settlement 
 of such prosecution, except in cases of slight assault, is contrary to 
 public policy and therefore void, unless such settlement is in a 
 
 ^Leonard v. Com. 112 Pa. 007. 
 
 '^Reg. V. Stroulger, L. R. 17 Q. B. Div. 327. 
 
 ^Brmcn v. Brine. L. R. 1 Exch. Div. 5; Windhill Local Board of Health v, 
 Vint, L. R. 45 Ch. Div. 351; Barrett v. Weber. 125 N. Y. 18.
 
 116 PmVATE CONTUAOTS AND CIVIL GOVERNMENTS. 
 
 case where the law provides such an arrangement, or where the 
 injured party may find an adequate remedy in a civil suit.' 
 
 If any part of the consideration of a contract or a note ormort- 
 gao^e is the stitiing or discontinuance of a criminal prosecution 
 for any offense against the public — the compounding of an offense 
 — the whole contract is void. There is no offense, touching the 
 ])ublic as such, whose prosecution can be made a matter of private 
 arrangement," 
 
 So a contract to obstruct justice, however the purpose may be 
 concealed, is void.' 
 
 An agreement to deprive the courts of jurisdiction is void.' 
 But parties may so bind themselves and prescribe the instruments 
 of evidence as to prevent the cuurt from looking beyond their 
 agreement.* 
 
 An attorney cannot recover for his services under an employ- 
 
 ' Collins V. Blautern, 2 Wils. 341, 1 Smith, Lead. Cas. (8th Am. ed.) 715, 718; 
 Geier v. jShade. 109 Ph. 180; Fisher v. Apollinaris Co. L. R. 10 Ch. 291; Fap 
 V. Oatley, 6 Wis. 42, 59; Price v. Summers, 5 N. J. L. 578; OreenfleldBank 
 V. Crafts, 4 Allen, 447; Union Bank v. Middlebrook, 33 Conn. 95; Casco 
 Bank v. Keene, 53 Me. 103. But see Vincent v. Groom, 1 Yer/;. 430: Unk- 
 man v. Wright, 32 Oliio St. 405; Jones v. Rice, 18 Pick. 440; Carley v. Wil- 
 liams, 1 Bail. L. 588; Lindsay v. Smith, 78 N. C. •i2S;BoiDen v. Buck, 28 Vt. 
 308; Grayv. Seigler, 2 Strobh. L. 117; Shisler v. Vandike, 92 Pa. 447; 
 Brook V. Hook, L. R. 6 Exch. 89. 
 
 ^Averbeck v. Hall, 14 Bush, 505; Rhodes v. Neal, 64 Ga. 704; Pearce v. Wil- 
 son, 2 Cent. Rep. 57, 111 Pa. 14; Riddle v. Hall, 99 Pa. 116; Ormeroa v. 
 Dearman, 100 Pa. 561; Whitmore v. Farley, 45 L. T. N. S. 99; Foley v. 
 Greene, 1 New Eng. Rep. 17, 14 R. I. 618; Daimouth v. Bennett, 15 
 Barb. 541; Wisner v. Bardicell, 38 Mich. 278; Kimbrough v. Lane, 11 
 Bush, 556; Gardner v. Matey, 9 B. JVIon. 90; Bierbauer v. Wirth, 10 Biss. 
 60; Pearce v. Wilson, 2 Cent. Rep. 57, 111 Pa. 14; Sumner v. Summers, 
 54 Mo. 340; Osbaldiston v. Simpson, 13 Sim. 513; Bredm's App. 92 Pa. 
 241; Wheaton v. Ansley, 71 Ga. 35; Ham v. Smith, 87 Pa. 63; Guimrd 
 County Comrs. v. March, 89 N. C. 268; Young v. Robertson, 6 Phila. 184; 
 Burkholder v. Beetem, 65 Pa. 496; Shisler v. Vandike, 92 Pa. 447; Work- 
 manv. Wright, 44 Ohio St. 405; Mcllngh v. Schuylkill County, 67 Pa. 
 391; Brook v. Hook, L. R. 6 Exch. 89; Haines v. Lewis, 54 Iowa, 301. 
 
 ^Daickins v. Gill, 10 Ala. 206; Banks v. May, 3 A. K. Marsh. 435; Hawkeye 
 Ins. Co. V. Brainard, 12 Iowa, 130; Touro v. Cassin, 1 Nott «& McC. 174; 
 State V, McKiustry, 50 Ind. 465; Patterson v. Donner, 48 Cal. 369; ifoW v. 
 Raguet, 4 Ohio, 400; Stoutenbui-g v. Lybrand, 13 Ohio St. 228; Baker v. 
 i^'arm, 61 Mo. 389; Southern Exp. Co. v. Duffey, 48 Ga. 358; Ormerod v. 
 Dearman, 100 Pa. 561; Ricketts v. Harvey, 78 Ind. 152; Herman v. Jeuch- 
 ner, L. R. 15 Q. B. Div. 561; Cambiosov. Maffett, 2 "Wash. C. C. 98; 5ar- 
 ro/i V. Tucker, 53 Vt. 338; G'rove v. McCalla, 21 Pa. 44; .Sto^6 v. ^'o^^*, 25 
 Vt. 415;i>2:w/i V. Olmstead, 9 Vt. 310; iJfern7i v. Car?-, 16 N. H. 114; 
 Thomas v. Caulkett, 57 Mich. 392. 
 
 ■* Waugh v. Schlenk, 23 111. App. 433. 
 
 ^Crumlish v. Wilmington & W. R. Co. 5 Del. Ch. 270.
 
 CONTRACTS OBSTKUCTING PUBLIC JUSTICE. 117 
 
 ment to obstruct the course of justice by procuring the release 
 from jail of a witness, in order to get him out of the way/ 
 
 A contract made by a justice of the peace with a litigant in his 
 court, that such litigant should not be required to pay any fees or 
 costs therein unless procured from the adverse party, is contrary 
 to public policy and void." 
 
 A contract to pay for the postponement of the execution of a 
 search, warrant is void.^ 
 
 Although a witness is beyond the process of the court, yet his 
 attendance cannot be induced by a promise to pay a compensation 
 dependent in amount upon the success of the party promising in 
 his suit.* 
 
 JMor M'ill a promise to a witness, if he avoids an appearance to 
 testify, be enforced.' 
 
 An agreement to give bail or to secure one doing this, to ena- 
 ble a prisoner to escape is void.' Payment for signing a petition 
 for pardon cannot be enforced on a promise to make compen- 
 sation.'' 
 
 A defendant in a partition suit must make known to the court 
 and to his co-defendants any fact within his knowledge which 
 will prevent a cuntirmation of the sale; hence an agreement by 
 him, with knowledge that the property was sold for less than its 
 real value, to refrain from objecting to the confirmation of the 
 sale in consideration of the payment to him of an additional sum 
 for his interest in the property, is a fraud upon the court and his 
 co-defendants, is against public policy, and will not be enforced in 
 favor of either party thereto. 
 
 It was a promise to pay a consideration for the concealment of 
 a fact from the court and the parties, material to the i-ights of said 
 parties, and which it was his duty to make known. Such a con- 
 
 ^ Crimp V. Orosslight, 79 Mich. 380. 
 
 ^Hawkeye Ins. Co. v. Brainard, 72 Iowa, 130. 
 
 ^MerrUl v. Carr, 60 N. H. 114. 
 
 *Dawkins v. Gill, 10 Ala. 206. 
 
 ^Bierbauerv. Wirth, 10 Biss. 60. 
 
 ^Baehr v. Wolf, 59 111. 470; Dunkin v. Hodge, 46 Ala. 523. 
 
 ''Buck V. First Nat. Bank of Paw Paw, 27 Mich. 293. See Haines v. Lewis, 
 54 Iowa, 301; Guilford County Comrs. v. March, 89 N. C. 268.
 
 118 I'UIVATE CONTKACTS AND CIVIL GOVERNMENTS. 
 
 tract was against public policy and neither party should receive 
 the aid of the courts to enforce it.' 
 
 Champerty is a species of maintenance, which at common law 
 was an indictable offense. Maintenance was an officious inter- 
 meddling in a lawsuit by a mere stranger without protit." Cham- 
 perty involved the element of compensation for such unlawful 
 interference by bargain for part of the matter in suit, or some 
 profit growing out of it, or, according to some of the authors, as 
 well also for the whole of the thing in dispute.' 
 
 It would accomplish no good to quote at length the numberless 
 <letinitions of these offenses given in the old books. "It appear- 
 <!th that the end of champerty and maintenance is to suppress jus- 
 tice and trutli, or at least to work delay, and therefore it i^malum, 
 in se and ao^ainst the common law.'' * It existed before the Stat- 
 utes of West 1, chap. 25.' 
 
 Sir James Stephen, in his Digest of Criminal Law (note 8), 
 jilludes to the vasrueness with which these crimes are defined bv 
 the ancient common law writers, and discusses the reasons why 
 they have long since become obsolete. 
 
 The ground of their origin is found in the familiar principle 
 stated by Lord Coke: "Nothing,"' he says, "in action, entry or 
 i-e-entry, can be granted over; for so, under color thereof, pre- 
 tended titles might be granted to great men, whereby right might 
 be trodden down and the weak oppressed." ' 
 
 It was a part of the law of maintenance that no chose in action, 
 which included all rights not reduced to possession, could be 
 assigned or transferred. This was on the ground, as said by Mr. 
 
 ^Tappan v. Albany Brm. Co. 5 L. R. A. 428, 80 Cal. 570; Beard v. Beard, 
 b5 Cal. 356. 
 
 •4 Bl. Com. 135; Andreica v. Thayer, 30 Wis. 228; 2 Bouv. Law Diet. (14th 
 ed.) 90; Burrill, Law Diet. ; tkobey v. Rosh, 13 Ind. 117; Brown v. Beav^ 
 champ, 5 T. B. Mon. 413; Rust v. Larue, 4 Litt. 411; Douglass v. Wood, 
 1 Swan, 393; Pechell v. WaUon, 8 Mees. & W. 691, 425. 
 
 3 1 Hawk. P. C. 462, 463; Holloway v. Lowe, 7 Port. (Ala.) 488; Poe v. Davis, 
 29 Ala. 683; Ware v. Russell, 70 Ala. 174; Stanley v. Jones, 7 Bing. 369 : 
 Box V. Barnaby, Hob. 117; Sedgwick v. Stanton, 14 N. Y. 289; Bell v. 
 Smith, 7 Dowl. & R. 846. 
 
 ''2 Inst. 208; 1 Hawk. P. C. 283, § 36, p. 543. 
 
 ^3 Edw. I; 28 Edw. I, chap. 11; 33 Edw. I; 32 Hen. VHL, chap. 9; Wallis 
 V. Portland, 3 Ves. Jr. 494; Stanley v. Jones, 7 Bing. 369; 4 Bl. Com. 
 135; Backus v. Byron, 4 Mich. 535; Swett v. Pooi-, 11 Mass. 554. 
 
 « Co. Litt. 114a.
 
 CONTRACTS OBSTRUCTING PUBLIC JUSTICE. 119 
 
 'Chittv, that " such alienations tended to increase maintenance and 
 litigation, and afforded means to powerful men to purchase rights 
 of action, and thereby enable them to oppress indigent debtors, 
 whose original creditors would not, perhaps, have sued them." * 
 
 It is common knowledge, however, that this rule, refusing to 
 sanction or give effect to the assignment of choses in action, was 
 never adopted by courts of equity, either in England or in this 
 country, and that courts of law, yielding to the growing exactions 
 •of commerce, finally allowed the assignees of such rights to main- 
 tain suits in the name of their assignors.' 
 
 The peculiar state of society out of which such a law grew car- 
 ried it to the most absurd extremes. Men were held indictable 
 for aiding a litigant to find a lawyer; forgiving friendly advice to 
 a neighbor as to his legal rights; for lending money to a friend to 
 vindicate his known legal rights; for offering voluntarily to testify 
 in a pending suit; and otlier like offices of charity and friendship.' 
 
 It is not surprising, therefore, that the law on this subject has 
 gradually undergone a great change, which is recognized univers- 
 ^Uy.by jurists, judges and law writers everywhere; though in some 
 of the states the change is scarcely recognized as it should be by 
 the courts, in others this modification is acknowledged.'' It has 
 been greatly modified in Massachusetts and New York, even be- 
 yond the active aid of legislation.* After adverse possession of 
 leased property has ripened into a title by the expiration of twenty 
 years after termination of the tenancy, a subsequent conveyance 
 
 ' Chitty, Bills, *6, 7. 
 
 » 2 Story, Eq. Jur. Si 1050. 
 
 n Hawk. P. C. Curw. ed. 455. 456, §§ 5-11; 3 Am. & Eng. Enc. L. 71. 
 
 *Gi'aham, v. Graham, 10 W. Va. 355; Oowen v. Nowell, 1 Me. 292; Pratt v- 
 Pierce, 36 Me. 448: AtcJiison, T. & S. F. R. Co. v. Johnson, 29 Kan. 218; 
 Dahins v. Sears, 13 Or. 47; Boardman v. Thompson, 25 Iowa, 488; Hollo- 
 way V. lAnce, 7 Port. 488; Byrd v. Odem, 9 Ala. 755; Coquillard v. Bearss, 
 21 Ind. 479; Scobey v. Ross. 13 Ind. 117; Brown v. Beauchamp. 5 T. B. 
 Mod. 413; Bryant v. Hill, 9 Dana, 67; Cardwell v. Sprigg, 7 Dana, 36; 
 Wilhite V. Roberts. 4 Dana, 172; Scans v. Bell. 6 Dana, 479; Thurston v. 
 Percival, 1 Pick. 415; McMahan v. Bowe, 114 Mass. 140; Arden v. Pat- 
 terson, 5 Johns. Ch. 44, 1 L. ed. 1002; Thalimer v. Brinkerhoff, 20 Johns 
 386; Blade v. Rhodes, 2 Dev. & B. Eq. 24; Weedon v. Wallace, Meigs. 
 286; Doncin v. Smith, 35 Vt. 69; Martin v. Clarke, 8 R. I. 389; Nichols 
 V. Bunting, 3 Hawks, 86; Martin v. Veeder, 20 Wis. 466 ; 3/ar^j» v. J.wios, 
 13 Ired. L. 201. 
 
 "^Blaisdell v. Ahem, 4 New Eng. Rep. 347, 144 Mass. 393; Small v. Mott, 22 
 Wend. 405.
 
 120 PKIVATE C0NTKAUT8 AND CIVIL GOVERNMENTS. 
 
 by tlie landlord is void for champerty.' In other states it has 
 been entirely repudiated." 
 
 This change has been called for by the new conditions of mod- 
 ern society, considered in its varied relations, commercial, politi- 
 cal and sociological. In many of its phases it has been, both in 
 America and England, emphatically discarded as " inapplicable to 
 the present condition of society, and obsolete."" * 
 
 It is accordingly asserted on high English authority that no one 
 has been punished criminally for the olfense of maintenance or 
 champerty within the memory of living man.* 
 
 Public opinion in England has advanced so far on this subject 
 that the criminal law commissioners many years ago recommended 
 very earnestly that the otfenses of maintenance and champerty be 
 abolished, observing of them that they " are relics of an age when 
 courts of justice were liable to intimidation by the rich and power- 
 ful and their dependents."* * 
 
 There is much reason, it thus seems, for the relaxation of the 
 old doctrines pertaining to this subject, so that they may be 
 adapted to the new order of things in the present highly progres- 
 sive and commercial age. Necessity and justice have, accordingly, 
 forced the establishment of recognized exceptions to the doctrine 
 of these offenses. Among these may be enumerated the following 
 instances: relationship by blood or marriage will often now justify 
 parties in giving each other assistance in lawsuits; ' and the rela- 
 tion of attorney and client; or the extension of charitable aid to 
 the poor and oppressed litigant; ' and especially is an interference 
 in a lawsuit excusable when it is by one who has, or honestly be- 
 lieves he has, a valuable interest in its prosecution. 
 
 'Church V. Schoonmaker , 115 N. Y. 570; Church v. Becker, 115 N. Y. 562. 
 
 •^Matlisws-on v. Fitch, 22 Cal. 86; Danforth v. Streeter, 28 Vt. 490; Richard- 
 son V. Rowland, 40 Conn. 565; Lytle v. State, 17 Ark. 608; Schomp v. 
 Sc/ienck, 40 N. J. L. 195; Hall v. Ashby, 9 Ohio. 96; Bentinck v. Frank- 
 lin & Q. C. Co. 38 Tex. 458; Ballard v. Carr, 48 Cal. 74; Webb v. Camp, 
 26 Ga. 354. 
 
 ^Sedgwick v. Stanton, 14 N. Y. 289. 296; Masters v. MiU&r, 4 T. R. 320; 
 TluiUhimer v. Brinckerhoff, 3 Cow. 623; Richardson v. Rowland, 40 Conn. 
 565; 2 Whart. Crim. L. (8th ed.) § 1854, note. 
 
 <3 Stephen, Crim. L. 234. 
 
 ^Stephen, Crim. L. note 8. 
 
 «But see Barnes v. Strong, 54 N. C. 100; Burke v. Greene, 2 Ball & B. 521. 
 
 ' Wi ight V. Cain, 93 N. C. 296.
 
 CONTRACTS OBSTRUCTING PUBLIC JUSTICE, 121 
 
 The principle is thus generally stated: " It has been seen that 
 tlie gist of the offense of maintenance is that the interference is 
 officious. Where, therefore, a party either has, or honestly 
 believes he has, an interest, either in the subject matter of the lit- 
 iication or in the question to be determined, he may assist in the 
 prosecution or defense of the suit, either by furnishing counsel or 
 contributing to the expenses, and may, in order to strengthen his 
 position, purchase the interest of another party in addition to his 
 own. The interest may be either small or great, certain or uncer- 
 tain, vested or contingent; but it is essential that it be distinct 
 from what he may acquire from the party maintained." 
 
 The purchase of railroad bonds from foreclosing bondholders, 
 pending a suit involving the sale of the railroad, in pursuance of 
 a purpose to obtain a lease of the road to tiie purchaser and his 
 associates, who desired it to form a connection with a road already 
 owned by them; and an agreement by the purchaser to pay all 
 expenses of the i)ending litigation, although the bonds were not ta 
 be delivered until its termination. — are not void for champerty 
 because of the purchaser's interest in the result of the suit.* 
 
 A sale of his claim by one who performs labor and furnishes 
 materials for the construction of a gravel road is not champertous.* 
 
 In Thompson v. Marshall, 36 Ala. 5()4, this principle was 
 applied to a case where one co-defendant, in a suit pending to 
 rescind a conveyance for fraud, purchased the interest of such co- 
 defendant in the property in litigation, and assmned a liability for 
 his vendors share of the costs and expenses of suit. The contract of 
 purchase was held not to be champertous, because the interference 
 was to protect a valuable interest, and was not, therefore, either 
 an unlawful or officious intermeddling. 
 
 So in McCall v. Copehart, 20 Ala. 521, where certain persons,, 
 erroneously believing that they had an interest in a piece of land 
 then in litigation, purchased the interest of the defendant, and 
 indemnified him against the cost and damages of suit, the court 
 held the transaction free from the taint of champerty, on the- 
 ground that the assistance was rendered by the defendants "under 
 
 '3 Am. «& Eng. Enc. L. 76. 
 
 Oilman v. Jones, 4 L. R. A. 113, 87 Ala. 691. 
 
 ^Hari v. State, 120 Ind. 83.
 
 122 PKIVATE CO^'TliACTS AND CIVIL GOV KUNMKNTS. 
 
 the honest behef that they were interested in the result of the 
 suit, and not for tlie purpose of fomenting litigation." 
 
 The modern and better definitions of '' champerty " incorporate 
 this idea fully. Mr. Wharton says: "Maintenance is support 
 given to a litigant in any legal proceeding in which the person 
 giving the assistance has no valuable interest, or in which he assists 
 from any improper motive.'" 
 
 In 2 Bouvier's Law Dictionary (l-tth ed.) 90, it is defined to be 
 "a malicious, or, at least, officious, interference in a suit in which 
 tlie offender has no interest, to assist one of the parties to it against 
 the other with money or advice to prosecute or defend the action 
 without any authority of law." 
 
 So Mr. Addison involves in the definition the idea of agreeing 
 to assist in the prosecution of a lawsuit, " in which the party mak- 
 ing the agreement is in no wise interested, and with which he has 
 no just or reasonable ground for interference.'" 
 
 Of course it is necessarily true that, if the offense in question 
 does not amount to maintenance, there can be no champerty in it, 
 because champerty is but a species of maintenance." 
 
 In ThaUhiiner v. Brinckerhoff, 3 Cow. 623, a leading and learned 
 •case on the subject of champerty, it is said "that any interest 
 whatever in tlie subject of the suit is sufficient to exempt him who 
 ^ives aid to the suitor from the charge of illegal maintenance." 
 And referring to such interferences it is said: "Upon all such 
 cases these laws w^ere never intended to operate. They were 
 intended to prevent the interference of strangers having no pre- 
 tense of right to the subject of the suit, and standing in no rela- 
 tion of duty to the suitor. They were intended to prevent traffic 
 in doubtful claims, and to operate upon buyers of pretended rights, 
 who had no relation to the suitor or the subject, otherwise than 
 as purchasers of the profits of litigation." 
 
 An agreement giving counsel an amount equal to a part, or a 
 part of, the property to be recovered, as a contingent fee for his 
 services in litigation, was held valid.* 
 
 '2 Whart. Crim. L. (8th ed.) § 1854. 
 n Add. Cont. § 256. 
 32 Co. Inst. 207. 
 
 ^Ballardv. Can; 48 Cal. 74; Ramsey v. Irent. 10 B. Mon. 341; Perry v. 
 Dicken, 105 Pa. 83; Jewell v. Neidy, 61 Iowa, 299: Whithead v. Ducker,
 
 CONTRACTS OBSTRLX'TING PLBLIC JUSTICE. 123 
 
 So it is recognized in the Supreme Court of the United States, 
 that attorneys may lawfully contract with their clients to prose- 
 cute claims agahist the United States and receive compensation 
 therefor conditioned upon their success, either as fees or agreed 
 percentages upon the amount recovered.' In any case when liti- 
 gation ends the party rendering service may contract for payment 
 out of the property recovered." 
 
 In Ware v. Bussell, 70 Ala. 174, the court sustained an agree- 
 ment between attorney and client as free from champerty or 
 maintenance, where the defendant in attachment, in consideration 
 of professional services on the part of the assignee, assigned to his 
 attorney the entire property in litigation, gi^■ing him the entire 
 management and control of the suit, and stipulating for his own 
 (the assignor's) active prosecution of it. It was said by Brickell, 
 Ch. J.: 
 
 "The corrupting element of the contract [of champerty] is its 
 tendency to foment or protract litigation, its dependency for 
 its value upon the termination of suits, and its introduction, to 
 •control and manage thejn, of parties without other right or inter- 
 est than such as is derived from the contract." On this ground 
 the sale of land pendente lite, or by one out of possession is for- 
 bidden." But that litigation may be in certain possible circum- 
 stances required to perfect the title will not make the deed void.* 
 As between the parties such conveyances are generally held as 
 •estoppels.* 
 
 11 Smedes & M. 98; Gilchrist v. Brande, 58 Wis. 184; Dickerson v. P>/le, 
 
 4 Phila. 259; Quint v. Ophir iiilcer Min. Co. 4 Xev. 305; Courihlin v. New 
 
 Y(»-k Cent, d- H. R. R. Co. 71 N. Y. 443; Marsh v. Ilolbrook. 3 Abb. App. 
 
 Dec. 176; Hoffman v. Vallejo, 45 Cal. 564. 
 ^Manning v. Sprague, 1 L. R. A. 516, 148 Mass. 18; Re Paschal, 77 U. S. 10 
 
 Wall 483 19 L. ed. 992; McPherson v. Cox, 96 U. S. 404, 417, 24 L. ed. 
 
 746, 750; Central R. & Bkg. Co. v. Pettm, 113 U. S. 116, 28 L. ed. 915. 
 ^Hickey v. Baird, 9 Micb. 32 ; Floyd v. Goodwin. 8 Yerg. 484 ; Walker v. 
 
 Citthbert, 10 Ala. 213; Ross v. Chicago, II I. & P. R. Co. 55 Iowa, 691. 
 ^Swettv. Poor, 11 Mass. 553; German Mut. Ins. Co. v. Grim, 32 Ind. 249; 
 
 Stotsenburg v. Marks, 79 Ind. 197; Justice v. Eddings, 75 N. C. 581; Lane 
 
 V. Shears, 1 Wend. 433; West v. Raymond, 21 Ind. 305. 
 "^Kellar v. Blanchard, 21 La. Ann 38. And see generally on the subject. 
 
 Rowe V. Beckett, 30 Ind. 154; Jackson v. Andrews, 7 Wend. 152; Simpson 
 
 V. Montgomery, 25 Ark. 365: Verdier v. Simons, 2 McCord, Eq. 385; Bat- 
 
 terton v. Chiles, 12 B. Mon. 348. 
 ^Steeple v. Downing, 60 Ind. 478; McMahan v. Bowe, 114 Mas«. 140: University 
 
 of Vermont v. Jo-sly n, 21 Vt. o^; Livingston v. Proseus, 2 Hill, 526.
 
 124 PRIVATK CONTRACTS AND CIVIL GOVERNMENTS. 
 
 hi Call V. Calef, 13 Met. 362, wliere two persons owned dis- 
 tinct riglits to the exclusive use of a patent in two different 
 places, near each other, it was held that the interest which each 
 had in maintaining the value and profit of his particular right 
 would justify him in aiding the other to prosecute a suit for the 
 infringement of the exclusive right of the latter. So it has been 
 held, and is manifest, that any citizen may lawfully contribute to 
 the lawful expenses of any public criminal prosecution, and the 
 act will not subject him to the charge of maintenance.' 
 
 It may safely be said that the whole doctrine of maintenance 
 has been modified in recent times so as to confine it to strangers 
 who, having no valuable interest in a suit, pragmatically interfere 
 in it for the improper purpose of stirring up litigation and strife, 
 and champerty, which is a species of maintenance attended with 
 a bargain for a part or the whole of the thing in dispute, does not 
 exist in the absence of this characteristic of maintenance. If the 
 pecuniary interest of a person, even though he own no part of 
 the immediate subject matter of the suit, be so connected with it 
 collaterally in any way as to be diminished or increased in value 
 by the result of such suit, there is no principle of public policy 
 that ought to forbid such person from taking proper care that 
 such interest shall be properly protected in the courts. 
 
 The forfeiture of a charter of a railroad, for example, on the 
 line of which the owner of a factory or rolling mill may have his 
 plant, might result in his financial ruin. Could it be said, in the 
 light of modern views on this subject, that an agreement to aid in 
 preventing the forfeiture would be champertous, and as such 
 criminal, because the mill owner held no stock in the railroad 
 company, nor was otherwise immediately interested in the corpor- 
 ate charter or property ? Interference in lawsuits, it has been 
 said, to savor of maintenance, must have some "tendency to per- 
 vert the course of justice;" * or else, as said by Blackstone, " to 
 pervert the remedial process of the law into an engine of oppress- 
 ion.'" 
 
 'Com. v. Dupuy, Brightly, 44. See also Story, Cont. g 579; 2 Parsons, 
 Cent. *765, 766; 2 Story, Eq. Jur. § 1050. 
 
 2 Stanley v. Jones, 7 Bing. 369. 
 
 3 4 Bl. Com. 135.
 
 CONTRACTS OBSTRLCTING PUBLIC JUSTICE. 125 
 
 These elements of unlawfulness are entirely wanting in the sup- 
 posed case. 
 
 Mr. Stoiy asserts that one " may purchase by assignment the 
 whole interest of another in a contract or security or other prop- 
 ■ erty which is in litigation, provided there be nothing in the con- 
 tract which savors of maintenance ; that is, provided he does not 
 undertake to pay any costs, or make any advances beyond the 
 mere support of the exclusive interest which he has so acquired." 
 And he puts his conclusion upon the ground that a court of equity 
 would, without special contract, compel the assignor to permit his 
 name to be used in the suit, on the assignee's giving him indem- 
 nity for such costs. "Such indemnity and such proceedings, 
 under such circumstances," he adds, "are not deemed mainten- 
 ance."' 
 
 This seems to be the more correct and logical view, and better 
 comports with the necessities of modern commerce, except as to 
 transactions between client and attorney, which, by reason of 
 their peculiar relation, ought perhaps to stand on a diiferent basis 
 from other contracts savoring of a cluimpertous character ; ' 
 although by the great weight of modern authority contingent 
 fees of a legitimate character, charged for professional services, 
 dependent on the amount of recovery, are not deemed within the 
 rules against champerty and maintenance.' Such em])loynieiits 
 are not looked upon with approval in England.* 
 
 Sustaining the views above expressed it was held in Gilman v. 
 Jones, 4 L. R. A^. 113, 87 Ala. 691, that the purchase of raih"oad 
 bonds from litigant bond holders pending a suit involving the 
 i'ate of the railroad, in pursuance of a plan to obtain a lease of 
 the road to the purchaser and his associates, who need it to form 
 
 '2 Story. Eq. Jur. 1050. 
 
 '^Oilman v. Jo/jc-s 4 L. R. A. 113, 87 Ala. 691; Thallhimer v. Brinckerhoff, 
 3 Cow. 623, 15 Am. Dec. 231, note, and cases cited; Stanton v. Embrey, 
 93 U. S. 548, 23 L. ed. 983; Blaisdell v. Alter n. 4 New Eng. Rep. 347, 144 
 Mass. 393; Walker v. Cuthbert, 10 Ala. 213, 219; Kusterer v. Beaver Dam, 
 56 Wis. 471; Dickenson v. Detiin, 14 .Jones & S. 232; Tayloi' v. Oilman, 
 58 N. H. 417; Bent v. Priest, 10 Mo. App. 543; Cross v. Bloomer, 6 Baxt. 
 74; McDonald v. Chicago d- W. W. R. Co. 29 Iowa, 171; Chester County v. 
 Barber, 97 Pa. 455; Rickey v. Baird, 9 Mich. 32; Walker v. Bietry, 24 
 La. Ann. 349; Stansell v. Lindsay, 50 Ga. 360. 
 
 »Ware v. Russell, 70 Ala. 174; Elliott v. McClelland, 17 Ala. 206. 
 
 *Reynell v. Sprye, 8 Hare, 222; Stanley v. Jones, 7 Bing. 369; Morgan v. 
 Taylor, 5 C. B. N. S. 653.
 
 126 PRIVATE CONTKACTS AND CIVIL GOVERNMENTS. 
 
 a connection with a road already owned by them, and an agree- 
 ment by the purchaser to pay all expenses of the pending litiga- 
 tion, althongh the bonds were not delivered until its termination, 
 are not void for champerty because of the purchasers interest in 
 the result of the suit. 
 
 § 22. Contracts to Influence the Action of Corporations. — 
 
 A contract to restrict or to defeat a public enterprise is not 
 enforceable,' and all agreements which interfere with the integ- 
 rity, discretion or freedom of an appointment to private offices 
 in corporations are illegal.'' 
 
 Another class of cases is those in which some officer, or other 
 person supposed to be in relation with a railroad company, under- 
 takes for a consideration moving to it, to secure the location of 
 stations, depots, etc., at a particular place. A conspicuous case 
 ill this class is Fuller v. DcDne, 18 Pick. 472. All such contracts 
 are void as against public policy.^ 
 
 Where a railroad extension company is employed by a railroad 
 company to build its line, and a contract is entered into between 
 the extension company and a third party, to select a long and 
 expensive route, thus imposing an unnecessary and heavy burden 
 upon the railroad company, the contract is void, as immoral in its 
 conception and corrupting in its tendency. That the individual 
 contracting with the extension company is a director and stock- 
 h(jlder in the railroad company, only adds to the infamy of the 
 agreement.* 
 
 All arrangements by which directors or stockholders or other 
 persons may acquire gain by inducing corporations to disregard 
 their duties to the public, are illegal and lead to unfair dealing, 
 and being against public policy will not be enforced by the 
 courts.* 
 
 'Slocum V. Wooley, 9 Cent. Rep. 659, 43 N. J. Eq. 451. 
 
 ^Guernsey v. Cook, 120 Mass. 501; Boynton v. Hubbard, 7 Mass. 112, 119; 
 Beed v. Peper Tobacco Warehouse Co. 2 Mo. App. 82; Ferris v. Adams, 2Z 
 Vt, 136; hit liter v. Nolf, 71 Pa. 282; Meguire v. Coricine,10l U. S. 108, 25 
 L. ed. 899; llartwell v. Hartwell, 4 Ves. Jr. 811; Wallis v. Portland, 3 
 Ves. Jr. 494; Stevens v. Bagwell, 15 Ves. Jr. 139; Morris v. MacCullock, 2- 
 Eden,- 190; Haiuii/igton v. DuChatel, 1 Bro. Ch. 124. 
 
 Wcstor V. Watke7i, 60 111. 138; Linder v. Carpenter, 62 111. 309. 
 
 * Woodstock Iron Co. v. RicJimond & D. Extension Co. 129 U. B. 643, 32 L. ed. 
 819.
 
 CONTRACTS TO INFLUENCE THE ACTION OF CORPORATIONS. 12T 
 
 The case of Fuller v. Dame, 18 Pick. 472, is instructive on 
 this head. It there appeared that Dame, the defendant, was the 
 owner of a large tract of land and fiats situated on Sea Street, 
 and between it and Front Street, on the south side of Boston, which 
 would be greatly enhanced in value if the Boston and Worcester 
 Railroad Company would locate one of its depots between those 
 streets and easterly of Front Street. To induce the company to 
 make such location it was supposed to be necessary to form an 
 association, which would pay to it a large sum of money and fur- 
 nish a large tract of land for the depot, besides making other 
 donations ; and to provide the money and land, also to form a 
 company to purchase the flats and land between the streets 
 named, to be held as joint stock and laid out in due form and 
 shape for sale. Fuller agreed to aid Dame in getting up such 
 company, and in inducing the railroad company to fix its termina- 
 tion and principal depot between those streets. Fuller being him- 
 self of opinion that the railroad ought, from a view of the public 
 good and the good of its stockholders, to enter the city on the 
 southerly side and have its principal depot there. In considera- 
 tion of such agreement Dame gave his note for $9,600, payable 
 to Fuller in three years, the note being deposited with third par- 
 ties, to be delivered to him when the principal depot of the rail- 
 road company for merchandise was constructed between the streets 
 mentioned. Fuller was at the time of the agreement a stock- 
 holder in the railroad company. The road having been com- 
 pleted, and the principal depot located between the streets men- 
 tioned, and the note not being paid, suit was brought upon it. It 
 was adjudged that the contract was contrary to public policy, and 
 that the note given in consideration of it was therefore void. 
 
 In coming to this conclusion the court considered somewhat at 
 large the ground upon which contracts of this character were 
 avoided, and held that it was because they tended to place one 
 under wrong influences, by offering him a temptation to do that 
 which might injuriously affect the rights and interests of third 
 persons, and that the case before it was within the operation of 
 this principle, the contract tending injuriously to affect the pub- 
 lic interest in establishing the fittest and most suitable location 
 for the termination of the Boston and Worcester Railroad for the
 
 128 PRIVATE CONTRACTS AND CIVIL GOVERNMENTS. 
 
 accommodation of the public travel. It is true the road was con- 
 structed and located by the corporation at tiie expense of private 
 parties under the sanction of the Legislature, incorporated for 
 that purpose, who were to be remunerated by a toll levied and 
 regulated by law ; and it was left to its directors to fix the ter- 
 mination and place of deposit. But in doing this a confidence 
 was reposed in them, acting as agents for the public, a confidence 
 which, it might seem, could have been safely so reposed, when it 
 is considered that the interests of the corporation as a company 
 of passenger and freight carriers for profit was identical with the 
 interests of those who were to be carried and had goods to 
 be carried, that is, with the public interest. This confidence, 
 however, could only safely be so reposed under the belief 
 that all the directors and members of the company should 
 •exercise their best and their unbiased judgment upon the 
 question of such fitness, witliout being influenced by distinct 
 and extraneous interests, having no connection with the accom- 
 modation of the public or the interests of the company. Any 
 attempt, therefore, to create and bring into efticient operation 
 such undue influence has all the injurious efi^ects of a fraud 
 upon the public, by causing a question which ought to be decided 
 with a sole and single regard to public interests, to be affected 
 and controlled by considerations having no regard to such inter- 
 ests. 
 
 In accordance with this view it has been declared that an agree- 
 ment between a railroad oflicial and another to divide the profits 
 on a contract to be secured by the latter, to furnish materials for 
 a public improvement, the only service rendered by the former 
 being to allow the latter lower freight rates than he demanded of 
 others, is void as against public policy. Such a contract will not 
 support an action to recover a share of the profits realized.* 
 
 And under a statute which prohibits any agents or employe 
 of a railroad company from becoming in any manner interested 
 in furnishing materials or supplies to the company, a contract on 
 the part of the stock agent of the company to furnish forage for 
 stock transported over the road is void.'^ 
 
 ^Barkley v. Williams, 26 111. App. 213. 
 ^Rue V. Missouri P. R. Co. 74 Tex. 474.
 
 CONTBACTS TO INFLUENCE THE ACTION OF CORPORATIONS. 129 
 
 It is no answer to say tliat, bj the Act of Incorporation, the 
 ■executive authority was vested in a board of directors, and Mr. 
 Fuller was not a director. He was a member of the company 
 and might be chosen a director. He was an elector of the direc- 
 tors, and they were directly responsible to the stockholders. The 
 immediate act of location was with directors, but the efficient 
 authority was with the members and stockholders of the corpora- 
 tion, who elect the directors. The election may depend upon the 
 known views and opinions of candidates upon this very question 
 of location. They had a right to his disinterested judgment and 
 advice upon the question of location; and this could not be exer- 
 cised whilst he held and relied on a promise for a large sum of 
 money, the payment of which depended upon this decision of the 
 question by the directors. 
 
 The case of Woodstoclc Iron Co. v. EicJiwond (& D. Extension 
 Co. 129 U. S. 648, 32 L. ed. 819, is much stronger than the one 
 thus decided by the Supreme Judicial Court of Massachusetts. 
 There the contract was held invalid because made with a stock- 
 holder of the company, by which he promised, for a pecuniary 
 consideration, to endeavor to procure the company to locate one 
 of its depots at a particular place in the city. In the former case 
 the contract was with an employe of the company, to induce it to 
 disregard its obligations ; and the principal person making that 
 contract on the part of the employe was a director and stockholder 
 of the company which was to be thus seriously affected. 
 
 The principle, which is so clearly and forcibly stated in Fuller 
 V. Dame, has been applied in numerous instances by the highest 
 courts of different states, to avoid contracts made to influence 
 railroad companies in selecting their routes and locating their 
 depots and stations, by donations of land and money to some of 
 its directors or stockholders or agents. Thus in Bestor v. Wathen, 
 60 111. 138, it appeared that in 1819 the Legislature of Illinois 
 incorporated a company to build a railroad from a point on the 
 Mississippi River to Peoria, and that in 1852 the charter was 
 amended so as to authorize the extension of the road from Peoria 
 eastward to the state line. In 1855 the company made a contract 
 with the firm of Cruger, Secor and Company, by which the latter 
 undertook the construction and equipment of the road. In 1856, 
 9
 
 1'60 PKIVATE CONTKACTS AND CIVIL GOVEKNMEJSTS. 
 
 whilst engaged upon this work, the members of the firm, togetlier 
 with Bestor, the president of the railroad company, Sweat, one of 
 its directors, and Smith, its construction agent, entered into a con- 
 tract with "Wathen and Gibson, the defendants, by which the 
 latter, being the owners of 160 acres of land, agreed, in considera- 
 tion that the road then in process of construction should cross the 
 Illinois Central Railroad where their land was situated, the land 
 would be laid out into town lots and sold, and after proceeds 
 amounting to $4,800 had been received, which were to be 
 retained by Wathen and Gibson, a conveyance of an undivided 
 half of the residue should be made to the other parties. The only 
 consideration for this agreement, aside from the location of the 
 road, was that the other parties should assist and contribute to the 
 building up of the town on the land. The road was constructed 
 across the Illinois Central, and Wathen and Gibson laid out the 
 land into lots and proceeded to sell the same, and the town of El 
 Paso was built on the land and an adjoining tract. In 1863 the 
 plaintiffs filed their bill against Wathen and Gibson for an account 
 of the sales and a conveyance of the undivided half of the lots 
 unsold. The court held the contract void as against public policy, 
 and dismissed the suit, and the decree in this respect was affirmed 
 by the Supreme Court of the State, that court observing that when 
 the people through their Legislature grants to a company the 
 right of eminent domain for the purpose of constructing a railroad 
 it is upon the supposition that the road wiU bring certain benefits 
 to the public, and that when subscriptions are made to its stock, 
 the money is subscribed upon the understanding that the officers 
 intrusted with the construction of the road will so locate its line 
 and establish its depots as to bring the highest pecuniary profit to 
 the stockholders, compatible with a proper regard for the pubhc 
 convenience; that these alone are the considerations which should 
 control officers of the road; and so far as they permit their official 
 action to be swayed by their private interests, they are guilty of a 
 breach of trust towards the stockholders, and a breach of duty to 
 the public at large; and it added: " A court of equity will not 
 enforce a contract resting upon such official delinquency, or 
 even tending to produce it. Such is the character of the con- 
 tract in Woodstock Iron Co. v. Bichmond c& D. Extension.
 
 CONTRACTS TO INFLUENCE THE ACTION OF COKPORATIONS. 131 
 
 Co. 129 U. S. 643, 32 L. ed. 819. To enforce it would 
 lend the sanction of the court to a class of contracts, the 
 inevitable tendency of which is to make the officers of these 
 powerful corporations pervert their trust to their private gain, at 
 the price of injury at once to the stockholders and to the public. 
 Kendered into plain English, the contract in Woodstock Iron Co. 
 V. Hichmond c& D. Extension Co. was a bribe on the part of 
 Wathen and Gibson to the president and other officers of the 
 railway coinpany, and to the contractors who were building the 
 road, of an undivided half of one hundred and sixty acres of land, 
 in consideration of which the road was to be constructed on a cer- 
 tain line and a depot built at a certain point. JSTow if this was the 
 best line for crossing the Illinois Central considered with refer- 
 ence to the interest of the stockholders and of the public, then it 
 was the duty of the officers of the com^^any to establish it there; 
 and if they intended so to do because it was the proper line, but 
 professed to be hesitating between this and another line in order 
 to secure to themselves the contract under consideration, as is 
 somewhat indicated by the evidence, then they were practicing a 
 species of fraud upon the defendants, and the use of a false pre- 
 text in order to acquire defendants' property without considera- 
 tion. If, on the other hand, this line was not the best, but was 
 adopted because of this contract, the case is still stronger against 
 the complainants. If such was the fact they are asking the court 
 to enforce the payment of a bribe, the promise of which induced 
 them to sacrifice their official duty to their private gain. If, as a 
 third contingency, the choice lay between this line and another 
 equally good, but not better, and they were influenced by this 
 contract to adopt this line, then, although neither the company 
 nor the public has been injured, yet the defendants have made 
 their official power an instrument of private emolument in a man- 
 ner which no court of equity can saction. In this particular case 
 no wrong may have been done, and yet public policy plainly for- 
 bids the sanction of such contracts, because of the great tempta- 
 tion they would offer to official faithlessness and corruption." 
 The doctrine of this case was approved by the Supreme Court 
 of Illinois in Linder v. Carpenter, 02 111. 309; and in 6'^, Louis, 
 J. & G. R. Co. V. Mathers, 71 111. 592.
 
 132 PRIVATE CONTKACTS AND CIVIL GOVERNMENTS. 
 
 Holladay v. Patterson^ decided by the Supreme Court of Ore- 
 gon (5 Or. 177), is also in harinony with Fuller v. Dame and 
 JBestor v. Wathen^ the court following a similar course of reason- 
 ing to that adopted in those cases. That doctrine and reasoning 
 are also often applied where the reward or monej consideration 
 for taking a particular route or establishing a station or depot at 
 a particular place is offered directly to the railroad company 
 instead of to its directors, stockholders, or agents. But there are 
 exceptions or qualifications in the application of the doctrine in 
 such cases requiring explanation, as where a subscription is con- 
 ditioned upon the adoption of a particular route, or the construc- 
 tion of a station or depot at a particular place.' There is no 
 exception in any decision as to the character of a contract when 
 for a pecuniary consideration directors, stockholders, or agents of 
 a company undertake to influence its conduct in these matters. 
 Indeed, the law is general that agreements upon pecuniary con- 
 siderations, or the promise of them, to influence the conduct of 
 ofiicers charged with duties affecting the public interest, or with 
 duties of a fiduciary character to private parties, are against the 
 true policy of the State, which is to secure fidelity in the discharge 
 of all such duties. Agreements of that character introduce mer- 
 cenary considerations to control the conduct of parties, instead of 
 considerations arising from the nature of their duties and the most 
 efficient way of discharging them. They are, therefore, necessa- 
 rily corrupt in their tendencies. As was said in Providence Tool 
 Co. V. Norris, 69 U. S. 2 Wall. 48, 56, 17 L. ed. 868, 871, "all 
 agreements for pecuniary considerations to control the business 
 operations of the government, or the regular administration of 
 justice, or the appointments to public offices, or the ordinary 
 course of legislation, are void as against public policy, without 
 reference to the question whether improper means are contem- 
 plated or used in their execution," so of agreements like this one; 
 they are against public policy because of their corrupt tendency, 
 whether lawful or unlawful means are contemplated or used in 
 carrying them into execution. "The law," as said in that case, 
 " looks to the general tendency of such agreements; and it closes 
 
 ^Pacific R. Go. v. Seely, 45 Mo. 212; Racine Co. Bank v. Atjres, 12 Wis. 512; 
 Fort Edward & F. M. PI. Road Co. v. Payne, 15 N. Y. 583.
 
 CONTEACTS TO INFLCEXCE THE ACTlO^yS OF COKPOKATIO^'S. 133 
 
 the door to temptation by refusing them recognition in any of the 
 courts of the country." * In regard to the exceptional class of 
 contracts above referred to, in which an agreement has been made 
 between an individual and a railroad corporation for the location 
 of a station or depot at a particular place, in consideration of the 
 donation of money or property to the corporation witliout any 
 restriction or prohibition against any other location, it may 
 be said that a contract to pay a given sum of money to 
 one who should present a petition or proposition to the directors 
 of a railroad company for the location of a depot on certain land 
 the money to be paid on the location of the depot and completion 
 of the road, is not void as against public policy, unless it appears 
 that sinister, extraneous and corrupting influences were brought to 
 bear upon the company to induce the location.' 
 
 ISTo case has been found in which this question was particularly 
 involved and the decision was adverse to the contract, which was not 
 controlled by other considerations which condemn such an agree- 
 ment. On the other hand it has been held that an agreement to 
 pay a railroad company a stipulated snm in consideration that it 
 would locate its route at a particular place, is valid and may be 
 enforced.' So a conditional subscription of stock is valid,* and 
 the voluntary grant to a railroad on condition that it would locate 
 its route and establish a depot at a certain place, has been repeat- 
 edly sustained as not being in contravention of public policy." 
 But an agreement giving the exclusive right of way to a railroad 
 company, in so far as it attempts to exclude other companies from 
 acquiring a right of way over the same tract, upon land not 
 appropriated or required for the use of the former company, is 
 void as against public policy.* 
 
 A contract by railroad companies to refrain from any effort to 
 obtain a grant of public lands from the Legislature, and to aid 
 
 ^Oscanyan v. Winchester Repeating Arms Co. 103 U. S. 261, 274, 26 L. ed. 
 
 539, 545. 
 * Workman v. Campbell, 46 Mo. 308. 
 ^Cumberland Valley R. Go. v. Baab, 9 Watts, 458; Cedar Rapids First Nat. 
 
 Bank v. Hendrie, 49 Iowa, 402. 
 *New Albany <& 8. R. Co. v. McCormick, 10 lud. 499; Courtwright v. Strick- 
 
 ler, 37 Iowa, 382. 
 '^McClure v. Missouri River, F. S. & O. R. Co. 9 Kan. 373. 
 *Kettle River R. Co. v. Eastern R. Co. 6 L. R. A. Ill, 41 Minn. 461.
 
 134 PRIVATE CONTRACTS AXD CIVIL GOVKKXMENTS . 
 
 another company to procure it by all reasonable and proper assist- 
 ance, in consideration of a share of the grant obtained by the lat- 
 ter, — is void as against public policy.' 
 
 An agreement by one member of a iirm engaged in the business 
 of procuring and selling options for the purchase of coal lands, 
 giving a railroad company an option to purchase certain lands 
 upon the payment of a commission to him, is not void as to the 
 company on grounds of pubhc policy because of a condition that 
 it should be kept secret, where the copartner knew of and shared 
 in the commission on a settlement.' 
 
 A contract for the sale of a portion of a subscriber's interest in 
 stock which he subscribed for with the understanding that he 
 should have $5 of stock for $1 of subscription is illegal and void 
 under Ala. Stat. 1875, art. 14, § 6, providing that no corporation 
 shall issue stock except for money, labor done, or money or prop- 
 erty actually received, and all fictitious increase of stock or indebt- 
 edness shall be void.^ 
 
 The same doctrine has been applied to the directors of a private 
 corporation, charged with duties of a fiduciary character to private 
 parties, as to public ofiicials, on the view that it is public policy 
 to secure fidelity in the discharge of such duties." But a stock- 
 holder in a corporation, who is also a director and has general 
 charge of the corporate business, cannot avoid a sale of his cor- 
 porate stock to the other directors below its real value, on the 
 ground of the trust relation existing between the parties.* 
 
 This principle is equally applicable on the ground of public 
 policy, although there will not be any direct private gain to the 
 directors, but a liability is incurred by him to another contractor, 
 for it is the right of the stockholders to have the ofiicial's judg- 
 ment, as an officer of the company, exercised with a sole regard 
 to the interests of the company. Directors of a corporation 
 
 Whippewa Valley & 8. B. Go. v. Chicago, St. P. M. & 0. R. Co. 6 L. R. A. 
 601, 75 Wis. 324. 
 
 ^Gleason v. Chicago, M. & St. P. B. Co. Iowa. , 48 N, W. Rep. 88. 
 
 ^Williams v. Evans, 6 L. R. A. 218, 87 Ala. 725. 
 
 *Attoway v. Third Nat. Bank, 10 West. Rep. 412, 93 Mo. 485; Wardell v. 
 Union Pac. R. Co. 103 U. S. 651, 658, 26 L. ed. 509, 511; Woodstock Iron 
 Co. V. Richmond <& D. Extension Co. 129 U. S. 643, 82 L. ed. 819, and 
 cases there cited. See also Guernsey v. Cook, 120 Mass. 501, aod Wood- 
 ruff V. Wentworth, 133 Mass. 309, 314. 
 
 ^Perry v. Pearson. 135 111. 218.
 
 CONTRACTS TO INFLUENCE THE ACTIONS OF COEPOEATIONS. 135 
 
 having conspired together for the conversion of its assets, each 
 becomes liable for any act done by one of them in furtherance of 
 the common design.' 
 
 A personal liability for damages on the part of the official in 
 case the other contractor should sue for violation of contract, is 
 calculated to be a strong incentive to the official to act contrary to 
 the true interests of the company and of its stockholders.* 
 
 Thus it is held in West v. Camden, 135 U. S. 507, 34 L. ed. 254, 
 that a contract with the president, who holds, as trustee, a con- 
 trolling interest in the stock of a joint-stock company, that plain- 
 tiff should be permanently retained as vice-president of such 
 company at a salary of at least $5,000 per annum, is void as against 
 public policy. 
 
 That the consideration of such contract was the sale to the 
 company of the property and business of a competing firm in 
 which the plaintiff was partner, and that plaintiff would unite with 
 his co-partners in such sale, and that defendant was interested as 
 a stockholder in the purchasing company, does not make the con- 
 tract valid. 
 
 When the company, of which defendant was president, decided 
 to reduce its expenses and a new board of directors was chosen, 
 who elected as vice-president, in place of plaintiff, who had held 
 the office and discharged its duties for five years, another person 
 who agreed to serve without salary, plaintiff has no remedy against 
 defendant on the contract. 
 
 But a contract by a railroad company, in settlement of a claim 
 for personal injuries, to give an employe permanent employment 
 upon a svdtch engine, is not void as contrary to public policy in 
 binding the company to employ him even if incapable of service, 
 ^s it will not compel the company to employ in that event.* 
 
 ' Wayne Pike Co. v. Hammons (Ind.) 10 Ry. & Corp. L. J. 43. 
 ^Bliss V. Matteson, 45 K Y. 22; 1 Morawetz, Corp. §§ 516, 519. 
 ^Jemip V, CJiicago <& iV. W. B. Co. Iowa, , 48 N. W. Rep. 77.
 
 CHAPTEE YI. 
 
 WHEN COURTS WILL AND WHEN THEY WILL NOT RELIEVE. 
 
 § 23. No Relief in Case of Fraudulent, Illegal or Immoral Contracts^ 
 
 a. Illegality need not be Pleaded. 
 
 b. Illegal in Part — Individuals may Release Damages. 
 
 c. Courts luill not Enforce against Public Policy. 
 24. Relief from Illegal Contracts. 
 
 a. In Pari Delicto — Ultra Vires. 
 
 b. Indejjendent of Contract — Locus Poenitentice. 
 
 c. Upon Executed Contract. 
 
 § 23. No Relief in Case of Fraudulent, Illegal or Immoral 
 Contracts. — No right of action can spring out of an illegal con- 
 tract ; and this rule applies, not only when the contract is expressly 
 illegal, but whenever it is opposed to public policy.' 
 
 Contracts entered into through fraud are illegal and void, and 
 parties thereto are, in contemplation of law, in pari delicto, and 
 neither law nor equity will afford relief to either of them.' 
 
 A contract wholly void is void as to everybody whose rights 
 would be affected by it if valid.' The courts of this country have 
 uniformly refused to assist either party in the enforcement of a. 
 contract to violate the law.* 
 
 Courts will take notice, of their own motion, of illegal contracts 
 which come before them for adjudication, and will leave the par- 
 ties where they have placed themselves." 
 
 i Cleveland, C. C. & I. R. Co. v. Closser, 9 L. R. A. 754, 136 Ind. 348. 
 ^McClintock v. Loisseau, 2 L. R. A. 816, 31 W. Va. 865; Coiba v. Hixson, 4 L. 
 
 R. A. 682, note, 75 Mich. 280. 
 'Kellogg v. Howes, 6 L. R. A. 588, 81 Cal. 170. 
 ^Michigan Bank v. Mies, 1 Dougl. 401, 41 Am. Dec. 583; Jackson v. Shawl, 
 
 29 Cal. 271; Mitchell v. Smith, 4 U. S. 4 Dall. 269, 1 L. ed. 828, 1 Binn. 
 
 110 2 Am. Dec. 417; Maybin v. Coulon, 4 U, S. 4 Dall. 298, 1 L. ed. 841;, 
 
 Buncanson v. M'Lure, 4 U. S. 4 Dall. 308, 1 L. ed. 845. 
 ^Richardson v. Buhl, 6 L. R. A. 457, 77 Mich. 632; Mclwls v. Ruggles, 3 Day, 
 
 145, 3 Am. Dec. 262. 
 
 136
 
 ILLEGALITY NEED NOT BE PLEADED. 137 
 
 a. Illegality need not be Pleaded. — The illegality of the con- 
 tract in suit can be considered, although net affirmatively pleaded.' 
 Parties concerned in illegal agreements are to be left without rem- 
 edy against each other.^ The law aids no one to violate its behests, 
 but leaves a party as it finds him, remediless to the consequences 
 of his own folly and turpitude.^ 
 
 One who advances money to a majority stockholder to enable 
 him to recover in his own name and for his own use a judgment 
 properly belonging to the corporation, and with knowledge that 
 the corporation was being thereby deprived of its property, will 
 not be allowed his advances, on the distribution of the fund thus 
 realized.* 
 
 Courts will not decree the nullity of the contract sought to be 
 enforced, but will simply abstain from dealing with it or adjudi- 
 cating any rights arising thereunder, or giving their aid for the 
 division of results, although ascertained, between the parties.* 
 
 Courts will not relieve a party from the consequence of his 
 intentional fraudulent or his negligent act.' 
 
 Where a scheme or contract is malum in se, and the parties to 
 it are in pari delicto, the law refuses to aid either of them 
 against the other, but leaves them where they placed themselvea 
 by their own acts.' 
 
 Where the parties are concerned in illegal agreements or other 
 transactions whether they are Tnala prohihita or m,ala in se, 
 
 ^Oscanyan v. Winchester Rep. Arms Co. 103 U. S. 261, 26 L. od. 039; Armstrong 
 V. Toler, 24 U. S. 11 Wheat. 258, 6 L. ed. 468; Hannay v. Eve, 7 U. S. 3 
 Cranch, 242, 2 L. ed. 427; Putton v. Mclwlsoii, 16 U. S. 3 Wheat. 204, 4 
 L. ed. 371. 
 
 ^Kirkpatrick v. Clark, 8 L. R. A. 511. 132 LI. 342; Riedle v. Mulhausen, 20 
 111. App. 68; Canton Masonic Mut. Benev. Soc. v. Rockhold, 26 El. App. 
 141; Harrison v. McCluney, 32 Mo. App. 481; Vambioso v. Maffett, 2 
 Wash. C. C. 98; Bartle v. Nutt, 29 U. S. 4 Pet. 184, 7 L. ed. 825; Craig 
 V. Missouri, 29 U. S. 4 Pet. 410, 7 L. ed. 903. 
 
 Mm. L. Ins. & T. Co. v. Bobbin, Hill & D. 259; Nellis v. Clark, 20 Wend. 
 24, 4 Hill, 424; Perkins v. Savage, 15 Wend. 412; Be Qroot v. Van Buzer^ 
 20 Wend. 393. 
 
 *Bams V. Gemmell (Md.) 9 Ry. & Corp. L. J. 443. 
 
 ^Texas & P. R. Co. v. Southern P. R. Co. 41 La. Ann. 970, 40 Am. & Eng. 
 R. Cas. 475; Samuel v. OliTer, 130 111. 73. 
 
 ^Rowland v. Martin (Pa.) 4 Cent. Rep. 760. 
 
 Burt V. Place, 6 Cow. 431; Nellis v. Clark, 20 Wend. 24, 4 Hill, 424- 
 Thomas v. Richmond, 79 U. S. 12 Wall. 349, 20 L. ed. 453; Smith v. Hubbs, 
 10 Me. 71; Schermerhorn v. Talman, 14 N. Y. 94; Enoiclton v. Congress- 
 & E. Spring Co. 57 N. Y. 518; Eowson v. Hancock, 8 T. R. 575.
 
 138 WHEN COURTS WILL AND WHEN THEi' WILL NOT EELIEVE. 
 
 courts of equity follow the rule of law as to participators in crime, 
 and will not grant relief in accordance with the maxim " in jpari 
 delicto potior est conditio defendentisP 
 
 It is contrary to public policy to give the aid of the courts to 
 the vendor, who knew that his goods were purchased, or to the 
 lender who was aware that his money was borrowed, for the pur- 
 pose of being employed in the commission of a criminal act 
 injurious to society or to any of its members.* 
 
 A party to an illegal trust combination, who, in pursuance of 
 the agreement, has furnished goods in the name of the trustee, 
 cannot claim the proceeds as against a receiver of the trust assets, 
 although he withdi'ew from the combination before the receiver 
 was appointed.* 
 
 Where losses have been made in an illegal transaction, a person 
 who lends money to the loser with which to pay the debt can 
 recover the loan, notwithstanding his knowledge of the fact that 
 the money was to be so used.' The rule however seems to be 
 less exacting in some states." "Where one conveys land to secure 
 the grantee's public influence, to defeat the extension of a street 
 across his land, and the grantee dies before re-conveying, the 
 heirs will not be compelled to re-convey to the grantor,* 
 
 Where two or more parties have united in a transaction to 
 defraud another or others, or the public, or the due administration 
 of justice, or where it was against public policy, or contrary to 
 good morals, no one of them can maintain a suit thereon against 
 any other.* 
 
 A court of equity will not lend its aid to require an account of 
 profits and a division thereof, although the contract has been exe- 
 cuted.' 
 
 Whatever the parties have fraudulently or illegally contracted 
 to execute, the law refuses to compel the contractor to execute, 
 
 ^Hanauer v. Doane, 79 U. S. 12 Wall. 342, 20 L. ed. 439. 
 
 '^Pittsburgh Ca/rbon Co. v. McMilUn, 7 L. R. A. 46, 24 Abb. N". C. 96. 
 
 * Armstrong v. American Exch. Nat. Bank, 133 U. S. 433, 33 L. ed. 747. 
 
 *Labbe v. Corbett, 69 Tex. 503. 
 
 ^Slocum V. Wooley, 9 Cent. Rep. 659, 43 N. J. Eq. 451. 
 
 *Tor]c V. Merritt, 77 N. C. 213; Wright v. Rindskopf, 43 Wis. 344. 
 
 ''Craft V. McConoughy, 79 111. 346.
 
 ILLEGALITY NEED NOT BE PLEADED. 139 
 
 but it will enforce a by-law of a press association suspending a 
 member for the use of other local news agencies. 
 
 An agreement of a director of a corporation with its attorney 
 to use his vote to the disadvantage of the corporation, and for 
 personal interests, is immoral and will not be enforced.' 
 
 Parties to a contract which is void as against public policy can- 
 not be relieved, one against the other, on the ground that the 
 thing contracted for was lawful and beneficial in itself, and that 
 one has received and retained the benefit under it.' ISTor will 
 •courts assist a person who has participated in a transaction forbid- 
 den by statute, to assert rights growing out of, or to relieve him- 
 self from the consequences of his own illegal act," 
 
 Equity will not relieve from securities executed to shield a 
 person from prosecution for a felony of which he is guilty, upon 
 the ground that execution for such purpose rendered them void. 
 One who has executed and delivered securities in consideration 
 of a promise to refrain from a prosecution for felony of a person 
 guilty thereof cannot, after his illegal purpose has failed from 
 •causes other than a breach of the contract, and a prosecution has 
 been commenced by thii'd parties, rescind the contract and recover 
 back the securities.' 
 
 The moment the fact of illegality appears, the court will refuse 
 relief to either party, but will leave them where their illicit agree- 
 ment placed them.* 
 
 Wherever two or more persons are engaged in a fraudulent 
 transaction to injure another, neither law nor equity will interfere 
 to relieve either of those persons against the other, from the con- 
 sequences of their own misconduct.' 
 
 Where property is transferred in fraud of creditors, equity will 
 
 ^ Pepper Y. Ilaight, 20 Barb. 438; Mathews v. N. Y. Asso. Press, 40N. Y. S. R.593. 
 
 ^Attaway v. Third Nat. Bank, 10 West. Rep. 412, 93 Mo. 485. 
 
 'Gleason v. Chicago, M. <& St. P. R. Co. — Iowa, — , 48 N. W. Rep. 517. 
 
 *Parsons v. Randolph, 4 West. Rep. 865, 21 Mo. App. 353. 
 
 ^Shattuck V. Watson, 7 L. R. A. 551, 53 Ark. 147. 
 
 ^Allison V. Eess, 32 Iowa, 389; Bartle v. Nutt, 29 U. S. 4 Pet. 184, 7 L ed 
 825; Irwin v. Wells, 1 Mo. 9; Hamilton v. Close, 25 Mo. i66^ Brown v* 
 Finley, 18 Mo. 375; Tyler v. Larimore, 2 West. Rep. 177, 19 Mo App' 
 445. 
 
 "Dent V. Ferguson, 132 U. S. 50, 83 L. ed. 242.
 
 14:0 WHEN CODBTS WILL AND WHEN THEY WILL NOT RELIEVE. 
 
 refuse relief to either party, and leave them in precisely the posi- 
 tion in which they have placed themselves.* 
 
 One who, in order to keep his creditors from reaching land 
 owned by him, allows the title to stand in the name of another,, 
 cannot ask equity to aid him in recovering the land.* 
 
 A grantor in a conveyance fraudulent as against his creditors 
 can have no relief against the deed, although he may have since 
 paid his creditors.^ 
 
 The heirs of a fraudulent grantor have no more right than the 
 grantor himself would have to enforce a reconveyance of the 
 property.* 
 
 A judgment debtor cannot defeat his own fraudulent convey- 
 ance by purchasing the property conveyed, through another, under 
 a subsequent judgment against himself.' 
 
 An agreement between grantor and grantee, made upon the 
 conveyance of property, and which reserves to the grantor the 
 enjoyment of the rents and profits of the property conveyed, to 
 which the creditors of the grantor have a right of immediate 
 appropriation to their debts, and which involves a secret trust for 
 a return to the grantor of property of which such creditors have 
 the immediate right of sale, — will not be enforced; but the parties 
 will be left in the position where they have placed themselves, 
 although the grantee refuses to perform his part of the fraudulent, 
 agreement with the grantor. ° 
 
 b. Illegal in Part — Individuals may Release Damages. — 
 
 Courts of justice, even with the consent of the opposite party^ 
 will not enforce a right or contract in violation of a statute, 
 although not expressly declared void by the enactment.* 
 
 While a court cannot enforce an agreement, any part of the 
 
 ^Beadle V. Beadle, 40 Fed. Rep. 315; Barnes v. Gill, 21 111. App. 129; Tyler 
 V. Tyler, 126 111. 525, 9 Am. St. Rep. 642; Dent v. Ferguson, 132 U. S. 
 50, 33 L. ed. 242. 
 
 ^Catoe V. Catoe, 32 S. C. 595; Weatherbee v. Cockrell, 44 Kan. 380. 
 
 ^Brown v. Beilly, 72 Md. 489. 
 
 *McElroy v. Hijier, 133 111. 156. 
 
 ^Eisner v. Eeileman, 9 L. R. A. 96. 52 N. J. L. 378. 
 
 ^Bent V. Ferguson, 132 U. S. 50, 33 L. ed. 242. 
 
 "fBank of United States v. Owens, 27 U. S. 2 Pet. 527, 7 L. ed. 508; Goppellv^ 
 Hall, 74 U. S. 7 Wall. 542, 19 L. ed. 244.
 
 COURTS WILL NOT ENFOKCE AGAINST PUBLIC POLICY, 141 
 
 ■entire consideration of which is illegal,' yet where the illegality is 
 not in the consideration as an entirety, but the things to be done 
 are distinct acts, and are some of them legal and some illegal, the 
 court may enforce the performance of the legal acts.* A contract 
 which would be lawful under ordinary conditions, may be rend- 
 ered illegal where both parties intend to accomplish an unlawful 
 object. Thus, the owner of a building, who willfully suffers it 
 to be used for the illegal sale of spirituous liquors, cannot recover 
 for its use and occupation.' Or where one has such intent and 
 the other is informed thereof, but if such unlawful intention of 
 the one is unknown to the other, the latter may disaffirm or carry 
 out the contract on his discovery of the illegal intent pending the 
 final execution of the contract.^ But unless the use intended to 
 be made of property purchased is for an immoral purpose, or con- 
 stitutes a felony, the mere suspicion or even knowledge of the 
 seller will not defeat a recovery of the price. ^ 
 
 Although an act is in itself illegal, and such as any member of 
 the general public may claim reparation for damages occasioned 
 thereby, yet an individual member of the public may, by contract, 
 waive his particular claim on that account,* 
 
 c. Courts will not Enforce against Public Policy. — The 
 power of a court of equity cannot be invoked where there is an 
 
 ' Waits V, Jones, 1 Bing. N. C. 656. 663; Foley v. Speir, 1 Cent, Rep. 716, 100 
 
 N. Y, 552; James v. Jellison, 94 Ind. 292; Bixby v. Moor, 51 N. H. 402; 
 
 Perkins V. Cummings, 2 Gray, 258; McQuade v. Rosecrans, 36 Ohio St. 
 
 442; Filson v. Himes, 5 Pa. 452; Covington v. Theadgill, 88 N, C. 186; 
 
 Chandler v. Johnson, 39 Ga. 85; Pueblo & A. V. Co. v. Taylor, 6 Colo. 1; 
 
 Widoev. Webb, 20 Ohio St. 431; Pacific Gnano Co. v. Mullen, 66 Ala. 
 
 582; Gotten v, McKenzie, 57 Miss. 418; Wilson v, Rankin, L. R. 1 Q. B. 
 
 163. 
 '^State V. Board of Education, 35 Ohio St. 519, 527; Erie R. Co. v. If^iion L. 
 
 & Exp. Co. 35 N. J. L. 240 ; Pennsylvania Co. v. Wentz, 37 Ohio St. 
 
 333, 389; Oelpckev. Dubuque, 68 U. S. 1 Wall. 221, 17 L, ed. 531; Western 
 
 U. Teleg. Co. v. Burlington tfe 8. W. R. Co. 3 McCrary, 130. 
 ^Mitchell V, Scott, 63 N. H. 596, 
 *Pearcev. Brookes, L, R. lExch. 213; Armstrong v, Toler, 24 U. S. 11 Wheat, 
 
 272, 6 L. ed. 472; Hanauer v. Boane, 79 U. S. 12 Wall, 343, 346, 20 L. 
 
 ed. 439, 440; Leicis v. Latham, 74 N. C. 283; Smitherman v. Sanders, 64 
 
 N. C. 522; Oxford Iron Co. v. Quinchett, 4A Ala, 487; Eoquemore v. Allo- 
 
 way, 33 Tex. 461. 
 ^BickelY. Sheets, 24 Ind. 1; Armfieldv. Tate,, 29 N. C. 258; Tracy v. Tal- 
 
 mage, 14 N. Y. 162; Cheney v. Duke, 10 Gill & J. 11; Rose v. Mitchell, 6 
 
 Colo. 102; Bishop v. Honey, 34 Tex. 245: McKinney v, Andrews, 41 Tex. 
 
 363; Steele v. Curie, 4 Dana, 381. 
 *Egan v, Russ, 39 La. Ann. 967.
 
 142 WHEN COUKTS WILL AND WHEX THEY WILL NOT RELIEVE. 
 
 adequate remedy, or full compensation can be obtained, in an 
 action at law; and a court of equity is equally adverse to exer- 
 cise its authority by way of injunction, to compel one, even 
 under an express contract, to work for another at a stipulated 
 price. Equity will not use its special power against the general 
 policy of the law, which favors entire freedom of the laborer in 
 selecting his field of employment, and his employer, and this 
 policy forbids a court of equity to interfere even when he has 
 bound himself by contract as to both. This is illustrated in two 
 cases decided December 10th, 1891, not yet reported, in which^ 
 at Memphis, Tenn., Judge Hammond, in the United States Cir- 
 cuit Court, refused the application of the Louisville and ISTash- 
 ville Railroad Company, for an injunction to compel the Memphis 
 Cotton Compress Company to comply with its contract to com- 
 press cotton bales at 10 cents per 100 pounds. The compress 
 company has a monopoly of compressing cotton, having bought 
 or driven out all competitors, and it has a contract with all the 
 railroad comjmnies to compress cotton for five years at 10 cents 
 per hundred. However, to make up recent heavy losses by fire, 
 or for other reasons, it has notified all the railroad companies that 
 they must pay 12 cents per hundred for compression, and it 
 refuses to perform the contract. 
 
 There being no other compress company available, this leaves 
 the railroads no alternative but to pay the extra price, unless the 
 compress comj^any could be compelled by injunction to perform 
 its contract. As soon as the notice was given the Newport J^ews 
 and Mississippi Yalley Company filed a bill to compel the com- 
 press company to take 10 cents, but Judge Hammond refused the 
 injunction because it did not appear that the contract had been 
 actually violated. Only a proposition had been made to charge 
 more for compression. 
 
 The Louisville and ISTashviUe Railroad Company also filed a 
 bill, which alleged the tender of cotton for compression, and the 
 refusal to do the work for less than 12 cents; also that the com- 
 press company was ignoring the stipulation to compress only 
 for the railroads and was working for shippers direct, and demand- 
 ing 12 cents. 
 
 The injunction was refused on the ground that a court of equity
 
 RELIEF FROM ILLEGAL CONTRACTS. 143^ 
 
 will not compel anyone to work for another at a stipulated price, 
 but it leaves the injured party to bring an action for damages at 
 law. This being an adequate remedy, the jurisdiction of equity 
 is forbidden to United States courts by an Act of Congress. 
 
 The railroad company contended that the public interest was 
 affected by the disturl)ance of freight rates and disastrous com- 
 petition with points where compression of cotton could be done 
 for less price than demanded at Memphis, but Judge Hammond 
 ruled that the public policy which forbids unnecessary interfer- 
 ence by courts with the conduct of business under contracts, and 
 forbids a jurisdiction that would restrict by such orders the free- 
 dom of the economic laws of trade and commerce, was as import- 
 ant as the other consideration urged in favor of the injunction, 
 and denied the application. 
 
 § 24:. Relief from Illegal Contracts. 
 
 a. In Pari Delicto — Ultra Vires. — It is a rule of law, well 
 recognized, that where parties to a contract are in pari delicto, one 
 of them shall not avail himself of fraud in the contract to prevent 
 the other from recovering on his share of the profits, after the 
 contract is executed, if the other can make out his case otherwise 
 than through the medium or by the aid of the illegal transaction 
 to which he himself was a party ;'^ but in cases where both parties 
 are in delicto, concurring in the illegal act, it does not always follow 
 that they stand in jpari delicto, for there may be and very often 
 are very different degrees in their guilt.' 
 
 The maxim '■'•In pari delicto potior est conditio defendentis 
 et possidentis^^ is not of universal prevalence. An exception 
 arises where the parties to the transaction, although concurring in 
 the illegal act, are regarded as not equally guilty in consequence 
 of fraud, imposition or hardship practiced by one party against 
 the other, thereby obtaining an unconscionable advantage.* 
 
 'But see Denting v. Merchants Cotton Press & 8. Co. (Tenn.) 13 L. R. A. 
 518. 
 
 '^Broom, Legal Maxims, 645; Hunt v. Whitehead, 42 Mo. 524. 
 
 »Taylor, " Jurisprudence," § 300. 
 
 *Kttchen v. Grreenabaum, 61 Mo. 116; 07'een v. Corrigan, 3 West. Rep. 627,. 
 87 Mo. 359.
 
 144 WHEN COURTS WILL AND WHEN THEY WILL NOT RELIEVE. 
 
 Where the defendant has been from beginning to end the prin 
 cipal law-breaker, the party taking advantage of its relations with 
 the plaintiff, and the power thereby acquired and maintained by 
 it over the plaintiff, to promote its own schemes and enterprises, 
 the two parties are not in jyari delicto, whatever meaning be 
 given to the word delictum} 
 
 The fact that a transaction is against public policy in law will 
 not prevent a remedy against one party, who is guilty of fraud by 
 means of his persuasive or other influence over the other pai-ty, in 
 favor of the latter, who is not consciously wrong, but who is 
 actually deceived by the fraud and misrepresentations of the 
 former party." 
 
 When an innocent member of a firm established for the conduct 
 of lawful and moral business calls upon his partner for a share of 
 profits made in partnership transactions, the partner will not be 
 absolved from the duty of dividing, on showing that he realized 
 the profits by cheating the customers of the firm.' 
 
 A railroad company which continues to operate a rival and 
 competing line under a prior contract, after the passage of a stat- 
 ute prohibiting such contracts and making the company which 
 operates a rival line subject to penalty, although such continuation 
 was illegal, cannot retain the money acquired by such operation 
 when called upon by the owner of the road for an accounting, 
 but the latter, not being in pari delicto, is entitled to an equitable 
 share of the earnings." 
 
 The plea of ultima vires should not prevail, whether interposed 
 for or against a corporation, when it would not advance justice, 
 but would perpetrate a wrong.* 
 
 ^ Smith Y. Cuff, 6 Maule & S. 165; Smith v. Bromley, 2 Doug. 296, note; 
 White V. Franklin Bank, 23 Pick. 181; Worcester v. Eaton, 11 Mass. 368; 
 Schermerhorn v. Talman, 14 N. Y. 93; Tracy v, Talmage, 14 N. Y. 162; 
 Jacques v. OolightLy, 2 W. Bl. 1073; Browning v. Morris, Cowp. 790; Wil- 
 liams V, Hedley, 8 East, 378; Ford v. Harrington, 16 N. Y. 285; Osborne 
 V. Williams, 18 Ves. Jr. 379; Harrington v, Qrant, 54 Vt. 236. 
 
 ^Hess V. Culver, 6 L. R. A. 498, 77 Mich. 598. 
 
 '^Pennington v. Todd (N. J.) 11 L. R. A. 589. 
 
 ^Manchester & L. R. Go. v. Concord B. Co. (N. H.) 9 L. R. A. 689, 3 Inters. 
 Com. Rep. 319. 
 
 ^Chicago & A. R. Co. v. Derkes, 1 West. Rep. 555, 103 Ind. 520; Whitney Arms 
 Co. V. Barlow, 63 N. Y. 62.
 
 IN PARI DELICTO ULTRA. VIRES. 145 
 
 The law sustains a defense of this nature only when an imj)era- 
 tive rule of public policy requires it.' 
 
 The rule against granting relief to a party to an illegal contract 
 does not apply to prevent a receiver from recovering the fruits of 
 the transaction for the benefit of honest creditors.^ 
 
 The rule that, where one transfers property to another for the 
 jiurpose of cheating his creditors, the court will not aid him to 
 recover it back, does not apply where the plaintiff and defendant 
 were not in pari delicto^ the defendant being the plaintiff's law- 
 yer, under whose direction the latter acted and followed his advice 
 that transfers were necessary to protect and cover up the property 
 of his deceased father against the assaults of creditors.' 
 
 But on tlie dissolution of an illegal partnership or combination 
 to monopolize the manufacture and sale of a commodity, and the 
 appointment of a receiver, neither the receiver nor any party to the 
 illegal agreement can have any equitable relief based upon alleged 
 rights growing out of such illegal combination.* 
 
 Since, on the dissolution of a corporation which had entered 
 into an illegal combination or copartnership with others to monop- 
 ■olize the manufacture and sale of a commodity, the copartnership 
 is dissolved, and a receiver of the corporation cannot enforce the 
 right to have an accounting under the partnership agreement 
 because of its illegality, he has no right that a court of equity can 
 enforce, or which will justify a decree that a contract between 
 the parties, to which he was not a party, should be canceled or 
 declared illegal. * 
 
 But the court will not refuse to enforce an express trust for the 
 reason that the conveyance to the trustee, who has declared the 
 trust, was to delay, hinder, and defraud the grantor's wife in 
 obtaining alimony and maintenance in a suit which it was appre- 
 
 • Wright v. Pipe Line Co. 101 Pa. 204. See also Steam Nav. Co. v. Weed, 17 
 Barb. 378; Union Nat. Bank v. Matthews, 98 U. S. 621, 25 L. ed. 188; 
 Silvei- Lake Bank v. North, 4 Johns. Ch. 370, 1 L. ed. 871; Chester Glass 
 Co. V. Dewey, 16 Mass. 94; Union Gold Min. Co. v. Rocky Mountain Nat. 
 Bank, 96 U. S. 640, 24 L. ed. 648; Standard Oil Co. v. Scofield, 16 Abb. 
 N. C. 372. 
 
 "^Pittsburgh Carbon Co. v, McMillin, 7 L. R. A. 46, 119 N. Y. 46, 24 Abb. 
 N. a 96. 
 
 ^ Place V. Hayward, 117 N. Y. 487. 
 "^aray v. Oxnard Bros. Co. 31 N. Y. S. R 968. 
 10
 
 146 WHEN COUKTS WILL AND WHEN THEY WILL NOT RELIEVE. 
 
 hended she was about to commence. The rule as to secret trusts 
 does not apply.* 
 b. Iiidepeiideiit of Contract — Locus P(»iiitentiap!. — If the 
 
 plamtiif requires any aid from the illegal transaction in order to 
 enable him to sue his claim, he cannot enforce it.' 
 
 Where a contract grows immediately out of, and is connected 
 with an illegal or immoral act, it will not be enforced,^ The test 
 to determine whether the action arises ex stirjpe causa, is the plain- 
 tiff's ability to establish his case without any aid from the illegal 
 transaction. If his cause or right to recover depends upon a trans- 
 action which is malum in se or prohibited by law, and which he 
 must prove in order to make out his case, he cannot recover,* 
 
 An obligation will be enforced, though indirectly connected 
 with an illegal transaction, if it is supported by an independent 
 consideration, so that the plaintilf does not require the aid of the 
 illegal transaction to make out his case.* 
 
 Money paid on an illegal contract, which remains executory, 
 can be recovered back in an action founded on a disaffirmance and 
 on the ground that it is void.' Where parties have come to a 
 locus pmnitentioe, the courts allow them to recover money advanced. 
 In- such cases the contract is not the basis of a suit but the rescis- 
 sion of it.^ 
 
 If an agreement is legally void and unenforceable by reason of 
 some statutory or common law prohibition, which does not involve 
 any positive immorality, and there is no other reason of public 
 
 ^Tyler v. Tyler, 25 111. App. 333. 
 
 ^Callagan v. Hallett, 1 Cai. 104; Forsythe v. State, 6 Ohio, 21; Simpson v. 
 Bolles, 7 Taunt. 246. 
 
 ^Jones V. Surprise, 4 New Eng. Rep. 295, 64 N. H. 243. 
 
 *Martin v. Hodqe, 47 Ark. 378 ; Tylor v. Larimore, 2 West. Rep. 180, 19- 
 Mo. App. 445; Suits v. Taylor, 2 West. Rep. 579, 20 Mo. App. 166. 
 
 ^Armstrong v. Toler, 24 U. S. 11 Wheat. 258. 6 L. ed. 468; Faikney v. Rey- 
 nous, 4 Burr. 2069; Petrie v. Hannay, 3 T. R. 418; Farmer v. Russell, 1 
 Bos '& P. 296; Planters Bank v. Union Bank, 83 U. S. 16 Wall. 483, 21 
 L ed 473- McBlair v. Gibbes, 58 U. S. 17 How. 232, 236, 15 L. ed. 133, 
 133; Brooks v. Martin, 69 U. S. 2 Wall. 70, 17 L. ed. 732; Bly v. Second 
 Nat. Bank, 79 Pa. 453; Armstrong v. American Exch. Nat. Bank, 133 U. 
 S. 433, 33 L. ed. 747. 
 
 ^Souhegan Nat. Bank v. Wallace, 61 N, H. 24. 
 
 "^ Congress & E. Soring Co. v. Kaowlton, 103 U. S. 49, 26 L. ed. 347; Skinner 
 V. Henderson,'\0 Mo. 205; Adams Exp. Co. v. Reno, 48 Mo. 264; White v. 
 Franklin Bank, 23 Pick. 181; Brown v. Timmany, 20 Ohio, 81.
 
 UroN EXECUTED COJSTKACT. 147 
 
 policy why the courts should refuse to grant relief, a party who 
 has received anything under it from the other party, and has 
 failed to perform on his part, must account to the other for what 
 he has received/ 
 
 "Where real estate is sold by means of a lottery scheme, but the 
 lottery transaction does not appear on the face of the deed, the 
 grantor cannot avoid it by showing his own share in the illegal 
 transaction." 
 
 The party receiving property transferred under a contract 
 merely malum prohihltum may be made to refund the value of 
 that which it has actually received to the person from whom it 
 has received' the property for the unauthorized purpose.* 
 
 If money is paid for an illegal purpose or goods delivered, the 
 person who has so paid or delivered may recover them back before 
 the illegal purpose is carried out; but if he delays until this is 
 done, or if he seeks to enforce the illegal transaction, he will fail,* 
 The rule is generally applied, even if the parties are in jparo 
 delicto^ disregarding the question who is most in fault.* 
 
 A contract with the State, procured by bribery upon the officers 
 having power to make it, is against public policy and void; and 
 where the briber has paid money on the contract, the courts will 
 relieve him where he stands, and cancel the contract, without 
 decreeing a return of the money/ 
 
 c. Upon Executed Contract. — Although contracts cannot be 
 enforced, yet if parties carry them out they become entitled to 
 claim the promise or payment due in respect of it in some cases." 
 
 A private corporation cannot be allowed to interpose the plea 
 
 ^Manchester c6 L. R. Co. v. Concord B. Co. (N. H.) 9 L. R. A. 689, 3 Inters. 
 
 Com. Rep. 319. 
 ^Allebach v. Hwnsicker, 133 Pa. 349. 
 
 ^Logan County Nat. Bank v. Townsend, 139 U. S. 67. 35 L. ed. 107. 
 *laylorv. Bowers, L. R. 1 Q. B. Div. 291; Lowryv. Bourdieu, 2 Dougl. 468; 
 
 Tappenden v. Randall, 2 Bos. & P. 467; Hastelow v. Jackson, 8 Barn. & 
 
 C. 221; Bone v. Ekless, 5 Hurlst. & N. 925; Lacaussade v. White, 7 T. R. 
 
 535; Colton v. Thurland, 5 T. R. 405; Smith v. Bickmore, 4 Taunt. 474; 
 
 Munt V. Stokes, 4 T. R. 561; Morgan v. Qroff, 4 Barb. 524; Utica Ins. Co. 
 
 V. Kip, 8 Cow. 20; Merritt v. Millard, 4 Keyes, 208; White v. Franklin 
 
 Bank, 22 Pick. 181; Lowell v. Boston & L. R. Corp. 23 Pick. 24; Thomas 
 
 V. Richmond, 79 U. S. 12 Wall. 349, 20 L. ed. 453. 
 ^Congress & E. Spring Co. v. Knowlton, 103 U. S. 49, 26 L. ed. 347. 
 estate V. Cross, 38 Kan. 696. 
 'Leake, Cont. Lond. 1878, 738; Bishop v. Kitchen, 38 L. J. N. ri. Q. B. 20.
 
 148 WHEN COURTS WILL AND WHEN THEY WILL NOT RELIEVE. 
 
 of ultra vi?'es where its contract has been performed by the other 
 party and the corporation has had the benetit of the contract and 
 its performance.* 
 
 Where contracts are positively immoral or illegal, the property 
 earned from them will be dealt with according to equity, and the 
 contract will define the relation of the parties to the property." 
 
 The agreement having been executed, the parties, having sub- 
 mitted to its terms, are clearly entitled to the benetit of the con- 
 sideration stipulated.^ 
 
 The court will not refuse to deal with the property, on the 
 ground that it was acquired under an illegal contract/ 
 
 Where losses have been made in an illegal transaction, a person 
 who lends money to the loser with which to pay the debt can 
 recover the loan, notwithstanding his knowledge of the fact that 
 the money was to be so used.^ 
 
 ^Camden & A. R. Go. v. May's Landing & E. H. C. R. Co. 4 Cent. Rep. 801. 
 48 N. J. L. 530; Denver F. Ins. Co. v. McClelland, 9 Colo. 11; Whitney 
 Arms Co. v. Barlow, 68 N. Y. 62; Enll Mfg. Co. v. American R. S. Co. 
 48 Mich. 331; Oil Creek & A. R. R. Co, v. Pennsylvania Transp. Co. 83 
 Pa. 160; Bradley v. Ballard, 55 111. 413, 417; Ohio & M. R. Co. v. McCarthy, 
 96 U. 8. 258. 267, 24 L. ed. 693, 695; Pneumatic Gas Co. v. Berry, 113 
 U. S. 323, 327, 28 L. ed. 1003; Union Water Co. v. Murphy s Flat Flaming 
 Co. 22 Cal. 620; State Board of Agricjilture v. Citizens St. R. Co. 47 Ind. 
 407; Newburg Petroleum Co. v. We'are, 27 Ohio St. 343. 353; Slater Woolen 
 Go. V. Lamb, 3 New Eng. Rep. 443, 143 Mass. 420; Hall v. Paris, 59 N. 
 H. 74; Norton v. Derry Nat. Bank, 61 N. H. 589; Parish v. Wheeler, 22 
 N. Y. 494; Darst v. Gale, 83 111. 137; Ward v. Johmon. 95 111. 215; Peoria 
 «& 8. R. Co. V. Thompson, 103 111. 187; Steamboat Co. v. McCutclieon, 13 
 Pa. 13; Teiry v. Eagle Lock Co. 47 Conn. 141; Be Groffv. American Linen 
 Thread Co. 21 N. Y. 124, 127; Underwood v. Newport Lyceum, 5 B. Mon. 
 129; Southern L. Ins. & T. Co. v. Lanier, 5 Fla. 110, 165; Chicago Bldg. 
 Soc. V. Crowell, 65 111. 453; Pine Grore Twp. v. Talcott, 86 U. S. 19 Wall. 
 696, 678, 22 L. ed. 227, 233; Rutland d- B. R. Co. v. Proctor, 29 Vt. 9:^; 
 Pi'airie Lodge v. Smith, 58 Miss. 301, 308; Hitchcock v. Galveston, 96 U. 
 8. 341, 351, 24 L. ed. 659, 662; Ossipee H. & W. Mfg. Co. v. Canney, 54 
 N, H. 295, 318, 327; Pierce, Railroads, 519, et seq. ; Waterman, Spec. 
 Perf. § 226; Morawetz, Priv. Corp. §§ 648-653, 689-699. 
 
 ^Planters Bank v. Union Bank, 83 U. S. 16 Wall. 483, 21 L. ed. 473; West- 
 ern U. Teleg. Co. v. Burlington & S. W. R. Co. 3 McCrary, 138, 139; 
 Cook V. Sherman, 4 McCrary, 33. 
 
 ^Irwin V. Williar, 110 U. S. 499, 509. 510, 28 L. ed. 225, 230; Roundtree v. 
 Smith, 108 U. S. 269, 276, 27 L. ed. 722, 724; Stewart v. Schall, 3 Cent. 
 Rep. 509, 65 Md. 307, 308; Gilbert v. Gaugar, 8 Biss. 214. 
 
 *W. U. Tel. Co. V. Burlington & 8. W. R. Co. 11 Fed. Rep. 1. 
 
 ^Armstrong v. Toler, 24 U. S. 11 Wheat. 258, 6 L. ed. 468; Eimbro v. Bul- 
 litt, 63 U. S. 22 How. 256, 269, 16 L. ed. 313, 317; Planters Bank v. 
 Union Bank, 83 U. S. 16 Wall. 500, 21 L. ed. 480; Tyler v. Carlisle, 4 
 New Eng. Rep. 409, 79 Me. 210; McGavock v. Puryear, 6 Coldw. 34; 
 Waugh V. Beck, 5 Cent. Rep. 536, 114 Pa. 422; Armstrong v. Ameiiain, 
 Exch. Nat. Bank, 133 U. S. 433, 33 L. ed. 747.
 
 UPON EXECUTED CONTRACTS. 149 
 
 Mere knowledge on the part of a person loaning money that the 
 borrower intends to use it by engaging in the purchase of options 
 on grains in the market of another State, or investing it in wager- 
 ing or gambling contracts, will not defeat an action by the lender 
 to recover back the amount loaned.' 
 
 ^Jackson v. City Nat. Bank, 9 L. R. A. 657, 125 Ind. 347. .
 
 .CHAPTER YIL 
 
 CONTRACTS AFFECTING MARRIAGE. 
 
 § 25. Contracts to Promote or Riqiture the Marriage Belation. 
 2G. A Contract for Imniecliate Separation and Supjjort, or for Sup- 
 port after Accomplished Separation, Valid. 
 f!7. Agreement for Separation and Siq^port Supersedes only in Part 
 Maritcd Duties. 
 
 28. Ti'ustee in Marital Separation not Essential, lint Hushand 
 
 Treated as Trustee, and not Criminally Liable for Non- 
 support. 
 
 29. Contract Void ivhen Immediate Separation not Contemplated. 
 
 30. Contracts Regarding Property, hut in Partial Restraint of 
 
 Marriage. 
 
 § 25. Contracts to Promote or Rupture the Marriage Rela- 
 tion. — Marriage is always favored as promoting morality, and as a 
 means of increasing the strength and prosperity of the State, and 
 it is universally held a good consideration to sustain a contract.' 
 
 In Shadwell v. ShadioeU, 9 C. B. N. S. 159, an uncle wrote to 
 his nephew as follows : " My dear Lancey : I am so glad to hear 
 of your intended marriage with Ellen Nicholl, and, as I promised 
 to assist you at starting, I am happy to tell you that 1 will pay 
 you 150 pounds yearly during my life and until your annual in- 
 come derived from your profession of a chancery barrister shall 
 amount to 600 guineas, of which your own admission will be the 
 only evidence that I shall receive or require. Your affectionate 
 uncle, Charles Shadwell." It was held that the promise was bind- 
 ing, and made upon good consideration. So also marriage is a 
 good consideration for a deed.* 
 
 It is declared by the courts a consideration of the highest value. 
 There is no consideration so much respected in law as the consid- 
 eration of marriage. Co. Litt. 9 (6). It runs through the entire 
 
 ^Harrison v. Trader, 211 Ark. 290; McCaw v. Bark, 31 Ind. 62; Ricliardson 
 V. ScJmltz, 98 Ind. 425; Frank's App. 59 Pa. 194; Butterfieldv. Stanton, 44 
 Miss. 36; WriqJitw.WrigJtt, 54 N. Y. 440; Herring v.Wickham, 29 Gratt. 
 628, 26 Am. Rep. 410. 
 
 ■'Oibson V. Bennett, 4 New Eng. Rep. 412, 79 Me. 803. 
 
 150
 
 CONTRACTS TO PROMOTE OR RUPTURE MARRIAGE RELATION. 151 
 
 settlement and supports all parts of it, thus making marriage not 
 •only a liigli, but the highest consideration known to the law.' 
 
 An agreement by a father with the future husband of his ille- 
 gitimate daughter, to settle, at his, the father's, death, his " whole 
 ■estate " upon the husband, in consideration of the marriage, is 
 valid, and will bind the property belonging to the father at the 
 time of his death.* 
 
 A verbal promise made by a father to the husband of his daugh- 
 ter before his marriage, to convey certain land to him, is founded 
 on the highest consideration and is a sufficient consideration for a 
 written agreement for that purpose after the marriage.^ 
 
 If a father promises A that if he will marry his daughter, he 
 will give a certain amount as a marriage portion, and if in contem- 
 plation of such promise A afterwards marries the daughter, the 
 father will be bound by the promise.* 
 
 If A promise B that if he and A's daughter marry, " he will 
 endeavor to do her equal justice with the rest of his daughters, 
 -as fast as it is in his power, with convenience," and the marriage 
 be afterwards had with his consent, the promise is not void 
 ior uncertainty, and is sustained by a sufficient consideration. 
 Such promise is to be treated not as made in the interest of the 
 wife alone, but to the husband and wife jointly, not to be satisfied 
 by a conveyance of land to the wife alone ; but the husband may 
 •elect to consider it a personal contract, and, if he survives his wife, 
 sue thereon in his own name.* 
 
 A promised B if he would get himself a wife and have a child 
 he would give him $500. In an action by B to recover, this sum 
 from the executor of A, the condition having been fully performed 
 relying on the promise, the promise was held to be supported by 
 a good consideration.* 
 
 ^Ford V. Stuart, 15 Beav. 499; Nairn v. Proicse, 6 Ves. Jr. 752. See Mag- 
 niac V. Thompson, 32 U. S. 7 Pet. 348, 8 L. ed. 709; Prewit v. WiUon, 103 
 U. S. 22, 26 L. ed. 860; De Barante v. Oott, 6 Barb. 497; Wood v. Jacksm, 
 8 Wend. 26; Dugan v. Oittings, 3 Gill, 138, 43 Am. Dec. 312; Wright v, 
 Wright, 54 N. Y. 440. 
 
 « Wall V. Scales, 1 Dev. Eq. 473. 
 
 ^Argenbright v. Campbell, 3 Hen. & M. 144. 
 
 *Ogden v. Ogden. 1 Bland, Ch. 284. 
 
 ^Chichester v. Vass, 1 Munf. 98. 
 
 •^Gurvin v. Cromartie, 36 N. C. 174,
 
 152 CONTRACTS AFFECTING MARRIAGE. 
 
 The law favors an ante-nuptial settlement executed in gooct 
 faith, and the agreement will be considered as having embodied 
 the real intention of the parties at its date, and therefore con- 
 clusive of the rights of the parties to it ; and the resumption of 
 her marital duties by a wife, who has voluntarily estranged her- 
 self from her husband because of her dissatisfaction with such a 
 contract, is no consideration for a revocation of the settlement, 
 substituting therefore her rights under a statute. There must be- 
 a meritorious or valuable consideration for such a revocation of 
 an anti-nuptial settlement.* Where the sole inducement was the 
 doing of that which the wife was legally bound to do — -the 
 estrangement having been without justification, and a wanton 
 abuse of the marital relation for mercenary purposes, reconcile- 
 ment was her duty — public policy forbids that the performance 
 of such duty be made the subject of barter and sale. The law 
 fixes and regulates the marital relation on public consideration and 
 will not allow the parties to discard and renew it for money.* 
 Thus in Roberts v. Frkhy, 38 Tex. 229, the Supreme Court held 
 that the husband is not legally bound by a post-nuptial contract 
 in which he hires his wife to live with him. The same principle 
 was affirmed by the Supreme Court of Teimessee in Copeland v. 
 Boaz, 9 Baxt. 223 ; and Mr. Justice Allen of the Supreme Ju- 
 dicial Court of Massachusetts well said : " It is as much against 
 public policy to restore interrupted conjugal relations as it is tO' 
 continue them without interruption for the same consideration. 
 The right of condonation is not exercised for the sake of justice 
 to the injured party, or with regard to the rights of others or the 
 interests of the public when it is sold for money, and the law can- 
 not recognize such a consideration." ^ 
 
 An undertaking to procure a marriage between two parties for 
 a reward is void," and all marriage brokerage contracts are by the 
 courts pronounced illegal.^ 
 
 ^Stickney v. Borman, 2 Pa. 67. 
 
 ^Kesler's Estate, — Pa. — , 13 L. R. A. 581. 
 
 'Merrill v. Peaslee.liQ Mass. 460; but see Adams v. Adams, 91 N. Y. 381. 
 
 *Hall V. Potter, 3 Lev. 411; Fuller v. Dame. 18 Pick. 472; Crawford v. Em- 
 sell, 63 Barb. 92 ; Roberts v. Roberts, 3 P. Wms. 75, note 1; Johnson v. H^mt^ 
 81 Ky. 321: Arundel v. Trevillian, 1 Rep. in Cli. 87; Sterling v. Sin- 
 nickson, 5 N. J. L. 756; ScribblehiU v. Brett, 4 Brown's Par. Cas. 144. 
 
 ijames v. Jellison, 94 Ind. 292, 48 Am. Rep. 151; Keat v. Allen, 3 Allen (N. 
 B.) 588; Duval v. Wellman, 134 N. Y. 156.
 
 CONTRACT FOR IMMEDIATE SEPARATION AND SL'i'PORT. 153 
 
 A contract providing, in consideration of certain assessments- 
 paid and to be paid by a single man, that an association will pay 
 a certain sum to his wife at marriage, if married to him at the 
 expiration of two years, is illegal.' 
 
 A claim for services rendered to a man in procuring for him a 
 wife is invalid, it being against public policy to allow marriage 
 brokerage.* So any contract which has for its purpose a rupture- 
 of the marriage relation, is void.^ 
 
 § 26. A Contract for Iiiiniediate Separation and Support, 
 or for Support after Accomplished Separation, Valid. — It was 
 reluctantly held by the chancellor in Carson v, Murray, 3 Paige, 
 500, 3 L. ed. 248, and then only upon the principle of stare decisis 
 as evinced by Baker v. Barney, 8 Johns. 73, and Shelthar v. Greg- 
 ory, 2 Wend. 422, following the English decisions prior to the Revo- 
 lution, that a valid agreement for an immediate separation between 
 husband and wife and for a separate allowance for her support, 
 may be made through the medium of a trustee. 
 
 The case of Carson v. Murray, 3 Paige, 483, 3 L. ed. 241, was 
 upon a bill in equity by the wife against the executors of her hus- 
 band, based upon an agreement of separation, for its enforcement 
 out of the estate of the deceased husband.^ See also Chapin v. 
 Chapin, 135 Mass. 393. But where the agreement was concealed 
 from the court pending the divorce proceedings, it cannot always 
 be enforced. 
 
 The case of Baker v. Barney, 8 Johns. 72, was an action to 
 recover of the husband the price of suitable goods sold to the wife 
 after the separation of husband and wife, under an agreement 
 making provision for the support of the wife. 
 
 ""State V. Towle, 6 New Eng. Rep. 460, 80 Me. 287. 
 
 -^Antdiffe v. June, 10 L. R. A. 631, 81 Mich. 477. 
 
 ^Sayles v. Sayles, 21 N. H. 312; Goodwin v. Goodwin, 4 Day, 343; Kilborit 
 V. Field, 78 Pa. 194; Muckenburg v. Holler, 29 Ind. 139: Hardy v. Smith, 
 136 Mass. 328; Hamilton v. Hamilton, 89 111. 349; Comstock v. Adams, 23 
 Kan. 513; Phillips^. Thorp, 10 Or. 494; Cross v. Cross, 58 N. H. 373; 
 Stilson V. Stilson, 46 Conn. 15; Sampson v. Cresson, 6 Phila. 229; Stoiiten- 
 burg V. Lybrand, 13 Ohio St. 228; Dagqett v. Daggett, 5 Paige, 509, 3 
 L. ed. 808, 28 Am. Dec. 442; St. John v. St. John, 11 Ves. Jr. 536; Com. v. 
 Waterman, 122 Mass. 43; Weeks v. Hill, 38 N. H. 199; Ecerhartv. Puckett, 
 73 Ind. 409; Belden v. Munger, 5 Minn. 211 ; Naice v. Brown, 10 Vroom. 23. 
 
 *Speck V. Danstuan, 7 Mo. App. 165; Hamilton v. Hamilton, 89 111. 349.
 
 loi CONTKACTS AFFECTING MAKKIAGE. 
 
 And the case of Shelihar v. Gregory, 2 Wend. 432, was an action 
 upon the bond and agreement to separate, and the defense was 
 that after the bond was given and before tlie instalhnent or sum 
 fell due by the terms of the agreement, the wife returned to and 
 was living with the husband, and was supported by him. In 
 these cases, the husband and wife were living together wlien the 
 agreement of articles of separation were executed, and separated 
 immediately thereafter. The ruling of the court was to the effect 
 that such articles of separation, considered under these various 
 aspects, were valid. These holdings were based upon decisions 
 made in the English courts, and neither the English nor our own 
 courts have departed or receded from the principle thus laid down. 
 While the husband and wife in Calkins v. Long, 22 Barb. 98, had 
 actually separated before the agreement of separation was exe- 
 cuted, the court, in holding that the agreement was valid, cites 
 numerous decisions with approval, in England and several of the 
 states of the Union, to the effect that such agreements are valid 
 and will be enforced where the separation had taken place before, 
 or takes place immediately after, the execution of the agreement 
 ■of separation ; and this case is said (in a note upon page 110) to 
 have been affirmed by the Court of Appeals. 
 
 Judge Davis, in delivering the opinion of the court in Walker 
 V. Walker, 76 U. S. 9 Wall. 743, 19 L. ed. 814, while regretting, 
 upon the score of public policy, that the courts of England and of 
 this country had gone so far, was, as was the chancellor in Calkins 
 V, Long, 22 Barb. 103, constrained to hold that a covenant by the 
 husband for the maintenance of the wife, contained in a deed of 
 separation between them, through the medium of trustees, where 
 the consideration is apparent, is valid, and will be enforced in 
 equity, if it appears that the deed was not made in contemplation 
 of a future possible separation, but in respect to one which was 
 to occur innnediately, or for the continuance of one which had 
 already taken place. Indeed it has long since become the settled 
 law of England, and followed in this country, that a valid agree- 
 ment for an immediate separation between husband and wife, and 
 for a separate allowance for her support, may be made through
 
 CONTRACT FOR IMMEDIATE SEPARATION AND SUPPORT. 155 
 
 the medium of a trustee,' Such agreement is not void as against 
 public policy." 
 
 The decision in Holhrook v. Comstoclc, 16 Gray, 109, was based 
 upon the assumed validity of such a contract. The validity of 
 such contracts was reluctantly conceded in Alhee v. Wyman^ 10 
 Oray, 222, being considered obnoxious to grave objections. That 
 they are not illegal or against public policy, see further in Dupre 
 V. Eein, 56 How. Pr. 230, 7 Abb. X. C. 258; Maim v. HulberU 
 38 Hun, 31; Heyer v. Burger, 1 Hoffm. Ch. 1, 6 L. ed. 1043; 
 Hogers v. Rogers, 4 Paige, 516, 3 L. ed. 541; Calkins y. Long, 22 
 Barb. 97; Simmons v. McEhoain, 26 Barb. 419; Cropsey v. Mc- 
 Kinney, 30 Barb. 47; Wallace v. Bassett, 41 Barb. 92; Anderson 
 V. Anderson, 1 Edw. Ch, 380, 6 L. ed. 179; Carson v, Murray, 3 
 Paige, 483, 3 L. ed. 241. 
 
 An agreement not to take legal steps to avoid a fraudulent di- 
 vorce is void.^ Although in most of the states a limit is lixed 
 within which such suits may be brought. So all proceedings in 
 fraud of the law to secure a divorce are void.* 
 
 When a separation has actually taken jDlace or been fully de- 
 cided on, and articles containing suitable provisions for the wife 
 and children are fair and equal, and not the result of fraud or co- 
 ercion, no principle of public policy is disturbed, and such agree- 
 ment may be sustained,* 
 
 ^Loud V. Loud, 4 Bush, 457; Calkins v. Long, 22 Barb. 103; Saylea v. Sayles, 
 21 N. H. 312; Mercein v. People, 25 Wend. 6 J; Rex v. Mead, 1 Burr. 543 
 Rodney v. Chambers, 2 East, 283; Bettle v. Wilson, 14 Ohio, 357; Nurse -t 
 Craig, 2 Bos. & P. 148; Todd v. Stoakes, 1 Salk. 116; Hindley v. West 
 meath, 6 Barn. & C. 200; Westmeath v. Westmeath, 1 Dow. & C. 519 
 Garbut v. Bowling, 81 Mo. 214; Beach v. Beach, 2 Hill, 260; Jee v. Thur 
 low, 2 Barn. & C. 547; Scholey v. Goodman, 1 Car. & P. 36, 1 Bing. 349 
 McDownell v. Murphy, 2 Fox & 8. 279 ; Nichols v. Palmer, 5 Day, 47. 
 
 ^Fox V. Davis, 113 Mass. 258; Walker v. Walker, 76 U. S. 9 Wall. 743, 19 L. 
 ed. 814; Hunt v. Hunt, 4 DeG. F. & J. 221. 
 
 ^Comstock V. Adams, 33 Kan. 513. 
 
 *Everhart v. Puckeit, 73 Ind. 409; Hunt v. Hunt, 47 L. J. Mat. Cas. 22, 23: 
 Stilson V. Stilson, 46 Conn. 15; Cross v. Cross, 58 N. H. 373; Stoifteuburg v. 
 Lybrand, 13 Ohio St. 228; Phillips v. Thorp, 10 Or. 494; Adams v. Ad- 
 ams. 25 Minn. 72; Viser v. Bertrand, 14 Ark. 267. 
 
 ^Squires v. Squires, 53 Vt. 311: Randall v. Randall, 37 Mich. 572; Cojnpton 
 V. Collinson, 3 Bro. Ch. 377; Worrall v. Jacob, 3 Meriv. 256; Jee v. Thur- 
 low, 2 Barn. & C. 547; Jee v. Thurlaw, 4 Dow. & R. 11; Blaker v. Cooper, 
 7 Serg. & R. 500; Hutton v. Hutton, 3 Pa. 100; Ddlinger's App. 35 Pa. 
 357; Nichols v. Palmer, 5 Day, 47; Chapman v. Gray. 8 Ga. 341; Wells y. 
 Stout, 9 Cal. 494; Gaines v. Poor, 3 Met. (Ky.) 503; Walker v. Walker, 76 
 U. S. 9 Wall. 743, 19 L. ed. 814.
 
 156 CONTRACTS AFFECTING MARRIAGE. 
 
 Where they had actually separated, and were living apart at the 
 time such agreement was made, the agreement is valid." 
 
 A bond made to a wife's father to secure a separate maintenance- 
 for the wife, wjio had separated from her husband, the obUgor, 
 for their mutual comfort, to avoid the effect of jealousies and an- 
 imosities that existed between them, is founded upon a legal and 
 meritorious consideration.* 
 
 So, it has been held that a woman may maintain an action on a 
 promissory note given to her by her former husl^and after divorce 
 from him, in pursuance of a written agreement conditioned upon 
 the divorce being decreed, the note being given and accepted in 
 lieu of alimony.* 
 
 § 27. Agreement for Separation and Support Supersedes 
 Only in Part Marital Duties. — Such agreements take the place, 
 as far as they extend, of the duties and obligations of the law in 
 relation to husband and wife and their children. But they do riot 
 supersede or render inoperative other duties and obligations im- 
 posed by law upon liusband and wife toward each other and toward 
 their children. They are still husband and wife, but living apart 
 from each other, and bound to observe all the other domestic du- 
 ties resting upon them as husband and wife and parents, not jjro- 
 vided for in the agreement of separation. Neither of them can 
 marry nor commit adultery without incurring the consequences 
 and the penalty prescribed by law to husbands and wives who 
 commit those offenses. Hence we find numerous decisions of the 
 courts in nearly all civilized countries holding that either husband 
 or wife may, notwithstanding the existence of such agreement 
 between them, maintain against the other the ordinary action for 
 divorce, limited or absolute, according to the ground and the 
 jurisdiction, and whether the ground therefor accrued before or 
 after such agreement was entered into.* 
 
 ^Magee v. Magee, 67 Barb. 100. 
 
 ^Page v. Trnfant, 2 Mass. 159; Sumner v. Williams, 8 Mass. 200; Thacher v. 
 
 Dinsmore, 5 Mass. 303. 
 ^Chapinv. Chapin, 135 Mass. 393; Bliss v. Negus, 8 Mass. 46, 
 ■^Stewart, Mar. & Div. § 191; Grant v. Budd. 30 L. T. N. S. 319; Charles- 
 
 worth V. Roll, 43 L. J. N. S. Exch. 25; Wright v. Miller, 1 Sandf. Ch. 
 
 103, 7L. ed. 256; Carpenter v. Osborn, 3 Cent. Rep. 804, 102 N. Y. 559;, 
 
 Pettit V. Pettit, 10 Cent. Rep. 255, 107 N. Y. 667; Je^ v. Thurlotc, 2 Bsirvi. 
 
 & C. 547; Kremelberg v. Kremelberg, 52 Md. 553; Clark v. Fosdick, 6 L. 
 
 R. A. 132, 118 N. Y. 7.
 
 TRUSTEES IN MARITAL SEPARATION NOT ESSENTIAL 
 
 15' 
 
 s 28. Trustee in Marital Separation not Essential, Tmt 
 HusDand Treated as Trustee, and not Criminally Liable toi 
 Nrsupport.-A valid agreement may be made for separation 
 be" en husband and wife and for an allowance lor l--upport 
 where the separation is inevitable aiid immediate without the 
 intervention of a trustee; and in such case the husband him.elf 
 will be treated as a ti.istee, and a husband who enters into an 
 agreement with his wife for a separation and an allowance f oi her 
 support, where the separation is inevitable and immediate, the 
 de^d of separation providing on behalf of the wife tha he shal 
 not visit her or enter any house where she may happen to be and 
 shall permit her to Uve separate from him, and to carry on biisi- 
 nes on her own account as if she were .feme ..?.,-is not liable 
 
 a cHminal prosecution instituted by the wife herself to obt.n 
 an order for her maintenance, where there is no showing that the 
 deed was fraudulently procured, or that the terms were unreason- 
 able, or that its execution became null and void by the acts of the 
 
 ^Tbond bv a wife to her husband, with surety, to secure the 
 husband against claims for her future support, executed while 
 living apart and on settlement of a^siiit for separate maintenance, 
 is not void as against public poli.\y ' ■, . n , 
 
 While it is true that husband and wife cannot lawfully entei 
 into an agreement for divorce, yet it is well settled that the amount 
 of alimony which the husband is to pay to the wife, and the terms 
 of the pavment, and the length of time during which such pay- 
 ment is ti continue, may be all arranged betsveen them by con- 
 
 ^^"in Buck V. Buch 60 111. 242, the recitals of the decree showed 
 that the whole question of alimony was fixed and settled by the 
 ac^reement of the parties; and it was there held that it was compe- 
 tent for the husband to consent to the provisions of the decree, 
 and that, having done so, he was bound by them, and could have 
 no relief against his own voluntary agreement. ^^ here the cour 
 has iurisdiction of the subject, the consent of the parties will 
 authorize it to enter a valid decree or judgment in accordance 
 
 Worn V. Richards, 131 Pa. 209. 
 
 ^Winn, V. Sanfm-d, 1 L. R. A. 512, 148 Mass. 39.
 
 158 CONTRACTS AFFECTING MARRIAGE. 
 
 with their agreement. Where husband and wife agree upon ali- 
 mony, the court will embody their agreement upon that subject 
 in its decree.' 
 
 § 29. Contraet Void when Immediate Separation not Con- 
 templated. — But where the instrument, no matter what the- 
 inducing cause may have been, does not contemplate an imme- 
 diate separation, it is void, as it may operate as an inducement 
 to the separation, and therefore against the policy of the law." 
 
 An agreement, therefore, is of no effect unless the parties are 
 separated when the agreement is entered into, or unless they sep- 
 arate afterwards in pursuance of the agreement, which has not 
 been the promotive cause.* 
 
 The validity of such agreements is recognized and enforced in 
 numerous cases decided by the courts.* 
 
 § 30. Contracts Regarding Property, but in Partial Re- 
 straint of Marriage. — Contracts concerning property, which 
 operate in partial restraint of marriage, are not void, if they are- 
 reasonable in themselves, and do not directly or virtually operate 
 as an undue restraint upon the freedom of marriage. If the con- 
 dition is in restraint of marriage generally, then, indeed, as a con- 
 dition against public policy and the economy and morality of 
 domestic life, it will be held utterly void.^ But a contract where- 
 
 ^Stratton v. Stratton, 77 Me. 377; FUtclier v. Holmes. 25 Ind. 458; Carson v. 
 
 Murray, 3 Paige, 483, 3 L. ed. 241; Miller v. Mider, 64 Me. 484; Storey v. 
 
 Storey, 1 L. R. A. 320, 125 111. 608, 8 Am. St. Rep. 417. 
 ^Oould V. Oould, 29 How. Pr. 458, K v. W. 3 Kay & J. 382; Durant v. 
 
 Titley, 7 Price, 577; Florentine v. Wilson, Hill & D. 303; Friedman v. 
 
 Bierman, 43 Hun. 390; Morgan v. Potter, 17 Hun, 405; Mercein v. People, 
 
 25 Wend. 77; AUen v. Affleck, 10 Daly, 512, 64 How. Pr. 381; Nurse v. 
 
 Craig, 2 Bos. & P. 148. 
 ^ Allen V. Affleck, 64 How. Pr. 384, 10 Daly, 516. See Cdkiiis v. Long, 23- 
 
 Barb. 106. 
 ^Carpenter v. Osborn, 3 Cent. Rep. 804, 102 N. Y. 552; Pettit v. Pettit, \0> 
 
 Gent. Rep. 255, 107 N. Y. 677; Carson v. Murray, 3 Paige, 483, 3 L. ed. 
 
 241 ; Rogers v. Rogers, 4 Paige, 516, 3 L. ed. 541 ; Allen v. Affleck, 64 How. 
 
 Pr. 380; Clark v. Fosdick, 6 L. R. A. 132, 118 N. Y. 7; Dupre v. Rein, 56 
 
 How. Pr. 230, 7 Abb. N. G. 256; Heyer v. Burger, 1 Hoflm. Ch. 6, 6 L. 
 
 ed. 1045. 
 ^ Allen V. Jackson, L. R. 1 Ch. Dlv. 399; Jones v. Jones, L. R. 1 Q. B. Div. 
 
 279; Hartley v. Rice, 10 East, 22; Crawford v. Russell, 62 Barb. 92; Man- 
 
 dlebaum v. McDonell, 29 Mich. 78; Key v. Bradshaw, 2 Vern. 102; Lowe 
 
 V. Peers, 4 Burr. 2225; Sterling v. Sinniekson, 5 N. J. L. 756; Williams v. 
 
 Cowden, 13 Mo. 211; Chalfant v. Payton, 91 Ind. 202; Bellairs v. Bellairs, 
 
 L. R. 18 Eq. 510.
 
 COMTKACTS REGARDING PKOPEKTY. 159' 
 
 by a husband agrees to pay his divorced wife a specified monthly 
 sura for so long a time as she does not marry again and shall 
 remain single and unmarried, is not void as in restraint of mar- 
 riage.' 
 
 A condition in a will which holds out to the legatee an induce- 
 ment to live separate and apart from her husband is void as 
 against public policy. Thus, in Brown v. Peek, 1 Eden, 140, the 
 will provided that the legatee should be paid two pounds per 
 month if she lived with her husband, but if she lived from him, and 
 with her mother, she should be paid five pounds a month. 
 
 In Wren v. Bradley, 2 DeG. & S. 49, the bequest was " to my 
 daughter, Ann Jefferies AYren, the wife of Abraham Wren, in 
 case she shall be living apart from her said husband, the said 
 Abraham Wren, and shall continue so to do during the hfetime of 
 my said wife, an annuity of £30, by equal quarterly payments, the 
 first of such payments to be made at the expiration of three cal- 
 endar months next after my decease. And I do hereby further 
 direct that, if at any time the said Ann Jeflieries Wren shall 
 cohabit with the said Abraham Wren, the said annuity hereinbe- 
 fore given to her shall, during the time she shall so cohabit, abso- 
 lutely cease and determine." 
 
 In Conrad v. Long, 33 Mich. 79, the clause of the will was as 
 follows: " To my brother, Frederick S. Conrad, I give and 
 bequeath the one half so remaining, and the other half I give and 
 bequeath to my sister, Elizabeth Long, upon this condition: — if at 
 any time subsequent she should conclude not to live with her 
 present husband, Henry Long, as his wife. But if she continue 
 so to live as the wife of the said Henry Long until her death,, 
 then, in that case, I give and bequeath all my property, real and 
 personal, remaining after the burial of my mother aforesaid, tO' 
 my aforesaid brother, Frederick S. Conrad." 
 
 In all of these cases the conditions quoted were very properly 
 held to have been void. The reason is apparent. They held out 
 a direct inducement for the legatees to live separate and apart 
 from their husbands. The result may have been to bring about 
 the separation and violation of their marital duties and obligations 
 without any just cause, and in an unlawful manner. This was not 
 
 ^Jones V. Jones, — Colo. — , 27 Pac. Rep. 85.
 
 ItJU CONTRACTS AFFECTING MAKRIAGE. 
 
 SO in the case of Born v. ITorstmann^ 5 L. R. A. 577, 80 Cal. 454, 
 where it was held that a bequest to testator's daii^^hters which 
 provides that in case either of them shall become a widow, or 
 otherwise become lawfully separated from her husband, she shall 
 receive her share of the property absolutely, instead of the income, 
 which is given to her while she remains a wife, is not void as 
 against public policy on the ground of encouraging the daughters 
 to live separate or be divorced from their husbands. 
 
 In that case the condition coxtW not be complied with except 
 by a legal separation, and for causes found by a court of justice to 
 be sufficient. This being so, there was nothing unlawful in the 
 condition. It is true it may be said that it would have a tendency 
 to induce the wife to assert her legal right to a divorce and sepa- 
 ration, and that but for such inducement such right might have 
 been waived, Imt it can hardly be said that it is against public 
 poHcy to attach to a legacy such a condition as will tend to induce 
 a legatee to do a lawful act in a lawful way. 
 
 The precise question presented here has been before the Supreme 
 Court of Vermont, in which the will provided that the legatee 
 should have the income of the estate, and such further sums as 
 her wants might demand, so long as she remained the wife of I. 
 A. Thayer; but if she was " left a widow, or for any cause should 
 cease to be the wife of said Thayer," the whole estate should be 
 given to her. In that case the court said: " The ground upon 
 which it is claimed that the provision of tlie will violates public 
 j)olicy is that it furnishes an inducement to the wife to become the 
 widow of her husband, or to separate herself from him in such a 
 manner that she would cease to be his wife. The appellants, to 
 sustain this claim, rely upon the rule as stated in 2 Kedf. Wills, 
 293; 1 Story, Eq. Jur. 291, and the case of Conrad v. Long, 33 
 Mich. 78. 
 
 '' The cases cited in support of the rule laid down in Redfield 
 and Story, it will be found on examination, do not sustain the 
 rule as here sought to be applied. They are generally cases in 
 which an inducement was directly held out to encourage a volun- 
 tary separation of husband and wife, and where the intent to 
 enconrage such a separation could be found in the language 
 employed in making the bequest. They are none of them so sim-
 
 CONTRACTS REUAKDINO PKuPEKTV. 161 
 
 ilar in their facts to the case at bar that they can be considered 
 authorities in it. Tlie first object is to ascertain, if possible, what 
 the intention of the testatrix was; and we find no difticultj in 
 reaching the conchision that it was to have her estate disposed of 
 just as it has been by the probate court. It was a wise and pru- 
 dent provision to make for her daughter. While she should 
 remain a wife, her husband would be under obligation to support 
 her, and hence the income only was absolutely left her during the 
 continuance of that relation; but when she should cease to be a 
 wife, and so become dependent upon her own resources, it was 
 just and wise to provide that she should have the entire estate." * 
 Not only may there be a good and sufficient reason, as stated in 
 the opinion cited, for providing that the legatee shall not have the 
 bulk of the property until she is deprived of the support of a hus- 
 band, but there may be the best of reasons for placing the same 
 in such condition that she cannot be improperly induced by a 
 worthless or profligate husliand to squander it, while she con- 
 tinues to be his wife, and, it may be, under his influence and con- 
 trol. Such a condition in a will is not only valid, but under certain 
 circumstances it may be just and commendable.' 
 
 'See Thayer v. Spear, 1 New Eng. Rep. 356, 58 Vt. 327; Buck v. EugTm, 
 
 127 Ind. 46. 
 ''Clark V. Fosdick, 6 L. R. A. 132, 118 N. Y. 7. 
 11
 
 CHAPTEE VIII. 
 CONTRACTS IN RESTRAINT OF TRADE. 
 
 §31. Excluding One from Pursuing His Trade or Employment. 
 '^'l. Vontracts in General Restraint of Trade are Void. 
 
 33. Contracts Imposing Limited Restraints TerritoriitUy as a Con- 
 
 dition of Employment. 
 
 34. Territorial Limitations Sustained — Distance, how Determined 
 
 — Instances. 
 
 35. Limit of State Lines. 
 
 36. Territorial Limitations Held too Restrictive — Instances. 
 
 37. Limitations in Regard to Time. 
 
 38. Brewers^ Contracts. 
 
 39. Limitations Imposed on Seller to Protect Purchaser of Busi- 
 
 ness or Stock. 
 
 40. Scde of Discovery. 
 
 41. 3Ionopoly Secured to a Patent Right. 
 
 § 31. Excluding One from Pursuing His Trade or Employ- 
 ment. — The decision in Mltdiel v. Reynolds, 1 P. Wnis. 181, 
 Smith's Leading Cases, voL 1, pt. 11, 508, may be regarded as the 
 first announcement of the rule in relation to the invalidity of con- 
 tracts in restraint of trade. The rule was then adjusted to exist- 
 ing conditions and to the state of social and commercial life. 
 
 The object of government, as interpreted by the judges, was 
 not to interfere with the free and independent right of man to 
 dispose of his property or of his labor; it was to guard society, of 
 which he was a member, from the injurions consequences of his 
 agreements, whether they would arise from his own improvidence 
 in bargaining away his means of gaining a livelihood, or in the 
 deprivation to society of the advantages of competition in skilled 
 labor.' 
 
 The attempt on the part of tiie law was to leave the party free 
 to contract in regard to his own labor and yet, consistent with 
 that freedom, to prevent injurious results to the public from loss 
 of the avails of labor, with regard to which he had contracted. 
 
 In Bishop V. Palmer, 6 New Eng. Rep. 129, 146 Mass. 469, 
 
 Wrcgon Steam Nav. Go. v. Witisor, 87 U. S. 20 Wall. 64, 22 L. ed. 315; 
 Skrainka v. ScharringhauKen, 8 Mo. App. 522; WeUer v. Heisee, 10 Hun, 
 A^i; Bishop V. Palmer, 6 New Eng. Rep. 129, 146 Mass. 469; Alger v. 
 Thacher, 19 Pick. 51. 
 
 162
 
 EXCLUDING ONE FROM PURSUING HIS TRADE OR EMPLOYMENT. 163 
 
 the contract containsd inter alia, the followmg provisions: "And 
 the said party of the first part, hereby, for hinisslf, his executors, 
 administrators and assigns, covenant, etc., that for the period of 
 five years he will not continue in or carry on the business of man- 
 ufacturing or dealing in bed-quilts or comfortables, or of any 
 business of which they form a part; that he will not eiiter into the 
 cotton waste business in the city of Fall River, or influence others 
 to do so, or make any bid therefor or induce others to 
 do so." The first restriction was held clearly illegal, it being 
 a general agreement, without any limitation of space, that during 
 the period of five years he will not directly or indirectly continue 
 in, carry on or engage in the business of manufacturing or dealing 
 in certain articles of commerce. 
 
 So a contract was held void if it exclude the obligor from 
 engaging in a useful trade as an iron founder, everywhere and for 
 all time.' 
 
 An agreement not to engage for eight years in the manufacture 
 of a certain yeast powder, nor in any branch of the yeast business, 
 is unlimited and void;^ but a contract unlimited territorially, save 
 by the words " so far as the law allows," is not void as being in 
 conflict with public policy, nor as being too uncertain in its terms 
 to be capable of being enforced. Such a covenant is to be con- 
 strued as providing for a restraint to the full extent that the rule, 
 ;.s enforced by the courts, will allow a person to contract against 
 his right of trading in a particular business, and will be given 
 efl^ect so as to secure to the covenantee the full benefit of that 
 Avliich he has purchased from the covenantor.' Such a contract 
 is transferable, with the assignment of the business to aid which 
 it was made.'' The courts will enforce such contracts where they 
 
 K^lger v. Thaclier, 19 Pick. 51, 31 Am. Dec. 119. See Perkins v. Clay, 54 
 
 N H. 519; Whitney v. Slayton, 40 Me. 230; Long v. Toiol. 42 Mo. 549; 
 
 Ward V. Byrne, 5 Mees. & W. 563; Taylor v. Blanclmrd, 13 Allen, 370; 
 
 Dean v. Ememon, 102 Mass. 480; AlUopp v. Wlieatcroft, L. R. 15 Eq 59; 
 
 Morse T. D. & M. Go. v. Morse, 103 Mass. 73; Divios v. Davies. L. R 36 
 
 Ch. Div. 339, 381; Acery v. Lang ford, Kay, 663, 667, 668; 2 Pars. 
 
 Cont. 748, note z; S-n'fh v. Western U. Teleg. Co. 11 Fed. R'^p. 10, note; 
 
 Skarp V. Whiteside, 19 Fed. Rep. 164, note; McCauU v. Bmham, 16 Fed. 
 
 Rep. 37, 42, note ; Hormr v. Ashford, 3 Bing. 322; Mallan v. May, 11 
 
 Mees. & W. 653; Mitchel v. Reynolds, 1 P. Wms. 181. 
 "Callahan v. Donnolly, 45 Cal. 152, 13 Am. Rep. 172. 
 *Dimes V. Divies. 56 L. J. Cti. 481; 35 Week. Rap. 6)7. 
 *Hedge v. Lowe, 47 Iowa, 137; Guerand v. Bandelet, 32 Md. 561; Gompers v. 
 
 HocJiester, 56 Pa. 194.
 
 164 CONTRACTS IN RESTKAINT OF TRADE. 
 
 are reasonable and restrain all attempts to evade the restriction;' 
 l)nt an agreement not to sell milk in a town is not violated by 
 selling to anotlier residing outside the town, with knowledge mere- 
 ly that the purchaser intends to retail the milk within the town." 
 
 The fact that two men had been engaged as rivals in manu- 
 facturing an article for domestic use will not prevent one of 
 them from giving up the independent manufacture, and uniting 
 as a 25artner wdth the other for a term of years, the price of the 
 manufactured article being lixed in the contract of partnership." 
 
 The withdrawal of labor from a special business within a 
 limited locality is therefore sustained; under this theory the law 
 of partnership exists.* 
 
 Trade with a newly discovered line of coast may be limited by 
 contract to the actual business prospects for the Qpening of inter- 
 course profitably.* 
 
 A store-keeper may contract with a manufacturer that the latter 
 will induce his workmen to trade w^th the merchant, on con- 
 dition of his paying the manufacturer 8 per cent on all sales to 
 such employes;^ but it has been held that such a contract, by 
 which the lessee of a coal mine, as part of the rent of the mine, 
 contracted to use his^ eiforts to control the patronage of his 
 employes and their families, in favor of the lessor, and that the 
 lessee should refuse to recognize any orders given upon him by 
 any employe upon any other merchant for goods purchased from 
 them, nor would he give any order, due-bill or evidence of 
 indebtedness transferable to such other store-keeper for goods, 
 was void as in restraint of trade, injurious to the employes and 
 tending to extortion, opjDression, and to create a monopoly.' 
 
 § 32. Contracts in General Restraint of Trade are Void. — 
 Oontracts in general restraint of trade are void, unless natural and 
 
 ^ButUr V. Burleson, 16 Vt. 176; Treat v. Shoninger Melodeon Go. 35 Conn. 
 543; Duffy v. Shocket/, 11 Ind. 70; Smith v. Martin, 80 Ind. 260; Whitney 
 V. Stay ton, 40 Me. 234; Hankinson's App. 78 Pa. 196; Cook v. Johnson, 47 
 Conn. 175; Richardson v. Peacock, 28 N. J. Eq. 151. 
 
 ^Smith V. Martin, 80 Ind. 260. 
 
 ^Dolph V. Troy Laundry Mack. Co. 28 Fed. Rep. 553. 
 
 ^Cooper V. Twibill, 3 Campb. 286, note; Catt v. Tourle, L. R. 4 Ch. 654. 
 
 ^Perkins v. Lyman, 9 Mass. 523. 
 
 ^Oeorge v. East Tennessee Coal Co. 15 Lea, 455. 
 
 ^Crawford v. Wick, 18 Ohio St. 190.
 
 CONTKACTS IN GENERAL EESTKAINT OF TKADE AKE VOID. 165 
 
 not unreasonable for the protection of the parties,' because they 
 impose too great a restraint on trade and are oppressive to one 
 j)artj without being of benefit to the other/ 
 
 It has often been held that an agreement in general restraint of 
 trade is illegal and void. For a contract in restraint upon trade 
 to be valid must not be general; the consideration must be 
 adequate, not colorable, and the restriction must be reasonable;* 
 so an agreement in general or total restraint of trade has been 
 held to be void without regard to the consideration upon wliich 
 it is founded. Such an agreement is one not to carry on a certain 
 business anywhere, whether for a limited or unlimited time.* 
 
 At a public auction, if the purpose be not to prevent competi- 
 tion, nor this result likely to follow, one may bid as the agent of 
 others;' but if made, or if it tend to stifle competition, the act is 
 unlawful.* 
 
 An agreement among stockholders of a corporation that they 
 will neitlier of them give powers of attorney to anyone to vote 
 their stock, nor will they sell any portion of such stock to other 
 parties, is in restraint of trade and void.' But an agreement 
 between a corporation and its stockholders, tliat the latter should 
 
 Wftnppel V. Brockway, 21 Wend. 157; Maier v. Roman, 4 Daly, 168; Bunlop 
 V. Gregory, 10 JS. Y. 243; Hedge v. Loice, 47 Iowa, 187, 140; Smalley v. 
 Greene, 52 Iowa, 241; Ward v. Byrne, 5 Mees. & W. 548; Hinde v. Gray, 
 1 Man. & G. 195; Alhopp v. Wheatcroft, 27 L. T. N. S. 372, L. R. 15 Eq. 
 59. 
 
 ^Eeichew v. Hamilton, 3 G. Greene. 596, 598; Mitchel v. Reynolds, 1 P. Wms. 
 184, lOMod.27, 85, 130; Hu-nlocke v.BlacMowe, 2 Saund. 156, note 1; Col- 
 mer v, Clark, 7 Mod. 230; Chesman v. Nainby, 2 Ld. Raym. 1456; Davis 
 V. Mason, 5 T. R. 119. 
 
 ^Morris Ran Coal Co. v. Barclay Coal Co. 68 Pa. 173; Oregon Steam Wav. 
 Co. V. Winsor, 87 U. S. 20 Wall. 64, 22 L. ed. 315; Boutelle v. »mith, 116 
 ]VIass. Ill; Hubbard V. Miller, 27 Mich. 15; Wiggins Ferry Co. v. Chicago 
 & A. R. Co. 73 Mo. 389; Sinn v. Sigsbee, 67 111. 75; Bowser v. Bliss, 7 
 Blackf. 344; Holmes v. Martin, 10 Ga. 503; Brewer v. Marshall, 19 N. 
 J. Eq. 537. 
 
 ^Story, Cont. § 650; Dean v. Emerson, 102 Mass. 480; Rousillon v. Rousillon, 
 L. R. 14 Cii. Div. 351. 
 
 ^Ifational Bank of the Metropolis v. Spragne, 20 N. J. Eq. 159; Smith v. Ull- 
 man, 5o Md. 183; Hunt v. Elliott, 80 Ind. 245; Kearney v. Taylor, 56 U. 
 S. 15 How. 494, 519, 14 L. ed. 787, 797; Woodruff v. Berry, 40 Ark. 251; 
 Marie v. Gartison, 83 N. Y. 14; Huntington v. Bardwell, 46 N. H. 492; 
 Smith V. Greenlee, 13 N. C. 126; Breslin v. Brown, 24 Ohio St. 565; James 
 V. Fulcrod, 5 Tex. 512; McMinn v. Phipps, 3 Sneed, 195. 
 
 ^G-ibbs V. Smith, 115 Mass. 592; King v. Winants, 71 N. C. 469: Jones v. Cas- 
 well, 3 Johns. Cas. 29; Swan v. Ghorpenning, 20 Cal. 182; Hannah V. 
 Fife, 27 Mich. 172; Wooten v. Huikle, 20 Mo. 290. 
 
 ''Fisher v. Bush, 35 Hun, 641.
 
 166 CO^'TKAUTS IN KESTKAINT OF TKADK. 
 
 not purchase goods of a certain class, during a limited period, of 
 anyone other than tlie members of an association with which that 
 corporation had entered into a contract, resulting in benefits to 
 itself and members, is not in restraint of trade.' 
 
 So agreements or conditions imposed in the conveyance of real 
 property, restricting its use to certain purposes, or excluding cer- 
 tain named uses of the property, come under the same general 
 rules and are often held invalid as without a justifiable purpose, 
 or without sufficient consideration, or as creating and sustaining 
 monopoly,'' 
 
 A contract entered into between a baker and a grocer, for a 
 fixed payment of money, on conditions which would naturally 
 tend to enhance the price of the baker's Ijread and render it a 
 monopoly, is void as in restraint of trade. So are all agreements 
 to create corners in grain, produce, etc." 
 
 A contract entered into by the grain dealers of a town, the true 
 object of which is to form a secret combination, which would 
 stille all competition, control the price of grain, cost of storage 
 and of shipment, is in restraint of trade, and void as against pub- 
 lic policy.* 
 
 Where one producer enters into a contract witli another pro- 
 ducer, binding the latter to withhold and keep out of the market 
 his supply, the contract is against public policy and void." 
 
 An agreement of members of a trade protection society not to 
 employ any commercial travelers, salesman or outside employe 
 who had left the service of another member of the trade union, 
 without his written consent, for the period of two years, is void." 
 
 Persons controlling water powers individually in a stream can- 
 not bind themselves in a liquidated sum as damages, not to sell to 
 certain persons negotiating for the purchase of some of the rights, 
 nor to make, without any limit in time, any compromise or set- 
 
 ^Van MartevY. Babcock, 23 Barb. 033; Curtis v. Gokcy, 68 N. Y. 304; Live 
 
 Stock Asso. of N. 7. v. Levy. 3 N. Y. S. R. 514. 
 ^Taylor v. Blanehard, 13 Allen, 370; Morris Run Coal Co. v. Barday Goal 
 
 Co. 68 Pa. 173; Craft v. McConoughv. 79 111.346; Arnot v. Pittston & E. 
 
 Coal Co. 68 N. Y. 553; Crawford v. Wick, 18 Ohio St. 190. 
 ^Rayiho.id v. Leavitt, 46 Mich. 447. 
 *Craft V. McConougJiy, 79 111. 346. 
 "Arnot V. Pittston & E. Coal Go. 68 N. Y. 558. 
 ^Mineral Water Bot. Ex. & Tr. Prat Soc. 31 Solic. Jour. 626.
 
 CO^'iKACTS IMPOSING LIMITED RESTRAINTS. 167 
 
 tlement with such persons except on the written consent of the 
 others. Such a contract, while it restrains the parties from com- 
 promising htigation, which is favored in law, also tends to the 
 same evil consequences as attend the enforcement of a contract 
 in restraint of trade ; ' but if the restraint be natural and not 
 unreasonable for the protection of the parties it will be sus- 
 tained. " 
 
 § 33. Contracts Imposing Limited Restraints Territorially 
 as a Condition of Employment.— Where the restraint con- 
 tracted for appears to have been for a just and honest purpose, 
 for the protection of the legitimate interests of the party in whose 
 favor it is imposed, reasonable as between the parties and not 
 .specially injurious to the public, the restraint will be held valid. ' 
 Thus a contract in restraint of trade as to a particular place is 
 valid, * such as a contract not to engage in a particular trade or 
 business in a certain place within a specified time. ' 
 
 A limit in space to the exercise of a trade, where there are rea- 
 sons for the limit imposed, will be sustained. ' 
 
 One may contract not to run steamboats on a particular river, 
 as between Albany and New York. ' 
 
 An agreement that a steamer should not be used in the waters 
 of a State for a fixed period was held legal." 
 
 ' Ford V. Gregson, 7 Mont. 89; Horner v. Ashford, 3 Bing. 322, 336; Mitchel 
 V. Reynolds, 1 P. Wnis. 1«1; Median v. May, 11 Mees. & W. 603. 
 
 « Leather Cloth Co. v. Lorsont, 39 L. J. Ch. 86, L. R. 9 Eq. 345; Smith's App. 
 5 Cent Rep 209, 113 Pa. 579; Mandeville v. Barman, 5 Cent. Rep. b2n, 
 42 N J Eq.l8o; Bousmon\.Iiousillon,h.R.UCh.J)\y.35l; Diamond 
 Match Co. V. Roeber, 9 Cent. Rep. 181, 106 N. Y. 473; Herreshoffv. Bou 
 tinemi, 8 L. R. A. 469, 17 R. I. — ; Alcock v. Gilberison, 5 Duer, 76; 
 Jo,.es V. Lees, 1 Hurlst. & N. 189; Mumford v. Gethtng, 7 C. B. N. S, 305; 
 Harmo v. Parsons, 32 L. J. Ch. 247; Keeler v. Taylor, 53 Pa. 467. 
 
 » Hubbard v Miller, 27 Mich. 15, 19. See Giterand v. Bandelet, 32 Md 562; 
 Berl V. Chase, 31 Mich. 490; Eicing v. Johnson, 34 How. Pr. 202; Fierce 
 V. Woodward, 6 Pick. 206; Hedge v. Lowe, 47 Iowa, 137, 140. 
 
 * Chappel V. Brockway, 21 Wend. 157; Jenkins v. Temples, 39 Ga. 655; Stnal- 
 lev V Greene, 52 Iowa, 241; Hedge v. Lowe, 47 Iowa, 137; Guerand v 
 iJnndelet, 32 Md. 562; Beal v. Chase, 31 Mich. 490; Ewing v. Johnson, 34 
 How. Pr. 202; Pierce v. Woodward, 6 Pick. 206. 
 
 » Arnold v. Kreutzer, 67 Iowa. 214; Hedge v. Lowe, 47 Iowa, 137; ^maUey v. 
 Greene 52 Iowa, 241; Baumqarten v. Broadimy, 11 N. C. 8; lallis v. 
 Tallis, 1 El. & Bl. 391. 
 
 < Smith V. Fell, 5 Cent. Rep. 208, 113 Pa. 579. 
 
 ^ Bunlop V. Gregory, 10 N. Y. 241. 
 
 « Oregon Steam Nav. Co. v. Winsor, 87 U. S. 20 Wall. 64, 22 L. ed. 315.
 
 168 CONTKACTS IN RESTRAINT OF TKADK. 
 
 A contract restraininaj a party from following a particular busi- 
 ness in a designated city for five years is held valid, as the party 
 may pursue any other employment in the same locality.' 
 
 An agent of a wholesale house may contract not to sell his goods 
 to but one purchaser in the towm.'' 
 
 A contract by a dealer in Kew Jersey not to ship poultry to 
 New York or Washington has been held not to contain an un- 
 reasonable restriction/ 
 
 An agreement not to sell marl off the vendor's land was held 
 valid;* and so of an agreement not to manufacture goods in general;^ 
 so a restriction as to the use of a particular name in doing busi- 
 ness for a period of five years is held reasonable, although the space 
 is unlimited.' 
 
 A tailor may limit his sphere of business by excluding himself 
 from a space within ten miles of Charing Cross for three years.^ 
 
 All contracts in restraint of trade are not void; it is not against 
 public policy for a person entering an employment to enter into a 
 covenant restricted as to space not to carry on the same business in 
 his own country, even if his employer should leave the business. 
 The employer wishes to have security given to the business, not 
 only while he is carrying it on himself, but in favor of his suc- 
 cessors and during the whole life of the covenantor; and if reason- 
 able when made, subsequent circumstances will not affect the 
 operation of the contract under the rule as to contracts in restraint 
 of trade.* 
 
 One who on entering a merchant's employ covenants not to ei: 
 gage in or carry on the same business within a mile of the shop at 
 any future time, will be restrained from violation of his covenant, 
 l)ecause the business was sold with its good will to another and re- 
 moved to another shop, near by. The covenant was held to exist 
 in favor of the purchaser and to bind the covenantor for his hfe. 
 
 1 Washburn v. Dosch, 68 Wis. 486. 
 
 ^Eeifh V. HerscMerg Optical Co. 48 Ark. 138, 
 
 ^Richardson v. Peacock, 33 N. J. Eq. 597. 
 
 *Brewer v. Marshall, 19 N. J. Eq. 537. 
 
 ''Taylor v. Blanchard, 13 Allen, 370. 
 
 ^Vernon v. Hallom, 35 Week. Rep. 156, 56 L. J. Ch. 115. 
 
 ''NicoU V. Beere, 53 L. T. N. S. 059. 
 
 ^Eare v. Whitmore, 49 L. T. N. S. 335.
 
 TERKITOKIAL LIMITATIONS SUSTAINED. 169 
 
 If the removal had been to a new neighborhood the result might 
 have been otherwise. But the right of an employer to guard his 
 business and his good will as an aiticle of value in the market was 
 recognized as against those he took- into his employ, and thus af- 
 forded them access to his customers and information as to the 
 details of his business.' 
 
 A contract in restraint of trade, made on good consideration and 
 not extending beyond the obligee's sphere of actual business, is 
 valid." 
 
 § 34. Territorial Limitations Sustained — Distance, how 
 Determined — Instances. — A contract not to carry on a trade in 
 a particular town or county is valid. * The question as to what is 
 a general restraint of trade does not depend upon state lines; and 
 a restraint is not necessarily general which embraces an entire 
 State. Where such contract is made witli the purchaser and his 
 assigns, his successor and assignee may maintain an action upon it; 
 and the fact that the purchaser was a foreign corporation is no 
 objection. * 
 
 As to the section of the country which may be k^vfully covered, 
 the following contracts have been held valid: — not to practice med- 
 icine within 12 miles of a place ;^ not to practice as a physician in 
 a particular town or its vicinity. Before a covenant not to prac- 
 tice medicine in the neighborhood can be enforced, evidence must 
 show the extent of the practice sold. ' 
 
 So one may agree not to engage in the business of iron casting 
 within 60 miles of a certain place for ten years f not to run a 
 stage on a certain route f not to set up business of apothecary 
 
 Uaeoby v. Whitmore, 40 L. J. N. S. 335. 
 
 « Palmer v. Stebbins, 3 Pick. 188, 15 Am. Dec. 204. 
 
 ' Grundy v. Edwards, 7 J. J. Marsh. 368, 23 Am. Dec. 409. 
 
 * Diamond Match Co. v. Roeber, 9 Cent. Rep. 181, 106 N. Y. 473. 
 
 * McClurg's App. 58 Pa. 51; Butler v. Burleson, 16 Vt. 176. 
 
 ^ Haldeman v. Simonton, 55 Iowa, 144; Amedon v. Gannon, 6 Hun 384- 
 Warfield v. Booth, 33 Md. 63; Hoyt v. Holly, 39 Conn. 326. 12 Am.' Rep.' 
 390; Butlex. Burleson, 16 Vt. 176; Smith v. Smith, 4 Wend. 468; Linn\. 
 Sigsbee, 67 111. 75; Spier v. Lnmbdin. 45 Ga. 319; Mell v. Monney, 30 Ga. 
 ^Vi;Dicifjht V.Hamilton, 113 Mass. 175; McNutt v. McEwen, lOPliila. 112. 
 
 ' Whitney v. Slayion, 40 Me. 224. 
 
 * Pierce v. Fuller, 8 Mass. 223, 226.
 
 170 CONTRACTS IN KESTKAINT OF TRADE. 
 
 within 20 miles of A ;* but restricting a dentist over a tei-ritorj of 
 200 miles was held unreasonable." 
 
 A contract, relating to a compound involving a secret in its prep- 
 aration, based upon a valuable consideration, and limited as to 
 the space within which, though unlimited as to the time for which 
 the restraint is to operate, is reasonable and enforceal)le. ^ But 
 restraining a solicitor from practice in England was sustained.* 
 
 A contract applying to a particular place or section of the coun- 
 try and leaving the major part open for the business is valid. ^ 
 
 A contract excluding a city and " vicinity" includes reasonably 
 ■construed, a space of ten miles from the city limits ;° or within a 
 radius of ten miles of a town named. '' 
 
 Under a contract not to carry on a business within a certain dis- 
 tance, the mileage is to be measured in a straight line. * 
 
 A contract not to carry on a business within a radius of ten 
 miles of a village, means within a radius of ten miles of the cen- 
 ter of such village. ' 
 
 § 35. Limit of State Lines. — In this country, where state 
 lines interpose so slight a barrier to business intercourse, the Su- 
 preme Court of the United States seems much more inclined to treat 
 a limitation, less^than the entire country, under certain conditions, 
 as reasonable ;'" while state courts, limited to their state lines, have 
 seemed unwilling that trade should be excluded from their juris- 
 diction, or that a man should be compelled to transfer his resi- 
 dence and allegiance to another State in order to pursue his 
 avocation," 
 
 1 Bayward v. Young, 2 Chit. 407; Hitchcock v. Coker, (i Ad. & El. 438. 
 
 ' Horaer v. Graves, 7 Bing. 735. 
 
 3 Fowle V. Park, 131 U. S. 88. 33 L. ed. 67. 
 
 * Whittaker v. Howe, 3 Beav. 383. 
 
 " Pike V. Thomas, 4 Bibb, 489, 7 Am. Dec. 741; Onndy v. Edwards. 7 J. J. 
 
 Marsh. 368, 23 Am. Dec. 409. See Oree/i v. Price, 11 Meed. & W. 653. 
 « Timmerman v. Dever, 52 Mich. 34. 
 "< Cook V. Johnson, 47 Conn. 175, 36 Am. Rep. 64. 
 « Moiiflet V. Cole, L. R. 7 Exch. 70, aff'd 21 Week. Rep. 175 ; Duignan v. 
 
 Walker, 33 L. T. 256. 
 « Cook V. Johnson, 47 Conn. 175. 
 
 ^oQregon Steam Nav. Co. v. Wins(yr, 87 U. S. 20 Wall. 64, 22 L. ed. 315. 
 ^'^Taylor v. Blanchard, 13 Allen, 375; Dunlop v. Gregory, 10 N. Y. 241; More 
 
 V. Bonnet, 40 Cal. 251, 6 Am. Hep. 621; Nobles v. Bates, 7 Cow. 307; 
 
 Wright v. Ryder, 36 Cal. 342; Pike v. Thomas, 4 Bibb, 486, 7 Am. Dec. 
 
 741.
 
 TERRITOKIAL LIMITATIONS HELD TOO KESTKRTIS K. 171 
 
 It is said in Chappel v. BrocJcway, 21 "Wend. 157, that contracts 
 which go to the total restraint of trade, as that a man will not 
 pursue his occupation or carry on his trade anywhere in the State, 
 are void, A covenant providing that the covenantor should desist 
 from selling mattresses " in all the territory of the State of New 
 York west of the city of Albany " was held void as embracing 
 too large a territory/ 
 
 It is said that the restriction territorially must not include the 
 whole State." But this depends upon the business restrained and 
 its demands.' 
 
 But the correct test to be applied in determining whether a 
 restraint is reasonal)le or not is to considier whether it is such only 
 as to aiford a fair protection to the interests of the party in whose 
 favor it is given ; and not so lai-ge as to interfere with the inter- 
 •ests of the public." 
 
 A covenant in restraint of trade which is unlimited in regard 
 to space, except by the words " so far as the law allows," is not 
 void as being against public policy.* 
 
 § 36. Territorial Limitations Held too Restrictive — In- 
 stances. — But an agreement never to engage in a certain trade 
 " in the city and county of San Francisco or State of California " 
 was held by the courts in that State too extensive in its restriction 
 and therefore void.* A covenant by a corporation with a citizen 
 of another State not to run a steamboat or allow its machinery to 
 
 ^Lawrence v. Kidder, 10 Barb. 641. 
 
 ^Peltz V. Eichele, 63 Mo. 171; Taylor v. Blanchnrd, 13 Allen, 370; Dean v. 
 
 Emerson, 102 Mass. 480; Wriyht v. Ryder, 36 Cal. 243. 
 ^Diamond Match Co. v. Roeber, 9 Cent. Rep. 181, 106 N. Y. 473; Gibbs v- 
 
 Consolidated Oas Co. 130 U. S. 408, 32 L. ed. 984; Texas & P. R. Co. v. 
 
 Soutliern Pac. R. Co. 41 La. Ann. 970; Herresihoff v. Boutineau, 8 L. R- 
 
 A. 469. 17 R. I. — . 
 *Mandemlle v. Harmon, 5 Cent. Rep. 635, 43 N. J. Eq. 185; Catt v. Tourle, 
 
 L. R. 4 Ch. 659; Leather Cloth Co. v. Lorsont, L. R. 9 Eq. 349; Al'sopp v. 
 
 Wheatcroft, L. R. 15 Eq. 59; Long v. Torr.l, 42 Mo. 545; Pike v. Thomas, 
 
 4 Bibb, 486; Gi'undy v. Edwards, 7 .J. J. Marsh. 368; Turner v. Johnson, 
 
 7 Dana, 435; Grasselli v. Loicden, 11 Ohio St. 349; Chappel v. Brockicay, 
 
 21 "Wend. 157; Oilman v. Dicight, 13 Gray, 356; California Steam Nav. 
 
 Co. Y.Wnght, 6 Cal. 258; Dunlop v. Gregory, 10 N. Y. 241; Hvbhard v. 
 
 Miller, 27 Mich. 15; Beard v. Dennis, 6 Ind. 200; Horner v. Grates, 7 
 
 Bing. 743. 
 ^Davies v. Davies, 56 L. J. Ch. 481, 35 Week. Rep. 697. 
 *More V. Bonnet, 40 Cal. 251, 6 Am. Rep. 621.
 
 172 CONTKACTS IN KBSTBAINT OF TRADE. 
 
 be used on any other boat in any of the waters of certain states wa& 
 treated as void as against public policy.' 
 
 A contract not to make printer's rollers in New York city, or 
 within 250 miles thereof, is too restrictive as to space for that par- 
 ticular interest. ' But a covenant by a corporation not to run or 
 employ, or suffer to be run or employed, a certain steamer upon 
 any of the routes of travel, or the rivers, bays or waters of the 
 State of California, or the Columbia River and its tributaries, for 
 the period of ten years, was held valid in Oregon, ' 
 
 A contract excluding the territory of New York west of Albany 
 as a market for mattresses is too lai-ge." 
 
 § 37. Limitations in Regard to Time. — The duration of the 
 restraint in point of time may be indetinite, if in other respects it 
 is partial and reasonable, the nature of the business being con- 
 sidered and the condition of the country.' 
 
 An agreement to relinquish a business and not to carry it on 
 thereafter, limited as to place, but unlimited as to time, is not void 
 as beino; ia restraint of trade." 
 
 An agreement that a company shall have the exclusive right for 
 fifteen years to furnish drawing-room and sleeping cars for the 
 use of a railroad company, and that the latter shall not, during 
 tliat period, contract for cars of that kind with any other party, is 
 not void as against public policy or as in restraint of trade. ' 
 
 But the formation of a partnership alone will not authorize a 
 perpetual restriction as to time. ® 
 
 § 38. Brewers' Contracts. — The sale of property may be con- 
 ditioned that if a house of public entertainment be opened, its sujj- 
 
 Wregon Steam Nav. Co. v. Hale, 1 Wash. 283, 34 Am. Rep. 803. 
 
 * Bingham v. Maigne, 20 Jones & S. 90. 
 
 » Oregon Steam Nav. Co. v. Winsor, 87 U. S. 20 Wall. 64, 22 L. ed. 315. 
 
 * Latorence v. Kidder, 10 Barb, 641. 
 
 » Bowser v. Bliss, 7 Blackf. 344. 43 Am. Dec. 93; Cook v. Johnson, 47 Conn. 
 175; Bunn v. Ovp, 4 East. 190; Chesmanv. Nainby, 2 Strange, 739, 2 Ld. 
 Raym. lAhQ; Hastings v. Whitley, 2 Exch. 611; Wickens v. Evans, 3 Younge 
 & Jer. 318; Pierce v. Woodward, 6 Pick. 206 ; Goodman v. Henderson, 58 Ga. 
 567; Muniford v, Oethiug, 7 C. B. N. S. 317; Ward v, Byrne, 5 Mees. & 
 W. 548. 
 
 * Web'ter v. Buss, 61 N H. 40, 60 Am. Rep. 317; Watrous v. Allen, 57 Mich. 
 
 362, 58 Am. Rep. 363. 
 ' Chicago, St. L. & N. 0. R. Co. v, Pullman Southern Car Co. 139 U. S. 
 
 79, 35 L. ed. 97. 
 » Carroll v. Giles, 4 L. R. A. 154, 30 S. C. 412.
 
 BREVVEKs' CONTRACTS. 173 
 
 plies shall be sought exclusively from the person who executes the 
 conveyance of the estate. 
 
 A restraint preventing a person from carrying on trade within 
 a certain limit of space, though unlimited as to time, may be good, 
 and the limit of space may be according to the nature of the con- 
 tract. An instance of such a covenant being upheld is the case of 
 Wilson V. Bart, L. K. 1 Ch. 463. In Catt v. Toicrle, L. E. 4 Ch. 
 654, the court took judicial notice that the covenant is an extremely 
 common one in favor of brewers upon a sale of land by them, that 
 they shall have the exclusive right of supplying beer to any public 
 house erected on the land, — that every court of justice has had 
 occasion to consider these brewers' covenants, and must be taken 
 to be cognizant of the distinction between what are called free 
 public houses and brewers' public houses which are subject to this 
 very covenant, — that it would be introducing very great uncer- 
 tainty and confusion into a very large and important trade, if the 
 court were to suggest any doubt as to the validity of a covenant 
 so extremely common as this is. It was denied that there is any 
 ground for the distinction, which has been suggested, that such a 
 covenant might be good in a lease for 21, 50 or 100 years, but is 
 not good if entered into as part of a transaction where the fee 
 simple of property is conveyed. 
 
 It was then suggested that at some future period of the cause, 
 upon a motion, as in the case of Ifills v. Crvll, 2 Phil. 60, or at the 
 hearing of the cause, circumstances might be shown which would 
 render it improper for the court to interfere — it might be shown 
 either that the plain tilf had placed himself in such a situation that 
 he ought not to be allowed to exercise his right, or that the 
 defendant had no notice of the covenant when he purchased the 
 property; and then possibly Jlills v. Croll, 2 Phil. 60, might have 
 some application, though it was suggested that it is very difficult 
 to reconcile that case with Lxunley v. Wagner, 1 DeG. M. & G. 
 ■604, which has been repeatedly followed; and if Hills v. Croll is 
 to stand with that case at all, it can only be upon its particular 
 circumstances. And Sir G. M. Giffard, L. J., added, " that, 
 with respect to Hills v. Croll, that case, as was said by Lord St. 
 Leonards, in his judgment in Lumley v, Wagner, 1 DeG. M. & G. 
 ^04, was decided according to its particular circumstances; that
 
 174 CONTKACTS IN RESTKAINT OF TKADK. 
 
 unless it is taken as laying down that the court is to refuse to act 
 in the negative, wherever there is a correlative obligation which it 
 cannot enforce, it does not apply; if it is taken as going that length 
 it is contrary to Lumleij v. Wagner, and must be considered as 
 overruled; and he added: " Lastly, with respect to this cm^enant 
 being invalid by reason of its being in restraint of trade," it does 
 not go beyond the ordinary brewers' covenant except in this par- 
 ticular, viz., that the ordinary brewers' covenant is generally 
 between lessor and lessee or mortgagor and mortgagee, whereas 
 the present covenant is between the vendor and purchaser of the 
 fee; and this difference does not make the covenant void. 
 
 So an agreement by the proprietor of a public garden, in con- 
 sideration of a loan, to buy all his beer of the lender, so long 
 as he should be willing to supply the same at the fair current 
 market price thereof, is not a restraint of trade.' 
 
 § 39. Liiiiitatioiis Imposed on Seller to Protect Pur- 
 chaser of IJusiuess or Stock.— Contracts for a limited restraint 
 are valid if entered into for good reasons such as to afford fair 
 protection to the purchaser of a business.' 
 
 A party may legally purchase the trade and business of another 
 for the very purpose of preventing competition, and its validity, 
 if supported by a consideration, depends upon its reasonableness 
 as between the parties.* 
 
 Where one partner sells his interest in the business to his 
 copartner and agrees to retire altogether from business, the agree- 
 ment binds the party selling from engaging in business, only so 
 far as such engagement would injure the business of the party 
 purchasing, and is not void as being in restraint of trade.* 
 
 But where a land agent sold his business, with an agreement 
 not to i-e-engage in the business in the same place for three years, 
 
 ^Ebling v. Bauer, 17 Week. Dig. 497, distinguishing Dunhyp v. Gregory, 10 
 N. Y. 241. 
 
 "^Chappel V. Brockway, 21 Wend. 157; Nobles v. Bates, 7 Cow. 307; Heieliew 
 V. Hamilton, 3 G. Greene, 596, 4 G. Greene, 217; Hedge v. Loire, 47 Iowa, 
 137; Smalley v. Oreene, 52 Iowa, 241; Jenkins v. Teinples, 39 Ga. 655; 
 Pierce v. Fuller, 8 Mass. 223; Pierce v. Woodward, 6 Pick. 206; Perkins 
 V. Lyman, 9 Mass. 522; Pike v. Thomas, 4 Bibb, 486; Story, Eq. Jur. 
 I 292; 1 Add. Cent. §§ 272, 503; Powell, Cont. 102. 
 
 ^Diamond Match Co. v. Roeber, 9 Cent. Rep. 181, 106 N. Y. 473, 35 Hun, 431. 
 
 *Boardman v. Wheeler, 15 N. Y. Week. Dig. 325, 27 Hun, 615.
 
 LIMITATIONS IMPOSED ON SELLKR. 175 
 
 after the expiration of that time he was not debarred from solicit- 
 ing the agency of the same lands he had in charge when the con- 
 tract was made.' 
 
 An agreement on the sale of a business not to keep the tools of 
 that business nor engage in it after the date of sale, will be con- 
 strued to apply only to such limits about the place where the busi- 
 ness is located, as the business would naturally and reasonably 
 embrace/ Kor will a court of equity decree specific performance 
 of every contract for a breach of which there is no adequate rem- 
 edy at law. It is in its discretion to grant or refuse equitable 
 relief, although the contract has been declared valid at law. Tiiis 
 discretion, however, is not arbitrary but reasonable.' 
 
 It seems that no contracts are void, as being in general restraint 
 of trade, when they oi)erate simply to prevent a party from engag- 
 ing or competing in the same business." 
 
 A covenant in a bill of sale of a manufactory, stock, fixtures, 
 trademark and good will of the business of the manufacture and 
 sale of friction matches, that the vendor, whose business was in 
 IS'ew York, would not, for ninety-nine years, engage in such man- 
 ufacture and sale except in the service of the vendee within any 
 of the United States or territories, except Nevada and Montana, 
 is valid ; and the restraint is partial and not general.^ 
 
 A covenant not to engage in a business in a town so long as the 
 purchaser of the business should prosecute it there, is a valid 
 agreement. ° 
 
 If a contract which is only reasonable in the restrictions on the 
 vendor is permitted, the seller is not any more likely to become a 
 burden on the public than the man who, having built up a local 
 trade, only sells it, binding himself not to carry in on in the local- 
 ity. The opportunities for employment and for the exercise of 
 useful talents are not so shut up and hemmed in that the public 
 
 ^Hanna v. Andrews, 50 Iowa, 462. » 
 
 ^Hubbard v. Miller, 27 Mich. 15, 15 Am. Rep. 153. 
 
 8Pom. Eq. Jur. §^ 934, 1405. 
 
 ^Leslie v. LoriUard, 1 L. R A. 456, 110 N. Y. 519. 
 
 ^Dinmond Matcli Co. v. Roeber, 9.Cent. Rep. 181, lOG X. Y. 473, 35 Hun, 421. 
 
 ^GiLl V. Ferris, 82 Mo. 156. See Tallis v. Tallis, 1 El. & Bl. 391.
 
 170 coNTKAcrrs in kkstkaixt of trade. 
 
 is likely to lose a useful member of society in the one case and not 
 in the other. 
 
 It is clear that public policy and the interests of society favor 
 the utmost freedom of trade within the law, and require that 
 business transactions should not be trammeled by unnecessary 
 restrictions. If tliere is one thing more than any other which 
 public policy requires, it is that men of full age and competent 
 understanding shall have the utmost liberty of c tutracting, and 
 that contracts, when entered into freely and voluntarily, shall be 
 held good, and shall be enforced by courts of justice.' It has 
 sometimes been suggested that the doctrine that contracts in gen- 
 eral restraint of trade are void, is founded, in part, upon the pol- 
 icy of preventing monopolies, which are opposed to the liberty of 
 the subject and the granting of which by the king, under claim 
 of royal prerogative, led to conflicts memorable in Enghsh history. 
 
 But a covenant that a person who sells the business of manu- 
 facturing a particular article will not engage in the same business 
 excepting in the capacity of agent or employe of the one to whom 
 he sells within any of the several states of the United States or in 
 the territories thereof, excepting and reserving, however, the 
 right to manufacture and sell within a designated State and a 
 Territory, operates simply to prevent the covenantor from engag- 
 ing in the business which he sells, so as to protect the purchaser 
 in the enjoyment of what he has purchased. ^ 
 
 The vendor is entitled to sell to the best advantage, and in so 
 doing to exercise his right to preclude himself from entering into 
 competition with the one who purchases, and the purchaser is entitled 
 to such protection as is reasonably necessary to secui'e the full 
 fruit of his investment. ' 
 
 To the extent that the contract prevents the vendor from carry- 
 ing on a particular trade, it deprives the public of any benefit it 
 may derive from his entering into competition; but the business 
 is open to all others, and there is little danger that the public will 
 suffer harm from lack of persons to engage in a profitable indus- 
 try. Such covenants do not create monopolies. They confer no 
 
 ' Printing & N. Reg. Go. v. Sampxon, L. R. 19 Eq. 462. 
 
 » Diamond Match Co. v. Roeber, 9 Cent. Rep. 181, 106 N.Y. 475,35 Hun, 421. 
 
 « F(mle V. Park, 131 U. S. 88, 33 L. ed. 67.
 
 LIMITATIONS IMPOSED ON SELLER. 177 
 
 special or exclusive privileges. If contracts in general restraint 
 of trade (where the trade is general) are void as tending to monop- 
 olies, contracts in partial restraint, where the trade is local, are 
 subject to the same objection, because they deprive the local 
 community of the services of a contractor in the particular trade 
 or calling, and prevent his becoming a competitor with the cove- 
 nantee. 
 
 The motive of the covenantee is not, by any rule of law, made 
 the test of the validity of such a contract. On the contrary, a 
 party may legally purchase the contract and business of another, 
 for the very purpose of preventing competition; and the validity 
 of the contract, if supported by a consideration, will depend upon 
 its reasonableness, as between the parties. Combinations between 
 producers to limit production are or may be unlawful, but they 
 stand on a different footing.' 
 
 But the mere purchase of the "good will" will not be construed 
 so as to prevent the seller from carrying on the same business in 
 the same town.' Kor will a promise by merchants or dealers, not 
 to purchase any particular article, produced in the immediate 
 locality, from the makers for a term of years, as a consideration 
 to induce a firm to open a store to deal in that particular article, 
 be sustained. In Chaplin v. Brown (Iowa) 12 L. R. A. 428, the 
 appeal was by plaintiffs from a judgment of the district court in 
 favor of defendants in an action brought to recover damages for 
 defendants' breach of their agreement not to engage in the busi- 
 ness of buying butter in a certain place, and to enjoin the further 
 breach of such agreement. It appears from the petition that in 
 the month of March, 1890, the plaintiffs entered into a written 
 agreement with the defendants and other parties. The following 
 is a copy of said agreement: 
 
 ''We, the undersigned grocerymen of Storm Lake, finding the 
 business of purchasing butter of farmers and handling the same 
 very burdensome, and of material loss to us, and believing the same 
 •could be handled as advantageously by persons who would make 
 
 ^Lediev. Lorillard, 1 L. R. A. 456, 110 N. Y. 519; Fowle v. Park, 131 U 
 S. 88. 33 L. ed. 67; Diamond Match Co. v. Roeber, 9 Cent. Reo 181 106 
 N. Y. 473, 35 Hun, 421. f . " 
 
 * Porter v. Gorman, 65 Ga. 11; Hegeman v. Hegeman, 8 Daly, 1. 
 
 12
 
 178 CONTBACTS IN BESTKAINT OF TRADE. 
 
 butter buying and handling an exclusive business, and whereas,, 
 the firm of D. & E. Chaplin, through their agent, assures us of 
 their ability to handle butter to the best advantage, and that tliey 
 will engage in the business extensively in our town, we make a 
 solemn engagement and pledge ourselves to each other and to the 
 said firm of D. & E. Chaplin that we will buy no more butter or 
 take no more in trade, except for our family use, and all butter so 
 bought shall be delivered by the seller to the buyer's place of res- 
 idence. This, however, shall not prevent any merchant from 
 buying butter to retail from any regular butter buyer who buys 
 all the butter he handles in this town for cash. It is further pro- 
 vided that the said firm of J). & E. Chaplin, in whose favor we 
 abandon the business, shall open rooms conveniently located for 
 buying butter; that they shall keep a man in attendance during 
 all business days and hours in the year from as early in the morn- 
 ing and until as late in the evening as tlie season of the year and 
 state of the weather might seem to require. They shall accept 
 all the butter offered, and shall pay for the same as high price in 
 cash, or by giving check against a suitable deposit in some bank 
 in this town, as merchants or butter buyers in the town of JSTewell, 
 this county, are at the time paying in cash for a similar grade of 
 butter, except in extreme cases, where they may be paying ma- 
 terially more than the markets will warrant. It is also provided 
 that the said D. & E. Chaplin shall not direct their checks or 
 persons taking the same to any particular store for payment. 
 That they shall not buy in connection with any dry goods or gro- 
 cery store. Whenever a majority of the merchants signing this 
 article of agreement are convinced that the engagements herein- 
 entered into are not being complied with, or whenever they are 
 dissatisfied with this arrangement or the manner in which it is 
 being carried out, any merchant whose name is hereto appended 
 may appoint a meeting by notifying each grocery firm in town of 
 the time and place for the purpose of considering who may be 
 guilty of a breach of faith in carrying out these engagements, or 
 whether it is advisable to continue the same; and if, at such meet- 
 ing, a majority of the subscribers hereto shall certify in writing 
 that they think it advisable for the interest of the town to with- 
 draw from this engagement, this contract shall become null and
 
 LIMITATIONS IMPOSED ON SELLER. 179 
 
 void. This ene-aofement shall take effect and be in force from and 
 after such time as when it shall have been subscribed to by each 
 grocery house in this town, and when the firm of D. & E. Chap- 
 lin shall designate, provided they are then prepared to handle the 
 butter, and shall continue two (2) years unless sooner dissolved, as 
 herein provided. We also agree not to pay a higher price for 
 eggs than shall be iixed by the said firm of D. & E. Chaplin, pro- 
 vided said firm shall fix as high price as eggs are at the time worth 
 to ship." 
 
 It is averred in the petition that the plaintiffs, in pursuance of 
 said written contract, came and located at Storm Lake, and en- 
 gaged in the business of buying butter at that place, and were at 
 the commencement of the suit still so engaged, and have made 
 arrangements to continue the business for the said period of two 
 years, and that they have thus far fully complied with said written 
 agreement, but that the defendants, in violation thereof, have 
 opened a butter store in said town, and have engp.,ged in the busi- 
 ness of buying butter generally, and have thereby interfered with 
 plaintiffs' business, and alienated their trade to the extent of 5,000 
 pounds of butter, upon which plaintiffs would have realized a 
 profit of three cents a pound, making in all $150 damages suf- 
 fered by plaintiffs. Judgment is demanded for said sum, and an 
 injunction is prayed restraining the defendants from continuing 
 in said business. 
 
 Among the several grounds of objection to the granting of an 
 injunction the court considered two of them as material. They 
 are as follows: ^rst, that the agreement in writing is void for 
 want of consideration, as there is no money value inuring to the 
 benefit of the defendants herein; and, second, that said contract 
 by its terms is for the purpose of creating a monopoly in purchas- 
 ing and selling butter at Storm Lake, and is therefore in restraint 
 of trade to the detriment of the producers and consumers of but- 
 ter at that place and in that vicinity. 
 
 In passing upon these objections it is said that the history of 
 the law upon the question of contracts in restraint of trade is an 
 interesting subject of investigation. The books abound in cases 
 upon the subject. Anciently all contracts were void which in any 
 degree tended to the restraint of trade, even in a particular local-
 
 180 CONTRA.CTS IN RESTRAINT OF TRADK. 
 
 ity, and for a limited time. This ancient rule has been so far 
 modified that, although agreements in general restraint of trade 
 are invalid, because they deprive the public of the services of the 
 citizen in the occupation or calling in which he is most useful to 
 the community, and expose the people to the evils of monopoly, 
 and prevent competition in trade, yet an agreement in partial 
 restraint of trade will be upheld where the restriction does not go 
 beyond some particular locality, is founded upon a sufficient con- 
 sideration, and is limited as to time, place and person. It is ac- 
 cordingly everywhere now held tliat when one engaged in any 
 business or occupation sells out his stock in trade and good will 
 he may make a valid contract with the purchaser binding himself 
 not to engage in the same business in the same place for a time 
 named, and he may be enjoined and rcetrained from violating his 
 contract. This is about as far as contracts in restraint of trade 
 have been upheld by the courts in this country or in England. 
 Tlie general principles above announced will be found in all text- 
 books upon contracts, and find support in many adjudged cases. 
 Applying these rules to the contract under consideration, the 
 inquiry is made first whether there is a sufficient consideration for 
 the promise of the defendants and the other parties who executed 
 the instrument not to engage in dealing in butter at Storm Lake. It 
 is said that it is very plain that there was no money paid to them 
 as a consideration. The plaintiffs did not purchase any stock of 
 butter which the defendants had on hand. They paid nothing 
 for an established plant or place of doing business, nor for the 
 good will of any business. So far as appears, they went into the 
 town and proposed to go into the butter business if the other 
 persons then engaged in that business would agree to quit that 
 line of trade for two years. JSTo warrant is found by the court in 
 any precedent for holding that this is a sufficient consideration. 
 There are cases which hold, and the law is well settled, that where 
 a party proposes to expend money in erecting a manufactory or 
 other plant which may be a public benefit, subscriptions in aid of 
 the enterprise are valid obligations. But such contracts are wide- 
 ly different in principle from the agreement under consideration. 
 Suppose the plaintiffs had made a proposition to the dry-goods 
 merchants that if they would all quit the business for two years,
 
 SALE OF JJISCOVEUV. Ibi 
 
 without any consideration being paid to them for so doing, the 
 plaintiffs would establish a dry-goods store at tliat place, and the 
 proposition had been accepted ; it would be a marvelous decision 
 if any court would hold that there was an}^ consideration for such 
 a contract. 
 
 The court also declared that the decision of the district court 
 is manifestly right upon the question that the agreement is against 
 public policy. It plainly tends to monopolize the butter trade of 
 that locality, and destroy competition in that business. It is not 
 necessary that the enforcement of the agreement would actually 
 create a monopoly in order to render it invalid, and surely, where 
 all the dealers in a commodity in a certain locality agree to quit 
 the business, and the plaintiffs are installed as the only dealers in 
 that line, the tendency is, for a time at least, to destroy competi- 
 tion, and leave the plaintiffs as the only dealers in that species of 
 property in that locality. It was accordingly held that such con- 
 tracts could not be enforced. 
 
 !N^or will a contract between a purchaser of a stock in a manu- 
 factory, with the machinery, materials, tools and good will, be 
 sustained, where it excludes the seller from engaging in the busi- 
 ness in an unreasonably extensive territory, and does not occupy 
 the held itself, being a foreign corporation, and excludes the use 
 of the premises for the same manufacturing purposes for a period 
 of five years.' 
 
 § 40. Sale of Discovery. — One may sell a secret of a business 
 and restrain himself generally from using or divulging it. The 
 vendor is entitled to sell to the best advantage and in so doing to 
 exercise the right to preclude himself from entering into compe- 
 tition with those who purchase the secret from hinl.^ 
 
 A contract, by which defendants, for a valual)le consideration, 
 agreed not to sell a certain medicinal preparation, within the ter- 
 ritory which it was covenanted complainants should occupy exclu- 
 sively, nor sell to others for sale there, nor promote such sales, is 
 valid. 
 
 ^Wester7i Wooden Ware Asso. v. Starkey, 11 L. K. A. 503, 84 Mich. 76. 
 ■Brysoti v. Whitehead, 1 Sim. & Slu. 74; Jarcis v. Peck, 10 Paige, 118, 4 L. 
 
 ed. 910; Hard v. Seeley, 47 Barb. 428; Alcock v. Gibertson, 5 Duer, 79; 
 
 Vickery v. Welch, 19 Pick. 523.
 
 182 CONTRACTS IJST RESTRAINT OF TRADE. 
 
 Such a contract, relating to a compound invoh-ing a secret in 
 its preparation, based upon a valuable consideration, and limited 
 as to the space within which, though unlimited as to the time for 
 which the restraint is to operate, is reasonable and enforceable. 
 
 Where one has and transfers property in the secret process of 
 manufacturing an article he has discovered, he and his grantees 
 can claim relief as against breaches of trust in respect to it. 
 
 The policy of the law is to encourage useful discoveries by 
 securing their fruits to those who make them. 
 
 A contract in regard to the manner in which the parties shall 
 exercise their alleged patent-rights, under which they make con- 
 flicting claims, and which contract has reference merely to the 
 manufacture of goods under the specified patents, — is not void 
 because in restriction of trade.' 
 
 An agreement authorized by each member of an association, by 
 which an owner of a patented process is to confine the sale and 
 use thereof to the members of the association, each of which is to 
 pay a percentage on the manufactured articles, no member being 
 responsible for anything but his own work, and there being no 
 community of profits and losses. — is not a contract in restraint of 
 trade, although there is no agreement on the part of any of the 
 members to use the machinery at all, or as to the amount of the 
 articles they will offer for sale." 
 
 The public are only interested in securing the preparation and 
 not in the vendors, and the latter is entitled to exclude competi- 
 tion from his grantor or from those to whom he may sell within 
 a reasonable territory unless they intend indeed to occupy the 
 entire field.^ 
 
 The contract does not deprive the public of the benefit of tliis 
 secret nor is any party, possessing the secret, debarred from its 
 use. They are simply circumscribed as to the territory within 
 which they may sell.* 
 
 ^Boicling v. Taylor, 40 Fed. Rep. 404. 
 
 •^Good V. Daland, 121 N. Y. 1. 
 
 ^Foicle V. Park, 131 U. S. 88, 33 L. ed. 67. 
 
 *BenweU v. Inns, 34 Beav. 307; Harms v. Parsons, 32 Beav. 328; Leather 
 
 Cloth Co. V. Lorsont, L. R. 9 Eq. 345; Bryson v. Whitehead, 1 Sim. & Stu. 
 
 74; Rannie v. Iri-ine, 7 Man. & G. 969; Jones v. Lees, 1 Hurlst. & N. 189; 
 
 Allsopp V. Wheatcrqft, L. R. 15 Eq. 59; Rousillon v. Bousillon, L. R. 14 
 
 Ch. Div. 351.
 
 MONOPOLY SECURED TO A PATENT RIGHT. 183 
 
 § 41. Monopoly Secured to a Patent Right. — A limited 
 inonopoly secured by a patent granted for a new discovery or 
 invention is an admitted exception to the general rule against 
 monopolies, for this is the only way the inventor can be paid and 
 it is adopted as a matter of public policy to encourage discovery. 
 
 A contract not to aid, assist or encourage, in any manner, com- 
 petition against purchasers of patents of twists, drills and collets, 
 wae held valid in a suit to restrain defendants from violating it 
 by making the articles in another State and selling them in the 
 restricted market. As the business was not local the restraint 
 was regarded as only reasonable protection.* 
 
 A contract between an individual and three manufacturers 
 under several patents forming a combination of the parties, with 
 a view to regulate competition between the parties to it in the 
 sale of the particular commodity which they severally make, is a 
 •contract for a lawful purpose where it does not refer to an article 
 of prime necessity, to a staple of commerce, or to a merchandise 
 to be bought or sold on the market.* 
 
 In Jones v. Lees^ 1 Hurlst. & JS'. 189, a covenant by the defend- 
 ant, a licensee under a patent, that he would not, during the 
 license, make or sell any slubbing machines unless the invention 
 of the plaintiif applied to them, was held valid. A contract for 
 the exclusive right to supply a certain district with flour prepared 
 under a certain patent, for a royalty, is not invalid.' 
 
 An assignment of the sole right to make, use and vend a cer- 
 tain patented article for a certain time " within the southern half 
 of Alabama, less Chambers County," is not void for uncertainty 
 as to the territory.* 
 
 But contracts between holders of patents are often sustained 
 upon the ground that the contract is reasonable in itself, leaving 
 out of view the question of monopoly rightly yielded to a patent 
 invention. In a case decided in Massachusetts June 25, 1891,* 
 the plaintiff and defendant corporations, which had been engaged in 
 litigation with each other as to the alleged infringement of a 
 
 ^Morse T. D. & M. Co. v. Morse, 103 Mass. 73, 4 Am. Rep. 513. 
 
 "^Central Shade Boiler Co. v. Cushman, 3 New Eng. Rep. 505, 143 Mass. 363. 
 
 » Hecker v. Fowler, 69 U. S. 2 Wall. 123, 17 L. ed. 759. 
 
 * Dudley v. Suddoth, — Ala. — , 8 So. Rep. 873. 
 
 ^ Oloiicexter hinglans & O. Co. v. Russia Cement Co. (Mass.) 12 L R. A. 563.
 
 18i CONTKACTS IN KESTRAIJST OF TKADE. 
 
 patent owned bv the plaintiff, believing that they would be able 
 to practically control the profitable manufacture of fish glue, 
 entered into a contract with each other by which the defendant 
 was to pay a certain sum for damages and <»ne half of the costs of 
 the suits, and to be allowed the use of the patent. Each party 
 was to conduct its own establishment and they were to unite in the 
 purchase of fish skins, an article of which the su])ply was limited 
 and from which the fish glue is manufactured, so that there should 
 be no competition between them. The plaintiff was to fix the 
 price of all skins purchased, the parties were to have certain places 
 assigned to them by two persons named, of which they were 
 respectively to have the product; from the proprietors of certain 
 other places mentioned the defendant was to have the entire pro- 
 duct and to allow the plaintiff" to receive from it one third thereof, 
 and the two parties were to divide equally between them the 
 skins which might be obtained from new producers. They were 
 both to sell the glue at the same price, to be agreed upon from 
 time to time, and the contract contained other stipulations, the 
 effect of which was to prevent competition between them. The 
 contract was made in February, 1884. After they had conducted 
 the business in this manner until early in 188Y, it became evident 
 to both that the patent was invalid, although no formal judgment 
 was rendered declaring it so. Thereupon, Mr. Brooks, the man- 
 ager of the defendant company, made a large number of what are 
 known as the long term contracts for the purchase of all skins to 
 be produced until the year 1900, with nearly all the producers of 
 fish skins known to the parties. The plaintiff received its share 
 of these skins and no difficulty arose between the two companies, 
 until early in July, 1890, when the defendant notified the pro- 
 ducers of skins by whom the plaintiff had been supplied up to 
 that time not to deliver it any more skins, and notified the plain- 
 tiff' of its abandonment of the contract. Until then the parties 
 had gone along under the contract as modified by mutual consent, 
 and no intimation had been given the plaintiff of any intention to 
 abandon it. The object of the bill is to compel the defendant to 
 permit the plaintiff to obtain directly from the producers, or 
 through the defendant, what it deems its share of the fish skins. 
 The defendant contends that the contract as originally made was. 
 void as contrary to public policy.
 
 MONOPOLY SECUKED TO A PATENT KIGHT. 185 
 
 But in considering this contention the court says that the orig- 
 inal purpose of the contract Avas to regulate the business of man- 
 ufacturing a product under what was supposed to be a new 
 invention on which letters patent of the United States had been 
 issued, whereby an article then nearly worthless might be con- 
 verted into an article of large value. The use to which the fish skins 
 were put under this invention gave them tlieir market value. 
 The plaintiff and defendant sought to unite with each other in 
 the purchase of the raw material, so that they might not be 
 tempted to overbid each other and thus to raise it to an unreason- 
 able price, and also to agree on the price at which the manufac- 
 tured article should be sold so that they might be secure in a. 
 reasonable profit. Even if they hoped for gain by their joint exer- 
 tions or by the possession of a patent as to the vahie of which they 
 were subsequently disappointed, their contract had no relation to 
 an article of prime necessity, or to staple commodities ordinarily 
 bought and sold in the market, but to a particular article of which 
 both were manufacturers under the same process, and to an article 
 used in the manufacture which was of little value for any other 
 use; that the agreement was not obnoxious to the objection made 
 by the defendant is shown by the case of Central Shade Roller 
 Co. V. Cushman, 3 New Eng. Kep. 505, 143 Mass. 353. 
 
 In Central Shade Boiler Co. v. Cushman, 3 ]S"ew Eng. Eep. 
 505, 143 Mass. 353, the contract which is sought to be enforced 
 w.as made between the plaintiff of the first part and three manu- 
 facturers under several patents of certain curtain fixtures known 
 as '• wood balance shade rollers " of the second part, in pursuance 
 of an arrangement between the persons forming the party of the 
 second part, that the plaintiff" corporation should be created for the 
 purpose of becoming a party to the combination, and purposed to 
 prevent, or rather to regulate, competition between the parties to 
 it in the sale of the particular commodity which they made. 
 
 It was held that this is a lawful purpose, but it is argued that 
 the means employed to carry it out — the creation of the plaintiff' 
 corporation and the terms of the contract with it — are against pub- 
 lic policy, and invalid. 
 
 But the fact that the parties to the combination formed them- 
 selves into a corporation of which they were the stockholders, that
 
 186 CONTRACTS IN RESTRAINT OF TRADE. 
 
 they might contract with it instead of with each other, and carry 
 •out their scheme through its agency instead of that of a pre-exist- 
 ing person, it is said is obviously immaterial, and the only ground 
 upon which it can be argued that the contract is invalid is the 
 restraint it puts upon the parties to it. 
 
 The court then inquires whether the contract imposes a restraint 
 as to the manufacture or the sale of balance shade rollers, which 
 is void as against public policy, and concludes that the contract 
 certainly puts no restraint upon the production of the commodity 
 to which it relates. It puts no obligation upon and offers no 
 inducement to any person to produce less than to the full extent 
 of his capacity. On the contrary, its apparent purpose is, by 
 making prices more uniform and regular, to stimulate and increase 
 production. The contract does not restrict the sale of the com- 
 modity. It does not look toward withholding a supply from the 
 market, in order to enhance the price, as in Craft v. McConougJuj, 
 79 111. 346, and other cases to the same effect. On the con- 
 trary, the contract intends that the parties shall make sales, and 
 gives them full power to do so, the only restrictions being that 
 sales, not at retail or for export, shall be in the name of the plain- 
 tiff and reported to it, and the accounts of them kept by it, and 
 the provision that when any party shall establish an agency in 
 any city or town for the sale of a roller made exclusively for that 
 purpose, no other party shall take orders for the same roller in the 
 same place. To these restrictions, clearly valid, there is added the 
 one which affords an argument for the invalidity of the contract 
 — the restriction as to price. That restriction is, in su1)stance, 
 that the price for rollers of the same grade, made by different 
 parties, shall be the same, and shaU be according to a schedule 
 contained in the contract, subject to changes which may be made 
 by the plaintiff" upon recommendation of three fourths of its stock- 
 holders. This the court regards as in effect an agreement between 
 three makers of a commodity that for three years they will sell it 
 at a uniform price, lixed at the outset, and to be changed only by 
 consent of a majority of them. The agreement does not refer to 
 ■an article of prime necessity, nor to a staple of commerce, nor to 
 merchandise to be bought and sold in the market, but to a par- 
 ticular curtain fixture of the parties' own manufacture. It does
 
 MONOPOLY SECURED TO A PATENT RIGHT. 187 
 
 not look to affecting: competition from outside (the parties have a 
 monopoly bj their patents), but only to restrict competition in 
 price between themselves. Even if such an agreement tends to 
 raise the price of the commodity it is one which the parties have 
 a right to make. To hold otherwise would be to impair the right 
 •of persons to make contracts and to put a price on the products of 
 their own industry. But, it is said, we cannot assume that the 
 purpose and effect of the coml)iuation is to unduly raise the price 
 of the commodity. A natural purpose and a natural effect is to 
 maintain a fair and uniform price, and to prevent the injurious 
 effects, both to producers and consumers, of fluctuating prices 
 caused by undue competition. When it appears that the com- 
 bination is used to the public detriment, a different question will 
 be presented. The contract is apparently beneficial to the parties 
 to the combination, and not necessarily injurious to the public, 
 and it is denied that there is any autliority or reason for holding 
 it to be invalid as a restraint of trade or against public policy.
 
 CHAPTEK IX. 
 
 MODIFICATIONS OF THE RULE AS TO CONTRACTS IN 
 RESTRAINT OF TRADE. 
 
 § 43. Mitchel v. Reynolds — Act of ParUament in ISl^J^, Repealing' 
 Statutes Regarding Trade. 
 
 43. Modern Doctrine that Restraint is Valid, if Co-extensive only 
 
 loitli Interest to he Protected and luith Benefit Meant to ba 
 Conferred. 
 
 44. Piihlic Policy Concerning Trade Restrictions. 
 
 45. Examples of Modern Rule Regarding Restrictio7is. 
 
 46. Legcdity of Consideration, and Reasonableness of Restriction, 
 
 Questions of Law. 
 
 47. Presumption as to Legcdity of Contracts in Partial Restraint 
 
 of Trade. 
 
 48. Contract in Restraint of Trade Legal in Part ajid Severable. 
 
 49. Partial Restriction of Trade not Permissible by Corporations. 
 
 § 42. Mitcliel v. Reynolds — Act of Parliament in 1844 
 Repealing Statntes Regarding Trade. — ^ As the rule announced 
 in Mitchel v. Reynolds, 1 P. Wins. 181, was intended to apply to^ 
 then present conditions of commercial and social life, it of neces- 
 sity must change with altering circumstances and conditions, and 
 the inclination of modern thought and of the decisions, has been 
 no longer to uphold in its strictness the doctrine which formerlj 
 prevailed in respect of agreements in restraint of trade. The 
 severity with which such agreements were at first treated became 
 more and more relaxed by exceptions and qualifications. This 
 change was gradual and may be considered, perhaps, as due mainly 
 to and as keeping even pace with tlie growth and spread of the 
 industrial activities of the world and enlarged commercial facili- 
 ties, which render such agreements less dangerous as tending to 
 create monopolies. The earlier doctrine, of course, obtained in 
 respect of agreements between individuals. The limitation which 
 became imposed was that the agreement should operate as to a. 
 locality, and not as to the whole land. In later times the extreme 
 
 188
 
 ACT OF PARLIAMENT REPP^ALING STATUTES REGARDING TRADE. 189 
 
 danger in such agreements seems only necessarily to exist when 
 corporations are parties to them; for their means and strength 
 would usually better enable them to buy off rivalry and to create 
 monopolies. 
 
 In 1844, a statute was passed in Parliament wliieh removed 
 many of the cumbersome provisions regarding contracts supposed 
 to be restrictive of trade. The Act was as follows: 
 
 "An Act for Abolishing the Offenses of Forestalling, Regrat- 
 ing, and Engrossing, and for Repealing Certain Statutes Passed in 
 Restraint of Trade. 
 
 "Whereas divers statutes liave been from time to time made in 
 the parliaments of England, Scotland, Great Britain and Ireland 
 respectively prohibiting certain dealings in wares, victuals, mer- 
 'Chandise, and various commodities by the names of badgering, 
 forestalling, regrating, and engrossing, and subjecting to divers 
 punishments, penalties, and forfeitures, persons so dealing; and 
 
 "Wliereas it is expedient that such statutes, as well as certain 
 other statutes made in hindrance and in restraint of trade, be re- 
 pealed; and 
 
 "Whereas an Act of the Parliament of Great Britain was passed 
 in the twelfth year of the reign of King George the Third, inti- 
 tuled 'An Act for repealing several laws therein mentioned against 
 badgers, engrossers, forestallers and regraters, and for indemnify- 
 ing persons against prosecutions for offenses committed against the 
 said acts,' whereby after reciting that it had been found by ex- 
 perience that the restraint laid by several statutes upon the deal- 
 ing in corn, meal, flour, cattle, and sundry other sorts of victuals, 
 by preventing a free trade in the said commodities, have a ten- 
 dency to discourage the growth and to enhance the price of the 
 «ame, which statutes, if put in execution, would bring great dis- 
 tress upon the inhabitants of many parts of this kingdom, and in 
 particular upon those of the cities of London and Westminster, 
 •sundry acts therein mentioned, and all the acts made for the bet- 
 ter enforcement of the same, were repealed, as being detrimental 
 to the supply of the laboring and manufacturing poor of this 
 kingdom; and 
 
 "Whereas, notwithstanding the making of the first recited Act, 
 persons are still liable to be prosecuted for badgering, engrossing,
 
 190 MODIFICATIONS OF THE KULE AS TO CONTRACTS. 
 
 forestalling, and regrating, as being offenses at common law, and 
 also forbidden by divers statutes made before the earliest of the 
 statutes thereby repealed: For remedy thereof, and for the ex- 
 tension of the same remedy to Scotland and to Ireland, be it en- 
 acted by the Queen's most Excellent Majesty, by and with the 
 advice and consent of the Lords spiritual and temporal, and 
 Commons, in this present Parliament assembled, and by the 
 authority of the same, That after the passing of this Act the sev- 
 eral offenses of badgering, engrossing, forestalling, and regrating 
 be utterly taken away and abohshed, and that no information, 
 indictment, suit or prosecution shall lie either at common law or 
 by virtue of any statute, or be commenced or prosecuted against 
 any person for or by reason of any of the said offenses or supposed 
 offenses. 
 
 '"11. And be it enacted, That the several acts and parts of acts 
 made in the Parliaments of England and Scotland, Great Britain 
 and Ireland, hereinafter mentioned, shall be repealed, but not so 
 as to revive any Act repealed by any of the acts hereby repealed; 
 (that is to say,) 
 
 "The following acts and parts of acts of the Parliament of Eng- 
 land, to wit: 
 
 "So much of an Act passed in the fifty-first year of the reign 
 of King Henry the Third, intituled 'A Statute of the pillory 
 and tumbrel; and of the assize of bread and ale,' as is now in 
 force: 
 
 "So much of an Act passed in the 12th year of the reign of 
 King Edward the Second, intituled ' No officer of a city or borough 
 shall sell wine or victual during his office,' as now in force: 
 
 "So much of an Act passed in the reign of King Henry the 
 Third, King Henry the First, or King Edward the Second, inti- 
 tuled ' The punishment of a butcher selling unwholesome flesh,' as 
 provides punishment for a butcher or cook that buyeth flesh of 
 Jews and selleth the same unto Christians: 
 
 "The whole of an Act passed in one of the three last mentioned 
 reigns intituled ' No forestaller shall be suffered to dwell in any 
 town: ' 
 
 "The whole of an Act passed in the 23d year of the reign of 
 King Edward the Third, intituled ' Victuals shall be sold at reas- 
 onable prices:'
 
 ACT OF PARLIAMENT REPEALING STATUTES KEGAKDING TRADE. 191 
 
 ''The whole of an Act passed in the 25th year of the same reign 
 intituled 'The penalty of him that doth forestall wares, merchan- 
 dise, or victual,' 
 
 "So much of an Act passed in the 2Tth of the same reisrn inti- 
 tuled *A statute of pro visors,' as provides that commissions shall l)e 
 granted to inquire of offenders contrary to the Statute of 23 Ji,dw., 
 3, chap. 6, and enacts, ' The penalty for forestalling of merchan- 
 dises, before they come to the staple:' 
 
 "The whole of two acts passed in the 31st year of the same 
 reign, respectively entitled 'The statute of herrings,' and another 
 statute of salt lish: 
 
 "The whole of an Act passed in the 35tli year of the same 
 reign, entitled 'An ordinance of herring:' 
 
 "So much of an Act passed in the 37th year of the same reign, 
 intituled 'Merchants shall not engross merchandises to enhance- 
 the prices of them, nor use but one sort of merchandise,' as is now 
 in force: 
 
 "The whole of an Act passed in the same year, intituled 'Clo- 
 thiers shall make cloths sufficient for the foresaid prices,' so that 
 this statute for default of such cloths be in no wise infringed: 
 
 "The whole of an Act passed in the second year of the reign of 
 King Richard the Second, intituled 'A confirmation of the statutes 
 of 25 Edw. III., Stat. 4, chap. 3, against forestallers:' 
 
 "So much of an Act passed in the 13th year of the same reign, 
 intituled 'The rates of laborers' wages shall be assessed and pro- 
 claimed by the justices of the peace, and they shall assess th& 
 gains of victuallers; who shall make home-made bread, and the 
 weight and price thereof,' as is now in force: 
 
 "So much of an Act passed in the 4th year of the reign of King- 
 Henry the Fourth, intituled 'An hostler shall not make horse- 
 bread; how much he may take for oats,' as is now in force: 
 
 "So much of an Act passed in the 25th year of the reign of 
 King Henry the Eighth, intituled 'Proclamations for the prices of 
 victuals, namely, the pricing of them and proclaiming the prices,'" 
 as is now in force: 
 
 "So much of an Act passed in the 28th year of the same reign, 
 intituled 'For prices of wine,' as is now in force, not relating to the 
 gauging and measuring of wine, oils, honey, or other liquors or 
 things:
 
 192 MODIFICATIONS OF THE KL'LE A6 TO CONTRACTS. 
 
 "So much of two acts passed in the session of Parliament holden 
 in the third and fourth years of the reign of King Edward the 
 Sixth, res^jectively, intituled 'An Act for buying and selling of 
 rother beasts and cattle,' and 'An Act for the buying and selling 
 ■of butter and cheese,' as is now in force: 
 
 "The whole of an Act passed in the session of Parliament holden 
 in the fifth an sixth years of the same reign, intituled 'An Act 
 against regraters and ingrossers of tanned leather,' except the pro- 
 hibition of currying or dressing tanned leather within the city of 
 London and the suburbs thereof, as provided by the last men- 
 tioned Act: 
 
 "Also the following acts of the Parliament of Scotland, to wit: 
 
 "An Act passed in the year one thousand five hundred and three, 
 intituled 'Of malt makaris in burrow towns:' 
 
 "An Act passed in the year one thousand five hundred and 
 thirty-five, intituled 'Off Forstallaris:' 
 
 "An Act passed in the year one thousand five hundred and forty 
 intituled 'For eschewing of derth, wittalis, flesche, and fysche:' 
 
 "Also an Act of the same year, intituled Tor stanching of derth 
 and prices of wyne, salt, an tymmer:' 
 
 "Also an Act of the same year, intituled 'Anentis forstallaris:' 
 
 "An Act passed in the year one thousand five hundred and fifty- 
 five, intituled 'Anent the disposition of wyne, salt, and tymmer 
 brocht into the realme:' 
 
 "An Act passed in the year one thousand five hundred and 
 seventy-nine, intituled Tor punishment of regrataris and forstal- 
 laris:' 
 
 "An Act passed in the year one thousand five hundred and 
 ninety-two, intituled 'Aganis foirstallaris and regraittaris:' 
 
 "An Act passed in the year one thousand six hundred and sixty- 
 one, intituled 'An Act for erecting of manufactories:' 
 
 "Also the following acts and parts of acts of the Parliament of 
 Ireland, to wit: The whole of an Act passed in the fourth year of 
 the reign of King Edward the Fourth, intituled 'An Act against 
 engrossers and regraters of corn:' 
 
 "The whole of an Act passed in the thirty-third year of the reign 
 of King Henry the Eighth, intituled an 'Act for grey merchants,' 
 as revived and perpetuated by a subsequent Act passed in the
 
 ACT OF PARLIAMENT REPEALING STATUTES REGARDING- TRADE. 193 
 
 eleventh year in the reign of Queen Elizabeth intituled 'An Act for 
 reviving the statute against grey merchants,' the statute for ser- 
 vants' wages and the Statute of Jeofails; 
 
 "So much of an Act passed in the second year of the reign of 
 Queen Anne, intituled 'An Act to prohibit butchers from being 
 grazers,' and to redress several abuses in buying and selling of 
 cattle, which Act is perpetuated by another Act made in the ninth 
 year of the reign of Queen Anne, as prohibits any butcher from 
 being a grazier, or keeping in his possession, or in trust for him, 
 above 20 acres of land, or from selling any cattle to any other 
 butcher in Dublin, or within 5 miles thereof, or from keeping at 
 hay or feed oxen or other cattle for above ten day, or from expos- 
 ing for sale any oxen or other cattle within 20 miles of the place 
 where bought, and which prohibits any person from selling or expos- 
 ing for sale any cattle or sheep on the same day when bought; 
 
 "So much of an Act passed in the tenth year of the reign of King 
 George the First, intituled 'An Act for regulating abuses commit- 
 ted in buying and selling cattle and sheep in the several markets 
 of this kingdom,' as prohibits cattle from being bought within six 
 miles of any market; 
 
 "The whole of an Act passed in the iifteenth year of the reign of 
 King George the Second, intituled 'An Act to explain and amend a 
 clause in an Act passed in the second year of the reign of Queen 
 Anne intituled. An Act to prohibit butchers from being graziers, 
 and to redress several abuses in buying and selling of cattle, and 
 in slaughtering, and packing of beef, tallow, and hides;' 
 
 "The whole of an Act passed in the thirty-first year of the reign 
 of King George the Second, intituled 'An Act to prohibit salesmen 
 from being grazers,' and to redress several abuses in buying and 
 selling cattle or meat; 
 
 "So much of an Act passed in the session of Parliament holden 
 in the thirteenth and fourteenth years of the reign of King 
 George the Third, intituled 'An Act for paving streets within the 
 city and county of the city of Dublin,' as authorizes a market jury 
 to seize provisions or victuals in the hands of any forestallerj 
 regrater, or engrosser; 
 
 "So much of an Act passed in the twenty-seventh year of the 
 reign of King George the Third, intituled 'An Act for establishing 
 13
 
 194 MODIFICATIONS OF THE RULE AS TO CONTKACTS. 
 
 market juries in cities,' as authorizes and empowers certain market 
 juries to seize provisions or victuals found iu tlie hands of fore- 
 stallers, regraters, and engrossers; 
 
 "III. And be it enacted, That the several acts and parts of acts 
 which were repealed, as to Great Britain, by the first recited Act 
 of the twelfth year of the reign of King George the Tliird, shall 
 be taken, after the passing of this Act, to be repealed as to the 
 United Kingdom of Great Britain and Ireland. 
 
 "IV. Provided, always, and be it enacted. That nothing in this 
 Act contained shall be construed to apply to the offense of know- 
 ingly and fraudulently spreading or conspiring to spread any 
 false rumor, with intent to enhance or decry the price of any 
 goods or merchandise, or to the offense of preventing or endeavor- 
 ing to prevent by force or threats any goods, wares, or merchan- 
 dise being brought to any fair or market, but that every sucli 
 offense may be inquired of, tried, and punished as if this Act had 
 not been made, 
 
 "V. And be it enacted, That this Act may be amended or 
 repealed by any Act to be passed in this session of Parliament." 
 
 § 43. Modern Doctrine that Restraint is Valid, if Co-ex- 
 tensive only with Interest to he Protected and with Benefit 
 Meant to be Conferred. — The tendency of recent adjudications 
 is to conform to the spirit which induced such modified legislation 
 and it is now clearly marked in the direction of relaxing the rigor 
 of the doctrine that all contracts in general restraint of trade are 
 void, irrespective of special circumstances. Indeed, it has of late 
 been denied that a hard and unjust rule of that kind has ever 
 been the law of England.* 
 
 The law has for centuries permitted contracts in restraint of 
 trade when reasonable, and in Horner v. Crafts^ 7 Bing. 735, 
 Tmdal, Ch. J., considered a true test to be, whether the restraint i& 
 such only as to afford a fair protection to the interests of the 
 party in favor of whom it is given, and not so advantageous as to 
 interfere with the interest of the public. When the restraint is 
 general, but at the same time is co-extensive only with the inter- 
 est to be protected and with the benefit meant to be conferred, 
 there seems to be no good reason why, as between the parties, the 
 
 ^Rousillon V. Rouaillon, L. R. 14 Ch. Div. 351.
 
 MODERN DOCTRINE THAT RESTRAINT IS VALID. 195 
 
 contract is not as reasonable as when the interest is partial, and 
 there is a corresponding partial restraint. There is no public 
 reason which necessarily condemns the one and not the other.' 
 
 The doctrine relating to contracts in restraint of trade has been 
 elaVjoratelv discussed in a careful opinion of Andrews, «/., in the 
 recent case of Diamond Match Co. v. Roeber, 9 Cent. Rep. 181, 
 106 N. Y. 473. Under the authority of that case it may be said 
 that no contracts are void as being in general restraint of trade 
 where they operate simply to prevent a party from engaging or 
 competing in the same business. To the extent that the contract 
 prevents the vendor from carrying on the particular trade, it 
 deprives the community of any beneiit it might derive from his 
 entering into competition. But the business is open to all others, 
 and there is little danger that the public will suffer harm from 
 lack of persons to engage in a protital)le industry. Such contracts 
 do not create monopolies. They confer no special or exclusive 
 privileges. 
 
 A contract in restraint of trade, made on good consideration 
 and not extending beyond the obligee's sphere of actual business, 
 is valid." 
 
 A covenant in restraint of trade is valid if it imposes no 
 restriction upon one party which is not beneficial to the other, 
 and was induced by a consideration which made it reasonable for 
 the parties to enter into it, or, in other words, if it was a proj^er 
 and useful contract, or such as could not be disregarded without 
 injury to a fair contractor.' 
 
 This is the doctrine of Chappel v. Brockioay., 21 Wend. 157, 
 derived from the leading case of Mitchel v. Reynolds., 1 P.^V'ms. 
 181, and an examination of subsequent decisions. It is also 
 amplified and discussed in Diamond Match Co. v. Roeler, 9 
 Cent. Eep. 181, 106 ^. Y. 473. 
 
 It is an encouragement to industry and enterprise in building 
 up a trade, that a man may thereafter be permitted to sell the 
 good will of the bu^^iness and the fruits of his industry upon the 
 best terms he can obtain. If liis business extends over a con- 
 
 ^ Leslie \. Lorillard, 1 L. R. A. 456. 110 N. Y. 519. 
 
 ^Palmer v. Stebbins, 3 Pick. 188, 15 Am. Dec. 204; Oregon Steam Nav. Co. 
 
 V. Wimor, 87 U. S 20 Wall. 64, 22 L. ed. 515, 
 '^ Hodge v. Sloan, 9 Cent. Rep. 870, 107 N. Y. 249.
 
 196 MODIFICATIONS OF THE RULE AS TO CONTRACTS. 
 
 tinent, public policy does not forind his accompanyins^ the sale 
 with a stipulation for restraint co-extensive with the business 
 which he sells. 
 
 Contracts in restraint of trade will be valid, when the restric- 
 tion is not larger and wider than the protection of the party with 
 whom the contract is made can possibly require.' 
 
 It has been said that all the cases when they come to be 
 examined seem to establish this principle: that all restraints upon 
 trade are bad as being in violation of public policy, unless they 
 are natural and not unreasonable for the protection of the parties 
 dealing legally with some subject matter of contract. The prin- 
 ciple is that public policy requires that every man should not be 
 at liberty to deprive himself, or the public, of his labor, skill or 
 talent, by any contract that he enters into. On the other hand, 
 public policy recognizes that when a man has by skill, or by any 
 other means, obtained something which he wants to sell, he should 
 be at perfect liberty to sell it to the greatest advantage to him- 
 self, and in order to enable him to effect such sale, and secure the 
 full value, it may be, in the particular case, with regard to the 
 subject matter, necessary that he should be able to preclude him- 
 self from entering into competition with the purchaser. In such 
 case the same public policy enables him to enter into any stipu- 
 lation, however restrictive it is, provided the restriction, in the 
 judgment of the court, is not unreasonable, having regard to the 
 subject matter of the contract and trade conditions." 
 
 ^GmrandY. Bandelet, 32 Md. 561, 570; Booth v. Robinson, 55 Md. 419; 
 
 Tonawanda Valley & C. R. Co. v. New York. L. E. & W. R. Co. 42 Hun, 
 
 496, 499; Leslie v. LoHllard, 1 L. R. A. 456, 110 N. Y. 519, 532-534; 
 
 Bubuque & 8. G. R. Co. v. Richmond, 86 U. S. 19 Wall. 584, 590, 22 L. 
 
 ed. 173, 176; Central Shade Roller Co. v. Cushman, 3 New Eng, Rep. 
 
 505, 143 Mass. 353, 363; Skrainka v. Scliarringhausen, 8 Mo. App. 522; 
 
 Columbus, P. & I. R. Co. v. Indianapolis & B. R. Co. 5 McLean, 450- 
 
 454; Androscoggin & K. R. Co. v. Androscoggin R. Co. 52 Me. 417, 434; 
 
 Greenhood, Public Policy, 324, Rule 270. 
 '^Leather Cloth Co. v. Lorsont, L. R. 9 Eq. 345; Smith v. Fell, 5 Cent. Reo. 
 
 208, 113 Pa. 579; Hm'ner\. Craves, 7 Bing. 743; Stearns v. Barrett,! 
 
 Pick. 443; Ward v. Byrne, 5 Mees. & W. 548; Hitchcock v. Coker, 6 Ad. 
 
 & El. 438, 454; Whittaker v. Howe, 3 Beav. 383; Mallan v. May, 11 
 
 Mees. & W. 653, 667; Jarvis v. Peck, 10 Paige, 118, 4 L. ed. 910; Alcoek 
 
 V. Gilberison. 5 Duer, 76; Jones v. Lees, 1 Hurlst. & N. 189; Mumford 
 
 V. Gething, 7 C. B. N. S. 305; Harms v. Parsons, 32 L. J. Ch. 247; 
 
 Kceler v. Taylor, 53 Pa. 467; Smith v. Fell. 5 Cent. Rep. 208, 113 Pa. 
 
 579; Oregon Steam Nav. Co. v. Wimor, 87 U. S. 20 Wall. 64, 22 L. ed. 
 
 315; Rousillon v. Rousillon, L. R. 14 Ch. Div. 351; Biamond Match Co. 
 
 V. Roeber, 9 Cent. Rep. 181, 106 N. Y. 473; Neicell v. Meyendorf, 9 Mont. 
 
 254; Mandeville v. Barman, 5 Cent. Rep. 625, 42 N. J. Eq. 185.
 
 PUBLIC rOLICY CONCERNING TEADE RESTKICTIONS. 197 
 
 A contract restraining one competent to instruct in the German 
 and French language, for a year after his employment ends, 
 within the limit of a State, is nnreasonable, as beyond any appar- 
 ently necessary protection to his employer, unless it be shown 
 otherwise/ 
 
 § 44. Public Policy Conceniing Trade Restrictions. — In- 
 deed what public policy requires is often vague and difficult to 
 determine. The recognition of public policy, independently of 
 statutory regulation, as a test of the validity of contracts, is, at 
 best, the establishment of a very uncertain rule," and the test of 
 public policy is to be applied with the greatest caution.^ 
 
 Public policy is in its nature so uncertain and fluctuating — 
 varying with the habits and fashions of the day, with the growth 
 of commerce and the usages of trade — that it is difficult to detect 
 its limits with any degree of exactness. It has never been defined 
 by the courts but has been left loose and free from definition in 
 the same manner as fraud. This rule may however be safely laid 
 down that, wherever any contract conflicts with the morals of the 
 time, and contravenes any established interest of society, it is 
 void, as being against public policy. The immediate representa- 
 tives of the people in Legislature assembled would seem to be the 
 fairest exponent of what public policy requires, as being most 
 familiar with the habits and fashions of the day and with the 
 actual condition of commerce and trade, and their consequent 
 wants and weaknesses. Legislation is least objectionable because 
 it operates prospectively as a guide to future transactions, and 
 does not, like the judgment of a court, annul a contract already 
 concluded. 
 
 ^Eerreshoffv. Boutineau, 8 L. R. A. 469, 17 R. I. — . 
 
 ^Bicliardson v. Mellish, 2 Bing. 229, 352; Davies v. Davies, L. R. 36 Ch. 
 Div. 359, 3fi4; Sadlier v. Biggs, 4 H. L. Cas. 437-439; HUtan v. Eckers- 
 ley, 6 El. & Bl. 47. 64; Printing & N. Req. Co. v, Sampson, L. R. 19 
 Eq. 465; R£ Trust Estate of Woods, 52 Md. 520, 536; Vidal v. Girard, 43 
 U. S. 2 How. 197, 198, 11 L. ed. 204; Richmond v. Dubuque <& S. C. R. 
 Co. 26 Iowa, 191, 202; Swann v. Swann, 21 Fed. Rep. 299, 301; Tindal, 
 C.J., in Walsh M. Fussell, 6 Biug. 163; Greenhood, Public Policy, Rule 
 129, pp. 116, 117, and cases in notes; Oregon Steam Nav. Co. v. Winsoo\ 
 87 U. S. 20 Wall. 64, 22 L. ed. 315; Baines v. Geary, L. R. 35 Ch. Div. 
 156; Hobbsy. McLean, 117 U. S. 569, 576, 29 L. ed. 941, 943; U. S. v 
 Central Pac. R. Co. 118 U. S. 235-240, 30 L. ed. 173-175. 
 
 ^Richardson v. Mellish, 2 Bing. 229.
 
 198 MODIFICATIONS OF THE RULE AS TO CONTRACTS. 
 
 What is injurious to the rights of citizens slioiild, it would 
 seem, be the sul)ject of positive legislation, rather than the doubt- 
 ful judgment of a court.' 
 
 For this reason courts are reluctant to extend the prohibitions 
 of the common law, except where the public interest imperatively 
 requires it." 
 
 In all cases where the legislative judgment has been expressed, 
 ■courts are bound by the j^olicy thus declared. Where the statute 
 declares that no one shall vote at a stockholders' meeting upon a 
 power of attorney not executed witliin the year previous to the 
 jneeting, the statute discloses that the policy of the State is opposed 
 to a surrender of the voting power by stockholders, for an indefin- 
 ite period or for a term of five years, and a voting trust for such 
 a time was therefore held illegal.* 
 
 § 45. Examples of Modern Rule Regarding Restrictions. — 
 
 That the general tendency of recent judicial opinion is to limit 
 the ap23lication of the rule that contracts in restraint of trade are 
 void, is shown by the many authorities.* 
 
 In Whittaler v. Ilouie, 3 Beav. 333, a contract made by a solic- 
 itor, not to practice as a solicitor in any part of Great Britain, 
 was held valid. 
 
 A union formed among dealers in tol)acco, the purpose and 
 result of which is to arbitrarily fix the price, and destroy individ- 
 ual discretion, is illegal as an elfort to strangle comj^etition out- 
 right and breed monopolies.'* 
 
 ^Ouillander v. Howell, 35 N. Y. 657; Story, Confl. L. § 566; McNamara v. 
 Gargett, 12 West. Rep. 650, 68 Mich. 454. 
 
 'See section 10, chap. 10. 
 
 '■Starbuek v. Mercantile Trust Co. (Conn.) 9 Ry. & Corp. L. .J. 203. 
 
 *W/nttaker v. Howe, 3 Beav. 383; Jones v. Lees, 1 Hurlst. & N. 189; Rousil- 
 lon V. Rousillon, L. R.14Ch. Div. 351; Leather Cloth Co. v. Lorsont, L. 
 R. 9 Eq. 345; Collins v. Locke, L. R. 4 App. Cas. 674; Oregon Steam Nav. 
 Co. V. Winsor, 87 U. S. 20 Wall. 64, 22 L. ed. 315; Morse T. D. d M. Co. 
 V. jT/o/-se,103 Mass. 73; Diamond Match Co. v. Roeber, 9 Cent. Rep. 181, 
 106 N. Y. 473; Breicerv. Marshall, 19 N. J. Eq. 537; Taylor \. Blanchard, 
 13 Allen, 370; Vernon v. Hallam, 35 Week. Rep. 156, 56 L. J. Ch. 115; 
 Perkins v. Lyman, 9 Mass. 522; Smith's App. 5 Cent. Rep. 209, 113 
 Pa. 579; Washburn v. Dosch, 68 Wis. 436; Hanna v. Andrews, 50 Iowa, 
 462; Lii-e Stock Asso. v. Levi/, 3 N. Y. S. R. 514; Smith v. Martin, 80 Ind. 
 260; Leslie v. Lorillard, 1 L. R. A. 456, 110 N. Y. 519. 
 
 ^Hoffman v. Brooks, 11 Week. L. Bui. 358.
 
 EXAMPLES OF MODERN EULE REGARDING RESTRICTIONS. 199 
 
 In RousiUon v. lionsillon a general contract not to engage in 
 the sale of champagne, without limit as to space, was enforced, as 
 being, under the circumstances, a reasonable contract. 
 
 In Jones v. Lees, 1 Hurlst. & 1^. 189, a covenant by the defend- 
 ant, a licensee under a patent, that he would not, during the license, 
 make or sell any slubbing machines, without the invention of the 
 plaintiff applied to them, was held valid. Bramwell, ?/., said : " It 
 is objected that the restraint extends to all England, but so does 
 tlie privilege." 
 
 An agreement between a corporation and its stockholders, that 
 the latter should not pm-chase goods of a certain class, during a 
 limited period, of anyone other than the members of an associa- 
 tion with which that corporation had entered into a contract, 
 resulting in benefits to itself and members, is not in restraint of 
 trade.' 
 
 The question as to what is a general restraint of trade is not to 
 be determined by the fact that it includes all the territory within 
 state lines; and a restraint is not necessarily general which 
 -embraces an entire State. Where such contract is made with the 
 purchaser and his assigns, his successor and assignee may maintain 
 an action upon it ; and the fact that the purchaser was a foreign 
 corporation is no objection. And the use of a name may be con- 
 trolled.' 
 
 Thus a covenant not to carry on the business of a manufacturer 
 anywhere for a period of five years under a particular name or 
 style is not void.' 
 
 An agreement by a particular individual or firm not to manu- 
 facture goods in general has been enforced." 
 
 A contract restraining the exercise of a trade within a limited 
 locality, when there is reasonable ground for the restriction, may 
 be valid ; and if the restriction seem reasonable, its adequacy as a 
 -consideration will not be inquired into.* 
 
 1 Van Marter v. Bahcock, 23 Barb. 633; Curtis v. Gokey, 88 N. T. 304; Live 
 
 Stock Asso. V. Levy, 3 N. Y. S. R. 514. 
 ^Diamond Match Co. v. Boeber, 9 Cent. Rep. 181, 106 N. Y. 473. 
 ^Vernon v. Hallarn, 35 Week. Rep. 156, 56 L. J. Cb. 115; but compare F»7«2^ 
 
 V. Baumgardner, 97 Ind. 66, 49 Am. Rep. 427. 
 *Taylor v. Blanchard, 13 Allen, 370. 
 '^McGlurg's App. 58 Pa. 51; Leather Cloth Co. v. Lorsont, L. R. 9 Eq. 345. 
 
 Jenkins v. Temples, 39 Ga. 655; Smith's Appeal, 5 Cent. Rep. 208, 113 Pa.
 
 200 MODIFICATIONS OF THE KULE AS TO CONTRACTS. 
 
 A covenant not to be directly or indirectly interested in any 
 voyage to the northwest coast of America, or in any traffic witli 
 the natives of that coast, for seven years, was held valid. In that 
 case some weight was given to the obligation of a trust.' 
 
 A contract by a steamship corporation to purchase a competing 
 line, which, in consideration thereof, agrees to discontinue run- 
 ning vessels between ports mentioned, and not to charter or sell 
 their vessels for use on that route, and not to become in any way 
 interested in the running of steamships between those places, is 
 not void as in restraint of trade.* 
 
 In Oregon Steam Nav. Go. v. Winsor, 87 U. S. 20 Wall. 64, 2^ 
 L. ed. 315, the court enforced the covenant by the defendant 
 made in the purchase of a steamship, that it should not be run or 
 employed in the freight or passenger business in the waters of 
 the State of California for a period of ten years ; cont/'a, where 
 no time was fixed.' 
 
 Where the covenant is partial and not general, it will not bo a 
 good objection that it is practically unlimited as to time.* 
 
 In each particular case the surrounding circumstances are to 
 be considered in determining whether the covenant will operate 
 as a restraint, injurious to the public* Thus an exclusive right 
 to* lay tubing for the conveyance of oil through an extensive tract, 
 which would practically deny this facility to others, was held to 
 be illegal.* 
 
 An agreement not to engage in a particular business in a cer- 
 tain town for five years, is sustained as being only a limited 
 restraint upon trade.'' 
 
 But courts do not extend the restriction beyond its express 
 terms ; where a land agent sold his business, with an agreement 
 
 579; Linn v. Sigsbee, 67 111. 75; OraselU v. Lowden, 11 Ohio St. 349; 
 
 Archer v. Marsh\ 6 Ad. & El. 959; Hitchcock v. Coker,Q Ad. & El. 438;, 
 
 Pilkington v. Scott, 15 Mees. & W. 660; Tallis v. Tallis, 1 El. & Bl. 391; 
 
 Pierce v. Fuller, 8 Mass. 233; Lawrence v. Kidder, 10 Barb. 649; Palmer 
 
 V. Graham, 1 Pars. Eq. Cas, 476. 
 ^Perkins v. Lyman, 9 Mass. 522. 
 ^Leslie v. Lorillard, 1 L. R. A. 456, 110 N. Y. 519. 
 8 Wright v. Ryder, 36 Cal. 342. 
 
 *Ward V. Byrne, 5 Mees. & W. 548; Mvmford v, Gething, 7 C. B. N. S. 317. 
 ^Gihbs V. Consolidated Gas Co. 130 U. S. 396, 32 L. ed. 979. 
 *West Virginia Transp. Co. v. Ohio River P. L. Co. 22 W. Va. 600. 
 ' Washburn v. Bosch, 68 Wis. 436.
 
 LEGALITY OF CONSIDERATION. 201 
 
 not to re-en2:aa;e in the identical business in the same place for 
 three years, after the expiration of that time lie was not debarred 
 from soliciting the agencj of the same lands he had in charge 
 when the contract was made.' 
 
 And acting on this principle it is held that an agreement not 
 to sell milk in a particular town is not violated by selling to one 
 residing outside the town, with knowledge that the purchaser 
 intends to retail the milk within the town.^ 
 
 There are many illustrations of the application of the rule to 
 special cases, a few of which are given below/ 
 
 § 4fi. Legality of Consideration, and Reasonableness of 
 
 Restriction — Questions of Law. — Whether a contract is in 
 restraint of trade or not is a question of law for the court and not 
 a question of fact for the jury.* Contracts in restraint of trade 
 where no consideration is shown, are bad.* And indeed the rule 
 is that where no consideration is shown or appears itself on the 
 face of the instrument, the contract, if in fact a contract in 
 restraint of trade, is void, although it is under seal.' 
 
 The court will not, indeed, if a consideration be shown, exam- 
 ine as to the sufficiency of the consideration, but whether it is a 
 legal one.' 
 
 ^Uanna v. Andre^os, 50 Iowa, 463. 
 
 "^Smith V. Martin, 80 Ind. 260. 
 
 ^See DansY. Mason, 5 T. K. 118; Mallan v. May, 11 Mees. &W. 653; Haymard 
 V. Young, 2 Chit. 407; Price v. Oreen, 16 Mees. & W. 346; Tallis v. Tal- 
 lis, 1 El. & Bl. 391; Elves v. Crofts. 10 C. B. 241; Jones v. Lees, 1 Hurlst. 
 «fe N. 189; Carroll v. Hicls, 10 Phila. 308; Belt's App. 10 W. N. C. 431; 
 McChirq's App. 58 Pa. 51; Gompers v. Rocliester, 56 Pa. 194; Biqony v. 
 Tyson, 75 Pa. 157: Morse T. D. & M. Co. v. Morse, 103 Mass. 73; Dean 
 \. Emerson, 102 Mass. 480. 
 
 ^Kellogg v. Larkin, 3 Chand. 133; Mallan v. May, 11 Mees. & W. 653; Hor- 
 ner V. Graves, 7 Bing. 743. 
 
 ^Pierce v. Fuller, 8 Mass. 223, 5 Am. Dec. 102. 
 
 ^Gomx>ers v. Rocliester, 56 Pa. 194; Palmer v. StehMns, 3 Pick. 188; Weller v. 
 Hersee, 10 Hun, 431; Mitchel v. Reynolds, 1 P. Wms. 181; Mallan v. May, 
 11 Mees. & W. 665. 
 
 ''Guerand v. Bandelet, 32 Md. 561, 3 Am. Rep. 164; McClurg'g App. 58 Pa. 
 51; Pierce v. Fuller, 8 Mass. 223; Sainter v. Furgnsson, 7 C. B. 716; 
 Hitchcock V. Coker, 6 Ad. & El. 438; Archer v. Marsh, 6 Ad. & El. 966; 
 Leighton v. Wales, 3 Mees. & W. 551; Pilkington v. Scott, 15 Mees. & W. 
 657: Tallis v. Tallis, 1 El. & Bl. 397; Lawrence v. Kidder, 10 Barb. 649; 
 Palmer v. Graham, 1 Pars. Eq. Cas. 476; Grasselli v. Lowden, 11 OhiO' 
 St. 349; Linn v. Sigsbee, 67 111. 75; Jenkins v. Temples, 39 Ga. 655.
 
 -202 MODIFICATIONS OF THE KULE AS TO CONTKACTS. 
 
 A contract in restraint of trade must liave a good consideration 
 and the restraint must be reasonable and limited.' 
 
 The reasonableness of the restriction is a question for the 
 court.' 
 
 The autliorities are numerous, and conclusively establish the 
 law that contracts in restraint of the freedom of trade must be 
 reasonable." 
 
 In determining whether the contract is reasonable such a limit 
 should be laid down as, under any circumstauces, possible within 
 the contemplation of either party, would be suthcient protection 
 to the interests of the contracting l)arty, and if the limit stipu- 
 lated for does not exceed that, the contract should be held to be 
 valid.* 
 
 A covenant in restraint of trade is valid if it was induced by a 
 ■consideration which made it reasonable for the parties to enter 
 therein; and the covenant will be enforced if a disregard thereof 
 by the covenantor will work injury to the covenantee,* 
 
 Where the restraint of a party from carrying on a trade or 
 business is larger and wider than the protection of the party 
 with whom the contract is made can, under such circumstances, 
 possibly require, such restraint must be considered as unreasona- 
 ble in law, and the contract which would enforce it is therefore 
 Toid." 
 
 Before a covenant not to practice medicine in the neighborhood 
 
 ^Holmes v. Martin, 10 Ga. 503; Diinlof) v. Gregory, 10 N. T. 241; Langey. 
 Werk, 2 Ohio St. 520; Thomas v. Miles, 3 Ohio St. 275; Ohappel v. Btock- 
 way, 21 Wend. 157; Hoibrook v. Waters, 9 How. Pr. 335; Wright v. Ryder, 
 36 Cal. 357; Bretcer v. Marshall, 19 N. J. Eq. 537; MitcheL ^f. Reynolds, 1 
 P. Wms. 181; Hitchcock v. Coker, 6 Ad, & £1. 438. 
 
 ^Linn v. Sigshee, 67 111. 81. 
 
 ^Horner v. Graves, 7 Bina;. 743; Hitchcock v. Coker, 6 Ad. & El. 438; Mallan 
 V May, 11 Mees. & W. 653, 664. 666; Baines v. Geary, L. R. 35 Ch. Div. 
 154- Davies v. Daines, L. R. 36 Ch. Div. 359, 396, 397, 398; Ronsillon v. 
 Rousilloi}, L. R. 14 Ch. Div. 363; Nat. Prov. Bank v. Marshall, L. R. 40 
 Ch Div. 112; Diamond Match Co. v. Roeber, 9 Cent. Rep. 181-187, 106 
 N. Y. 473-487; Pollock, Cont. 315. 316. 
 
 *Mallan v. May, 11 Mees. & W. 653, 667; Tallis v. Tallis, 1 El. & Bl. 391. 
 See Printing & Numerical Registering Co. v. Sampson, 32 L. T. N. 8. 
 354, L. R.19Eq. 462, 465. 
 
 ^Hodge v. Sloan, 9 Cent, Rep. 870, 107 N. Y. 244. 
 
 *Hitclicock V. Coker, 6 Ad. & El. 438, 454; Ward v, Byrne, 5 Mees. & W. 548, 
 561; Horner v. Graves, 7 Bing. 753; Whittaker v. Howe, 3 Beav. 383.
 
 PRESUMPTION AS TO LEGALITY OF CONTRACTS. 203 
 
 -can be enforced, evidence must show that it is reasonable under 
 the existing facts.' 
 
 § 47. Presumption as to Legality of Contracts in Partial 
 Restraint of Trade.— Contracts in partial restraint of trade have 
 been said to be presumptively void, and that such presumption 
 can be rebutted only by showing that it was entered into for good 
 reasons, and that the burden of showing the facts rendering the 
 •contract vahd rests upon the party seeking to enforce it.* 
 
 It was said in Mitchel v. Eeynolds, 1 P. Wms. 181, 191, that 
 " whenever such contract stat indiffei enter, and for aught ap- 
 pears, may be either good or bad, the law presumes it prima facie 
 to be bad)' * But this doctrine has been disapproved in England, 
 and it is now said that there is no '' hard and fast rule "that a con- 
 tract in restraint of trade, limited as to space, is invalid; but the 
 validity depends upon the reasonableness of the contract.' Indeed 
 it is now declared that contracts involving the question of inter- 
 ference with trade 2ive prima facie valid.' 
 
 § 48. Contract in Restraint of Trade Legal in Part and 
 Severable.— Although there may be one of the stipulations in a 
 contract which may be considered as illegal, yet this will not 
 defeat a recovery on the other parts of the contract, when the 
 stipulations are divisible and the consideration is not in itself 
 
 illegal." 
 
 A covenant as to place, "in the county of Lehigh or elsewliere," 
 is divisible and valid as to the county.' But a court will only 
 
 ^Mclsutt V. McEioen, 10 Pbila. 112. 
 
 '^RosH V. Sadgbeer, 21 Wend. 166. 
 
 ^See also Mandeville v. Ilarman, 5 Cent. Rep. 625, 42 N. J. Eq. 185. 
 
 *RousUloti V. RousiUon, L. R. 14 Cli. Div. :^51. following Leather Cloth Co. 
 
 V Lorsont 21 L. T. N. S. 661, L. R. 9 Eq. 345, and disapproving Allsopp 
 
 V. Wheatcroft. 27 L. T. N. S. 372, L. R. 15 Eq. 59. 
 "Pollock. C'ont. 315; Mogul Steamship Co. v. McGregor, L. R. 21 Q. B. Div. 
 
 544, 552. 
 ^ Green v. Price, 13 Mees. & W. 695; Price v. Green, 16 Mees & W 346; 
 
 Bank ofAustralmia v. Breillat, 6 Moore, P. C. l^^: i/f/#^M v. TV«(?s?ey, 
 
 3 Barn. & C. 357, 5 Dowl. & R. 228; Keirism v. Cole, 8 East, 231; Mc- 
 
 Allen V. Churchill, 11 Moore, 483. 
 ■^Smith V. Felh 5 Cent. Rep. 208, 113 Pa. 579; Thomas v. MVes, 3 Ohio St. 
 
 274. See Mallan v. May, 11 Mees. & W. 653; Green y. ^^"^f • 13 ^Ifes. 
 
 & W. 695, 16 Mees. & W. 346; Gelpcke v. Dubuque, 68 L. S^ ^^'L 'iC?' 
 
 17 L ed 520; Goodwin v. Clark, 65 Me. 280; Carleton v. "floods 28 IN. 
 
 H 290- Van Dyck v. Van Beuren, 1 Johns. 382; Saratoga Co. Bank v.
 
 2U4 MODIFICATIONS OF THE KULE AS TO CONTRACTS. 
 
 attempt to make a separation of tlie good consideration from that 
 which is illegal in those cases where the party seeking to enforce 
 the contract is not the wrongdoer.' 
 
 "Where an act, though the resnlt of an unlawful contract, is 
 itself lawful, it may form the consideration for a lawful agree- 
 ment, — as, for instance, the actual transfer of stock, the agreement 
 for which was illegal.* 
 
 So an agreement between former partners in an illegal business, 
 to defend their former agents against criminal prosecution, is not 
 tainted by the illegality of the business.^ 
 
 The general rule is that where the illegal is so interwoven 
 with the material portion of the contract that it cannot be 
 severed from the legal part of the covenant, the contract is alto- 
 gether void. If the connection between the evil and good be 
 such as to make the consideration an entirety, and incapable of 
 severance, the whole promise is void; otherwise it may be upheld 
 by the good * where it can be so severed, whether the illegality be 
 created by the statute or by the common law; the illegal or vicious 
 part may be rejected and the lawful, reasonable and just portion, 
 retained.^ 
 
 Agreements in restraint of trade, whether under seal or not, 
 may, like any other form of contract, be either indivisible or divis- 
 ible. Where one part thereof is void as being in restraint of 
 
 King, 44 N. Y. 89; Leaeitt v. Palmer, 3 N. Y. 19; Hook v. Gray, 6 Barb. 
 
 398; Tracy v. Talmage, 14 N. Y. 162; Leavitt v. Blatcliford, 5 Barb. 9. 
 
 See Benj. Sales, § 505; Carrigan v. Lycoming F. Ins. Co. 53 Vt. 418;. 
 
 Lange v. Werk, 2 Ohio St. 519; Widoe v. Webb, 20 Ohio. St. 431; Hynds v. 
 
 Bays, 25 Ind. 31; Kimbrough v. Lane, 11 Bush, 556; Neioberry Bank v. 
 
 Stegall, 41 Miss. 142; Valentine v. Stewart, 15 Cal. 387. 
 ^Saratoga County Bank v. King, 44 N. Y. 87. 
 ''Tyler v. Tyler, 126 111. 525, 9 Am. St. Rep. 642. 
 ^Hutchinson v. Dornin, 23 Mo. App. 575. 
 '^Webb V. Allington, 27 Mo. App. 559. 
 ^Pickering v. R. R. Co. L. R. 3 C. P. 250, citing Maleverer v. RedsMtu, 1 Mod. 
 
 35; Collins v. Blantern, 2 Wils. 351; United States v. Bradley, 35 U. S. 
 
 10 Pet. 343, 9 L. ed. 448: Deering v. Chapman, 22 Me. 488; Rjby v. West, 
 
 4 N. H. 285; Coburn v. Odell, 30 N. H. 540; Woodruff v. Hinman, 11 Vt. 
 
 592; Frazier v. Thompson, 2 Watts & S. 235; Ragvet v. Roll, 7 Ohio, 70; 
 
 McBralney v. Chandler, 22 Kan. 692; Emrhart v. Puckett, 73 Ind. 409; 
 
 Anderson v. Powell, 44 Iowa, 20; Waite v. Jones, 1 Scott, 730; Netoman 
 
 V. Neicman, 4 Maule «fe S. 66; Ga^kell v. King, 11 East, 165; Wigg v. 
 
 Shiiftleworth, 13 East, 87; Ladd v. Uiillngham, 34 l\le. 816; Rosev. Truax,. 
 
 21 Barb. 361; Donallen v. Lennox, 6 Dana. 91; Langdony. Gray, 52 How. 
 
 Pr. 387; Tobey v. Robinson, 99 111. 222.
 
 CONTRACT IN KESTRAINT OF TRADE LEGAL IN PART. 205 
 
 trade, while the other is not, the court will 2;ive effect to the lat- 
 ter if it is capable of independent enforcement and will not hold 
 the agreement to be altogether void.' 
 
 Illegality of one provision in such a contract will not necessar- 
 ily make the entire contract void.'' 
 
 AVliere a contract consists of divisible restrictions, some of which 
 are unreasonable, and others are sustainable as not going beyond 
 the interest to be protected, the part that is unreasonable may be 
 rejected and the other enforced. Thus a stipulation not to engage 
 in a particular trade for a limited time, " in the city of St. Louis, or 
 at any other place," was held only to restrain the party within the 
 city of St. Louis,' and the same rule has been applied elsewhere." 
 
 But in Bishcyp v. Palmer, 6 New Eng. Rep. 129, 146 Mass. 
 •469, where the contract was not to engage in trade for live years, 
 without any limit as to space, and not to enter into the cotton waste 
 business in the city of Fall River for five years, it was held that 
 as the promise not to engage in trade without limit of space was 
 void, as it tends to injure the public, it is deemed a vicious one, 
 and rests upon the same ground as though forbidden by statute,^ 
 and the promise being for one entire consideration, a part of 
 which is fraudulent, immoral or unlawful, and there being no 
 means of apportionment furnished by the parties themselves, no 
 action would lie upon the promise. As the bad part of the con- 
 tract is not severable from the good, the whole promise fails.'' 
 It was contended that the defendants, by being unable to enforce 
 the stipulation in question, only lose what they were bound to 
 know was legally null; that they have all they supposed they 
 were getting, namely, a promise which might be kept, though 
 
 Oregon Steam Nav. Co. v. Winsor, 87 U. S. 20 Wall. 64, 23 L. ed. 215. 
 
 ^Western U. Teleg. Co. v. Bnrlinyton d S. B. Co. 11 Fed. Rep. 1. 
 
 ^Peltz V. mchell, 62 Mo. 171. 
 
 *Smith V. Fell, 5 Cent. Rep. 208, 113 Pa. 579; Bean v. Emerson, 102 Mass. 
 
 480; Beard v. Dennis, 6 Ind. 300; Smith's App. 5 Cent. Rep. 209, 113 Pa. 
 
 579; Lange v. Werk, 2 Ohio St. 520. 
 ^Rynds v. Haps, 25 Ind. 31, 36; While v. Buss, 3 Cush. 449. 
 ^See Robinson v. Oreen, 3 Met. 161; Rand v. Mather, 11 Cush. 1; Woodruff 
 
 V. Wentworth, 133 Mass. 309, 314; Bliss v. Negus, 8 Mass. 51; Clark v. 
 
 Bicker, 14 N. H. 144; Woodruff y. Hinman, 11 Vt. 592; Pickering v. llfra- 
 
 comb R. Co. L. R. 3 C. P. 250; Harrington v. Victoria Craving Dock Co. 
 
 L. R. 3 Q. B. Div. 549; 2 Chittv, Cont. (11th Am. ed.) 972; Leake, Cont. 
 
 779, 780; Pollock, Cont. 321; Met. Cont. 247.
 
 206 MODIFICATIONS OF THE RULE AS TO CONTKACTS. 
 
 incapable of legal enforcement, and that if they were content to- 
 accept such a promise, and if there is anotlier good and sufficient 
 consideration, they may be held upon their promise. But the 
 court deny that the argument can properly extend to a case 
 where a part of an entire and inseparable consideration is posi- 
 tively vicious, however it might be if it were simply invalid, as in 
 Parish v. Stone, 14 Pick. 198. The fact that the plaintiff had 
 not failed to perforin his promise not to engage in the business 
 mentioned, does not enable him to maintain his action. 
 
 An illegal consideration may be actual, substantial and valuable,, 
 but it is not in law sufficient. It may be that if defendants were 
 to sue the plaintiff on the contract, they could, so far as the ques- 
 tion of legality is concerned, maintain the action upon all its parts 
 except the single covenant.' It might be that if defendants pay 
 to plaintiff the entire sum called for by the contract, they can call 
 upon him to perform all of his agreements, except such as are 
 unlawful. In such case they would merely waive a part of what 
 they were to receive and recover or enforce the rest, but the court 
 denied that this fact gave a right of action to the plaintiff, when 
 a part of the consideration of the promise was illegal. The defend- 
 ants were at liberty to repudiate the contract on this ground, and 
 liaving done so, tJie plaintiff cannot maintain an action on his 
 contract for the purchase price agreed upon for the sale of his 
 !)usiness. What other liability the defendants might be under to 
 the plaintiff by reason of what they may have received under the 
 contract, of course, is another question. 
 
 § 49. Partial Restriction of Trade not Permissible by 
 Corporations. — But the ordinary rule that contracts in partial 
 restraint of trade are not invalid, does not apply to corporations 
 engaged in a public business and in furnishing that which is a 
 matter of public concern. If there be any sort of business which 
 from its particular character can be restrained to no extent what- 
 ever without prejudice to public interest, the courts would be 
 compelled to hold void any contract imposing any restraint, how- 
 ever partial, on such corporate business, where it is shown that 
 
 ^MaHnn v. May, 11 Mees. & W. 653; Green v. Price, 13 Mees. & W. 695, 1& 
 Mees. & W. 346.
 
 EESTKICTION OF TKADE NOT PERMISSIBLE BY CORPORATIONS. 20 T 
 
 such partial restrtiint must be regarded as prejudicial to public 
 interest.' 
 
 There may be cases where a corporation may abandon a public 
 work for reasonable cause,' but this presents altogether a different 
 question for determination, from that presented when a corpora- 
 tion attempts to disable itself by contract from the performance 
 of a duty to the public' 
 
 Certainly a court of equity will not aid either party in the en- 
 forcement of a contract by which a corporation abandons a public 
 duty.* 
 
 At the present day there is not that danger, resulting to the 
 public from contracts restraining trade as formerly, or at least it does 
 not seem to exist to an appreciable extent — except possibly as sug- 
 gested in the case of corporations. In their supervision and in 
 their restriction within tlie limits of their chartered powers, the 
 government and the public are directly interested. Corporations 
 are great engines for the promotion of the public convenience and 
 for the development of public wealth, and so long as they are 
 conducted for the purposes for which organized they are a public 
 benefit; but if allowed to engage, without supervision, in subjects 
 of enterprise foreign to their charters, or if permitted unrestrain- 
 edly to control and monopolize the avenues to that industry in 
 which they are engaged, they become a public menace, against 
 which public policy and statutes design protection. 
 
 It seems where the provisions of corporate agreements in re- 
 straint of competition tend beyond measures of self protection 
 and threaten the public good in a distinctly appreciable manneiy 
 courts, in the exercise of their equitable powers, may interfere, 
 
 ^West Va. Transp. Co. y. Ohio River P. L. Co. 22 W. Va. 600; Craft v. M&- 
 Conoughy, 79 111. 346; Chicago Gaslight & C, Co. v. People's Gaslight <& C 
 Co. 11 West. Rep. 69, 121 111. 530. 
 
 ^ State V. Netc Haven <& N. Co. 41 Conn. 134. See People v. Colorado C R 
 Co. 42 Fed. Rep. 638. " ' 
 
 ^Chicago Gaslight <& C. Co. v. People's Gaslight <& C. Co. 11 West. Rep. 69, 
 121 111. 530; West Virginia Transp. Co. v. Ohio River P. L, Co 22 w' 
 Va. 600. 
 
 *West Virginia Transp. Co. v. Ohio Eiver P. L. Co. 22 W. Va. 600; State v 
 Hartford &N. H. R. Co. 29 Conn. 538: St. Louis, J. & C. R. Co. v. 'Mathers 
 71 111. 592; Chicago Gaslight & C. Co. v. People's Gaslight & C Co 11 
 West. Rep. 69, 121 111. 530; Hartford <& iV. H. R. Co. v. Mw York & N 
 E. R. Co. 3 Robt. 411.
 
 208 MODIFICATIONS OF THE KULE AS TO CONTRACTS. 
 
 but should not do so unless the apprehension of danger to the 
 13ublic interests rests upon evident grounds.* 
 
 In Chicago Gaslight d; C Co. v. People's Gaslight <& C. Co. 11 
 West. E.ep. 69, 121 III. 530, the defendant company claiming as 
 the assignee of the exclusive privilege in the territoiy set oti: to 
 it, filed a bill against the other for a specific performance of the 
 contract of assignment. The court refused the rehef sought, 
 holding "that by the grant of the second charter tlie Legislature 
 intended to do away with the monopoly," granted under tlie first; 
 "that although the contract involved a partial restraint of trade, 
 and therefore might not, by the general rule of law, be invalid, 
 yet that the general rule does not apply to corporations engaged 
 in a public business in which the public have an interest," and 
 that the contract was void. 
 
 If, as has been repeatedly ruled, clothing a corporation with the 
 power of eminent domain so stamps the business of such corpora- 
 tion with a public character, that that business may not be re- 
 stricted by private contract," there is no reason why the same 
 public character should not attach to a corporation which is vested 
 with the right and power to tear up and use the streets of a great 
 city. The fee of the streets, or at least the control of the streets, 
 is vested in such city for the benefit of the public. Any business 
 which requires their use, requires the use of property which be- 
 longs either absolutely or unrestricted, so far as the public service 
 i-equires control, to the public.^ 
 
 Thus where a gas company has the exclusive privilege under its 
 charter of supplying the city of Chicago for ten years, a contract 
 ■during that period, foregoing that exclusive right within a part of 
 such territory, would be valid as parting only with the j^rivilege 
 conferred for the benefit of the company; but, where, after the 
 expiration of such exclusive privilege, when another corporation 
 
 ^Leslie v. Lorillard, 1 L. R. A. 456, 110 N. Y. 519. 
 
 ^Peoria & R. I. R. Co. v. Coal Valley Min. Co. 68 111. 489; Thomas v. West 
 Jersey E. Co. 101 U. S. 83, 25 L. ed. 952; St. Louis v. St. Louis GasUqht 
 Co. 70 Mo. 69; State v. Hartford & N. E. R. Co. 29 Conn. 5B8; Hartford 
 & N. H. R. Co. V. Neic Ym'k & N. E. R. Co. 3 Robt. 411; St. Louis, J. 
 & C. R. Co. V. Mathers, 71 111. 592; West Virginia Imnsp. Co. v. Ohio 
 River P. L. Co. 22 W. Va. 600. 
 
 ^Western U. Teleg. Co. v. American U. Teleq. Co. 65 Ga. 160; Ghicaqo Gas- 
 light & C. Co. V. Peoples Gaslight & C. Co. 11 West. Rep. 69, 121 111. 530.
 
 KESTKICTION OF TRADE NOT PEKMISSIBLE BY COKPOKATIONS. 209 
 
 likewise authorized to supply the gas had entered upon the dis- 
 cliarge of its duties under its charter, and had laid mains and pipes 
 east of the Chicago Kiver, and the company wdiose exchisive priv- 
 ilege had expired had laid mains and pipes west of the river, a con- 
 tract providing for the exchange of these properties, under which 
 forty thousand dollars was paid by the company laying its mains east 
 of the Chicago River, to the company formerly owning the exclu- 
 sive privilege for the excess in value of the latter's interest on the 
 west side over the value of the former company's interest east of 
 the river, and transferring to such company the interest of the 
 company lately holding the monopoly, and its contract with the 
 city for lighting the lamps on the west side, both parties covenant- 
 ing, each with the other, to use such reasonable and proper influ- 
 ence as they respectively may have with the authorities of the 
 city of Chicago, to procure a division of said contract, and a new 
 and independent contract between said city and the company fur- 
 nishing gas in the west division, each covenanting that it will not, 
 for one hundred years, interfere with the other in the territory in 
 which the exchange of property has been effected — this agreement 
 M'as determined to be one which tends to create and perpetuate a 
 monopoly in the furnishing of gas to the city, and therefore against 
 })ublic policy, and as to each of the corjsorations, is ultra vires.^ 
 
 To a contract thus perpetuating a monoi)oly, the ordinary rule 
 invalidating a contract of restraint, which has no reasonable limit 
 as to time, must apply, for there is nothing in the nature of a 
 franchise which makes a contract between parties in reference to 
 time less obligatoiy than one made in reference to other matters.^ 
 
 The exercise and use of franchises of a corporation for the ben- 
 efit of the public is a condition on which it is allowed to be cre- 
 ated and maintained; and when it voluntarily declines to fulfill 
 this condition or places itself in a situation, as a consequence of its 
 voluntary action, in which that may be prevented, it may be an- 
 nulled.^ 
 
 An agreement between two gas companies, of the same city, 
 
 ^Chicago Gaslight <& C. Co. v. People's Gaslight & C. Co. 11 West. Rep. 63, 
 121 111. 530. 
 
 ^Morris v. The Leona, 67 Tex. 303. 
 
 ^People V. North River Sugar Bef. Co. 5 L. R. A. 387, 54 Hud, 351 
 
 14
 
 210 MODIFICATIONS OF THE RULE AS TO CoNTKACTS. 
 
 for the a1>iin(loninent by one of the companies of the discliarge of 
 its duties to the pubHc, and that the price of gas as tixed tlierel)y 
 should not be changed below a certain specified rate without the 
 consent of the other, especially where one of the companies is pro- 
 hibited by statute from entering into such a contract, is an illegal 
 contract. 
 
 .The supplying of illuminating gas is in its essence a business of 
 a public nature, to meet a public necessity; and where such busi- 
 ness cannot be restrained without prejudice to the pul)lic interest, 
 and it is hardly conceivable that such restraint can otherwise re- 
 sult, contracts imposing such restraints, however partial, will not 
 be enforced or sustained, because in contravention of public pol- 
 icy. It may be stated, as a sound rule, that a corporation cannot 
 disable itself by contract from performing the public duties which 
 it has undertaken, nor, by agreement, coni})el itself to make pub- 
 lic accommodation subservient to its private interests.' 
 
 ^GMs V. Consolidated Gas Co. 130 U. S. 396, 32 L. cd. 1)79.
 
 CITAPTEP. X. 
 
 MONOPOLY. 
 
 § 50. Monopoli/ as Opposed to Popular Government. 
 
 51. Monopolii Based upon Op2Jression and Usurpation of the Rights 
 
 of Others. 
 
 52. Combinations to Control the Necessaries and Comforts of Life. 
 
 53. Effect of Constitutional Provisions Pcgarding Monopolies. 
 
 54. Combinations Tending to Impede Competition, Illegal. 
 
 § 50. Monopoly as Opposed to Popular (joverimient. — In 
 
 the public interest a inono})oly is sometimes allowed in order to 
 promote the puldie health or the public security, or increase pub- 
 lic comfort, or to secure aid to the govermnent in the develop- 
 ment of some public enterprise, or the more efficient carrying for- 
 ward some great public undertaking.' But the government itself 
 usually retains a control over such monopoly, to prevent it being 
 used as an instrument of oppression on for the purpose of irregu- 
 lar and inordinate private gain. In itself the very idea of mo- 
 nopoly is contrary to the genius and spirit of free institutions and 
 o-overnment. It is in conflict with constitutional precedents and 
 destructive of free institutions. 
 
 Where, by an amendment to the charter of a gas company 
 authorizing it to lay its pipes through the streets and public grounds 
 of a citv, it is provided that the rights shall be exclusive except as 
 against such other persons as may be authorized by Legislature, 
 sucli provision is held to constitute a monopoly which is not enti- 
 tled to protection in equity, and an injunction will not be allowed 
 to prevent another company from laying down its gas pipes.* 
 
 Wliile there may be no direct constitutional provision or declar- 
 
 ^Slaughier Rouse Cases, 83 U. S. 16 Wall. 36, 21 L. ed. 394; Mw Orleans 
 Waterworks Co. v. Ricers, 115 U. S. 674, 29 L. ed. 525; New Orleans Gas- 
 liqld Co. V. La. Liglit & Heat Co. 115 U. S. 650, 29 L. ed. 516; Louisville 
 Gas Co. V. Citizens Gaslight Co. 115 U. S. 683, 29 L. ed. 510. 
 
 *Noricicfi Gaslight Co. v. Noricich, City Gas Co. 25 Conn. 19 ; High, loj. 
 333. 
 
 211
 
 212 MONOPOLY. 
 
 atory legislation against a monopoly, yet the very nature and 
 essence of a free government is opposed to monopolies, and the 
 usual Bill of Rights appearing in most state constitutions, which 
 declares in terms or in effect tliat no man or set of men are enti- 
 tled to exclusive public emoluments or pri\ileges from the com- 
 munity, indicates this hostility.' 
 
 As a general rule no aoreement will be sustained, the effect of 
 which would be to fasten on the community the monopoly of an 
 important staple or industry, although it has been held in Massa- 
 chusetts that an agreement not to run an opposition stage between 
 Boston and Providence was valid, on the ground that the act com- 
 plained of was a breach of trust;' and the same reason may be 
 applied to a ruling made shortly afterwards sustaining an agree- 
 ment not to compete for seven years in the northwest trade." 
 
 § 51. Monopoly Based upon Oppression and Usurpation of 
 the Rights of Others. — Monopolies are in opposition to the en- 
 joyment of common rights and are in fact the usurpation of such 
 rights.* 
 
 The oppressive nature of the principle upon which a monopoly 
 is rested will clearly appear if applied to the usual trades and 
 employments in life. The granting of the exclusive right to 
 engage in such vocations would be repudiated in all communities 
 as an invasion of conmion right. The State may undoubtedly 
 require many kinds of business to be carried on beyond the thickly 
 settled portions of a city, or even entirely without its limits, 
 especially if attended with odors and noises which affect the 
 health or disturb the peace of the neighborhood; but even the 
 
 '4 Bacon, Abr. p. 764, title Monopoly; 4 Bl. Com. 160; Hindmarch, Patents, 
 chap. 2, p. 7 et seq. 
 
 ^Pierce v, Fnller, 8 Mass. 223. 
 
 ^Perkins v. Lyman, 9 Mass. 522. 
 
 *Norwich Gas Light Co. v. NoncicJt City Gas Co. 25 Conn. 19; People v. 
 JS'orth River Sugar Ref. Co. 2 L. R. A. 33, 22 Abb. N. C. 164; Slaughter 
 House Cases, 83 U. S. 16 Wall. 102, 26 L. ed. 417; Hudson v. Thorne, 7 
 Paige, 261, 4 L. ed. 148; Chicago v. Ruinpff, 45 111. 90; Live Stock £>. <fc 
 B. Asso. V. Crescent City L. S. L. tfc S. H. Co. 1 Abb. U. S. 388; Rex v. 
 Waddington, 1 East, 167; Central Ohio Salt Co. v. Guthrie, 35 Ohio St. 
 672; The Case of Monopolies, 11 Coke, S^b./Brenham v. BrenhamWater 
 Co. 67 Tex. 561; Craft v. McConoughy, 79 111. 346; Slaughter House Case, 
 1 Woods, 21; Skrainka v. Scharringhausen, 8 Mo. App. 523; Arnot v. 
 Pittston & E. Coal Co. 68 N. Y. 558; Western U. Teleg. Co. v. American 
 V. Teleg. Co. 65 Ga. 160; Hoffman v. Brooks, 11 Week. L. Bull. 358; Al 
 ger v. Thacher, 19 Pick. 51.
 
 COMBINATIONS TO COXTKOL THE XECESiJAKlKS OF LIFE. 213 
 
 exercise of tliis necessary power does not warrant the granting to 
 particular classes or corporations a monopoly of the business thus 
 permitted.' 
 
 An ordinance preventing a citizen from engaging in a particu- 
 lar business in a certain locality, while it permits another to so 
 engage, is oppressive and void.* 
 
 A contract between a citv and an attornev, declarino- itself irre- 
 vocable, and giving to the attorney annually for twenty years, one 
 third of all rents and receipts from ferry and bridge privileges, 
 and mutually binding the parties to do no act and to make no con- 
 tract interfering with its terms, is in contravention of public policy 
 and cannot be enforced.' 
 
 Power exercised to conti-ol business or trade by the combina- 
 tion of selfish interests, for the sake of private gain — to ruin the 
 many to enrich the few — undermines tlie very principle which 
 sustains a government of tlie people for the good of the many 
 rather than for the profit of the few, at the expense of the man}'. 
 These two conflicting aims cannot exist long in a government 
 without working its destruction as a free State, Monopoly destroys 
 individual rights and freedom of individual action, and enables 
 vast combinations of wealth, influence and selfish energy, to crush 
 private enterprise and competition. 
 
 § 52. ComMiiations to Control the Necessaries and Com- 
 forts of Life. — All such combinations, whether calculated to con- 
 trol the necessities of life or simply the ordinary comforts and 
 conveniences introduced by advancing civilization, should meet the 
 active opposition of both legislative, executive and judicial power,* 
 
 ^Butchers U. 8. H. cfe L. S. L. Co. v. Crescent City L. 8. L. & 8. R. Co. Ill 
 U. S. 764, 28 L. ed. 589. 
 
 «Com V, Bearse, 132 Mass. 551; Myers v. Baker, 9 West. Rep. 490, 120111. 
 567; Tug man v. Chicago, 78 111. 405; Chicago v. Jlumpff, 45 111. 90. 
 
 ^Waferbury v. Laredo, 68 Tex. 565. 
 
 *The Case of Monopo'ies, 11 Coke, 84 b; Rex v. Waddinqton, 1 East, 167; 
 People V. North River Sugar Ref. Co. 2 L. R. A. 33, 22 Abb. N. C. 164; 
 Com. V. Hunt, 45 Mass. lil; Com. v. Wallace, 16 Gray. 221; Com. v. Prius, 
 9 Gray, 127; Com. v. Eastman, 1 Cush. 189; Alger v.' Thacher, 19 Pick. 51; 
 Morris Run Coal Co. v. Barclay Coal Co. 68 Pa. 173; Crawford v. Wick, 
 18 Ohio St. 190; Central Ohio Salt Co. v. Guthrie, 35 Ohio St. 666; Marsh 
 V. Russell, 66 N. Y. 288; Kelley v. Devlin, 58 How. Pr. 487; Woodruff v. 
 Berry, 40 Ark. 251; Hooker v. Vandewater, 4 Denio, 349; 8lanton v. 
 Allen, 5 Denio, 434; Craft v. McConoughy, 79111. 346; Raymond v. LeaHit, 
 46 Mich. 447, 41 Am. Rep. 170; Re Richmond Retail Coal Co., (Pa.) 9 Ry. 
 & Corp. L. J. 31.
 
 214 MONOPOLY. 
 
 as, an agreement to absorb and monopolize the transportation of 
 a community.' 
 
 Whatever may be the immediate effect of such monopoly, 
 though at its inception it may reduce prices for the purpose of 
 crushing existing competition, its final result is to vest in those in 
 control of the monopoly the absolute iixing of values. It does 
 not do this upon the natural law, of supply and demand, but cre- 
 ates an artificial scarcity of the article, to be filled only upon com- 
 [)liance with its terms. It lias repeatedly been condemned by the 
 courts as unlawful. Agreements to create a monopoly and to sti- 
 fle competition in trade are void, and conspiracies to control trade 
 are indictable even at common law and should be met with firm 
 resistance among a free and in(k'i)endent people, desirous of main- 
 taining commercial liberty." 
 
 That combinations to control the necessities or comforts of civ- 
 ilized communities should be resisted by legislative power, is 
 shown in the enactments of many of the states and in the Act of 
 Congress, approved July 2, 1890, entitled "An Act to Protect 
 Trade and Connnerce against Unlawful Restraints and Monopo- 
 lies," as follows: 
 
 "Be it enacted by the Senate and House of Representatives of 
 the United States of America in Congress assend)led, 
 
 "Sec. 1. Every contract, combination, in the form of trust or 
 otherwise, or consiMracy, in I'estraint of trade or commerce among 
 the several states, or with foreign nations, is hereby declared to 
 be illegal. Every person who shall make any such contract or 
 engai>;e in any such condiiiuition or conspiracy shall he deemed 
 guilty of a misdemeanor, and, on conviction thereof shall be pun- 
 ished by fine not exceeding $5,000, or by imprisonment not ex- 
 ceeding one year, or by both said punishments, in the discretion 
 of the court. 
 
 "Sec. 2. Every person who shall monopolize, or attempt to mo- 
 nopolize, or combine or conspire with any other person or ]:>ersons 
 to monopolize, any part of the trade or commerce among the sev- 
 
 ^Hooker v. Vaiidewater, 4 Denio, 349; Stanton v. Allen, 5 Denio, 4'M; Ma- 
 
 guire v. i:imock\ 42 Iiid. 1. 
 ^People V. North River Sugar Ref. Co. 3 L. R. A. 33, 22 Abb. N. C. 164; Rex 
 
 V. Cope, 1 Strange, 144; Rex v. De Berenger, 3 Maule & S. 68; Rc.v v. 
 
 Norris, 2 Ld. Ken. 300; Reg. v. Gvrncy, 11 Cox, Cr. Cas 414; Levi v. 
 
 Levi, 6 Car. & P. 239.
 
 COMBINATIONS TO CONTKOL THE NECESSARIES OF LIFE. 215 
 
 ■eral states, or with foreic^ii nations, shall be deemed guilty of a 
 misdemeanor, and, on conviction thereof, shall be punished by fine 
 not exceeding five thousand dollars, or by imprisonment not ex- 
 ceeding one year, or by both said punishments, in the discretion 
 of the court. 
 
 "Sec. 3. Every contract, combination, in form of trust or other- 
 wise, or conspiracy, in restraint of trade or commerce in any Ter- 
 ritory of the United States or of the District of Columbia, or in 
 restraint of trade or commerce between any such Territory and 
 another, or between any such Territory or territories and any State 
 or states or the District of Columbia, or with foreign nations, or 
 between the District of Columbia and any State or states or for- 
 eign nations, is hereby declared illegal. Every person who shall 
 make any such contract or engage in any such combination or 
 conspiracy, shall be deemed guilty of a misdemeanor, and, on con- 
 viction thereof, shall be punished by fine not exceeding five 'thou- 
 sand dollars, or by imprisonment not exceeding one year, or by 
 both said punishments, in the discretion of the court. 
 
 "Sec. 4. The several circuit courts of the United States are 
 hereby invested with jurisdiction to prevent and restrain viola- 
 tions of this Act; and it shall be the duty of the several district 
 attorneys of the United States, in their respective districts, under 
 the direction of the Attorney-General, to institute proceedings in 
 equity to prevent and restrain such violations. Such proceedings 
 may be by way of petition setting forth the case and praying that 
 such violation shall be enjoined or otherwise prohibited. When 
 the parties complained of shall have been duly notified of such 
 petition the court shall proceed, as soon as may be, to the hearing 
 and determination of the case; and pending such petition and be- 
 fore final decree, the court may at any time make such temporary 
 restraining order or prohibition as shall be deemed just in the 
 premises. 
 
 "Sec. 5. Whenever it shall appear to the court before which 
 any proceeding under section 4 of this Act may be pending, that 
 the ends of justice require that other parties should be brought 
 before the court, the court may cause them to be summoned, 
 whether they reside in the district in which the court is held or 
 not; and subpoenas to that end may be served in any district by 
 the marshal thereof.
 
 216 MONOPOLY. 
 
 "Sec. 6. Any property owned under any contract or by any 
 combination, or pursuant to any conspiracy (and being the subject 
 thereof) mentioned in section 1 of this Act, and being in the course 
 of transportation from one State to another, or to a foreign coun- 
 try, shall be forfeited to the United States, and may be seized and 
 condemned by like proceedings as those provided by law for the 
 forfeiture, seizure and condemnation of property imported into 
 the United States contrary to law. 
 
 ''Sec. 7. Any person who shall be injured in his business or 
 property by any other person or corporation by reason of anything 
 forbidden or declared to be unlawful by this Act, may sue there- 
 for in any circuit court of the United States in the district in 
 which the defendant resides or is found, without respect to the 
 amount in controversy, and shall recover threefold the damages 
 by him sustained, and the costs of suit, including a reasonable at- 
 torney's fee. 
 
 "Sec. 8. That the word 'person' or 'persons,' wherever used in 
 this Act, shall be deemed to include corporations and associations 
 existing under or authorized by the laws of either the United 
 States, the laws of any of the territories, the laws of any State, or 
 the laws of any foreign country." 
 
 j^or can the obligations under which the courts rest to enforce 
 such legislation be more clearly shown than in an opinion pro- 
 nounced by Jiidge Key in the United States Circuit Court for the 
 Middle District of Tennessee, where suit was brought to enjoin 
 certain coal mining companies from unlawfully combining to re- 
 strain interstate trade and commerce in coal at Nashville contrary 
 to the provisions of the United States statute. 
 
 On September 25, 1890, a petition for injunction was filed set- 
 ting forth as follows: 
 
 That the defendants, a number of whom are Kentucky mining 
 companies, and another number are coal dealers in Nashville, 
 Tennessee, secretly entered into an illegal contract and combina- 
 tion in the form of a trust, and entered into a conspiracy with one 
 another, and engaged at Nashville in a combination and conspiracy 
 which restrained the trade and commerce in coal at Nashville be- 
 tween the states of Kentucky, Alabama and Tennessee. 
 
 That the defendants combining and confederating, by articles
 
 COMBINATIONS TO CONTKOL THK NEUKSSSAKIES VF LIFE. 217 
 
 of agreement more particularly set forth in tlie decision (see de- 
 cision j, under the name of the ''Nashville Coal Exchange" monop- 
 olized the trade in coal which is produced in Kentucky and shipped 
 from thence to Nashville, Tennessee, contrary to the provisions 
 of this Act. The prayer of the petition is that the defendants be 
 enjoined or otherwise prohibited from violating the provisions of 
 the said Act of Congress and that they be enjoined and restrained 
 from further monopolizing and carrying on the coal trade in Nash- 
 ville under the combination and confederation as aforesaid. 
 
 A brief abstract of the ai-guinent and citations of authorities of 
 counsel in the case is of value. Mr. John Ruhm, U. S. Atty., 
 for complainant insisted that the power of Congress to enact the 
 statute which is the basis of this lawsuit is derived from U. S. 
 Const,, art. 1, § 8, subsecs. 3, 18, giving Congress power to regu- 
 late commerce among the states. This power is unlimited and 
 paramount; it is co-extensive with the entire field of commerce.' 
 
 Interstate commerce consists of traffic and transportation be- 
 tween the states; and Congress may regulate tiie traffic, or the 
 transportation, or both.^ 
 
 The power to regulate is unlimited, so long as it is confined to 
 interstate commerce.^ 
 
 Congress may confer little, or much, or all jurisdiction upon 
 the existing inferior federal cijurts, oj" may create other courts and 
 clothe them with jurisdiction in all matters, where the subject of 
 legislation is within the power delegated by the Constitution.* 
 
 In the absence of a statute the United States may become a 
 
 ' Welton V. Missouri, 91 U. S. 275, 23 L. ed. 347; Gibbons v. Ogden, 22 U. S. 
 9 Wheat. 16, 6 L. ed. 23; United Hlatsf, v. Marigold, 50 U. S. 9 How. 
 560, 13 L. ed. 257; Hare, Am. Con.«t. Law, 438. 
 
 ^Mobile County v. Kiynhall, 102 U. S. 691, 26 L. ed. 238; Welton v. Missouri, 
 91 U. S. 275. 23 L. ed. 347; Gibbons v. Ogden, 22 U. S. 9 Wheat. 16, 6 
 L. ed. 23; Broicn v. Mart^Uind. 25 L'. S. 12 AVheat. 419, 6 L. ed. 678; 
 Groves v. S'aughter, 40 U. S. 15 Pet. 449. 10 L. ed. 800: United States v. 
 Bailey, 1 McLean, '234; Brig Wilson v. United States, 1 Brock. 423; Unit- 
 ed States V. Marigold, 50 U. S. 9 How. 560, 13 L. ed. 257; Kidd v. Fear- 
 son, 128 U. S. 20, 32 L. ed. 350. See also State v. Welton, 55 Mo. 228; 
 People V. Brooks, 4 Denio, 46^; Ogden v. Gibbons, 4 Johns. Ch. 150, 1 L. 
 ed. 797; State v. Delaware, L. & W. R. Co. 30 N. J. L. 473, 31 N. J. L. 
 531. 
 
 ^Kidd V. Pearson, 128 U. S. 20, 32 L. ed. 350; Tiedeman, Pol. Powers, p 202. 
 "United States v. Union Par. R. Co. 98 U. S. 596, 25 L. ed. 150; Osborn v. 
 United States Bank, 22 U. S. 9 Wheat. 826, 6 L. ed. 225.
 
 218 MONiJl'Ol.V. 
 
 party to a suit in the federal courts brought in its own name where 
 it has a pecuniary interest.' 
 
 Or where the subjeet-niatter arises under an Act of Congress, 
 or wliere a fraud has been committed in a matter arising under an 
 Act of Congress." 
 
 The power of Congress to expressly authorize a suit in the fed- 
 eral courts in tlie name of tiie I'nited States has never been (ques- 
 tioned.* 
 
 At connnoii law contracts are held void: 
 
 "1. Where their effect is in general restraint of trade. 
 
 "2. Where the I'estraint is partial (tnly, either as to time or place, 
 but where it is unreasonable, or where it injuriously alfects the 
 ])ublic, or where there is no consideration to support it. 
 
 "3. Where there is a combination to stitle competition, or to con- 
 trol the prices of the necessaries of life. 
 
 "4. What is an nnreasonai)le restraint, and whether or not the 
 contract is injurious to the public, is always a question of law for 
 the court, to be determined from the face of the contract.* 
 
 "5. Courts will not inrpiire whether or not the agreement entered 
 into has in fact caused an injury to the public or has caused an 
 unreasonable restraint. The inquiry merely is whether the agree- 
 ment has a tendency to produce the eifect.^ 
 
 "The present statute adopts these principles of the common law 
 so far as they relate to interstate cttmmerce, but goes one step 
 further and removes the dithculty of investigating whether the 
 
 ' United States v. Barker, 25 U. S. 12 Wheat. 559, 6 L. ed. 728. 
 
 -United states v. Saji Jacinto Tin Co. 125 U. S. 273, 31 L. ed. 747. 
 
 3 United States v. San Jacinto Tin Co. 125 U. S. 273, 31 L. ed. 747; Jessi/p v. 
 United States, 106 U. S. 150, 27 L. ed. 86; United States v. Tinge.i^, 30 U. 
 S. 5 Pet. 115, 8 L. ed. 66; United States v. Bradley, 35 U. S. 10 Pet. 343, 
 9 L. ed. 448; United States v. fAiiu, 40 U. S. 15 Pet. 290. 10 L. ed. 742; 
 Nashville v. Cooper, 73 U. S. 6 Wall. 251, 18 L. ed. 852. 
 
 n Wharton, Cont. § 433; Bishop, Cont. S 517; 2 Pom. Eq. Jur. g 934. 
 ^Mitchel V. Reynolds, 1 P. Wms. ISl, and note in 1 Smith, Lead. Cas. 9th 
 Am. ed. 712 et seq.; Angier v. Webber, 14 Allen, 211, and editorial note, 
 92 Am. Dec. 751; Leslie v. LoriUard, 1 L. R. A. 456. and note, 110 N.Y. 
 519; Arnot v. Pitiston & E. Coal Co. 68 N. Y. 558; Craft v. McConomhy, 
 79 111. 346, 22 Am. Rep. 171; Horner v. Graves, 7 Bing. 743; Morris Run 
 Coal Co. V. Barclay Coal Co. 68 Pa. 173, 8 Am. Rep. 159; Oregon Steam 
 Nav. Co. V. Winsdr, 87 U. S. 20 Wall. 61, 22 L. ed. 315; Taylor v. Blan- 
 c'lard, 13 Allen, 370; Crawford v. Wick, 18 Ohio St. 190; Central Ohio 
 Salt Co. V. Guthrie, 35 Ohio Si. 666; West Virginia Transp. Co. v. Ohio 
 R. P. L. Co. 22 W. Va. 617, 46 Am. Rep. 527: People v. Mrth River Su- 
 gar Ref. Co. 2 L. R. A. 33, and note, 22 Abb. N. C. 164.
 
 COMBINATIONS TO CONTKOL THE NECESSARIES OF LIFE. 219 
 
 restraint Ls partial or general — it applies the regulation ex vi ter- 
 mini to any j)art of interstate trade." 
 
 Mr. James Trimble, Special Asst. to IT. S. Atty., made the fol- 
 lowing additional points for complainant: 
 
 As courts of equity, the United States circuit ctmrts, by their 
 inherent jurisdiction, regardless of the Act of July 2, 1890, have 
 jurisdiction of the subject matter to grant the relief prayed.' 
 
 Article 1, § 8, of the Constitution confers upon CiMigress the 
 power "to regulate commerce" etc., and "to make all laws, which 
 shall be necessaiy and proper for carrying" the foregoing powers 
 "into execution." 
 
 "The power, like all others vested in Congress, is complete in 
 itself, may be exercised to its utmost extent, and acknowledges no 
 limitations other than are prescril)ed in the Constitution."' 
 
 As to "interstate commerce," the United States, as a govern- 
 nient, possesses unlimited power, and can by congressional action 
 exercise all the rights of "a sovereign goyernment." One of the 
 well recognized powers of a sovereign government is to institute 
 proceedings in its own name on behalf of the public, or to permit 
 its name to be used by private individuals specially injured, to 
 ])revent and restrain })ul)lic nuisances." 
 
 A combination, the tendency of which is to prevent general 
 competition and to control prices, is detrimental to the })ublic and 
 unlawful.' 
 
 'Foster. Fed. Pr. cliap. 1, ii 5; Story, Eq. .Jiu-. §^ 921, 923; Morawelz, 
 Priv. Corp. ^ 1043; Pom.Eq. Jur. ^ 1349; Atty Gen. v. Cleave, 18 Ves. 
 Jr. 211; Oeorgctt/wa v. Alexandria Canal Co. 37 U. S. 12 Pet. 91. 9 L. 
 eti. 1012; I'ennsi/lcania v. Wheeling & B. BriOqe Co. 54 U. S. 13 How. 
 518, 14 L. ed. 249; Mississippi & M. R. Co. v. Ward, 67 U. S. 2 Black, 
 485, 17 L. ed. 311; Gilnian v. Philadelphia, 70 U. S. 3 Wall. 725, 18 L. 
 ed. 89; Willamette Iron Bridge Co. v. tiatch, 125 U. S. 1, 31 L. ed. 629. 
 
 ^Gibbons v. Ogden, 22 U. S. 9 Wheat. 1-197, 6 L. ed. 23-70; Mobile County 
 V. Kimball, 102 U. S. 691, 26 L. ed. 238. Also Gilman v. Philadelphia, 
 70 U. S. 3 Wall. 725, 18 L. ed. 99; Leisy v. Hardin, 135 U. S. 100-108, 
 34 L. ed. 128-132. 
 
 "Story. Eq. Jur. ^5; 923, 924; Atty-Gen. v. Tudor Ice Co. 104 Mass. 244; 
 
 Dist. Atty of East Dist. v. Lynn & B. R. Co. 16 Gray, 245; Georgetoirn 
 
 V. Alexandria Canal Co. 37 U. S. 12 Pet. 98. 9 L. ed. 1015; Pennsylvania 
 
 V. Wheeling & B. Bridge Co. 54 U. S. 13 How. 518, 14 L. ed. 249. 
 ■*PeopleY. North River Sugar Ref. Co. 2 L. R. A. 33, 22 Abb. N. C. 164; 
 
 Booker v. Vandeirater, 4 Deuio, 349; Morris Run C. Co. v. Barclay C. Co. 
 
 68 Pa. 186; Central Ohio 8. Co. v. Guthrie, 35 Ohio St. 672; Craft v. 
 
 McConoughy, 79 111. 346; Richardson v. Buhl, 6 L. R. A. 457. 77 Mich. 
 
 632; Be Witt Wire Cloth Co. v. New Jersey Wire Cloth Co. 9 Ry. <fc Corp. 
 
 L. J. 314.
 
 220 MONOPOLY. 
 
 All commerce and trade among the several states shall be free 
 and nntrammeled of all restraints and restrictions, unless other- 
 wise prescribed by Act of Congress.' 
 
 The following have been held to be restraints upon trade and 
 commerce among the states : 
 
 A state law granting tlie exclusive right of navigating the Hud- 
 son lliver.' 
 
 A state law imposing a tax upon an importer, and requiiing a 
 license before he is permitted to sell goods.^ 
 
 A state law imposing a tax on steamers for each passenger- 
 landed within a State.' 
 
 A state law requiring a stamp upon bills of lading for gold or 
 silver exported from the State.* 
 
 A special tax by the State on railroad and stage conipanies for 
 every passenger carried out of the State.' 
 
 A special tax imposed upon the transportation of freight from 
 one State to another.' 
 
 A special tax imposed upon the sale of goods not manufactured 
 within the State.* 
 
 A state law imposing burdensome conditions on the shipmaster 
 as a prerequisite to the landing of passengers, or else to pay a sum 
 on each passenger." 
 
 A state law granting a telegraph company the exclusive right 
 to erect and operate a telegraph line within the State.'" 
 
 A state tax imposed upon telegraph messages sent without the 
 State.'' 
 
 ^Rohhins v. SMbij County Taxing List. 120 U. S. 493, 30 L. ed. 696; Phila- 
 delphia tfc <S. M. & S. S. (Jo. V. Pennsylvania, 123 U. S. 328, 30 L. ed. 
 1200; Leisy v. Hardin, 135 TJ. S. 109, 34 L. ed. 132. 
 
 '^ Gibbons v. Ogden, 22 U. S. 9 Wheat. 196, 6 L. ed. 70. 
 
 "Broim V. Maryland, 25 U. S. 12 Wheat. 446, 6 L. ed. 688. 
 
 ^Passenger Cases, 48 U. S. 7 How. 283, 12 L. ed. 703. 
 
 ^Almy V. California, 65 U. S. 24 How. 165, 16 L. ed. 644. 
 
 "■Crandall v. Nevada, 73 U. S. 6 Wall. 39, 18 L. ed. 745. 
 
 '■State Freight Tax Cases, 82 U. S. 15 Wall. 232, 31 L. ed. 146; Bultimore & 
 0. R. Co. V. Maryland, 88 U. S. 21 Wall. 456, 22 L. ed. 678. 
 
 nVclton V. Missouri, ^^l U. S. 375. 23 L. ed. 347. 
 
 ''Henderson v. Netc York, 93 U. S. 359, 33 L. ed. 543; Chy Lung v. Free, 
 man, 93 U. S. 375, 33 L. ed. 550. 
 
 '^Pensacola Teleg. Co. v. Western U. Teleg. Co. 96 IT. S. 1, 34 L. ed. 708. 
 
 ^' Western U. Teleg. Co. v. Texas, 105 U. S. 460, 36 L. ed. 1067.
 
 COMBIXATIONS TO CONTROL THE NECESSARIES OF LIFE. 221 
 
 A special tax imposed upon every alien passenger brought 
 by steamships to a State.' 
 
 A special tax by a city imposed upon persons running tow- 
 boats from the city to certain points without the State." 
 
 A state tax imposed upon steam ferries for the transportation 
 of passengers and freight from one State to another.^ 
 
 A state tax imposed upon an occupation which necessarily dis- 
 criminates against the sale of goods brought from another State.' 
 
 A state tax imposed upon sleeping cars run through tiie 
 State.' 
 
 Interstate commerce cannot be taxed at all by a State, even 
 though the same amount be taxed on domestic commerce." 
 
 A special tax by the State upon the gross receipts for the car- 
 riage of passengers and freight into, out of or through the State.' 
 
 A general license tax upon a telegraph company.* 
 
 A license tax upon a "drummer." * 
 
 A state statute prohibiting the sale, in original packages, of 
 liquor brought into the State, except for medicine, upon license.'" 
 
 A license tax imposed upon the agent of a railroad engaged 
 in soliciting; travel over his I'oad out of the State." 
 
 A license tax imposed upon a railroad company of one State 
 for the privilege of keeping an office in another State.'" 
 
 A state law providing for the inspection of meat, which prac- 
 tically forbids the importation of meat from another State.'^ 
 
 Messrs, Tillman & Tillman, for defendants, argued that the 
 subject of the agreement was not interstate commerce, although the 
 
 ^New York Compagnie Generale Transatlantique, 107 U. S. 59, 27 L. ed.383. 
 
 ^Maran v. New Orleans, 112 U. S. 69, 28 L. ed. 653. 
 
 ^Gloucester Ferry Co. v. Pennsylvania. 114 U. S. 196, 29 L. ed. 158. 
 
 * Walling V. Michigan. 116 U. S. 446, 29 L. ed. 691. 
 
 ^Pickard v. Pullman Soutfiei-r) Car Co. 117 U. S. 34, 29 L. ed. 785. 
 
 ^Bobbins v. Shelby County Tax. Dist. 120 U. S. 489, 30 L. ed. 694 
 
 'Fargo v. Stevens, 121 U. S. 230, 30 L. ed. 888. 
 
 ^Leloup V. Port of Mobile, 127 U. S. 6i0, 32 L. ed. 311. 
 
 Ms/ier V. Te.Tas. 128 U. S. 129, 32 L. ed. 368; Stoutenburgh r. Hennick. 129 
 
 U. S. 141, 32 L. ed. 637. 
 ^oLeisy v. Hardin, 135 U. S. 100, 34 L. ed, 128; Lyng v. Michigan, 135 U. 
 
 S. 161, 34 L. ed. 150. 
 ^^MeCall V. California, 136 U. S. 104, 34 L. ed. 391. 
 ^^Leisy v. Hardin, 135 U. S. 114, 34 L. ed. 134. 
 ^^Minnesota v. Barber, 136 U. S. 313, 34 L. ed. 455.
 
 222 
 
 MONOPOLY. 
 
 intention was to transport the coal to Nashville, although it was pur- 
 chased for that purpose. 
 
 Until actually launched on its way to another State, it is not 
 under the jurisdiction of the United States.' 
 
 These sales, with reference to which the agreement regulates 
 prices, are sales of coal having its situs in Nashville. The whole 
 transaction is wholly within the State. This is not interstate 
 commerce. The fact that the coal is l)rouc!:lit from another State 
 does not prevent the jurisdiction of Tennessee from attaching,^ 
 
 The only limitation upon the State, with reference to property 
 broutj^ht from another State, and over contracts relatino^ thereto, 
 is, that it cannot take away or impair the right of the importer to- 
 sell it in the "original package," "unbroken" and "unopened," * 
 
 With these limitations the State has jurisdiction over the prop- 
 erty even in the "original package." * 
 
 The right of the United States to maintain a suit in equity is 
 governed by the same principles which apply to other parties. It 
 must have an interest in the subject-matter,* 
 
 The bill in this case is nothing else than an "information in 
 equity," cliarging defendants with a misdemeanor. The Consti- 
 tution provides that the " trial of all crimes, except in cases of 
 impeachment, shall be by jury," whether that trial is followed by 
 an injunction or a sentence." 
 
 The jurisdiction of equity in England to issue injunctions in 
 behalf of the public at the suit of the government is limited to 
 the three following classes of cases : 
 
 1. To restrain purprestures of public highways and naviga- 
 tions.^ 
 
 ^Coe V. Errol, 116 U. S. 517, 29 L. ed. 715; Kiddv. Pearson. 128 U. S. 1, 
 
 32 L. ed. 346. 
 ''Brown v. Houston, 114 U. S. 622, 29 L. ed. 257. 
 '^Lyng V. Michigan, 135 U. S. 161, 34 L. ed. 150. 
 '^Woodruff ^. Pnrham, 75 U. S. 8 Wall. 123, 19 L. ed. 382; Hinson v. Loit, 
 
 75 U. S. 8 Wall. 148, 19 L. ed. 387. 
 * United States v. Union Pac. R. Co. 98 U. S. 569, 25 L. ed. 143; United States^ 
 
 V. San Jacinto Tin Co. 125 U. S. 285, 31 L. ed. 751; United States v. 
 
 American Bell Teleph. Co. 128 U. S. 315, 32 L. ed. 480. 
 ^Stdte V. Uhrig, 14 Mo. App. 413; Eilenhecker v. Plymouth County Dist. Ct. 
 
 134 U. S. 31, 33 L. ed. 801. 
 Wist. Atty of East Dist. v. Linn & B. R. Co. 16 Gray, 242; Atty-Gen. v. 
 
 Cambridge, 16 Gray, 247.
 
 COMBINATIONS TO CONTROL THE NECESSARIES OF LIFE. 223 
 
 2. To restrain threatened nuisances dangerous to the health of 
 the whole community.' 
 
 3. To restrain ultra vires acts of corporations injurious to pub- 
 lic right.^ 
 
 The provision of the Act of July 2, 1890, authorizing this pro- 
 ceeding in equity is unconstitutional.* 
 
 An agreement between a number of persons to act concernedly 
 in fixing prices at which they will sell a particular product in a 
 particular city is not illegal as being in restraint of trade, unless^ 
 it appears that they have a monopoly of that product.^ 
 
 The defendants in this case control but an insignilicant part of 
 a vast supply of coal. Each coal company has its sole or exclusive 
 agents, or dealers, and will not sell to or through others. This is 
 not illegal or against public policy.^ 
 
 After full consideration of the questions presented, Key, ./., 
 delivered the following opinion : 
 
 The petition in this case is filed against the members of the- 
 Nashville Coal Exchange. The membership of the exchange is 
 composed of various coal mining companies operating mines in 
 Kentucky and Tennessee, chiefly in Kentucky, and of persons and 
 lirms dealing in coal at Nashville, Tenn. It is alleged that the 
 purposes, objects and agreement of the defendants are in violation 
 of an Act of Congress approved July 2, 1890, entitled, "An Act 
 to Protect Trade and Commerce against Unlawful Restraints and 
 Monopolies," and the petition seeks to restrain and prevent the 
 violations of the Act by injunction under section 4 of the law. 
 The first section of the Act declares that "■ every contract or com- 
 
 ^AttyOen. v. Blount, 4 Hawks, 384; Atty-Gen. v. Hunter, 1 Dev. Eq. 12. 
 
 ''Atty-Gen. v. Lichfield Corp. 13 Sim. 546; Atty-Gen. v. Chicago & N.W. i?. 
 Co. 35 Wis. 425. 
 
 '^Mvgler v. Kansas, 123 U. S. 273, 31 L. ed. 214; Powell v. Pennsylvania, 127 
 U. S. 678, 82 L. ed. 253. 
 
 *Ladd V. Southern Cotton Press <& Mfg. Co. 53 Tex. 172; Seeligson v. Taylor 
 Comj>ress Co. 56 Tex. 219; Wickeiis v. Evans, 3 Youuge & J. 318; Skrainka 
 Scharringhausen, 8 Mo. App. 522; Ontario Salt Co. v. Merchants Salt Co^ 
 18 Grant, Ch. 540; Marsh v. Russell, 66 N. Y. 288. See Senate Debate, 
 Congressional Record, 1st Session, 51st Congress, p. 2642; Com. v. Hunt, 
 4 Met. Ill; Masters' Stevedores Asso. v. Walsh, 2 Daly, 1; Kellogg v. Lar- 
 kin, 3 Pinn. 124; Pratt v. Hutchinson, 15 East, 511. 
 
 ''Brown v. Rounsavell, 78 111. 589; Lightner v. Menzel, 35 Cal. 452; TanMar- 
 ter V. Babcock, 23 Barb. 633; Greenhood, Pub. Pol. 703.
 
 224: MONOPOLY. 
 
 bination in the form of trust or otherwise, or conspiracy in 
 restraint of trade or commerce among the several states, is 
 declared illegal." The second section declares that, " every per- 
 .son who shall monopolize or combine or conspire with another 
 }>erson or persons to monopolize any part of the trade or com- 
 merce among the several states . . . shall be guilty of a 
 misdemeanor," A violation of the first section is a misdemeanor 
 also. By the fourth section jurisdiction is conferred upon the 
 circuit courts of the United States to prevent and restrain viola- 
 tions of the Act, and it is made the duty of district attorneys in 
 their respective districts, under the direction of the Attorney- 
 General of the United States, to institute proceedings in equity 
 to prevent and restrain such violations. The articles of agree- 
 ment between the defendants provide, amongst other things, that 
 the objects of this exchange are, " to do all in its power to 
 advance the interests of the coal business at Nashville, to treat all 
 parties to this agreement in a fair and equitable manner, and to 
 ■establish prices on coal at Nashville, Tenn., and to change same 
 from time to time, as occasion may require." Prices to con- 
 sumers at Nashville are to be established so as to sell coal at 
 a fair and reasonable price, so as to allow all parties a fair 
 profit for their product. Every person, firm or corporation 
 owning or operating mines who ship coal to Nashville shall 
 be eligible to membership in this exchange, and all coal deal- 
 ers in the city of Nashville are also eligible to membership. 
 None others are eligible. Any member of the exchange who 
 may withdraw from it and continue in the coal trade in Nashville, 
 •or ship any coal to Nashville, shall forfeit and relinquish all inter- 
 est of any and every kind, however obtained or accrued. The 
 ■exchange will from time to time establish prices at which coal 
 tihall be sold in Nashville. Coal classed as No. 1 shall be valued 
 at the mines at 4:^ cents minimum price of eighty pounds lump, 
 and freight being 4 cents, and the dealer's margin to be 4|- cents, 
 making the price of lump coal 13 cents per bushel. No. 2 to be 
 valued at 5 cents at the mine. No. 3 at 6 cents, and when the 
 above prices are advanced in excess of the advance in freights, 
 then one half the advance shall go to the mine owners and one 
 half to the dealers. Every member found guilty of selling coal
 
 COMBINATIONS TO CONTROL THE NECESSARIES OF LIFE. 225 
 
 at a less price than the price fixed by the exchange, either direct- 
 ly or indirectly, shall be lined 2 cents per bushel and $10 for the 
 first offense, and 4 cents per bushel and $20 for the second 
 offense. A majority of all the members shall constitute a quorum 
 for the transaction of business. 
 
 Owners or operators of mines shall not sell or ship coal to any 
 person, firm or corporation in Xashville, or West Xashville, or 
 East Xashville, who are not members of the exchange, and deal- 
 ers shall not buy coal from anyone not a member of the exchange. 
 All coal used for manufacturing and steamboat purposes shall be 
 exempt from prices made by the exchange until all mines tribu- 
 tary to this market shall become members of the exchange, or 
 until the exchange can control prices to govern coal used by 
 manufacturers, l^o coal shall be sold in any month to be deliv- 
 ered in any following month except at prices fixed for the par- 
 ticular month in which coal so sold is to be delivered. Fines and 
 penalties are declared so as to enforce the stipulations embodied 
 in the constitution and by-laws of the exchange. 
 
 It can hardly be denied that such provisions as these, by a body 
 of persons such as compose this exchange, constitute a contract or 
 combination in restraint of trade or commerce, or an attempt 
 between different persons to monopolize a part of the trade or 
 commerce between parties who are citizens of or reside in differ- 
 ent states. It is shown that several mining companies in Ken- 
 tucky engaged in raising coal, and most of the coal dealers of 
 Kashville, Tenn., have entered into the foregoing mentioned 
 arrangement. It is insisted for the defendants that the subject 
 of agreement is not interstate commerce ; that the obligation as 
 to the mining companies ends at the mines. The price is fixed 
 and paid at that point, and consequently controversies in regard 
 to the contract as to them belong exclusively to the courts of the 
 State of Kentucky; that so far as the dealers are concerned the 
 price of the coal is fixed for its sale at Xashville, and after it 
 becomes their property by delivery to them, and therefore the 
 courts of Tennessee have the jurisdiction as to them. Yarious 
 authorities are cited, and the debates in the Senate of the United 
 States are read to sustain this view of the case. As I understand 
 the contention of defendant's counsel it is that the agreement is 
 15
 
 226 MONOPOLY. 
 
 not violative of the terms of the Act of July 2, 1890. But if it 
 is the Act is unconstitutional : first, because the Constitution con- 
 fers upon the courts of the United States in such a case jurisdic- 
 tion over " controversies between citizens of different states." 
 That the fact that parties to a contract are citizens of different 
 states does not confer jurisdiction. There must be a controversy 
 between the parties to the contract, and this litigation is not a 
 dispute between the contracting parties, but between the govern- 
 ment and these parties. Second, that the Act creates and defines 
 criminal offenses, and the Constitution provides that the " trial of 
 all crimes except in cases of impeachment shall be by jury, and 
 that section 4 of the Act, so far as it attempts to give circuit 
 courts of the United States equitable jurisdiction over the viola- 
 tions of the Act. is unconstitutional. It is insisted the proceed- 
 ing authorized is in substance an information in equity charging 
 defendants with a misdemeanor. 
 
 I shall not enter into a discussion of the constitutionality of the 
 law. A court, especially an inferior one, should hesitate long and 
 consider carefully before it should declare an Act of Congress, 
 passed after deliberation and del;)ate and ap]iroved by the presi- 
 dent, unconstitutional. The reasons for such a decision in such a 
 case should be clear and undeniable. If doubtful or questionable 
 the doubt should be resolved in favor of the law. 
 
 The arguments against the validity of the Act have been urged 
 with great plausibility and strength, and an army of authorities 
 have been read as sustaining the views of defendant's counsel. The 
 positions of defendant's counsel have been met with equal force 
 and ability by those representing the government, and many 
 authorities have been referred to in support of the power of Con- 
 gress to pass the law; and without nicely adjusting and weighing 
 the opposing views of counsel, enough appears to prevent me 
 from declaring the Act, or any part of it, as outside of the powers 
 granted to Congress by the Constitution. 
 
 The remaining question is whether the agreement and regula- 
 tions between the defendants are a "" contract or combination in 
 restraint of trade or commerce between states;'' are they evidence 
 of a combination to monopolize " any part of the trade or com- 
 merce" between the states of Tennessee and Kentucky. The
 
 COMBINATIDXS TO CONTROL THE NECESSARIES OF LIFE. 227 
 
 coal mines are in Kentucky, and the coal is to be mined there for 
 a certain price, and the agreement contemplates its shipment to 
 Xashville. To be sure it is not to be transported thither by the 
 defendants or any of them, but the price for which it is to be 
 shipped is lixed or stated, and becomes a part of the price for 
 which the coal is to be sold at Nashville; and when the prices 
 fixed " are advanced in excess of the advance in freights, the one 
 half of the advance shall go to the mine ownei's and one half to 
 the dealers." In making the agreement the transportation of the 
 coal from Kentnck}^ to Nashville was a necessary incident to and 
 clement in the arrangement, and its execntion would have been 
 impossible without it. The instrumentality of transportation did 
 not belong to, nor was it controlled by them, but it was used by 
 them and paid by them for services rendered. The contract pro- 
 vided for the sale of coal in Kentucky, its shipment to Nashville, 
 Tenn., to dealers there, for its retail to consumers. It was to all 
 intents and purposes a traffic trade, commerce between states. 
 
 Was the purpose of the exchange to monopolize a part of this 
 trade, or to combine in restraint thereof ? The exchange does not 
 propose to be governed and controlled l)y the pulilic markets aris- 
 ing from competition and the operations of the laws of supply 
 and demand. On the contrary, it announces that its purpose is 
 "to estal)lish prices on coal at Nashville, Tenn., and to change the 
 same from time to time as occasion may require," and in carrying 
 out this object it asserts that " the exchange will establish prices 
 at which coal shall be sold in Nashville, subject, however, 
 to the following conditions and bases: Coal classed as No. 1 to be 
 valued at the mines at 4 cents, minimum price, per bushel of 
 eighty-iive pounds for lump, and freight being 4 cents, the dealer's 
 margin to be 4^ cents, making the price of lump coal 13 cents per 
 bushel; No. 2 to be valued at 5 cents at the mines; No. 3, 6 cents; 
 and when the above prices are advanced in excess of the advance 
 freights, the one half of the advance shall go to the mine owners 
 and one half to the dealers." '' Any member found guilty of sell- 
 ing coal at a less price than the price fixed by the exchange, either 
 directly or indirectly, shall be fined 2 cents per bushel and §10 for 
 the lirst offense, and 4 cents a bushel and §20 for the second 
 offense." These provisions, so far as this comljination could do
 
 228 MONOPOLY. 
 
 SO, fixed the lowest price of coal to consumers in and near Nash- 
 ville at 13 cents per bushel and prevented coal being sold there at 
 a cheaper rate, no matter how ranch less it might cost in an open 
 and unobstructed market. JS^or is this all. The exchange ordains 
 that "-owners or operators of mines shall not sell or ship coal to 
 any firm, person or corporation in Xashville or West Kashville or 
 East Nashville who are not members of this exchange, and dealers 
 shall not buy coal from anyone who is not a member of the 
 exchange." The coal trade is confined to dealings, so far as the 
 market supply is concerned, to transactions between the miner 
 and dealer; the prices are fixed by them and the miner and dealer 
 only are eligible to membership. The miners of the concern can- 
 not sell to any dealer in or near Nashville who is npt a party to 
 the agreement, nor can such dealer purchase coal of any miner 
 anywhere who is not a member of the body. The operations of 
 both are confined within the membership. So far as Nashville is 
 concerned, they cannot go to cheaper or more favorable markets, 
 or deal with those who would give more favorable terms. The 
 restraint is positive and undeniable. Moreover, in the first section 
 of the by-laws of the exchange it is asserted that '• all coal used 
 for manufacturing and steaml)oat purposes shall be exempt from 
 prices made by this exchange until all mines tributary to this mar- 
 ket shall become members of the exchange, or until the exchange 
 can control prices to govern coal used by manufacturers." This 
 clearly indicates the purpose of the association to be to control the 
 price of coal in the Nashville market used in manufacturing and 
 in steaml)oats, whenever it could; that the mines of coal, tributary 
 to Nashville were all expected to becomes members of the ex- 
 change, whereupon the prices of coal could be fixed absolutely, 
 and the necessary inference from this declaration and the entire 
 organic structure of the body is that it felt strong enough already 
 to regulate and establish the prices of domestic coal in that mar- 
 ket, to a large extent at least, and that this exchange might now 
 monopolize the business of dealing in domestic coal in the Nash- 
 ville market, and in the future monopolize by and confine to its 
 membership the entire trade in coal at that point. It seems to 
 me that the pur]iose and intentions of the association could hardly 
 have been more successfully framed to fall within the provisions
 
 EFFECT OF COXSTITUTIONAL PROVISIONS REGARDING MONOPOLIES. 229 
 
 of the Act of July 2, 1S90, had the object been to orajauize a 
 combination, the business of wliicli should subject it to the penal- 
 ties of that statute, and that there is no need of authorities to 
 sustain such view of the case. Regarding the Act as constitu- 
 tional, I see no way for the defendants to escape its condemnation. 
 
 Proof has been taken, on the one hand, to establish that the 
 people of Xashville have been and are being injured by the high 
 prices which have been and are being paid for coal, and the extent 
 of the injury. On the other liand, defendants have introduced 
 proof to show that the higher freight rates to Xasliville and the 
 want of facilities for transportation by railroad and water are the 
 causes for the higher prices of coal at Xashville than at Louisville 
 or Meinphis, but it is needless to enter upon this branch of dis- 
 pute. " The attempt to monopolize or combine " is denounced by 
 the second section of the Act, and the first section, " every con- 
 tract or combination in restraint of trade or commerce among the 
 several states." The attempt, the contract to do the thing pro- 
 hibited, is enough to incur the penalties of tliis law. 
 
 I conclude that the defendants, by the organization of the Xash- 
 ville Coal Exchange, and their operations under it, have been, and 
 at the time of filing the petition in this cause were, guilty of a vio- 
 lation of sections 1 and 2 of the Act of July 2, 1S90, and should be 
 enjoined from further violations of the law, as provided by the 
 fourth section thereof.* 
 
 § 53. Effect of Constitutional Provisions Regarding 
 Monopolies. — Although there may be no direct constitutional pro- 
 visions against a monopoly, yet the whole theory of a free govern, 
 ment is opposed to such-grants,and it does not require even the 
 aid which may be derived from the usual Eill of Kights, which 
 declares in some form in eftect that no man or set of men is enti- 
 tled to exclusive public emoluments or privileges from the com- 
 munity, to render them void. The Statute of 21 James I., chap. 
 3, declares such monopolies to be contrary to law and void.'' 
 
 ' United States v. Jellico Mountain (Joke & Goal Co. 12 L. R. A. 753, 46 Fed. 
 Rep. 432. 
 
 ''4 Bacon, Abr. p. 764, title Monopoly; 4 Bl. Com. 160; 3 Coke, Inst. 181; 
 Hindmarch, Patents, chap. 2, p. 7 elaq.; note to Montgomery Gaslight 
 Co. V. Montgomery (Ala.) 4 L. R. A. 616; Slaughter House Cases, 83 U. S. 
 16 Wall. 101, 21 L. ed. 417; Chenango Bridge Co. v. Binghamton Bridge 
 Co. {Binghamton Bridge) 70 U. S. 3 Wall. 51, 75, 18 L. ed. 137, 143; Stein 
 V. Bienville Water Supply Co. 141 U. S. 67, 35 L. ed. 622.
 
 230 MONOPOLY. 
 
 The public policy of a State may be indicated by the provisions 
 of its Constitution as related to past and present lecjislation. 
 
 In Hew Orleans Gas Light Co. v. Louisiana L. c5 //. P. ct* 
 Mfg. Co. 115 U. S. 650, 29 L. ed. 516, a gas company had been 
 given, in 1835, the exclusive privilege of making and selling gas 
 in ^e\y Orleans for some fifty years, and the question was 
 whether such exclusive privilege was abrogated by the new Con- 
 stitution of 1879, M'hich contained a provision abolishing the 
 monopoly features in all existing charters. The United States 
 Supreme Court said in that case: " The monopoly clanse only 
 evinces a purpose to reverse the policy, previously pursued, of 
 granting to private corporations franchises, accom])anied by ex- 
 clusive privileges, as a means of accomplishing puljHc objects." 
 
 In states, therefore, where the Constitution has by amendment 
 prohibited the granting of special charters to CDrporations, the 
 policy as op]>osed to monopolies of every descriptif>n is clearly 
 thereby indicated, and courts must give effect to this policy by 
 refushig to recognize the legal existence of corporations formed 
 under general laws for the purpose of purchasing the controlling 
 stock in corporations which are engaged in competing for pu])lic 
 favor and patronage. If one great corporation, whether formed 
 for the purpose, or deviating from its legal objects, may purchase 
 the controlling interest in other corporations and manage them as 
 one, all the purposes of the constitutional provisions against 
 monopoly are sul)verted, and the courts in aiding the evasion of the 
 constitutional prohibition become parties to the crime.' 
 
 Where the state Constitution provides substantially, as it does 
 in many of the states, that the General Assembly shall not grant 
 to any citizen or class of citizens privileges or immunities which 
 upon the same terms shall not equally belong to all citizens, it 
 follows as a general rule that, acting under such a constitution, 
 neither the State nor a municipal government can grant or create 
 a monopoly, as the express spirit and policy of the law forbid 
 either from creating monopolies by favoring one corporation to 
 the exclusion of another." 
 
 But it nmst not be understood that all monopolies are included 
 
 'People y. Chicago Gas Trust Co. 8 L. R. A. 497, 130 111. 268. 
 'Wifizens Gas d:- Mia. Co. v. Elwooi, 14 ^'est. Rep. 92, 114 Ind. 332.
 
 EFFECT OF CONSTITCTIONAL PROVISIOXS REGARDING MONOPOLIES. 231 
 
 in this prohibition and made thereby unlawful. Many things 
 which are lawful are, from their nature and of necessity, monop- 
 olies, such are patent rights, copyrights, the right to keep a ferry 
 and many other things which might be mentioned. 
 
 Thus it is probably true that a municipal corporation may make 
 a contract wdth a gas company for supplying light to the public 
 lamps under such a constitutional proyision, eyen though it be for 
 a number of years.' 
 
 As a street railroad company has no legal right to lay its track 
 upon the streets of a city without the permission of the common 
 council, if the city should grant such right to one company and 
 refuse to grant it to another, the company to which the right was 
 granted would have a monopoly, until such time as the common 
 council should grant a similar right to some other person or com- 
 pany. So if the common council should grant to a street railroad 
 company the right to lay its track on certain streets which were 
 too narrow to admit of being occupied by other street raih-oad 
 tracks, such company would have a monopoly of such streets. It 
 is plain, therefore, that while monopolies, as a general rule, both 
 at common law, on principle, and by statute, as violative of consti- 
 tutional provisions and limitatii^ns, are unlawful, there are many 
 exceptions to the rule. The rule applies only to such things as are 
 of common right, and is never to be applied to such things as are 
 in their nature a monopoly. 
 
 Judge Elliott, in his valuahle work on Roads and Streets, in dis- 
 cussing this question at page 566, says: "To deny the power of 
 the Legislature to make a grant that is of necessity of a monopo- 
 listic character would lead to the unwarranted conclusion that in 
 no case can tlie Legislature grant the right to lay or operate a 
 street railway in a road, or street; for, if the power to make such 
 grant be conceded, it necessarily and unavoidably results that the 
 occupancy of the part of the road or street is exclusive, as two 
 railways cannot occupy the same space." 
 
 It is held in many reputable authorities that an exclusive 
 
 K'itizens Gas & Min. Co. v. Elioond, 14 "West. Rep. 92. 114 Ind. 332; and 
 also with a corporatioa to supply water to a city, Yl)icenne& v. Cullen- 
 der, 86 Ind. 484.
 
 232 MOJS'OPOLY. 
 
 right in such cases may be granted for a reasonable and fixed 
 period.' 
 
 But tliere are also antliorities wliich under such a constitutional 
 provision deny this power.' 
 
 In many of the states articles forbidding monopolies have been 
 incorporated in the amended constitutions, and in others, statute& 
 have been enacted for the same purpose. 
 
 Monopolies are in denial of common right, and are unconstitu- 
 tional and void.^ The idea has been expressed that granting such 
 a privilege is a violation of the Fourteenth Amendment of the 
 Constitution of the United States." And it is said that under the 
 Fourteenth Amendment every citizen of the United States should 
 be able to plead his citizenship of the Republic as a protection 
 against any similar invasion of his privileges and immunities. "^ 
 It was early held that they are contrary to public policy.* 
 Where there is restraint on the one hand, there is monopoly on the 
 other, and monopolies are odious to the law.' The dangerous- 
 nature of monopoly has become not only more apparent as com- 
 merce has increased, but in fact more real. The danger to be 
 apprehended from the accumulation of wealth and power in the 
 hands of uneducated and unscrupulous individuals and great cor- 
 porations, and the abuses by which large capitalists under corporate 
 
 ^New Orleans Gas Uqht Co. v. Louisiana L. & II. P. & Mfg. Co. 115 U. S. 
 650; 29 L. ed. 516; New Orleans Water Works Co v. Rivers, 115 U. S. 
 664, 29 L. ed. 525; Des Moines Si. R. Go. v. Des Moines, B. G. St. R. 
 Co. 73 Iowa, 513; St. Tammany Water Works Co. v. Neic Orleans Water 
 Works Co. 120 U. S. 64, 30 L. ed. 563. See Indianapolis Gable St. R. Co. 
 V. Citizens St. R. Co. 8L. R. A. 539, 127 lud. 369; Evansx. Hughes Countu, 
 6 Dak. 102. 
 
 'See Citizens Gas & Min. Co. v. Elwood, 14 West. Rep. 92, 114 Ind. 332; 
 
 Macon d B. R. Co. v. Stamps (Ga.) 11 S. E. Rep. 442; Wheeling Bridge 
 
 Co. V. WJieelino dt B. Bridge Co. 34 W. Va. 155; Kalamazoo Hack & B. 
 
 Co. V. Sootsma,\{) L. R. A. 819, 84 Mich. 194. 
 ^Norwich Gas Light Co. v. Norwich City Gas Co. 25 Conn. 19; Chicago v. 
 
 Rumpff, 45 111. 90: Hudson v. Thome, 7 Paige, 261, 4 L. ed. 148: Slaugh- 
 
 Ur House Cases, 83 U. S. 16 Wall. 102, 21 L. ed. 417; Re Richmond Retail 
 
 Coal Co., Pa. 9 Ry. & Corp. L. J. 31. 
 *Lii-e Stock D. & B. Asso. v. Crescent City L. S. L. & S. H. Co. 1 Abb. (U. 
 
 S.)388. 
 
 'Slaughter-House Cases, 83 U. S. 16 WalL 105, 21 L. ed. 418. 
 
 ''Rex V. Waddington, 1 East, 167; Case of the Monopolies, 11 Coke, 84 h. 
 
 ''Arnot V. Pittston & E. Coal Co. 68 N. Y. 558: Skrainka v. Scharringhausen„ 
 
 8 Mo. App. 523; Craft v. McConoughy, 79 111. 346; Western U. Ttleg. 
 
 Co. V. American U. Teleg. Co. 65 Ga. 160.
 
 COMBINATIONS TENDING TO IMPEDE COMPETITION. 233^ 
 
 cover may so combine as to relax or destroy competition in trade, 
 are matters of public concern, and the essential question is one of 
 monopoly producing injury to tlie public/ A contract which 
 creates a monopoly is void as in violation of a Constitution, 
 which declares that "perpetuities and monopolies are contrary to 
 the genius of a free government, and shall never be allowed." If 
 such is the effect of any contract, it is unlawful as forbidden by 
 the Constitution, and no legislation can give validity to it.* There 
 are three inseparable results to every monopoly: (1) that the price 
 of the same commodity will be raised; (2) that after the grant the 
 commodity is not so good and marketable as before; (3) that it 
 tends to impoverishment of divers artisans, artificers and others.' 
 An exclusive privilege granted to a few individuals, not for the 
 public good, but for their own interests and their successors incor- 
 porated into a society, and prohibiting all others from exercising 
 the same privilege, violates the fundamental rights of citizens 
 willing to conform to the constitutional regulations and restrictions 
 of business.* 
 
 § 54. Coml) illations Tending to Impede Competition, Il- 
 legal. — Without rivalry trade will languish, and the enterprise,, 
 thrift and welfare of the people disappear. Legitimate business 
 aims to acquire competence or perhaps moderate wealth, by 
 honest lalior, toil and frugality. Monopoly seeks to suppress 
 the comj^etition which naturally only produces such results, and 
 substitutes combination among producers to reduce production, 
 and enhance prices without the corresponding toil of production. 
 All combinations which propose or may in fact tend to impede 
 free and fair competition in trade are therefore illegal and void as 
 being against public policy.' 
 
 ^Skraitika v. Scharrinf/hausen', 8 Mo. App. 523. 
 
 '^Brenham v. Brenham Water Co. 67 Tex. 5G1. 
 
 ^Gase of the Monopolies, 11 Coke, 87 a. 
 
 * Slaughter- Rouse Case, 1 Woods, 21. 
 
 ^Richardson v. Buhl, 6 L. R. A. 457, 77 Mich, 63?; Gibbs v. Consolidated 
 Gas Co. 130 U. S. 396, 32 L. ed. 979; Schofield v. Lake Shore & M. S. R. 
 Co. 1 West. Kep. 812, 43 Ohio St. 571; Louisville, N. A. dc G. R. Co. v. 
 Sumner, 2 West. Rep. 668, 106 Ind. 55; Chicago Gaslight & C. Co. v. 
 Peoples Gaslight & C. Co. 11 West. Rep. 63, 121 111. 530.
 
 .234 MONOPOLY. 
 
 All agreements, in whatever form, to stifle fair competition are 
 void.* 
 
 Bargains devised to compel individuals or corporations to pay 
 undue prices for anything, or to create a monopoly, are void.^ 
 
 All contracts having a tendency to stifle competition or to 
 create or foster monopolies, with a view unreasonably to increase 
 the market value of commodities, are void as against public policy 
 and cannot be enforced.^ 
 
 A contract in restraint of trade to the injury of others and 
 tending to monopoly, extortion and oppression is void as against 
 public policy.* 
 
 If the object of a contract is to prevent or impede free and fair 
 competition in trade, and it may in fact have that tendency, it is 
 void as being against public policy." 
 
 A contract entered into by the grain dealers of a town which, 
 •on its face, indicates that they have formed a partnership for the 
 purpose of dealing in grain, but the true object of which is to 
 form a secret combination which would stifle all coni])etition and 
 enable the parties, by secret and fraudulent means, to control the 
 price of grain, costs of storage, and expense of shipment at such 
 town, is in restraint of trade, and consequently void on the ground 
 of public policy. 
 
 While these parties were in business, in competition, they had 
 the undoubted right to establish their own rates for grain stored 
 and commissions for shipment and sale. They would pay as high 
 or low a price for grain as they saw proper and as they could 
 make contracts with the producer. So long as competition was 
 
 ^Gardiner v. Morse, 25 Me. 140; James v. Fulcrod, 5 Tex. 512; Hunt v. 
 Frost, 4 Cush. 54; Hook v. Ivrner, 23 Mo. 383; Jones v. Caswell, 3 
 Johns. Gas. 29; Thompson v. Davies, 13 Johns. 112; Infjram v. Ingram, 
 49 N. C 188; Martin v Ranlett, 5 Rich. L. 541; Bn'sbrane v. Adams, 
 3 N.Y. 129; Atcheson v. Mallon, 43 N.Y. 147; OMs v. ,S7nith, 115 Mass. 
 592; Marsh v. Chicago, R. 1. & P. R. Co. 75 Iowa, 361. 
 
 ^Marsh v. Russell, 66 N. Y. 288; Kellp v. Devlin, 58 How. Pr. 487; Wood- 
 ruff v. Berry, 40 Ark. 251; Hooker v. Vnndewater, 4 Denio, 349; Stanton 
 V. Allen, 5 Denio, 434. 
 
 ^Texas & P. R. Co. v. Southern P. R. Co. 41 La. Ann. 970, 40 Am. & Eng. 
 R. Cas. 475; Emery v. Ohio Candle Co. 47 Ohio St. 320; State v. Nebraska 
 Distilling Co. 29 Neb. 700, 29 Am. & Eng. R. Cas. 656. 
 
 '^ScJwfield V. Lake Shore d- M. S. R. Co. 1 West. Rep. 827, 43 Ohio St. 571; 
 Louisville, N. A. & C. R. Co. v. Sumner, 2 West. Rep. 665, 106 Ind. 55. 
 
 * Anderson v. Jett (Ky.) 6 L. R. A. 390.
 
 COMBINATIONS TENDING TO IMPEDE COMPETITION. 235 
 
 free tlie interei*t of the public was safe. The laws of trade, iu 
 connection with the rigor of competition, was all the guaranty the 
 public required, but the secret combination created by the contract 
 destroyed all competition and created a monopoly, against which 
 the public interest had no protection.' 
 
 The possibility that other business enterprises in the same pur- 
 suit may be set on foot to counteract the effect of a combination 
 to control the market in a commodity will not relieve such conr 
 bination of illegality." 
 
 ^ Craft V. McConoughy, 79 111. 346. 
 
 ^People V. Mrth River iSugar Ref. Co. 5 L. R. A. 387, 54 Hua, 354.
 
 CHAPTER XI. 
 
 COMBINATIONS TO MONOPOLIZE. 
 
 § 55. Cowhiuafiom in Variovs Disguises to Monopolize the Markets 
 
 56. Union of Corporations in a Partnersliip to Suppress Competi- 
 
 tion. 
 
 57. Combination between Corporations tvithont Partnership. 
 
 § 55. Combinations in Yavions Disgnises to Monopolize the 
 
 Marliet. These combinations assume various disguises. In some 
 
 instances an association is formed for the manufacture of an 
 article of ordinary domestic use. An enormous amount of capital 
 is aggregated to purchase and absorb all manufactories of the 
 article in the country and to prevent any other person or corpora- 
 tion from engaging in or carrying on the same, thereby pre- 
 venting all competition in the sale of the article monopolized. 
 Those manufacturers who will not enter into the scheme are 
 bought out or crushed by temporarily supplying the market they 
 cater to at prices below the cost of production. All who unite hi 
 the combination and all who are bought out are required to enter 
 into bonds to the eifect that they will not even indirectly engage 
 in the production or sale of the article, nor aid nor encourage any 
 one else to do so. All trade secrets are to be kept from the pub- 
 lic and apprentices excluded from learning the art. Others pro- 
 posing to ensjage in the production are frightened or bought otf 
 and the result is that one vast combination controls the production 
 and sale of an article which may be used in every family, and per- 
 haps necessary to the comfort and convenience of the people. Its 
 price is thereafter to be iixed by the seliish greed of tlie combina- 
 tion. 
 
 This price must not only pay an extravagant profit on produc- 
 tion but it must also reimburse the combination for all the money 
 spent in the purchase of plants, and machinery, M-hich the neces- 
 sity of paralyzing competition has induced, and which will there- 
 after be idle, if not destroyed. It must also i-epay the money 
 
 236
 
 COMBINATIONS IN VARIOUS DISGUISES TO MONOPOLIZE MARKET. 237 
 
 •expended to induce active labor to live thereafter in idleness, or in 
 less remunerative occupation, and thus the pul)lic must pay not 
 c»iily an unreasonable profit upon the manufacture of the monopo- 
 lized article, but must pay for the costly destruction of the imple- 
 ments of honest industry and the support of enforced idleness, and 
 of an increased non-producing class. It must pay for the destruc- 
 tion of all the means it possessed to relieve itself from the imposi- 
 tions of the monopoly. When such a case was j^resented in the 
 Supreme Court of Michigan in liichardson v. Buhl, 6 L. II. A. 
 457, 77 Mich. 632, and counsel on each side refused to raise the 
 question of illegality, the court on its own motion took notice of 
 the crime against the community and denied relief, declaring that 
 courts will take notice on their own motion of illegal contracts 
 which come before them for adjudication, and M'ill leave the par- 
 ties where they have placed themselves ; that the organization of a 
 corporation for the purpose of controlling the manufacture and 
 trade in matches in the United States and Canada, by inducing all 
 manufacturers of matches to enter into a combination securing to 
 ^such corporation the whole control of the business, or by buying 
 out those who would not so enter, and buying off any others who 
 might propose to engage in the business, is an unlawful enterprise, 
 being an attempt to create a monopoly ; and that an agreement 
 intended to aid in the formation and organization of an illegal cor- 
 poration designed to secure a monopoly of a certain business by 
 which, in consideration of indorsements and other financial aid to 
 a shareholder to enable him to raise funds necessary to join the 
 ■enterprise, the indorsers are to have a share of the net earnings of 
 his stock, is void on grounds of public policy. 
 
 It is true that the tendency of the union of private capital in 
 corporate freedom, has been to promote competition in great 
 undertakings, where combined wealth and energy are demanded. 
 Vast enterprises, with attending risks and perils, are ventured on 
 when the extreme limit of loss is only the corporate capital 
 invested, with no hazard to private fortunes, and neither the fear 
 of physical death, nor commercial or moral ruin deter the artificial 
 being, if the prize at stake be sufficient. The results of such cor- 
 porate activity and courage are the vast development of manufac- 
 turing, farming and mining interests and of carrier transportation.
 
 238 ( OMBINATIONS TO MoNuroLIZE. 
 
 Working in harmony, the carrier transfers the product of the- 
 farm, the loom and the furnace to the most profitable market, and 
 milhons thus enjoy what, if individual enterprise were alone act- 
 ing, the few only could sliare.' 
 
 Universal distribution of production enlarges the market and 
 promotes consumption. It reduces cost and it opens fields of new 
 activity. It is to the freedom of corporate existence that much of 
 the present connnercial prosperity is owing. Like individual com- 
 bination for lawful pursuit, corporate coml)ination for like pur- 
 poses is to be approved, and it is followed by e(]ually beneficent 
 results. Connecting lines of transportation by union in running 
 arrangements, clieapens the tariff of charges. So long as competi- 
 tion is open, combination of individuals in partnership or corporate 
 effort is harmless to the public. But even competition may 
 become in itself an evil,* and pooling the earnings of competing 
 roads, where the sole purpose is to prevent ruinous competition, 
 and not attempting to increase the rate for transportation beyond 
 a reasonable amount for the service rendered, is not in any true- 
 sense inimical to public policy. The charges for freight do not 
 generally in fact seem to be regulated by the cost of the road or 
 its equipment, but rather by the rate that can be paid profitably 
 by the article transported to market. Where tlie purpose is hon- 
 est and to save from destruction valuable prtjperty, through reck- 
 less competition, there can be no legitimate complaint against 
 pooling the earnings of competing roads or of rival manufacturers.'* 
 
 But courts decline to enforce such pooling contracts, leaving the 
 
 ^East India Co. v. Sandys, 10 How. St. Tr. 371 ; Ontario Salt Co. v. Mer- 
 chants Salt Co. 18 Grant, Ch. U. C. 540; Mogul S. S. Co. v. McGregor, 'L. 
 R. 15 Q. B. Div. 476; Wickens v. Evans, 3 Young & J. 318. 
 
 ''Leslie v. Lonllard, 1 L. R. A. 456, 110 N. Y. 519. 
 
 '"Manchester & L. R. Co. v. Concord R. Co. (N. H.) 9 L. R. A. 689; Kelsey v. 
 Ffaudler P. F. Co. 45 Hun. 15; Gloucester I. & G. Co. v. Russia Cement 
 Co. (Mass.) 12 L. R. A. 563; Letter of Blanchard, Chairman Cential 
 Traffic Asso. to Chairman U. S. Senate Committee on Interstate Com- 
 merce, 8 Ry. & Corp. L. J. 1; Benedict v. Western U. Teleg. Go. 9 Abb. N. 
 C. 214; Union Mat. Ins. Co. v. Union Mills Plaster Co. 3 L. R.A. 90, ST 
 Fed. Rep. 283; Hare v. London & N. W. R. Co. 2 Johns. & H. 80; Lan- 
 caster & C. R. Co. V. North Western R. Co. 2 Kay & J. 293; Opinion Clar- 
 ence A. Seward, 7 Rv. & Corp. L. J. 261, 5 Ry. & Corp. L. J. 213; Leslie 
 V. Lorillard, 1 L. R.'A. 456. 110 N". Y. 519; Ives v. Smith, 28 N. Y. S. R. 
 917; Pittsburg Carbon Co. v. McMillin, 53 Hun, 67; Metropolitan Te'eph. 
 & Teleg. Co. v. Domestic Teleph. & Teleg. Co. 44 N. J. Eq. 568; racific 
 Factory Co. v. Adler, 90 Cal. 110. Note to National Benefit Co. v. Union 
 Hospital Co. (Minn.) 11 L. R. A. 437.
 
 COMBINATIONS IN VARIOUS DISGUISES TO MONOPOLIZE MARKET. 239 
 
 parties to work out their own delivery from an engagement liable 
 to abuse, and to be used as an instrument of oppression against 
 the public.' 
 
 The court will not assist the plaintiff to get payment for efforts 
 to accomplish what the law declares should not be done.'' 
 
 While it is justly urged that those rules which say that a given 
 contract is against public policy, should not be arbitrarily extended 
 so as to interfere with the freedom of contract/ yet, in the instance 
 of business of such character that it presumably cannot be restrainetl 
 to any extent whatever without prejudice to the public interest, 
 courts decline to enforce or sustain contracts imposing such 
 restraint, however partial, because in contravention of public pol- 
 icy.* 
 
 An agreement or combination between sugar refining com- 
 panies, creating a partnership for the purpose of monopolizing the 
 manufacture and sale of refined sugar, being an illegal contract 
 created for an unlawful ol^ject, will not be enforced by the courts.^ 
 
 "Cases must be judged according to their circumstances," 
 remarked Mr. Justice Bradley in Oregon Steam Nav. Co. v. Win- 
 sor, 87 U. S. 20 AYall. 64, 68, 22 L. ed. 315, 318. " and can only 
 be rightly judged when the reason and grounds of the rule are 
 carefully considered. There are two principal grounds on which 
 the doctrine is founded that a contract in restraint of trade is void 
 as against public policy. One is the injury to the public by being 
 deprived of the restricted party's industry; the other is the injury 
 to the party himself, by being precluded from pursuing his occu- 
 
 ^Eoffman v. Brooks, 11 Week. L. Bui. 258; Texas & P. R. Co. v. Southern 
 Pac. R. Co. 41 La. Ann. 970; Woodstock Iron Co. v. Richmond & D. Ex- 
 tension Co. 129 U. S. 644, 32 L. ed. 819; Jackson v. McLean, 86 Fed. Rep. 
 213; Arnot v. Piitston & E. Coal Co. 68 N. Y. 558; Santa Clara. Valley 
 M. & L. Co. V. Hayes, 76 Cal. 387; Morris Rvn Coal Co. v. Barclay Coat 
 Co. 68 Pa. 173; Craft v. McConoughy, 79 111. 346. 
 
 ''Gihbs V. Consolidated Gas Co. 130 U. S. 396, 32 L. ed. 979. 
 
 ■'Printing d If. R. Co. v. Sampson, L. R. 19 Eq. 462. 
 
 *Stanton v. Allen, 5 Denio, 434; OrasscUi v. Louden, 11 Olpo St. 349; ITilton 
 V. Eckersley. 6 El. & Bl. 47; Central Ohio Salt C). v. (iulhrie, 35 Ohio St. 
 666; McBernie v. White Lead Co. 9 Week. L. Bui. 310; Crawford v. 
 Wick, 18 Ohio St. 190. This subject is much considered, and the au- 
 thorities cited in West Virginia Transp. Co. v. Ohio River P. Ij. Co. 22 
 W. Va. 600; Chicago Ga.Mght & C. Co. v. People's Gaslight & C. Co. 11 
 West. Rep. 63. 121 111. 530; Western U. Teleg. Co. v. American L. Teleg. 
 Co. 65 Ga. 160. 
 
 ^Gray v. 0.mard Bros. Co. 31 N. Y. S. R. 968.
 
 24:0 COMBINATIONS TO MoNOfOLIZE. 
 
 pation, and thus being prevented from supporting himself and his 
 family. It is evident that both these evils occur when the con- 
 tract is general, not to pursue one's trade at all, or not to pursue it 
 in the entire realm or country. The country suffers the loss in 
 both cases; and the party is deprived of his occupation, or is 
 obliged to expatriate in order to follow it. A contract that is open 
 to such grave objection is clearly against public policy. But if 
 neither of these evils ensue, and if the contract is founded on a 
 valid consideration and a reasonable ground of benefit to the other 
 jjarty, it is free from objection, and may be enforced." 
 
 Innumerable cases, however, might be cited to sustain the prop- 
 osition that conil)inations among those engaged in business im- 
 pressed with a public or quasi public character, which are mani- 
 festly prejudicial to the public interest, cannot be upheld. And 
 ])resumptively an agreement between two competing systems of 
 railroads to divide their earnings for traffic between given points, 
 for which they were previously competitors, is against jjublic policy 
 and cannot be enforced.' 
 
 The law " cannot recognize as valid any undertaking to do what 
 fundamental doctrine or legal rule directly forbids. Nor can it 
 give effect to any agreement the making whereof was an act vio- 
 lating law. So that, in short, all stipulations to overturn, or in 
 evasion of what the law has established; all promises interfering 
 with the workings of the machinery of the government in any of 
 its departments, or obstructing its officers in their official acts, or 
 corrupting them; all detrimental to the public order and public 
 good, in such manner and degree as the decisions of the courts 
 have defined; all made to promote what a statute had declared to 
 be wrong, — are void." " 
 
 It is also too well settled to admit of doubt that a corporation 
 
 ^ Texas <& P. R. Co. v. Southern P. E. Go. 41 La. Ann. 970, 40 Am. & Bug. 
 
 R. Cas. 475. 
 'Bishop, Contracts, § 549; Woodfttock Iron Co. v. Richmond & D. B-xtension 
 
 Co. 129 U. S. 644, 33 L. cd. 819; opinion by Mr. Justice Field; Trist v. 
 
 Child, 8» U. S. 21 Wall. 441. 22 L. ed. 623; Irtcin v. Williar, 110. U. S. 
 
 499, 28 L. ed. 225; Arnot v. Pittston & E. Coal Co. 68 N. Y. 568; Central 
 
 Ohio Salt Co. V. Guthrie. 35 Ohio St. 666; Woodruff v. Berry, 40 Ark. 
 
 2(3l; Hartford d; N. H. R. Co. v. Neio York & N. H. R. Co. 3 Roht. 411 ; 
 
 Craft V. McConoughy, 79 111. 346; Hooker v. Vandewater, 4 Denio, 349: 
 
 Stanton v. Allen, 5 Denio, 434; Central R. Co. v. Collins, 40 Ga. 582; 
 
 Morris Rim Coal Co. v. Barclay Coal Co. 68 Pa. 173.
 
 COMBINATIONS IN VARIOUS DISGUISES TO MONOPOLIZE MARKET. 24:1 
 
 <jaD.not by its own Toluiitaiy act disable itself bv contract from 
 performing the public duties which it has undertaken, and by 
 agreement compel itself to make public accommodation or con- 
 venience subservient to its private interests.' 
 
 " Where," says Mr. Justice Miller, delivering the opinion of the 
 court in Thomas v. West Jersey B,. Co. 101 U. S. Tl, 83, 25 L. ed. 
 950, 952, " a corporation, hke a raih'oad company, has granted to 
 it by charter a franchise intended in large measure to be exercised 
 for the public good, the due performance of those functions being 
 the consideration of the public grant, any contract which disables 
 the corporation from performing those functions, which undertakes 
 without the consent of the State to transfer to others the rights and 
 powers conferred by the charter, and to relieve the grantees of the 
 burden which it imposes, is a violation of the contract with the 
 State, and is void as against public policy." 
 
 But as neither human sympathy, moral principle, personal repu- 
 tation, nor the fear of punishment have deterred individuals from 
 forming combinations and conspiracies to control and stitie compe- 
 tition, so the temptation to use such combinations for jjurposes of 
 exacting unlawful tribute has often proved irresistible, where there 
 was neither a soul to save, a body to imprison for corporate crime, 
 nor personal self-respect to sacrifice. And it has been held that the 
 organization of a corporation for the purpose of controlling the 
 manufacture and trade in an .article of commerce in the United 
 States and Canada, by getting all manufacturers of such article to 
 enter into a combination giWng such corporation the whole control 
 of the business, or by buying out those who would not enter, and 
 buying off any others who might propose to engage in the busi- 
 ness, — is an unlawful enterprise, being an attempt to create a 
 monopoly; and that an agreement intended to aid in the formation 
 and organization of an illegal corporation designed to secure a 
 monopoly of a certain business, by which, and in consideration of 
 indorsements and other financial aid to a shareholder to enable him 
 to raise funds necessary to join the enterprise, the indorsers are to 
 
 ^GihU V. Consolidated Oas Co. 130 U. S. 396, 82 L. ed. 979; West v. Camden, 
 135 U. S. 507, 34 L. ed. 254; East Tennessee, V. t£ Li. R. Co. v. Frazier, 
 139 U. S. 288. 
 
 16
 
 242 COMBINATIONS TO MONOPOLIZE. 
 
 have a share of tlie net earnings of stock, is void on grounds of 
 public pohcj.' 
 
 § 56. Union of Corporations in a Partnership to Snppress 
 Competition. — Another form with which such combinations are 
 clothed is that of a union of corporations in a partnership for a 
 division among them of the profits upon the production and sale 
 of some article, placed under the control of the partnership, or a 
 division of the charges upon transportation by carriers. But the law 
 does not favor such arrangements, and the general rule is that cor- 
 porations cannot enter into a partnership agreement pooling all 
 their earnings, the business being managed for them by represen- 
 tatives appointed, and the profits distributed among the partners? 
 unless specially authorized by statute.'* And it was held by the 
 supreme court of Xew York that the uniting of corporations into 
 a particular consolidation or partnership, not authorized by their 
 charters or effected under statutes in reference to consolidation of 
 corporations, is ultra vires, and if it destroy the purpose of their 
 creation, warrants the forfeiture of their corporate existence. 
 
 Such combinations have frequently been condemned by courts 
 as not only unlawful but against public policy.^ 
 
 A corporation is a new creature of the law, deriving all its pow- 
 ers from the Act incorporating it, and can exercise the same only 
 in the manner therein authorized.* 
 
 A contract between corporations charged with a public duty, 
 such as that of common carriers, providing for the formation of a 
 combination having no other purpose than that of stifling compe- 
 tition and providing means to accomplish that object, is illegal and 
 against public policy.* 
 
 ^Richardson v. Buld, 6 L. R. A. 457, 77 Mich. 632. 
 
 ^Central R. & Bkg. Co. v. Smith, 76 Ala. 573; Charlton v. Newcastle <& C. R. 
 
 Co. 5 Jur. N. S. 1097; Gunn v. Central R. Co. 74 Ga. 509; Elemtor Co. v. 
 
 ■Memphis <€- C. R. Co. 85 Tenn. 703; Mallory v. Hanaur Oil Works, 86 
 
 Tenn. 598; Whittenton Mills v. Upton, 10 Gray, 582, 71 Am. Dec. 685; 
 
 Thomas v. West Jersey R. Co. 101 U. S. 71, 25 L. ed. 950. 
 
 ^Craftv. McConoughy, 79 111. 346; Alger v. Tlmcher, 19 Pick. 51; Hannah 
 V. Fife, 27 Mich. 172; Hooker v. Vandewater, 4 Denio, 84^, Stanton v. 
 Allen, 5 Denio, 434; Hoffman v. Brooks, 11 Cin. W. L. Bui. 258; Central 
 Ohio Salt Co. v. Guthrie, 35 Ohio St. 672; Morris Run Coal Co. v. Barclay 
 Coal Co. 68 Pa. 186. 
 
 *Head v. Providence Ins. Go. 6 U. S. 2 Cranch, 127, 2 L. ed. 229; Dartmouth 
 College v. Woodward, 17 U. S. 4 Wheat. 826, 4 L. ed. 656. 
 
 ^Cleveland, C. C. & I. R. Co. v. Closser, 9 L. R. A. 754, 126 Ind. 348.
 
 UNION OF CORPOKATIONS IN PARTNERSHIP. 243 
 
 A resolution to deliver the stock of a corporation to trustees of 
 a certain association or combination, whicli is carried unanimously 
 by the votes of all who are present, including every member of the 
 trustees of the corporation and all the shareholders except two, who 
 own but a small j^art of the stock and who are stated in fact to 
 liave consented to the delivery of the stock, is sufficient to make 
 the corporation a party to the combination. And where a manu- 
 facturing corporation which, instead of manufacturing its product 
 and disposing of it to the public on what might V)e fair competi- 
 tive prices, becomes a party to a combination in part at least de- 
 signed to create a monopoly and exact from the public prices which 
 could not be otherwise obtained, is liable to have its cliarter vacated 
 and annulled for such subversion of the object for wliicli it was 
 created.' 
 
 The Court of Appeals rested its affirmation of the decision in 
 People v. North River Sugar Bef. Co. on the sole ground that it 
 was unlawful for the corporation to enter into a partnership agree- 
 ment which in fact consolidated the corporations,^ the court sim- 
 ply declining to decide any other question in the case.' 
 
 The fact that the control of a corporation is by its charter vested 
 in a board of directors, seems to preclude such, corporation from 
 placing itself by contract in relations with other corporations or 
 individuals, which may involve liabilities not assumed by its con- 
 stituted authorities.* 
 
 But there are cases where corporations enter into contracts, which 
 would amount to partnerships if between individuals, and which, 
 whether with other corporations, or with individuals, are in fact in 
 the line of the corporate purpose. Under such circumstances, 
 
 ^People V. North River Sugar Ref. Co. 5 L. R. A. 387, 54 Hun, 354, 32 Abb. 
 N. C. 164. 
 
 ■People V. ]!forth River Sugar Ref. Co. 9 L. R. A. 33, 121 N. Y. 582. 
 
 ^See on this question as denying the power to unite in partnership, Catskill 
 Bank v. Gray, 14 Barb. 479; J/«^fo?-.V v. Hanaur Oil Works, 86 Tenu. 598; 
 Gunn V. Central R. Co. 74 Ga. 509; Whittenton Mills v. Upton, 10 Gray, 582, 
 71 Am. Dec. 681; Holmes v. Old Colony R. Co. 5 Gray, 58; Jones v. Par- 
 ker, 20 N. H. 31, 20 Am. & Eng. Corp. Cas. 485; Gill v. Manchester, S. 
 & L. R. Co. L. R. 8 Q. B. 186; Central R. & Bkg. Co. v. Smith, 76 Ala. 
 572; VanKuren v. Trenton L. & Mack. Mfg. Co. 13 N. J. Eq. 302; Lam- 
 oille Valley R. Co. v. Bixby, 55 Vt. 235; Ledsinger v. Central Line Steam- 
 ers, 75 Ga. 567; French v. Donohue, 29 Minn. Ill; Bissell v. Michiga7i S. 
 dk N. L R. Co. 22 N. Y. 258. 
 
 * Whittenton Mills v. Upton, 10 Gray, 582, 71 Am. Dec. 681; Kew Fork & S- 
 Canal Co. v. Fulton Bank, 7 Wend. 412.
 
 24:i COMBINATIONS TO MONOPOLIZE. 
 
 courts waiving the question of power to enter into a partnership 
 contract, sustain the engagement as being within the object con- 
 templated in the creation of the corporation.' 
 
 Of course where the purpose of tlie creation of the corporation 
 does not appear, an enterprise in which it may engage, even as a 
 partner, cannot readily be sin >\vn to be inconsistent with the object 
 of its creation.* 
 
 But the courts are specially solicitous to discountenance all con- 
 tracts or arrangements by those pul)lic servants which savor of a 
 purpose to stifle com})etition or repress rivalry in the departments 
 of business in which they ply their vocation.* 
 
 It has been denied that courts can reach "trusts," where they ex- 
 ist under partnerships; it being claimed that partnerships cannot be 
 restrained on the ground that their purpose is hostile to freedom of 
 trade.* But this is too broad an assertion, A partnership of that 
 character is subject to the restraining power of the court. It is im- 
 })0ssible under any form of contract to escape the control of a court 
 of equity.^ 
 
 § 57. €oin!niiatiou between Corporations witliout Partner- 
 ship. — It is undoul>tedly true that agreements between corpora- 
 tions as to certain mutual interests may rightfully be entered into, 
 without involving partnership liabilities, or constituting a contract 
 of partnership. Under proper circumstances and lawful purposes, 
 there may be a pooling of receipts without a partnership contract.* 
 
 ^Marine Bank v. Ogden, 29 111. 248; Cleveland Paper Co. v. Courier Co. 67 
 Micb. 152; Rider L. Raft Co. v. Roach, 97 N. Y. 378; Hackett v. Multno- 
 rah R. Co. 12 Or. 130; French v. Donohue, 29 Minn. Ill; Leggettv. Hyde, 
 58 N. Y. 278; Gill v. Manchester, S. & L. R. Co. L. R. 8 Q. B. 186. 
 
 •Shorb V. Beaudrp, 56 Cal. 446; Allen v. Woomocket Co. 11 R. I. 288; Butler 
 V. American Toy Co. 46 Conn. 136; Dal ton City Co. v. Button Mfg. Co. 
 33 Ga. 243. 
 
 ^State V. Hartford & iV. H. R. Co. 29 Conn. 538; Hooker v. Vandewater. 4 
 Denio, 349; Twells v. Pennsylvania R. Co. (Pa.) 3 Am. L. Reg. N. S. 728; 
 Western U. Teleg. Co. v. Chicago & P. R. Co. 86 111. 246; Coe v. Louisville 
 & N. R. Co. 3 Fed. Rep. 775; Mnnn v. Illinois, 94 U. S. 113, 24 L. ed. 77; 
 Woodstock Iron Co. v. Richmond <fe D. Extension Co. 129 U. S. 644, 32 L. 
 ed. %\%: Santa Clara M. dt L. Co. v. Hayes, 76 Cal. 287; Denver & iY. 0. 
 R. Co. V. Atchison, T. tt S. F. R. Co. 17 Fed. Rep. 667, and note by Hamil- 
 ton. 
 
 ■♦Dwight, Trusts, 3 Political Science Quarterly, 592. 
 
 "•Richardson v. Buhl, 6 L. R. A. 457, 77 Mich. 632. 
 
 *Briggs v. Vanderbilt, 19 Barb. 222; Leslie v. Lorillard, 1 L. R. A. 456, 110 
 N. Y. 519; Converse v. Norwich & N. Y. Transp. Co. 33 Conn. 166; Piatt 
 V. Ogdensburg cfc L. G. R. C>. 102 Mass. 557; Benedict v. Western U. Teleg.
 
 COMBINATION BETWEEN CORPORATIONS WITHOUT PARTNERSHIP. 245 
 
 But where such combinatious are made for the purpose of de- 
 stroying competition, and imposing unnatural and unreasonable 
 rates and charges upon the public, the fact that the corporations 
 forming the combination do not enter into any partnership arrange- 
 ment, will not relieve the contract in any way from its objection- 
 able features as a monopoly. 
 
 Rival steamboat owners sometimes form an engagement to di- 
 vide the profits of the carrying trade in a certain proportion witli- 
 out creating any partnership. The property rights and responsi- 
 bilities of the owner or owners of each boat remain as before the 
 arrangement is entered into. Xeither assumes any duty or obliga- 
 tion to the other that he is not under before the contract is made, 
 except that of pooUng the net profits earned by each, and dividing 
 them in certain proportions; but neitlier party is under any obliga- 
 tions to the other party to run his boat for a single day. Neither 
 party is bound to keep his boat well manned or in good and safe 
 condition. The only tie common to both is that of dividing the 
 net profits. There is in such relations a strong stimulation to in- 
 crease these net profits by means other than that of legitimate poi> 
 ularity with the public, resulting from efficient carrying service and 
 public accommodation. If one boat can, no matter at what detri- 
 ment and inconvenience to the public, perform the service, there 
 is no inducement to the others to run. It is to the interest of each 
 owner for the other boats to tie up, reducing expenses and increas- 
 ing the net profits. It is to the interest of each to sustain extoi-- 
 tionate rates, as each shares the spoil. The public are thus de- 
 prived of all competition and of any reasonable prospect of relief 
 from extortionate charges, for if another boat enters the field, the 
 boats of the combination are ready to cut prices below living rates. 
 
 Competition serves the public in securing prompt, efficient car- 
 riage, attentive, courteous treatment and reasonable prices. With- 
 out competition it is not in the "law of carriers" to enforce care 
 for the safety and comfort of the public, with efficient service. 
 Such a combination therefore between carriers is prima facie at 
 least in direct conflict with public policy, and will not be sustained 
 
 Co. 9 Abb. N. C. 214; Lancaster & C. R. Co. v. North Western R. Co. 
 2 Kay & J. 293; Manchester & L. R. Co. v. Concord R. Co. (N. H.) 9 L. 
 R. A. 689; Hare v. London d N. W. R Co. 2 Johns. «fc H. 80.
 
 246 COMBINATIONS TO MONOPOLIZE, 
 
 bv the courts/ And an agreement between the proprietors of five 
 lines of canal l)oats to charge a uniform rate and divide the com- 
 mon earnings is condemned as a conspiracv.° 
 
 A contract arising out of such an agreement is illegal and void.' 
 But a combination which does not injuriously affect the public, 
 cannot be set aside at common law, and without the aid of a stat- 
 ute, at the instance of an individual carrier, on the ground of spe- 
 cial injury to liim. Thus a combination of ship owners to keep 
 trade in their o^\'ll hands bv srivins; a rebate on freights is not un- 
 lawful as to a rival carrier exchided therefrom.* 
 
 ^Anderson v. Jett (Ky.)6 L. R. A. 390. 
 
 ^Hooker v. Vande^oater, 4 Denio, 349. 
 
 "Stanton v. Allen, 5 Denio, 434. 
 
 *Mogul Steamship Co. v. McGregor, L. R. 31 Q B. Div. 544.
 
 CHAPTER XII. 
 
 TRADE TRUSTS. 
 
 i§ 58. Right to GomMne for Lawful Objects. 
 
 a. Car Trust. 
 
 b. Contracts among Corporations to Prevent Buinotis Com- 
 
 petition. 
 
 59. Corporate Combinations to Prevent Fair Com2)etitio7i ; " Trade 
 
 Trusts." 
 
 60. General Acts of Incorj)oratio)i loill not Authorize the Formation 
 
 of Trusts. 
 
 61. Corporation Representing a Trust cannot Act in Foreign Ter- 
 
 ritory without Local Authority. 
 
 § 58. Right to Combine for Lawful Objects. — It is the 
 
 right, and perhaps it may be said to be the social duty of every 
 man to work and produce in some lawful vocation, and it is 
 •equally his privilege to transport his production under equal terms 
 and conditions and under like circumstances to the most profitable 
 market. It is this unchallenged right to produce and sell in the 
 best market which constitutes industrial liberty. Equally exists 
 the right to combine and unite the labor or capital of individu- 
 sX& in a common venture. This right is recognized by the law of 
 partnerships, which defines what are lawful partnerships,* and 
 what do not constitute such.* 
 
 ^Central R. & Bkg. Co. v. Smith, 76 Ala. 572; Dalton City Co. v. Dnlton Mfg. 
 Co. 33 Ga. 243; PilcTier^s Succession, 39 La. Ann. 362; Kelleyv. Bourne, 15 
 Or. 476; Clift v. Barrow, 10 Cent. Rep. 715, 108 N. Y.187; MaUory v. Ha- 
 nmir Oil Works, 86 Tenn. 598; Smith v. Walker, 57 Mich. 456; Paul v. 
 Cullum, 132 U. S. 539, 33 L ed. 430; Com. v. Smith, 10 Allen, 448; Peo- 
 ple V. Noi-th River Sugar Ref. Co. 9 L. R. A. 33, 121 N. Y. 582; Buzard 
 V. McAmdty, 77 Tex. 438; Charlton v. Netccnstle, & 0. R. Co. 5 Jur. N. S. 
 1097; Marine Bank v. Ogden, 29 111. 248; Dubos v. Hoover, 25 Fla. 720; 
 Ontario Salt Co. v. Merchants Salt Co. 18 Grant Ch. 540; Righter v. 
 Fan-el, 134 Pa. 482; Southern Fertilizer Go. v. Reams, 105 N. C. 283; Gill 
 V. Manchester S. <&L. R. Co. L. R. 8 Q. B. 186. 
 
 ■^Merchants Nat Bank v. Pendleton, 29 N. Y. S. R. 891; Clark v. Barnes, 72 
 Iowa, 563; Hackett v. Multnomah R. Co. 12 Or. 129; Rockafellow v. Miller, 
 9 Cent. Rep. 862, 107 X. Y. 507; Blair v. Scfmeffer, 33 Fed. Rep. 218; 
 Whittenton Mills v. Upton. 10 Gray, 582; Ledsinger v. Cevtral Line Steam- 
 ers,15 Ga. 567; Bueardv. First Nat. Bankof GTeenmlle,Q'7T!ex. 83; Conkling
 
 248 TKADE TRUSTS. 
 
 Like the enterprise of the individual the pursuit entered upon 
 by a partnership is open to all other partnerships, and this com- 
 bination of individuals as partners in no wav infringes upon in- 
 dustrial liberty. It simply aids production by increasing results 
 at reduced expense. Such combinations are in no way opposed 
 by the law. Xor is the union of labor and capital, in the recog- 
 nized form of a corporation, to carry on any lawful business, op- 
 posed to public policy. Indeed in most of the states it can no 
 longer be regarded as even in form a monopoly, much less in fact, 
 for upon tlie same terms the right to form such corporate union 
 is equally open to all and equally limited in its purpose and exer- 
 cise by express statute. 
 
 a. Car Trust. — Such union of persons upon car trust plan is 
 of modern date. Tlie car trust plan, for the sale of railroad 
 equipment, is simply to supply a company or individual with such 
 equipment as may be wanted, on a basis of a small payment in 
 cash at the time of delivery, and the balance, in amounts monthly, 
 extending over a period that will result in the earning capacity 
 of such equipment being equal to the monthly payment, and con- 
 sequently avoiding the necessity of further advance on the orig- 
 inal cost and it becomes the absolute property of the bailee, condi- 
 tional vendee or lessee, after payment of all tlie monthly install- 
 ments. 
 
 Insurance is effected by the "car trust" company for mutual 
 protection, so that no serious loss results to the vendor. 
 
 The price charged for equipment on this plan, it is usually 
 claimed, is the same as though sold on a cash basis. 
 
 From this price the "car trust" company usually deducts 25 
 per cent, to be paid in cash at the time of delivery, and to the 
 balance adds an average of 6 per cent per annum interest, and a 
 small commission for the use of the money, and the risk taken in 
 the business, charged in proportion to the extent of the trust. 
 The sum is then divided into equal amounts, payable monthly, 
 over the desired time. 
 
 "Car trusts" are arranged on locomotives, passenger and street 
 
 V. Washington University, 2 Md. Ch. 497; Fitzellv. Leaky, 72 Cal. 477; 
 Noonan v. Nunan, 76 Cal. 44; Wilson v. Edmonds, 130 U. S. 472, 32 L. 
 ed. 1025; Durkeev. Gunn, 41 Kan. 496; Hall v. Glessner, 100 Mo. 155;. 
 Morgan v. Farrel, 58 Conn. 413.
 
 CAK TRUSTS. 249' 
 
 railway equipment, new or second hand, and in some cases on 
 rails and track material. 
 
 The essential features of a "car trust association" consist usually 
 of the formation of a partnersliip by an instrument of writing, 
 for the purpose of buying, selling and leasing railroad stock to 
 railroad corporations. 
 
 These articles of association usually provide for admitting other 
 persons to membership, who may acquire, by assignment, the in- 
 terest held by individuals on the original formation of the part- 
 nership. 
 
 The members of a "car trust" agree to furnish money for the 
 purchase of the rolling stock, and receive certiticates for the 
 amount so furnished, providing that the principal sum contributed 
 by each member shall be repaid in certain annual installments 
 with interest; both principal and interest, where the form of lease 
 is adopted in preference to that of sale, being payal)le only out of 
 what are called the rentals received for the rolling stock. 
 
 Under some forms of management instead of the lease, as it is 
 called, being made to the railroad company directly by the "car 
 trust," a plan is adopted by which the "car trust" transfers the 
 property to a designated loan and trust company as trustee; which 
 trustee issues certiticates to the members of the "car trust," and 
 also executes tlie lease to the railroad company, with provisions 
 for a rental sufficient to meet the above payments of principal and 
 interest in addition to expenses, including taxes. In this manner, 
 the railroad company obtaining what is called a lease of the rail- 
 road equipment, becomes bound according to the terms of the 
 lease to make payments which in the course of the existence of 
 the lease will discliarge in full the debt for the rolling stock, on 
 which payment the rolling stock becomes the property of the 
 railroad company. 
 
 At all meetings every shareholder is to have one vote for each 
 share of stock owned by him; and provision is made in the articles 
 of association for the transfer of shares, and the association is not 
 to be dissolved upon death of the members. Every owner of one 
 or more shares is to be entitled to a proportionate share of rentals 
 received. The losses, if any, must be borne proportionately. 
 
 In the articles organizing such associations there are provisions
 
 250 TRADE TRUSTS. 
 
 made looking to the purchase of rolHng stock from time to time, 
 and to the issue of new certificates to those who shall advance the 
 money on the occasion of each purchase, and to the making of a 
 new and separate lease on each lot or series of rolling stock. 
 
 As such new certificates may be issued to diif erent persons from 
 those who have contributed money for the first purchase, it would 
 seem that the holders of each series or separate issue of shares, 
 would, in such a case, constitute a partnership by themselves under 
 the same provisions of management, where there is no interme- 
 diate form between a corporation and a partnership, like the joint 
 stock companies of England and of some of the United States, 
 In such cases, where the association is not a corporation, its mem- 
 l)ers must be partners, for they cannot be looked upon as simply 
 co-owners.' 
 
 Where it is permissible under the local statute, the articles of 
 agreement provide, among other things, that only the property of 
 the association shall be liable for its debts; the members not to be 
 liable individually; and the affairs of the association are controlled 
 by a committee chosen from the members. 
 
 Frequently the association contracts directly with the railroad 
 company desiring equipment, usually under the form of a lease, 
 with a cash payment upon the delivery of the rolling stock and 
 monthly pa^'ments thereafter, extending from one to three years, 
 and amounting to the actual value of the equipment furnished, 
 with a sufficient margin added to cover the interest and risk 
 incurred. It is usually stipulated that the title shall remain in the 
 vendor until the payment is completed. 
 
 The railroad company executes a contract authorizing the car 
 trust association to take possession of the property, upon the 
 failure of the railroad company to pay its installments, or to keep 
 the rolling stock in reasonable repair; and, in such case, the prop- 
 erty is to be sold for the indebtedness remaining due and the 
 account settled between the railroad company and the car trust 
 association. 
 
 Occasionally these contracts take the form, on their face, of a 
 •conditional sale or with lien reserved. But, in all instances, the 
 
 1 Whitman v. Porter, 107 Mass. 523; Eoadley v. Middltsex County Comrs. 105 
 Mass. 519; Oleason v. McKay, 1-34 Mass. 419-425: Richer v. American 
 Loan & T. Co. 1 New Eng. Rep. 733, 140 Mass. 346.
 
 CAR TRUSTS. 251 
 
 Tailroad company executes its notes, which are variously styled, 
 lease warrants, promissory notes, or debentures, the whole trans- 
 action forming what is commonly known as a car trust con- 
 tract, which is transferred by the car trust association to the 
 trustee, who indorses upon the lease warrants, notes or deben- 
 tures that he holds, the contract as security for their payment. 
 
 In otlier instances the car trust association executes its own 
 debentures, depositing the contract, with the notes or lease war- 
 rants given under it, with a trustee. In Pennsylvania the present 
 sale or delivery of personal property to the vendee, coupled with 
 an agreement that the title shall not vest in the latter unless he 
 pays the price agreed upon, at the time appointed therefor, and 
 that in default of such payment the vendor may recover posses- 
 sion of the property, is held to be quite different in its effect from 
 a baihnent for use, or, as it is sometimes called, a lease of propertv 
 coupled with an agreement whereby the lessee may subsequently 
 become the owner of the property, upon the payment of the price 
 agreed upon. It is there ruled that, as between the parties to 
 such contracts, both are valid and binding, but, as to the creditors, 
 the latter is good while the former is invalid.' 
 
 The ruling in Alabama is consistent Math this rule.' But in a 
 aate case the Supreme Court of Pennsylvania has decided that 
 where the property is said to l)e '' leased " for a certain gross sum, 
 with the stipulation that the title shall remain in the vendor until 
 full payment of that sum, with a condition that possession shall 
 revert to the vendor on any default in payment, the contract, 
 although called a "" lease," is manifestly a sale.' 
 
 Transactions of this nature are not confined to the rolling stock 
 of railroads, but include pianos and organs, sewing machines as well 
 as furniture. They are usuallv in the form of a lease, reservinor as 
 rent an amount which upon the expiration of the time during which 
 the payments run, fully covers the value of the articles sold, in addi- 
 tion to interest and risk. The stipulation in the contract reserves 
 the title in the vendor and is intended to avoid the publicity of a 
 
 ^Forrest v. Nelson, 108 Pa. 481; Chamberlain v. Smith. 44 Pa. 431; Henry v. 
 
 Patterson, 57 Pa. 346; Rowe v. Sharp, 51 Pa. 26; Enlow v. Klein, 79 Pa. 
 
 488; Crist v. Kleber, 79 Pa. 290; Becker v. Smith, 59 Pa. 469. 
 *McCaa V. Potcell, 64 Ala. 254. 
 ■'Summerson v. Hicks. 134 Pa. 566.
 
 252 TRADE TRUSTS. 
 
 recorded chattel mortgage; and altliongli this is apparent upon the- 
 face of tlie transaction, conrts have sometimes held that, if the 
 buyer saw lit to sign the lease, he must be regarded as bailee and 
 not as a purchaser.' 
 
 But generally courts will not so construe the transaction, but 
 regard it, not as a lease or renting, but as a conditional sale with 
 title reserved in the vendor until the purchase price is paid.' 
 
 In determining tlie real character of a contract, the courts will 
 always look to its purpose rather than to the name given it by the 
 parties. The transaction is not changed by assuming the form of 
 a lease.' 
 
 In Murch v. Wright, 46 111. 487, a contract of this character 
 being under review, it was said that it was a mere subterfuge to 
 call tlie transaction a lease. 
 
 It is evident in these transactions tliat the parties do not con- 
 template the full payment of the value, in a short period of time, 
 for the mere use of the article said to be leased; and in all 
 instances the sale of the article is admitted to be completed on 
 the payment of the last installment. Such contracts are treated 
 almost uniformly by the courts as conditional sales. It has been 
 60 held where parties expressly contracted ''that no agreement of 
 sale of said piano forte is implied." * 
 
 Various acts have been passed by the legislatures of many of 
 the states, declaring that the bailment, lease or conditional sale, 
 
 ^Bean v. Edge, 84 N. Y. 510; HaxiVand v. Johnson, 7 Daly, 297; Amtin v. 
 Dye, 46 N. Y. 500; Sargent v. Gile, 8 N. H. 335; Bailey v. Colby, 34 N. 
 H". 29. 
 
 ^Guilford v. McKinley, 61 Ga. 233. 
 
 ^Hervey v. Rhode Island LocomoUvc Works, 93 U. S. 673, 23 L. ed. 1003. 
 
 '^Gerow v. Castello, 11 Colo. 560; Fosdick v. Southwestern Car Co. 99 U. S. 
 256, 25 L. ed. 344; Fosdick v. Schall, 99 U. S. 235, 25 L. ed. 33H; Huide 
 koper V. Hinckley Locomotive Works, 99 U. S. 258, 25 L. ed. 344; Hervey 
 V. Rhode Island Locomotive Works, 93 U. S. 664, 23 L. ed. 1003; Hays v. 
 Jordan, 9 L. R. A. 373. 85 Ga. 741: Singer Mfg. Co. v. Cole, 4 Lea, 439; 
 Knittelv. Cashing, 57 Tex. 354; Loomis v. Bragg, 50 Conn. ^^S; Singer. 
 Mfg. Co. V. Graham, 8 Or. 17; Lucas v. Ca?npbell, 88 111. 447; Greer v. 
 Church, 13 Bush, 430; Gerrish v. Clark, 6 New Eng. Rep. 414. 64 N. H. 
 492; Gorham v. Holden, 4 New Entr. Rep. 502, 79 Me. 317; Currier v. 
 Knapp, 117 Mass. 324; Carpenter v. Scott, 13 R. I. 477; Sage v. Slevtz, 23- 
 Ohio St. 1; Singer Serving Ma cJi. Co. v. Ilolcomb, 40 Iowa, 33; I)e Saint 
 Germain v. Wind, 3 Wash. Terr. 189: Whitcomb v. Woodworth, 54 Vt. 544; 
 Hintermister v. Lane, 27 Hun, 497; Price v. McCallister, 3 Grant, Cas. 248;. 
 Cole V. Berry, 42 N. J. L. 308; Sumner v. Cotley, 71 Mo. 121; Domestic- 
 Sewing Mach. Co. V. Anderson, 23 Minn. 57.
 
 CAK TRUSTS. 253 
 
 •or sale by the manufacturer or builder of rolling stock of railroad 
 -companies, with a reservation of title, possession being given, 
 •shall only be valid when the contract is in writing, signed, acknow- 
 ledged and filed for record in the recorder's office in each county 
 through which the railroad runs and upon which the rolling 
 stock is to be used. Such enactments are in force in Illinois, 
 ■Colorado (Gen. Stat. 1883, § 169), Dakato, Washington, ]S'ew 
 Mexico, Minnesota, "Wisconsin, Ohio, Delaware, Xew Jersey, 
 Maryland, IS^orth Carolina, West Virginia, Alabama, Kentucky, 
 Tennessee, New York (Acfof 1881:, chap. 315, §§ 1, 2), Iowa 
 (Kevised Code 1880, §§ 19, 20), South Carolina (Gen. Stat. 1882, 
 |§ 20-22. Also Acts of 1882, chap. 20), Missouri (Rev. Stat. 
 1879, § 2505). 
 
 In some states, as in Illinois, such a contract is declared to be 
 binding only for four years and not renewable. In other states a 
 longer period of time is given. By some statutes, the rolling 
 ^tock is required to have prominently placed thereon an owner- 
 ship plate or mark. 
 
 Enactments somewhat dissimilar exist in most of the other 
 states, sometimes declaring such contract void if not recorded, as 
 against purchaser or creditors without notice, and others denying 
 their validity even where there has been actual notice.' 
 
 There are also various provisions among the different states 
 applying in terms to chattel mortgages, limiting the time of their 
 renewal. 
 
 It is evident, from this class of legislation, that whether the 
 contract between the "car trust" company and the raih-oad com- 
 paiy be a bailment for hire containing no option of purchase; or 
 conditioned that when the hire contracted to be paid is received, 
 the rolling stock becomes the property of the railroad company; 
 or, if it be in the form of a lease with or witliout the condition 
 that the property pass when the rental is paid ; or even, if the 
 form of a conditional sale is used — which probably truly expresses 
 the intention of the parties — it will be necessary, in order to pro- 
 tect the car trust association in its right of property as 
 against third parties, that the instrument affecting the transfer of 
 the rolling stock shall be recorded, in conformity to the statutory 
 
 ^Henderson v. Morgan, 26 III. 431; Portei- v. Dement, 35 111. 479.
 
 254 TRADE TKUSTS. 
 
 requirements, as tliongh tlie contract assumed the form of a sale,, 
 in terms securing the purchase money by a chattel mortgage. 
 
 In .some of the states the formaUties authorizing the recording 
 of such an instrument are pecuHar. In New Hampshire the ven- 
 dor and purchaser, upon a conditional sale of chattels, are required 
 to make and subscribe an athdavit that tlie memorandum is made 
 for the purpose of witnessing the lien and the sum due thereon, as 
 specified in the instrument, and for no other purpose whatsoever; 
 and that such lien and the sum due thereon were not created for 
 the purpose of enaljling the purchaser to execute the instrument, 
 but that the lien is a just lien, and the sum said to be due thereon is 
 hc>nestly due and owing from the purchaser to the vendor. And 
 under this statute a lien retained for the price, upon the condi- 
 tional sale of chattels, is held good against an assignee in insol- 
 vency of the conditional vendee, although the affidavit is not 
 made entitling the instrument to record.' 
 
 In the case of a conditional sale, where the statutory require- 
 ments as to notice are strictly complied with, as no title has 
 passed from the purchaser, there can be no lien ac(juired by sub- 
 sequent incumbrances upon the property, nor can a title be 
 acquired by the purchaser, except by complying with the condi- 
 tion of a sale, unless the vendor waive such precedent condition, 
 and whether such waiver has occurred or not is generally a ques- 
 tion of fact for the jury." Of course if the condition as to pay- 
 ment before the title passes be waived, the title passes to the ven- 
 dee, and is subject to all liens against his property.^ 
 
 Where under a purchase it is agreed that, although the property 
 is delivered, the title shall remain in the vendor until the price is 
 paid, it is a conditional sale, no matter what form the transaction 
 may assume.* 
 
 ^ Adams v. Lee, 6 New Eng. Rep. 413, 64 N. H. 421. 
 
 ^Farlow v. Ellis, 15 Gray, 229. 
 
 ^Whitmy v. Eaton, 15 Gray, 225; Seed v. Lord, 66 ile. 580; Stone v. Perry ^ 
 
 60 Me. 48. 
 < Wniertown S. E. Co. v. Davis, 5 Houst. (Del.) 192; Bryant v. Crosby, 36 
 
 Me. 562; Uervey v. Rhode Island Locomotive Works, 93 U. S. 664, 23 L. 
 
 ed. 1003; Hays v. Jordan, 9 L. K A. 373, 85 Ga. 741; Hinter- 
 
 mister v. Lane, 27 Hun, 497; Oeroio v. Uastello, 11 Colo. 560; Currier v. 
 
 Knapp, 117 Mass. 324; Eowan v. Union Arms Co. 36 Vt. 124; Bryant v. 
 
 Crosby, 36 Me. 562; Conway v. Alexander, 11 U. S. 7 Cranch, 218, 3 L. 
 
 ed. 321; Glover v. Payn, 19 Wend. 518; Logwood v. I£ussey,GO Ala. 417; 
 
 Thompson v. Chumney, 8 Tex. 389.
 
 CAR TKUSTS. 255 
 
 It is only by express statute, that under a conditional sale, 
 where no record of the transaction has been made, parties ignor-^ 
 ant of the title may assert their liens as against the vendor/ 
 
 In such eases the vendor is estopped from asserting his title, on 
 the ground that it would operate as a traud upon the innocent 
 purchaser, the vendor having neglected to preserve the insignia 
 of title as required by statute.' 
 
 An attempt has been made to include in the property which 
 may be protected by a reservation of title on its sale, the rails and 
 other property which becomes affixed to and a part of a railroad, 
 covered by a prior mortgage ; as well as bridges and bridge 
 materials. But the courts have held that whatever may be the 
 rule applicable to locomotives and cars and loose property suscep- 
 tible of separate ownership and of separate liens, and to real estate 
 not used for railroad purposes, as to tlieir being affected by a 
 prior mortgage given by a railroad company covering after 
 acquired property, it is well settled, in the decisions, that rails and 
 other articles which become affixed to and a part of the railroad 
 covered by a prior mortgage will be held by the lien of such 
 mortgage, in favor of bona tide creditors, as against any contract 
 between the furnisher of the property and the railroad company.* 
 
 A mortgage of a railroad and all its property, real and personal, 
 includes and covers old iron rails, etc., taken up from the road as 
 useless and replaced by new, and also new rails purchased to be 
 laid on the road, but which have not been actually laid.^ 
 
 ^Earknes v. Russell, 118 U. S. 667, 30 L. ed. 286; Marvin Safe Co. v. Norton, 
 23 Rep. N. J. 343; EcereM v. Hall, 67 Me. 497; King v. Bates, 57 N. H. 
 446; Benner v. Pvffer, 114 Mass. 376; Lanmaii v. McGregor, 94 Ind. 301. 
 
 "'March Y.Wright, 46 111. 487; Ouilford v. McKinlei/, 61 Ga. 232; Greer v. 
 Church, 13 Bush, 430; Bobbins v. Phillips, 68 Mo. 100; Hervey v. Rhode 
 Island Locomotive Works. 93 U. 8. 672, 23 L. ed. 1003; Domestic Sewing 
 Mach. Co. V. Anderson, 23 Minn. 57; Gerrish v. Clark, 6 New Eng. Rep. 
 414, 64 N. H. 492. 
 
 ^Thompson v. White Water Valley R. Co. 132 LT. S. 68. 33 L. ed. 256; Porter 
 V. Bessemer Steel Co. 122 U. S. 267, 30 L. ed. 1210; iJiinham v. Cincinnati, 
 P. & C. R. Co. 68 U. S. 1 Wall. 254, 17 L. ed. 584; Galveston H. & H. 
 R. Co. V. Cowdrey, 78 U. S. 11 Wall. 459, 480, 482, 20 L. ed. 199-206; United 
 States V. New Orleans R. Co. 79 U. S. 12 Wall. 362-365, 20 L. ed. 434- 
 436; Dillon v. Barnard, 88 U. S. 21 Wall. 430-440, 22 L. ed. 673-678; 
 Fosdick V. ScJiall, 99 U. S. 235-251, 25 L. ed. 339-342. 
 
 * First Nat. Bank of Salem v. Anderson, 75 Va. 250; Weetjen v. St. Paul P. 
 R. Co. 4 Hun, 429; Palmer v. Forbes, 23 111. 301; Farmers Loan & T. Co. 
 V. Commercial Bank, 11 Wis. 207, 15 Wis. 424; Farmers Loan tfe T. Co. 
 V. Gary, 13 Wis. 110; Dinsmore v. Racine & M. R. Co. 12 Wis. 649; 
 BrainardY. Peck, 34 Vt.496.
 
 256 TRADE TRUSTS. 
 
 But rails laid down to form a temporary track to obtain gravel 
 from a pit, or to take stones from a quarry, or to take freight 
 from a certain point, become no part of tlie railway, and do not 
 pass under a general mortgage of the railroad.' Nor do tools and 
 •other implements which have been merely used in repairing the 
 railway or the machinery used upon it, but are not in any way 
 attached to the realty, pass under such a mortgage. And the 
 same is true as to coal, wood and other materials used for fuel. 
 !Xor will office furniture nor an iron safe be subject to such a 
 mortgage.* 
 
 Such a mortgage only follows and attaches to any property 
 which is an accession to the thing granted, which is embraced 
 within the power of a company as it existed when the mortgage 
 was executed.' Indeed under the term "appurtenances" as used 
 in a mortgage made by a railroad company upon its road, only 
 such property passes as is indispensable to the use and enjoyment 
 of the franchise of the company. Although'a railroad company 
 possess a separable legal interest in an elevator, it is not appur- 
 tenant to its railroad, within the meaning of a inortgage upon the 
 railroad and its appurtenances, where the building is situated 
 more than half a mile from the railway and is erected on land not 
 belonging to the company.* 
 
 The rolling stock purchased by a railroad company does not 
 <}ome under a prior mortgage, where the title is reserved to the 
 vendor, so long as the purchase price remains unpaid. Where 
 rolling stock consisting of two locomotives and ten cars had been 
 sold to the New Orleans & Ohio R. Co. by the United States 
 in 1866, and simultaneousl}^ the company gave to the United 
 States a bond for the purchase money, wherein it was stipulated 
 that the latter should have a lien therefor upon the property sold, 
 and that the company should not sell it or part with it until the 
 payment of the price, without the consent of the United States,' 
 it was held that a prior mortgage by the railroad company cover- 
 
 ' Van Keuren v. New Jersey Cent. R. Co. 38 N. J. L. 165. 
 
 ^Ilunt V. Bullock, 23 111. 320. But, on this question examine Coe v. Mc- 
 
 Brown, 22 Ind. 252; Titus v. Mahee, 25 111. 257. 
 ^Seymour v. Canandaigua & N. F. R. Co. 25 Barb. 284; Shaw v. Bill, 95 U. 
 
 S. 10, 24 L. ed. 333; Elwell v. Orand St. & K. R. Co. 67 Barb. 83; Meyer 
 
 V. Johnston, 53 Ala, 237. 
 ^Humphreys v. McKissock, 140 U. S. 304, 35 L. ed. 473.
 
 CAR TRUSTS, 257 
 
 ing all future acquired property attached only to such interests 
 therein as the company acquires subject to any liens under which 
 it came into the company's possession; and, that if the company 
 purchases property subject to a lien for the purchase money, such 
 lien is not displaced by the general mortgage. That if the com- 
 pany gives tlie mortgage for the purchase money at the time of 
 the purchase, such mortgage, whether registered or not, is pre- 
 cedent of the general mortgage, A mortgage of after acquired 
 property only attaches to the property in the condition in which 
 it came into the hands of the morto-ao^or. If it comes into his 
 hands incumbered already with a lien, the mortgage attaches sub- 
 ject to that lien,' 
 
 The ordinary experience of railroad building is the acquirement 
 of the franchise, the organization of the corporation and the plac- 
 ing of the first mortgage upon the property with the usual "after 
 acquired property" clause in it. The construction of the railroad 
 proceeds; it is finished; rolling stock is necessarj-, and the corpo- 
 ration acquires it under a conditional sale contract of purchase. 
 The enterprise is a failure; the mortgage interest is unpaid; the 
 trustee discharging its duty, is bound to know that the rolling 
 stock is held subject to the liens attending its purchase. It asks 
 the court to take possession, not alone of the railroad, but also of 
 the rolling stock thus acquired and held. The application is not 
 resisted. The court is ignorant of the history of the enterprise; 
 it sustains the application and appoints a receiver, and the road is 
 taken possession of by that receiver. It cannot be held that such 
 possession, taken at the instance of the trustee, casts no burden on 
 the road, either for the purchase price or rental, prior to the claim 
 of the original mortgage, • The trustee cannot forcibly, through 
 the power of the court, compel an aj^propriation of this rolling- 
 stock for the benefit of its property subject to its lien, without 
 compensation. Its application for possession carries with it an 
 assent that at least rental for such rolling stock shall be paid as 
 one of the expenses of the receivership, which it has invoked." 
 
 ^New Orleans & 0. R. Co. v. Mellen, 79 U. S. 362, 20 L. ed. 434; Beallv. 
 \V7ute, 94 U. S. 382, 24 L. ed. 173; Pennock v. Coe, 64 U. 8. 23 How. 
 117, 16 L. ed. 436; Loomis v. Davenport & St. P. R. Co. 17 Fed. Rep. 
 301; Florida Y. Anderson, 91 U. S. 667, 13 L. ed. 290; Wright \. Ken- 
 tucky d: O. E. R. Co. 117 U. S. 72, 29 L. ed. 821. 
 
 ^Kneeland v. American Loan <fc T. Co. 136 U. S. 89, 34 L. ed. 379. 
 
 IT
 
 258 TKADE TRUSTS. 
 
 "When the courts will thus equitably protect the rights of a 
 vendor under his contract of conditional sale, it would seem 
 reasonable that all pretenses of '"leasing" should be avoided, and 
 the vendor stand squarely on his real contract. 
 
 In England a lien upon the personal as well as real property 
 need not be registered as a bill of sale.' 
 
 But although creditors not having actual notice of an unre- 
 corded lien, may levy upon the property in the possession of the 
 corporation, notwitlistanding the lien creditors have instituted 
 foreclosure proceedings,^ yet, as between the parties thereto, such 
 unrecorded mortgage is effective and has priority over the claims 
 of other persons who became creditors of the corporation with 
 actual knowledge of the lien, unless the statutes expressly provide 
 otherwise.^ 
 
 So a mortgage of a railway and its after acquired property 
 will not extend to property obtained by it through fraud; so that 
 the title thereto does not vest in it. Nor will it extend to prop- 
 erty acquired by it illegally and without authority.* 
 
 It may therefore be said that a car trust with debentures 
 issued by the vendor, secured by the assignment to the trustee of 
 the notes, and of a properly recorded contract of conditional sale, 
 which does not pass the title to the vendee until full payment is 
 made, is a safe investment, if the equipment furnished is at all in 
 proportion to the reasonable needs of the railway company. Or 
 such trust will be ordinarily sufficient, if resting directly upon th& 
 notes and contract of conditional sale, without the debentures of 
 the equipment company; as the purchaser of the notes, secured 
 by the deposit in trust of the conditional contract, is assured that 
 no subsequent incumbrances can attach to the equipment, and 
 
 ^Bead v. Joannon, L. R. 25 Q. B. Div. 300: Edmonds v. Blaina Furnaces Co. 
 L. R. 36 Ch. Div. 215. Sopham v. Greuside, L. R. 37 Cli. Div. 281; 
 Brocklehurst v. Manchester 8. T. Co. 34 Week. Rep. 568. 
 
 •Woe V. New Jersey Midland R. Co. 31 N. J. Eq. 105. 
 
 ^"Coe V. Columbus, P. & I. R. Co. 10 Oliio St. 372, 75 Am. Dec. 518 
 
 ^Branch v. Atlantic & O. R. Co. 3 Woods, 481; Randolph v. New Jersey ^Y. 
 L. R. Co. 28 N. J. Eq. 49; Coe v. New Jersey Midland R. Co. 31 N. J. 
 Eq. 105; Meyer v. Johnston, 53 Ala. 237; Williamson v. New Jersey S. R.^ 
 Co. 28 N. J. Eq. 277; 29 N. .J. Eq. 311; Field v. Post, 38 N. J. L. 346 
 Frazier v. Fredericks, 24 N. J. L. 162.
 
 CAR TRLSTS. 25{) 
 
 that a mortgao;e of after acquired property only attaches to such 
 interests as the mortgagor acquires.' 
 
 As the courts have, disregarding foi-ms, held contracts of lease 
 of equipments to be " a mere subterfuge,' '" there seems no reason 
 to cloud a legitimate transactictn of conditional sale with suspicion, 
 by adopting the discredited disguise of a lease. Especially is this 
 true when we notice that some of the courtc have held the parties 
 to the form adopted by them, when the interests of justice require 
 such a ruling/ 
 
 In this view the danger of such a contract becomes apparent, 
 when it is considered that the possession under the so-called lease, 
 with a contract of conditional sale, may be held as only taken 
 under the lease, and if the property is destroyed before the time 
 of transferring the title under the terms of tlie conditional sale, the 
 latter contract may be held annulled, by reason of the failure of 
 consideration, through the loss of the property, and the resulting 
 inability of the vendor to deliver the property. Under such cir- 
 cumstances a court of equity will refuse to enforce the contract of 
 sale, holding no sufficient possession has been taken under that 
 contract, but only under the lease. 
 
 In a recent case it was ruled tliat one in possession of property 
 under a contract to lease it at a fixed monthly rental for five years, 
 and contracting that at the end of that time he would purchase it 
 at a stipulated price, will not. before the expiration of tlie five years, 
 be held to have entered under his contract to purchase fcr the pur- 
 pose of enforcing specific perforinance against him, and in case the 
 property is destroyed by tire w^ithin that time, his obligation to 
 purchase is at an end. 
 
 The court held that for the purpose of determining the liability 
 of the party in possession under his agreement of lease and subse- 
 quently to purchase, in case of the destruction of a material part 
 of the property prior to the time for payment and conveyance, 
 this distinction between the lease and agreement of purchase ought 
 to be made. That a party entering under such a contract should 
 
 ^ Williamson V. New Jersey S. R. Oo. 28 N. J. Eq. 377. 29 N. J.Eq. 311; 
 Eamn v. Emery, 33 N. H. 66. 
 
 '^Murch V. WrigU, 46 111. 487; Guilford v. McKinley, 61 Ga. 232, and author- 
 ities previously cited. 
 
 ^Beam v. Edge, 84 N. Y. 510, and authorities cited.
 
 200 TRADE TRUSTS. 
 
 be deemed, when the object is the enforcing of a most inequitable 
 habihty, to have entered afid to be holding under his contract of 
 lease, as his possession could be referred to either the lease, or to 
 the contract of purchase, as distinct from the lease. There can be 
 no doubt that during the term uf the lease he would hold under that. 
 
 His right to remain in possession M'ould depend on his payment 
 of what the parties to the contract themselves designate as rent, 
 and the performance of other covenants of the lease, and would be 
 determined by failure so to pay and perform.' 
 
 But under a contract of conditional sale, when possession is 
 taken undei- the terms of the contract itself and no further instru- 
 ment is necessary to pass the title, which is complete by the terms 
 of the contract on full payment l)eing made, equity will undoubt- 
 edly enforce the completion of the purchase.* 
 
 b. Contracts among Corporations to Prevent Ruinous 
 Competition. — A contract between two rival and competing rail- 
 road companies, the purpose or result of which is to prevent un- 
 healthy competition, and which does not raise rates of transportation 
 above the standard of fair compensation, or violate any duty that is 
 owing to the public from noncompeting roads, is not void as 
 against pul)lic policy.^ 
 
 And it has been held that where a corporation, to avoid ruinous 
 competition and litigation with a rival company, and to prosecute 
 the business with more benelicial results to its stockholders under 
 its own control, pursuant to an arrangement with the rival com- 
 pany, assigns its business and its patents to a new corporation 
 organized for the same objects, and takes a majority of the stock 
 therein, it cannot be declared as matter of law to have abandoned 
 or suspended its ordinary and lawful business so as to afford 
 ffround for its dissolution under the statute." 
 
 ^Smith V. Phcenix Ins. Co. (Cal.) 13 L. R. A. 475, on rehearing, setting aside 
 
 an opinion to the contrary tiled March 10, 1890. 
 ^Smith V. PJmnix his. Co. (Cal.) 13 L. R. A. 475; Kinq v. Rurkmnn, 24 N. 
 
 J. Eq. 559; Bowd v. Clarke, 54 Cal. 48; Hall v. Center, 40 Cal. 63; De- 
 
 Ruttev. MnUlrow. 16 Cal. 505; Laffnn v. Kaglee, 9 Cal. 663; Harford v. 
 
 Furrier, 1 Madd. 538; Baker v. Holtpzaffeli, 4 Taunt. 45; Phillips v. 
 
 Stevens, 16 Mass. 238. 
 ^Manchester & L. R. Co. v. Concord R. Co. (N. H.) 9 L. R. A. 689, 3 Inters. 
 
 Com. Rep. 319. 
 ^Kelsey v. Pfandler P. F. Co. 19 Abb. N. C. 434, 45 Hun. 15; Leslie v. Loril- 
 
 lard, 1 L. R. A. 453, 110 JST. Y. 519; Union Mut. L. Ins. Co. v. TInioH 
 
 Mills Piaster Co. 37 Fed. Rep. 286; Ices v. Smith, 28 N. Y. S. R. 917.
 
 COKPORATK COMBINATIO^'!s Tu TKEVEKT COMPETlTIU^■. 261 
 
 A compromise agreement to prevent competition between two 
 corporations in the manufacture of iish glue under a patent, 
 whereby an article nearly worthless is to be converted into one of 
 large value, is not against public policy.' 
 
 Nor is a contract by one party to sell the bags and burlaps of 
 another at a tixed commission, he to have the exclusive sale and 
 to sell a specitied quantity, the owner to accept the average price 
 received by the former for all bags sold, standing alone, illegal." 
 
 § 59. Corporate Combinations to Prevent Fair Competition ; 
 ** Trade Trnsts." — In an etfurt to avoid the condemnation 
 of the law shelter has been sought under w^hat has ever been 
 held most sacred in equity, — a trust — a thing over which equity, 
 to prevent fraud, has asserted and exercised an exclusive jurisdic- 
 tion. The same combinations to prevent competition, condemned 
 already by the law, are attempted to be worked out at the foot- 
 stool of the chancellor, concealed in the form there most favored. 
 It is like the outlaw grasping the horns of the altar for security, 
 but unlike him, it conceals its guilt and demands protection, pro- 
 testing its innocence, while pursuing its iniquity. The act is the 
 culmination of corporate insolence and deceit. 
 
 The history of tliese so-called Trusts has been written by William 
 II. Winters in the " Bibliography of Commercial Trusts."^ 
 
 ^Gloucester I. & G. Co. v. Rkshu C. Co. (Mass.) 12 L. R. A. 563. 
 
 ■'Facific Factor Co. v. Adler, 90 Cal. 1]0. 
 
 ^7 Railway & Corp. L. J. 236, citing among o\hcT<i,]People v. American Sugar 
 Ref. Co. (Cal.) 7 Ry. & Corp. L. J. (1890). 83; Comm. 30 Cent. L. J. 
 (1890) 114: Appointment of Receiver, Decision by Wallace, J., Feb. 17, 
 1890, Daily Alta Californian, Feb. 18, 1890: People v. North Paver Svfjar 
 Ref. Co. 5 L. R. A. 387, 54 Hun, 354, brief of Prvor, counsel. Pamphlet, 
 New York, 1888:' Brief of AttvGen.; Brief of Parsons: Brief of Daly; 
 Brief of Carter; Opinion of Barrett, ./., and briefs, 2 L. R. A. 33, 22 Abb. 
 N. C. 164; 16 N. Y. Civ. Proc. 1; 22 Am. & Eng. Corp. Cas. 511; 
 Briefs on appeal of People v. North Riccr Sugar Ref. Co. and opinion, 
 Daniels, J., 5 L. R. A. 386; 2 N. Y. L. J. 1505; 36 N. Y. Daily Reg 726; 
 Decision by Court of Appeals, 23 Abb. N. C. 314; 2 N. Y. L. J. 2155; 
 Commonwealth Ref. Co. Incorporation, Conn. Special Acts 1889, p. 1095; 
 Standard Oil Co. Camden, 136 JN. Am. Rev. p. 181; Dodd (S. C. T.) 
 Pamphlet, Xew York, l!:88; Hudson, Railway and the Republic, 1886; 
 Lloyd, 47 Atl. Mo. 1881, 317; Welch, 136 N. Am. Rev. 1883, 191; Trust 
 Agreement N.Y. World, Feb. 28, 1888; N. Y. Senate Doc. 50 (1888) 455; 
 Brief Histary of Trusts, its Methods and Influence, N. Y. 1887; Railway 
 Discrimination in Favor of Trusts, 1 Inters. Com. Rep. (1888) 503; S. C. 
 1 Inters. Com. Rep. (1888) 722; Report ]So. 3112, U. S. House Rep. 50th 
 Congress, July 20, 1888; Report of Com. on Manufactures in Relation to 
 Trusts, Washington, D. C. Part 1, Sugar Trust; Part 2, Standard Oil
 
 262 TKADE TRUSTS. 
 
 Many of the states have passed laws to prohibit combinations 
 among railroad corporations to suppress competition between 
 them, and in some of the states the duty to pass such legislation, 
 is enjoined by constitutional provisions. 
 
 Constitutional and statutory provisions affecting combinations 
 between railroads to prevent competition. 
 
 Alabama— Code 1S86, vol. 1, § 1586, p. 389. 
 
 Arizona— Rev. Stat. 1887, § 318, p. 113. 
 
 Arkansas— Const. 1874, art. 17, § 4; Act March 24, 1887, ^ 2; 
 Laws, p. 114. 
 
 Colorado— Const. 1876, art. 15, § 5; Rev. Stat. 1883, § 353, p. 
 211; Rev. Stat. 1883, § 360, p. 213. The meaning of the last 
 clause of article 15, section 4, of the Constitution of Colorado, 
 which provides that "every railroad company shall have the right 
 with its road ... to connect with . . . any other rail- 
 road," is that such roads are to be connected physically, as dis- 
 tinguished from the business connection between roads which have 
 approximate termini.' 
 
 Where two railway companies agree that they shall accept no 
 freight for certain places, except to be carried over the road of 
 the other, it is a conspiracy to grasp commerce and suppress the 
 building of railroads in two great states. A contract of this kind 
 is against public policy, and therefore void." 
 
 A contract by which one railroad company agrees with another 
 upon a division of territory and traffic between them, and that one 
 will not "do any through business to and from Xew Mexico, via 
 Trinidad or El Moro," amounts to an express renunciation of a 
 duty of transportation enjoined by the State, and is therefore ^oid.' 
 
 Trust; State v. American Cotton Oil Trust, 40 La. Ann 8; Richardson v 
 BuU, 6 L. R. A. 457, 77 Mich. 633; People v. Chicago Gas Trust Co. 8 L. 
 R A. 497, ISO 111. 268; Gould v. Head, 28 Fed. Rep 886, 41 Fed. Rep. 
 240; State v. Nebraska BistilUng Co. 29 Neb. 700; Mo(,ul Stea/imhij) Co. 
 limited, v. McGregor, Eng. Ct. of App. (1889,) 225; Minturn's History of 
 Trusts, 3 Bedford's Maff. 61; Railway Trusts, 5 Ry. & Corp. L. J. 165; 6 
 Rv. & Corp. L. J. 61, loi, 201; The Monopoly Trust, 3 Ry. & Corp. L. 
 J.' 315; Butchers, Envelope, Milk, Oil and Rubber Trusts, New York 
 Times, Feb. 24-29, 1888; Report Canadian House Commons, 6 Pari. 2d 
 Session; Report Select Committee, N. Y. Senate, Cornering Grain, vol. 5, 
 Senate Doc. 1883, No. 45. 
 
 ^Denver & N. 0. B. Co. v. Atchison, T. d- S. F. R. Co. 13 Fed. Rep. 546. 
 
 •Weaver <&■ N. 0. R. Co. v. Atchison, T. & S. F. R. Co. 15 Fed. Rep. 650, 4 
 McCrary, 325, reversed on another point in 110 U. S. 667, 28 L. ed. 
 291. 
 
 ^Denver «£• iV". 0. R. Co. v. Atchison, T. <& S. F. R. Co. 15 Fed. Rep. 650.
 
 CORPORATE COMBINATIONS TO PREVENT COMPETITION. 263 
 
 €oNNECTicuT — Act April IT, 1883, § 1; Laws, p. 267,' 
 
 Dakota— Civil Code 1883, § 473, 1, p. 830. 
 
 Florida — Act June 7, 1887, § 1; Laws, p. 117. 
 
 Georgia— Const. 1877, art. 4, § 2, par. 4; Act Sept. 27, 1881, 
 § 15; Laws, p. 165. "Where a railroad corporation is about to 
 purchase a controlling interest in the stock of a rival railroad, the 
 sale would be invalid, and should be restrained.* 
 
 Illinois — Const. 1870, art. 11, § 11. Under the Act of Febru- 
 ■■aiy 12, 1885, all railroad companies have power to make contracts 
 and arrangements with each other for leasing or running their 
 respective roads, or any part thereof; and a plea to an information 
 in the nature of a q\io loarranto, charging one company with 
 usurping the powers and franchises granted to another, which sets 
 up a contract between it and the other company, authorizing it to 
 operate the road of such other company, and that it is operating 
 the road under such contract, is a good plea.* 
 
 Indiana — Rev. Stat. 1888, § 3951. There being no statute in 
 Indiana which in terms forbids or prohibits railroad corporations 
 oi that State from executing leases of their property, a lease made 
 by such a corporation, and which is neither in violation of any 
 .statute nor against the public policy of the State, is valid.* 
 
 Where several insurance companies equalize rates of insurance 
 in a large city, and agree not to insure themselves under penalty, 
 the agreement is void.* 
 
 Iowa— Rev. Code 1884, § 1297, p. 341. The power to declare 
 •contracts void as against public policy should only be exercised in 
 <cases that are free from doubt.^ 
 
 Kansas— Comp. Laws 1885, § 5221, p. 778; § 5222, p. 779. 
 
 Maine— Rev. Stat. 1883, chap. 51, § 54, p. 480. 
 
 'See State v. Hartford & N. H R. Co. 29 Conn. 539. 
 
 ^Central B. Co. v. Collins, 40 Ga. 582; Havemeyer v. Havemeyer, 11 Jones & 
 S. 506, 515. Acts consolidating tlie Central Railroad & Banking Com- 
 pany with the Macon & Western Railroad Company construed. Central 
 R. & Bkg. Co. V. 8tat£, 54 Ga. 401; followed in Savannah, G. & N. A.R. 
 Co. V. State, 55 Ga. 557. 
 
 ^Illinois Midland R. Co. v. People, 84 111. 426. 
 
 *Pittslncrg7i, C. & St. L. R. Co. v. Columbus, C. d I. C. R. Co. 8 Biss. 456. 
 
 ^Metzger v. Cleveland, Marion Sup. Ct. (Ind.) 3 Ind. Law Mag. 42 (1883), 
 
 •^Richmond v. Dubuque & S. C. R. Co. 26 Iowa, 191.
 
 264 TRADE TRUSTS. 
 
 Maryland — Kev, Code 1878, p. 359. 
 
 Michigan— Const. 1850, art. 19 A, § 2; How. Ann. Stat. 1882,. 
 § 3343, p. 854. 
 
 Minnesota— Gen. Stat. 1878, p. 381; Act March 3, 1881, § 3; 
 Laws, p. 110. By virtue of Special Laws 1870, chap. 57, § 4, and 
 Special Laws 1871, chap. 71, § 1, the Minneapolis Railroad Com- 
 pany has authority to make a valid lease to another company of 
 this State of rights which it has acquired since the passage of said 
 chapter 71, by condemnation of land.' 
 
 Missouri— Const. 1875, art. 12, §§ 17, 18; Act March 30, 1887^ 
 § 1; Laws, p. 102; Id. § 2.' 
 
 Nebraska — Const. 1875, art. 11, § 3; Laws 1887, chap. 60, § 5,. 
 p. 543. 
 
 New Hampshire — Gen. Laws 1878, p. 377. Li Currier v. Con- 
 cord Railroad Corporation^ 48 N. H. 321, 325, the court says: 
 "The object of the law is to prevent the consolidation of rival and 
 competing lines of railroad by contj-acts or arrangements between 
 them, by means of which competition is removed; the purpose 
 being to prevent the increase of the charges of such railroads be- 
 yond what might be expected under the influence of a free com- 
 petition.^ 
 
 New Jersey — Act 1880; Pub. Laws 1880, 231, authorizing rail- 
 roads to lease roads, etc., simply confers a right to exercise the power 
 given after consent of those aifected thereby, or payment of satis- 
 factory compensation. The Act providing for the consolidation 
 of railroads does not give by imj^lication the power to lease." 
 
 .Whether a provision in the charter of a railroad company au- 
 thorizing it to lease or consolidate with any other railroad, and 
 authorizing any company to take such lease and operate the same, 
 would be sufticient to confer such authority upon any railroad of 
 the State, does not arise in a pending case, where the title of the 
 Act incorporating the railroad company does not indicate such 
 subject, and such provision of its charter is therefore void.* 
 
 ^Pencev. St. Paul, M. cfe M. R Go. 28 Minn. 488. 
 
 'See Wiggins Ferry Co. v. Chicago & A. R. Co. 73 Mo. 389; 5 Mo. App. 
 
 347. 
 ^Greenhood. Public Policy, 663-673. 
 
 *MiUs V. New Jersey Cent. R. Co. 2 Cent. Rep. 239, 41 N. J. Eq, 1. 
 *See Camden &A. R. Co. v. Mays Landing tfc E. H. C. R. Co. 4 Cent. P.ep. 
 
 801, 48 N. J. L. 5!0.
 
 CORrORATE COMBINATIONS TO PREVENT COMPETITION. 265 
 
 New York— Rev. Stat. 18S2, p. 1592. Under the Statutes of 
 New York railway lines cannot be consolidated unless they are 
 substantially continuous lines, or running in the same general di- 
 rection.* 
 
 The proprietors of live lines of boats, engaged in the transpor- 
 tation of persons and freight, combine, and stipulate that they all 
 shall charge certain prices, the net earnings of all to be divided 
 according to certain lixed proportions. The agreeme;it is in- 
 valid.'" 
 
 The proprietors of all boats on the Erie and Oswego canals 
 entered into an agreement to establish a uniform scale of prices of 
 freight and passage, and to divide the profits arising therefrom 
 proportionately, according to the number of boats employed, with 
 a provision preventing the members from engaging in similar 
 business outside of the combination. The contract was illegal.' 
 
 A contract by the owners of a railroad to be made, under an 
 Act of incorporation, with the owners of a rival railroad, not to 
 continue such road beyon 1 a certain point, is void as contravening 
 public policy.* 
 
 The acquisition of lands to prevent interference of competing 
 lines, or for purposes of speculation, cannot be consummated un- 
 der the statutes authorizing the taking of private property for 
 public use.* 
 
 Public policy is opposed to any infringement of the rights of 
 travel, or of any of the facilities which competition may furnish, 
 and the law will not uphold any agreement which does or may 
 injuriously affect such rights or facilities." 
 
 A contract made by a corporation in violation of the terms of 
 its charter is ultra vires, and void as against public policy.' 
 
 '2 Rev. Stat. (7th ed.) 1590; People v. Boston, H. T. & W. R. Co. 12 Abb. N. 
 
 C. 230. 
 "^Hooker v. Vankerwater, 4 Denio, 349. 
 ^Stanton V. Allen, 5 Denio, 434, 435; Tramportaiion Cases, Wliart. Prec. 
 
 No. 658. 
 "Hartford & N. H. R. Co. v. New York & N. H. R. Co. 3 Robt. 411. 
 ^Rens.<<elaer ct S. R. Co. v. Davis, 43 N. Y. 137. 
 ^Hartford d; N. II. R Co. v. New York & N. II. R. Co. 3 Robt. 411. See Peo 
 
 pie V. Boston & A. R. Co 70 N. Y. 569, 570; Chicago etc. R. Co. v. Atly- 
 
 Gen. 9 West. Jur. 347 (1875). 
 ' Union Bridge Co. v. Troy tk L. R. Co. 7 Lans. 240.
 
 ^66 TRADE TKUSTS. 
 
 A railway company cannot transfer or lease its line unless au- 
 thorized by statute.' 
 
 By chapter 444 of 1859, the Lon^ Island Railroad Company 
 was authorized to take a lease of any railroad that might be con- 
 nected therewith. Held, that under this provision of the statute, 
 a lease might be taken of a competing road, provided that, when 
 united, the two roads were capable of forming a continuous line.^ 
 
 The manner of procedure against a consolidated corporation 
 was determined in Prouty v. LaJce Shore cfc M. S. B. Co. 6 Hun, 
 246, 64 N. Y. 641. 
 
 An agreement by a steamship corporation to buy out a com- 
 peting line which, in consideration of a monthly payment, agrees 
 to discontinue running vessels between ports mentioned, and not 
 to charter or sell its vessels for use on that route, and not to be- 
 come in any way interested in the running of steamships between 
 those places, is not void as in restraint of trade.^ 
 
 An agreement between plaintiff and defendant, each being a 
 railroad company, that plaintiff would at all times deliver to de- 
 fendant for transportation all the freight and passengers that it 
 could lawfully control or influence, and that it would use its influ- 
 ence to promote the interests and business of defendant comjDany 
 as far as it could properly; that defendant would use its influence 
 and exercise its control to promote plaintiff's interest; tliat it 
 would make good any deficiencies of plaintiff to meet the interest 
 upon its present bonded indebtedness; that plaintiff should cause 
 to be deposited with defendant a majority of its capital stock; and 
 that, so long as the management of the plahitiff company should 
 be satisfactory to defendant, the latter would give to the repre- 
 sentative of plaintiff the right to vote upon the stock so deposited, 
 — is not^:?er se void on the ground that it is contrary to public 
 policy.* 
 
 ^Troy & B. R. Co. v. Boston, H. T. & W. R. Co. 86 N. Y. 107; Hinckley v. 
 
 Gildersleeve; 19 Grant, Ch. (U. C.) 212. See also Atty-Geu. v. Niagara 
 
 Falls Int. Bridge Co. 20 Grant, Ch. (U. C.) 34; Pittsburgh <& C. R. Co. v. 
 
 Bedford & B. R. Co. 81 *Pa. 104; Woodruff v. Erie R. Co. 25 Huu, 246; 
 
 Abbott V. Johnstotcn, O. & K. Horse R. Co. SON. Y. 27; Archer v. Terre 
 
 Haute & I. R. Co. 102 111. 493. 
 ^Wallace v. Long Island R. Co. 12 Hun, 460. 
 ■^Leslie v. Lorillard, 1 L. R. A. 456, 110 N. Y. 519. 
 *Tonawanda Valley <& C. R. Co. v. New York, L. E. & W. R. Co. 42 Hun, 496.
 
 CORPORATE COMBINATIONS TO PREVENT COMPETITION. 267 
 
 North Carolina — The I^orth Carolina Railroad company is 
 invested by its charter with full authority to lease its road, with 
 power to the lessee to change the gauge thereof.' 
 
 Ohio— Eev. Stat. 18S4, p. 674,' § 3300; Act April 22, 188.5, 
 Laws, p. 150. The lines of two railway companies, which are in 
 their general features parallel and competing, cannot be connected 
 for the carriage of freight and passengers over both "continu- 
 ously," within the meaning of Revised Statutes, § 3379; and hence 
 such companies cannot become consolidated into one corporation 
 under tliat section.'^ 
 
 Pennsylvania — Const. 187-1, art. 17, § 4. The Lateral Rail- 
 road Act is constitutional.' 
 
 The Act of March 29, 1840, is a supplement to the Act of May 
 5, 1832, is in pari materia with it, and should be so construed; 
 and neither Act authorizes the connection of a lateral road, except 
 with a public improvement. 
 
 Two railway companies owning lines of railroad connected only 
 by other railroads which such companies hold by lease, are not 
 authorized to become consolidated into one corporation under 
 Pennsylvania Revised Statutes, § 3379.'' 
 
 The lease of a railway is held invalid in Kerseu Oil Co. v. Oil 
 Greek & A. E. Co. 12 Phila. 374. 
 
 Where a corporation authorized to make purchases and sales of 
 and investments in the bonds and securities of other corporations, 
 contracted for the purchase of a controlling interest in the stock 
 and securities of a projected line of railroad, the consideration 
 coming from another railroad company, and the projected railroad 
 having a traffic contract with such other railroad company, by 
 which the former, when completed, would be a parallel or com- 
 peting line with it, the corporation in whose name the contract of 
 purchase was made not owning a parallel or competing line, the 
 transfer of the property, or any of it, will be enjoined as coming 
 within Pennsylvania Constitution, art. 17, § 4, which prohibits 
 
 ^ State V. Richmond &D. R. Co. 72 N. C. 634, 73 N. C. 527. 
 
 ^Staie V. Vanderbilt, 37 Oliio St. 590. 
 
 ^Harvey \. Lloyd, 3 Pa. 331; Schoenberger y . MulhoUan, 8 Pa. 134; H'lys v. 
 Risher, 32 Pa. 169. 
 
 ^Keeling v. Griffin, 50 Pa. 305.
 
 268 TRADE TRUSTS. 
 
 any railroad from acquiring or consolidating with a parallel or 
 competing railroad/ 
 
 South Carolina— Gen. Stat. 1882, § 1425, p. 416. 
 
 Tennessee — Act March 28, 1887; Laws, p. 329. A preliminary 
 injunction was granted to restrain the withdrawal of railway con- 
 nection with an old establislied stock yard, the withdrawal being 
 attempted to aid in the erection of a monopoly at another 
 point.* 
 
 Texas— Const. 1876, art. 10, §§ 5, 6; Civil Stat. 1888, vol. 2, p. 
 442, art. 42, 46. An agreement between several railroad compa- 
 nies, some of which own and control competing lines, for the 
 appointment of a common governing committee, or an association 
 (composed of one member from each company) to fix the rates 
 for which freights should be carried to and from points within the 
 State of Texas, is illegal j^ecause contrary to article 10, § 5, of the 
 Constitution of Texas, which provides that "no raili-oad . . . 
 or managers of any railroad corporation shall consolidate the stock, 
 property or franchises of such corporation with . . . or in 
 any way control any railroad corporation owning or having under 
 its control a parallel or competing line." 
 
 The language of this provision of the Constitution of Texas 
 evinces that control in any .manner and to any extent was intended 
 to be prohibited — provided it was such as is calculated to enable 
 one railroad, by means of a contract or agreement for interference 
 in the other's aifairs, to keep down competition between them. 
 Even in the absence of such constitutional provision, — qumre^ 
 whether action under the agreement could not be enjoined as be- 
 ing in restraint of competition and contrary to public policy.^ 
 
 West Virginia— Const. 1872, art. 11, § 11; Code 1887, p. 
 521. 
 
 Wisconsin — Rev, Stat. 1878, § 1833, p. 536. Such combina- 
 tions are illegal at common law, because contrary to pul3lic policy- 
 Agreements for such combinations and promises founded thereon. 
 
 ^ Pennsylvania R. Co. v. Com. (Pa.) 4 Cent. Rep. 495, 501. 
 
 'Coe V. Louisville & N. B. Co. 3 Fed. Rep. 175. 
 
 '"■Gulf, a & S. F. R Co. V. State, 1 L. R. A. 849, 2 Inters. Com. Rep. 335,. 
 72 Tex. 404.
 
 CORPORATE COMBINATIONS TO PREVENT COMPETITION. 269 
 
 will not be enforced,' and the carrying; out of the combinations 
 will be enjoined/ 
 
 Unless specially authorized by statute to lease its roa 1, a railroad 
 cannot, by so doing, defeat its obligations to the public, or escape 
 the liability which the law imposes for torts, although committed 
 by its lessee." 
 
 Where several common carriers combine as an association, the 
 object of which is to reduce competition l)etweeii them, and to 
 provide a uniform charge for carriage, and tix upon such a rate, 
 each member to pay a fine for carrying freight for less than the 
 same, the agreement is void, and the association cannot recover 
 the fine.* 
 
 A railroad company without statutory authority cannot guar. 
 anter the covenants of another company in the lease of a railroad, 
 merely because of an anticipated increase of its own business in 
 consequence of such lease.* 
 
 The charter of a railroad company is — outside the limits of the 
 rule against impairing the obligation of contracts — subject to the 
 Constitution, statutes and public policy of the State by which the 
 corporation was created. If the Constitution, statutes or public 
 policy of the State forbid the company from entering into combina- 
 tions to prevent competition, the act of the company in entering 
 into such a combination is ultra vires even though the combinations 
 involves interstate traftic; and the state courts have jurisdiction to 
 enjoin the act or to forfeit the charter of the company therefor.* 
 
 ^Hooker v. Varidewa/er, 4 Denio, 349; Stanton v. Allen, 5 Denio, 434; Sayre 
 V. Louisville Cnion Benev. Ai<so. 1 Duv. 143; Morgan v. Donovan, 58 Ala. 
 241- Hartford & N. H. R. Co. v. N. Y. & N. H. li. Co. 3 Robt. ill; State 
 V. Hartford tfc N. H. R. Co. 29 Conn. 53«. 
 
 "^Central R Co. v. Collim, 40 Ga. 583; Elkins v. Camden & A. R. Co. 36 N. 
 J. Eq. 5. 
 
 ■^Lakin v. Willitmette Valley & C. R Co. 13 Or. 436; BaUley v. St. Louis, A. 
 & T. H. R. Co. 6 West. Rep. 469, 119 111. 68. 
 
 *Sayre v. Ijouisville Union Benev. Asso. 1 Duv. 143. 
 
 ^Pennsylvania R. Co. v. St. Louis, A. & T. H. R. Co. 118 U. S. 290, 30 L- 
 ed. 83). 
 
 ■^Tippecanoe County v. Lafayette, M. & B. R. Go. 50 Ind. 85 (conapetitive 
 traffic between Lafayette, Ind. and points in 111.); State v. Vanderbilt, 
 37 Ohio St. 590 (competitive traffic between Cincinnati, Ohio, and points 
 outside Ohio reached through ports on Lake Erie); Pennsylvania R. Co.'s 
 App. (Pa.) 4 Cent. Rep. 495 (competitive traffic between Pittsburgh and 
 points reached through New York city) ; State v. Atchison & N. R. Co. 
 (Neb.) 32 Am. &Eng. R. R. Cas. 388 (competitive traffic between Lin- 
 coln, Neb., and points in Kansas); Thouron v. East Tennessee, V. & O.
 
 270 TEADE TKUSTS. 
 
 For the cases on contracts in restraint of trade generally see 
 Leslie v. Lorillard, 1 L. K. A. 456, 7iote, 110 X. Y. 510; People 
 V. North River Sugar Ref. Co. 2 L. E. A. 33, 22 Abb. N. C. 164. 
 
 Combinations of corporations and firms in the natnre of con- 
 spiracies, and against pnblic policy, are illegal,' 
 
 That contracts in restraint of trade are void, see Leslie v. Lor- 
 illard, 1 L. E. A. 443, 110 N. Y. 519. 
 
 In many states statutes have been passed directed to combina- 
 tions in the form of trusts, to restrict production, competition and 
 control trade.^ 
 
 Under the Missouri Anti-Trust Act, as construed by the attor- 
 ney-general of that State some 700 corporations under state charter 
 were, Nov. 15, 1890, subject to have their charters declared revoked 
 by the secretary of state for failure to file before that date affida- 
 vits that they were in no way connected with a trust or combina- 
 tion to fix prices. Every patent medicine manufactory, fixing 
 the limit at which its goods could be resold by its vendee, came 
 within the statute as interpreted by the attorney-general. 
 
 The following is the fidl text of the anti-trust bill which has 
 recently been passed by the Illinois Legislature and approved by 
 the Governor, taking efiiect July 1, 1891: — 
 
 " If any corporation, organized under the laws of this or any 
 other State or county, for transacting or conducting any kind of 
 business in this State, or any partnership or individual or other 
 association of persons, wdiosoever, shall create, enter into, become 
 a member of or party to any pool, trust, agreement, combination, 
 confederation, or understanding, with any other corporation, part- 
 nership, individual, or any other person, or association of persons, 
 to regulate or fix the price of any article of merchandise or com- 
 
 R. Co. (Ch. Ct. Tenn.) 5 Ry. & Corp. L. J. 77 (competitive traffic be- 
 tween points in Tennessee and points in adjoining states). See also 
 State V. Hartford £& N. H. R. Co. 29 Conn. 538; Hartford d N. H. R. Co. 
 V. N. Y. dt N. H. R. Go. 3 Robt. 411 (competitive traffic between New Ha- 
 ven, Conn., and points in Massachusetts); Morgan v. Donovan, 58 Ala. 
 241 (competitive traffic between Mobile, Ala., and New Orleans, La.) As 
 to foreign commerce, see Murray v. VanderbiU, 39 Barb. 140. 
 
 •See People v. North River Sugar Ref. Co. 2 L. R. A. 33, 23 Abb. N. C. 164. 
 
 '^Kansas Laws 1889. chap. 257, p. 389; Maine Laws 1889, chap. 268, p. 235;. 
 North Carolina Laws 1889, chap. 374, p. 372; Tennessee Laws 1889, chap. 
 250, p. 475; Texas Laws 1889, chap. 117, p. 141; Dominion of Canada 
 Laws 1889, chap. 41, p. 157; Statutory Enactments against Trusts, 28 
 Cent. L. J. (1889) 533; Missouri Trust Law, 30 Cent. L. J. 1840, 1.
 
 COEPOKATE COMBINATIONS TO PKEVENT COMPETITION. 271 
 
 moditv, or shall enter into, become a member of, or party to, any 
 pool, agreement, contract, combination, or confederation to fix or 
 limit the amount or qnality of any article, commodity, or mer- 
 chandise to be manufactured, mined, produced or sold in this 
 State, — such corporation, partnership, or individual, or other asso- 
 ciation of persons shall be deemed and adjudged guilty of a con- 
 spiracy to defraud, and be subject to indictment and punishment 
 as provided in this Act. It shall not be la^vf ul for any corporation 
 to issue or to own trust certificates, or for any corporation, agent,, 
 officer, or employes, or the directors or stockholders of any cor- 
 poration, to enter into any combination, contract or agreement 
 with any person or persons, corporation or corporations, or with 
 any stockholder or director thereof, the purpose and effect of 
 which combination, contract or agreement shall be to place the 
 management or control of such combination or combinations, or 
 the manufactured product thereof, in the hands of any trustee or 
 trustees with the intent to limit or fix the price or lessen the pro- 
 duction of any article of commerce, use or consumption, or to 
 prevent, restrict or diminish the manufacture or output of any 
 such article. If a corporation or company, firm or association 
 shall be found guilty of a violation of this Act, it shall be punished 
 by a fine in auy sum not less than $500 nor more than $2,000 for 
 the first offense, and for the second offense not less than $2,000 
 nor more than $5,000, and for the third offense not less than $5,000 
 nor more than $10,000; and for every subsequent offense and con-^ 
 viction thereof shall be liable to a fine of $15,000, provided that 
 in all cases under this Act either party shall have the right of trial 
 by jury. Any president, manager, director or other officer or agent 
 or receiver of any corporation, company, firm or association, or 
 any individual found guilty of a violation of the first section of 
 this Act, may be punished by a fine of not less than $200 nor to- 
 exceed $1,000, or to be punished by confinement in the county 
 jail not to exceed one year, or both, in the discretion of the court 
 before which such conviction may be had. Any contract or agree- 
 ment in violation of any provision of the preceding section of this 
 Act shall be absolutely void. Any purchaser of any article or 
 commodity from any individual, company or corporation transact- 
 ing business contrary to any provision of the preceding sections^
 
 272 TKADE TKUSTS. 
 
 of this Act shall not l)e lial>le for the price or payment of such 
 article or commodity, and may plead this Act as a defense to any 
 suit for such price or payment. The fines hereinbefore provided 
 for may be recovered in an action of debt in the name of the peo- 
 ple of the State of Illinois. If upon the trial of any cause insti- 
 tuted under this Act to recover the penalties as provided for in 
 section 3, the jury shall find for the people, and that the defend- 
 ant has been before convicted of a violation of the provisions of 
 this Act, they shall return such finding with their verdict, stating- 
 the number of times they find the defendant so convicted, and 
 shall assess and return with their verdict the amount of tlie fine to 
 be imposed upon the defendant in accordance with said section 3; 
 provided, that in all cases under the provisions of this Act, a pre- 
 ponderance of evidence in favor of the people shall be sufticient to 
 authorize a verdict and judgment for the people. It shall be the 
 duty of the prosecuting attorneys in their respective jurisdictions, 
 and the attorney-general, to enforce the foregoing provisions of 
 this Act, and any prosecuting attorney of any county securing a 
 conviction undei- the provisions of this Act shall be entitled to 
 such fee or salary as Ijy law he is allowed for such prosecution. 
 AVhen there is a conviction under this Act, the informer shall be 
 •entitled to one fifth of the fine recovered, which shall be paid to 
 him when the same is collected. All fines covered under the pro- 
 visions of this Act shall be paid into the county treasury of the 
 county in which the suit is tried, by the person collecting the 
 same in tlie manner now provided by law, to be used for county 
 p»urposes." 
 
 The law of ISTT relating to conspiracy, known as the "Cole 
 Boycott Act"" was repealed at the same session the al)0ve law was 
 passed, and a law was also enacted permitting railroads connecting 
 with roads of other states to buy and hold stock and securities in 
 such roads. 
 
 The Act of Congress has been cited heretofore, section 52. 
 
 Under the form of a " trust " a combination is formed, that 
 attempts to prevent competition by miiting the controlling cor- 
 porations, partnerships or individuals, engaged in any special 
 industry or enterprise, and placing the interest, property and 
 power of the combination, under the control of a few individuals,
 
 COKPORATE COMBINATIONS TO PREVENT COMPETITION. 273 
 
 or possibly in one hand, a trustee. This combination, in virtue of 
 its concentration of power, can crush all competition. It reduces 
 prices where the effort is made to compete, and when the field is 
 clear it advances its demands, regulating the supply, not by the 
 natural use, but by the price that can be forced from the public 
 necessity. Like the partnership among corporations, its sole 
 motive, the one purpose of its existence, is to obtain absolute con- 
 trol of the market, and, unrestrained by competition, fix the price 
 of its productions as its selfish greed may prompt it. Such com- 
 binations are void at common law between individuals, and invade 
 every principle of corporate existence. 
 
 Indeed any corjDorate act contemjjlating any object violative of 
 supreme law is void,' and corporations which have been formed 
 under general laws for purposes inconsistent with the general pol- 
 icy of the State or yet public morals, have been declared by the 
 courts to be illegal." 
 
 And charters for such purposes have been refused by the state 
 legislatures.' 
 
 Agreements whereby the due performance of 2)ublic duties is 
 endangered or prevented, are illegal." 
 
 Contracts whereby corporations disable themselves from per- 
 forming their chartered duties are void as against public policy.* 
 
 A centralization of corporate franchises in a single irresponsible 
 power furnished with every delegated facility for regulating and 
 controlling at will, throughout the country, the production and 
 price of a necessary article of commerce, creates a monopoly in 
 a legal sense, and is detrimental to the public and unlawful." 
 
 ^Jamesv Jellison, 94 Ind. 292, 48 Am. Rep. 151; Trustees of N. C. Endow. 
 
 Fund V. Satchwell, 71 N. C. 111. 
 ^Ricliardson v. Buhl, 6 L. R A. 457, 77 Mich. 633; People v, Chicago Gas 
 
 Trust Co. 8 L. R. A. 497, 130 111. 268. 
 ^Re Helping Hand Marnage Asso. 15 Phila. 644; Ee Mutual Aid Asso. 15 
 
 Phila. 625. 
 "^Morris Run Coal Co. v Barclay Coal Co. 68 Pa. 173; Hartford & N. H R. 
 
 Co. V. New York & N. H. R. Co. 3 Robt. 411; Stanton v. Allen, 5 Denio. 
 
 435; Charlton v. Newcastle & C. R. Co. 5 Jur. N. S. 1096; St. Louis v- 
 
 St. Louis Gaslight Co. 5 Mo. App. 484. 
 ^Thomas v. West Jersey R. Co. 101 U. S. 83, 25 L. ed. 952; T<yrk & M. L. R. 
 
 Co. V. Winans, 58 U. S. 17 How. 30, 15 L. cd. 27; St. Louis v. St. Louis 
 
 Gaslight Co. 5 Mo. App. 484; Hartford & N. H. R. Co. v. New York & 
 
 N. H. R. Co. 3 Robt. 414; Stanton v. Allen, 5 Denio, 435. 
 ^People V. North River Sugar Ref. Co. 2 L. R. A. 33, 32 Abb. N. C. 164, 5 L, 
 
 R. A. 387, 54 Hun, 354. 
 
 18
 
 274 TRADE TRUSTS. 
 
 In People v. North River Sugar Ref. Co. the case was 
 that seventeen corporations, in at least six diii'erent states, all 
 engaged in the sugar refining business, arranged to transfer their 
 stock to a board of eleven members and were to receive in return 
 from the association shares of stock to be issued by it and to be 
 distributed among the several corporations in proportion to the 
 amounts of stock held by them. The profits of the business were 
 to be divided among the holders of certificates for shares issued 
 by the board. No limit for the duration of the association was 
 named, and its capital stock was fixed at $50,000,000. A suit was 
 brought by the attorney-general in the name of the people of 
 New York against one of the associate corporations to vacate and 
 annul its charter for '' abuse of its powers," and for exercising 
 " privileges or franchises not conferred upon it by law" by par- 
 ticipating '' in a combination with certain sugar refineries." Upon 
 both grounds the court found against the defendant, and that the 
 defendant had disabled itself from exercising its functions and 
 employing its franchises, as it was intended it should by the Act 
 under which it was iiicorj)orated, and had by the action which was 
 taken placed itself in complete subordination to another and dif- 
 ferent organization, to be used for an unlawful purpose detri. 
 mental and injurious to the public. This was a subversion of the 
 object for which the company was created, and it authorized the 
 attorney-general to maintain and prosecute this action to vacate 
 and annul its charter. 
 
 It was there ruled that any combination, the tendency of which 
 is to prevent competition in its broad and general sense and to 
 control, and thus at will enhance, prices to the detriment of the 
 public, is a legal monopoly. And this rule is applicable to every 
 monopoly whether the supply be restricted by nature or suscepti- 
 ble of indefinite production. The difticulty of efi'ecting the 
 unlawful purpose may be greater in the one case than in the 
 other, but it is never impossible. Nor need it be permanent or 
 complete. It is enough that it may be even temporarily and par- 
 tially successful. The question in the end is, does it inevitably 
 tend to public injury? 
 
 In affirming this decision the Court of Appeals declares that the 
 evidence discloses that the defendant corporation has become an
 
 COKPOKATE OUMBINATIOXS TO TKEVENT COMPETITION. 275 
 
 integral part and element of a combination which possesses over 
 it an absolnte control, and dictates the extent and manner and 
 terms of its entire bnsiness activity. All its stock is in the cen- 
 tral association, denominated a "Board of Trustees," and consist- 
 ing of only eleven individuals, who took and distributed to its 
 own stockholders certificates of the board carrying a proportion- 
 ate interest in what it describes as its capital stock. The defend- 
 ant corporation has lost the power to make a dividend, and is 
 compelled to pay over its net earnings to the master whose ser- 
 vant it has become. Under the order of that master it has 
 refused to refine sugar, and by so much has lessened the supj^ly 
 upon the market. It cannot stir unless the master approves, and 
 yet is entitled to receive from the earnings of the other refineries, 
 amassed as profits in the treasury of the board, its pi-oportionate 
 share for division among its own stockholders, wlio now own the 
 substitute certificates. In return for tliis advantage it has become 
 liable to be mortgaged, not for its own corporate benefit alone, 
 but to supply witli funds tlie controlling board wlien that board 
 reaches out for other coveted refineries. 
 
 If what has happened is that the stockholders of this corpora- 
 tion, one or many, sold absolutely to tlie board their entire stock, 
 and the latter have merely chosen directors in their own interest 
 and are managing the property as absolute owners may, then it i& 
 difficult to see wherein the corporation has sinned or wliat it has 
 done, more than for a time to omit to do business. 
 
 On the other hand, it is contended that there never was a sale, 
 but a trust constituted by mutual agreement ; that they who 
 agreed were the whole body of stockholders, in each corporation^ 
 necessarily representing and binding the corporation itself ; that 
 they transferred their shares to the board upon the trusts declared 
 in the deed ; that the certificates issued by the board were the 
 formal declaration of the trust ; that the corporate stockholders 
 parted with the legal title of their stock to the chosen trustees 
 with the power to vote upon it, but retained its beneficial owner- 
 ship through the operation of the certificates, and so the corpora- 
 tion entered into partnership with the board of control. 
 
 In construing these two theories the court says that in contracts 
 the buyer, which, in this case, was the board, should hind itself
 
 276 TRADE TRUSTS. 
 
 to a contract of sale, but, according to the stockholders, this was not 
 done, the board fixing no price. In this case the stockholders 
 alone fixed the price and the vendees did not sign the contract, 
 but left it to be supplied bj inference of their action. Tlie stock- 
 holders allowed the board, however, to fix the price of the corpo- 
 ration's personal property. In the light of these events the board 
 was simply an agent, which is the characteristic of a trust. The 
 miction which placed the stock in the hands of the board of trus- 
 tees shows that no sale was intended, but simply a transfer in 
 trust. This is also proved by the mortgage clause. 'No absolute 
 ■owner requires any permission whatever to mortgage his property, 
 but here in their contract the sup2:)osed buyers are authorized to 
 put a mortgage on the property of this corporation. Notwith- 
 standing that the board itself had no capital or power to mortgage 
 ]n-operty, twenty refineries are found willing to put themselves 
 under its control. This constitutes a trust. 
 
 A resume of the proceedings on the part of the corporation 
 preparatory to its joining the trust is then given. 
 
 The history shows that there was corporate action on the part 
 of the North River Sugar Refinery Company which bound it. 
 The corporation thus became an element of the trust. The way 
 the companies could have jDrevented the trust being founded was 
 by refusing to register or to recognize the illegal transfer of that 
 stock, and they should have refused to register the transfer upon 
 their books, appealing to the law to sustain them, thus shattering 
 the trust at the outset of its career. To_ be lawful all corporate 
 acts should have been done by all of the various company stock- 
 holders and trustees instead of by the board of trustees alone. 
 The question to be determined is whether the conduct of the 
 defendant in aiding to form the trust was illegal. In all of these 
 points which have been reviewed it is found that the corporation 
 was doing the public an injury, and in avoiding the state law 
 which compels reservation of corporate rights had proved unfaith- 
 ful to its charter. It is a violation of law for a corporation to 
 enter into a partnership, as shown in the case of Whittenton Mills 
 V. TJi:>ton^ 10 Gray, 596, which furnishes the reasons at length. 
 
 If the trust had been properly formed as a corporation under 
 the laws the twenty separate companies would have been dissolved
 
 CORPORATE COMBIXATIOXS TO PREVENT COMPETITION. 27 T 
 
 and not have remained in existence as in this case. The present 
 corporation or trnst puts upon the market a capital stock proudly 
 defiant of actual values and capable of unlimited expansion. It 
 is one thing for the State to respect the rights of ownership and 
 quite another thing to add to tlie possibility of a further extension 
 of those consequences by creating artificial authority in the man- 
 agement of such aggregations. If corporations can combine and 
 mass their forces in a solid trust with little added risk to capital 
 already in, without limit to magnitude, a tempting and easy road 
 is open to enormous combinations vastly exceeding in number 
 and strength any possibilities of individual ownership. The State 
 seeks to protect individuals rather than combinations. 
 
 It is concluded that the defendant corporation has violated its 
 charter and failed in the performance of its corporate duties, 
 and that in respect so material and important as to justify a judg- 
 ment of dissolution. Without either approval or disapproval of 
 the views expressed by the court below it was decided that in 
 that State there can be no partnersliips of separate and independ- 
 ent corporations, whether directly or indirectly, through the 
 medium of a trust, no substantial consolidations, which avoid and 
 disregard tlie statutory provisions and restraints ; but that manu- 
 facturing corporations must be and remain several as they were 
 created, or one under the statute.' 
 
 In a recent case, that of People v. Chicago Gas Trust Co. 
 8 L. R. A. 497, 130 111. 268, the trust combination consisted of a 
 new corporation holding a separate charter under the General 
 Incorporation Law of Illinois. In applying for its charter the Gas 
 Trust Company stated the objects of its incorporation to be " the 
 erection and operation of works in Chicago and otlier places in 
 Illinois for the manufacture, sale, and distribution of gas and 
 electricity; and to purchase and hold or sell the capital stock of 
 any gas or electric company or companies in Chicago or elsewhere 
 in Illinois." Having received its charter the company purchased 
 a majority of the capital stock of each of the gas companies doing 
 business in Chicago, four in number. 
 
 ^People V. KorOi River Sugar Ref. Co. 9 L. R. A. 33, 121 N. Y. 582. See 
 People V. American Sugar Ref. Co. (Cal.) 7 Ry. & Corp. L. J. 83; State 
 \. American Cotton Oil Trust, 40 La. Ann. 8; State v. Nebraska Distillery 
 Co. 29 Neb. 700.
 
 27S TRADE TKL'STS. 
 
 Bj SO pni'cliasino: and hoMiiiiy a inajoi-ity of the shares of the 
 capital stock of each of the four companies, tlie appellee usurped 
 and exercised powers, liberties, privileges, and franchises not con- 
 ferred by law. 
 
 By purchasing and holding such stock it secured the control of 
 -each of the companies ; and such control b}' the appellee, an out- 
 side and independent corporation, suppresses outside competition 
 between them and desti'ovs their diversit}- of interest and all 
 motive for competition. There is thus built up a virtual monopoly 
 in the manufacture and sale of gas. It was held that a corpora- 
 tion thus formed for the purpose of manufacturing and selling 
 gas has no power to purchase and hold or sell shares of stock in 
 other gas companies, as an incident to the purpose of its formation, 
 even though such power is specitied in its articles of incorporation. 
 
 The agreement by stockholders to place their stock for three 
 years in tlie hands of trustees with power in them to vote npon it 
 at all meetings, the stock to be soM only sul)ject to the agreement, 
 and to one another in preference to a third person, if the price 
 offered for it by outside parties can be obtained — is a contract in 
 restraint of trade and not enforceal)le in ecjuity.* 
 
 A lumber trust agreement V)y which a corporation contracts to 
 make and deliver to the other party, within a specified time, a cer- 
 tain amount of lumber, and agrees not to make any other lumber 
 for sale within a specified territory, and to pay the other ]>arty a 
 fixed sum per thousand feet for all lumber made and sold for 
 outside parties, the purpose of the agreement being to limit the 
 output of lumber and so increase its price, and to give the parties 
 entire control of the lumber market within the specified territory 
 — is a contract in restraint of trade and therefore void, and being 
 indivisible it must altogether fall.' 
 
 Innumerable cases might be cited to sustain the proposition 
 that combinations created to defeat competition, especially among 
 those engaged in business impressed witii a public or (piasi public 
 character, are manifestly prejudicial to the public interests and 
 are void.^ 
 
 ^Moses V. Scott, 84 Ala. 608. 
 
 "^ Santa Clara Valley Mill <fc L. Co. v. Hayes, 76 Cal. 387. 
 ^People V. Chimgo Gas Trust Co. 8 L. R. A. 497. 130 111. 268; People v. North 
 lircer Sugar Bef. Co. 2 L. R. A. 33, 23 Abb. N. C. 164; Morriif Run Coal Co.
 
 CORPORATE COMBINATIONS TO PREVENT COMPETITION. 279 
 
 Xot only is such an incorporation for sucli an illegal purpose 
 void, but such a trust is ineffective and null in its inception and 
 in itself, under the law of trusts, for in pari delicto melior est 
 conditio possidentis, et defendentis, is a maxim of public policy 
 equally respected in courts of law and courts of equity, and the 
 cunning of counsel cannot so cover a transaction under the mantle 
 of a trust, which is in fact against public morals or public policy, 
 that equity will not disclose the concealed iniquity.* 
 
 And when tlie illegal purpose is disclosed, whether the shelter 
 be under form of partnership of individuals, or of corporations, 
 the grasp of a court of equity will be equally powerful to control 
 the trust. Certainly the mere form of a partnership will not 
 enable a trust to work an evil in the community. A partnership, 
 when its purposes are contrary to sound morality and jiublic 
 policy, and are attempted to be worked out by fraud and deceit 
 is within the reach of a court of equity. 
 
 The language of a written agreement between corporations is 
 not alone to be consulted in determining whether the agreement 
 is or is not an illegal attempt to prevent competition and control 
 the market ; but it is to be considered in view of the circumstances 
 and of the conduct and probable motives of the individuals 
 engaged in bringing it about." 
 
 "Where corporations are formed for the purpose of performing 
 some service for the public, and to enable the corporation to act, 
 it must obtain the right to use the streets of a city u^jon condi- 
 tions contained in the grant, it cannot disable itself from comply- 
 ing with such conditions, or discharging its duty to the public, by 
 
 V. Barclay Coal Co. 68 Pa. 173; Central R. Co. v. Collinst, 40 Ga. 582; 
 Stanton v. Allen, 5 Denio, 484; Hooker v. Vandeicater, 4 Denio, 349; 
 Craftv. McConoughy, 79 111. 346; Hartfai'd & N. H. E. Co. v. Neio York <fe 
 N. H. R. Co. 3 Kobt. 411; Woodstock Iron Co. v. Richmond & D. E.vten- 
 sion Co. 129 U. S. 643, 32 L. ed. 819; Trist v. Child, S8 U. S. 21 Wall. 
 441, 22 L. ed. 623; Irwin v. Williar, 110 U. S. 499, 28 L. ed. 225; Arnot 
 V. Pittston & E. Coal Co. 68 N. Y. 558: Central Ohio Salt Co. v. Guthrie, 
 35 Ohio St. 666; Woodruff \. Berry, 40 Ark. 261. 
 
 ^People V. Chicago Gas Trust Co. 8 L. R. A. 497, 130 111. 268. 
 
 *Peoplev. North River Sugar Ref. Co. 5 L. R. A. 887, 54 Hun, 354, 2L. R. A. 
 33, 22 Abb. N. C. 164. See Holman v. Johnson, Cowp. 341 ; Armstrong v. 
 Toler, 24 U. S. 11 Wheat. 258, 6 L. ed. 468; Hannay v. Eve, 7 L. ed. 
 3 Cranch, 242, 2 L. ed. 427; Grounds and Rudiments of the Law, M. 347, 
 p. 260, ed. 1751, 7 Dane's Abridg. chap. 226, art. 18; Syniih v. Bromley, 
 2 Dougl.696,«ofe, 1 Story, Eq. Juris. 69, 70, and note, p. 70.
 
 2S0 TRADE TRUSTS. 
 
 parting with tlie power of self-government and control or merg- 
 ing itself without express authority of law in another corporation. 
 
 Thus, gas companies, being engaged in a business of a public 
 character, are charged with the performance of public duties. 
 Their use of the streets whose fee is held by the municipal cor- 
 poration, in trust for the benefit of the public, has been likened to- 
 the exercise of the power of eminent domain.' 
 
 In Glhhs V. Consolidated Gas Co. 130 U. S. 396, 32 L. ed. 979, 
 the Supreme CfMirt of the United States, in an able opinion delivered 
 by Mr. Chief Justice Fuller, uses these words: "These gas com- 
 panies entered the streets of Baltimore under their charters, in the 
 exercise of tlie equivalent of the power of eminent domain, and 
 are to be held as having assumed an obligation to fulfill the public 
 purposes to subserve which they were incorporated." 
 
 The privileges awarded to the gas companies under their respec- 
 tive charters were given them in return for and in considerati(»n 
 of services to be rendered by them to the public. When they 
 entered the streets they assumed the performance of the public 
 duty of furnishing Hglit to the inhabitants. That they should be 
 permitted or required or forced to aljandon the performance of 
 such public duty is against the policy of the law. The public duty 
 is imposed upon each company separately, and not upon them com- 
 bined. Each for itself, when it accepted tlie articles of associa- 
 tion, assumed an obligation to perform the objects of its incor- 
 poration. But the corporation which stands for the combined 
 corporations, through the control which it does or may exercise 
 over the companies by reason of its ownership of a majority of 
 their stock, renders it impossible for them to discharge their pub- 
 lic duties, except at the dictation of an outside force, and in the 
 manner prescribed by a corporation operating independently of 
 them. They are thus virtually forced to abandon the performance 
 of their dut}^ to the public. Tiie freedom and effectiveness of 
 their action in carrying out the purposes of their creation are 
 seriously interfered with, if not actually destroyed. A power 
 whose exercise leads to such a result cannot be lawfully intrusted 
 to any corporate body.'' 
 
 ^Chicago Gaslight & G. Co. v. People's Gaslight & C. Co. 11 West. Rep. 63, 121 
 
 111. 530. 
 ■^People V. Chicago Gas Trust Co. 8 L. R. A. 497, i;30 111. 208.
 
 COKPOKATE COMBINATIONS TO PREVENT COMPETITION, 2bi 
 
 An agreement between corporations engaged in the manufac- 
 ture of cotton-seed oil, to select a committee from each corpora- 
 tion, and to turn over to this committee the properties, including 
 the entire operative machinery of each company, to be managed 
 and operated for a specified term by the committee, for the com- 
 mon benefit, the profits and losses to be shared in agreed propor- 
 tions, is not a mere "traffic arrangement," but a contract of 
 partnership, which is ultra vires and consequently void so far as 
 it is unexecuted, even though it be authori/x'd by both shareholders 
 and directors.* 
 
 It is tlie general rule that corporate franchises are granted upon 
 a trust or condition that the corp(»rate privileges shall not be 
 abused; that the corporation undertakes and agrees, upon condi- 
 tion of forfeiture, that it will so manage and conduct is affairs that 
 it shall not become dangerous or hazardous to the safety of the 
 State or community in and with which it transacts business;" and 
 that the francliise may be forfeited and the corporation dissolved 
 for acts ultra vires, or for breach of the trust condition and per- 
 version of the objects of the grant/ 
 
 But to warrant a forfeiture of franchise for misuser, the misuser 
 must be such as to work or tlnvatcn a substantial injury to the 
 public. 
 
 A corporation violating the Organic Law forfeits its franchise, 
 but does not thereby become subject to the escheat or confiscation 
 of its prctperty.* 
 
 To justify such forfeiture the vltra vires acts must be so sub- 
 stantial and continued as to so derange or destroy the business of 
 the corporation that it no longer fulfills the end for which it was- 
 created.* 
 
 ^Mallory v. Hannur Oil Worka, 8G Tenn. 598. 
 
 •^Ward V. Farwell, 97 111. 593. 
 
 ^Chicago L. Ins. Co. v. Needles, 113 U. S. 574, 28 L. ed. 1084; People v. Diir 
 pensary <& H. Society of the Women's Inst. 7 Lans. 304; People v. Bristol c£r 
 P. Turnp. Road, 23 Wend. 235; People v. Fishkill & B. PI. Road Co. 27 
 Barb. 445; State v. Milwaukee, L. S. tfc W. R. Co. 45 Wis. 590; Chesapeake 
 & 0. Canal Co. v. Baltimore tfc 0. R. Co. 4 Gill & J. 1, 106; People v. 
 North River Sugar Ref. Co. 2 L. R. A. 33, and note, 54 Ilun, 355. 
 
 *Com. V. New York, L. E. & W. R. Co. 7 L. R. A. 634, 132 Pa. 591. 
 
 ''States. Minneaoia Thresher Mfg. Co. 3 L. R. A. 510, 40 Minn. 213.
 
 5ib'2 TKADL TKUSTS. 
 
 § 60. Oonoral Acts of Incorporjitioii will not Authorize 
 the Forinutioii of Trusts. — 2su court could c(ju.strue u <:;cneral 
 Act for the incorporation of associations to autliorize one hostile 
 in its purpose to the Ht'e of the State, or to its dechired or recoij- 
 nized policy. Indeed if the state Constitution oppose the purpose 
 of the intended incorporation, the Act authorizing it would be as 
 void as would be that of a State, in eharterinii; a cor])oration to 
 resist the authority of the general government.' 
 
 Centainly no special charter was ever granted to create a com- 
 bination to rob the public by destroying competition in j)roduction 
 or sale. General statutes do not ctjutcmplate or autliorize the 
 organization of a corpt^ration for such a purpose. 
 
 Since a sugar-retining company organized to create a trust or 
 monopoly is unlawful, the franchises of a refining comi)any are 
 subject to forfeiture if it surrenders its business to such monopoly 
 and becomes a party to the trust." 
 
 It is a condition on which a corporation is allowed to be created 
 and maintained that it shall exercise and use its franchises for the 
 benefit of the puldic. And when it voluntarily declines to do 
 that, or places itself in a situation in which that may be prevented 
 as a consecpience of its voluntary action, under the statute, as well 
 as the decisions of the courts, its charter may be annulled. If it 
 has disabled itself for exercising its functions and employing its 
 franchises as it was intended it should by the Act under which it 
 was incorporated, and has placed itself in complete subordination 
 to another and different organization to be used for an unlawful 
 juivpose, detrimental and injurious to the public; if instead of 
 manufacturing its product and disposing of it to the public on 
 what might be fair competitive prices, it has become a party to a 
 combination, in part, at least, designed to create a monopoly and 
 exact from the public prices which could not otherwise be obtained, 
 this is a subversion of the object for which the company was cre- 
 ated and it authonzes the attorney-general to maintain and pros- 
 ecute an action to vacate and annul its charter.^ 
 
 ^Trmtees of X. C. Endow. Fund v. SatchiceU, 71 N. C. Ill; Chicora Co. v. 
 
 Crews, 6 S. C. 243. 
 ■People V. American Sugar Ref. Co. (Cal.) 7 Ry. & Corp. L. J. 83. 
 ^People V. JS^orth River iiugar Ref. Co. 5 L. R. A. 387, 54 Hun, 354.
 
 TKUSTS ^^0T AUTHORIZED. 283 
 
 Indeed it may well be questioned whether it is not against the 
 "[policy of the State creating a corporation and giving its stock- 
 holders power to vote their stock, to permit them to deprive 
 themselves of that power by placing the stock in a trust, M'ith 
 power in the trustee to vote the stuck for any detiuite or indetiiiite 
 period. It is the policy of the law that ownership of stock shall 
 control the property and management of the corporation, and this 
 cannot be accom]>lishcd, and this good policy is defeated, if stock- 
 holders are permitted to surrender all their discretion and will in 
 the important matter of voting and suffer themselves to be the 
 passive instruments in the hands of some agent, who has no inter- 
 est in the stock, equitable or legal, and no interest in the general 
 prosperity of the corporation. This personal right to vote his 
 stock is not given entirely for the protection of tlie stockholder 
 himself, but it e(pially protects the interest of every stockholder, 
 when each discharges the duty each owes his fellow stockholder, 
 to use such power and means as the law and his o\\Tiership of 
 stock gives him, so tliat the general interest of the stockholders is 
 promoted and protected, and the general welfare of the corpora- 
 tion is sustained, and tlie business conducted by its agents, man- 
 agers and oftieers, so far as may l)e upon prudent and honest 
 principles of business and with just as little temptation to and 
 opportunity for fraud, and the seeking of individual gains, at the 
 saciitice of the general welfare of the corporation, as is possible.' 
 The Ciise is far stronger whei-e the voting trust is with trustees, 
 whose personal interests in any way are hostile to the interests of 
 the stockholders, as stockholders of the corporation whose stock 
 the trustees vote. 
 
 When underlying a pooling contract, there is between the mem- 
 bers of the syndicate, who are directors, or a majority of the 
 directors of the corporation, a secret agreement or interest which 
 enters into this pooling contract, and forms the object of its crea- 
 tion, and by which they are to take to themselves profits arising 
 from contracts whicli they a.s directors make, elements of unfair- 
 ness, and opportunity for fraudulent and dishonest practices are 
 introduced which the courts cannot but condemn. Such pooling 
 contract or voting trust is in violation of the most elementary 
 
 ^Slarbuck v. Mercantile Trust Co. (Conn.) 9 Ry. & Corp. L. J. 203
 
 284 TRADE TRUSTS. 
 
 principles of law governing the dealings of trustees with trust 
 property and their cestuis que trust. ^ Tlie union of corporations- 
 in partnersliips involves many of these evil consequences. 
 
 The purpose for which a corporation is formed under general 
 laws must be a lawful purpose. The formation of a corporation 
 to purchase all the shares in other corporations competing with 
 each other, to supply the public with some necessary or useful 
 article, is not an organization for a lawful purpose, and all acts 
 done towards tlie accomplishment of such object are illegal and 
 void. The word "unlawful," as applied to corporations, is not 
 used exclusively in the sense of malum in se or nialiirn proldhl. 
 turn. It is also used to designate powers which corporations are 
 not authori^zed to exercise, or contracts wliich they are not author- 
 ized to make, or acts which they are not authorized to do; or in 
 other words, such acts, powers and contracts as are ultra vires? 
 
 The business of manufacturing and distributing illuminating 
 gas, by means of pipes laid in the streets of a city, is a business of 
 a public character. It is the exercise of a franchise l»elonging to 
 the State. The services rendered and to be rendered for such a 
 grant are of a public nature. Companies engaged in such business 
 owe a duty to the public. Any unreasonable restraint upon the 
 performance of such duty is prejudicial to the public interest, and 
 in contravention of public policy." 
 
 AVhatever tends to prevent competition between those engaged 
 in a public employment or business impressed with a public char- 
 acter is opposed to public policy, and therefore unlaM'ful. What- 
 ever tends to create a monopoly is unlawful, as being contrary to 
 public policy.* 
 
 In Craft v. McConoughy, 79 111. 340, where tlie ojunion was 
 
 ^Barnes v. Brorcn, 80 N. Y. 535; Butts v. Wood, 37 N. Y. 318; Starbuck v. 
 Mercantile Trust Co. (Conn.) 9 Ry. & Corp. L. J. 203. 
 
 '^Franklin Go. v. Lewiston Sav. Inst. 68 Me. 48; Oregon R. & Nav. Co. v. 
 Oregonian R. Co. 130 U. S. 1, 32 L. ed. 837. 
 
 ^Chicago Gaslight & C. Co. v. PeopU's Gaslight & C. Co. 11 West. Rep. 63, 
 121 111. 530; Gibbs v. Consolidated Gas Co. 130 U. S. 396, 32 L. ed. 979. 
 
 *2 Addison, Cont. 743; Gieenhood, Pub. Pol. 180. 643, 654. 655, 670; Morris 
 Run Coal Co. v. Barclay Coal Co. 68 Pa. 173: Craft v. McConoughy, 79 
 111. 346; Central R. Co. v. Collins, 40 Ga. 582: Hazlehurst v. Savannah, 
 G. & N. A. R. Co. 43 Ga. 13; West Virginia Transp. Co. v. Ohio River 
 P. L. Co. 22 W.Va. 600.
 
 TRUSTS NOT AUTHOKIZED. 285 
 
 ■delivered by 2li\ Justice Craig, it was said: "We understand it to 
 be a well settled rule of law that an agreement in general restraint 
 of trade is contrary to public policy, illegal and void. . . . 
 Whatever is injurious to the interest of the public is void on the 
 ground of public policy." 
 
 In Central Ohio Salt Co. v. Guthrie, 35 Ohio St. QQQ, the Su- 
 preme Court of Ohio said: ''Public policy unquestionably favors 
 competition in trade, to the end that its commodities may be 
 afforded to the consumer as cheaply as possible, and is opposed to 
 monopolies, which tend to advance market prices to the injury of 
 the general pul)lic." 
 
 It is the duty of the judiciary to refuse to sustain that which is 
 against the public policy of the State, when such public policy is 
 manifested by the legislation or fundamental law of the State.' 
 
 It is, in most states, provided that the common law of England, 
 60 far as the same is applicable and of a general nature, shall be 
 the rule of decision, and shall be considered of full force until 
 repealed by legislative authority. PubHc policy is that principle 
 of law which holds that no subject or citizen can lawfully do that 
 which has a tendency to be injurious to the public, or against the 
 73ublic good. This principle owes its existence to the very sources 
 from wdiich the common law is supplied.' 
 
 The common law will not permit individuals to oblige them- 
 selves by a contract either to do or not to do anytliing, when the 
 thing to be done or omitted is in any degree clearly injurious to 
 the public' 
 
 In Stanton v. Allen, 5 Denio, 434, an agreement, whose ten- 
 dency was to prevent competition, was held to be void by the 
 principles of the common law, because it was against public policy, 
 and injurious to the interests of the State. "Contracts creatino- 
 monopolies are null and void as being contrary to public policy."* 
 
 All grants creating monopolies are made void by the common 
 law.' 
 
 ^ Santa Clara Female Academy v. Sullivan. 4 "West. Rep. 114, 116 111. 375. 
 
 ^Greenhood, Pub. Pol. 2, 3. 
 
 ^Chappel V. Brockway, 31 Wend. 159; West Virginia Transp. Co. v. Ohio 
 
 Biver P. L. Co. 22 W. Va. 600. 
 *2 Addison, Cont. 743. 
 '7 Bacon, Abr. 22.
 
 286 TRADE TKUST8. 
 
 In the Case of the Monopolies, 11 Coke, 84, it was decided, as- 
 long ago as the forty-fourth year of tlie reign of Qneen Elizabeth, 
 that a ""grant to the plaintiff of the sole making of cards within 
 the realm was utterly void, and that for two reasons: (1) that it is 
 a monopoly, and against the common law; (2) that it is against 
 divers acts of Parliament," etc' 
 
 Corporations can only exercise such powers as may be conferred 
 by the legislative body creating them, either in express terms or 
 by necessary implication; and the implied powers are presumed 
 to exist to enable such bodies to carry out the express power:> 
 granted, and to accomplish the purposes of their creation,* 
 
 An incidental power is one that is directly and immediately 
 appropriate to the execution of the specific power granted, aud 
 not one that has a slight or remote relation to it/ 
 
 Where a charter, in express terms, confers upon a corporation 
 the power to maintain and operate works for the manufacture and 
 sale of gas, it is not a necessary implication therefrom that the 
 power to purchase stock in other gas companies should also exist. 
 Tliere is no necessary connection between manufacturing gas and 
 buying stocks. If the purpose for wliich a gas comjDany has been 
 created is to make and sell gas and operate gas-works, the pur- 
 chase of stock in other gas companies is not necessary to accom- 
 plish such purpose. "The right of a corporation to invest in 
 shares of another company cannot be implied, because both com- 
 panies are engaged in a similar kind of business."* 
 
 It is true that a gas company might take the stock of another 
 corporation in payment of a debt, or perhaps as security for a 
 debt; but the actual purchase of such stock is not directly and 
 immediately appropriate to the execution of a specifically granted 
 power to operate gas-works and manufacture gas. Some corpo- 
 rations, like insurance companies, may find it necessary to keep 
 funds on hand for the payment of losses by death or fire, or to 
 meet other necessary demands; but it is questionable whether 
 
 ^Bell V. Leggett, 7 N. Y. 176; Burke v. Child, 88 U. S. 21 Wall. 441, 22 L. 
 
 ed. 623. 
 'Chicago, P. & S.W. R. Co. v. MarseiUe.% 84 111. 643; Chicago Gaslight <fe C. 
 
 Co. V. People's Gaslight & C. Co. 11 West. Rep. 63, 121 111. 530. 
 ^Hoodv. Ne\o York & N. H. R. Co. 23 Conn. 1; Franklin Co. v. Lewiston 
 
 ,Sav. Inst. 68 Me. 48. 
 *1 Morawelz, Priv. Corp. § 431.
 
 GENERAL ACTS OF INCORrOKATION WILL jSTOT AUTHORIZE. 2ST 
 
 even these can invest their surphis funds in the stocks of other 
 corporations without special legislative authority. But there is 
 nothing in the nature of a gas company which renders it proper 
 for such a company to accumulate funds for outside investment. 
 Its surplus profits belong to the stockholders, and, when distributed 
 among them, can be used by them as they see fit. 
 
 If, then, the power to purchase outside stocks cannot be im- 
 plied from the power to operate gas-works, and make and sell gas, 
 a company to whom the latter power has been exj^ressly granted 
 cannot exercise the former without legislative authority to do so. 
 This is the law, as settled by the great weight of authority.. 
 Boone, on the Law of Corporations, says : "• Without a power 
 specifically granted or necessarily implied, a corporation cannot 
 become a stockholder in another corporation, and especially where 
 the object is to obtain the control or atfect the management of the 
 latter." § 107. 
 
 In Green's Brice's Ultra Vires (p. 91, note h) it is said : " In, 
 the United States a corporation cannot become a stockholder in 
 another corporation unless by power specifically granted by its 
 charter, or necessarily implied in it." 
 
 So, also, 1 Morawetz on Private Corporations (§^ 431, 433) 
 says : " A corporation has no implied right to purchase shares in 
 another company for the purpose of controlling its management. 
 . . . A corporation cannot, in the absence of express statutory 
 authority, become an incorporator by subscribing for shares in a 
 new corporation, nor can it do this indirectly, through persons act- 
 ing as its agents or tools." 
 
 The authorities referred to by these text-writers sustain the 
 conclusions announced by them. It has been held in many cases 
 that " in the United States corporations cannot purchase or hold 
 or deal in the stocks of other corporations, unless expressly author- 
 ized to do so by law;" and that "one corporation cannot 
 become the owner of any portion of the capital stock of another 
 corporation, unless authority to become such is clearly conferred 
 by statute." ' 
 
 ^Franklin Co. v. Leidston Sav. Inst. 68 Me. 48; Franklin Bank v. Com- 
 mercial Bank, 36 Ohio St. 350; Milbank v. New York, L. E. & W. R. Co. 
 64 How. Pr. 20; Sumner v. Marcy, 3 Woodb. <fc M. 105; Mw Haven, M. 
 & W. M. Mut. Sav. Bank cfc Blcig. Asso. v. Meriden Agency Co. 24 Conn. 
 159; Central E. Co. v. Collins, 40 Ga. 582; Eazlehurst v. Savannah, G. 
 & N. A. E. Co. 43 Ga. 13; Berry v. Yates, 24 Barb. 199.
 
 288 TRADE TRUSTS. 
 
 ]^or will tlie fact that a corporation is or2:anized under a gen- 
 eral act of incorporation authorize such purchase. The only 
 powers granted by such acts are the ordinary corporate powers, 
 such as the rights to be bodies corporate and politic, to sue and be 
 sued, to have a common seal, etc. 
 
 The charter of a corporation formed under such a general law 
 does not consist of the articles of association alone, but of such 
 articles taken in connection with the law under which the organi- 
 zation takes place.' The provisions of the law enter into and 
 form a part of the charter. It certainly cannot be true that a 
 corporation formed under a general incorporation act, for a pur- 
 pose other than that of dealing in stocks, can exercise the power 
 •of purchasing and holding stock in other corporations, where such 
 power cannot be necessarily implied from the nature of the power 
 speciiically granted, and is not necessary to carry the latter into 
 effect. The power to purchase and hold stock in other companies 
 must be the subject of legislative grant, if not in all cases, at least 
 in cases where it cannot be implied from the powers expressly 
 granted. General incorporation laws contain no grant of such 
 power. Can a corporation organized under that law be clothed 
 with such a power by merely naming it in the statement filed 
 with the secretary of state? Clearly not. The action of the 
 secretary of state in issuing the license and the certificate of organi- 
 zation is necessarily, to a large extent, merely mhiisterial.^ 
 
 Where the organization is for the purpose of erecting gas 
 works and making and selling gas, that being the main purpose 
 for which the corporation was formed, the incorporators could 
 not tack on and connect with such main purpose the power to 
 buy and hold stock in other gas companies, by merely describing 
 such power in the statement. To hold that they could confer 
 such power by writing it down in the statement would be to hold 
 that the Legislature could clothe them with a part of its legislative 
 functions. When a corporation is formed under a general incor- 
 poration act, for the purpose of carrying on a lawful business, the 
 law, and not the statement or the license or the certificate, must 
 
 '1 Morawetz, Priv. Corp. § 318. 
 
 ^Oregon R. & Nav. Co. v. Oregonian R. Go. 130 U. S. 1, 33 L. ed. 837, 4 Am, 
 & Eng. Enc. Law, title Corporations, p. 193, note 1.
 
 COBPOKATION KEPEESENTING A TRUST. 289 
 
 determine what powers can be exercised as incidents of such 
 business. 
 
 It has been held that the powers obtained bj the corporations 
 organized under general laws are necessarily restricted to those 
 mentioned in the Act ; ' that in such cases the charter is void as 
 to all powers and privileges granted beyond the provisions of the 
 statute ; ^ that, if unauthorized provisions are added to the articles 
 of incorporation, all acts done pursuant to such provisions will be 
 void ; ^ that anything in such articles not warranted by the statutes 
 authorizing the formation of corporate bodies is void for want of 
 authority," and that such articles must be construed strictly and 
 against the grantee, and in favor of the government or the gen- 
 eral public. 
 
 A corporation formed to erect works and manufacture gas 
 under a general statute has no power to purchase and hold shares 
 in other gas companies as an incident to the purposes of its for- 
 mation, even though such powers are specified in its articles of 
 incorporation.^ 
 
 § 61. Corporation Representing a Trnst, cannot Act in 
 Foreign Territory without Local Authority. — As the charter 
 of a foreign corporation cannot confer any power upon it to do 
 any act in another jurisdiction independent of the consent of the 
 authority there existing, certainly such corporation can do no act in 
 such jurisdiction contrary to its laws, or its policy." jS^or can it 
 usually assume powers in another State not granted to it in tue 
 State of its incorporation.' Kor can such powers be conferred 
 by the State within which it does business, by comity.* 
 
 A foreign and nonresident railroad corporation, being pro- 
 
 '^ Philadelphia Medical College Case, 3 Whart. 445. 
 
 ^Eeck V. McEicen, 12 Lea, 97. 
 
 ^Eastern PI. P. Co. v. Vaughun, 14 N. Y. 546. 
 
 ^Oregon P. & Nav. Go. v. Oregonian P. Co. 130 U. S. 1, 32 L. ed. 837. 
 
 -^People V. Chicago Gas Trust Co. 8 L. R. A. 497, 130 111. 268. 
 
 ^Ba/ik of. Augusta v. Earle, 38 U. S. 13 Pet. 539, 10 L. ed. 284: Milnor v. 
 NeiD York & N. H. P. Co. 53 N. T. 363; LeirAs v. Bank of Kentucky, 12 
 Ohio, 132, 40 Am. Dec. 469; Stetson v. City Bank of Neio Orleans, 2 
 Ohio St. 174; Blair v. Perpetual Ins. Co. 10 Mo. 559, 47 Am. Dec. 129. 
 
 ''Starkweather y.. American Bible Soc. 72 111. 50, 22 Am. Rep. 133. 
 
 ^Diamond Match Go. v. Powers, 51 Mich. 145; White v. Howard, 46 N. Y. 
 144. 
 
 19
 
 290 TRADE TRUSTS. 
 
 hibitecl by tlie Constitution from acquiring a right of way in 
 N^ebraska, cannot do so indirectly through a Nebraska corpora- 
 tion,' and if a foreign corporation is guilty of wrong within a 
 State, it is liable to the jurisdiction of its courts if processes can 
 be served upon an officer or agent, and its action can be restrained.' 
 
 ^Koenig v. Chicago, B. & Q. R. (b. 27 Neb. 699. 
 ^Carr v. Tabor Boiler Works, 15 Fed. Rep. 436.
 
 CHAPTER XIII. 
 CONSPIRACY AT COMMON LAW. 
 
 § 63. Conspiracy as an Offefise, of Common Laio Origin. 
 
 63. Common Law Origin of the Offense of Conspiracy Shown from 
 
 the Villenous Judgment. 
 
 64. Common Laio Origin of Offense of Conspiracy. As it Appears 
 
 fro7n Precedents and Decisions. 
 
 65. Conspiracy Defined. 
 
 66. Conspiracy against Civil Government. 
 
 67. Conspiracies Affecting the Public Injuriously or against the 
 
 Public Quiet. 
 
 68. Conspiracy against the Due Administration of Justice. 
 
 69. Conspiracies against Public Virtue and Individual Morality, 
 
 Indictable. 
 
 70. Combinations to Cheat. 
 
 § 62. Conspiracy as an Offense, of Common Law Origin. — 
 
 As the purpose of the common law, is to regulate for the common 
 good the conduct of man in his social relations and intercourse 
 with his fellows, all attempts to oppress and injure the individual 
 and deprive him of his personal freedom of action or of his prop- 
 erty, by combining wealth and influence for this purpose or for 
 selfish purposes, are looked upon as common law crimes,' 
 
 It was early recognized, that the power of many united for mis- 
 chief against one is so great, that the law should protect him.^ 
 
 To guard against the union of numbers to effect an unlawful 
 design is not easy and to punish the offenders is often difficult. 
 The unlawful confederacy is therefore punished to prevent the 
 doing of any act in execution of it.^ 
 
 Combinations for laudible objects are favored by the law, and 
 combinations of workmen to better their condition by legitimate 
 
 ^JoJmson V. State, 26 N. J. L. 313; Beg. v. Carlisle, 6 Cox, C. C, 366. 
 
 ^Beg. V. Buffleld, 5 Cox, C. C. 432; State v. Rowley, 12 Conn. 112; Com. 
 
 V. Carlisle, Brightly, 36. 
 ^Coin. V. Judd, 2 Mass. 329. 
 
 291
 
 292 CONSPIKACY AT COMMON LAW. 
 
 and fair means are commendable and to be encouraged as promot- 
 ing social and commercial prosperity.' 
 
 But combinations for evil purposes, whether bj one class of 
 men or another, are detrimental to the public weal, and cannot be 
 regarded with favor by the courts.'' 
 
 The offense of conspiracy being therefore violative of the prin- 
 ciples of common law, is of common law origin, and it is not re- 
 stricted or abridged by the Statute of 33 Edw. I., 2 Coke Inst. 
 561. This result is reached also upon authority, with the follow- 
 ing review of the early decisions; (see also Buchanan, e/., in State 
 V. Buchanan, 5 Har. & J. 317; Parsons, Oh. J., in Com. \. 
 Jtidd, 2 Mass. 329, in 1807; Tindal, Ch. J., in Q Connell v. 
 Reg. 11 Clark & F. 155, 233), and by an examination of later cases. 
 
 In O'ConnelVs Case, 11 Clark & F. 155, the statement was 
 made by Tindal, Ch. J., in giving his opinion before the House of 
 Lords: "That it (conspiracy) was an offense known to the common 
 law, and not first created by 33 Edw. I., is manifest." 
 
 § 63. Common Law Origin of the Oifense of Conspiracy 
 Sliowu from tlie Villeuons Judgment. — In 3 Coke, Institutes, 
 143, and 1 Hawk, P. C. 193, chap. 72, § 9, it is said that the "vil- 
 lenous" judgment is given by common law and not by any statute 
 against those convicted of a conspiracy. As this "villenous" judg- 
 ment was known only to the common law, it could only follow a 
 common law offense. In the 20th year of Edward I., a civil rem- 
 edy was provided against conspirators, etc., by the writ of con- 
 spiracy ; and the Statute 28 Edw. I., chap. 10, entitled " The 
 Remedy against Conspirators, False Informers and Embracers of 
 Juries" makes this further provision: "In right of conspirators, 
 false informers, and evil procurers of dozens, assizes and juries, 
 the king hath provided remedy for the plaintiffs by writ out of 
 chancery; notwithstanding he willeth that his justices, of the one 
 bench and of the other, and justices assigned to take assises, when 
 they come into the country to do their office, shall upon every 
 plaint made unto them, award inquests thereupon without writ, 
 and shall do right unto the plaintiffs without delay." The first 
 clause of this statute can only refer to the provision in 20th 
 
 ^Reg. V. Rowland, 5 Cox, C. C. 490. 
 
 ^State V. Olidden, 3 New Eng. Rep. 849, 55 Conn. 46.
 
 COMMON LAW ORIGIN OF OFFENSE OF CONSPIRACY. 293 
 
 Edward I. for the writ of conspiracy, there being no other, and 
 this according to 2 Inst. 562, was but an affirmance of the 
 common law; and these provisions for private remedies against 
 conspirators clearly admit the existence of the offense of conspi- 
 racy at common law. But the statute itself in defining who are 
 conspirators in certain cases, without declaring the conspiracy un- 
 lawful, or forbidding it, or providing a punishment therefor, 
 plaiidy recognized the prior existence of the crime and its punish- 
 ment at common law. Nor does the statute cover all conspiracies 
 at common law, — as conspiracies to commit a felony or a misde- 
 meanor, nor is the statute prohibitory, nor is tlie existence of 
 other punishable conspiracies than those it enumerates in any way 
 repugnant to or inconsistent with any of its provisions. 
 
 The case of Breerton v. Townsend., Noy's Rep. 103, for the 
 suppression of a will, in which the parties were punished by fine, 
 also shows that the villenous judgment was not given in all cases 
 of conspiracy, but that there were at common law different de- 
 grees of punishment, and consequently of crime; and in 1 Hawk, 
 P. C. 193, chap. 72, § 9, it is said that it has never been settled 
 to be the proper judgment upon any conviction of conspiracy, 
 except such as threatening the life of the party, which obviates any 
 argument drawn from the villenous judgment, against there being 
 any other conspiracies at common law than those enumerated in 
 the statute 33 Edward I. The statute is rather by way of super- 
 adding to tlie offenses at common law. This is shown by the ac- 
 tion of the courts again and again in the early cases, in overruling 
 the objection that the offense for which the defendants were on 
 trial was not one named in the statute. 
 
 § 61. Common Law Origin of Offense of Conspiracy. As it 
 Appears from Precedents and Decisions. — In the Book of 
 Assises, 27 Edward III., chap. M, it is said that "inquiry shall be 
 made concerning conspirators and confederates, who bind them- 
 selves by oath, covenant or other agreement, that each will sup- 
 port the enterprises of the other whether true or false." And in 
 another place it is stated: "And note that two were indicted for a 
 confederacy, each of them to maintain the other, whether the 
 matter be true or false; and notwithstanding that nothing was
 
 294 CONSPIEACY AT COMMON LAW. 
 
 alleged to have been actually done, the parties were put to answer 
 because it was a thing forbidden by law."* 
 
 Clearly this offense does not fall within the Statute 33 Edward 
 I., but under common law." 
 
 And it does not charge a conspiracy to commit the common law 
 offense of "maintainance." That is dehned as an officious inter- 
 meddling in a suit that no way belongs to one, by maintaining or 
 assisting either party, with money or otherwise, to prosecute or 
 defend his action. "The offense is against public justice . . . 
 and perverts the remedial process of the law into an engine of 
 opj)ression.'" 
 
 It is the assisting of another person in a lawsuit, without having 
 any privity or concern in the subject.* 
 
 The intermeddling of a stranger in a suit for the purpose of 
 stirring up and continuing the litigation." 
 
 The actual offense charged in the case stated in the note was 
 the "agreement that each will support the enterprises of the other 
 whether true or false," not the lawsuits of the other, for it does 
 not appear that either had actions pending or to be brought, and 
 it does not affirmatively appear that "nothing was alleged to have 
 been actually done," and therefore the offense could n( t have 
 been made out if the charge was simply "maintenance," for that 
 consists in actually doing the thing — "maintaining or assisting 
 either party, with money or otherwise to prosecute or defend' — 
 not in conspiring or agreeing to do it. Indeed it has been ex- 
 pressly decided that a parent might uphold his child, and a mas- 
 ter assist his servant, in a lawsuit (1 Bl. Com. 429, 450), without 
 being guilty of maintainance. It required no decision to hold 
 them harmless, for sustaining those thus connected with them, in 
 ordinary enterprises. That the "^7^07^" case in the year 1354 
 was not one charging a conspiracy for " maintenance" clearly aj)- 
 pears from the language used in referring to it two hundred and 
 
 ^Anon, A. D. 1354, Book of Assizes, p. 138. b. pi. 44, 27 Edward III. 
 
 n Hawk, P. C, 190. chap. 72. 
 
 H Bl. Com. 135; Chnstie v. Sawyer, 44 N. H, 303; Andreios v. Thayer, 30 
 
 Wis. 233; Stanley v. Jones, 7 Bing. 369. 
 *Wic/cham v. Conklin, 8 Johns. 228; Oilman v. Jones, 4 L. R. A. 113, 87 
 
 Ala. 691. 
 * 2 Pars. Cent. 766; Borwin v. Smith, 35 Vt. 69; Anderson, Law Diet, title 
 
 Maintenance; Andrews v. Thayei', 30 Wis. 228.
 
 COMMON LAW ORIGIN OF OFFENSE OF CONSPIRACY. 295 
 
 fiftj-seven years later in the year 1611 in The Poulterer'' s Case, 
 9 Rep. 55, Moore, 814, where the defendants, poulterers of Lon- 
 don, were indicted for a combination and confederacy falsely and 
 maliciously to charge the plaintiff with the robbery of one of the 
 defendants, and to procure him to be indicted, convicted and 
 hanged, and although the grand jury found ignoramus, yet it was 
 held that although a writ of conspiracy lies not unless the party 
 is indicted, and legitimo modo acquietdtus, for so are the words 
 of the writ; but that a false conspiracy betwixt divers persons shall 
 be punished, although nothing be put in execution, is full and 
 manifest in the books; and therefore, in 27 Bk. Assizes, p. 44, in the 
 "Articles of the Charge of Enquiry by the Enquest in the King's 
 Bench," there is a nota, that two were indicted for confederacy, 
 each of them to maintain the other, whether their matters be true 
 or false, and notwithstanding that nothing was supposed to be put 
 in execution, the parties were forced to answer to it, because the 
 thing is forbidden by law, which are the very words of the book; 
 which proves that such false confederacy is forbidden by the law, 
 although it was not put in use or executed. So there in the next 
 articles in the same book, inquiry shall be made of conspirators 
 and confederates who agree amongst themselves, etc., falsely, to 
 indict, or acquit, etc., the manner of agreement and betwixt whom; 
 which proves also that confederacy to indict or acquit, although 
 nothing is executed, is punishable by law; and there is another 
 article concerning conspiracy between merchants, and in these 
 cases the conspiracy or confederacy is punishable although the 
 conspiracy or confederacy be not executed; and it is held in 19 E.. 
 2 Brief, 926, a man shall have a writ of conspiracy, although they 
 do nothing but conspire together and he shall recover damages 
 and they may be also indicted therefor. Also the usual commis- 
 sion of oyer and terminer gives power to the commissioners to 
 inquire, etc., de omnibus coadunationihus, confcederatioiiihus, 
 etfalsis alligantiis', and coadunatio, is a uniting of themselves to- 
 gether; Gonfoederatio is a combination among themselves, and 
 falsa alUga7itia is a false binding each to the other, by bond or 
 promise, to execute some unlawful act. In these cases before the 
 unlawful act is executed, the law punishes the coadjunction, con- 
 federacy or false alliance, to the end to prevent the unlawful act,
 
 296 CONSPIKACY AT COMMON LAW. 
 
 quia quando aliquid prohibetur, prohibetur et id per quod per- 
 mnitur ad illud; et effectus punitiir licit non sequatur effectus; 
 and in these cases the common law is a law of mercy, for it pre- 
 vents the malignant from doing mischief, and the innocent from 
 suffering it. And afterwards upon hearing of the case and upon 
 pregnant proofs the defendants were sentenced for such false 
 conspiracy by fine and imprisonment. 
 
 To this case is a note by Lord Coke, " that these confederacies, 
 punishable by law, before they are executed, ought to have four 
 incidents : 1. It ought to be declared by some manner of prose- 
 cution, as in this case it was, either by making of bonds, or prom- 
 ises one to another. 2. It ought to be malicious, as for unjust 
 revenge, etc. 3. It ought to be false, against an innocent. 4. It 
 ought to be out of court voluntarily." 
 
 If the indictment in the Anon. Case, 1354, 27 Assizes, p. 138, b. 
 pi. 44, falls within either of the provisions of the Statute 33 Edw. I., 
 it can only be that which relates to the moving and maintaining 
 pleas, and that does not embrace it ; for if the indictment had 
 been under the statute, for a confederacy " falsely to move and 
 maintain pleas," of course in a court, the parties must have gone 
 aquit, for no such purpose was charged. The indictment was not 
 however under the statute for either of the specific acts mentioned 
 in it, but at common law for the conspiracy, which was considered 
 per se a substantive offense, no act in furtherance of it being 
 alleged, and this after and notwithstanding the statute. From 
 the positions that "a confederacy each to maintain the other, 
 whether the matter be true or false," is a common law offense; 
 that conspiracies are punishable at common law, though nothing 
 be put in execution; and that the law punishes the conspiracy " to 
 the end to prevent the unlawful act," and, referring to the com- 
 binations among merchants to regulate the price of wool, that 
 " the conspiracy or confederacy (not the false conspiracy or con- 
 federacy) is punishable, although the conspiracy or confederacy 
 be- not executed," it is clear that the nota at the end of the 
 case of The Poulterers, which it has been frequently claimed 
 states the rule, that both malice and falsehood are indispensable 
 ingredients of a punishable conspiracy, and must be united in the 
 same case, was not intended by Lord Coke as applicable to all
 
 COMMON LAW ORIGIN OF OFFENSE OF CONSPIRACY. 297 
 
 confederacies, but to such conspiracies only as are of the character 
 of those of which he had treated immediately preceding tiie 
 nota ; for he does not speak of the case of a conspiracy be- 
 tween merchants to fix the price of wool as a false conspiracy, 
 nor does either falsehood or malice necessarily enter into such a 
 combination. And these combinations among merchants (which 
 are not within the Statute 33 Edward I.) were, and remain pun- 
 ishable at common law, and were not first made so by the Statute 
 Staple, 27 Edward III., chap. 9. That statute does indeed pro- 
 hibit the exportation of wool under a very severe penalty, but 
 neither creates, nor provides a punishment for the oiiense by mer- 
 chants of combining to fix a price beyond which they would not 
 go. All that is said in relation to the purchasing of wool is, that 
 " all merchants, as well subjects as foreigners, may purchase wool- 
 folk, etc., throughout the whole of our kingdom and territory 
 without covin or collusion to lower the price of the said merchan- 
 dizes, so nevertheless as they bring them to the staple," from 
 which it would seem that all covin and collusion to lower the 
 price of merchandize was before unlawful, and that the statute 
 intended to leave the law as it was. 
 
 The Act of 7 and 8 Yict. chap. 24, rejDcaling the statutes relat- 
 ing to forestalling, engrossing and regrating, and abolishing them 
 also as common law offenses, seems to recognize the existence of 
 the common law crime of "knowingly and fraudulently spreading 
 or conspii'ing to spread any false rumor with intent to inhance or 
 destroy the price of any goods, wares or merchandise being 
 brought to any fair or market," and it excepts such offense from 
 the force of the repealing Act. 
 
 In The Poulterers Case it was plainly considered an offense at 
 common law ; and in 4 Bl. Com. 154, the exportation of wool, 
 which, as before stated, was prohibited by the statute staple, 
 under a very heavy penalty, is said to have been forbidden at 
 common law, but more particularly by that statute ; and if that 
 which it was the principal object of the statute to prevent and to 
 punish, was before an offense at common law, it may readily be 
 supposed that no new offense was intended to be created ; but 
 that a conspiracy to fix the price of wool was an offense at com- 
 mon law. Moreover the words of the statute are "without covin
 
 298 CONSPIRACY AT COMMON LAW. 
 
 or collusion to lower the price," etc., and a combination to " fix a 
 price, beyond which they would not go," does not necessarily 
 include the offense "to lower" the price. Breerton v. Townsend, 
 JS'oy's Rep. 103, states an information against Breerton, Town- 
 send, and others, for the suppression of a will under a confedera- 
 tion, although the act by one was not indictable. The injury in 
 that case was to the relator, whose wife was thereby disinherited. 
 In Timberley and Childe (or Kimberty) 1663, 1 Siderlin, (j^, the 
 indictment was held good, for a conspiracy to charge one with being 
 the father of a bastard child, with intent to extort money from 
 him. 
 
 So in Kioig v. Tymlirly, 1 Keble, 254, a judgment was rested 
 upon two distinct grounds; that it is a conspiracy for lucre and gain 
 to charge and disgrace a man with having a bastard ; and that the 
 crime is the conspiracy, Avhich whether it is to defame or disgrace a 
 man, or charge him with heresy, is punishable at common law. So 
 in 1663, a conspiracy was held punishable although the court had 
 no cognizance of the matter of it, where it might be of loss to the 
 prosecutor.' 
 
 Bex V. Armstrong, 1 Yent. 304, was a conspiracy to extort 
 money from an individual, by going to him, and affirming that he 
 was the father of a bastard child, with a view of inducing him to 
 pay them to say no more about it. And it was decided on the 
 ground expressly taken by the court, that it was a contrivance by 
 conspiracy, to defame the person and cheat him of his money, 
 which was an indictable crime of a very heinous nature. In 1705 
 in Reg. v. Best, 2 Ld. Eaym. 1167, the principle was laid down 
 that the defendants being charged at least with a conspiracy to 
 charge the prosecutor with fornication, though that was only a 
 spiritual defamation, yet the conspiracy was the gist of the indict- 
 ment, and was a temporal offense and punishable as such. 
 
 In 1719 in Bex v. Kinnersley, 1 Strange, 193, the object was 
 by a conspiracy to extort money by means of a verbal slan- 
 der, not a crime if committed by one only. And in 1730, in 
 Bex V. Bryan, 2 Strange, 866, the court in speaking with reference 
 to Bex V. Armstrong, in 1678, 1 Yent. 304, says, "there the con- 
 spiracy was the crime; and an indictment will lie for that, though 
 
 ^ Child V. North, 1 Keble, 203; see State v. Stewart, 59 Vt. 273.
 
 COMMOX LAW ORIGIN OF OFFENSE OF CONSPIKACY. 29^ 
 
 it be to do a lawful act." In that class of conspiracies, the medi- 
 tated end was not accomplished in either of the early cases. The 
 object in each was to defame, and extort money from an indi- 
 vidual ; and the indirect or wrongful means by which that object 
 was intended to be effected was verbal slander — not a prosecution, 
 but the charge is laid as having been made in pais / in one 
 instance the charge being made to the prosecutor himself — a com- 
 bination to do that, which if actually done by one alone, would 
 not be the subject of an indictment. The conspiracy therefor for 
 a corrupt purpose was the offense for which they were punished. 
 
 In Bex V. Bisjyal (1762) 1 W. Bl. 368, Lord Mansfield held a com- 
 bination criminal, organized to extort money by charging a man 
 " with criminal acts, or such as only may affect his reputation," 
 The crime consisted in the purpose to charge the man publicly, al- 
 though not in a court.' A combination to charge privately would 
 be a conspiracy to extort or cheat." 
 
 If the purpose be not to extort, the charge must be false or 
 without reasonable ground. ' 
 
 In 1763, in Rex v. Parsons, 1 "W. Bl. 392, the conspiracy was 
 to injure the prosecutor's reputation by pretended revelations of 
 a spirit charging him with a murder, and in 1762, in Bex v, 
 Bisjjal, 1 W. Bl. 368, Loi^d Mansfield said "the crime laid, is an 
 unlawful conspiracy ; this, whether it be to charge a man with 
 criminal acts, or such only as may affect his reputation, is fully 
 suflficient." In others words, a conspiracy to defraud another by 
 verbal scandal, is equally indictable, whether it be to charge the 
 party with a crime, or only to injure his standing in society.* 
 
 In Boy V. Skirret, 1 Siderfin, 312, the form of indict- 
 ment does not appear, but it was against persons conjointly, 
 and therefore either in conspiracy or combination. The charge 
 was the false reading of a release to an ignorant man to procure 
 
 'Hollingberry, K. B. 1825; Jacobs, 1845, in Recorder's Court, London (C. P. 
 1843); Reg. v. Hamilton, 1 Car. & K. 212, 1862; Beg. v. Menage, 3 Fost. 
 & F. 310, 1866; Reg. v. Cracknell, 10 Cox. C. C. 408, 1868; Reg. v. Rich- 
 ards, 11 Cox, C. C. 43; Com. v. Tibbetts, 2 Mass. 536; Johnson v. State, 
 26 N. J. L. 313. 
 
 »Cp. Yates, 1853; see Com. v. Wood, 7 Rep. 58. " 
 
 "1629, Tailor's Godb. 444, Lord Holt, 1705; Reg. v. Best, 2 Ld. Raym. 1167, 
 
 1823; Murray, 1 Burn's J., 3d ed. 976. 
 ^Johnson v. State, 26 N. J. L. 313; Riding v. Smit?)., L. R. 1 Ex. Div. 91.
 
 300 CONSPIEACY AT COMMON LAW. 
 
 his signature. If the fraud upon the individual had been prac. 
 ticed by one person, it would not have been an indictable cheat. 
 It was the combination which alone made it criminal, and the 
 prosecution was sustained although it was not within the Statute 
 33 Edward I. In 1705, in Reg. v. MacKarty, 2 Ld. Kaym. 1179, 
 6 Mod. 301, 1 Salk. 286, the defendants were conjointly indicted 
 for falsely and deceitfully bargaining and exchanging with another 
 a quantity of pretended wine for goods, upon the faith of their 
 false statement made in pursuance of the combination. The 
 crime of conspiracy was not named, but the combination wa& 
 charged with the act, and as no false public tokens were used, 
 which was necessary at common law to constitute a cheat effected 
 by one, and the Statute, 30 Geo. II., chap. 24, against "false pre- 
 tences " was not then passed, it was the combination alone on 
 which the prosecution could have been sustained. A cheat by 
 false public tokens, such as false weights and measures, is indict- 
 able, because ordinary care and prudence cannot safeguard one 
 against their use, and for the same reason cheats effected by con- 
 spiracy are punishable. Indeed, in 1761, Rex v. Wheatly, 2 Burr. 
 1127, 1 W. Bl. 273, cheats effected by conspiracy are expressly 
 placed upon the same footing with cheats effected by false weight 
 and measures. 
 
 In 1704, in Reg. v. Orhell, 6 Mod. 42, the indictment was for 
 a conspiracy to cheat one J. S. of his money by inducing him to 
 bet upon a foot-race and by bribery controlling the result. The 
 act of an individual was not indictable, and the combination con- 
 stituted its criminality. 
 
 In Rex V. Edwards, 1 Strange, 707, 8 Mod. 320, 1 Sess. Cas. 
 836, the parties were indicted for giving money to a man who 
 was settled in the parish of A to induce him to marry a poor and 
 helpless woman of the parish of B and make her a charge on his 
 own parish. It was objected that it was not unlawful to marry a 
 woman and give her a portion, but the object of the conspiracy 
 being to impose a pauper on a parish to which she did not belong, 
 it was held to be an indictable offense at common law; for that a 
 bare conspiracy to do a lawful act to an unlawful end was a crime 
 though no act should be done in consequence thereof. The fraud 
 was attempted upon the inhabitants of the parish, and as they are
 
 COMMOi^ LAW ORIGIN OF OFFENSE OF CONSPIRACY. 301 
 
 not the public at large, the offense was directed against individuals, 
 though Chitty, in his 3d volume on criminal law, treats it as a con- 
 spiracy to violate public policy, the principle applies equally to 
 both. 
 
 In Fowler's Case, 17S8, 1 East, 4G1, 462, the combination was 
 to charge a parish, by bribing a poor man, who had got a poor 
 woman of another parish with child, to marry the woman, and 
 Buller, Ji, held that " some violence, threats or contrivance," or 
 *■'■ some sinister means," must be shown with some forcing of mar- 
 riage against the will of the parties. So in Parkhouse's Case, 
 1792, 1 East, P. C. 462. 
 
 In Bex v. Seward, 1S34, 1 Ad. & El. 706, it was said if a mar- 
 riage was induced by unfair and undue means it might be unlaw- 
 ful; the parties being unwilling and the means unlawful. 
 
 In 1719 in Eex v. Cope, 1 Sti-ange, 144, the conspiracy charged 
 was to ruin the trade of the prosecutor, who was a card maker, by 
 bribing his apprentices to put grease into the paste and destroy 
 the appearance of the cards. The act if done by one would not 
 have constituted a crime in law, and the conspiracy was the gist of 
 the offense, unless, indeed, the act of the apprentice was made a 
 crmie in him as an apprentice.* 
 
 In Rex V. Eccles, 1783, 1 Leach, C. C. 274, the indictment 
 was for a conspiracy by wrongful and indirect means to impover- 
 ish a tailor and to hinder him from following his trade. The 
 meditated injury was leveled at a private individual, unconnected 
 with any matter of public concernment and not within the prin- 
 ciple of any of the enumerated offenses against public trade, which 
 are offenses committed by traders or dealers themselves, such as 
 cheating, forestalling, regrating, etc. 
 
 Several master tailors were indicted for combining to impoverish 
 and prevent a rival master tailor from trading. The proposed means 
 not being set out, a question was raised as to the sufficiency of the 
 indictment. It was sustained. Lord Mansfield saying: "The 
 illegal combination was the git of the offense. Persons in pos- 
 session of any articles of trade may sell them at such prices as 
 they individually please, but if they confederate and agree not to 
 sell them under certain prices it is a conspiracy; so every man 
 
 'See 1727 Edmonds, 1 Sess. Cas. 288, p. 357; and Powell and Gould, JJ., 
 1704, Daniell and C. p. 1848, Burton; and 5 Eliz. chap. 4, § 35.
 
 302 CONSPIRACY AT COMMON LAW. 
 
 may work at what price he pleases, but a combination not to work 
 under certain prices is a indictable offense." 
 
 It was held that it was not necessary to state the means by 
 which the intended mischief was effected, for that the offense did 
 not consist in doing the acts by which the end was accomplished 
 (for they might be perfectly indifferent) but in conspiring with a 
 view to effect the intended mischief by any means; Justice Bul- 
 ler saying that "the means were only matter of evidence to prove 
 the charge, and not the crime itself." 
 
 The ruling in this case as to the illegal purpose to impoverish 
 does not at all conflict with the decision in Le Roy v. Starling^ 
 1 Sid. 174; Attorney v. Starling, 1 Keb. 650; Hex v. Starling, 
 1 Keb. 655, where the information was against the brewers of 
 London for conspiring to put down the gallon trade by which the 
 poor were supplied, and to cause the poor to mutiny against the 
 farmers of excise, and to depauperate the farmers of the excise. 
 The only objection taken was that " it is no crime by our law to 
 depauperate another in order to enrich oneself, as by undersell- 
 ing." It may be no crime to undersell goods to enrich oneself, 
 even if it result in pauperizing another, and yet a crime to com- 
 bine to undersell for the purpose of impoverishing a rival. 
 
 In Stratton^s Case, 1809, where the indictment was for a com- 
 bination for false and malicious prosecution, the indictment alleged 
 an intent to deprive the prosecutor of his office. 
 
 In Kenrick^s Case, 1843, Lord Denmaii said that if, in Bex v. 
 Turner, 13 East, 228, the meditated injury, instead of ending 
 with the trespass in pursuit of hares, had been planned for the 
 purpose of seizing the landlord or driving him out of the country, 
 it would have been sufficient. 
 
 In Rowland^ Case, 1851, in response to a question whether a 
 combination to entice away workmen was indictable. Lord Camp- 
 bell said: " "Would it not be indictable if it were done for the 
 purpose of ruining a tradesman ? " and Erie, J., said that it was 
 lawful for persons to combine for their own benefit, " but I con- 
 sider the law to be clear so far only as while the purpose of the 
 combination is to obtain a benefit for the parties who combine, a 
 benefit which by law they can claim. I make that remark, 
 because a combination for the purpose of injuring another is a
 
 COMMON LAW ORIGIN OF OFFENSE OF CONSPIRACY. 303 
 
 combination of a different nature, directed personally against the 
 party to be injured; and the law allowing them to combine for 
 the purpose of obtaining a lawful benefit to themselves, gives no 
 sanction to combinations which have for their immediate purpose 
 the hurt of another." 
 
 In DujUield's Case, 5 Cox, C. C. 404, 429, Erie, J., said, regard- 
 ing Turner* s Case, " A conspiracy to injure a man in his private 
 property; a conspiracy to prevent all customers coming to his shop 
 — what is it but a civil injury ? A conspiracy to injure — two men 
 combining to interfere with a man's civil right — is indictable." 
 
 i^or does it matter if the primary purpose of the acts and means 
 is not the obstruction and injury of the business of another; yet 
 if in the accomplishment of the primary purpose, the intent is to 
 make such obstruction or harm an incident of such primary pur- 
 pose, if necessary to accomplish it, then the malice follows and is 
 established by it.' 
 
 Where the action was for maliciously inducing a singer to break 
 her contract, Compton, «/., said that where two or more parties 
 with a malicious intent to injure a rival trader, go to a banker or 
 other party who owes money to his rival, and begs him not to pay 
 the money, and by that means ruins or greatly prejudices the 
 party, an indictment or writ of conspiracy at common law might 
 be maintained, and in a civil action damages beyond the sum with- 
 held if the injury were greater." 
 
 In Wentworth's Precedents, vol. 4, p. 105, there is an indict- 
 ment, 1788-89, for combination to impoverish R. Meux and to 
 ruin him in his trade of a common brewer by persuading his cus- 
 tomers to leave him. 
 
 In Van Horn v. Van Horn, 10 L. E. A. 184, 52 1^. J. L. 284, 
 the defendants, Amos H. Yan Horn and Casper Soer, Jr., were 
 summoned to answer James Yan Horn, and Emma D. Yan Horn, 
 his wife, in tort, for a conspiracy or combination to break up the 
 wife's separate business of selling fancy goods on consignment at 
 Newark. Two firms of wholesale jobbers in fancy and millinery 
 goods had agreed, verbally, to supply her on credit with a stock 
 of such goods to be sold by her on commission, limiting the total 
 
 ^People V. Petheram, 7 West. Rep. 592, 64 Mich. 253. 
 *Lumley v. dye, 1853, 22 L. J. Q. B. N. S. 471.
 
 304 CONSPIRACY AT COMMON LAW. 
 
 amc^mt to $2,500. One of said firms had, in pursuance of the 
 agreement with her, sent $500 worth of goods, which were 
 received and placed in her store for sale, and she was daily expect- 
 ing the balance. With this prefatory statement, the declaration 
 charges that the defendants, maliciously intending to injure and 
 drive the said Emma D. Van Horn out of business, and into pub- 
 lic scandal, shame and disgrace, and to injure her in her credit 
 and business, and to prevent her from acquiring any profit or gain 
 therefrom, or from continuing the same, did maliciously conspire, 
 combine and agree to prevent her from enjoying and continuing 
 her business, and in pursuance of said conspiracy, etc., did entice 
 into their store in ISTewark one of the plaintiff's employes, and by 
 artful persuasion and threats induced her to tell where the plain- 
 tiff's stock of goods was purchased, telling her the stock would be 
 taken from her, and the business closed up; and, in pursuance and 
 in further performance of their unlawful intent and combination, 
 endeavored to prevent the customers and friends of the plaintiff 
 from dealings with her, by falsely and fraudulently representing 
 to them that she would not be able to carry on her business, but 
 would have to close up, as she was selling goods that did not 
 belong to her, and living off the proceeds, instead of accounting 
 therefor, and by sending threatening notes and messages to them 
 designed to intimidate them from having any dealings with her, 
 and did threaten to pursue her until she was ruined. That in 
 further pursuance of such combination, and by means of fraud 
 and deceit, they did persuade the said firm in ]^ew York to 
 decline to complete their contract, and did prevail on them, by 
 means of corrupt, fraudulent and deceitful representations and 
 statements as to the personal and business character and standing 
 of the plaintiff', to remove the stock already supplied her, and 
 refuse to deliver her other goods as agreed for, leaving her entirely 
 without any stock to sell, or customers to purchase from her, by 
 means whereof she was left without stock and credit with the said 
 firms, and could not obtain goods from other parties, and was 
 driven out of her business and occupation, and deprived of the 
 profit and livelihood which she was making and daily increasing. 
 To this declaration a general demurrer was filed, and joi]ider added. 
 The declaration is in effect an action on the case setting forth a
 
 COMMON LAW ORIGIX OF OFFENSE OF CONSPIRACY. 305 
 
 malicious conspiracy, or confederation, with the means employed 
 to effect its purjjose, and the resulting damages to the plaintiff. 
 It was held that no further specification is required than the 
 general terms in which it is pleaded in the declaration. 
 
 Kor is there presented for determination in this pleading the 
 vexed question whether an action will lie against a third person 
 for the malicious procurement of the breach of a contract, if by 
 such procurement damage was intended to result and did result 
 to the plaintiff.' 
 
 In the opinion of Mr. Pollock, Torts, 267, the difficulties in 
 such cases disappear, or are greatly reduced, when the cause of 
 action is considered as belonging to the class in which malice, in 
 the sense of actual ill will, is a necessary element. Here the 
 whole pleading is based on the malicious conduct of the defend- 
 ants in destroying the plaintiff's credit and patronage, and break- 
 ing up her business and means of livelihood. Here no breach of 
 contract is alleged. There was no binding contract between the 
 Xew York firms and the plaintiff upon which they could be sued 
 for a breach. Where there is a suable contract between a con- 
 tractor and contractee there is difficulty, in principle, in showing 
 privity in another, or to make the person who procures a breach 
 of the contract the proximate cause of injury. The party who 
 breaks the contract, for whatever cause, whether by procurement 
 of others or of his own volition, is primarily responsible to the 
 other party; and the procurer, it would seem, can only be held 
 responsible for the breach, where there is malice shown to the 
 sufferer, giving a distinct cause of action for the malice which 
 caused the breach of the contract resulting in damages to him. 
 The plaintiff Emma D. Van Horn, it is alleged, was selUng goods 
 on consignment from others, with the expectation of greater con- 
 signments in the future. If the consignors refuse to send the 
 goods to her it does not appear that she could have any remedy 
 against them. They could send or recall them at pleasure. 
 
 The complaint here is that the goods in the plaintiff's possession 
 were recalled, and her advantageous arrangement for credit with 
 the consignors ended, by the fraudulent and malicious act of the 
 •defendants. If she has no remedy against the defendants, it is 
 
 ^Lumley v. Oye, 2 El. & Bl. 216; Boicen v. Hall, L. R. 6 Q. B. Div. 333. 
 20
 
 300 coNsriKAuy at common law. 
 
 said, she can liave none against otliers for tlie wrong wliich she 
 claims slie lias snffered. 
 
 The dilierence between this action and slander is well stated in 
 Hiding v. Smith, L. R. 1 Exch. Div. 91, where a slander against 
 the wife was charged as having injured the hnshand's business. 
 Pier name was stricken from the record as a joint plaintilf, and 
 the action was allowed to proceed by the husband, as a trader car- 
 rying on business, founded on an act done by the defendant which 
 led to the loss of trade and custom by the plaintiff. It was main- 
 tainable on the ground that the injury to the plaintiif's business 
 was the natural consequence of the words spoken, wliich would 
 prevent persons resorting to the plaintiff's shop. Upon the whole 
 case presented in the declaration Mogul Steamship Co. v. Mc 
 Gregor, L. R. 21 Q. B. Div. 544, L. R. 23 Q. B. Div. 593, is im- 
 portant to aid in preserving the distinction between injuries caused 
 by mere rivalries in business, M'ithout the intention of ruining the 
 trade of the pluintilf, and those where such intent is shown with 
 personal malice towards him. In the first report, Lord Chief' 
 Judlci (\)leridge says: "It is too late to dispute, if I desired to 
 do so, as I do not, that a wrongful and malicious combination to 
 ruin a man in his trade may be ground for such an action as this."' 
 In the later report Lord Jastlee Fry, after a full statement of 
 cases, says that no mere competition carried on for the purpose 
 of gain, and without actual malice, is actionable, even though 
 intended to drive the rival in trade aM'ay from his place of busi- 
 ness, and though that intention be actually carried into effect. 
 L.ord Eslier, M. jR., dissented. It was decided that the exclusion 
 of the plaintiffs, rival freighters, from participation in a 5 i)er 
 cent rebate on freight on teas from China, not being through 
 malice, but in competition to increase their own business, was not 
 actionable. The basis of action seems, in Van Horn v. Van 
 Horn, 10 L. R. A. 184, 52 N. J. L. 284, it is said by the court, to 
 be, as stated in the declaration, the fraudulent and malicious acts 
 of the defendants in driving the plaintiff Emma D. Yan Horn out 
 of her business; the statements of the means used to effect this 
 purpose all combine to produce a single cause of action, and were 
 held to be sufficiently stated on demurrer. 
 
 A combination between several dealers in merchandise to refuse-
 
 COMMON LAW ORIGIN OF OFFENSE OF CONSi'lKACY. 307 
 
 to sell to a particultir merchant is not an actionable conspiracy; 
 but indueiiii:: dtlicrs to refuse to sell to liiui, in order to injure his 
 business and lor an object not intended to serve any legitimate 
 purpose of their own, is actionable. ' 
 
 Maliciously c(.)nspirinii:; to<j;ethcr with intent to injure and destroy 
 the character of another, and falsely suino; out an incjuisition of 
 lunacy against her, for the purpose of driving her from lier dwel- 
 ling-place, thus injuring lier profession and business and bringing 
 lier int(^t y)ublic scandal and disgrace, is conspiracy for which a 
 prosecution will lie.' 
 
 In Rex V. Leiyh, 1775, 2 JVIacldin's Life, 217, in Macl-Jins' 
 Case, 1 Car. ^ K. 28, note.ic 2Campb. 372,?<6>^d, (I Went. Tl. 443, 
 it was held, that an indictment would lie for a conspiracy to 
 imjxiverish an actor, by driving or hissing him oif the stage. And 
 in Clijt'ord v. Brandon, 1809, 2 Campb. 358, it was said by Sir 
 James Mansfield, that "though the audience had a right to express 
 by applause or hisses their sensations at the moment, yet if a body 
 of men were to go to the theatre with a settled intention of hissing 
 an actor, or even of damning a piece, there can be no doubt that 
 such a deliberate preconcerted scheme would amount to a con- 
 Kpiracy, and that the persons concerned in it might be brought to 
 punishment." 
 
 In Ilex V. Bohinson, 1 Leach, C. C. 37, it was distinctly admit- 
 ted that a cons}uracy to do an injury to the person or estate of 
 another was an indictabk; offense, and that it was not required to 
 prove any direct or immediate injury, or even to show any specific 
 overt act of cctnspiracy, but that it was the province of the jury 
 to coUcct from all the circumstances of the case, whether there 
 was not an intention or design in the parties in contracting a mar- 
 riage in the assumed name of Richard Holland to raise a spurious 
 title in the wife, to the estate of Richard Holland, and thereby do 
 a future injury to Holland. The niarriage in an assumed name, 
 both iiarties consenting thereto, was not in itself uidawful, but 
 the object Mas to defraud an individual, and the conspiracy was 
 leveled at the property or estate of another. 
 
 In ( 'hetioynd v. Lindon, 1752, 2 Ves. Sr. 450, Lord Hardwick 
 
 ^Ddz V. Winfrcc, — Tex. — , 3Iarcb 24, 1891. 
 *Smith V. Nippert, 76 Wis. 86.
 
 308 co^'sriKAcv at common law. 
 
 thought a combination to set np a siipposititions child as a legiti- 
 mate one, so as to impede the course of descent in hiw, and defeat 
 the heir at law, might be indictable. 
 
 In Rex V. Lara, 6 T. R. 565, it was adinitted bj counsel in 
 argument that a fraud upon an individual by conspiracy was 
 indictable, and the doctrine laid down by the judges in Rex v. 
 Wheatly, 2 Burr. 1127, 1 W. Bl. 273, was fully recognized and 
 adopted by Lord Kenyon; that is, that a cheat effected by a con- 
 spiracy is an indictable offense. 
 
 In Rex V. De Bersnger, 3 Maule & S. 68, the indictment was 
 for a conspiracy by false rumors to raise the price of the public 
 government funds, with intent to injure such of the king's subjects 
 a,s should purchase on a particular day. It was contended that 
 this charge was too general as to the persons intended to be 
 harmed, but the objection was overruled, not on the ground that 
 to constitute an indictable conspiracy, it should be leveled either 
 at the public aggregated, or at a class or distinct portion, as dis- 
 tinguished from an individual, and that the case fell within one 
 of these classes of conspiracies; for it was treated throughout as 
 perfectly clear, that if it had been laid with intent to prejudice or 
 defraud either the public or an individual or individuals by name 
 it would have been good, and the only difficulty on that part of 
 the case was, whether, being laid with intent to injure those who 
 might become purchasers, and not either an individual by name 
 or the public in its aggregate capacity, the generality of the charge 
 did not vitiate the indictment. But the indictment was sustained 
 ex necessitate rei, on the ground that as it was impossible the 
 defendants could have known who would be the purchasers on 
 that day, the charge could not have been more specific. And 
 though it was conceded that to raise or lower the price of the 
 public funds, was not per se a crime, yet it was held to be an 
 offense for a number of persons to conspire to raise them by false 
 rumors; and that the crime was not in raising the funds, but in 
 the act of conspiracy and combination to do so, and would be 
 complete though it should not be pursued to its consequences. It 
 was upon the point of individual injury that the judgment rests. 
 
 In the same manner, it is there said, it is indictable if a false 
 runujr is spread on a day prior to a market day, in order to raise
 
 COMMON LAW OKIGIN OF OFFENSE OF CONSPIRACY. 300 
 
 the price of a commodity in the market, whether it be an article 
 of necessity or not. 
 
 Combinations or contracts, having for their purpose the giving 
 of a fictitious vahie to any commodity above its vakie in the open 
 market are void.' 
 
 No agreement for defrauding the pubHc can be valid.' 
 
 Combinations whose objects are to create what are known as cor- 
 ners in the market, or to control the traffic in any staple which is 
 a popular necessity, or to enhance the price thereof, or to with- 
 hold the same from tlie market, or to prevent competition in the 
 sale thereof, are void.^ 
 
 A "corner" when accomplished by confederation, to raise or 
 depress prices and operate on the market, is a conspiracy, if the 
 means be unlawful." 
 
 So sales to create fictitious value of stocks to induce advances 
 by broker on stock.^ 
 
 And so as to conspiracy to monopolize, by fraudulent means, 
 any particular business staple, so as to force a sale at exorbitant 
 prices, such as coal,° or oil.' 
 
 Any agreement between large operators, in any article, to com- 
 bine to thus rule the market and obtain exorbitant prices, is an 
 unlawful conspiracy against trade, and void.* 
 
 ^Arnot V. Pittston & E. Coal Co. 68 N. Y. 558; Craft v. McConoughy, 79 111. 
 
 346; Raymond v. Leavitt, 46 Mich. 447; Fairbank v. Leary, 40 Wis. 637: 
 
 Central Ohm Salt Co. v. Guthrie, 35 Ohiio St. 666; Fislier v. Bush, 35 
 
 Hun, 645; Morris Run Coal Co. v. Barclay Coal Co. 68 Pa. 174; MeNam- 
 
 ara v. Gargett, 12 West. Rep. 650, 68 Mich. 454; Davis v. Seeley, 71 Mich. 
 
 209; Sampson v. Shaw, 101 Mass. 145; Wright v. Crabbs, 78 Ind. 487. 
 ^People V. Stephens, 71 N. Y. 527. 
 sGreenhood, Pub. Pol. 642; Arnot v. PiilHton & E. Coal Co. 68 X. Y. 568; 
 
 Leonard v. Poole, 4 L. R. A. 728, 114 N. Y. 371. 
 ■^Morris Run Coal Co. v. Barclay Coal Co. 68 Pa. 173; People v. Melmn, 2 
 
 Wheel. Grim. Gas. 262; Samuels v. Olicer, 130 111. 73. 
 ^Com. V. Philadelphia County Prison Supt. 6 Phila. 169. 
 ^Rei- V. Norris, 2 Ld. Kenyon, 300; Morris Run Coal Co. v. Barclay Coal Co. 
 
 68 Pa 173. 
 'Com. V. Tack, 1 Brewst. 511; Huntzinger v. Com. 10 W. N. G. 98; Com. v. 
 
 Haines, 15 Phila. 363. 
 i Arnot V. Pittston &E. Coal Co. 68 N. Y. 558; Craft v. McConoughy, 79 111. 
 
 346; Fairbank v. Leary 40 Wis. 637; Central Ohio Salt Co. v. Guthrie, 
 
 35 Ohio St. 666, 672. And see Collins v. Locke, L. R. 4 App Gas. 674; 
 
 Western U. Teleg. Co. v. Chicago & P. R. Co. 86 111. 246; Western U. 
 
 Teleg. Co. v. American U. Teleg. Co. 65 Ga. 160; Wiggins Ferry Co. v. 
 
 Ohio & M. R. Co. 72 111. 360.
 
 310 CONSPIRACY AT COMMON LAW. 
 
 A contract entered into by the grain dealers of a particular 
 locality, the real purpose of which is to establish in acti^^e force a 
 secret combination which would stifle all competition, control the 
 price of grain, cost of storage and of shipment, is in restraint of 
 trade and void as against public policy.' 
 
 Where one producer or holder of an article of public use enters 
 into a contract with another producer or holder, binding the latter 
 to hold and keep out of the market his supply, the contract is 
 against public policy and void.'^ 
 
 An agreement to form a pool for the purchase of a commodity 
 in common use, involving the controlling and withdrawal from 
 the market of large quantities, is an unlawful combination which 
 would not be enforced between the parties. ' 
 
 Upon the same principle in Clary r. Coin. 4 Pa. 21(), an indict- 
 ment which charged a conspiracy which had for its purpose the 
 circulation of certain false and forged bills, with the intent to 
 cheat and defraud "the citizens of this commonwealth and oth- 
 ers," was held good. So also in Co)n. v. Judd, 2 Mass. 329, a 
 conspiracy to manufacture sjDurious indigo, and sell the same at 
 public auction with intent to cheat and defraud such persons as 
 should become purchasers, was held sufficient. * 
 
 The conviction in Be^v v. Gill, 2 Barn. & Aid. 204, was for a 
 conspiracy to cheat several individuals by name. The indictment 
 was not under Statute 30 George II., for the particular false pre- 
 tences were not stated showing them to be within the statute, as 
 required,' or under Statute 33 Henry YIII., against cheating by 
 false privy tokens, etc." 
 
 It was ruled that when several persons have once agreed to 
 cheat a particular individual of his money, although they may not 
 at the time have fixed upon any particular means for that purpose, 
 
 ^Crafty. McConoughy, 79 111. 346. 
 
 « Arnot V. Pittaton & E. Coal Co. 68 N. Y. 558. 
 
 3 Arnot V. Pittston & E. Coal Co. 68 N. Y. 558; Knotolton v. Congress dk E 
 
 Spring Co. 57 N. Y. 518; Bell v. Leggeti, 7 N. Y. 176; Keene v. Kent, 4 
 
 N. Y. S. R. 431. 
 
 * See also People v. Arnold. 46 Mich. 268; Collins v. Com. 3 Serg. & R. 220- 
 Reg. V. Peck, 9 Ad. & El. 686;i/cAee v. State, 9 West. Rep. 838, 111 lud 
 378. 
 
 « Rex V. Mason, 2 T. R. 586; East, Crim. Law, 837. 
 « 3 Chitty, Cr. Law, 999; Rex v. Mum, 2 Str. 1127.
 
 COMMON LAW ORIGIN OF OFFENSE OF CONSPIRACY. 311 
 
 the offense of conspiracy is complete, and that it was sufficient to 
 «tate the act of conspiring and tlie object of the conspiracy in the 
 indictment, without setting out the means by which it was in- 
 tended to be accomphshed; wliich, as Lord Mansfield said, in Rex 
 V. Eccles, 1 Leach, C. C. 274, "may be perfectly indifferent." 
 The indictment was not sustained on the ground that it was a 
 conspiracy to commit an indictable offense; for if it had not been 
 for a conspiracy to cheat, but against an individual for the actual 
 commission of the offense it would have been bad for the gener- 
 ality of the allegation. Rex v. Mawlry, 6 T. K.. 619, for a 
 conspiracy to prevent the course of justice, shows that all indict- 
 able offenses are not embraced by the Statute 33 Edward I., but 
 that at common law a conspiracy to do anything which the law- 
 forbids is indictable. 
 
 In Rex V. Delaval^ 3 Burr. 1434, the conspiracy was to place a 
 girl by her own consent, in the hands of Delaval, for the purpose 
 of prostitution. The act of seduction was not in itself an indict- 
 able offense, but it was the end, the immoral purpose of the con- 
 spiracy which gave it a criminal character. The law holds as 
 criminal all conspiracies against public virtue and good morals, 
 although the act by an individual would not be thus punishable. 
 The influence of many, united to overcome the virtue of a woman, 
 is recognized as more dangerous than the seductive arts of one. 
 So a conspiracy to induce a young female, by false pretenses, to 
 have illicit connection with a man.' 
 
 And in a recent case in Illinois, although seduction was not 
 made criminal by statute, the conspiracy to accomplish it was held 
 to be so at common law, and it was held unnecessary to show that 
 the means used were either unlawful or criminal,^ 
 
 So a conspiracy to induce a girl of 17, not shown to be chaste, 
 to become a common prostitute, was held indictable. Reg. v. How- 
 ell, 1864, 4 Fost. & F. 160, Bramwell, B., ruling that any unlaw- 
 fulness in the state of things to be accomplished by the conspir- 
 acy was sufficient to give it a criminal character, and since agree- 
 ments for prostitution or claims for goods supplied for purposes 
 of prostitution are illegal in the sense that they cannot be enforced, 
 
 ' Reg. V. Mears, 1851, 2 Den. C. C. 79; State v. Savoy, 48 Iowa, 563. 
 » Smith V. People, 35 111. 17. See Anderson v. Com. 5 Rand. 637.
 
 '312 CONSPIKACY AT COMMON LAW. 
 
 prostitution itself is a sufficiently ine2:al state of things to render 
 indictable a combination to bring it about. 
 
 So a conspiracy to accomplish the abduction of a minor and to 
 procure adultery, was indictable.' 
 
 So for the procurement of a fraudulent marriage ceremony. * 
 Or to aid female infant to escape parental control to marry her. ' 
 
 So it is criminal to conspire to do any act offensive to public 
 decency, as preventing burial of body of pauper and removing it 
 from workhouse for any improper or indecent purpose." 
 
 In 1 Hawk, P. C. 190, chap. 72, it is said, "there can be no doubt 
 that all combinations whatsoever, wrongfully to prejudice a third 
 person are highly criminal at common law."* 
 
 Chitty says: "In a word, all confederacies wrongfully to prej- 
 udice another are misdemeanors at common law, whether the in- 
 tention is to injure his person, his property, or his character." * 
 
 And 4 Bl. Com. 157 (Christian's ed., note 4) "every confederacy 
 to injure individuals, or to do acts which are unlawful, or prejudi- 
 cial to the community, is a conspiracy. 
 
 In 1 Tremain's P. C. 82, 83, there is a precedent of informa- 
 tion against Turner and others, for a conspiracy to destroy the 
 reputation of one George Green, and falsely to charge him with 
 adultery with the wife of one of the conspirators, for the purpose 
 of extorting money from him. In 1 Treniaine P. C. 86, against 
 Hecord and others for a cheat practiced on Lady Dorothea Sey- 
 mour in prevailing on her by means of a falsehood to advance 
 large sums of money to them. In the same book, p. 91, against 
 Wilcox and others for cheating by conspiracy one John Dulton 
 of a quantity of cloth, under pretense of buying them. In page 
 91 against Taydler and others for a cheat by conspiracy in draw- 
 ing an absolute conveyance to themselves of the estates of two 
 women, and persuading him to execute it, pretending it was only 
 in trust for the women. In Tremaine, P. C. 97, against Alibone 
 
 » 1682, Rex v. Grey (Lord), 2 How. St. Tr. 519 (9 How. St. Tr. 127). 
 
 '■^ Slate V. Murphy, 6 Ala. 765; RjHpublica v. Hevica, 2 Yeates, 114. 
 
 » Bex V. Thorp, 5 Mod. 221 ; Reg. v. Blacket, 7 Mod. 39; Rex v. Sergeant, RyaD 
 
 & M. N. P. 352; Mifflin v. Com. 5 Watts & S. 461. 
 * Young's Case, 1780, cited in 1788, King v. Lynn, 2 T. R. 733. 
 ' 8 Wilson's Works, 118; 1 Burn's Jus. 378. 
 « 3 Chit. Crim. Law 1139.
 
 CONSPIKACY DEI<'I^'ED. 313- 
 
 and others for cheating by conspiracy one Hillard in obtaining di- 
 vers bonds from him for tlie payment of money to tliemselves and 
 others, as a consideration for procuring a marriage between him 
 and an indigent woman, wliom they represented as being rich. 
 
 In neither of tliese could an indictment have been sustained for 
 the same injury practiced by an individual, without the charge of 
 conspiracy or combination, and as Tremaine gives the term, the 
 reigns and the names of the respective parties, there can be lit- 
 tle doubt that they are precedents of informations in adjudicated 
 cases, and that they were held to be good, and they go far to 
 show how the common law was understood in England in the 
 reigns of Charles and James II. And the law of conspiracy as 
 settled by the uniform tenor of the decisions of the courts in 
 England has, except as to combinations of workmen, been recog- 
 nized and adopted as the common law generally in this country. 
 
 Under that law any combination to prejudice another unlaw- 
 fully has been considered as constituting the offense of conspiracy. 
 It is enough if the acts agreed to be done, although not criminal, 
 are wu'ongful ; that is, amount to a civil wrong.' The offense has 
 been held to consist in the conspiracy, and not in the acts com- 
 mitted for carrying it into effect; and the cliarge has been held 
 sufficient when made in general terms describing an unlawful 
 conspiracy to effect a bad jjm'pose.'' 
 
 § 65. Conspiracy Defined. — It would he exceedingly difficult 
 and dangerous to attempt an exclusive definition of an offense, so 
 ramified in its nature and character, and which derives its crimin- 
 
 ^Reg. V. Warbm-ton, L. R. 1 C. C. 274. 
 
 ^Eeg V. Kenrick, 5 Q B. 49, Denman, Ch. J.; Reg. v. Sehby, 5 Cox, C. C. 
 495, noU, Rolle, B.; Reg. v. ILin-U, 1 Car. & M.661, Tiiidal, Ch. J.: Hil- 
 ton V. Eckersley, 6 El. & Bl. 47, Compton, J.; Rex v. Maicbevy, 6 T. R. 
 619, Grove, J.; Rex v. Eccles, 1 Leach, C. C. 274, Lord Mansfield; Wahby 
 V. Anley, 3 El. & El. 51(3, Hill, J.; Reg. v. Ro'wlands, 17 Q. B. 670, Camp- 
 bell, Ch. J.; Reg. v. Druitt, 10 Cox, C. C. 593, Bratnwell, J.j Reg. v. 
 Btmn, 12 Cox, C. C. 316, Brett, J.; Springhead S. Go. v. Rileg, L. 
 R. 6 Eq. 551, Maliiis, ,/.; Mogul 8 S. Co. v. McGregor, L. R. 15 Q. B. 
 Div. 476, Coleridge, Ch. J.; Com. v. Hunt, 4 Met. Ill, 128, Shaw, Ch. 
 J.; SmitJi V. People, 25 111. 17, Calm,,/.; Com. v. Carlisle, So\\vn&\ Jiirisp. 
 225, Gibson, Ch. J.; Garew v. Rutherford, 106 Mass. 1, Chapman, Ch. J.; 
 Rex V. Ferguson, 2 Stark, N. P. 489;"^.e v. Bykerdike, 1 M. & Rob. 179;. 
 People V. Fisher, 14 Wend. 9; State v. Donaldson, 32 N. J. L. 151; Snoio 
 V. Wlieeler, 113 Mass. 186: State v. Steicart, 59 Vt. 273; State v. JVoyes. 2^ 
 Vt. 415; Stute v. Burnham, 15 N. H. 396; Morris Run Coal Co. v. Bar- 
 clay Coal Co. 68 Pa. 173.
 
 ^li CONSPIRACY AT COMMON LAW. 
 
 ality from its object and tendency ; l)iit in oreneral terms a criminal 
 conspiracy may be detined, as a combination to work out in con- 
 cert or by concerted means, any criminal end or certain unlawful 
 purposes, or to accomplish under such combination, any purpose, 
 by criminal or unlawful means. The word " unlawful " is used 
 to indicate that there are certain acts, possessing such inherent 
 qualities, that a union among many persons to acc(^mplish them, 
 -or use them as means to any end, will necessarily produce such 
 evil results, that to prevent such combinations, the law holds 
 those uniting guilty of criminal conspiracy, although the doing 
 of any of the acts by an individual would not be puiiished as a 
 crime. The influence of an act upon society determines whether 
 it is criminal conspiracy to combine to accomplish it, and not 
 whether the act itself is criminally punishable. 
 
 I believe every well considered case which attempts a general 
 definition, will support this statement. Of course, when the ques- 
 tion is as to what particular acts possess these attributes, some 
 difi^erence will be found among the authorities, for it may depend 
 upon the local law to deterjnine whether the purpose to be accom- 
 plished by the coml»ination,or the concerted means of accomplish- 
 ing it be unlawful or criminal.' 
 
 The course of decisions running through a space of over four 
 hundred years from the reign of Edward III. to the 59 of George 
 III., without a single conflicting adjudication, and the decided 
 weight of subsequent authorities in England and America has 
 seemed to settle certain questions at common law. Thus, a con- 
 
 Wom. V. Judd, 2 Mass. 339: State v. Cardoza, 11 S. C. 195; Com. v. Hunt A 
 Mfit. Ill; State Y. Hewett, 31 Me. 396; State v. Pdpleij, 31 Me. 386: State 
 V. Mayherry, 48 Me. 218; State v. Bvrnham, 15 N. H. 396; State v. 
 Piowley, 12 Conn. 112; Owens v. State, 16 Lea, 1; 'United States v. John- 
 on, 26 Fed. Rep. 682; United States v. Wooten, 29 Fed. Rep. 707; Spies v. 
 Pe(yple, 10 West. Rep. 701, 122 111. 1; Smith v. People, 25 111. 24; Com. v. 
 Tibbetts, 2 Mass. 538; Co)n. v. Warren, 6 Mass. 74; People v. Mather, 4 
 Wend. 259; State v. Catoood, 2 Slew. (Ala.) 360; State v. Pickey. 9 N. J. 
 L. 364; State v. Buchanan, 5 Harr. & J. 317; Collins v. Com. 3 Serg. & R. 
 220; Morgan v. Bliss, 2 Mass. 112; People v. Richards, 1 Mich. 216: Reff. 
 V. BtUton, 11 Q. B. 929; Rex v. Gill, 2 Barn. & Aid. 204: Reff. v. Best, 1 
 Salk. 174; United States v. 3filler, 3 Hughes, 553; United States v. Donau, 
 
 11 Blatchf. 168; Slate v. Adams, 1 Houst. C. C. 361; State v. Bradley, 48 
 Conn. 549; State v. Jones. 13 Iowa, 269; State v. Sterling, 34 Iowa,'444; 
 Com.. V. Davis, 9 Mass. 415; Com. v. Wallace, 16 Gray, 223; State v. Pdle, 
 
 12 Minn. 164; Slate v. Christianbury, 44 N. C. 48: Com. v. McKissom, 8 
 Serg. & R. 420; Coin. v. Corlies, 8 Phila. 450; Twitchell v. Com. 9 Pa. 
 211; People V. Saunders, 25 Mich. 124; State v. Potter, 28 Iowa, 554.
 
 CO>'Sl'lKACY DEFINED. «'-^*' 
 
 •spiracy to do anv act that is criminal per se, whether a felony or 
 misdemeanor, is" an indictable offense at common lay. 
 
 The thin^ contemplated, must be in its very natiire specially 
 adapted to injure some person or the public generally, by reason 
 of the concert of the parties,^^ or it must be the subject of mdict- 
 ment if done bv one person.' ,• ^ «. 
 
 Among others may be instanced acts necessardy collective, a. 
 unlawfuf assembly- and a fraudulent knock down at auction; 
 also certain frauds or perversion of justice;^ and combined con- 
 , ar^.. «^P qi- Com v CroioninsJiield, 10 'Pick A97; People 
 
 i ^l^Lf'-7t:„/f7|^/27 Ala. 37; Solander v. People, 2 Colo 48; 
 Rep. 632; ^'^""^ J- '^'^o . 1 oqfi- ^fofp v Stewart 4 New Eng. Kep. 
 
 378, o9 \t. .,6 /\3^p.; V,,/k4i. State y. Glidden, 3 New Eng. Rep. 
 
 afSliifiiil 
 
 State V. Oe<yrge, 29 N. C. 331, ^^^J^/^ Tex AoR 193- Laioson v. State, 
 
 v. M«fc, W M li?; State V C*«pi«j u Ar ^,^^_ ^ ^j^^.^. 
 
 Kk%t' ^'^^^'I- S'«. ^0* 'li 2ie; *.«i'v. ».'«, 20 Ga. 681. 
 if^ff. V. Warhurton, L. R. 1 C. C. 274. 
 
 .c„„,. V. /.... 2 Mass. f^^/i^n^-^-izrZ^ K'f e; S: 
 
 Rep. 145; Reg- v. .Bmjitj, 13 Lex, t.. ^. ^lo. ^^^y- 
 
 P. 109. 
 ^B£X V. fiM7i«, 1820, 3 Barn. & Aid. 566. 
 ^Cim-d V. Brandon, 2 Catnpb. 358; Anon. 6 T. R. 626; Levi v. Le.. (18oo). 
 
 ^ifex TeM, 1818, 2 Stark. N. P. 343; Rex v. 5f..enf.«, 1803, 2 East, 362.
 
 31G CONSPIKACY AT COMMON LAAV. 
 
 duct bj trades, employers or workmen regarding the price of 
 goods or labor/ 
 
 The English Criminal Law Commissioners stated this general 
 principle as the foundation of the law of conspiracy, that the con- 
 federacy of several persons to effect any injurious object creates 
 such a new and additional power to cause injury as requires crim- 
 inal restraint; althouHi none would be necessary were the same 
 thing proposed or even attempted to be done by any person 
 singly.* 
 
 Many acts are said to be unlawful which would not be the sub- 
 ject of criminal conspiracy. Other acts are unlawful because 
 they are in violation of the criminal law or some penal statute. 
 If the ends or the means are criminal in themselves or contrary to 
 some penal statute, the conspiracy is clearly an offense.^ 
 
 A conspiracy to commit a felony or misdemeanor or any crim- 
 inal act is indictable." So it is indictable to conspire to charge 
 one with a crime, although there be no intent to procure a prose- 
 cution.^ It is also indictable to form a conspiracy to cheat one by 
 making one drunk and playing falsely at cards with him. ® 
 
 As a general rule at common law all confederacies wrongfully 
 to prejudice another are misdemeanors and indictable, whether 
 the intention is to injure his property, liis person, or his character. 
 
 It is the intent to cause injury that poisons the agreement.* 
 
 All of the parties to the conspiracy need not be able each to aid 
 
 ^Rex V. Bykerdyke, 1833, 1 Mood. & Rob. 179. See Reg. v. Dniitt, 10 Cox, C. 
 C. 593, 16 L. T. N. S. 855, 859 :i?/(7- v. Heirltt, 1851, 5 Cox. C. C. 163; Rex 
 V. Nurris, 3 Ld. Ken. 300; Rex v. Mawbey, 6 T. R. 619, 636; Rex v. 
 Eccles, 1 Leach, C. C. 314; People v. Fisher, 14 Wend. 9; Master iSievedores- 
 Asso. V. Wahh, 3 Daly, 1. 
 
 'Seventh Report, p. 90. 
 
 ^ Slate V. Glidden, 3 New Eng. Rep. 849, 55 Conn. 46. 
 
 ^People V. Mather, 4 Wend. 365; Cora. v. Kingsbury, 5 Mass. 106; State v. 
 Buchanan, 5 Hair. & J. 317. 
 
 ^Com. V. Tibhetts, 3 Mass. 536; People v. Jon,es, 13 West. Rep. 77, 67 Mich. 
 544. 
 
 ^State V. Younger, 13 N. C. 357. 
 
 ' 1 Hawk. P. C. chap. 73, § 3; Delz v. Wiafree, — Tex. — , March 24, 
 1891. 
 
 « Jlomeman v. Reg. 16 U. C. Q. B. 543; Reg. v. Kenrick, 5 Q. B. 49; Com. v. 
 Ridgiray, 2 As-lim. 347; Rex v. Richardson, 1 Mood. &, Kob. 403; March 
 V. People, 7 Barb. 391; State v. Rickey, 8 N. J. L. 60.
 
 CONSPIRACY DEFINED. 317 
 
 'Or to accomplish it. It is sufficient if one can do the act proposed 
 to render all consenting and combinino; (ruilty.' 
 
 A conspiracy to injure a man in his trade or profession is 
 indictable. " All conspiracies to ''excite disalfection" are indicta- 
 ble at common law. ' A conspiracy to stir up jealousies, hatre<l 
 and ill will between different classes of citizens is unlawful;^ or to 
 induce others to violate the laws. ' 
 
 It is said that there are many cases in which the act itself would 
 not be cognizal)le by law, if done by a single person, which 
 becomes the subject of indictment when effected by several by a 
 joint design. * Thus each person at a public exhibition has a 
 right to express his disapprobation of the performance, but if sev- 
 eral previously agree to express condemnation they may be guilty 
 of conspiracy. ^ 
 
 So it has been said, there are other cases in which, though the 
 act may be morally criminal, it is not illegal except on the ground 
 of conspiracy; the verbal slander of a private individual is not 
 indictable at common law, but it is so where several unite in a 
 scheme to blast his character. * 
 
 But where the act is lawful for an individual, it can be the sub- 
 ject of a conspiracy, when done in concert, only where there is a 
 direct intention that injury shall result from it; thus if a number 
 of persons should combine to establish a ferry, not from motives 
 of public or private utility, but to ruin or injure the owner of a 
 neighboring ferry, the wickedness of the motive would render the 
 association criminal, although it would be otherwise if the com- 
 
 ' Reg. V. McMalion, 26 U. C. Q. B. 195; United States v. Bayer, 4 Dill. 407; 
 Den V. Johnson, 18 N. J. L. 87; Boggus v. State, 34 Ga. 275; State v. 
 Sprague, 4 R. I. 257; State v. Oooch, 105 Mo. 392. 
 
 ^Eex V. Eccles. 1 Leach, C. C. 274, 3 Dougl. 337, approved in 1885; Mogid 
 Steamship Co. v. McGregor, L. R. 15 Q. B. Div. 476, 482. See also Reg. v 
 Heioitt, 5 Cox, C. C. 162; Carew v. Rutherford, 100 Mass. 10-15; Walker 
 V. Cronin, 107 Mass. 564; Master Stevedores Asso. v. Walsh, 2 Daly, 12, 
 Rex V. Bykerdyke, 1 Mood. & Rob. 179; State v, Donaldson, 32 N. J. L. 
 151; Walsby v. Anley, 3 L. T. N. S. 666. 
 
 8 Reg. V. Vincent, 9 Car. & P 91; Reg. v. Shellard, 9 Car. & P. 277; Rex v. 
 Hunt, 3 Barn. & Aid. 586; Russ. Cr. 681. 
 
 * O'Connell v. Reg. 11 Clark & P. 155. 
 
 5 Hazen v. Com. 23 Pa. 355; Com. v. Kostenbauder (Pa.) 3 Cent. Rep. 632: 
 State V. Stewart, 4 New Eng. Rep. 378, 59 Vt. 273. 
 
 « Rex V. Mawbey, 6 T. R. 636. 
 
 ■'' Clifford V. Brandon, 2 Campb. 358. 
 
 '^Rexy. Kimherty, 1 Lev. 62; Rex ■^ . Armstrong , 1 Vent. 304.
 
 318 CONSPIRACY AT COMMON LAW. 
 
 bination were to employ capital in fair business competition with 
 others in the same calling for .profit and not for oppression. So 
 the combination is criminal where the object is to benefit the con- 
 spirators to the prejudice of the public or the oppression of indi- 
 viduals, and where such prejudice or oppression is the natural and 
 necessary consequence. Thus if the bakers of a town were to 
 combine to hold up the article of bread; or a powerful corpora- 
 tion to control the article of sugar; or a necessary article in com- 
 mon use like matches, and by means of a scarcity thus produced 
 extort an exorbitant price for it, altliough the injury to the public 
 would be only collateral to the object of the association, it would 
 be indictable. * 
 
 So there must be an agreement of two or more persons to do the 
 act, not a mere intention. ' But consent will amount to such 
 agreement. ^ 
 
 Conspiracies to accomplish purposes wliich may or may not be 
 by law punishable as crimes, but which are unlawful as violations 
 of the rights of individuals, and for which the cival law will afford 
 a remedy to the injured party, and will at the same time and by 
 the same process punish the ofliender for the wrong and outrage 
 done to societ}^, by giving exemplary damages beyond the dam- 
 ages actually proved, have in numerous instances been treated as 
 common law oifenses. Among these may be included conspiracy 
 to accomplish a seduction ;* conspiracy to prosecute ;' conspiracy 
 to procure an arrest ;* to injure the personal property of another;^ 
 to injure one in his business. * 
 
 ' Com. V. Carlisle, Bri.a^htly, 36 ; People v. North River Sugar Ref. Go. 2 L. 
 
 R. A. 33, 22 Abb. N. C. 164, 5 L. R. A. 387, 54 Hun, 354; Richardson v. 
 
 Buhl, 6 L. R. A. 457, 77 Mich. 632. 
 ' Reg. V. Peck, 9 Ad. & El. 686; Mulcahy v. Reg. L. R. 3 Eng. & Ir. App. 
 
 306; Reg. v. Parmll, 14 Cox, C. C. 508; Reg. v. Absolon, 1 Fost. & F. 498; 
 
 United States v. Johnson, 26 Fed. Rep. 682; State v. Olidden, 3 New Eng. 
 
 Rep. 849, 55 Conn. 46; United States v. Nunnemaclier , 7 Biss. 111. 
 3 Slate V. Anderson, 92 N. C. 732; United States v. Babcock (Mo.), 3 Cent. L. 
 
 J. 144; United States v. Goldberg, 7 Biss. 175. 
 * State V. Murphy, 6 Ala. 765; Smith v. People, 25 111. 24: Anderson v. Com. 
 
 5 Rand. 629. 
 
 » State V. Walker, 32 Me. 195; Com. v. McLean, 2 Pars. Eq. Cas. 367; Bloom- 
 field V. Blake, 6 Car. & P. 75. 
 
 « Elkin V, People, 28 N. Y. 177. 
 
 ' Lowery v. State, 30 Tex. 402; State v. Flynn, 28 Iowa, 26; Beecher v. Webb, 
 113 111. 436; StaU v. Earvood, 75 N. C. 210. 
 
 « Rex V. Eccles, 1 Leach, C. C. 274; Mogul Steamship Co. v. McGregor, L. R.
 
 CONSPIRACY AGAINST CIVIL GOVERNMENT. SIQ- 
 
 So to commit an assault and battery. * 
 
 To involve one in an inquisition of lunacy without reasonable 
 evidence,* or place in an insane refuge.^ 
 
 So also a conspiracy to slander;* or to commit a trespass.* 
 
 But a mere agreement to do an act which of necessity involves the 
 concurrent consent and co-operation of two persons, is not a con- 
 spiracy between such person, as adultery or fornication, or duel- 
 ling, bigamy, etc. ' The agreement or consent or collusion may 
 be inferred from the acts proved.' It may be shown by circum- 
 stantial evidence. * A consent after the conspiracy is in action is 
 sufficient. " 
 
 It is a common law offense to conspire to do an immoral act, 
 although the act is not, if done by an individual of his own mo- 
 tion, illegal, except in the sense that contracts resting upon the 
 consideration of such an act cannot be enforced.'" 
 
 § 66. Conspiracy against Civil Government. — This includes 
 of course all conspiracies against civil governments, which are 
 made crimes by statute or are such at common law, as treason." 
 
 15 Q. B. Div. 476, 482; King v. Cope, 1 Stra. 144; King v. Leigh, 1 Car. & 
 
 K. aS; Clifford v. Brandon, 2 Campb. 358: Wildee v. McKee, 1 Cent. Rep. 
 
 919, 111 Pa. 335: P(^)ple v. Petheram, 7 West. Rep. 592, 64 Mich. 252; 
 
 EmanneVs C<ii<e, 6 City Hall Rec. 33. 
 I State V. PuUe, 12 Minn. 164; Com. v. Putnam, 29 Pa. 296; State v. Ormis- 
 
 ton, 66 Iowa, 143; but not an abortion, Scott v. Eldridge (Mass.) 12 L. R. 
 
 A. 379. 
 ' Davenport v. Lynch, 51 N. C. 545. 
 
 * Hinehman v-. Richie, Brightly, 143; Mintzer v. Sheriff (Pa.) 1 Campb. Leg. 
 
 Gaz. Rep. (Pa.) 340; Com. v. Sheriff, 8 Phila. 645. 
 ^ State V. Hickling, 41 N. J. L. 208; State v. Burlingham, 15 Me. 104; Com. 
 
 V. Tibbetts, 2 Mass. 536; Johnson v. State, 26 N. J. L. 313; Peg. v. Best, 
 
 2 Ld. Raym. 1167; Frubaly v. Childe, 1 Sid. 68; Rex v. Armstrong, 1 
 
 Vent. 304; Rex v. Rispal, 1 W. Bl. 368. 
 » State V. Straw, 42 N. H. 393; State v. Simpson, 12 N. C. 502. 
 
 • Miles V. State, 58 Ala. 390. 
 
 ' State V. Ripley, 31 Me. 386. 
 
 8 Spies V. People, 10 West. Rep. 701, 122 111. 1. 
 
 9 People V. Mather, 4 Wend. 229; Spies v. People, 10 West. Rep. 701, 132 111. 
 
 1 : Smith v. State, 21 Tex. App. 96. 
 '"Lord Gray (1682), 2 St. Tr. 519; Rex v. Delaml (1763), 3 Burr. 1434, 
 
 1 W. Bl. 410, 439 ; Young's Case (1780), cited in 1788 in Rex v. 
 
 Lynn, 2 T. R. 733; Reg. v. Mear (1851), 2 Den. C. C. 79; Reg. v. 
 
 Eo^cel (1864), 4 Fost. & F. 160; Anderson v. Com. 5 Rand. 627; State v. 
 
 Btirnham, 15 N. H. 396; State v. Parker, 48 N. H. 83; State v. Murphy, 
 
 6 Ala. 765; State v. Dewitt, 2 Hill,-L. 282; State v. Shooter, 8 Rich. L. 172; 
 
 Mifflin V. Com. 5 Watts & S. 461; Stnith v. People, 25 111. 24. 
 ^WConnell v. Reg. 11 Clark & F. 155; Spies v. People, 10 West. Rep. 701. 12^ 
 
 111, 1 ; Com. V. Blackburn, 1 Duv. 4.
 
 320 CONSPIRACY AT COMMON LAW. 
 
 It includes conspiracy to excite discontent, disaffection and se- 
 ditious opposition to the government; to promote ill will between 
 different classes of citizens; to excite disaffection in the army; to 
 attempt by show of physical force to secure alterations in the laws 
 and government, through fear created thereby in the minds of 
 those having power to effect such changes; to obstruct the execu- 
 tion of the laws; to defraud the government. ' 
 
 Conspiracies whose success would injuriously affect the opera- 
 tions of the gov^ernment, even if not criminal, will create no en- 
 forceable rights in the parties thereto ; see ante, chapter Y. 
 But if it involve a criminal violation of a statute," or the 
 bribery of an officer,' or corruption of the appointing power,^ 
 conspiracy will be punishable as a crime. 
 
 Bribery at any lawful election is a misdemeanor at common 
 law, and an offer of money to an elector to induce him to vote at 
 ■a municipal election is a criminal offense. * 
 
 To induce such action it is a crime to offer or promise a thing 
 valuable at that time, or which will be valuable when according 
 to the promise it is to be given or delivered.* And in an indict- 
 ment under the Revised Statutes of the United States it is not 
 necessary to charge that the purpose sought was accomplished or 
 that the voter, by reason of the bribe alleged, voted or refrained 
 from voting, or voted otherwise than, without the bribe, he would 
 have voted.' 
 
 ^O'Connell v. Reg. 11 Clark & F. 155; Hazenv. Com. 23 Pa. 355: Reg. v. Bunn, 
 12 Cox, C. C. 316; Reg. v. Vincent, 9 Car. & P. 91; Reg. v. SJiellard, 9 
 Car. & P. 277; Ku Kiux Cases. 1 Hughes, 439, 448, 458; United States v. 
 Watson, n Fed. Rep. 145; The Mimel Slough Case, 5 Fed. Rep. 680; 
 United States v. McDonald, 8 Biss. 439; United States v. De Grieff, 16 
 Blatchf. 20; The Star Route Cases (Washington), 1882; United States v. 
 Fi-isbie, 28 Fed. Rep. 808; United States v. Boi/den, 1 Low. 266; United 
 States V. Ntinnemacher, 7 Biss. Ill; State v. Cardoza, 11 S. C. 196; Com. 
 V. Kostenbauder (Pa.) 3 Cent. Rep. 632; Spies v. People, 10 V\''est. Rep. 701, 
 123 111. \;Re Baldwin, 27 Fed. Rep. 193. 
 
 ^Com. V. McHale, 97 Pa. 397. 
 
 ^Shircliffv. State, 96 Ind. 369. 
 
 *Rex V. Pullman, 2 Campb. 23Q;Re.v v. Vu^cg7ln, ABurr. 2494; Com. v. Callag- 
 han, 2 Va. Cas. 460. 
 
 ^State V. Jackson, 73 Me. 91. 
 
 « Watson V. State, 39 Ohio St. 123. 
 
 "* United States v. Stout, 29 Fed. Rep. 897.
 
 CONSPIEACIES AFFECTING THE PUBLIC. 321 
 
 § 67. Conspiracies Aifecting the Public Injuriously or 
 against the Public Quiet. — The law looks upon all conspira- 
 cies which endanger the public quiet and safety, or that of the 
 individual members of the community, with disfavor, and will 
 suppress all attempts to create such disturbance, and punish the 
 conspirators.' 
 
 A pubHc meeting called to denounce the acts of the police while 
 in the due performance of their duty and tending to excite armed 
 resistance to lawful authority is an unlawful assembly and con- 
 spiracy and should be suppressed by legal authority. " 
 
 An understanding among officers charged with the execution 
 of a statute that they will violate it or permit its \T.olatiou is a 
 conspiracy. ' 
 
 But the intent to violate law must appear. ■• 
 
 So a conspiracy to induce public officers to violate the law or 
 do acts not authorized is unlawful.* Or to commit fraud at a 
 legal election. * Or to procure the appointment of an election 
 officer.' Or in an appointment to an office.^ So the sale by com- 
 bination of unhealthy food is unlawful.* 
 
 So it will be also if private parties conspire to induce the viola- 
 tion of a statute.'" As a statute against the sale of liquor," or a 
 law to protect the Sabbath,'^ or to excite a riot or discontent,'^ or 
 trespass.'* 
 
 So acts which will injure the public, if they are the subject of 
 
 1 State V. Burnham, 15 N. H. 396; United States v. Ravara, 3 U. S. 2 Dall. 
 
 297, 1 L. ed. 888; Com. v. Whitehead, 2 Rep. 148; State v. Farrier, 8 N. 
 
 C. 487; State v. Taylor, 3 Brev. 243; Com. v. Tibbs, 1 Dana, 525. 
 « Spies V. People, 10 West. Rep. 701, 122 111. 1. 
 s Woodv. State, 1 Cent. Rep. 441, 47 N. .J. L. 461. 
 
 * People V. Flack, 11 L. R. A. 807, 125 N. Y. 334; Stokes v. Peowfo, 53 N. Y. 
 
 179. 
 6 Com. V. Franklin, 4 U. S. 4 Dall. 255, 1 L. ed. 823. 
 
 * United States v. Crosby, 1 Hughes, 448. 
 
 ■" United States v. Watson, 17 Fed. Rep. 145. 
 
 8 Com. V. Callaghan, 2 Va. Cas. 460; Rex v. Pullman, 2 Campb. 229. 
 
 9 State V. Rowley, 12 Conn. 101; Reg. v. MacKarty, 2 Ld. Rayrn. 1179. 
 ^'■>Eazen v. Com. 23 Pa. 355. 
 
 "5tote V. Potter, 28 Iowa, 554. 
 ^"^Com. V. Leeds, 9 Phila. 569. 
 
 ^^Reg. V. Vincent, 9 Car. & P. 91 ; Reg. v. Shellard, 9 Car. & P. 277. 
 ^*State V. Straw, 42 N. H. 393; Reg. v. Rowlands, 17 Q. B. 686. 
 21
 
 322 CONSPIRACY AT COMMON LAW. 
 
 a combination to accomplish them, though neither immoral nor 
 contrary to express statute in themselves, are within the reach of 
 criminal proceedings. ' 
 
 And this although the disturbance only result in private in- 
 
 So conspiracies to give effect to an agreement against public 
 policy, or to induce violations of law, or tending to a breach of 
 the public peace, will not only give a civil action to one injured 
 thereby, but be treated as criminal offenses. ' 
 
 An offense against a seaman by a person who is not a seaman is 
 not excluded from the English Conspiracy and Protection of Prop- 
 erty Act 1S75 (38 & 39 Vict. chap. SQ) by § 10, which enacts that 
 the Act shall not apply to seamen, as that means only that sea- 
 men are not to be punishable under the Act. * 
 
 So to defraud the State of taxes or customs by combination is 
 criminal.* 
 
 § 68. Conspiracy Against the Dne Administration of Jus- 
 tice.— Contracts or agreements to obstruct the even course of 
 public justice, or to pervert it, have been shown to be illegal and 
 void {ante, § 21); and it is equally true, that whenever conspira- 
 cies, either in their purpose, or their execution, seriously point to 
 such ends, the parties thereto become criminals. "^ 
 
 Thus to procui'e a forfeiture or conviction in order to divide 
 the property among the conspirators. '' 
 
 To destroy a will for this purpose. * 
 
 ' King v. Edioards, 2 Strange, 707; King v. Joiirnexjmen Tdilors, 8 Mod. 10. 
 
 * Haulier's Case, 1 Swiuton, 550; Anderson v. Com. 5 Rand. 627. 
 3 State V. Potter, 28 Iowa, 554. 
 
 * Kennedy v. Oowie [18911 1 Q. B. 771. 
 
 ' United States v. Boyden, 1 Low. 266; United States v. Rindshopf, 6 Biss. 
 
 259; Gardner v. Preston, 2 Day, 205; United States v. Smith, 2 Bond, 323; 
 
 United States v. Dusien, 2 Bond, 332; United States v. Graff, 14 Blatchf. 
 
 381; United States v. Babcock, 3 Dill. 581. 
 ^ State V. Caldtcell, 2 Tyler, 212; State v. Harris, 38 Iowa, 242; Slomer v. 
 
 People, 25 111. 70, 76 Am. Dec. 786; State v. McKinstry, 50 Ind. 465; Reg. 
 
 V. Thompson, 16 Q. B. 832; People v. Washburn, 10 Johns. 160; United 
 
 States V. Staats, 49 U. S. 8 How. 41, 12 L. ed. 979; State v. Deicitt, 2 Hill, 
 
 L. 282; Com. v. McLean, 2 Pars. Eq. Cas. 367; State v. Norton, 23 N. J. 
 
 L. 33; State v. Keys, 8 Vt. 57; Com. v. Douglass, 5 Met. 241; State v. 
 
 Noyes, 25 Vt. 415. 
 
 ' Ashley's Case, 12 Coke, 90. See also Parker v. Huntington, 2 Gray, 124; 
 
 Newall V. Jenkins, 26 Pa. 159. 
 • State V. Lewitt,2 Hill L. 283.
 
 CONSPIRACIES AGAINST PUBLIC AND PRIVATE VIRTUE. 323 
 
 To prevent competition at judicial sales. 
 
 To attempt to use or pervert legal process to private criminal 
 ends and use of extra judicial proceedings. * 
 
 To suppress, fabricate or falsify evidence in legal actions or 
 proceedings.^ 
 
 To prevent a prosecution for a crime/ or acquit by bribery.* 
 
 Charging or indicting falsely. ' And this although indictment 
 insufficient/ or no process issue.* 
 
 To obstruct an officer." 
 
 To procure a fraudulent judgment or decree, as a divorce." 
 
 To entice one within the jurisdiction of the court." 
 
 § 69. Conspiracies against PnWic Virtne and Individual 
 
 Morality, Indictable. — It has been already shown hi the review 
 of authorities that all attacks upon public virtue by combined 
 effort are indictable.''^ 
 
 So of a conspiracy to seduce a particular woman." 
 Or to induce one to enter on a life of prostitution. '* 
 
 ' Levi V. Levi, 6 Car. & P. 239. 
 
 ^ S'nfe Y. Enloe. 4: Dev. & B. 373; Slomer v. People, 25 111. 70; State v. 
 
 Shooter, 8 Rich. L. 72; Bex v. Hollingsberry, 4 Baiu. & C. 329; Rex v. 
 
 Taylor, 15 Cox, C. C. 265. 
 3 Slate V. Deioiit, 2 Hill, L. 2^2; Slomer v. People, 25 111. 70; E'Mn v. People, 28 
 
 N. Y. 177; Com. v. Tibbetts, 2 Mass. 536; Hood v. Palm. 8 Pa. 237; Rex 
 
 V. Johnson, 2 Show. 1; Rex v. Steventon, 2 East, 362; Bex v. Mawbey, 6 
 
 T. R. 619. 
 * Claridge v. Hoare, 14 Ves. Jr. 59. 
 
 5 State V. Mckinstry, 50 Ind. 465; State v. Dewitt, 2 Hill, L. 282; Rex v. Maw- 
 bey, 6 T. R. 610. 
 8 Rex V. Spragg, 2 Burr. 993; Rex v. MacDaniel, 1 Leach, C. C. 44; Slomer v. 
 
 People, 25 111. 70; Elkin v. Peojjle, 28 N. Y. 177; State v. Buchanan, 5 
 
 Harr. & J. 317; Suydenham v. Kerloicay, Cro. Jac. 7 Pig. Hawk P. C. 
 
 Curw. ed. 444, sec. 2; Reg. v. Best, 1 Salk. 174, 8 Mod. 321. 
 T Bloomjield v. Blake, 6 Car. & P. 75, 1 Hawk, P. C. Curw. ed. sec. 3, p. 
 
 446. 
 8 Com. V. Tibbetts, 2 Mass. 536. 
 » United States v. Smith, 1 Dill. 212; Golev. People, 84111. 21Q; State v. Noyes, 
 
 25 Vt. 415; State v. Ripley, 31 Me. 386. 
 ^"Gole V. People, 84 111. 216; People v. Flack, 11 L. R. A. 807, 125 N, Y. 324. 
 ^Wook V. Brown, 125 Mass. 503; Plielps v. Goddard, 1 Tyler, 60. 
 ^^King v. Grey, 9 How. St. Tr. 127; Rex v. Belaval, 3 Burr. 1434. 
 ^^Smith V. People, 25 111. 17; Anderson v. Gom. 5 Rand. 627; Stale v. Savoye, 
 
 48 Iowa, 562; King v. Grey, 9 How. St. Tr. 127; State v. Murj^hy, 6 Ala. 
 
 765; i2fa! v. Mear, 2 Den. C. C. 79. 
 ^*Reg. V. PoMJeZi, 4 Post. & P. 160; Reg. v. if^a?-*, 20 L. J. M. C. 59.
 
 324 CONSPIRACY AT COMMON LAW, 
 
 Or to induce a girl under the legal age to marry. * 
 
 Or to elope for purposes of prostitution or fornication. " 
 
 § TO. Combinations to Cheat. — An indictment for a conspira- 
 cy will not in general lie in those cases of fraud or tresjjass not 
 affecting the person, for which an action or suit at law will afford 
 adequate relief, if the intention of the conspirators was consum- 
 mated, when the means intended to be resorted to are private. ' 
 
 In 2 East's C. L. title Cheats, cheats by conspiracy are treated 
 of as being on the same footing with cheats affected by the use of 
 false public tokens, as false weights and measures. Chitty in 
 his 3d vol. title Conspiracy, after speaking of indictable con- 
 spiracies leveled at individuals, says, "but the object of conspiracy 
 is not conhned to an immediate wrong to particular individuals. 
 It may be to injure public trade, to affect public health, to violate 
 public policy, to obstruct public justice, or to do any act in itself 
 illegal." Thus he takes a clear distinction between Indictable 
 combinations to injure individuals, and such as have for their 
 object an injury to the public at large, or the commission of acts 
 which are in themselves illegal, and on page 1140 he says "that 
 to constitute a conspiracy, it is not necessary that the act itself 
 should be itself illegal, or even immoral; that it should affect the 
 public at large; or that it should be accomplished by false pre- 
 tences." 
 
 If the purpose of a conspiracy is to injure or defraud the pub- 
 lic, then the latter has a direct interest either residing in the com- 
 munity at large or in the State as a corporate body. If tlie object 
 be to injure an individual, then the public has only an indirect 
 interest as concerned in the maintenance of order, the administra- 
 tion of justice and the like. A conspiracy to injure the public is 
 indictable, independent of the means employed. A conspiracy 
 to injure a private individual only becomes subject to indictments 
 through the intervention of statutes and rules of law defining 
 what private injuries are regarded as detrimental to the public* 
 
 A conspiracy to defraud a corporation which is created for the 
 
 1 RespuUica v. Hevice, 2 Yeates, 114. 
 
 " Anderson v. Com. 5 Rand. 627; Reg. v. Mears, 2 Den. C. C. 79; Reg. v. 
 
 Powell, 4 Fost. & F. 160. 
 s State V. Bewitt, 2 Hill, L. 283. 
 ^State V. Vardoza, 11 S. C. 195.
 
 COMBINATIONS TO CHEAT. 325 
 
 benefit of the public is a conspiracy affecting the public and 
 indictable/ or to defraud the state itself. * 
 
 A conspiracy to secure certain persons to be made directors of 
 a corporation by unlawful means, in order to procure appointments 
 to positions for the conspirators, is an indictable offense.^ 
 
 A false token and counterfeit letter are things that may affect 
 others than the intended objects of the cheat. They may to some 
 extent maintain a credit with the public, and so be a public injury 
 like spurious goods offered as genuine to the public," the mak- 
 ing of which with such intent is indictable even if no sale be 
 effected.' So the making of illegal or spurious notes is indictable 
 as liable to deceive the public; ° or cheating with bank notes or 
 illegal or void bonds.' But the means need not be resolved upon 
 if the purpose to cheat is fixed,' and it may be accomplished by 
 conduct alone, with neither token nor words used. ' The mere 
 agreement is the offense, the conspiracy constituting the crime, 
 and it is equally one whether the purpose be to cheat an individual 
 or a corporation; a class or community or company; a bank of 
 circulation or deposit, whose loss will involve the pubHc or the 
 private creditors of the conspirators or any of them; so a conspir- 
 acy to obtain credit, or goods by pretense of solvency, or without 
 the purpose of paying for them. The actual success of the con- 
 spiracy is simply an aggravation of the crime." 
 
 estate V. Norton, 23 N. J. L. 33; StnU v. Young, 37 K J. L. 184; Noyes v. 
 State, 41 N. J. L. 418; State v. Burnham, 15 N. H. 396; People v. Trim, 
 39 Cal. 75; Com. v. Foering, Brightly, 315; State v. Buchanan, 5 Harr. 
 & J. 317. 
 
 ^State V. Cardoza, 11 S. C. 196. 
 
 ^State V. Burnham, 15 N. H. 396. 
 
 *State V. Rickey, 9 N. J. L. 364. 
 
 ^C'om. V. Hunt, 4 Met. Ill; Com. v. Judd, 3 Mass. 329. 
 
 6(7om. V. McGowan, 2 Pars. Eq. Cas. 341; Clary v. Com. 4 Pa. 210. 
 
 ■^ State V. Van Hart, 17 K J. L. 327; Twiichellv. Com. 9 Pa. 211; Clary v. 
 Com. 4 Pa. 210; Com. v. Gallagher, 2 Pa. L. J. 297. 
 
 »Bex V. Gill, 2 Barn. & Aid. 204. 
 
 9 People V. Clark, 10 Mich. 310. 
 
 ^'^Com. V. Davis, 9 Mass. 415; State v. Murphy, 6 Ala. 765; Com. v. Foering, 
 Briffhtly, 315; Eeg. v. Orbell, 6 Mod. 42; Beg. v. Esdaile, 1 Post. & F. 
 213; Eeymann v. Req. L. R. 8 Q. B. 102; Reg. v. Peck, 9 Ad. & El. 686; 
 State V. Norton, 23 N. J. L. 33; Com. v. Ward, IMass. 473; Com. v. East- 
 man 1 Cush. 189; State v. Buchanan, 5 Harr. & J. 317; Peoi^le v. Under- 
 wood, 16 Wend. 546; State v. Simons, 4 Strobh. L. 266; Whitman v. 
 Speiicer, 2 R. I. 124; Johnson v. Davis, 7 Tex. 173; Hall v. Eaton, 25 Vt. 
 458.
 
 326 CONSPIRACY AT COMMON LAW. 
 
 A fraudulent agreement by a member of a firm with third 
 persons, wrongfully to deprive his partner by false entries and 
 false documents of all interest in some of the partnership property 
 on taking account for a dissolution is a conspiracy at common law, ' 
 or to issue and circulate partnership paper to pay individual debts. 
 As this may affect the public as a false credit, the conspiracy may 
 be perhaps treated as a public injury; ' or issuing fictitious bill 
 in name of a non-existing firm. ' 
 
 The use of false pubhc tokens — false weights and measures — 
 evinces a fixed purpose to defraud the entire community. It is 
 not the yielding to sudden temptation that may perhaps be ex- 
 hibited in case of a private cheat, and not therefore indictable, 
 but it proves a deliberate purpose to use the means selected by 
 the law to secure accuracy and fair dealing, to deceive the public. 
 Of course such a cheat, clothing itself in the garb of legal honesty, 
 will deceive where a private cheat would fail, and naturally such 
 a use of public tokens is punished criminaliter, both to protect 
 the public and to punish abuse of the means the law has selected 
 to shield the public from fraud. All conspiracies to cheat by 
 such means, as well as to cheat by means which, if employed by 
 an individual would render him criminally liable, are therefore 
 indictable. * Fraudulently filling up stolen railroad tickets in 
 pursuance of a conspiracy to pass them is indictable ; ^ so falsely 
 representing the condition of a corporation, ^ or of public stocks. 
 It is the deliberate determined purpose to defraud and the unlaw- 
 ful and dangerous means employed in the use of public tokens, 
 without acting in concert, that demand interposition of the crim- 
 inal law, and for the same reasons, false, fraudulent, or malicious 
 conspiracies, to cheat or otherwise injure a third person, are indict- 
 able offenses, because ordinary care cannot as effectually protect 
 
 » Beg. V. Warburton, L. R. 1 C. C. 274. 
 » State V. Cole, 39 N. J. L. 324. 
 3 Rex V. Hevey, 2 East, P. C. 856. 
 
 * Williams V. Com. 34 Pa. 178; Clary v. Com. 4 Pa. 210; Collins v. Com. 8 
 
 Serg. & R. 220; State v. Norton, 23 N. J. L. 33; State v. Buchanan, 5 
 Harr. & J. 317; State v. Spaulding, 19 Conn. 234; States. De Witt, 2 
 Hill, L. 282; State v. Bradley, 48 Conn. 536; State v. Trammell, 24 S. C. 
 379. 
 « Bloomer v. State, 48 Md. 521. 
 
 * Beg. V. Broicn, 7 Cox, C. C. 442; Reg. v. Gurney, 11 Cox, C. C. 439; 
 
 Reg. V. Aspinall, L. R. 1 Q. B. Div. 730.
 
 COMBINATIONS TO CHEAT. 327 
 
 the individual from the machinations of a band of conspirators, as 
 against a single cheat. Fraud, falsehood and malice are, at war 
 with social order and commercial prosperity, and whenever they 
 assume a form against which ordinary care and prudence will not 
 serve as a protection, the law will treat that form as a criminal 
 weapon, and punish those using it. It will punish a false pre- 
 tense in a conspiracy which would not sustain a prosecution for 
 the statutory crime of obtaining under false pretenses, and where 
 the wrong inflicted is simply an equitable one, ' but still there 
 must be more than a false promise, or extravagance in valuation, 
 and the wrong inflicted or contemplated must be to the ownership 
 and not to temporary possession of the property only. 
 
 But a false representation of quality or soundness, or the fact 
 of purchase or sale is suflicient. ' 
 
 It was a long and difficult task to separate the idea of a criminal 
 conspiracy at common law, where the agreement or conspiracy 
 was the gravamen of the offense, from the real complaint in a 
 civil action, that the combination of two or more persons has 
 enabled them to inflict a great wrong on the plaintiff. The com- 
 bination or conspiracy in the latter case is therefore a matter of 
 aggravation or inducement only, of which one or all might be 
 found guilty; while in the former, it was essential to show that 
 two or more had joined in an agreement to do an unlawful act, 
 or to do a lawful act in an unlawful manner. The distinction is 
 now well established that in civil actions the conspiracy is not the 
 gravamen of the charge, but may be both pleaded and proved as 
 aggravating the wrong of which the plaintiff complains, and 
 enabling him to recover against all as joint tort-feasors. If he 
 fails in the proof of a conspiracy or concerted design, he may still 
 recover damages against such as are shown to be guilty of the tort 
 without such agreement.* 
 
 An act may not be innocent, and yet not be indictable, where 
 
 ' Reg. V. Warburton, L. R. 1 C. C. 274. 
 
 « Reg. V. EenricTc, 5 Q. B. N. S. 49; Reg. v. Carlisle, 23 L. J. M. C. 109; Com. 
 
 V. Philadelphia County Prison Supt. 6 Phila. 169; Reg. v. Lewis, 11 Cox, C. 
 
 C. 404: Reg. v. Aspinall, L. R. 1 Q. B. Div. 730; Reg. v. Orr.ian, 14 Cox, 
 
 C. C. 381. 
 « Po). Torts, 267; Oaring v. Fraser, 76 Me. 37; Hutchins^. Eutchins, 7 Hill, 
 
 104; Jones v. Baker, 7 Cow. 445; Parker v. Huntington, 2 Gray, 124; 
 
 Van Horn v. Van Ho7-n, 10 L. R, A. 184, 52 N. J. L. 284.
 
 328 CONSPIKACY AT COMMON LAW. 
 
 it is the isolated act of an individual and does not so injuriously 
 affect society as to requii*e the intervention of the law, but when 
 acts innocent in themselves, but to accomplish a cheat, are com- 
 mitted by numbers in furtherance of a common object, and with 
 the advantages and strength which concentrated determination 
 impart to them, they assume the grave importance of a conspiracy 
 and the peace and order of society require their repression. ' 
 
 All combinations in society to effect an evil purpose are danger- 
 ous, and when their object and purpose is to cheat by whatever 
 means, an individual, they are obnoxious to the law. * 
 
 In The Poulterers 6<25e(1611), it was determined that the agree- 
 ment for a combination, where the criminal intent is manifested 
 by the agreement, is indictable, and as the essence of conspiracy 
 is in the intent, the requirement in the case of statutory deceit, 
 that the proposed pretense should be reasonably calculated to 
 accomplish the object, would not necessarily apply to an agree- 
 ment for a combination. J^or would it, when the evil intent is 
 proved, be required that the means contemplated should be 
 reasonably sufficient to accomplish the general purpose, as is neces. 
 sary in case of an attempt to commit some other crimes. This 
 view finds support in the ancient cases for conspiracy to commit 
 treason, and clearly special circumstances, preventing the use of 
 the means in a special case, which might defeat a prosecution for 
 an attempt, would not defeat such prosecution for a conspiracy. 
 But it is supposed a court would find it difficult to satisfy itself of 
 the intent, where the means contemplated were plainly not in any 
 event adapted to accomplish the purpose. 
 
 It is sufficient to constitute a conspiracy if two or more persons 
 combine by fraud and false pretenses and subtle means to defraud, 
 cheat, or injure another.^ Conspiracies to defraud by obtaining 
 money or goods by false pretenses are indictable.* 
 
 > Rexy. Lara, 2 Leach, C. 0. 647; Beg. v. MacKarty, 2 Ld. Raym. 1179; 
 Rcxv.Whently, 2 Burr. 1137; Royw. Skirret, 1 Sid. 312; Beg. v. Orbell, 6 
 Mod, 42; Com. v. Boynton, 2 Allen, 160; State v. Bowley, 12 Conn. 101; 
 Com. V. Hunt, Thach. Crim. Cas. (Mass.) 609, 640. 
 
 « State V. BurnJiam, 15 N. H. 396; Tmtcliell v. Com. 9 Pa. 211. 
 
 ^Beg. V. Warburton, L. R. 1 C. C. 274; State v. Cole, 39 N. J. L. 324; Cole v. 
 People, 84 111. 216. 
 
 *Com. V. Wallace, 16 Gray, 221; Com. v. Shcdd, 7 Cush. 514; Com. v. East- 
 man, 1 Cush. 189; Alderman v. People, 4 Mich. 414; State v. Jones, 13 
 Iowa, 269; State v. Boberts, 34 Me. 322; State v. Hewett, 31 Me. 396; Be
 
 COMBINATIONS TO CHEAT. 329 
 
 So cheating by means of conspiracy in sham bidding at auction 
 is criminal;' or attempting by conspiracy to obtain funds in a false 
 name;" or to obtain real estate.' 
 
 There are in cases of an early date, followed by later ones, 
 either decisions or dicta, English and American, declaring that a 
 combination for the commission of acts unlawful in a moral sense, 
 or by means morally wrong, is indictable. * 
 
 This view has been supposed to be questioned by some modern 
 cases, and they are construed as holding that, to constitute a crim- 
 inal conspiracy, there must have been an unlawful or criminal 
 purj)ose, or the use of unlawful or criminal means — a combination 
 to promote an end in some degree criminal, or to effect an end by 
 means having some degree of criminality.* But it has been held 
 an offense at common law for a prisoner to escape from jail; and 
 for one to solicit another to commit adultery. Neither of these 
 acts are forbidden by statute, yet it was held in each case, after 
 the act, that it was an offense. There is no more real hardship in 
 
 Wolf, 27 Fed. Rep. 606; State v. Murphy, 6 Ala. 765; State v. Simons, 45 
 Strobh. L. 266; Com. v. Walker, 108 Mass. 309; Com. v. Boynton, 2 Allen, 
 160; Com. v. Eastman, 1 Cusb. 189; Clary v. Com. 4 Pa. 210; Johnson v. 
 People, 22 111. 314; State v. Norton, 23 N. J. L. 38; United States v. Cruik- 
 shank, 92 U. S. 542, 23 L. ed. 588; State v. Clary, 64 Me. 369; Twitchell 
 V. Com. 9 Pa. 211; Bloomer v. State, 48 Md. 521; Com. v. Philadelphia 
 County Prison Supt. 6 Phila. 169; State v. Shooter, 8 Rich. L. 72; Reg. v. 
 Stenson, 12 Cox, C. C. Ill; Reg. v. Kenrick, 5 Q. B. 49; Reg. v. Hudson, 
 8 Cox, C. C. 305; Beg. v. Broicn, 1 Cox, C. C. 442; Reg. v. Esdaile, 1 Post. 
 & F. 213; Reg. v. Gompertz, 9 Q. B. 824; 3 Russ. Cr. (4tb ed.) p. IW; State 
 V. Keach, 40 Vt. 113; Com. v. Barley, 7 Met. 462; Com. v. Warren, 6 Mass. 
 74; Com. v. Ward, 1 Mass. 4:73; State v. Crowley, 41 Wis. 271; Evans y. Peo- 
 ple, 90111. 3S5; Jolinson v. People, 22 111. SU; People v. Clark, 10 Mich. 310; 
 Miller v. State, 79 lud. 198; State v. Jackson, 7 S. C. 283 ; Hemcood v . Com. 
 52 Pa. 424; State v. Parker, 43 N. H. 83; Com. v. McEisson, 8 Serg. & 
 R. 420; Isaacs v. State, 48 Miss. 234; State v. Younger, 12 N. C. 357 ; 
 Brannock v. Bouldin, 26 N. C. 61; Com. v. Gillespie, 7 Serg. & R. 
 469; State v. Earwood, 75 N. C. 210. 
 
 ^Reg. V. Lewis, 11 Cox, C. C. 404. 
 
 ^Rex V. Robinson, 1 Leach, C. C. 37. 
 
 '^People V. Richards, 1 Mich. 216; State v. Shooter, 8 Rich. L. 72. 
 
 ^State V. Norton, 23 N. J. L. 33; State v. Parker, 43 N. H. 85; State v. Bu- 
 chanan, 5 Harr. & J. 317; Com. v. Jttdd, 2 Mass 829; State v. Luin- 
 ham, 15 N. H. 396; Rex v. Sidley, K. B. 15 Car. II (1664); Le Roy v. 
 Sidney, 1 Sid. 168, 1 Keble, 620; Jones v. Randall. Lofft, 384, 1774; 
 Mifflin V. Com. 5 "Watts & S. 461; Anderson v. Com. 5 Rand. 627; State v. 
 Murphy, 6 Ala. 765; Com. v. Ward, IMass. 473. 
 
 ^Com. V. Slkedd, 7 Cush. 514; Com. v. Eastman, 1 Cush. 189; Com. v. Wallace, 
 16 Gray, 221; State v. Keach, 40 Vt. 113; Com. v. Hunt, 4 Met. Ill; State 
 V. Hewett, 31 Me. 396; State v. Ripley, 31 Me. 386; State v. Roberts, 34 
 Me. 320; Alderman v. People, 4 Mich. 414.
 
 330 CONSPIRACY AT COM^fON LAW. 
 
 holding the crhne of cons23iracy as an offense, although it contem- 
 plated the violation of no express statute, Tlie danger that an 
 innocent man will be punished criminally for a conspiracy, because 
 the act he, with others, contemplated was not forbidden by stat- 
 ute, cannot be admitted as existing. It cannot be supposed that 
 a prosecution will be instituted and sustained by the court and 
 jury, unless the acts done or contemplated are clearly illegal and 
 morally wrong; so much so that as to leave little or no room for 
 a right minded man to doubt. Thus such a person could not 
 doubt the criminality of a combination corruptly or maliciously to 
 deprive another of his liberty or property.^ An expansion of the 
 law of conspiracy will only be indulged as a correction of disorder 
 which would else be without cure, or as a curb to the immoderate 
 power to do mischief which is gained by a combination of 
 means." "Zea? non exacts definit, sed arhitrio boni viri permittit." 
 
 A conspiracy to defraud individuals or a corporation of their 
 property, real or personal^ may in itself constitute an indictable 
 offense, though the act done or proposed to be done in pursuance 
 of the conspiracy be not in itself indictable.* 
 
 Conspirators to secure a debt under pretense of official author- 
 ity, if not entitled to the security, are liable to prosecution. " But 
 a combination to secure payment of a just debt by false pretense 
 is not indictable. ' 
 
 ^ State V. OUdden, 3 New Eng. Rep. 849, 55 Conn. 46. 
 
 ^Gom. V. Mifflin, 5 Watts & S. 461. 
 
 « Reg. V. MacKarty, 2 Ld. Raym. 1179; Reg. v. Orbell, 6 Mod. 42; Rex v. 
 Wheatly, 2 Burr. 1127 ; Rex v. Cope, 1 Strange, 144; Rex v. Mawbey, 6 
 T. R. 619; Rex v. Best, 6 Mod. 185; Rex v. De Berenger, 3 Maule & S. 
 67; Rex v. Roberts, 1 Campb. 399; Reg. v. Best, 2 Ld. Raym. 1167; Syd 
 serf V. Reg. 11 Q. B. 245; Reg. v. Gompertz, 9 Q. B. 824; Reg. v. EenricJc, 5 
 Q. B. 49; Reg. v. Button, 11 Q. B. N. S. 929; Com. v. Judd, 2 Mass. 329; 
 State V. Buchanan, 5 Harr. &, J. 317; 3 Chitt. Cr. Law, 1138; Arch. Cr. 
 Law, 390; 2 Russ. Cr. 553; Dougherty, Cr. Cons. 118, 129, 134, 140; 
 Stubbs, Cr. Cons. 237, 243, 245, 249, 252;5tofe v. Norton, 23 N. J. L. 33. 
 TG^GCimg Ihe. dicta m State V . Rickey , .^ N. J. L. S64:; Laynbertv. People, 
 7 Cow. 166, 9 Cow. 578; Levi v. Levi, 6 Car. & P. 239; Tompkins v. State, 
 17 Ga. 356; Morris Run Coal Co. v. Barclay Coal Go. 68 Pa. 173; Twitch- 
 ell V. Com. 9 Pa. 211; Patten v. Gurney, 17 Mass. 182; State v. Younger, 
 12 N. C. 357; State v. Shooter. 8 Rich. L. 72; State v. Simons, 4 Strobh. 
 L. 266; Reg. v. Wilson, 8 Cir. & P. Ill; Bean v. Bean, 12 Mass. 20; 
 State V. Jackson, 7 S. C. 2»3; State v. Trammell, 24 N. C. 379; Com. v. 
 Ward, 1 Mass, 473. 
 
 * Bloomfield v. Blake, 6 Car. & P. 75. 
 
 » People V. Bradford, 1 Wheel. Crim. Cas. 219.
 
 COMBINATIONS TO CHEAT. 331 
 
 So a conspiracy to defraud a third person by means of an act 
 not2?e7' se unlawful, and though no person be thereby injured.' 
 
 There is no difference between a conspiracy to commit an act 
 which is unlawful at common law and one to commit an act 
 declared to be unlawful by statute; and hence a conspiracy to 
 defraud, being indictable at common law, is properly governed by 
 How. (Mich.) Stat. § 9434, providhig a punishment for offenses 
 indictable at common law and not expressly provided for by 
 statute. ' 
 
 An indictment will lie for a bare conspiracy to cheat or defraud 
 a third person though the means of effecting it should not be deter- 
 mined at the time. ' 
 
 The United States has declared it a criminal offense to use the 
 mails for the purpose of defrauding. The offense consists: 1st. 
 In devising or intending to devise a scheme or artifice to defraud. 
 2d. In opening or intending to open correspondence or commu- 
 nication with some other person, or inciting such person to open 
 correspondence by means of the post-office with the person devis- 
 ing the scheme. 3d. In pursuance of the scheme putting a letter 
 or packet in the mail or taking one from the mail. * 
 
 The attempt by an insolvent person to secure credit, or the 
 ordering of goods without present means to pay for them, or the 
 concocting a scheme after ordering goods to avoid paying for 
 them, does not come within the statute. " 
 
 1 Rex V. BoMnson (1744) 1 Leach, C. C. 37; Rex v. De Berenger, 3 Maule & S. 
 
 68; Rex v. Edwards (1725) 1 Strange, 707, 1 Sess. Cas. 836, 8 Mod. 320, 
 
 IwitcheUv. Com. 9 Pa. 211. 
 » People V. Watson, 75 Mich. 583. 
 3 Rex V. QUI (1818) 2 Barn. & Aid. 204. 
 
 * U. S. Rev. Stat. § 5480; United States v. Woofien, 29 Fed. Rep. 703. 
 6 U7Uted States v. Wootten, 29 Fed. Rep. 703.
 
 CHAPTER Xiy. 
 
 CONSPIRACY AT COMMON LAW— CONTINUED. 
 
 § 71. Conspiracy to Extort Anything of Value from an Individual. 
 
 72. Conspiracy to Slander. 
 
 73. Conspiracies Relating to Trade and Labor. 
 
 74. Development of the Doctrine of Conspiracy iti Trade Combina- 
 
 tions. 
 
 75. Statutes in England and the U7iited States Regarding Combi- 
 
 nations among Workmen. 
 
 § 71. Conspiracy to Extort Aiiytliing of Yalue from an 
 Individual. — Conspiracies to extort anything of value from an 
 individual or corporation or company or class, by threats or in- 
 timidation, are in themselves criminal.* Thus a conspiracy to- 
 obtain security for a debt, if the party for vt^hose benefit the 
 security is sought is not entitled to it, under pretense of judicial 
 authority for making the demand, is indictable.* So a consjDiracy 
 to induce one to bring a charge of theft against another falsely^ 
 to force a payment of money to avoid prosecution or through 
 fear of disgrace is punishable.^ So a false charge of obtaining 
 goods by fraud, sustained by an oath of one of the conspirators 
 for the purpose of extortion, is indictable.^ And if the purpose 
 be extortion, the truth of the charge will not relieve from the crimi- 
 nality,^ and whether it be of a criminal act or not is immaterial.* 
 
 § 72. Conspiracy to Slander. — Conspiracies are odious in law, 
 and are always taken 7nala jpay'te, and properly so. In Hex 
 V. Rispal, 3 Burr. 1320, 1 W. Bl. 368, Lord Mansfield declared 
 of verbal slanders that " they tended to a breach of the peace as 
 
 ^State V. Shooter, 8 Rich. L. 73; State v. Stewart, 59 Vt. 273; Bex v. Holling- 
 berry, 4 Barn. & C. 329, 1 Hawk, P. C. 73, § 7; Bloomjield v. Blake, 6 
 Car. & P. 75. 
 
 ^Bloomjield v. Blake, 6 Car. & P. 75. 
 
 ^State V. Gawood, 2 Stew. (Ala.) 360. 
 
 *Ralei(/h v. Cook, 60 Tex. 438. 
 
 ^Bex V. Hollingherry, 4 Barn. & C. 329. 
 
 ^Rex V. Rispal, 3 Burr. 1320. 
 
 332
 
 CONSPIRACY TO SLANDER. 333 
 
 Tniich as cheats and libels." That is the only reason assigned in 
 the books why libels are punishable by indictment ; and whether 
 they have in fact a more direct tendency to a breach of the peace 
 than verbal slanders, which are not j;f /• se so punishable, it is now 
 too late to inquire as it is thus settled. Undoubtedly a written 
 libel displays more settled malignity of spirit, and intends and 
 inflicts more lasting and irritating wounds than a verbal slander, 
 which perhaps in utterance exhaled all the heat which engendered 
 it. The written libel therefore is the most dangerous to the pub- 
 lic peace and good order. 
 
 But the law recognizes that a conspiracy to utter a verbal 
 filander involves the same deliberation and malice as a written 
 libel, and the union of numbers in such a purpose is as dangerous 
 as in other combinations for evil.' An indictment may therefore 
 be sustained for a conspiracy to slander a person to extort money 
 from another or to injure his reputation by means not indict- 
 able if practiced by an individual, as by verbal defamation, and 
 that whether it charge him with an indictable offense or not, or 
 whether intended to institute a prosecution.^ 
 
 In a recent case decided by the Supreme Court of Pennsylvania 
 at Pittsburg, on appeal, the Cigarmakers' International Union 
 Kg. 126 of Ephrata, Lancaster County, by bill in equity had 
 restrained cigar manufacturer John H. Brendle, from using the 
 'Cigarmakers' International Union label on his goods. The county 
 court sustained the master's report in behalf of this injunction. 
 Brendle is a union manufacturer who had incurred the ill will of 
 local oflicials and refused to use their labels. He issued similar 
 labels or trade marks of his own, and appealed to the Supreme 
 Court from the injunction. 
 
 ^Rcg. V. Rmclands, 2 Den. C. C. 364. 
 
 ^limherUy v. Child (1663) 1 Sid. 68; Bex v. Eimberty, 1 Lev. 62, 1 Keb. 254; 
 Childe V. North, 1 Keb. 203; Rex v. Armstrong, (1678) 1 Vent. 304; Reg. 
 V. Mackarty (1705), 2 Ld. Raym. 1179; Reg. v. Best (1705) 2 Ld. Raym. 
 1167, 1 Valk, 174, 6 Mod. 185; Rex v. Kinnersley (1719), 1 Strange, 193; 
 Rex V. Bryan (1730), 2 Strange, 866; Rex v. Parsons (1763), 1 W. Bl. 392; 
 Bex V. Rispal (1762), 3 Burr. 1320, 1 W. Bl. 368; Bex v. HoUingberry 
 (1825), 4 Barn. & C. 329; Beg. v. Eenrick. 5 Q. B. 49; Johnson v. State, 
 26 N. J. L. 313: Beg. v. Gompertz, 9 Q. B. 825; Beg. v. Button, 12 Jur. 
 1017; State v. Burlingame, 15 Me. 104; State v. Stevens, 30 Iowa, 391; 
 State V. Cawood, 2 Stew. (Ala.) 360; Com. v. Tibbetts, 2 Mass. 536; Leggett 
 V. Postley, 2 Paige, 599. 2 L. ed. 1046; Com. v. Warren, 6 Mass. 74; Lam- 
 bert V. People, 7 Cow. 166; Com. v. Ward, 1 Mass. 473; State v. Buchanan, 
 5 Harr. & J. 317; State v. Bowley, 12 Conn. 101; State v. Eickley, 41 N. 
 J. L. 208.
 
 334 CONSPIEACi' AT COMMON LAW — CONTINUED. 
 
 The court in refusing to continue the injunction, reverses the 
 lower court's decision on the ground that the cigarmakers' union, 
 formed for the " mental, moral, and physical welfare of its mem- 
 bers," is a personal and social organization, not a commercial one, 
 and under the law of Congress, therefore, cannot own a trade- 
 mark. An especially interesting feature of the decision is its dis- 
 cussion of the social claim, set forth in terms upon the union 
 cigar label, to the exclusive right not only to the use thereof, but 
 stigmatizing all workmen not permitted to use the trade-mark as 
 inferior men. The label describes the cigars it accompanies as 
 being made by first-class workmen, and adds that all cigars not 
 having the label are of " inferior, rat shop, cooley, prison, or filthy 
 tenement house workmanship," and has a note therefore " recom- 
 mending these union cigars to all smokers throughout the world." 
 
 The opinion says : " This is an attempt to use the public as a 
 means of coercion in order to find a market for their goods or 
 labor. A first-class workman is one who does first-class work, 
 whether his name is on the rolls of any given society or not. 
 Filthiness and criminality of character depend on conduct, not on 
 membership of the union. Legitimate competition rests on 
 superiority of workmanship and business methods, not on the use 
 of vulgar epithets and personal denunciations. 
 
 " The International Union in this case has an avowed purpose 
 to do harm to non-union men, to prevent the sale of their work, 
 to cover them with opprobrium, and they ask a court of equity to 
 say they have a right to do so. We decline to say so." 
 
 § 73. Conspiracies Relating to Trade and Labor. — The 
 recognized rule' that contracts in restraint of trade, and depriving ■ 
 the pubhc of the avails of labor, are illegal, carries with it the 
 result, that all combinations and conspiracies to accomplish the 
 same results are criminal, as they are aimed at an illegal object. ^ 
 
 ^Mitchel. V. Reynolds, 1 P. Wras. 181; Lumbard's Case (1369) 43 As. 276; 
 Midwinter v. Scroggs (1636), 1 Keb. 636; Bex v. Eccles (1783), 1 Leach. C. 
 C. 274; Bex v. Waddington (1800), 1 East, 143; Bex v. De Berenger (1814) 
 3 Maule & S. 67; Grose, J., in Rex v. Mawbery (1796), 6 T. R. 619; Bex 
 V. Hammond (1799) 2 Esp. 719. 
 
 « Compton, J., in Hilton v. Eckersley, 6 El. & Bl. 47, 25 L. J. Q. B. 199, 
 and Compton and Hill, JJ., in Walsby v. Anley (1861), 3 El. & El. 516, 
 30 L. J. M. C. 121, and authorities cited under " Conspiracy Defined," 
 supra, section 65.
 
 DEVELOPMENT OF THE DOCTRINE OF CONSPIRACY. 335 
 
 A conspiracy is indictable to deter a man from retaining and 
 employing an attorney to prosecute or defend his cause, under 
 penalty of being published as a "scab," and having his name held 
 up to public ridicule and contempt, because the attorney did not 
 belong to a particular bar association; or to deter employers in 
 their selection and employment of particular workmen by vio- 
 lence, threats, coercion or intimidation; or for journeymen to com- 
 bine to prevent the employment of apprentices through intimi- 
 dating their employers is indictable.* 
 
 § 74. Development of the Doctrine of Conspiracy in Trade 
 Combinations. — In England the matter is now regulated largely 
 by statute. In this country, in 1806, there was a trial of certain 
 boot and shoe makers of Philadelphia, before the mayor of that 
 city, for conspiring to increase the rates of wages, and to prevent 
 others from working at less wages, but no general principle was 
 distinctly asserted, unless it was, that what each individual might 
 lawfully do became criminal when each became "bound down by 
 their agreements, and pledged by mutual engagements, to persist 
 in it, however contrary to their own judgment." And it was 
 said "the continuance in improper conduct may therefore well 
 be attributed to the combination." In 1809, in the Journeymen 
 Cordwainers of New York, the mayor expressly omitted to decide 
 whether an agreement not to work except for certain wages would 
 be indictable j?^/' seJ* 
 
 In a habeas corpus case, Com. v. Carlisle, Brightly (Pa.) 36, in 
 1821, before Judge Gibson of the Supreme Court, he held that 
 while the mere act of combining to change the price of labor is, per- 
 haps, evidence of impropriety of intention, it is not conclusive, for 
 if the accused can show that the object was not to undervalue labor 
 but to foil their antagonists in an attempt to assign to it, by sur- 
 reptitious means, a value which it would not otherwise have, they 
 will make out a good defense. Accordingly a combination of 
 employers to depress the wages of journeymen below what they 
 should be, if there was no recurrence to artificial means by either 
 
 ^State V. Steimrt, 59 Vt. 273; People v. FisJier, 14 Wend. 9; Rex v. Fergxison, 
 2 Starke, Am, Reg. v. Heicitt, 5 Cox, C. C. 162; Walsbyy. Anley, 3 L. T. N. 
 S. 666. 
 
 «1 Select Cases New York, p. Ill; People v. Melvin, 2 Wheeler, Grim. Cas. 
 263.
 
 336 CONSPIKACY AT COMMON LAW CON'TIJSILED. 
 
 side, is criminal. The motive may be as important to induce as 
 to avoid an inference of criminality. After the Court for the 
 Correction of Errors, of New York, had reversed, by the casting 
 vote of the President, the judgment of the Supreme Court in 
 Lambert v. People, 7 Cow. 166, 9 Cow. 578, declaring by such 
 reversal that in a conspiracy to commit a criminal act, the means 
 need not be stated, but if the act is not illegal in itself, the means 
 must appear to be so, and leaving doubtful the law as to what 
 constituted a conspiracy to inflict mere private injury, not affect- 
 ing the public, the Legislature having defined criminal conspir- 
 acy, and among other things declared it covered a combination to 
 commit an act injurious to trade or commerce, it was held in Peo- 
 ple V. Fisher, 14 Wend. 9, that a body of journeymen shoemak- 
 ers violated the statute by combining for the purpose of prevent- 
 ing any other workmen, whether belonging to their organization 
 or not, from working below prices fixed by them. Here the con- 
 spiracy reached others outside the society and indeed it prevented 
 the master, under penalty of being deserted by the associated 
 workmen, from employing anyone at less wages, and it excluded 
 other workmen from accepting work at less prices, 
 
 A combination producing such a result was thus characterized 
 in Com. v. Carlisle, Brightly (Pa.) 36. Whenever the act, agreed 
 among several to be done, must necessarily injure the pubhc or 
 oppress individuals, by enabling those confederating to exercise an 
 unlawful power, such action taking effect either in extortion or 
 mischief upon such individuals or the public, constitutes a con- 
 sj)iracy.' 
 
 It is the duty of the state to protect the individual citizen 
 against the combined power of numbers to injure him in his legit- 
 imate business pursuits^ 
 
 In Com. V. Hunt, 4 Met. Ill, Chief Justice Shaw did not re- 
 gard the union of workmen, under an agreement not to accept 
 employment from one who would take into his service others than 
 
 ^Rex V. Kenrick, 5 Q. B. 49; State v. Stewart, 4 New Eng. Rep. 378, 59 Vt. 
 273; Com. v. Carlide, Brightly (Pa.) 36; Morris Run Goal Go. v. Barclay* 
 Goal Go. 68 Pa. 173; State v. Donaldson, 32 N. J. L. 151; State v. Gole, 39 
 N. ,J. L. 324; State v. Hinckling, 41 N. J. L. 208; Reg. v. Warburton, L. 
 R. 1 C. C. 274; Johnson v. State, 26 N. J. L. 313; Johnson v. State, 29 
 N. J. L. 453; State v. Burnham, 15 N. H. 396; State v. Parker, 43 N. H. 83. 
 
 "^State V. Rowley, 12 Conn. 112; Reg. v. Duffield, 5 Cox, C. C. 432.
 
 DEVELOPMENT OF THE DOCTRINE OF CONSPIRAOV. 66 1 
 
 members of the association, or retain them after notice of the 
 a^^reement, as in itself illegal, unless improper purposes were con- 
 templated by the union. Such an agreement he held might be 
 legal or illegal as its purpose was either to secure an advancement 
 in the social or business life of its members, or to secure power 
 for purposes of injustice or oppression. It was stated that if a 
 large number of men, engaged for a iixed time, should combine 
 together to violate their contracts, and quit their employment to- 
 o;ether, it would be a conspiracy to do an unlawful act, which if 
 done by one person, would give a civil action. It was considered 
 that an association may be entered into, the object of which is to 
 adopt measures that may have a tendency to impoverish another; 
 that is, to diminish his gains and profits, and yet so far from being 
 criminal or unlawful, the object may be highly meritorious and 
 public spirited. The legality of such an association was therefore 
 held to depend upon the means to be used for its accomplish- 
 ment. If it is carried into effect by fair and honorable or lawful 
 means, it is to say the least, innocent; if by falsehood or force it 
 may be stamped with the character of conspiracy. The question 
 of criminahty will be determined by the means, and they must be 
 stated in the indictment. In Hartford Carpet Weavers Case 
 {Super. Ct. Conn. 1836), and in Master Stevedores Asso. v. Walsh, 2 
 Daly, 5, 1867, the right to regulate the price at which members 
 of the union should work was recognized, and the same right was 
 recognized on the part of employers to fix the M'ages they would 
 pay. In the latter case the penalty was enforced against a mem- 
 ber of the association. 
 
 In State v. Donaldson, 32 N. J. L. 151, 1867, notice was given 
 to the employer by the confederated workman that they would 
 quit his service unless two designated workmen were discharged. 
 And the threat was carried into effect. Tliis was held an unlaw- 
 ful combination, as attempting to dictate to the employer whom he 
 should employ and whom discharge. It was declared to be an 
 attempt to control the business of the employer. The case of 
 Com. v. Hunt, 4 Met. Ill, is m the course of the opinion in State v. 
 Donaldson approved, as in that case no purpose was shown to exer- 
 cise such control over the employer, but simply to control its own 
 members. The ruling in Com. v. Curren, 3 Pittsb. 143, in 1869,
 
 338 CONSPIKACY AT COMMON LAW — CONTINUED. 
 
 also denied the right of combined employes to dictate who shall 
 be employed or discharged. 
 
 § 75. Statutes in England and the United States Regard- 
 ing ComMnations among Workmen. — In England, the Act of 
 1875, Concerning Conspiracy and for the Protection of Private 
 Property, declares that " an agreement or combination of two or 
 more persons to do or procure to be done any act in contempla- 
 tion or furtherance of a trade dispute between employers and 
 workmen, shall not be indictable as a conspiracy, if such act com- 
 mitted by one person would not be punishable as a crime." § 3. 
 
 The law is now well settled that workmen have a right to com- 
 bine for their own protection, and to obtain such wages as they 
 may themselves, after consideration, agree to insist upon receiving 
 for their work;' and while they are perfectly free from engage- 
 ment, and at liberty to exercise the option of entering into 
 employ or not, they have a right to agree among themselves not 
 to accept any employ unless they can secure a certain rate of 
 wages.'' 
 
 Associations of workingmen for mntual protection and improve- 
 ment under the names of " Friendly Societies " are made quasi 
 corporate bodies, and their regulations and rules are often the test 
 of the legality of their organization and existence. 
 
 In Farrer v. Close, L. K. 4 Q. B. 612, Cockburn, Oh. J"., and 
 Mellor, e/i, held that the evidence in this case showed that the 
 rules in practice are applied so as to render the funds of the soci- 
 ety in question available for the purpose of supporting strikes, by 
 allowing sums of money to workmen in order to prevent them 
 from seeking work in distiicts where men are on a strike, and 
 also by giving assistance to other branch associations in whose 
 districts strikes are going on ; that these purposes are not of a 
 friendly society, but of a trade's union, and as such, are illegal as 
 being in restraint of trade, according to Hornby v. Close, L. K. 2 
 Q. B. 153, and that the justices trying the case were right in so 
 ruling. 
 
 ^Beg. V. Rowlands, 5 Cox, C. C. 436, 460. 
 
 "^Reg. V. Buffield, 5 Cox, C. C. 404, 431; Reg. v. EMert, 13 Cox, C. C. 82; 
 
 Com. V. Hunt, 4: Met. Ill, 130; i<tate v. Donaldson, 33 N. J. L. 151; 
 
 Carew v. Rutherford, 106 Mass. 1; Master Stevedores Asso. v. Walsh, 2 
 
 Daly, 1.
 
 STATUTES IN ENGLAND AND THE UNITED STATES. 339 
 
 Cockburn, «/!, said : " Tlie only question in the case was 
 whether a certain society called the Amalgamated Society of Car- 
 penters and Joiners, is essentially a 'friendly society' so called, so 
 as to be within the protection of 18 and 19 Vict. chap. 63, §§ 24 
 and 44. and that the qnestion tnrns on the construction to be 
 placed on certain rules of the society, especially § 7 of Rule 18, 
 that ' any free or non-free member or members leaving his or 
 their employment, under circumstances satisfactory to the branch, 
 or executive council, shall be entitled to the sum of los. per week.' 
 The society must be treated, not according to what it professes 
 to be, but according to what it practically is ; otherwise the soci- 
 ety might be framing its rules ambiguously, so as to be capable of 
 being applied to carry out the purposes of a friendly society, or 
 those of a trade's union, and while carrying on its operations as a 
 trade's union evade the law and obtain advantages secured by 
 statute to a friendly society, which would be refused to it if its 
 true character were known." 
 
 Hannen, «/., said : " Strikes are not necessarily illegal. A 
 strike is properly defined as ' a shnultaneous cessation of work on 
 the part of the workmen,' and its legality or illegality must 
 depend upon the means by which it is enforced and on its objects. 
 Xo doubt the trade of the employer is restrained when workmen 
 decline to take the wages which he is willing to give ; but it must 
 be remembered that the men are contractors as well as the em- 
 ployers, and it would be an odd way of promoting the freedom of 
 trade to hold it an illegal purpose on their part to endeavor, out 
 of their own savings, to put themselves in a better position to get 
 what they think is a fair price for their labor. The question, 
 whether a society has been established for illegal purposes or not 
 ought, with rare exceptions, to be decided by the rules themselves 
 which declare the objects of the society and speak the voices of 
 all its members. To explain and interpret these rules by vague 
 general evidence of what may be sometimes done, is objectionable 
 on principle as explaining written documents by loose parol evi- 
 dence as to the construction put upon them by different officers, 
 and as such construction might vary from time to time, the result 
 would be to throw the proper meaning and effect of the rules into 
 the utmost uncertainty and confusion.
 
 oiO CONSPIRACV AT COMMON LAW — CONTINUED. 
 
 If rules are leii;al in themselves, it is the duty of the officers to 
 carry them out legally. The objects of the rule may be abused, 
 in practice, but if in such case the abuse is the fault of individu- 
 als, it ought not to be viewed as affecting the rules themselves or 
 the general purposes of the society to which they belong. If the 
 printed rules are not the real rules of an association, and if a 
 society under pretense of being a benevolent institution, is 
 really a scheme in whole or in part designed for the support and 
 •encouragements of illegal strikes, the society must be deemed to 
 be established for an illegal purpose.'" 
 
 Two important decisions in trades-union cases have recently 
 been made in England' by Chief Justice Coleridge and the asso- 
 ciate justices of the court of Queen's Bench that serve to define 
 what, in law, constitutes "intimidation" in connection with 
 *' strikes." While there is no law against strikes as such, intimi- 
 dation is held to be illegal and is indeed declared to be so by stat- 
 ute. Every workman has the right to " strike," and so far as the 
 law is concerned he is the sole judge of the reasonableness of his 
 action in the premises. But he has no right to intimidate ; and 
 the same law which will uphold him in his liberty to act in com- 
 bination with others for the advancement of the interests of his 
 trade will punish anything on his part that can be properly con- 
 strued to be intimidation. What, then, is intimidation within the 
 meaning of the law ? 
 
 A coal merchant of Plymouth, with a large trade, especially in 
 supplying steamers touching at that port, employed four gangs of 
 hands to unload the colliers. Three of those gangs were com- 
 posed of union men, and those who made up the fourth belonged 
 to no union. The secretaries of the three imions came to the coal 
 merchant and ordered him to dismiss his non-union men, under a 
 threat that, in case of a failure to comply, they would withdraw 
 the union workmen, and so leave him short-handed, in a way to 
 cripple his business at a busy time. The coal merchant refused ; 
 a strike was ordered, and the union men went out. 
 
 The secretaries of the unions were immediately prosecuted 
 under the statute forbidding intimidation, and the court found 
 
 ^Farrer v. Close, L. R. 4 Q. B. 612. 
 
 '^Connor v. Rent (1S91) Week, Notes (English) 154.
 
 STATUTES IN ENGLAND AND THE UNITED STATES. 341 
 
 tliem guilty oil tLe ground that tlie threat wliich accompanied 
 their demand amounted to intimidation. On appeal this decision 
 was reversed, Lord Coleridge holding that a threat to notify the 
 men to leave their work, unaccompanied by violence or any 
 menace of violence, cannot be called intimidation within the 
 English Conspiracy Act of 1875, 38 k, 39 Yict. chap. 86, § 7, 
 sub. 1, which makes it an offense for one to " use violence to or 
 intimidate," etc., to compel another to do or abstain from doing 
 an act which he has a legal right to abstain from or to do. Of 
 course, the final decision would have been otherwise had there 
 been any recourse to or threat of violence. It seems, therefore, 
 that a threat, in order to sustain a legal charge of intimidation, 
 under the English Conspiracy Act, must at least imply some act 
 that would justify a magistrate in binding the offender over to 
 keep the peace. 
 
 Another decision of the court below to the effect that a "strike 
 which could have the effect of injuring an employer is illegal and 
 indictable " was unhesitatingly reversed. 
 
 In the different states legislation has been had upon the subject 
 of trade conspiracies and the rights of the employer and employe 
 
 In Alabama, the Code of 1886, Vol. 2, part 5, title 2, § 3763^ 
 declares that any person Mdio, by force or threats of violence to 
 person or pi-operty, prevents or seeks to prevent another from 
 doing work or furnishing materials, or from contracting to do 
 work or furnish materials for or to any person engaged in any 
 lawful business, or who disturbs, interferes with or prevents the 
 peaceable exercise of any lawful industry, business or calling by 
 any other person, must, on conviction, be fined not less than ten^ 
 nor more than five hundred dollars, and may also be imprisoned 
 in the county jail or sentenced to hard labor for the county for 
 not more than twelve months. Under this Act any two or more 
 persons conspiring together to violate the Statute, and doing some 
 act to carry their agreement into effect, are each guilty of the 
 offense of conspiracy.* 
 
 The Colorado Acts 1887, page 58, §§ 1 and 2, forbid the 
 "blacklisting" of employes, to prevent their securing other em- 
 ployment. 
 
 ^Siate V. Murphy, 6 Ala. 765, 41 Am. Dec. 79; Cleaveland v. State, 34 Ala. 
 254; Scully v. State, 39 Ala. 240.
 
 34:2 CONSPIRACY AT COMMON LAW — CONTINUED. 
 
 The Acts of 1889, page 92, § 1, declare that "it shall not be un- 
 lawful for any two or more persons to unite or combine or agree 
 in any manner, to advise or encourage, by peaceable means, any 
 person or persons to enter into anj^ combination in relation to en- 
 tering into or remaining in the employment of any person, persons 
 ■or corporation, or in relation to the amount of wages or compen- 
 sation to be paid for labor, or for the purpose of regulating the 
 hours of labor, or for the procuring of fair just treatment from 
 employers or for the purpose of aiding and protecting their wel- 
 fare and interests in any other manner not in violation of the 
 Constitution of this State or the laws made in pursuance thereof; 
 provided, that this Act shall not be so construed as to permit two 
 or more persons, by threats of either bodily or tinancial injury, 
 or by any display of force, to prevent or intimidate any other 
 person from continuing in such employment as he may see tit, or 
 to boycott or intimidate any employer of labor." 
 
 The Connecticut General Statutes, 1888, § 1517, enacts that 
 every person who shall unlawfully, maliciously and in viola- 
 tion of his duty or contract, unnecessarily stop, delay, or abandon 
 any locomotive, car or train of cars, or shall maliciously injure, 
 hinder, or obstruct the use of any locomotive, car or railroad, shall 
 be fined not more than one hundred dollars or imprisoned not 
 more than six months. 
 
 Chapter 99, § 1518, "Intimidation, Boycotting, etc." Every 
 person who shall threaten or use any means to intimidate 
 any person to compel such person against his will to door abstain 
 from doing any act which such person has a legal right to do, or 
 shall persistently follow such person in a disorderly manner, or 
 injure, or threaten to injure his property, with intent to intimi- 
 date him, shall be fined not more than one hundred dollars or im- 
 prisoned not more than six months. When to the intention is 
 added the actual agreement to conspire, the offense is complete,' 
 
 The Delaware Acts, 1877, chapter 181, are in substance: 
 
 § 1. If any locomotive engineer engaged in a strike or to incite 
 others to strike, or in furtherance of any combination or precon- 
 certed arrangement with any person or persons to produce a strike, 
 
 ^State V. Glidden, 3 New Eag. Rep. 849, 55 Coan. 4(}. See ITnitei States 
 V. Donau. 11 Blatcbf. 168.
 
 STATUTES IN ENGLAND AND THE UNITED STATES. 343 
 
 abandons his locomotive at any other place than its schedule or 
 appointed destination, or refuse to proceed to such destination; 
 
 § 2. If any locomotive eno-iueer, to aid any strike on any other 
 road, refuse or neglect to aid in the movement over the tracks 
 of the company employing him, of the cars of such other railroad 
 company, or received therefrom in course of transit where strikes 
 ^re, either then, or may have been organized or attempted to be 
 maintained; 
 
 § 3, If any person in aid of any strike upon any railroad, shall 
 interfere with, molest or obstruct any railroad employe engaged 
 in the discharge of his duty; 
 
 § 4. If any person in aid of a strike shall obstruct any railroad 
 track or destroy the rolling stock or other property of any rail- 
 road company, or take possession of or remove or prevent the use 
 thereof, or shall by offer of recompense induce an employe to leave 
 the service of the railroad; 
 
 § 5. If any conductor, baggage master, brakeman or other train- 
 man, abandons his train in aid of or to incite a strike, or refuses 
 to proceed to its destination, — in either case the person shall be 
 guilty of a misdemeanor and fined not less than $100, nor more 
 than $500, and imprisonment from six months to one year. 
 
 In Florida, McClellan's Digest, 1881, chap. 69, § 24, it is pro- 
 vided that if any person shall entice, induce or otherwise persuade 
 any laborer or employe to quit the service of another to which he 
 was bound by contract, before the expiration of the term of serv- 
 ice stipulated in said contract, he shall be guilty of a misdemeanor, 
 and upon conviction shall be fined in any sum not exceeding one 
 thousand dollars. 
 
 The Georgia Code, 1882, Part lY., § 4498, is that: If any two 
 ■or more persons shall associate themselves together in any society 
 organization whatever, with intent and for the purpose of prevent- 
 ing, in any manner whatever, any person or persons whomsoever 
 from apprenticing himself or themselves to learn and practice any 
 trade, craft, or vocation or calling whatsoever, or for the purpose 
 of inducing by persuasion, threats, fraud, or any other means, any 
 apprentice or apprentices to any such trade, craft, or calling or 
 vocation, to leave the employment of their employer or employ- 
 ers, or for the purpose by any means whatever, of preventing or
 
 344 CONSPIRACY AT COMMON LAW — CONTINUED. 
 
 deterring any person or persons whomsoever from learning and 
 practicing any such trade, craft, vocajtion or calHng whatsoever. — 
 every such person so associating himself in such society or organi- 
 zation, shall be deemed guilty of a misdemeanor, and upon convic- 
 tion thereof shall be punished by iine nut to exceed one thousand 
 dollars, imprisonment not to exceed six months, to work in the 
 chain-gang on the public works or on such other works as the 
 county authorities may employ the chain-gang, not exceeding 
 twelve months. 
 
 Acts 1887, Act No. 347, page 107, § 1. . . . If any person 
 or persons by threats, violence, intimidation or other unlawful 
 means, shall prevent or attempt to prevent any person or persons 
 in this State from remaining in or performing the business, labor 
 or duties of any lawful employment or occupation; or if any per- 
 son or persons, singly or together, or in combination, shall con- 
 spire to prevent or attempt to prevent any person or persons l)y 
 threats, violence or intimidation from engaging in, remaining in, 
 or performing the business, labor or duties of any lawful employ- 
 ment or occupation; or if any person or persons, singly or by con- 
 spiring together shall hinder any person or persons who desire to 
 labor from so doing, or hinder any person by threats, violence or 
 intimidation from being employed as laborer or employe, or by 
 the means aforesaid shall hinder the owner, manager or proprietor 
 for the time being from controlling, using, operating, or working 
 any property in any lawful occupation, or shall by such means 
 hinder such persons from hiring or employing laborers or em- 
 ployes, such person or j)ersons so offending shall be deemed guilty 
 of a misdemeanor and on conviction be punished as stated in sec- 
 tion 4498. 
 
 The Illinois Annotated Statutes 1SS5, chapter 38, paragraph 
 73, as amended by Act June 16, 1887, p. 167, declare that if any 
 two or more persons conspire or agree together, or the officers or 
 executive committee of any society or organization or corporation 
 shall issue or utter any circular or edict as the action of or instruc- 
 tion to its members, or any other persons, societies, or organiza- 
 tions or corporations for the purpose of establishing a so-called 
 boycott or blacklist, or shall post or distribute any written or 
 printed notice in any place, with the fraudulent or malicious
 
 STATUTES IN ENGLAND AND THE UNITED STATES. 345 
 
 intent wrongfully and wickedly to injure the person, character, 
 business, or employment or property of another ... or to 
 do any illegal act injurious to the public trade, health, morals, 
 police, or athninistration of public justice, or to prevent competi- 
 tion in the letting of any contract by the State, or the authorities 
 of any county, city, town or village, or to induce any person not 
 to enter into such competition . . . they shall be deemed 
 guilty of a conspiracy . . . and imprisoned in the peniten- 
 tiary not exceeding iive years or fined not exceeding $2,000, or 
 both. 
 
 Chapter 38, Intimidation of Employes, par. 206. If two or 
 more persons shall combine for the purpose of depriving the ownei- 
 or possessor of property of its lawful use and management, or by 
 preventing by threats, suggestions of danger or any unlawful 
 means, any person from being employed by or obtaining employ- 
 ment from any such owner or possessor of property on such terms 
 as the parties may agree upon, such ])erson shall be fined not ex- 
 ceeding $500, or imprisonment not exceeding six months. 
 
 Par. 207. If any person shall by threats, intimidation or unlaw- 
 ful interference seek to prevent any other person from working 
 or from obtaining work at any lawful business, on any terms that 
 lie may see fit, such person shall be fined not exceeding $200. 
 
 Far. 208. Whosoever enters a coal bank, mine, shaft, manufac- 
 tory, building or premises of another, with intent to commit an 
 injury thereto, or by means of threats, intimidation or riotous or 
 other unlawful doings, to cause any person employed therein to 
 leave his employment, shall be fined not exceeding $500 or con- 
 fined not exceeding six months or both. 
 
 Par. 324. Whoever without authority of law and not being the 
 owner or agent of adjoining lands, enters the coal bank, mine, 
 shaft, manufactory or place where workmen are employed, of 
 another, without the expressed or implied consent of the owner 
 or manager thereof, after notice that such entry is forbidden,, 
 shall be fined not exceeding $200, or confined not exceeding six 
 months. 
 
 Par. 109. Strikes and conspiracies. If any locomotive engineer 
 in furtherance of any combination or agreement, shall willfully 
 and maliciously abandon his locomotive upon any railroad at any
 
 •346 COXSPIRACY AT COMMON LAW — CONTIXUED. 
 
 other point than the regular schedule destination of such locomo- 
 tive, he shall be lined not less than $'20 nor more than $100, and 
 <?onfined in the county jail not less than 20 days nor more than 
 ninety days. 
 
 Par. 110. If any person or persons shall willfully and maliciously 
 by any act or by means of intimidation, impede or obstruct, except 
 by due process of law, the regular operation and conduct of the 
 business of any railroad comi)any or other corporation, firm or 
 individual in this State, or of the regular running of any locomo- 
 tive engine, freight or passenger train of any such company, or 
 the labor or business of any sucli corporation, firm or individual, 
 he or they shall, on conviction thereof, be punished by a fine of 
 not less than twenty dollars, nor more than two hundred dollars, 
 and confined in the county jail not less than twenty days and not 
 more than ninety days. 
 
 Par. 111. If two or more persons shall willfully and maliciously 
 combine or conspire together to obstruct or impede by any act, or 
 by means of intimidation, the regular operation and conduct of 
 the business of any railroad company, or any other corporation, 
 firm or individual in this State, or to impede, hinder or obstruct, 
 except by due process of law, the regular running of any locomo- 
 tive engine, freight or j^assenger train on any railroad, or the 
 labor or business of any such corporation, firm or individual, such 
 person shall, on conviction thereof, be punished by fine not less 
 tlian twenty dollars, nor more than two hundred dollars, and con- 
 ^ned in the county jail not less than twenty days, nor more than 
 ninety days. 
 
 Par. 112. This Act shall not be construed to apply to persons 
 voluntarily quitting the employment of any railroad comj)any or 
 «uch other corporation, firm or other individuals, whether by 
 concert of action or otherwise, except as provided in paragraph 
 109.' 
 
 The intimidation of employes is made a crhninal offense in Indi- 
 ana. § 2126. Whoever by threats, intimidation or force, prevents 
 or seeks to prevent any person from doing work for or furnishing 
 materials to any person, firm or corporation engaged in any law- 
 ful business, shall be fined not more than one hundred dollars, 
 
 'Annotated Statutes, 1885, chapter 114.
 
 STATUTES IN EXGLAXD AND THE UNITED STATES. 347 
 
 nor less than twenty dollars, to wliich may be added imprison- 
 ment in the county jail not more than six months nor less than 
 ten days. 
 
 § 2127. Intimidation of employers. Whoever unlawfully, by 
 threats, intimidation or force, prevents or attempts to prevent any 
 railroad company or any of the agents, servants or employes 
 thereof, from moving-, running and operating the locomotives, 
 cars and trains of such railroad company, or from transporting 
 and carrying passengers or freight in its cars on the line of such 
 railroad company, or, in like manner prevents or attempts to pre- 
 vent any express company, common carrier, or persons engaged 
 in transporting or carrying passengers or freight for hire, from so 
 transporting or carrying either passengers or freight, shall be fined 
 not more than one thousand dollars, nor less than fifty dollars, to 
 which may be added imprisonment in the state prison not more 
 than twenty-one years, nor less than two years, and such offender 
 shall be disfranchised and rendered incapable of holding any office 
 of trust or profit for any determinate period. * 
 
 § 2193. Protection of employes as voters. Whoever for the 
 purpose of influencing a voter .... if an employer of 
 laborers, or an agent of such employer, threatens to withhold the 
 wages of or to dismiss from service any laborer in his employ- 
 ment; or refuses to allow to any such employe tirje to attend at 
 the place of election and vote, shall be fined not more than one 
 thousand dollars nor less than twenty dollars, imprisoned in 
 the state prison not more than five years nor less than one year, 
 and disfranchised and rendered incapable of holding any office of 
 trust or profit for any determinate period. 
 
 Blacklisting is forbidden, and the cause of discharge must on 
 -demand be stated in wi-iting, which shall not furnish a cause of 
 action for slander or libel, and if not furnished in reasonable time 
 after demand, no cause can thereafter be stated. ^ 
 
 The Iowa statute authorizes the incorporation of trade unions.* 
 
 >Rev. Stat. 1881. 
 
 ^Elliott's Supplement, chapter 28. §§ 1G15, 1616, 1617. For an example of 
 
 the general statute against conspiracy, see Landringham v. State, 49 Ind. 
 
 186; State v. McKinstry, 50 Ind. 465; State v. Boswell, 3 West. Rep. 126, 
 
 104 Ind. 541. 
 ^McClean's Anno. Stat. 1880, title, ix, chap. 2, § 1091, amended by chap. 71, 
 
 Acts 1886.
 
 348 co^'s^JKACY at common laav — continlkd. 
 
 The Acts 1S86, cliap. 20, provide for tlie arbitration of labor 
 disputes. 
 
 The Acts 1888. cliap. 57, for the prevention of black listinfj;. 
 
 Kansas. The act of employes abandoning; a railroad train is 
 made criminal and conspiracy is an indictable offense.* Boards of 
 Arbitration are provided for by the Act of 188G, chap. 28, §§ 1-1 0. 
 
 Kentucky Gen. Stat. 1881, chap. 29, art. 14, § 13, forbids the 
 enticing of laborers from work. 
 
 In Louisiana the intimidation of crews of steamboats is forbid- 
 den; " as also the abandonment of steamboats by employes. 
 
 In Maine certain acts obstructing the business of certain corpo- 
 rations are declared unlawful. 
 
 § 6. Any employe of a railroad corporation who, in pur- 
 suance of an agreement or combination by two or more 23ersons,. 
 to do or procure to be done, any act in contemplation or further- 
 ance of a dispute between such corporation and its employes, 
 unlawfully or in violation of his duty or contract, stops or un- 
 necessarily delays or abandons, or in any way injures a locomo- 
 tive or any car or train of cars on the railway track of such cor- 
 poration; or in any way hinders or obstructs the use of any loco- 
 motive, car or train of cars on the failroad of such corporation, 
 shall be punished by fine not exceedino; five hundred dollars, or 
 imprisonment in the state prison or in jail not exceeding one year. 
 
 § 7. Whoever by any unlawful act, or by any willful omission 
 or neglect, obstructs or causes to be obstructed an engine or car- 
 riage on any railroad or railway, or aids or assists therein, or who- 
 ever having charge of any locomotive or carriage while upon or 
 in use on any railway, of any railway, of any railroad corporation 
 willfully stops, leaves or abandons the same, or renders or aids or 
 assists in rendering the same unfit for or incapable of immediate 
 use, with intent thereby to hinder, delay or in any manner to 
 obstruct or injure the management of any railroad or railway, or 
 the business of any corporation operating or owning the same, or 
 of any other corporation or person, and whoever aids, or assists 
 therein, shall be j)unished by fine not exceeding one thousand dol- 
 
 'Compiled Laws 1885, chap. 21, §§ 2213, 2214, 2215, 2216; State v. Saroy^ 
 48 Iowa, 562; State v. Stevens, 80 Iowa, 391; State v. Potter, 28 Iowa, 554-^ 
 State V. Flynn, 28 Iowa, 26. 
 
 'Voorhies Revised Laws 1870, § 944.
 
 STATUTES IN ENGLAND AND THE UNITED STATES. 34:9 
 
 lars, or imprisonment in the state prison or in jail not exceeding 
 two years. 
 
 § 8. Wlioever, having any manao:ement of, or control, either 
 .alone or with others, over any railroad, locomotive, car or train, 
 while it is used for the carriage of persons or property, or is at 
 any time guilty of gross carelessness or neglect on or in relation 
 to the management or control thereof; or maliciously stops <)r 
 ■delays the same in violation of the rules and regulations then in 
 force for the operation thereof; or abstracts therefrom the tools 
 or appliances pertaining thereto, with intent thereby maliciously 
 to delay the same, sliall be punished by a line not exceeding one 
 thousand dollars or imprisonn*ient in the state prison or in jail not 
 ■exceeding three years. 
 
 § 9. Whoever, alone or in pursuance or furtherance of any 
 agreement or combination with others, to do or to procure to be 
 done any act in contemplation or furtherance of a dispute or con- 
 troversy between a gas, telegraph or railroad corporation and its 
 employes or workmen, wrongfully and without legal authority 
 uses violence towards, or intimidates any person in any way or by 
 any means, with intent thereby to compel such person against his 
 "will to do, or al)stain from doing, any act which he has a legal 
 right to do or abstain from doing; or on the premises of such cor- 
 poration, by bribery or in any manner or by any means, induces 
 or endeavors or attempts to induce such person to leave the employ- 
 ment and service of such corporation, with intent thereby to fur- 
 ther the objects of such combination or agreement; or in any way 
 interferes with sucli person while in the performance of his duty; 
 or threatens or persistently follows such person in a disorderly 
 manner, or injures or threatens to injure his property, with either 
 of said intent, shall be punished by tine not exceeding three hun- 
 dred dollars or imprisonment not exceeding three months. 
 
 § 10. Any person in the employment of a railroad corporation, 
 who, in furtherance of the interest of either party to a dispute 
 between another railroad corporation and its employes, refuses to 
 aid in moving the cars of such other coi'poration or trains in whole 
 or in part made up of the cars of such other corporation, over the 
 tracks of coi'poration employing him; or refuses to aid in loading 
 ■or discharging such cars, in violation of his duty as such employe.
 
 350 CONSPIRACY AT COMMON LAW — CONTINUED. 
 
 shall be punislied by a fine not exceeding five hundred dollars, or 
 imprisonment in the state prison or in jail not exceeding one year.* 
 
 On the subject of conspiracy it is, by chap. 126, § 18, enacted 
 that: If two or more persons conspire and agree together, with 
 the fraudulent or malicious intent wrongfully and wickedly to 
 injure the person, character, business, or property of another; or 
 to do any illegal act injurious to the public trade . . . they 
 are guilty of a conspiracy, and every such offender, and every per- 
 son convicted of conspiracy at common law, shall be punished by 
 imprisonment for not more than three years, or by fine not exceed- 
 ing one thousand dollars. 
 
 Intimidation of Employes. — AVhoever, by threats, intimidation, 
 or force, alone or in combination with others, prevents any person 
 from entering into or continuing in the employment of any per- 
 son, firm or corporation, shall be punished by imprisonment not 
 more than two years, or by fine not exceeding five hundred 
 dollars. ' 
 
 In Maryland, under the title of "Conspiracy," it is enacted that: 
 An agreement or combination by two or more persons to do or 
 procure to be done any act in contemplation or furtherance of a 
 trade dispute between employers and workmen, shall not be 
 indictable as a conspiracy, if such act committed by one person 
 would not be punishable as an ofiiense; nothing in this section 
 shall affect the law relating to riot, unlawful assembly, breach of 
 the peace, or any offense against any person or against property.* 
 Provision is also made for a board of arbitration." 
 
 In Massachusetts a like board of arbitration is established,"* and 
 the incorporation of labor unions is also authorized.' In 1890-91 
 the Legislature passed a law known as the Weavers' Fine Bill. 
 The Act provides a penalty for a manufacturer who shall impose 
 a fine or other punishment upon a workman for an imperfection 
 
 1 Rev. Stat. 1883, chap. 123, §§ 6-10. 
 
 * Acts 1889, chap. 303. See on the subject of conspiracy. State v. Clary, 64 
 Me. 370; State v. Mayberry, 48 Me. 235; State v. Roberts, 34 Me. 321; State v. 
 Ripley, 31 Me. 388; State v. Bartlett, 30 Me. 135; State v. Murry, 15 Me. 102. 
 
 2 Code Pub. Gen. Laws 1888, art. 27, § 31. 
 *eode of Pub. Gen. Laws 1888, art. 7, §§ 1-5. 
 8 Acts 1886, chap. 263, §§ 1-9. 
 
 «Act8 1888, chap. 134, §§ 1-4.
 
 STATUTES IN ENGLAND AND THE UNITED STATES. 351 
 
 in weavino-, and one Jogiali Perrv. a Worcester Conntv manufac- 
 turerer, lias been convicted under the Act, and on appeal an attack 
 is made before the Supreme Court of the State on the constitu- 
 tionality of the legislation. It is said in argument that there is no- 
 authority which the people of Massachusetts have conferred upon 
 the Legislature to prescribe by law what prices shall be paid for 
 labor where parties competent to contract make contracts for its 
 performance and for the price to be paid for it. The Legislature 
 cannot fix by law the amount which an employe shall be entitled 
 to receive. Neither is there any power given to the Legislature 
 to require by law that poor services shall receive the same com- 
 pensation as that which is better and therefore worth more. 
 
 These positions, as abstract propositions, are undoubtedly true. 
 But the precise question to be determined is whether the Legisla- 
 ture has the constitutional right to decide that citizens of the State 
 shall not make a contract, which involves the possibility of a 
 reduction in wages for imperfection in the product, whether 
 caused by faulty machinery or otherwise. "Whether such a law is 
 Avise or not is not in the issue. The court is called upon to decide 
 whether the Legislature cannot enact such a law. The appeal is 
 still pending in the court. 
 
 In Michigan the intimidation of employes is forbidden, in sec- 
 tion 9274, and under the lieading ''Obstructing or Conspiring to 
 Obstruct Business of Corporations," it is provided, § 9274, that: 
 If any person or persons shall willfully or maliciously, by any act 
 or by means of intimidation, impede or obstruct, except by due 
 process of law, the regular operation or conduct of the business of 
 any railroad company or other corporation, firm or individual in 
 this State, or of the regular running of any locomotive engine, 
 freight or passenger train of any such company, or the labor or 
 business of any such corporation, firm or individual, he or they 
 shall, upon conviction thereof, be punished by imprisonment in 
 the county jail not more than throe months or in the state prison 
 not exceeding one year. 
 
 § 9275. If two or more persons shall willfully or maliciously 
 combine or conspire together to obstruct or impede, by any act or 
 by means of intimidation, the regular operation and conduct of 
 the business of any railroad company or any other corporation.
 
 •352 CONSPIKACV AT COMMON LAW CONTINUED. 
 
 firm or individual in this State, or to impede, hinder, or obstruct, 
 except by due process of law, the regular running of any locomo- 
 tive engine, freight or passenger trains on any railroad, or the labor 
 and business of any such corporation, firm or individual, such 
 person shall, on conviction thereof, be punished by imprisonment 
 in the county jail for a period not more than three months, or 
 in the state prison for a period not exceeding two years. 
 
 This statute does not require that malice must be shown to have 
 existed against the owner of the business disturbed or against his 
 property, in the sense that the common law requires it in cases of 
 malicious mischief.' If the indictment only charges a conspiracy 
 to do certain acts, describing them, but does not charge the doing 
 of any of the acts, it only charges the offense of conspiracy under 
 this section. 
 
 § 9276. It is declared that this Act shall not be construed to 
 apply to cases of persons voluntarily quitting the employment of 
 any railroad company or such other corporation, firm, or indi- 
 vidual, whether by concert of action or otherwise.'' 
 
 The organization of trade unions is authorized.' 
 
 In Missouri a party engaging in a criminal conspiracy is guilty 
 of a misdemeanor.* Arbitration boards are "authorized by chapter 
 95, art. 2, §§ 6354-6358. 
 
 In Minnesota, under the title "Conspiracy," it is provided, 
 :§ 138, that if two or more persons conspire either . . . (5.) To 
 prevent another from exercising a lawful trade or calling, or doing 
 any other lawful act, by force, threats, intimidation, or by inter- 
 fering, or threatening to interfere with tools, implements, or prop- 
 erty belonging to or used by another, or with the use or employ- 
 ment thereof; or (6.) To commit any act injurious to the public 
 health, to the public morals, or to trade or commerce, or for the 
 perversion or obstruction of justice, or of the due administration 
 of the laws, each of them is guilty of a misdemeanor. 
 
 1 People V. Petheram, 7 West. Rep. 592, 64 Mich. 253. 
 
 «Howell Anno. Stat. 1882, chap. 321, §§ 9274-9276. 
 
 ''Howell Anno. Stat. 1882, chap. 17, § 3945; Of Knights of Labor, 
 Acts 1883, No. 159, §§ 1-6; Of Labor Associations, Acts 1885, No. 145, 
 §§ 1-9, and of Boards of Arbitration, Acts of 1886, No. 238, §§ 1-9. 
 
 * State V. Daubert, 42 Mo. 242; State v. Ross, 29 Mo. 32; Rev. Stat. 1889, 
 chap. 47, art. 7, § 3783.
 
 STATUTES IN ENGLAND AND THE UNITED STATES. 353 
 
 § 139. 'No conspiracj is punishable criminally unless it is one 
 of those enumerated in the last section, and the orderly and 
 peaceably assembling or co-operation of persons employed in any 
 calling, trade, or handicraft, for the purpose of obtaining an 
 advance in the rate of wages or compensation, or of maintaining 
 such rate, is not conspiracy. 
 
 § 140. ISTo agreement except to commit a felony upon the per- 
 son of another, or to commit arson or burglary, amounts to a con- 
 spiracy, unless some act besides such agreement be done to effect 
 the object thereof by one or more of the parties to such agree- 
 ment.' The statute also declares coercion to l)e a crime.' 
 
 In Montana unlawful interference between employer and em- 
 ploye is defined and forbidden.^ A board of arbitration is also 
 provided for. * 
 
 In New Hampshire interference with the laborer or employe 
 is forbidden.* 
 
 In New Jersey, title" Conspiracy," it is enacted that if two or 
 more persons shall combine, unite, confederate, conspire or bind 
 themselves by oath, covenant, agreement or other alliance to commit 
 any crime ... or to cheat and defraud any person of any 
 property by any means which are in themselves cnminal, or to 
 cheat and defraud any person of any property by any means 
 which, if executed, would amount to a cheat ... or to com- 
 mit anv act for the perversion or obstruction of justice, or the due 
 administration of the laws, they shall, on conviction, be deemed 
 guilt}'- of a conspiracy, and shall he punished by imprisonment at 
 liard labor not exceeding two years, or by a fine not exceeding 
 five hundred dollars, or both ; but no agreement to commit any 
 crime other than murder, manslaughter, sodomy, rape, arson, bur- 
 glary or robbery, shall be deemed a conspiracy, unless some act 
 in execution of such agreement be done to effect the object 
 thereof by one or more of the parties to such agreement, provided 
 that nothing in the section shall be construed to apply to any 
 
 •Penal Code, 1886, p. 53. 
 
 ''Section 490, p. 189. See same title in New York statute. 
 
 ^Cornp. Stat. 1887, Fourtli Division Criminal Laws, chap. 13, §§ 252- 
 
 254. 
 *Comp. Stat. 1887. Division 5, General Laws, cliap. 7, §§ 82-87 
 6Acts 1887, chap. 54, § 1. 
 
 23
 
 354 CONSPIKACY AT COMMON LAW — CONTINUED. 
 
 person or persons lawfully and by peaceful means persuading, 
 advising or encouraging other persons to enter into any combina- 
 tion for or against leaving or entering into the employment of 
 other persons.* 
 
 It shall not be unlawful for any two or more persons to unite, 
 combine or bind themselves by oath covenant, agreement, alliance, or 
 otherwise to persuade, advise or encourage, by peaceable means, 
 any person or persons to enter into any combination for or against 
 leaving or entering into the employment of any person, persons 
 or corporation. " 
 
 It is not unlawful, since New Jersey Act 1883 (Sup. Kev. p. 
 774), for the members of a voluntary association to combine for 
 the purpose of securing the control of the work connected with 
 their trade, and to endeavor to effect such purpose by peaceable 
 means. ^ 
 
 The Ee vised Statutes of 1877, p. 946, §§ 173-176, make it a 
 criminal offense for an employe to abandon a railroad train before 
 it reaches its destination. Boards of Arbitration are provided for 
 in the Supplement of 1886, p. 21, §§ 1-13. 
 
 Under the legislation in force at the date of the decisions, the 
 combination or agreement must be followed by some act done to 
 effect the object by one or more of the parties to the agreement. * 
 
 The legislation in Kew York is to the effect, under the title of 
 "Conspiracy," section 168, that if two or more persons conspire 
 either ... (5) To prevent another from exercising a lawful 
 trade, or calling, or doing any other lawful act, by force, threats, 
 intimidation, or by interfering or threatening to interfere with 
 tools, implements, or property belonging to or used by another, 
 or with the use or employment thereof; or (6) To commit any act 
 injurious to the public health, to public morals, or to trade or 
 commerce, or for the perversion or obstruction of justice, or of 
 the due administration of the laws, each of them is guilty of a 
 misdemeanor. 
 
 'Rev. Stat. 1877, p. 261, § 191, as amended by § 9, p. 1296; Rev. Stat. 1877, 
 and by § 43, p. 199, sup'lt. 1886. 
 
 « Sup. 1883, p. 774, § 30. 
 
 2 3Iayer v. Journeymen Stone-Gutters Asso. 47 N. J. Eq. 519. 
 
 4 State V. Toung, 37 N. J. L. 184; State v. Donaldson, 33 N. J. L. 151; John- 
 son V. State, 26 N. J. L. 313; State v. Norton, 23 N. J. L. 33; Den v. 
 Johnson, 18 N. J. L. 90; State v. Bickey, 9 N. J. L. 364.
 
 STATUTES IN ENGLAND AND THE UNTrED STATES. 355 
 
 § 170. . . . The orderly and peaceable assembling or co- 
 operation of persons employed in any calling, trade, or handicraft, 
 for the purpose of obtaining an advance in the rate of wages or 
 compensation, or of maintaining such a rate, is not conspiracy. 
 
 § 171a. (As enacted by chap. 688, Acts of 1887.) Any person 
 or persons, employer or employers of labor, and any person or 
 persons of any corporation or corporations, in behalf of such 
 corporation or corporations, who shall hereafter coerce or com- 
 pel any person or persons, employe or employes, laborer or 
 mechanic, to enter into an agreement, either written or verbal 
 from such person, persons, employe, laborer or mechanic, not to 
 join or become a member of any labor organization, as a condi- 
 tion of such person or persons securing employment, or continu- 
 ing in the employment of any such person or persons, employer 
 or employers, corporation or corporations, shall be deemed guilty 
 of a misdemeanor. The penalty of such misdemeanor shall be 
 imprisonment in a penal institution for not more than six months 
 or by a fine of not more than two hundred dollars or by both 
 such fine and imprisonment. ' 
 
 A person who with a view to compel another person to do 
 or to abstain from doing an act which such other person has a 
 legal right to do, or to abstain from doing, wrongfully and 
 unlawfully ... (2) deprives any such person of any tool, 
 implement or clothing or hinders him in the use thereof, or (3) 
 uses or attempts the intimidation of such person by threats or 
 force, is guilty of a misdemeanor. * 
 
 Endangering life by refusal to labor. A person who willfully 
 and maliciously either alone or in combination with others, breaks 
 a contract of service or hiring, knowingly or having reasonable 
 cause to believe that the probable consequences of his so doing 
 will be to endanger human life or to cause grievous bodily injury 
 is guilty of a misdemeanor. ' 
 
 A person who willfully and wrongfully commits any act which 
 seriously injures the person or property of another, or which 
 seriously disturbs or endangers the public peace or health, or which 
 
 ' Rev. Stat. 1883, Penal Code, § 168, 170, 171a, eaacled by chap. 688, Acts 
 
 1887. 
 2 Rev. Stat. 1883, p. 141, § 653. 
 3Rev. Stat. 1883, p. 146, § 673.
 
 356 CONSPIRACY AT COMMON LAW — CONTINUED. 
 
 openly outrages public decency, for which no other punishment 
 is expressly prescribed by this code, is guilty of a misdenieanor, but 
 nothing in this code contained shall be so construed as to prevent 
 any person from demanding an increase of wages or from assem- 
 bling and using all lawful means to induce employers to pay such 
 wages to all persons employed by them, as shall be a just and fair 
 compensation for services rendered.' 
 
 The manufacture of chjthing is one of the largest industries of 
 many that are carried on in the city of Rochester, New York. 
 According to the report of the Board of Arbitration, the annual 
 output of ready-made clothing reaches $10,000,000 in value, the 
 annual aggregate of wages is $3,000,000, and the employes, men, 
 women, and children, including about 5,000 families, number 
 about 20,000, or about one seventh the entire population of tlie 
 city. Early in March, 1891, this great industry came to a stand- 
 still through the combined action of twenty-one manufacturing 
 firms in dismissing the cutters in their employ, about 350 in all. 
 All of the dismissed men were members of a local assem])ly of 
 Knights of Labor, and the reason which their employers gave for 
 their course was that they were unable to continue their business 
 because of the insistance, on the part of the national organization 
 of the Knights, on the right to dictate to the employers the terms 
 upon which the local Knights should be employed. The sudden 
 arrest of a great industry produced the results inevitable in such 
 cases. There was destitution and suffering in thousands of fami- 
 lies, and the industrial and commercial life of the city received a 
 violent shock. Indictments were found against officers of the 
 national organization of the Knights of Labor, and a conviction 
 was had, and the appeal is now pending before the general term 
 of the supreme court at Buffalo under the title of the People v. 
 Hughes. The decision will be looked for with interest. The 
 
 ' Rev. Stat. 1883, p. 146, § 673; State Board of Mediation and Arbitration, 
 Established Acts 1887, chap. 63. See also the decisions of the New York 
 courts: Marcli v. People, 7 Barb. 393; People v. Chnse, 16 Barb. 495; 
 Pepper v. Haight, 20 Barb. 438; Adams v. People, 9 Hun, 89; Hooker v. 
 Vandewater, 4 Denio, 353; Master Stevedores Asso. v. Walsh, 2 Daly, 1; 
 People V. Trequier, 1 Wheel. Cas. 142; People v. Seaman, 5 Denio, 413; 
 People V. Fisher, 14 Wend. 15; People v. Underwood, 16 Wend. 546; 
 Priest V. Gummings, 20 Wend. 353; Hamilton v. Wright. 37 N. Y. 508; 
 Stokes V. People. 53 N. Y. 179; People v. Brady, 56 N. Y. 190; People v. 
 Powell, 63 N. Y. 88. See also post, % 76.
 
 STATUTES IN EKGLAND AND THE UNITED STATES. 357 
 
 State Board of Arbitration, during the pending difficulty, put in 
 an appearance and made unavailing efforts to harmonize the differ- 
 ences between the manufacturers and employes. It then began an 
 investigation into the cause of the trouble, sitting for three days 
 and going into the subject with great thoroughness. It made a 
 report as follows : 
 
 Office of the ) 
 
 BoAED OF Mediation and Arbitration. > 
 
 Albany, March 24, 1891. ) 
 
 To the Legislature : 
 
 On Saturday, the 7th instant, twenty-one individual, firm, and 
 corporation manufacturers of clothing, who constitute the Clothiers' 
 Exchange of the city of Rochester, dismissed the cutters in their 
 employ, who number about 350, and are organized in a local 
 assembly of the Knights of Labor, which has relations with a 
 national organization of that order. The manufacture of clothing 
 is the most extensive of the many industries carried on in Roch- 
 ester, which is now the largest interior city of the State, with a 
 growth in population from 90,000 in 1880 to 140,000 in 1890. 
 The aimual volume of theout-put of ready-made clothing reaches 
 $10,000,(>00 in value, and the annual wages paid aggregate 
 $3,000,000, distributed among the working members, men, women 
 and children, of about 5,000 families, numbering about 20,000 
 persons, or nearly fifteen per cent of the inhabitants. As the 
 Clothiers' Exchange embraces the principal manufacturers in the 
 city, and as the closing of the cutting departments causes a cessa- 
 tion of work all along the line, it is easy to see, from the figures 
 given, the local importance that attaches to the lockout. 
 
 There are some features of the revelations made by the inves- 
 tigation, and of the present situation, of such general concern as 
 not to be unworthy of the attention of the Legislature. By the 
 law of its creation, this board is required, in making report to the 
 Legislature, to offer " such suggestions as to legislation as may 
 seem to it conducive to harmonizing the relations of, and disputes 
 between employers and the wage-earning masses, and the improve- 
 ment of the present system of production." The board is of 
 opinion that the measure of coercion of employers by employes, 
 popularly known as the " boycott," as its workings are developed
 
 358 CONSFIKACY AT COMMON LAW CONTINUED. 
 
 in this case, does not conduce to harmony between the parties, and 
 is not calculated to improve their present or any other system of 
 production. On the contrary, it would seem that, sooner or later, 
 the consequence must be disruption of relations and destruction 
 of industries. Like causes produce like effects, and the spectacle 
 presented in Rochester to-day may be witnessed in the other 
 industrial centers of the State to-morrow. It is clearly the prov- 
 ince of all persons who choose do so, to combine their skill and 
 labor, put a price upon their use, and sell that use to whomsoever 
 they please, or hold it in idleness as they please. But it is as clearly 
 not the right of any person, upon failure of negotiations of a sat- 
 isfactory sale of the use of their skill and labor to others persons 
 who desire such use, to engage in an attempt at avowed destruc- 
 tion of the ])usiness of those other persons because they refuse to 
 accede to terms and conditions demanded of and not agreeable to 
 them, and then make traffic of desistance. It is suggested that, 
 in so far as the laws of the State of New York fail to protect 
 employers and employes alike in their prerogative of equal right 
 to buy or sell the use of skill and labor, they are deficient and at 
 fault as not " conducive to harmonizing the relations of, and dis- 
 putes between, employers and wage-earning masses," or to the 
 '^ improvement of the present system of production," and should 
 be amended to those most desirable ends set forth by the Legisla- 
 ture itself in the Act quoted. 
 
 All of which is respectfully submitted. 
 
 William Puecell, 
 Gilbert Robertson, Jr., 
 F. F. Donovan, 
 State Board of Mediation and Arbitration. 
 
 Charles -J. Madden, Secretary. 
 
 It is to be hoped that the action of the state Legislature upon this 
 report may prove conducive to the settlement of disputes between 
 employers and employes without resort to lockouts or strikes. 
 
 In IS'orth Carolina a conspiracy against the state govermnent 
 is declared an indictable offense.' It is also made an offense to 
 conspire to abduct minors.'' 
 
 ^Stnte V. Jarkson, 82 N. C. 565. 
 ■^State V. Sullivan, 85 N. C. 506.
 
 STATUTES IN ENGLAND AND THE UNITED STATES. 359 
 
 In North Dakota the intnnidation of the employer or emp.oye 
 is made criminal,' Preventing persons from obtaining employ- 
 ment or enjoying employment already obtained is also declared 
 criminal."^ Black lists of employes who have left the service of a 
 corporation or have been discharged is also forbidden to be ex- 
 changed between corporations/ 
 
 In Oiiio, voluntary boards of arbitration are authorized. * 
 
 An interesting decision has been rendered by the United States 
 Circuit Court of the Southern District of Ohio. * 
 
 A suit for an injunction was brought by Lewis E. Casey, editor 
 and proprietor of The Covington (Ky.) Commonwealth, to restrain 
 Typographical Union No. 3 of Cincinnati from boycotting the 
 ■complainant and his newspaper. The complaint alleges that the 
 said union demanded of the proprietor of The Commonwealth 
 that he should conduct his paper according to the customs, rules 
 and regulations adopted by that organization; that he should pay 
 his employes such rates as the union might from time to time 
 prescribe, and that he should discharge from his employment all 
 persons who were not members of it. Upon his refusal to com- 
 ply with these demands the defendants, it is averred, illegally and 
 with intent to injure the complainant and to destroy the circula- 
 tion of his newspaper and its value as an advertising medium, 
 ■caused to be printed and posted in conspicuous places large hand- 
 bills calling upon all persons to withdraw their patronage from 
 The Commonwealth; that they issued circulars to its advertising 
 patrons requesting them to cease advertising and threatening, in 
 ■case of their refusal, that they would be visited by the ill-will and 
 incur the enmity of all organized labor. Circulars were also sent 
 to news agents handling the complainant's paper stating that if 
 they continued to sell it they would be exposed to the hostility of 
 the labor organizations. 
 
 The defendants filed no answer, but upon the argument of the 
 motion for an injunction submitted several affidavits, in which 
 they acknowledged making the demands and having sent the cir- 
 
 'Revised Codes Dakota, 1883; Penal Code, chap. 57, gg 733. 734, 
 sConstitutioa 1889, art. 1, g 33. 
 'Constitution 1889, art. 17, § 212. 
 
 *Act Feb. 10, 1885, ^§ 1-13; Rev. Stat. 1886, vol. 3, p. 425. 
 ^Casey v. Cincinnati Typographical Union No. 3, 12 L. R. A. 193. 45 Fed. 
 Rep. 135.
 
 360 CONSPIRACY AT COMMON LAW CONTINUED. 
 
 culars and posted tlie handbills referred to by the complainant, 
 but denied that they made any threats or menaces, or that such 
 circulars and handbills were intended to express any threats or to 
 interfere with the business of the complainant. They affirmed 
 that these notices were only designed to represent to the parties 
 addressed the reason why they should give their patronage to 
 members of Typographical Union No. 3 and to employers who 
 were friendly to that organization and like unions of organized 
 labor. Such substantially was the issue made up before the court 
 and upon it the defendants' counsel maintained, first, that tlie 
 complainant was not entitled to an injunction from a court of 
 equity, but must seek a remedy by civil action or an indictment 
 in the criminal courts; and second, that the defendants in all they 
 did were simply pursuing a course of lawful competition. 
 
 The opinion delivered by Justice Sage is an elaborate review 
 of the present state of law upon the subject of illegal trade com- 
 binations and conspiracies. 
 
 After the presentation of the facts upon the hearing of the 
 motion, the court called upon counsel for the defendants to state 
 the grounds of their objections to the granting of an injunction. 
 They first challenged the jurisdiction in equity, citing several 
 cases. ' 
 
 Kidd V. Horry, 28 Fed. Rep. 773, was an application to restrain 
 the defendant by injunction from publishing certain circulars 
 alleged to be libelous and injurious to complainants' patent-rights 
 and business, and from making and uttering libelous and slander- 
 ous statements concerning the validity of complainants' letters- 
 patent or their title thereto, or concerning their business, during 
 the pendency of a suit to restrain the infringement of said patents. 
 Justice Bradley, who decided the case, in the course of his opin- 
 ion said that the application rested principally upon a line of 
 recent English authorities, which depended on certain acts of 
 Parliament, and not on the general principles of equity jurispru- 
 dence, but that neither the statute law of this country, nor the 
 
 ^Eidd V. Horry, 28 Fed. Rep. 773; New York J. G. Soc. v. Roosevelt, 7 Daly, 
 ISS, 190; Prudential Assur. Co. y. KnoU, L. R. 10 Cli. 143; Richterw. 
 Journeymen Tailors Union, 24 Week. L. Bull. 189; Mayers. Journeymen 
 StonecnUers Asso. 47 N. J. Eq. 519: Mogul S. S. Co. v^ McGregor, h. R. 
 15 Q. B. Div, 476, and Moores v. Bricklayers Union, No. 1, 23 Week. L. 
 Bull. 48.
 
 STATUTES IN ENGLAND AND THE UNITED STATES. 361 
 
 well considered judgment of a court, had introduced this new 
 branch of equity into our jurisprudence. "There may be a case 
 or two looking that way, but none that we deem of sufficient 
 authority to justify us in assuming the jurisdiction. . . . "VVe 
 do not think that the existence of malice in publishing a libel, or 
 uttering slanderous words, can make any difference in the juris- 
 diction of the court. Malice is charged in almost every case of 
 libel, and no cases of authority can be found, we think, independ- 
 ent of statutes, in which the power to issue an injunction to re- 
 strain a libel or slanderous words has ever been maintained, 
 whether malice was charged or not." 
 
 This case was approved and followed in Baltimore Wheel Co. 
 Y. Bemis, 29 Fed. Rep. 95, by Judges Colt and Carpenter, in the 
 United States Circuit Court of Massachusetts.' 
 
 Mr. Justice Gray was then the Chief Justice of the Supreme 
 Court of Massachusetts, and pronounced the opinion, holding that 
 '%e jurisdiction of a court of chancery does not extend to cases 
 of libel or of slander or of false representations as to the character 
 or quality of the plaintifE's property, or as to his title thereto, 
 which involves no breach of trust or of contract." Upon the 
 authority of this case, and of I^radentlal Assur. Co. v. Knotty 
 the Supreme Court of Massachusetts held in Whitehead v. I{it- 
 son, 119 Mass. 481, that there was no jurisdiction in equity to 
 restrain a person falsely representing that the plaintiff's patent 
 infringed a patent owned by himself, and thereby deterring others- 
 from purchasing the plaintiff's invention. 
 
 The case in T Daly was upon a motion to vacate a preliminary 
 injunction, which had been granted, restraimng the defendants, 
 as members or visitors of the State Board of Charities, from pub- 
 lishing the proceedings before them in their inspection and exam- 
 ination, under the statute, of the affairs and conduct of the com- 
 plainant and its officers, which proceedings, it was averred, were 
 secret and ex parte, the society having been excluded from being 
 present by counsel, and not allowed to cross-examine witnesses or 
 produce testimony on its own behalf, or to know even, except 
 from the publications of the proceedhigs, what charges were made 
 against it or its officers. The court held that, conceding the facts 
 
 'To the same effect see Boston Blatite Go. v. Florence Mfg. Co. 114 Mass. 69.
 
 362 CONSPIRACY AT COMMON LAW CONTINUED. 
 
 as stated, and that the matter published was defamatory and 
 libelous, the defendants could not be restrained hj a court of 
 equity, and that those injured must seek their remedy by a civil 
 action, or by an indictment in the criminal courts; the exercise of 
 an equitable jurisdiction to restrain publications being repugnant 
 to the constitutional provision that every citizen may freely speak, 
 write and publish his sentiments on all subjects, being responsible 
 ior the abuse of that right, and that no law should be passed to 
 restrain the liberty of speech and of the press. 
 
 In Prudential Assur. Co. v. Knott the court was asked to re- 
 strain the publication of a pamphlet which, it was charged, con- 
 tained false statements of the rates of premium charged by com- 
 plainant, and represented the company as being managed with 
 reckless extravagance, and as being in a state of insolvency, and 
 unable to f ultill its engagements; and it was averred that the con- 
 tinued publication would be very injurious to the company's credit, 
 ■and could not fail greatly to damage its business and diminish its 
 profits. Hall, T^. C, refused to grant an injunction, and the 
 plaintiff, by way of appeal, applied to Lord Cairns, L. C, who 
 held that there was no ground whatever for the interference of 
 the court; that if the publications did not amount to libels, and 
 were therefore innocuous and justifiable in the eye of the court 
 of common law, he was at a loss to understand upon what princi- 
 ple the court of chancery could interfere; and if, on the other 
 hand, the comments were liljelous, it was clearly settled that the 
 court of chancery had no jurisdiction to restrain their publication. 
 
 In Rlchter v. pJourneymen Tailors Union^ a similar rule was 
 applied. In that caie the petition set forth that the defendant 
 unlawfully combined and conspired to break uj) and destroy plain- 
 tiff's business, and that in order to accomplish that purpose they 
 maliciously compelled plaintiff's employes to quit working for 
 him and prevented others from working for him. The means by 
 which this was accomplished were not specified. "Whether it 
 was done by moral suasion, by argument, by reason, or by intimi- 
 dation and violence, is not shown by either the petition or the 
 evidence." All that did appear was that the defendants printed 
 and published circulars, and that the plaintiff had lost customers 
 because the latter had heard that plaintiff was employing scab
 
 STATUTES IN ENGLAND AND THE UNITED STATES. 303 
 
 or inferior tailors. It was not shown from what source tlie alien- 
 ated customers derived their information, but it was assumed by 
 counsel for the plaintiff that it was from the circulars. The court 
 held that the only question before it was whether it could enjoin 
 the pul)lication of a. libel, and that the only remedy against such 
 publication was at law. To the same effect is Mayer v. Journey' 
 men Stone-Cntters Asso. Indeed, the law as stated in all these 
 cases is so thoroughly established as to be beyond controversy, 
 and it is not necessary to refer more particularly to other cases 
 cited in support of it. Francis v. Flinn, 118 U. S. 385, 30 L. 
 ■ed. 165, is quite as strong an authority as any cited. 
 
 But the question is whether Casey v. Cincinnati Typographical 
 Union, falls within the rule. That the defendant, the Typo- 
 graphical Union, set on foot a boycott against the complainant, as 
 stated in the bill, and in the affidavits on file, is not denied. That 
 this boycott was to be enforced by threatening loss of business to 
 those who, having no connection with the Union, should continue to 
 advertise with, or in any way patronize, the complainant, is clear- 
 ly shown. True, it is claimed that no threats were used ; but the 
 language of the circulars has no doul)tful meaning. The affidavits 
 on file show that it was perfectly understood l)y those who 
 received them ; and the circumstances indicate that it was intend- 
 ed that it should be so understood. In Brace v. Evans (Pa.) 13 
 Hy. & Corp. L. J. 561, it was held that the word " boycott " is in 
 itself a threat. " In popular acceptation it is an organized effort 
 to exclude a person from business relations witii others, by per- 
 suasion, intimidation and other acts which tend to violence, and 
 thereby coerce him, through fear of resulting injury, to submit to 
 dictation in the management of his affairs." But it is insisted for 
 the defendants that every representation of fact contained in their 
 hand-bills and circulars is true; that is to sa}', that the complain- 
 ant had, in 1888, broken with the Typographical Union, dis- 
 charged all union employes, and had since that date employed 
 •only those who were not meml)ers of the Union ; and that after 
 repeatedly promising to unionize his office he had finally, in Sep- 
 tember, 1890, refused to do so, and declared that he would not 
 employ any person who was connected with the Union. All 
 these are conceded facts. Therefore, argue counsel for the
 
 364 CONSPIKACY AT COMMON LAW CONTINUED. 
 
 defendants, this is only a case of lawful competition. The com- 
 plainant having declared that he would not employ any member 
 of the Union, the Union had a right to say that its members 
 w^oiild not patronize the complainant. Nobody disputes that 
 proposition. If that were all that is involv'ed in this case, there 
 wonld be nothing for the court to act upon. But it is not all by 
 any means. Instead of "fair, although sharp and bitter, compe- 
 tition," as is contended by counsel, it was an attempt, by coercion,, 
 to destroy all competition affecting the Union. It was an organ- 
 ized conspiracy to force the complainant to yield his right to 
 select his own workmen, and submit himself to the contrt»l uf tlie 
 Union, and allow it to regulate prices for him, and to determine 
 whom he should employ and M'hom discharge. In other words, 
 it was and is an organized effort to force prijiters to come into the 
 Union, or be driven from their calling for want of employment,., 
 and to make the destruction of the complainant's business the 
 penalty for his refusing to surrender to the Union. Whatever 
 moral obligation may have ])een incurred by complainant by rea- 
 son of his promises to unionize his office, they were wholly with- 
 out consideration, and they amount to nothing whatever in law or 
 in equity. 
 
 No case has been cited where, upon a proper showing of facts,, 
 an unsuccessful appeal has been made to a court of chancery tO' 
 restrain a boycott. The authorities are all the other way. At 
 common law an agreement to control the will of employers by 
 improper molestation was an illegal conspiracy. In New York it 
 has been held that the "boycott'- is a conspiracy in restraint of 
 trade.' So also in Virginia.^ And in Connecticut.'' And in 
 England.^ 
 
 In Emack y. Kane, 34 Fed. Kep. 47, the United States Circuit 
 Court for the Northern District of Illinois held that equity had 
 jurisdiction to restrain an attempted intimidation by one issuing 
 circulars threatening to bring suits for infringement against per- 
 sons dealing in a competitor's patented article, the bill charging, 
 
 'People V. Wilzig, 4 N. Y. Crim. Rep. 403; People v. Kostka, 4 N. Y. Crim. 
 
 Rep. 429. 
 "^Com. V. Shelton, 11 Va. L. J. 324. 
 "State V. Olidden, 3 New Eng. Rep. 849, 55 Conn. 46. 
 '^Reg. V. Barntt, 18 L. J. 430.
 
 STATUTES IN ENGLAND AND THE UNITED STATES. 365 
 
 and the proof showing, that tlie charges of infringement were not 
 made in good faith, but with maUcious intent to injure complain- 
 ant's business. Judge Blodgett recognized, in his decision, the 
 authority of Kldd v. Horry^ and Baltimore Wheel Co. v. Bemis, 
 29 Fed. Rep. 95, cited for the defendants in this case, but said 
 that the case before him was fairly different and distinguishable 
 from those cases in a material and vital feature. In those cases 
 the interference of the court was sought to restrain the publica- 
 tion of libelous attacks upon the property of the complainant. In 
 Emack v. Kane., 34 Fed. Rep. 47, the gist of the complaint was 
 that the publications were only means employed to carry into 
 effect a malicious intent to injure and destroy the complainant's 
 business. Judge Blodgett said : '• I cannot believe that a man is 
 remediless against persistent and continued attacks upon his busi- 
 ness, such as have been perpetrated by these defendants against 
 the complainant, as shown by the proofs in this case. It shocks 
 my sense of justice to say that a court of equity cannot restrain 
 systematic and methodical outrages like this by one man upon 
 another's property rights. If a court of equity cannot restrain an 
 attack like this upon a man's business, then the party is certainly 
 remediless, because an action at law, in most cases, would do no 
 good, and ruin would be accomplished before' an adjudication 
 would be reached. True, it may be said that the injured party 
 has a remedy at law ; but that might imply a multiplicity of suits, 
 which equity often interposes to relieve from. But the still 
 more cogent reason seems to be that a court of equity can, by its 
 writ of injunction, restrain a wrong-doer, and thus prevent hi ju- 
 ries which could not be fully redressed by a verdict and judgment 
 for damages at law. Redress for a mere personal slander or libel 
 may perhaps properly be left to the courts of law, because no 
 falsehood, however gross and malicious, can wholly destroy a 
 man's reputation with those who know him ; but statements and 
 charges intended to frighten away a man's customers, and inthu- 
 idate them from dealing with him, may wholly break up and ruin 
 him financially with no adequate remedy if a court of equity can- 
 not afford protection by its restraining writ." 
 
 This is a clear and forcible statement of the law, and is in 
 accord with the general current of authority.
 
 366 CONSPIRACY AT COMMON LAW CONTINUED. 
 
 How strongly it applies in this case may be readily seen by 
 referring to the editoi'ials in the Bulletin, the organ of the union, 
 and to the hand-bills and circulars set forth in the statement of 
 facts. The editorial in the Bulletin of December 1 declares that 
 the boycott " is still on, and will be until the proprietor of the 
 ' rat ' sheet employs union men." It requests " all K. of L. 
 assemblies, unions and workingmen to bear in mind that Mr. 
 Casey refused to employ or in any way recognize organized 
 labor." It asks their aid in compelling complainant to recognize 
 the rights of labor by withdrawing their patronage from his 
 paper, and if possible let him know why. It calls upon them not 
 to patronize any merchants who advertise in complainant's news- 
 paper, and if they see the paper in any place of business to refuse 
 to buy goods unless the merchant immediately stops the " rat " 
 sheet. The connnunication sent by the union on the 3d of 
 [N^ovember to Messrs. Griffin, agents for the sale of complainant's 
 paper, contains the following : 
 
 " This union will consider it a great favor for you to give up 
 the agency of The Commonwealth. If you do not do so, we will 
 have to consider you the enemy of organized labor." 
 
 These are fair samples, and they indicate the method by which 
 the boycott was to be made eifective. Yet counsel say that there 
 were no threats ; that the defendants were only exercising their 
 constitutional right to freely speak and publish their opinions ;, 
 that what defendants have done is a necessary and natural and 
 proper incident of bitter, but yet lawful, competition, and that 
 this was only fair argument and persuasion. These propositions 
 are in direct conflict with decisions made long ago, and recognized 
 in all subsequent cases. In Rex v. Eccles, 1 Leach, 274, the 
 defendants were indicted for conspiring to impoverish a tailor,, 
 and by direct means to prevent him from carrying on his trade. 
 They were convicted, and upon a motion in arrest of judgment it 
 was objected that the indictment ought to have stated the acts 
 that were committed to impoverish the tailor and to prevent him 
 from carrying on his trade in order that the defendants might 
 tliereby have notice of the particular charges they were called 
 upon to answer. But Lord Mansfield, without hearing the prose- 
 cution, said that that was certainly not necessary. " The offense
 
 STATUTES IN ENGLAND AND THE UNITED STATES. 361 
 
 does not consist in doing the acts by which the mischief is 
 effected, — for they may l)e perfectly indifferent, — but the con- 
 spiring with a view to effect the intended mischief by any means. 
 The illegal combination is the gist of the offense," See also Re 
 Wahash R. Co. 24 Fed. Eep. 217. In that case the following 
 notice was sent to various foremen of the shops of the railroad 
 company, during a strike organized to resist a reduction of wages, 
 the railroad company being at that time in the hands of a 
 receiver appointed by the United States circuit court: 
 
 "Office of Local Committee, 
 
 "June 17, 1885. 
 
 " , Foreman: You are requested to stay away from 
 
 the shop until the present difficulty is settled. Your compliance 
 with this will command the protection of the Wabash emj)loyes. 
 But in no case are you to consider this an intimidation. 
 
 " Held, that this was an unlawful interference with the man- 
 agement of the road by the receiver, and a contempt of court, for 
 which the writer should be punished." 
 
 The court, in passing upon the case, said : " The statement in. 
 all these notices that they are not to be taken as intimidation goes 
 to show beyond a doubt that the writer knew he was violaiing- 
 the law, and by this subterfuge sought to escape its penalty." 
 
 In Urdted States v. Kane, 23 Fed. Eep. 748, Judge Brewer, 
 after stating that " every man has a right to work for whom he 
 pleases, and go where he pleases, provided in so doing he does 
 not trespass on the rights of others," by way of illustrating what 
 is a threat, supposes that one of two workmen is discharged. The 
 other is satisiied with his employment and wishes to stay. The 
 discharged workman comes with a large party of his friends, 
 armed with revolvers and muskets, and says : " Now my friends 
 are here — you better leave — I request you to leave." In terms 
 there is no threat, but it is a request, backed by a demonstration 
 of force, intended and calculated to intimidate, and the man 
 leaves really because he is mtunidated. Again, armed robbers 
 stop a coach. One of their number politely requests the passen- 
 gers to step out and hand over their valuables, and they do so. 
 To the charge of robbery the defense is made that there was no 
 violence ; there were no threats ; there was only a polite request,.
 
 368 CO>'SPIKACY AT COMMON LAW — CONTINUED. 
 
 which was complied with. The court said that any jiidsje who 
 would recognize such a defense deserved to be despised, and the 
 €0urt was right. 
 
 In t^tate v. Glidden, 3 New Eng. Rep. 84-9, 55 Conn. 46, cited 
 hereinbefore, Judge Carpenter, speaking for the Supreme Court 
 of Connecticut, states that the defendants said in effect to the 
 publishing company : " You shall discharge men you have in 
 your employ, and you shall hereafter employ only such men as 
 we shall name. It is true, we have no interest in your business ; 
 we have no capital invested therein ; we are in no wise responsible 
 for its losses or failure ; we are not directly benefited by its suc- 
 cess ; and we do not participate in its profits — yet we have a right 
 to control its management, and compel you to submit to our dic- 
 tation." 
 
 The court said that the bare assertion of such a right was start- 
 ling ; that, if it existed, all business enterprises were alike subject 
 to the dictation and control of those who asserted it, and upon, 
 the same principle and for the same reason the right to determine 
 what business men shall engage in, and when and where and how 
 it shall be carried on, will be demanded, and must be conceded to 
 associations of workingmen of the class of tliose whom it would 
 be necessary to employ. The opinion in this case, although the 
 case itself arose upon an indictment for conspiracy, is a well con- 
 sidered discussion of the law with relation to boycotting. All 
 associations designed to interfere with the perfect freedom of em- 
 ployers in the proper management and control of their lawful 
 business, or to dictate in any particular terms upon which their 
 business shall be conducted, by means of threats, or by interfer- 
 ence with their property or traffic, or with their lawful employ- 
 ment of other persons, are pi'O tanto illegal combinations or asso- 
 ciations.' 
 
 A letter written by a " chairman " of an organized body to an 
 employe in a shop that he might remain in it to do a particular 
 
 ^Old Dominion 8. S. Co. v. McKenna, 30 Fed. Rep. 48; Johnston Harvester 
 Co. V. Meitihardt, 60 How. Pr. 168; Slaughter -Rouse Cases, 83 U. S. 16 
 Wall. 36, 116, 21 L. ed. 394, 421; Tarleton v. M'Gawley. Peake, *205; 
 Rafael Y. Verelst, 2 W. Bl. 1055; Lumley v. Gye, 2 El. & Bl. 216; Bowen 
 V. Hall, L. R. 6 Q. B. Div. 333, 337; Gregory v. Brunswick, 6 Man. & 
 G. 205; Gunter v. Astor, 4 Moore, 12. See Greeahood, Pub. Pol. 648, 653.
 
 STATUTES IN ENGLAND AND THE UNITED STATES. 369 
 
 kind of work, but to confine himself to work designated by the 
 writer, is an unwarrantable interference with the business.' 
 
 In the light of these authorities it is idle to talk about the de- 
 fendants' acts and publications as- mere incidents of a competition 
 set on foot by complainant's declaration that he would not employ 
 union printers ; that the publications are shielded by constitutional 
 guaranties ; or that, viewed in the most unfavorable light, they 
 are nothing more than libels, and the only remedy for any injury 
 resulting is by an action at law. 
 
 It is claimed that the recital in the aflidavit of Davis of what 
 was said to him by the managers of the advertising department of 
 Mabley & Carew 'and of F^chheimer Bros. & Co., when they 
 withdrew their patronage from The Commonwealth, to wit, that 
 it was because they had been visited by a committee of the Typo- 
 graphical Union, and were threatened with the loss of business, 
 ought not to be considered, because it is hearsay. 
 
 There are two answers to this claim : 
 
 First. What was said is clearly admissible as part of the res 
 gestce, to show the state of mind of the persons in doing the act 
 which their declarations accompanied. 
 
 Second. Upon the hearing of a motion for a preliminary injunc- 
 tion, the rules of evidence are applied less strictly than upon the 
 final hearing of the cause, and consequently evidence that would 
 not be competent in support of an application for a perpetual 
 injunction should be admitted.* 
 
 The reason for the rule is plain. Probability of right is suffi- 
 <iient to authorize a preliminary injunction. In many cases it is 
 granted to preserve property in statu quo during the pendency 
 of a suit in which the rights to it are to be decided, and that with- 
 out expressing, and oftentimes without having the means of form- 
 ing, any opinion as to such rights.' 
 
 The rule, with the reason for it, applies with peculiar force 
 when it is sought to exclude the statements referred to from con- 
 sideration. The advertising managers made haste to deny that 
 
 ^Be Wabash R. Co. 24 Fed. Rep. 220. 
 
 '^Buck V. Herinance, 1 Blatchf. 322; MattJieios v. Iron Clad Mfg. Co. 19 Fed. 
 
 Rep. 321. 
 ^Oreat Western R. Co. v. Birmingham & 0. J. R. Co. 2 Phil. Ch. 597. 
 
 2i
 
 370 CONSPIRACY AT COMMON LAW CONTINUED. 
 
 any threats were uttered to them by anybody representing the- 
 Typographical Union. They did not, however, set forth what 
 was said, nor did they deny that they withdrew their advertise- 
 ments from The Commonwealth, nor intimate any reason for so 
 doing other than that stated by Davis. It is not now the proper 
 occasion to consider fully what promj)ted their denials. That, 
 in the judgment of the court, should be reserved until the final 
 hearing, after full opportunity to cross-examine Davis upon the 
 one hand, and the advertising managers who made the denials 
 upon the other hand, and to present to the court a full showing 
 of all that was said when they were called upon by the committee 
 of the Union. 
 
 The motion for a temporary injunction, to continue in force 
 until the final decree, was granted. 
 
 Where a trade union and others form a combination to coerce 
 an employer to employ or discharge hands, or to pay the fine of 
 an employe due the union, by sending out notices to customers 
 and materialmen of such employer to withdraw their patronage 
 from him, and threatening, if this is not done, to forbid members 
 of the union working upon material furnished to, or for contract- 
 ors dealing with the employer, such action constitutes an unlaw- 
 ful conspiracy. 
 
 One whose business is injured by notices sent out by a trade 
 union that, unless he discontinues sales of lime to a certain per- 
 son, members of the union will be ordered not to work his material 
 upon any building or for any contractor, has a right of action 
 against the union and all persons engaged in the unlawful con- 
 spiracy, for the loss occasioned thereby.' 
 
 In Oregon the intimidation of employer or employe is made 
 indictable." 
 
 In Pennsylvania provision is made for a board of arbitration.* 
 Notice of an intention to discharge an employe is required, 
 where such notice is exacted from employe. * 
 
 ^Moores v. Bricklayers Union No. 1 (Super. Ct. Cin.) 7 Ey. & Corp. L. J. 
 
 108. 
 'Hills Annotated Law.s, 1887, Criminal Code, title 2, g 1893. 
 ^Brightly Purdon's Digest (ed. 1885), p. 114. S§ 67-177. 
 ^Acts 1887, chap. 123, §§ 1, 3.
 
 STATUTES IN ENGLAND AND THE UNITED STATES. 371 
 
 Associations of emjDloyes are chartered by the Act 1889, chap. 
 215, sections 1-7. 
 
 Meeting of associations of mechanics are declared lawful. 
 
 § 1. It shall be lawful for any and all classes of mechanics, journey- 
 men tradesmen and lal)orers to form societies and associations for 
 their mutual aid, benefit and protection, and peaceably to meet, 
 discuss and establish all necessary by-laws, rules and regulations 
 to carry out the same. . . . Provided the i3rovisions of this 
 Act shall not apply to the counties of Clearfield and Centre.* 
 
 Strikes not conspiracies. § 2. It shall be lawful for any laborer 
 or laborers, workman or workingmen, journeyman or journeymen, 
 acting either as individuals or as the member of any club, society 
 or association, to refuse to work or labor for any person or persons, 
 whenever in his, her or their opinion the wages paid are insufli- 
 cient, or the treatment of such laborer or laborers, workman or 
 workingmen, journeyman or journeymen, by his, her or their em- 
 ployer is brutual or oifensive, or the continued labor by such 
 laborer or laborers, workingman or workingmen, journeyman or 
 journeymen, would be contrary to the rules, regulations or by- 
 laws of any club, society or organization to which he, she or they 
 might belong, without subjecting any person or persons so refus- 
 ing to work or labor, to prosecution or indictment for conspiracy, 
 under the criminal laws of tliis Commonwealth. . . . Pro- 
 vided that nothing herein contained shall prevent the prosecution 
 and punishment under existing laws, of any person or persons 
 who shall in any way hinder persons who desire to labor for their 
 employers from so doing, or other persons from being employed 
 as laborers. 
 
 § 3. The . . , proviso in . . . section [above] 
 . . . shall be so construed, that the use of lawful or peace- 
 ful means, having for their object a lawful purpose, shall not be 
 regarded as "in any way hindering" persons who desire to labor, 
 and that the use of force, threat or menace of harm to persons or 
 property shall alone be regarded as in any way hindering persons 
 who desire to labor for their employers from so doing, or other 
 persons from being employed as laborers.^ 
 
 'Brightly Purdon's Digest (ed. 1885), p. 1172, § 1. 
 'Brightly Purdon's Digest (ed. 1885), p. 1172, ^g 2, 3.
 
 372 CONSPIRACY AT COMMON LAW — CONTINUED. 
 
 And it is held by the courts that a workingraen's organization 
 to secure the payment of higher wages is not unlawful so long as 
 it seeks the accomplishment of its purpose by fair persuasion.' 
 
 The combining to lay out new townships without authority 
 granted by the State is indictable as a conspiracy. * 
 
 In Rhode Island the law forbids the intimidation of employes,' 
 or obstructing business, etc." It is also declared unlawful to 
 require notice from an em])loye of his intention to leave the 
 employer under penalty of forfeiting his wages. * 
 
 In South Carolina labor associations are authorized by Gen. 
 Stat. 1882, chap. 39, § 1376. 
 
 South Dakota forbids intimidation of an employe, " and the 
 employer is also protected by section 734. 
 
 In Tennessee it is unlawful to threaten to or actually dis- 
 charge an employe for trading, or dealing, or for not trading or 
 dealing, as a customer or patron with any particular merchant or 
 other person or class of persons in any business calling. ' 
 
 It is unlawful to dictate to employes the selection of a physi- 
 cian. * 
 
 In Texas it is an unlawful assembly, if three or more persons 
 assemble to prevent any person from pursuing any labor or em- 
 ployment, or to intimidate him or interfere in any manner with 
 his labor or employment. ^ 
 
 If the persons unlawfully assembled together by engaging in a 
 riot, prevent anyone from engaging in any labor or employment 
 it is criminal." 
 
 So the intimidation of employes is forl)idden." 
 
 The wages of railway employes cannot be reduced, except 
 
 ^McCandless v. O'Brien (Pa. C. P.) 21 Pittsb. L. J. N. S. 435. 
 
 «Act of April 11, 1795; Com. v. Franklin, 4 U. S. 4 Dall. 255, 1 L. ed. 823. 
 
 ^Public Statutes 1882, chap. 241, § 8. 
 
 "Public Statutes 1882, chap. 242, § 40. 
 
 • Acts 1886, chap. 571, § 1. 
 
 « Revised Code, Dakota, 1883, Penal Code. chap. 57, § 733. 
 
 •> Acts 1887, chap. 208, ^g 1-3. 
 
 « Acts 1889, chap. 259, §§ 1-3. 
 
 « Rev. Stat. 1879, Penal Code, title IX. §§ 279. 289. 
 
 'ORev. Stat. 1879, Penal Code, title IX. §§ 295, 304. j 
 
 "Acts 1887, chap. 18, § 1.
 
 STATUTES IN ENGLAND AND THE UNITED STATES. 373 
 
 after 30 days' notice, if employe 15 days after notice either 
 accept or decline such reduction. ' 
 
 The intimidation of railroad employes is made a crime. ' 
 
 In Vermont, intimidation to prevent employment in mill, 
 manufactory, shop, mine or railroad, subjects to fine or imprison- 
 ment. One who by himself or in combination with others drives 
 another away and prevents his accepting or prosecuting work, 
 with the purpose to accomplish this result, shall be imprisoned or 
 fined. '' 
 
 In Wisconsin, under the title of conspiracy, it is provided 
 that any two or more persons who shall combine, associate, agree, 
 mutually undertake or concert together for the purpose of will- 
 fully or maliciously injuring another in his reputation, trade, 
 business or profession by any means whatever, or for the purpose 
 of maliciously compelling another to do or perform any act against 
 his will, or preventing or hindering another from doing or per- 
 forming any lawful act, shall be punished by imprisonment in the 
 county jail not more than one year, or by fine not exceeding five 
 hundred dollars. ^ 
 
 In that State conspiracy to do an illegal thing is actionable if 
 injury proceed from it; and where the illegal purpose has been 
 executed, it is false and malicious, wherever the motive for the 
 conspiracy to execute it was false and malicious. * 
 
 Blacklisting is unlawful; ^ and so also is the intimidation of 
 employes, injuring property, etc. ' 
 
 Wyoming. Eevised Statutes of 1887, title 7, §§ 589, 590, 599,, 
 authorize the incorporation of Knights of Labor. The Constitu- 
 tion, art. 5, § 28, authorizes courts of arbitration. 
 
 The Statutes of the United States define the crime of conspiracy 
 as an unlawful agreement to do some act which is declared a 
 crime by some other statute. See ante^ section 52, for recent Act 
 
 ' Acts 1887, chap. 30, {;§ 1, 3. 
 ^ Acts 1887, chap. 92, §§ 1-2. 
 " Rev. Laws 1880, chap. 196, §§ 4226-4227. 
 " Acts 1887, chap. 287, § 1. 
 
 *■ SmiiJi V. Nippert, 76 Wis. 86; Acts 1887, chap. 286. § 1. 
 « Acts 1887, chap. 349, § 1. 
 ' Acts 1887, chap. 427, §§1,3.
 
 37i CONSPIRACY AT COMMON LAW CONTINUED. 
 
 of Congress. ' The agreement bj two or more persons to do an 
 unlawful act, or to do a lawful act in an illegal manner, constitutes 
 an existing conspiracy when an act is done in carrying out the 
 agreement. " The crime of conspiracy is declared infamous; and 
 is prosecuted by indictment in the United States courts, ' but a 
 conspiracy to counterfeit coin is not within this section." 
 
 So far as the United States government has attempted legisla- 
 tion it is directed against attempts to defraud the government. * 
 To deprive others of civil rights. " To impede the administration 
 of justice. ' Against the authority of tlie United States.* To 
 cast away vessels. ' The common law has no recognition in the 
 federal courts. 
 
 Every officer or agent, appointed and acting under the authority 
 of any revenue law, conspiring or colluding with any other person 
 to defraud the government, is guilty of a misdemeanor." A con- 
 spiracy to deprive a citizen of his right to settle on public lands is 
 punishable." 
 
 A combination or agreement taking effect to injure, frighten, 
 intimidate or drive from the country the Chinese legally settled 
 here, if there be forcible resistance of the national government, 
 is within the offense defined as a conspiracy in preventing or 
 retarding the taking effect of a law of the United States." 
 
 The acts of all the public meetings throughout the land looking 
 to, and providing for, depriving Chinese subjects of the rights, 
 privileges, immunities, and exemptions secured to them by our 
 
 1 Revised Statutes, § 440; Re Wolf, 27 Fed. Rep. 606; United Stales v. 
 
 Watson, 17 Fed. Rep. 145. 
 « United States v. Wootten, 29 Fed. Rep. 702. 
 
 » Revised Statutes U. S. § 5508; United States v. Btitler, 4 Hughes, 512. 
 * United States v. Burgess, 3 McCrary, 278. 
 « Sec. 1342, Art. 60, Rev. Stat. (2d ed.) 1878, § 1624, Act 14, §§ 3169, 
 
 3490, 5438, 5440, chap. 8, Sup. Rev. Stat. vol. 1, 1881, p. 484. 
 « §§ 1980, 1981, 5506, 5508, 5509, 5518, 5519, 5520. 
 ■> §^ 5406, 5407. 
 8 §^5299, 5336. 
 « ^ 5364. 
 ">U. 8. Rev. Stat, g 3169; United States v. Bahcock, 3 Dill. 566; United 
 
 States V. McKee, 3 Dill. 546; United States v. McDonald, 3 Dill. 543. 
 " United States v. Waddell, 16 Fed. Rep. 221. 
 '«U. S. Rev. Stat. ^ 5336; Baldwin v. Franks, 120 U. S. 678, 30 L. ed. 766; 
 
 Re Baldwin, 27 Fed. Rep. 187; Re Impaneling and Instructing Grand 
 
 Jury, 26 Fed. Rep. 749.
 
 STATUTES IX ENGLAND AND THE UNITED STATES. OiO 
 
 treaties with China, bv means popnhirly knovrn as " boycotting.'" 
 or any other coercive means, no matter in what form, or through 
 what channels appHed, are criminal, and all those participatmg in 
 them must be subject to the very severe penalties denounced by 
 the statute. ' 
 
 A conspiracy to acquire a settlement on Indian lands is not 
 indictable.* 
 
 An agreement to cast away or wreck a vessel comes within the 
 definition of conspiracy.^ 
 
 The act of any one of the conspirators in carrying out the pur- 
 pose to defraud the government will render all liable for the crime." 
 
 A conspiracy to interfere with the free exercise of the right to 
 vote at elections for federal otRcers is punishable. * 
 
 Such an interference with the right of a colored man. accom- 
 panied by personal violence is punishable under that section and 
 sections 550S, 5520, when it results from a conspiracy formed to 
 accomplish the prohi1>ited purpose.* So a conspiracy to deprive 
 anyone of the equal protection or privilege under the laws Ls 
 punishable. ' As to the operation of the law within the State, see 
 BaMwin v. Franl:^, 120 U. S. 67S. 30 L. ed. 766. Section oUO 
 <?overs a conspiracy by Indians against the government. * 
 
 A board of arbitration between railroads or between other 
 transportation companies engaged in interstate commerce and 
 
 ^Re BaMirin, 27 Fed. Rep. 193. 
 ^United States v. Payne, 22 Fed. Rep. 426. 
 
 »U. S. Rev. Stat. § 53(>4: United States v. Hand. 6 McLean, 274; 
 United States v. CoU, 5 McLean, 513. 
 
 ^Rev. Stat. U. S. j; 5440; United States v. Brtiton, 108 U. S. 199, 27 L. ed. 
 703; United States v. Hirsch, 100 U. S. 33. 25 L. ed. 539; United States v. 
 HaTiummd, 2 WiX)ds, 197; United States v. Frisbie, 28 Fed. Rep. 808; 
 United S'ate-s v. FehrenbaeJc, 2 Woods. 175; United State^s v. Donau, 11 
 Blatchf. 168; United States v. Dennee,S Woods. 47; United States v. Boy- 
 den, 1 Low. 2(>6; Re Wolf, 27 Fed. Rep 606; United States v. Watstm. 17 
 Fed. Rep. 145; United States v. Sinche, 7 Fed. .Rep. 715; The ^fussel 
 Slough Case, 5 Fed. Rep. 6S0; United States v. Saeia, 2 Fed. Rep. 754. 
 
 ^Revised Statutes U. S. § fiSOe; United States v. Reese, 92 U. S. 214. 23 L. ed. 
 563; Sttlev v. AVxw, 2 Woods, 368; United States v. Cruikshank, 92 U. S. 
 542, 23 L.' ed. 588. 
 
 *Ex parte Yarbrough, 110 U. S. 651, 2S L. ed. 274. 
 
 ' U. S. Rev. Stat. ^ 5519; United States v. Uarris. 106 U. S. 629, 72 
 L. ed. 290; Re Baldwin, 27 Fed. Rep. 187. 
 
 * Re Wolf, 27 Fed. Rep. 606.
 
 376 CONSPIRACY AT COMMON LAW — CONTINUED. 
 
 their employes, may be agreed npon and power is given sucb 
 board to compel the attendance of witnesses.' 
 
 The Alien Contract Labor Law, forbidding the bringing of 
 aliens to this country under labor contract, Acts 1884-85, chap. 
 164, was amended by chap. 351, Acts 1890-91, and was added to 
 by chap. 220, Acts 1886-87, also added to by chap. 1210, Acts 
 1887-88. ' 
 
 The incorporation of National Trades Unions is authorized for 
 the purpose of aiding its members to become more skillful work- 
 men, promote their general intelligence, elevate their character, 
 regulate their wages and hours and conditions of labor. The pur- 
 pose of their organization also includes the protection of their 
 individual rights in the prosecution of their trade, raising funds 
 for the benefit of the sick, disabled and unemployed, and for 
 families of deceased members, and for such other objects for 
 which working people may lawfully combine, having in view their 
 mutual protection or benefit. ^ 
 
 It was assumed in Co?n. v. Sheriff, 15 Phila. 393, that prior to 
 the acts of the Pennsylvania Legislature, it would have been 
 unlawful for workmen to combine, organize and adopt resolutions, 
 having for their object the increase of wages, or the consideration 
 to be paid for labor, if the effect of such combination might be to 
 prejudice the interests of the community and miglit tend to injure 
 individuals in their business by causing the employed to cease to 
 work for an employer, and thus compel him to submit to a book 
 or standard of prices which had been fixed by workingmen who- 
 had combined and organized for tliat purpose. And it was said 
 that nearly all the law of England, which had been adopted in 
 this country touching organizations and combinations of work- 
 ingmen to regulate wages,' has been swept away by the statute, 
 that it is, therefore, since the statute, no longer unlawful for the 
 representative of a labor society or organization, to demand from 
 a firm of employers an increase of wages for their employes, with 
 notice that refusal will result in a strike of the workmen, followed 
 by such representatives going together to the workshop of the- 
 employers and notifying the journeymen that a strike was ordered. '^ 
 
 ' Acts 1887-88, chap. 1063, p. 501, §§ 1-11. 
 
 5 Acts 1890-91, chap. 551, p. 1084, §^ 1-11. 
 
 3 Acts of Congress 1885-86, chap. 567, p. 86, §| 1-5. 
 
 * See also Mayer v. Journeymen Stonecutters' Aiso. 47 N. J. Eq. 519.
 
 STATUTES IN ENGLAND AND THE UNITED STATES. 37T 
 
 Mr. Gladstone, on December 10, 1891, at the opening of the 
 National Liberal Federation Conference, held in Memorial Hall, 
 Farringdon Street, London, urged the abolition of the common 
 law against conspiracy. This law, he said, had given rise to pro- 
 ceedings that were adverse to the liberties of the people. In the 
 course of his remarks he stated, as part of the Liberal program for 
 future legislation : 
 
 " We must provide for the rural population of Great Britain as 
 well as for the same class in Ireland. Nothing must be a crime 
 which relates to the prosecution of labor interests, or because it is 
 done by a combination of men, unless it is an offense against the 
 letter and the spirit of the law." 
 
 This is a correct statement of the tendency of Liberal legis 
 lation proposed in England.
 
 CHAPTEB XY. 
 
 CONSPIRACY AT COMMON LAW— CONTINUED. 
 
 § 76. Legislation Affecting Common Lmv Concerning Comhiiiations 
 among Workmen. 
 
 77. Present Condition of the Law Concerning Trade or Labor 
 
 Combinations, "Picketing," " Boycotting. ^^ 
 
 78. Indictments for Consinracy. 
 
 79. Evidence in Consinracy. 
 
 § 76. Legislation Affecting Common Law Concerning Com- 
 binations among Worlimen. — It may well be questioned, 
 whether the legislation referred to in the preceding chapter has 
 materially changed the common law as it existed in this country, 
 regarding labor organizations, and their relations to and influence 
 upon the compensation to be paid for work, and the efforts to give 
 force to this influence by the peaceful withdrawal of employes on 
 their organized demands being refused, and by a strike declared. It 
 is an imdoubted rule of the common law, that it is criminal to con- 
 federate and combine together, by concerted means, to do that 
 which is unlawful or criminal, to the injury of the public, or parties 
 or classes of the community, or even to the right of an individual. 
 But because a combination of workingmen to raise their wages was 
 deemed in the middle of the fourteenth century unlawful, as prov- 
 ing itself to result injuriously to classes of the community in Eng- 
 land, it does not follow that it will be ecpially unlawful here, 
 where we have no class legislation, and where our free institutions 
 invite all, who as citizens stand on a common level — to unite aud 
 associate themselves together for the purpose of bettering their 
 condition in every respect, moral, social or financial : where the 
 highest purpose of self government is to develop and elevate man- 
 hood and free it from all trammels of tradition, drawing the line 
 only where freedom is overpowered by license. 
 
 Indeed the common law precedents, decisions and statutes from 
 the middle of the fourteenth century until 1S.59, and the succeeding 
 •changes in 38 and 39 Victoria, chap. 86, passed in 1879, must be 
 
 378
 
 LEGISLATION AFFECTING CO:\[MON LAW. 379 
 
 'Considered in relation to tlie then existino- condition of society 
 and its demands. Tlie principle of tlie common law was then, as 
 now, that conspiracy consisted in a combination to do a wrongful 
 or unlawful act to the injury of the public or a portion thereof, 
 but what constituted an unlawful act to the injury of the public, 
 then, as now, depended upon social conditions and relations. It 
 would be unreasonable indeed to insist that we must accept such 
 precedents as "applicable to our local situation and circumstances," 
 when in England, with advancing civilization, and the growing 
 recognition of popular rights, legislation has from time to time 
 liberalized the practice there. All the laws of the parent country, 
 whether rules of the common law as illustrated in practice, or 
 ■early English statutes, which were made for the purpose of regu- 
 lating the wages of laborers, the settlement of paupers, and mak- 
 ing it penal for anyone to use a trade or handicraft to which he 
 had not served a full apprenticeship — not being adapted to the 
 circumstances of our colonial condition, which recognized the 
 equal rights of all as fully before as after the Declaration of Inde- 
 pendence, were not adopted, used or approved, and therefore do 
 not come within the description of the laws adopted and confirmed 
 by the constitutions of the various states.' 
 
 In determining, therefore, what the~common law of this country 
 is, as to organizations of workingmen and organizations of em- 
 ployers, whose result is to influence compensation to be paid for 
 labor, we have simply to assume primarily, that all and each of 
 such organizations for mutual benefit and advancement are law- 
 ful, and that all means used to promote their objects are lawful, 
 until it is show^n that the practical result of the association is, tak- 
 ing the good and evil together, injurious to the public or the par- 
 ties, or to portions of the community, or to the rights of the 
 individual. It is simply a question of fact, which cannot be 
 determined by English precedents made under different condi- 
 tions. As evidence upon this question of fact, the express legis- 
 lation of the great labor states of this country, where the results 
 of experience have been embodied in statutes, and the modern 
 legislation in England, whose present purpose is in harmony with 
 
 Womy. Hunt, 4 Met. Ill; State v. Stewart, 4 New Eng. Rep. 378, 59 Vt. 
 273.
 
 380 CONSPIKACY AT COMMON LAW — CONTINUED. 
 
 onr own, is of great value, and in the absence of direct legislation 
 in any State upon the entire subject may, perhaps, be accepted as 
 a fair statement of existing American common law on this sub- 
 ject. The aim of such legislation has been to mark the point 
 where combined action on the part of those employing labor, or 
 by those employed, became unlawful, because the evil resulting 
 therefrom to the public, or to portions of the community, or to 
 individuals, exceeded whatever of individual or collective good 
 might result to the combiners. The continued increase of such 
 legislation has afforded evidence of its success as a statutory ex- 
 pression of the common law, as applicable to our circumstances 
 and conditions. 
 
 This view is given practical expression in State v. Steioart 
 4 New Eng. Eep. 378, 59 Vt. 273, where it is declared that 
 in England and in this country it is lawful — and it may be added 
 commendable — for any body of men to associate themselves to- 
 gether for the purpose of bettering their condition, and the very 
 genius of free institutions invites them to higher levels and better 
 fortunes. They may dictate their own wages, fraternize with 
 their own associates, choose their own employers, and serve man 
 and mammon according to the dictates of their own conscience. 
 It is recognized that all the legislation and course of judicial de- 
 cision in England and America has been progressively in the 
 direction of according to laborers the enjoyment of equal rights 
 with others, and to-day in England and here, workingmen stand 
 upon the same broad level of equality before the law with all the 
 other vocations, professions or callings whatsoever, respecting the 
 disposition of their labor and the advancement of their associated 
 interests. Here, as there, it is unlawful for employers to coerce,, 
 intimidate or hinder the free choice of workmen in the disposal 
 of their time, skill and talents. There, as here, it is unlawful for- 
 workmen wrongfully to coerce, intimidate or hinder employers in 
 the selection of such workmen as they choose to employ. 
 
 In Springhead Spinning Co. v. Riley ^ L. K. 6 Eq. 551, de- 
 fendants, officers of a trade union, notified workmen by placards 
 and advertisements, that they were not to hire themselves tO' 
 plaintiffs pending a dispute between the union and the plaintiffs.. 
 The bill prayed an injunction to restrain the issuing of the pla-
 
 LEGISLATION AFFECTING COMMON LAW. 381 
 
 ■cards and advertisements, allegincy that by means thereof the 
 defendants had in fact intimidated and prevented the workmen 
 from hiring themselves to plaintiffs, and plaintiffs were thereby 
 prevented from continning their business, and the value of their 
 property was seriously injured and materially diminished. Held, 
 upon demurrer, that the acts of defendants, as alleged in tlie bill, 
 amounted to a crime, and that the court would interfere l)y in- 
 junction to restrain such acts, as they also tended to the destruc- 
 tion or deterioration of the property. 
 
 In the case of Reg. v. Drvitt, 16 L. T. K S. 855, it was laid 
 down as law by Mr. Baron Bramwell, that it was not illegal for 
 workmen to combine together to regulate the amount of wages, 
 so long as they used no threats or violence to prevent other men 
 from hiring themselves. 
 
 In Skinnei' v. Kitch, L. R. 2 Q. B. 393, where a master builder 
 received notice from a carpenters' union, that four of his men 
 who belonged to the union would be ordered to leave his employ- 
 ment unless a fifth workman, also in his employ, became a mem- 
 oer of the union, it was decided that the secretary of the union 
 was guilty of having by threats endeavored to force the employer 
 *'to limit the description of his workmen." A conspiracy to force 
 the discharge of certain workmen under threat to quit the employ- 
 ment if it is not done, is unlawful.' 
 
 Baron Bramwell in the case of Beg. v. Drnitt, 16 L. T. X. S- 
 855, in his direction to the jury said that "every man is at liberty 
 to induce others" by persuasion or otherwise, to enter into a com- 
 bination to keep up the price of wages or the like; but directly 
 he enters into a combination which has, as its object, intimidation 
 •or violence, interfering with the jDerfect freedom of action of 
 another man, it then becomes an offense, not only at common 
 law, but also an offense punishable by the express enactment of 
 the Act of 6 George lY., chap. 129. 
 
 In England, as here, no employer can say to a workman, he 
 must not work for another employer; nor can a workman say to 
 :an employer, he cannot employ the services of another workman. 
 
 ^State V. Donaldson, 32 N. J. L. 151; Reg. v. Rowlands, 17 Q. B. 671; Reg. 
 V. Banks, 13 Cox, C. C. 393; Reg. v. Bunn, 12 Cox, C. C. 316; Collins v. 
 Hayte, 50 111. 355; Com. v. Hunt, 4 Met. Ill: Hooker y. Vandewater, 4c 
 Denio, 349; People v. Trequier, 1 Wheel. Crim. Cas. 151.
 
 382 CONSPIRACY AT COMMON LAW CONTINUED. 
 
 While the law accords liberty to the one, it accords a like liberty 
 to every other one, and all are bound to so use and enjoy their 
 own liberties and privileges as not to interfere with those of their 
 neighbors. The labor and skill of the workman, the plant of the 
 manufacturer, the equipment of the farmer, the learning, skill and 
 experience of the professional man, the skilled artisan or artist, 
 are in an equal sense property. Every man has the light to 
 employ his talents, industry and capital as he pleases, free from 
 the dictation of others; and if two or more persons combine to 
 coerce his choice in this matter, it is a criminal conspiracy, whether 
 the means employed are actual violence or a species of intimida- 
 tion which works upon the mind. The law in this country and 
 in England forbids an interference with the property rights of 
 third persons, or any restraint upon the lawful prosecution of their 
 industries, as well as any unlawful control over the free use and 
 employment by workmen of their own j^ersonal skill and labor, at 
 such times, for such prices, and for such purposes as they please. 
 In the first count of the indictment in State v. Stewart^ 4 New 
 Eng. Rep. 378, 59 Vt. 273, an unlawful conspiracy and agree- 
 ment was charged to prevent, hinder and deter by violence, 
 threats and intimidation the Ryegate Granite Works from retahi- 
 ing and taking into its employ O'Rourke, Goodfellow and others. 
 In the second count, after relating the malicious intent to control, 
 injure, terrify and impoverish the Granite Company, the pleader 
 charges an unlawful conspiracy and agreement to terrify, frighten, 
 intimidate and drive aw^ay by threats and intimidation O'Rourke, 
 Goodfellow and others, who were then and there workmen and 
 laborers of such company. These counts were held to sufficiently 
 charge a conspiracy at common law, by means unlawful under 
 the statute. The third and fourth counts set forth more particu- 
 larly the methods adopted to interfere with the prosecution of its 
 business by the company. They charge the defendants with an 
 intent to prevent the prosecution of the work of that company by 
 threatening O'Rourke, Goodfellow and others, that the Ryegate 
 Granite Works were "scab shops," all workmen therein were 
 "scabs," and their names would be published in the "scab" list in 
 the Granite Cutters' Journal, and that they should be shunned 
 and not allowed to work with other granite cutters, and would be
 
 LEGISLATION AFFECTING COMMON LAW. 388 
 
 disgraced in the craft, etc., by all which O'Kourke, Goodfellow 
 and others were frightened and driven away from said shop. 
 These counts were held sufficient. 
 
 In SiaU v. Glidden, 3 New Eng. Kep. 849, 55 Conn. 46, the 
 court sustained an indictment for a conspiracy which charged that 
 the defendants conspired to threaten and use means (the boycott) 
 to intimidate the Carrington Publishing Company, to compel it 
 against its will to abstain from doing an act (to keep in its employ 
 workmen of its own choice) which it had a legal right to do, and 
 to do an act (employ the defendants and such persons as they 
 should name), which it had a legal right to abstain from doing. 
 As* charged in the information, the defendants' purpose was to 
 deprive the publishing company of its liberty to carry on its busi- 
 ness in its own way, although in doing so it interfered with no 
 right of the defendants. The motive was to gain an advantage 
 unjustly and at the expense of others, and therefore the act was 
 legally corrupt. As the means of accomplishing the purpose, the 
 parties intended to harm the publishing company, and therefore it 
 was malicious. 
 
 " All conspiracies whatsoever, wrongfully to prejudice a third 
 person, are highly criminal at common law.'" 
 
 It was held, however, in People v. Petherara^ 1 "West. Rep. 
 592, 64 Mich. 252, that such a statute does not require malice to 
 be shown against the owner of the business disturbed, or his prop- 
 erty, in the same sense as does the common law in cases of mali- 
 cious mischief. These statutes, it is said, were passed to prevent 
 and punish a course of proceedings for the punishment of which 
 the common law furnished no precedents, as they are of compara- 
 tively recent origin. The offense consists in the commission of cer- 
 tain acts, or in conspiring to commit the same; and the manner of 
 committing them may furnish, if unexplained, a sufficient proof 
 of the malice necessary under the statute, to be proven in the 
 same way as malice is established in other cases. Thus when a 
 man commits an act unaccompanied by any circumstances justify- 
 
 '1 Hawk. P. C. chap. 72, § 2; 3 Chitty. Grim. L. 1138; Archb. Grim. Pr. 1830; 
 C'arewY. Rutherford, 106 Mass. 1; Gibson, Ch. J., in Com. v. Carlisle, Jour- 
 nal, Jurisp. 225; iMith v. People, 25 111. 17; Com. v. Hunt, 4 Met. Ill, 
 128; Mogul S. S. Co. v. McGregor, L. R. 15 Q. B. Div, 476; Springhead; 
 Spinning Co. v. Riley, L. R. 6 Eq. 551.
 
 384: CONSPIRACY AT COMMON LAW — CONTINUED. 
 
 ing its commission, the law presumes tliat he acted advisedly and 
 with an intent to produce the consequences which have ensued. 
 
 After the enactment of the Statute in 1870, it was held in 1886 
 that the orderly and peaceable assembling or co-operation of per- 
 sons employed in any calling, trade or handicraft, for the purpose 
 ■of obtaining an advance in the rate of wages and compensation, or 
 of maintaining such rate, is not a conspiracy. Laboring men may 
 lawfully do this, provided they do not extend the purpose or 
 result of the combination to prevent other people from working 
 at prices to suit themselves.' So also in Pennsylvania.* 
 
 Employes may stop working, if their employer unjustly refuses 
 to accede to their just demands. They may do their utmost, "by 
 speech, writing, suasion, appeal, and in every other lawful way, 
 to persuade their fellow workingmen not to fill their places, nor 
 to aid their late employer in his unjust stand.' But if others, 
 despite their appeals, determine it is their own interest to fill the 
 vacant places at the prices ofiiered, it is unlawful and a criminal 
 conspiracy for the combination or its agents to coerce them 
 by threats, or intimidation, or violence.* That no actual violence 
 was used where men, in pursuance of a consj^iracy, congregated 
 about the door of a bakery and distributed circulars to passers-by, 
 will not relieve the actors from the charge of criminal conspiracy, 
 if what they did amounted in effect to intimidation of such passers, 
 ■or of the proprietor of the bakery.* In the Theiss Boycott Cases, 
 the distribution of circulars by combined effort in places of busi- 
 ness, to intimidate customers or to injure the proprietors, is 
 declared punishable as conspiracy. 
 
 In an indictment for extortion, where the conviction was re- 
 versed by the general term of the supreme court of K^ew York, 
 N'oveml)er 30th, 1891,° the indictment charged the defendant with 
 having obtained a check for the sum of $100, and of the value of 
 that amount, from Abraham Fopkin and Abraham Marks, who 
 
 ^People V. Wikig, 4 N. Y. Crim. L. Rep. 403. 
 
 ^Com. V. Denny, Lewis, Crim. Law. 625. 
 
 3See also Reg. v. Hibhert, 13 Cox, C. C. 82; Reg. v. Shepherd, 11 Cox, C. C. 
 
 325; Reg. v. DruiU, 10 Cox, C. C. 592. 
 ^People V. Wilzig, 4 N. Y. Crim. L. Rep. 418. 
 ^People V. Kostka, 1886, 4 N. Y. Crim. L. Rep. 429. 
 "^People V. Baronckss, 41 N. Y. S. R. 659.
 
 LEGISLATION AFFECTING- COMMON LAW. 385 
 
 were copartners in trade, carrying on business in the city of 
 New York as cloak manufacturers, by means of a threat made by 
 Mm to tliem to do an unlawful injury to their property, that is to 
 say, to injure and destroy their business and prevent and hinder 
 them from carrying on the same. It appeared by the evidence 
 that these two persons were cloak manufacturers, emploj'ing a 
 large number of persons in that business, and that in January, 
 1891, a strike took place, by which the persons in their own im- 
 mediate neighborhood and those employed by contractors with 
 them refused to work until a more satisfactory arrangement might 
 be made for their compensation. While these persons were on 
 their strike the firm employed others to manufacture their gar- 
 ments, who were either non-union persons or else engaged in the 
 employment in violation of the rules of their union. And efforts 
 were made to arrange and agree upon terms which would be sat- 
 isfactory to the individuals who were out upon the strike and 
 would induce them to resume theii* former employment. And in 
 the course of these proceedings the defendant acted on behalf of 
 the jDersons who were engaged or combined in the strike. He 
 acted as their representative and was the manager of the Cloak- 
 maker's Union. With him also were associated other persons as 
 a committee, who participated in the negotiations had with the 
 members of this firm, Popkin & Marks. A result was reached by 
 which a scale of prices was agreed upon and assented to by the 
 defendant on or about the Slth of January, 1891. But they 
 proved to be unsatisfactory to the individuals engaged in the 
 strike, and further negotiations continued to obtain more advan- 
 tageous terms by way of compensation for the services of the in- 
 dividuals included in the strike. These were finally obtained on 
 the 9th of February, 1891, and it was agreed that the former em- 
 ployes of the firm should return to their work, provided the firm 
 discharged the persons from their service who in the meantime 
 had been employed by them. 
 
 The members of the firm consented to this condition, as well as 
 the scale of prices, and discharged the persons from their employ- 
 ment who were not members of the union, or who as members 
 had been engaged in then- employment in violation of the rules or 
 regulations of the order. But the persons who had been upon the 
 25
 
 386 CONSPIRACY AT COMMON LAW CONTINUED. 
 
 strike did not return to the services of the firm. And evidence 
 was given upon the trial of the indictment by Mr. Popkin to the 
 effect that he inquired of the defendant why it was that these per- 
 sons had not resumed their employment, as that had been arranged 
 between them and the members of the firm. And his evidence is 
 that the defendant then informed him that the persons who had 
 been upon the strike did not return to the employment of the firm 
 for the reason that Popkin had not settled with the defendant. 
 "What kind of a settlement have I got with you ? I don't owe 
 you any money." And then the reply was, "You have got to 
 pay me five hundred dollars to have your people back again to 
 work. ... If you want to have your people back again to 
 work, you have got to pay me that amount of money." "I told 
 him I didn't know what for. Finally he said to me, ' I will take 
 three hundred dollars.' I told him, 'I wouldn't give you one cent, 
 because I don't know what for.' He says, 'If you do not give me 
 the three hundred dollars you can't have your people back again 
 to work." And when this conclusion was reached and asserted, 
 the defendant, together with one of the persons, named Zipkin, 
 who was with him, left the store, and shortly afterwards Zipkin 
 returned and said something about a settlement for $100. This 
 statement was made to Mr. Marks, the other partner. And 
 shortly after that the defendant returned to the store with Mr. 
 Zipkin and then stated, "I will take $100. I am doing this as a 
 favor to Zipkin, and instead of three hundred dollars, if you want 
 your people back, I will take one hundred dollars." And there- 
 upon a cheek was given to the defendant, subscribed by the firm, 
 for the sum of $100, upon which the defendant received the 
 money. The witness further testified that he believed at the time 
 the check was paid to the defendant that the latter had the power 
 to keep his men from returning to their work, and it was in that 
 belief that he paid the money. The evidence given by Marks, 
 the other partner, was not so full or complete as that obtained 
 from the witness Popkin, but it still tended to corroborate the 
 evidence of the latter. And so did that of the witness Berman, 
 who was the book-keeper of the firm. It was also stated that the 
 defendant represented himself as having the control of these per- 
 sons who previously had been in the service of the firm, and had 
 agreed to return to that employment.
 
 LEGISLATION AFFECTING COMMON LAW. 387 
 
 It was said by Barrett, «/!, in an opinion pronounced by him for 
 the court, reversing the judgment below, that the main question 
 in this case is whether the obtaining of money from another, with 
 his consent, induced by a threat to injure the business of the in- 
 dividual threatened, by persuading his employees to absent them- 
 selves from work, is "extortion," as that offense is defined in the 
 Penal Code, §§ 552, 553, subd. L. In an opinion pronounced 
 by the same judge it was held, in the case of Peojple v. Wilzig, 
 •A N. Y. Crim. Proc. Pep. 403, that it was extortion to pro- 
 cure money by fear induced by the threat to continue a so- 
 called "boycott," in which the elements of violence, intimida- 
 tion and direct injury to tangible personal property were promi- 
 nent and marked features. It was also ruled in those cases that 
 the threat to do an unlawful injury to the property of another, 
 which is one of the statutory conditions of this oiiense, might be 
 predicted of an intimidating attitude on the part of those engaged 
 in an overt act without actual violence or direct threat by word 
 of mouth. Actual violence was there proved, also actual injury 
 to the complainant's furniture, goods and fixtures; and the ques- 
 tion whether the threat to continue the "boycott" in the manner 
 in which it had been conducted amounted to a threat to continue 
 the physical injury to the complainant's furniture, goods and fix- 
 tures, was left to the jury. 
 
 In the case at the bar the elements of violence, intimidation 
 and physical injury to the tangible property are entirely wanting. 
 The threats made were not threats of violence, nor was the atti- 
 tude of the defendant or his associates an attitude of pliysical in- 
 timidation. The utmost that can be claimed by the prosecution 
 is that the defendant, as a leader, exercised sufiicient influence 
 over the complainant's employes to keep them from resuming 
 their employment until he was paid the sum finally agreed upon. 
 He utilized that influence and held it over the complainants to 
 accomplish his purpose. The employes, whom he professed to 
 represent, were equally free from violence or from an attitude of 
 intimidation. Thus the threat, as already stated, was merely that 
 the men would not work until the defendant was paid. And it 
 is asked, Was that a tlireat to do an unlawful injury to the com- 
 plainant's property ? The answer, it is said, must be in the neg-
 
 388 CONSFIKACY AT COMMON LAW CONTINUED. 
 
 ative. It certainly was not a threat to do injury to the material 
 or to the other property contained in the complainant's place of 
 business. It was therefore, simply a threat to injure his busi- 
 ness or estate; in other words, to reduce his gains or to prevent 
 his making gains. There can be no doubt that any injury to 
 one's business is an "injury to property" for the purposes of a 
 civil action. Indeed, the Code of Civil Procedure, § 3343, 
 subd. 10, defines an injury to property as "an actionable act where- 
 by the estate of another is lessened." But this definition is 
 expressly limited to the construction of the Civil Code, § 718. 
 It must be supposed that the Legislature thus intended to elimi- 
 nate mere actionable acts, whereby the estate of another is less- 
 ened, from the domain of criminal offenses, and to limit indictable 
 wrongs to injuries done to personal property, as such property is 
 described in the penal code. Thus a threat unlawfully to injure 
 "goods, chattels and effects," or to deface or destroy "money, evi- 
 dence of rights in action or written instruments" of a particular 
 description, would be a threat to do an unlawful injury to prop- 
 erty, and would sufiice to make out a case of extortion. This 
 view is in harmony with the general purpose and intent of crimi- 
 nal jurisprudence which deals mainly with what is materially evi- 
 denced. The opposite view would leave the question of guilt or 
 innocence to be decided, not by the act of the accused alone, op- 
 erating upon some tangible thing, but by evidence aliunde with 
 respect to an intangible condition of affairs. 
 
 If, for instance, property here means "business," then what was 
 the threat, and how was it to work an injury to the complainant's 
 business ? It was, as we have seen, a threat to keep people from 
 working for the complainants. JSTot all people, but the former 
 employes of the complainants. Why should that necessarily 
 work an injury to their business ? Only by showing the urgent 
 present need of workmen, the inability to secure competent per- 
 sons to fill the places of the former employes, the actual condi- 
 tion of the material required to be manufactured, the extent of 
 existing orders for manufactured goods, and a variety of other con- 
 siderations going to make up the present status of the business. 
 Now, if the complainants could supply the places of the former 
 employes with better workmen, at less wages, then the tl .-eat
 
 LEGISLATION AFFECTING COMMON LAW. 389 
 
 would be to benefit the business, not to injure it. But even if 
 the tendency of the act threatened, might be to injure the busi- 
 ness, how could that help the matter ? The statute does not deal 
 \vith tendencies or probabilities, much less possibilities. The 
 threat must be to do an unlawful injury to property ; not to do 
 something which may affect it injuriously, but which must 
 injure it. 
 
 If the prosecution is right, the statute would operate upon 
 " good will " as well as upon reduced profits ; in fact, up**! prop- 
 erty invisible and non-objective, the very existence of which would 
 have to be brought to light by independent evidence. The cor- 
 pus delicti is, first, the obtaining of the property, and second, the 
 threat to injure some specific thing by a direct physical attack 
 upon the object of the threat. Property and person are placed 
 in the same category, and the property contemplated is something 
 that can be injured in the same way as the " person " can be 
 injured. 
 
 This injury, whether to person or property, it is said, must be 
 surely direct. The prosecution, for example, cannot say that, 
 although there was no threat to molest the complainant physically 
 or even to touch his person, yet the menace, if executed, might 
 have affected his nerves and thus injured his person. Considera- 
 tion of the law as it existed prior to the penal code adds force to 
 this construction. At common law, extortion signified any oppres- 
 sion by color of right ; but, technically, it was defined to be the 
 taking of money by an officer by reason of his office, where none 
 at all was due, or not so much due, or when it was not yet 
 due.' 
 
 These rules as to the taking of unlawful fees we codified in the 
 Revised Statutes.^ And we also find there a provision making a 
 verbal or written threat to accuse another of any offense, with 
 intent to extort property or money, a misdemeanor.* The obtain- 
 ing of money by force or fear does not, therefore, seem to have 
 been extortion either at common law or under the Revised Stat- 
 
 iFor note 2 Wharton's Crim. Law, (3d ed.) 833; 1 Hawk. P. C. Ch. 68, § 1; 
 
 People V. Whaley, 6 Cow. 663. 
 »2 Kev. Stat. Edm. ed. 669. 670, §§ 5, 6, 7; Id. 778, 779, sec. 17. 
 32 Rev. Stat. Edm. ed. 713, § 2.
 
 390 CONSPIKACr at common law — CONTINUED. 
 
 utes. It was robbery at common law to extort money under the 
 threat of charging one with an unnatural crime.' 
 
 And this view was taken of the provision of the Revised Stat- 
 utes defining robbery in the second degree, in People v. Mc- 
 DanielSj 1 Park. Cr. 198, notwithstanding the specific legislation 
 before referred to, making the tlireat of such an accusation, with 
 intent to extort money, a misdemeanor. Under the Revised 
 Statutes the sending of a letter threatening to accuse any person 
 of anj^rime, or to do any injury to the person or property of any 
 one, with the view or intent to extort any, etc., was declared to 
 be an attfempt to rob. And the fact that this offense was placed 
 in the same class as that of robbery was emphasized in People v. 
 Griff en, 2 Barb. 427. 
 
 It will thus be seen that the offense now under consideration, 
 though classed for the first time in the Penal Code as extortion, 
 really completes the legislation against robbery, attempts at rob- 
 bery, and cognate offenses. Section 552 of the Penal Code is in the 
 alternative, treating extortion by force and fear as one thing, and 
 extortion by official action as another. These two methods of 
 extortion are separately defined in subsequent sections, but it is 
 apparent from the language of the section providing the penalty 
 by force or fear (§ 554) that the latter is but a supplement, 
 under the name of extortion, to robbery in the first, second and 
 third degrees. This section (554) provides for such punishment 
 only when the money or other property has been extorted by 
 force or fear " under circumstances not amounting to robbery ; " 
 in other words, when the money or other property has been 
 claimed '' with the consent " of the complainant and not " against 
 his will." For really the main distinction between robbery in 
 some degree and this form of extortion lies just there. Robbery 
 is the unlawful taking against the will by means of force or vio- 
 lence or fear of injury, immediate or future, to one's person or 
 proj)erty, (Penal Code, § 224) ; while extortion is the obtaining 
 with consent by similar means. Thus unless robbery could be 
 predicated of the taking against complainant's will of the money 
 here obtained with their consent (that is, in case such money had 
 
 ^Rex V. Jones, 1 Leach, 0. C. 139 j Bex v.Donnally, 1 Leach, C. C. 193; Rex 
 V. Cannon, R. & R, 146.
 
 LEGISLATION AFFECTING COMMON LAW. 391 
 
 really been taken against tlieir will), it is difficult to see how 
 extortion can be sustained in a case where it was taken with his 
 consent. It certainly would be a novel indictment for robbery 
 which charged the taking the property against the will of the 
 complainant by means of fear of injury to his property, e. g., his 
 business, resulting from threats on the part of the robber or high, 
 way-man, that he would use his influence with the complainant's 
 landlord not to extend his lease, or with the manufacturer not to 
 sell him goods, or with the banks not to discount his paper. 
 
 But another difficulty is pointed out, which exists in the case 
 under consideration, and that is that the injury threatened must 
 in itself be "unlawful." Now, the abstention of work on the 
 part of the operatives was not unlawful. It is not claimed that 
 they broke any contract of service or hiring, knowing or having 
 reasonable cause to believe that the probable consequence of so 
 doing would be to endanger human life or to cause grievous bodi- 
 ly injury or to expose valuable property to destruction or serious 
 injury. Penal Code, § 673. It is not, in fact, pretended that 
 these ojDeratives were working for the complainants under any 
 special contract at all. On the other hand they were not guilty 
 of " conspiracy," for the reason that orderly and peaceable co- 
 operation for the purpose of obtaining an advance in the rate of 
 wages is expressly excepted from the conspiracy sections. Penal 
 Code, § 170. This exception was further emphasized by an 
 amendment to § 675 of the Penal Code, which went into eifect 
 on the 1st of September, in the present year, and which reads as 
 follows : " But nothing in this Code contained shall be so con- 
 strued as to prevent any person from demanding an increase of 
 wages or from assembhng and using all lawful means to induce 
 employers to pay such wages to all persons employed by them as 
 shall be a just and fair compensation for services rendered." 
 Thus, the opinion declares, the law is unmistakable that so long 
 as there is neither violence nor an attitude of intimidation nor 
 interference with others, employes are free to work or to refrain 
 from working, as they please ; free individually and free in com- 
 bination. The attitude of the complainant's employes, at the 
 time the threat in question was made, was not, therefore, unlaw- 
 ful. It would seem to follow that a threat to induce a continu-
 
 392 CONSPIRACY AT COMMON LAW — CONTINUED. 
 
 ance of their lawful attitude could not of itself be unlawful, at 
 least in tlie sense of criminal. "Whether a civil action would lie 
 for damages sustained by the defendant's acts is a question not 
 involved in the decision. It is sufficient in the judgment of the 
 court, for the determination of the case, that the defendant's 
 threat to use his influence to keep men from working for the 
 complainants, however wrong morally, was not criminal. It was 
 not a threat to do the complainants an unlawful injury, but to 
 continue a condition of things which, even if injurious, was 
 undoubtedly lawful. The act threatened, that is, the act of 
 advising, persuading or exhorting the men not to resume work, was 
 not in itself indictable, and was not in itself more unlawful than the 
 act of the men in abstaining from work. The statutory crime 
 does not consist of a threat to do an improper or unjust act, nor 
 to do an unlawful injury to the property of another. Whatever 
 injury was being done to the complainant's business at the time 
 of the threat in question was not an unlawful injury. And it 
 follows that the defendant cannot be said to have threatened to 
 do an unlawful injury to such business. 
 
 It was for these reasons that the judgment and conviction were 
 reversed, and a new trial ordered. 
 
 There was also tiled by Ingraham, «/!, an opinion concurring in 
 the reversal. He stated that the crime of extortion is defined by sec- 
 tion 552 of the Code to be the obtaining of property from another 
 with his consent, induced by a wrongful use of force or fear, or 
 under color of official right, and the defendant claimed on the 
 trial that he is not guilty of extortion as defined by this Act, and 
 that conceding the testimony offered on behalf of the people to 
 be true, the crime was not proven. 
 
 By section 553 of the Penal Code it is provided that " fear, such 
 as will constitute extortion, may be induced by a threat to do an 
 unlawful injury to the person or property of the individual threat- 
 ened, or to any relative of his or to any member of his family,'^ 
 and therefore it is said, that to support this judgment it must 
 appear that the defendant extorted from the firm of Popkin & 
 Marks the $100 mentioned in the indictment by the wrongful use 
 of fear induced by a threat to do an unlawful injury to the prop- 
 erty of such firm.
 
 LEGISLATION AFFECTING COMMON LAW. 393 
 
 The conclnsion is reached from an analysis of section 553 that the 
 threat to induce fear as defined by the section must contain two 
 elements : first, the threat must be to do what is unlawful ; and 
 second, the injury must be an injury to the property or person of 
 the individual threatened, or to a relative of his or to a member 
 of his family ; and unless it appears that what the person threat- 
 ened to do was unlawful, and, if performed, would do an injury 
 to the person or property of the person threatened, the party 
 making is not guilty of the crime. 
 
 In construing the section of a code the rule is recognized, that 
 we should give a reasonable constniction to the language used, 
 not a forced and unnatural construction, extending the meaning 
 of the words so as to include threats which a person of ordinary 
 intelligence would not understand to be within the fair meaning 
 of the language. 
 
 Popkin & Marks were coat manufacturers in the city of ISTew 
 York. Their employes had left work in consequence of a dispute 
 between themselves and the firm as to wages, and on the 9th of 
 February an agreement was arrived at between the firm and their 
 employes whereby tlie employes agreed to return to work on 
 the following morning. 
 
 On that morning, however, they did not return to work, but 
 the defendant came to the ofiice of the firm accompanied by sev- 
 eral of the firm's employes and at that time he demanded the 
 sum of $500, saying to Mr. Popkin : " You have got to pay me 
 S500 to have your people back again to work." Upon the refusal 
 of Popkin to pay any sum, he reduced his demand to $300, say- 
 ing : " If you do not give me §300 you cannot have your people 
 back again to work ; I will take $300 as long as I am here, and 
 as quick as I am going to leave this place it will cost you 
 $500." 
 
 That demand was refused and defendant left his place. In a 
 few minutes Zipkin, one of his companions, returned and after 
 some consultation with Marks, one of the members of the firm, 
 Marks said he would pay the defendant $100. Zipkin left and 
 in a short time returned with the defendant, who then said : "I 
 will take $100; I am doing that as a favor to Zipkin and instead 
 of $300, if you want your people back I will take $100."
 
 394 CONSPIKACT AT COMMON LAW — CONTINUED. 
 
 A check was then drawn by the firm to the order of the de- 
 fendant and given to him, upon which he drew upon the bank 
 account of the firm the sum of $100, and this is the only evidence 
 of any threat made by the defendant to Popkin & Marks, or to 
 anyone. 
 
 Upon this statement of facts it seems clear, it is said, that there 
 was no threat to do an unlawful injury to property. The defend- 
 ant did not expressly threaten Popkin & Marks that he would do 
 anything himself; there was no statement that he would prevent 
 the men from working; what he said was that they would not re- 
 turn to work. It was certainly not unlawful for these men to 
 refuse to work for Popkin & Marks, nor was it unlawful for de- 
 fendant to advise them not to work. There was no threat, there- 
 fore, in the opinion of the judge, to do an unlawful act. Defend- 
 ant did not of his accord go to the place of business of Popkin 
 & Marks, but was sent for by them, and his statement that the 
 men would not return to work, even if that could be construed 
 into a threat that he would prevent them from returning to work, 
 was not a threat to do an unlawful injury to the property of 
 Popkin & Marks, because of the fact that unless the men did 
 return Popkin & Marks could not advantageously continue their 
 business. 
 
 If one of Popkin & Marks' employes had refused to work for 
 them, such a refusal, although it might have seriously affected 
 their business, might have caused them serious loss, would not 
 have been, it is said, an unlawful injury to their business, because 
 an employe had the legal right to work for Popkin & Marks or 
 not as he pleased, and if it was not unlawful for an employe to 
 refuse to work it was not unlawful for a third party to advise or 
 induce him to refuse to work, so that a threat of such third party 
 that he would prevent such employe from working would 
 not be a threat to do an unlawful injury to the employer's busi- 
 ness. 
 
 It is suggested that many illustrations might be given of in- 
 stances where the exercise of a legal right by one person would 
 cause an injury to the property of another, and where there is no 
 penalty for liability because of the exercise of such right. Thus 
 the owner of a dwelling-house could devote it to business pur-
 
 LEaiSLATION AFFECTING COMMON LAW. 395 
 
 popes and thereby injure the value of adjoining property. Yet 
 such use would not be an unlawful injury to the adjoining prop- 
 erty, and a threat by the owner to make such use of his property 
 would not be a threat to do an "unlawful injury" to property. 
 It might be said to be a threat to do a "lawful injury" to the ad- 
 joining house, but such a threat is not sufficient to sustain a con- 
 viction for extortion, and it is equally clear that, a threat to induce 
 the owner thereof to so use his house is not a threat to unlawfully 
 injure property, because if it is not unlawful for the owner to use 
 it for a particular use, it is not unlawful for a person to procure 
 the owner so to use it. Nor can such a threat be said to be a 
 threat to do an injury to the property. 
 
 There is no evidence that the defendant had any knowledge 
 that Fopkin & Marks had any unmanufactured goods on hand at 
 the time of the occasion in controversy, or that he knew, or had 
 reason to know, that the refusal of the men to return to work 
 would cause injury to any of their property. 
 
 Poj)kin & Marks had a right to employ such men as they chose, 
 and their employes had a right to work for whom they chose, 
 and the mere supposition that the refusal of this particular body 
 of men to work for Popkin & Marks would in some way embar- 
 rass them in manufacturing goods for their fall trade, is "all that 
 there is to sustain the charge that this was a threat to injure prop- 
 erty. 
 
 But it is said to be clear, that the evident intent of the statute 
 is that the threat should be to injure a specific piece of prop- 
 erty. 
 
 There must be the existence of a res and a threat to in- 
 jure it. 
 
 The section in question is part of chapter 5 of title 15 of the 
 Penal Code. The title treats of crimes against property and in- 
 cludes arson, burglary and house breaking, forgery and counter- 
 feiting, larceny, embezzlement and extortion. The word " prop- 
 erty," as defined by section 718 of the code, would not include a 
 man's business, and there could not certainly be an indictment for 
 larceny for stealing the business. 
 
 The meaning of a threat to do an unlawful injury to the per- 
 son of an individual would be a threat to, in some way, injure his
 
 396 CONSPIRACY AT COMMON LAW CONTINUED. 
 
 body, and the threat to do an unlawful mjury to his property^ 
 applying the words in their ordinary significance would be in 
 some way to injure some specific property. 
 
 It could hardly be claimed that a threat to injure a person's 
 character, or his professional reputation would be an injury to 
 property within the meaning of this act; and yet, such a threat, 
 where the successful conduct of such person's business depended 
 largely upon his character and reputation, might seriously injure 
 his business. 
 
 It is a threat to injure the thing that constitutes the crime; not 
 to do an act which indirectly may do damage to business or its 
 successful conduct. 
 
 The conclusion therefore which Judge Ingraham also reaches,, 
 is, that the evidence was not sufiicient to sustain the convic- 
 tion. 
 
 Whether under like legislation, other courts will probably reach 
 the same results, may be perhaps reasonably conjectured on com- 
 paring the reasons assigned by Daniels, ./., for advising an affirm- 
 ance of the judgment. He states these reasons substantially, aa 
 follows: 
 
 At the close of the case on the part of the people, a motion was 
 made for the acquittal of the defendant, which was denied, and 
 the counsel for the defendant excepted to that denial. This mo- 
 tion evidently proceeded upon the theory that the threat which 
 the jury could very well imply or infer from what is stated to 
 have taken place was not such a threat as the law required to 
 create the offense of extortion. And that position has been taken 
 in support of the present appeal from the judgment. Whether 
 the evidence was sufficient to place the case within the provisions- 
 of the law relative to this offense must depend upon the construc- 
 tion which should be given to the statute enacted to define and 
 punish the crime of extortion. It has been declared by § 552 of 
 the Penal Code of the State that "extortion is the obtaining of 
 property from another with his consent, induced by a wrongful 
 use of force, or fear, or under color of official right." And by 
 § 553 of the same code, it has been declared that: "Fear, such 
 as will constitute extortion, may be induced by a threat to do an
 
 LEGISLATION AFFECTING COMMON LAW. 397 
 
 unlawful injury to the person, or property of the individual 
 threatened, or to any relative of his, or to any member of his 
 family." Assuming the evidence of the witness Popkin to be 
 reliable, as that may properly be done inasmuch as the jury ap- 
 pears to have accepted it as truthful, the point is presented 
 whether a threat to prevent the persons who had been upon the 
 strike from returning to and entering the employment of the firm 
 was a threat to do an unlawful injury to the property of this firm. 
 It is stated in the evidence of the witness first sworn, that they 
 liad on hand material cut up and ready for manufacturing, and 
 not manufactured, and that what was cut and uncut amounted to 
 the sum of about $50,000, and that was designed to be manufac- 
 tured by the firm in the course of its business. It was also stated 
 that the season for the sale of their manufactured garments closed 
 ■about the 15th of April. The firm at the time had become, by 
 the discharge of the persons who had been employed by it, inca- 
 pable of proceeding with the manufacture of these garments, and 
 had placed itself and the business carried on by it in a state of 
 entire dependence upon the individuals who had been engaged 
 in the strike. And the effect of what is stated to have been said 
 by one of its members by the defendant was that this business 
 should be interrupted and necessarily remain in suspense until 
 the money which was demanded should be paid over. 
 
 The defendant, according to the testimony of Mr. Popkin, as- 
 serted himself to be in such a relation to the persons on this strike, 
 even after they had adjusted their difference as to a compensation, 
 as to control their movements and prevent them from returning 
 into the service of the firm, unless his demand was satisfied. By 
 this interposition of his authority over the working people the 
 belief is stated to have been produced that the persons would not 
 return to their employment until this money was paid to the de- 
 fendant. And in the opinion of the judge writing the dissent 
 that of itself was a threat on his part to injure the property or 
 business of the firm, for the interruption of the business would 
 necessarily be attended with loss to the firm. And a loss result- 
 ing from the suspension or interruption of the business would 
 necessarily be an injury to property, and it was to avoid that in- 
 jury that this money was paid over.
 
 398 CONSPIRACY AT COMMON LAW — CONTINUED. 
 
 It is not thought that the statute requires the narrow construc- 
 tion insisted upon by the defendant's counsel. For it has not 
 been, either by its language or reasonable import confined to the 
 case of an actual injury to some specific article of property, but it 
 has been made to include the threat to do any unlawful injury to 
 property. And business is property, as much so as the articles 
 themselves which are included in its transactions. Besides that 
 this term "property" has been so defined by subds. 9, 14r and 15 
 of § 718, of the Penal Code, as to include the business itself and the 
 loss resulting from its interruption. By the first of these subdivision 
 it has been declared that, "the term 'property' includes both real 
 and personal property, things in action, money, bank bills, and all 
 articles of value." And it has been further declared by subd. 15 
 of the same section that the term "personal property" includes 
 every description of money, goods, chattels, efliects, evidences of 
 rights in action, and all written instruments by which any pecu- 
 niary obligation right or title to property, real or personal, is cre- 
 ated, acknowledged, transferred, increased, defeated, discharged 
 or diminished, and every right and interest therein. And this is 
 conformable to the significance given to the same term by legal 
 writers. For it has been said by Blackstone that property con- 
 sists in the free use, enjoyment and disposal of all the owner's 
 acquisitions, without any control or diminution save only by the 
 laws of the land. 1 Bl. Com. (Sharswood's ed.) 138. 
 
 And in Springfield F. & M. Ins. Co. v. Allen, 43 K. T. 395, 
 it was stated in the opinion of the court that, " property is a thing 
 owned, that to which a person has or may have a legal title.'^ 
 And in all its attributes it has been brought within the protection 
 of the constitution of both the nation and the State by the decla- 
 ration that no person shall be deprived of property without due 
 process of law. And that includes, in the opinion of the judge, 
 within this term, a business which may be built up for the manu- 
 facture and sale of property, as well as the tangible articles them- 
 selves employed or used in the course of such business. It is said 
 there would obviously be no reason for so distinguishing the word 
 " property," as it has been used in the sections of the code, as to 
 apply it solely to tangible articles capable in and of themselves 
 of receiving direct injury by the unlawful or wrongful act of
 
 LEGISLATION AFFECTING COMMON LAW. 399 
 
 another. The section has not employed the term in that manner, 
 but it has inckided it in its broad and unrestricted sense, applying 
 its prohibition to whatever may be properly maintained to be 
 property. And the business of persons en^^aged in it is certainly, 
 within the unrestricted significance of the term as it has been 
 employed, as much a matter of property as any of the goods or 
 garments sold in the course of such business. And the infer- 
 ence is therefore drawn that the defendant was not entitled to the 
 direction which was asked for in his favor, for the evidence did 
 tend to establish the existence of an offense within the scope of 
 this indictment. 
 
 On the trial an exception was also taken to what was stated to 
 have been said and done at one of the meetings held by the cloak- 
 makers. Mr. Zipkin was the chairman of that meeting, and was 
 with the defendant at the office of the firm when the prices were 
 fixed. And not only from the evidence given on the part 
 of the prosecution, but that also produced in behalf of the 
 defendant, it was made to appear that he was their substantial 
 representative, and that his services were employed to harmonize 
 the differences between the cloak-makers and this firm. And 
 both on behalf of the prosecution, as well as the defendant, the 
 proceedings of the meetings of the cloak-makers were in order to. 
 exhibit theii* intention and state of mind concerning the resump- 
 tion of their employment. They were, in fact, as the evidence 
 indicated the case to be, co-operating together. They asserted 
 their claims, and the defendant endeavored to obtain such conces- 
 sions as would satisfy these persons. And there was consequently 
 no impropriety in showing what was exacted by them as a subject 
 matter falling within the province of the defendant for negotia- 
 tion and settlement. There was really no dispute as to the exac- 
 tions, or the fact that they co-operated together to secure the con- 
 cession of their terms, or the settlement upon others which would 
 be satisfactory to them. Both parties were acting to bring about 
 this result and to attain it it became necessary to understand what 
 the cloak-makers themselves required should be made in the way 
 of concessions or advanced compensations for their services. And 
 evidence of what took place at their meeting was admissible for 
 the purpose of proving what they insisted upon, and what the 
 defendant himself endeavored to secure in their behalf.
 
 400 OONSPIEACY AT COMMON LAW CONTINUED. 
 
 Upon the examination of the defendant as a witness he was 
 asked whether he kept the money himself, that sum of §100. An 
 exception was taken to the sustaining of an objection to this ques- 
 tion. JS^ow the theory of the defense is that the defendant demand- 
 ed this money not for himself, but as some compensation for the 
 cloak-makers during the time they had been engaged in the strike. 
 And the object of the inquiry was probably to show that he had 
 paid over the $100 to them, or for their benefit. If no other 
 evidence had been given concerning tliis money, it would prob- 
 ably have been error to have excluded this answer. But the witness 
 himself has previously stated that he went with Mr. Zipkin and 
 cashed a check, " and got the money, and went with Mr. Zipkin 
 to the office and delivered the money to the cashier." He also 
 testified that he stated to Mr. Popkin that he took the money to 
 be distributed between the working people of Popkin & Marks ; 
 that he obtained it at their request as they had instructed him, 
 and did not receive it intending to appropriate any of it to his 
 own use. This, with the other evidence, was all that was required 
 to be proved to relieve the defendant from this criminal accusa- 
 tion if the jury had confided in his statement. 
 
 The defendant was also interrogated as to remarks that he had 
 made at a meeting at which he was present as one of the speakers. 
 But there was no error in the opinion of the judge in taking his 
 answer as to what he had said at the meeting as some evidence 
 bearing upon his general intention in the control or management 
 of the aft'airs of the unions. He stated generally that he believed 
 the working people had a right to unite themselves and form a 
 union and ask for justice. He was undoubtedly correct in this 
 statement. This subject was very fully examined in Thomas v. 
 Mut. Prot. Union, 49 Hun, 171, in which Judge Daniels exam- 
 ined the authorities accessible on this subject. And it was there 
 concluded that all persons had the right to prescribe the terms 
 upon which they would perform their services. And that this 
 was not only an individual right, but it was one which could be 
 protected by the combination of two or more persons. And it 
 was their right to refuse to render their services for any person 
 who might be offensive or disagreeable to them, or with any person 
 who should not, for any cause, receive their approval ; that so far 
 the law permitted all working people to combine together either
 
 LEGISLATION AFFECTING COMMON LAW. 401 
 
 for their individual or their mutual Drotection. It is true that 
 these views were not there expressly accepted by the other mem- 
 bers of the court, but they are still deemed to be well supported 
 by the authorities, and the case in which they were expressed, as 
 it was in fact decided, is no authority to the contrary, for the rea- 
 son that the decision made by the majority of the court, as well 
 as by the special term was afterwards reversed by the Court of 
 Appeals.* There was accordingly no infringement of the law in 
 what the defendant himself, in the manner, stated he had said, 
 nor by what he afterwards conceded to have been his additional 
 statement. And no harm, therefore, could have resulted to him 
 from what he admitted to have been his remarks at the meeting:. 
 
 The verdict has been objected to as against the weight of the 
 evidence. This objection has been raised uj^on the fact that four 
 witnesses besides the defendant testified that they were present at 
 the time when the money was demanded by him from Mr. Pop- 
 kin, and that he demanded the money not for himself, but to dis" 
 tribute or divide among the persons who had been out of employ- 
 ment during the period of the strike. Further evidence was 
 given by two witnesses sworn on behalf of the defendant as to 
 statements made by Mr. Popkin, but there was no extortion in 
 obtaining the money. This, however, was denied by Popkin, and 
 in eifect also by his wife, who was present at one of the conversa- 
 tions. Further testmiony was also given to prove that the defend- 
 ant had a good reputation among those who knew and had busi- 
 ness intercourse with him. And from the proof as it apjjears by 
 the case, there was certainly sufficient, if the jury had credited 
 the statements of the witnesses, to secure the defendant's acquit- 
 tal. But this court, not having the advantage of seeing the wit- 
 nesses and listening to the statements and observing their manner 
 as the jury did, cannot, on that account, assume that the verdict 
 was not in accordance with the evidence. It will often occur that 
 witnesses may unite in their evidence, as those did so on the part 
 of the defendant when the jury, from their conduct or appearance 
 upon the stand, will fail to be impressed with the truthfulness of 
 their statements. And the court, upon an appeal, where the evi- 
 dence may be in that manner rejected, is not at liberty to say that 
 
 ^Tlwmas v. Musical Mut. Prot. Union, 8 L. R. A. 175, 121 N. Y. 45. 
 26
 
 402 CONSPIRACY AT COMMON LAW CONTINUED. 
 
 the jury have erred as long as they had sufficient evidence before 
 them on the part of the prosecution to justify their verdict. 
 
 On this subject it has been said, that " when there is evidence 
 on both sides and the case is balanced and the mind of the court 
 has been called upon to waive conflicting statements and infer- 
 ences, and decide upon the credibility of opposing witnesses, much 
 weight must be accorded to the special adaption of the trial court 
 to investigate and determine such questions. Any other rule 
 would nullify the peculiar advantages which that tribunal pos- 
 sesses, in observing the manner and appearance of the witnesses 
 produced, and the various physical and mental peculiarities by 
 which the mind of the professional observer determines the degree 
 of credit which ought prudently to be attached to oral testimony.'^ 
 Baird v. New York, 96 N. Y. 567, 577. And this principle 
 requires the conclusion of the jury as it has been expressed by 
 their verdict to be adopted and maintained by the court, unless 
 the preponderance of evidence is so great as to indicate either a 
 misunderstanding of the case, or the influence of jjrejudice, passion 
 or corruption. Present cannot be held to be of that description. 
 It was, in the opinion of Judge Daniels, entirely proper for the 
 consideration and decision of the jury, and their verdict can not 
 be set aside as opposed to the weight of the evidence. The judg- 
 ment, on the contrary, is fully supported by the case as it was pre- 
 sented on the part of the ]3rosecution, notwithstanding the evi- 
 dence produced in favor of the defendant, and it should be 
 affirmed. 
 
 In the fall of 1885 a general strike among the coal miners was 
 inaugurated along the valley of the Monongahela River, and a 
 number of miners working for Neel and other coal operators 
 refused or failed to go out with the other miners upon the strike 
 and continued to work for their employers. The effect was that 
 the strike was a partial failure. It was then determined to make 
 an effort to get these workers to join the strike, and a meeting of 
 miners was held in Monongahela City and a vigilance committee 
 was appointed to accomplish this, and public meetings were held 
 in California and Coal Centre in November, at which resolutions 
 were adopted favoring peaceful means and measures, and inviting 
 the miners in the lower pools — the flrst, second and third pools — 
 to come up into the fourth pool, and assist them in inducing these
 
 LEGISLATION AFFECTING COMMON LAW. 403 
 
 workers to come out and join the strike. As a result, on the 25th 
 and 27th days of November, a steamboat called "The Stella" came 
 up the river and landed at Luceyville, or Roscoe, near the mines. 
 Quite a number of men, some two hundred, from the lower pools, 
 were brought to the fourth pool on this boat. During the time 
 the boat remained at these points there was some violence used 
 and several men were beaten, and some of the unoccupied shanties 
 belonging to Neel were stoned and broken in. The parties who 
 engaged in these acts of violence were convicted of conspiracy. 
 On the trial the jury were told that if they believed from the evi- 
 dence that large bodies of men were collected about the coal 
 works of Neel and other coal operators, named in the indictment, 
 by previous arrangement or concerted action, with the intention 
 of intimidating the miners working, by the presence of great 
 numbers of persons oi:»posed to the course pursued by said work- 
 ing miners, such combination would be unlawful, and all persons- 
 engaged therein would be guilty of conspiracy, whether actually 
 present at the connnission of any act of violence or not. This 
 charge was given, after proof that the means to be used by the 
 committee, as it appeared from the resolutions passed, were of a 
 peaceful and lawful character, and under no circumstances did the 
 convention or tlie committee it appointed countenance the use of 
 force or other unlawful means or methods to accomplish the end 
 in view. These instructions were affirmed on appeal.' 
 
 So in a civil action in 1887 in Michigan for damages against a 
 defendant who was the acknowledged leader of a gang of men 
 and who knew its character and intent when he led it upon the 
 premises of the plain tiif, for the purpose of inducing the plaintiffs 
 employes to join the men already gathered in a strike for ten 
 hours, he was held responsible for the acts of violence of the mob not- 
 withstanding he halted them 200 feet from the plaintilf s' mill and 
 told them to remain there until he came back. It was said that 
 whatever right the defendant had to influence the men to quit 
 work unless the 10-hour demand w^as acceded to by their employer, 
 while they were not at work, he had no right to enter upon the 
 premises of such employer to influence the men while they were 
 
 ^Newman v. Com. (Pa.) 5 Cent. Rep. 497.
 
 404 CONSPIRACY AT COMMON LAW CONTINUED. 
 
 ■at work. If, bj custom, license is impliedly given to all persons 
 to enter places of business, that license is nevertheless considered 
 revoked the moment the person so entering interferes unlawfully 
 with the rights of the proprietor. He then becomes a trespasser 
 ah initio^ and must suUer the consequences of his ill-advised and 
 unlawful entry.' 
 
 When an association is formed for innocent purposes, and its 
 power and authority are afterwards abused, only those so abusing 
 them are liable.* 
 
 Under the Xew York Statute, persons styling themselves the 
 *' Executive Board of the Ocean Association of the Longshore- 
 men's Union," not in plaintiffs employ, who procured its work- 
 men to quit in a body and afterwards declared a boycott on its 
 business, to compel it to pay the wages demanded by them, were 
 held guilty of illegal and actionable acts and were liable to arrest.' 
 It was declared that all combinations and associations designed to 
 coerce workmen to become members, or to interfere with, obstruct, 
 vex or annoy them in working or in obtaining work, because they 
 are not members, or in order to induce them to become members 
 or designed to prevent employers from making a just discrimina- 
 tion in wages paid to the skillful and the unskillful, to the diligent 
 and the lazy, to the efficient and the inefficient, and all associa- 
 tions designed to interfere with the perfect freedom of employers 
 in the proper management and control of their lawful business, or 
 to dictate in any particular the terms upon which such business 
 , shall be conducted, by means of threats of injury or loss, by inter- 
 ference with their property or traffic, or with their lawful employ- 
 ment of other persons, or designed to abridge any of these rights, 
 are illegal combinations or associations, and all acts done in 
 furtherance of such intentions by such means and accompanied 
 damage, are actionable. Associations have no more right to inflict 
 injury upon others than individuals have. 
 
 ' Wehher v. Barry, 9 West. Rep. 872, 66 Mich. 127; McOehee v. State, 23 Tex. 
 App. 330. 
 
 ^Garew v. Rutherford, 106 Mass. 10. See Snow v. Wheeler, 113 Mass. 186; 
 Bowen v. Matheson, 14 Allen, 503. 
 
 «0W Dominion 8. S. Co. v, McKenna, 24 Blatchf . 244, 30 Fed. Rep. 48.
 
 LEGISLATION AFFECTING COMMON LAW. 405 
 
 Associations of men may endeavor peaceably, and in a reason- 
 able manner, to persuade others to cease or abstain from work; 
 but if by force or intimidation they endeavor to control the free 
 agency or overcome the free will of their fellow workmen, they 
 become guilty of a penal offense.' The law encourages combina- 
 tions for good, and combinations of workmen to better their con- 
 dition by legitimate and fair means are commendable and should 
 be encouraged. But combinations for evil purposes, whether by 
 one class of men or another, are detrimental to the public weal, 
 and cannot be regarded with favor by the courts.' 
 
 In Com. V. Sheriff, 15 Phila, 393, the court held it not unlaw- 
 ful to notify employers that a trade union association had decided 
 upon an increase of wages to journeyman printers, and unless such 
 increase was paid a strike would be declared. The increase being 
 refused a strike was declared, and the court excused the invasion 
 of the employers' premises to induce the workmen to strike, on 
 the ground that it was a place of business and the employers did 
 not expressly forbid it, and that the foreman, a member of the 
 trade union, was present, and as far as he represented his em- 
 ployer might be held to consent. In that case only peaceful 
 means were used. But the ruling can hardly be sustained, on 
 legal principles, for the law will not imply authority to enter 
 premises, open to the public for purposes of business only, where 
 the object of the person who enters is to injure the business of 
 the proprietor.^ Even in a railway station the implied right of 
 entry is limited to those having business with the railroad com- 
 pany, and it must be exercised consistently with the interests of 
 the railroad, and a traveler can only enter a reasonable time prior 
 to the departure of his train." 
 
 ^Reg. V. Shepherd, 11 Cox, C. C. 325. 
 
 ^State V. Glidden, 3 New Eng. Rep. 849, 55 Conn. 46. And the rule applies 
 to corporations sruilty of conspiracy Wayne Pike Co. v. Hammons (Ind.) 
 27 N. E. 487; Buffalo Lubricating/ Oil Co. v. Standard Oil Co. 42 Hun, 
 153, 8 Cent. Rep. 667, 106 N. Y. 669; Krulevitz v. Eastern R. Co. 2 
 New Eng. Rep. 37, 140 Mass. 573 ; Western News Go. v. Kilmartin, 33. 
 Kan. 510; Morton v. Metropolitan L. Ins. Co. 34 Hun, 366, 4 Cent. Rep. 
 397, 103 N. Y. 645. 
 
 ^Webber v. Barry, 9 West. Rep. 872, 66 Mich. 127; New York, L. E. & W. 
 R. Co. V. Wenger, 17 Week. L. Bull. 306. 
 
 ^Harris v. Stevens, 31 Vt. 79.
 
 406 CONSPIRACY AT COMMON LAW CONTINUED. 
 
 But while excusing the unlawful entry, the court took care to 
 condemn the resort to threats and menace of injury to persons or 
 jjroperty, in the enforcement of a demand for an advance of wages. 
 
 § 77. Present Condition of the Law Concerning Trade or 
 Labor Combinations, ^^ Picketing, " '^ Boycotting." — It 
 
 may be accepted then as the common law in this country, and this 
 is not changed by state statutes, but they are simply declaratory 
 of existing law, that the labor and skill of the workman, the plant 
 •of the manufacturer, the experience and equipment of the farmer, 
 and the learning and reputation of the professional and expert, 
 are in equal sense property. The possessors of such property, 
 whether emploj'ers or employed, may combine in trade unions or 
 associations, or otherwise, to advance the value of their property 
 and their interests by lawful means, including the refusal to 
 extend competition among workmen, by admitting apprentices to 
 learn trades.* They may use arguments and persuasion to induce 
 others to unite in such combination. 
 
 Even "picketing," which means watching and speaking to the 
 workmen, as they go to or return from their employment, to in- 
 duce them to leave the service, is not necessarily unlawful ; nor is 
 it unlawful to use terms of persuasion towards them to accom- 
 plish that object, but if the besetting and watching is carried to 
 such an extent that it occasions a dread of loss, it is unlawful.' 
 
 Men may assemble for a lawful purpose, to discuss questions 
 for any lawful purpose ; l)ut no man or body of men can law- 
 fully go upon the premises of an employer and seek to induce 
 the employes to cease work. The very show of numbers, unac- 
 companied by actual or threatened violence is, in many cases, 
 under existing circumstances, intimidation. The courts will, in 
 such case, interpose by injunction against those attempting such 
 interference, for the remedy by action of trespass is not sutRcient 
 in a case involving a continuous series of acts in pursuance of a 
 plan.' 
 
 ^Snow V. Wheeler, 113 Mass. 186. 
 
 ^New York, L.E. &W. R. Co. v. Wenger, 17 Week. L. Bui. 306; Morris Run 
 
 Coal Co. V. Barclay Coal Co. 68 Pa. 173; Stanton v. Allen, 5 Deaio, 
 
 434. 
 
 ^New York, L. E. d W. R. Co. v. Wenger, 17 Week.L. Bui. 3C6; Reg. v. 
 Mibbert, 13 Cox, C. C. 82; Reg. v. Bauld, 13 Cox, C. C. 282.
 
 PRESENT CONDITION OF LAW CONCEKNING TKADE. 407 
 
 But an action of trespass will also lie/ 
 
 "Workmen stand upon the same broad level of equality before 
 the law with all other vocations, professions, or callings, respect- 
 ing the disposition of their labor and the advancement of their 
 associated interests. It is unlawful for employers to wrongfully 
 to coerce, intimidate, or hinder the free choice of workmen in the 
 disposal of their time and talents. It is unlawful for workmen 
 wrongfully to coerce, intimidate, or hinder employers in the selec- 
 tion of such workmen as they choose to employ. No employer 
 can say to a workman he must not work for another employer ; 
 nor can a workman say to an employer he cannot employ the 
 service of another workman. Every man is at liberty to enter 
 into a combination to keep up the price of wages, but if he enters 
 into a combination for the object of interfering with the perfect 
 freedom of action of another man, it is an offense at common 
 law.' 
 
 A combination of employes whose aim it is to dictate to an em- 
 ployer whom he should discharge from his employ is unlawful, as 
 an unwarrantable interference with the conduct of his busi- 
 ness.' 
 
 A letter written by a " chairman " of an organized body to an 
 employe in a shop that he might remain in it to do a particular 
 kind of work, but to confine himself to work designated by the 
 writer, is an unwarrantable interference with the business.* 
 
 It is an indictable conspiracy for several employes to combine 
 and notify their employer that, unless he discharges certain 
 enumerated persons, they will in a body quit his employment.* 
 
 ^Walker v. Cronin, 107 Mass. 555; Carew v. Rutlierford, 106 Mas?. 1; Buffalo 
 Lubricating Oil Co. v. Standard Oil Co. 8 Cent. Rep. 667, 106 N. Y. 669; 
 Buffalo Lubricating Oil Co. v. Everest, 30 Hun, 586; Johnston Harvester 
 Co. V. Meinhardt, 9 Abb. N. C. 393; Mapstrick v. Romge, 9 Neb. 390; 
 Raskins v. Royster, 70 N. C. 601; Baughman v. Richmond Typographical 
 Union, 11 Va. Law Journal (April, 1887), 196; Jonei v. Blocker, 43 Ga. 
 331; Payne v. Western & A. R. Co. 13 Lea, 507. 
 
 ^Springhead Spinning Co. v. Riley, L. R. 6 Eq. 551. 
 
 ^Statev. Donaldson, 33 N. J. L. 155; Rex v. Ferguson, 2 Stark. 489; Rex v. 
 Ryckerdike, 1 Mood. & R. 179. 
 
 *Re Wabash R. Co. 24 Fed. Rep. 220. 
 
 *State V. Donaldson, 32 N. J. L. 155, following State v. Norton. 23 N. J. L. 44, 
 and disapproving State v. Rickey, 9 N. J. L. 364; Old Dominion 8. S. Co. 
 V. McKenna, 24 Blatchf, 244, 30 Fed. Rep. 48.
 
 408 CONSPIRACY AT COMMON LAW CONTINUED. 
 
 Where shoemakers combine, agreeing not to work for anyone 
 who employs men working below the standard of wages fixed by 
 themselves, the combination is void.' 
 
 Where penalties are prescribed by a trades union to be paid by 
 employers for violation of its rules in order to secure immunity 
 from interference, it is illegal.^ 
 
 Rules which provide that no member shall call at any shop,, 
 where a dispute has arisen, and for reference to the executive 
 council of such dispute, are illegal/ 
 
 So an association formed under a rule which provides that a 
 member binding his son in a shop where non-union men are em- 
 ployed should be fined, is illegal.* 
 
 Displaying banners with devices as a means of threat and in- 
 timidation to prevent others from entering into a person's employ- 
 ment will be restrained by injunction at the suit of the employer.^ 
 
 The reports, English and American, are full of illustrations of 
 the doctrine that a combination of two or more persons to effect 
 an illegal purpose, either by legal or illegal means, whether such 
 purpose be illegal at common law or by statute ; or to effect a legal 
 purpose by illegal means, whether such means be illegal at com- 
 mon law or by statute, is a common law conspiracy. Such com- 
 binations are equally illegal whether they promote objects or 
 adopt means that ureper se indictable, or promote objects or 
 adopt means that arejper se oppressive, immoral, or wrongfully pre- 
 judicial to the rights of others. If they seek to restrain trade, or 
 tend to the destruction of the material prosperity of the country, 
 they work injury to the whole public. These propositions are the 
 
 ^People V. Fisher, 14 Wend. 9; The Cordwainer's Case, 1 Yates, Sel. Cas. 112; 
 People V. Treguier, 1 Wheeler, Crim. Cas. 143. 
 
 ^Carew v. Rutherford, 106 Mass. 1. 
 
 ^Hornby v. Close, L. R. 2 Q. B. 153. 
 
 '^Rigby v. Connol, L. R. 14 Ch. Div. 482; Hornby v. Close, L. R. 2 Q. B. 
 153. 
 
 ^Sherry v. Perkins, 6 New Eng. Rep. 561, 147 Mass. 212; Walker v. Cronin, 
 107 Mass. 555; Oilbert v. Mickle, 4 Sandf. Ch. 357, 7 L. ed. 1132; Spring- 
 head Spinning Co, v. Riley, L. R. 6 Eq. 551; Boston Diatite Co, v. Flor- 
 ence Mfg, Co. 114 Mass. 69; Prudential Assur, Co. v. Knott, L. R. 10 Ch. 
 142; Saxby v. Easterbrook, L. R. 3 C. P. Div. 339; Rer7nann Loog v. 
 Bean, L. R. 26 Ch. Div. 306; Thorley's Cattle Food Co. v. Massam, L. R. 
 14 Ch. Div. 763; Thomas v. Williams, L. R. 14 Ch. Div. 864; Hill v. Hart- 
 Davies, L.R. 21 Ch. Div. 798; Day v. Brownrigg, L. R. 10 Ch. Div. 294; 
 Oaskin v. Balls, L. R. 13 Ch. Div. 324.
 
 PKESEIiT CONDITION OF LAW CONCERNING TRADE. 409' 
 
 clear deduction of the cases, and breathe the spirit of equality and 
 justice. 
 
 The principle upon which the cases, English and Anierican,^ 
 proceed, is that every man has the right to enijjloy his talents, 
 industry, and capital as he pleases, free from the dictation of 
 others ; and if two or more persons combine to coerce his choice 
 in this behalf, it is a criminal conspiracy. The labor and skill of 
 the workman, or the professional man, be it of high or low 
 degree, the plant of the manufacturer, the ecpiipment of the- 
 farmer, the investments of commerce, are all, in equal sense, 
 property. If men by overt acts of violence destroy either, they 
 are guilty of crime. The anathemas of a secret organization of 
 men combined for the purpose of controlling the industry of 
 others by a species of intimidation that works upon the mind, 
 rather than the body, are quite as dangerous, and generally alto- 
 gether more effective than acts of actual violence. And while 
 such conspiracies may give to the individual directly affected by 
 them a private right of action for damages, they at the same time 
 lay a basis for an indictment, on the ground that the State itself 
 is directly concerned in the promotion of all legitimate industries 
 and the development of all its resources, and owes the duty of 
 protection to its citizens engaged in the exercise of their callings. 
 The good order, peace, and general prosperity of the State are 
 directly involved in the question. 
 
 The exposure of a legitimate business to the control of an asso- 
 ciation that can order away its employes, and frighten away 
 others that it may seek to employ, and thus compel it to cease the 
 further prosecution of its work, is a condition of things utterly at 
 war with every principle of justice, and with every safeguard of 
 protection that citizens under our system of government are 
 entitled to enjoy. The direct tendency of such intimidation is to 
 establish over labor and over all industries a control that is un- 
 known to the law, and that is exerted by a secret association of 
 conspirators, that is actuated solely by personal considerations, 
 and whose plans, carried into execution, usually result in violence 
 and the destruction of property. 
 
 That evils exist in the relations of capital and labor, and that 
 workmen have grievances that oftentimes call for relief, are facts
 
 •±10 CONSPIRACY AT COMMON LAW CONTINUED. 
 
 that observing men cannot deny, but the remedy cannot be found 
 in secret conspiracies nor in the boycott.' 
 
 Indeed the essential and criminal idea of " boycotting " is a con- 
 federation, generally secret, of many persons whose intent is to 
 injure another by preventing any and all persons from doing busi- 
 ness with him through fear of incurring the displeasure, persecu- 
 tion, and vengeance of the conspirators." 
 
 Trade conspiracy frequently contemplates boycotting as a means 
 to the end sought, that is the coercion of the party conspired 
 against. The word is not easily defined. It is frequently spoken 
 of as passive, merely, — a let-alone policy, a withdrawal of all busi- 
 ness relations, intercourse, and fellowship. If that is its only 
 meaning, the individual withdrawal of patronage, it will be 
 difficult to find anything in it criminal. AVe may gather some 
 idea of its real meaning, however, by a reference to the circum- 
 stances under which the word originated. Those circumstances are 
 thus narrated by Mr. Justin H. McCarthy, an Irish writer of 
 learning and ability, who will be recognized as good authority. 
 In his work entitled " England under Gladstone," he says: "The 
 strike was supported by a form of action, or rather inaction, 
 which soon became historical. Captain Boycott was an English- 
 man, an agent of Lord Earne, and a farmer of Lough Mask, in 
 the wild and beautiful district of Connemara. In his capacity as 
 agent he had served notices upon Lord Earne's tenants, and the 
 tenants suddenly retaliated in the most unexpected way by, in 
 the language of schools and society, sending Captain Boycott to 
 Coventry in a very thorough manner. The population of the 
 region for miles around resolved not to have anything to do with 
 him, and, as far as they could prevent it, not to allow anyone else 
 to have anything to do with him. His life appeared to be in 
 danger ; he had to claim police protection. His servants fled 
 from him as servants flee from their masters in some plague- 
 stricken Italian city. The awful sentence of excommunication 
 •could hardly have rendered him more helftlessly alone for a time ; 
 no one would work for him ; no one would supply him with food. 
 
 ^Statev. Stewart, 4 New Eng. Rep. 378, 59 Vt. 273. 
 
 ^ Crump V. Com. 84 Va. 927; M'^fful S. S. Co. v. McGregor, L. R. 15 Q. B. 
 
 Div. 476; Beg. v. Parnell, 14 Cox, C. C. 508; State v. Qlidden, 3 New 
 
 Eng. Rep. 849, 55 Conn. 4G.
 
 PRESENT CONDITION OF LAW CONCERNING TRADE. 411 
 
 He and his wife liad to work in their own fields themselves, in 
 most unpleasant imitation of Theocritan shepherds and shepherd- 
 esses, and play out their orrim eclogue in their deserted fields, 
 with the shadows of the armed constabulary ever at their heels. 
 The Orangemen of the north heard of Captain Boycott and his 
 snfi!erings. and the way in which he was holding his ground, and 
 they organized assistance and sent him down armed laborers from 
 Ulster. To prevent civil war, the authorities had to send a force 
 ■of soldiers and police to Lough Mask, and Captain Boycott's har- 
 vests were brought in, and his potatoes dug, by the armed Ulster 
 laborers, guarded always by the little army.'' * 
 
 But whenever courts of law have made use of the term " boy- 
 <?otting," they have applied it to some phase of conspiracy ; as a 
 combination and agreement among defendants, owners of steam- 
 ers, with intent to injure plaintiffs and prevent them from obtain- 
 ing cargoes for their steamers between ports, agreeing to refuse, 
 and refusing, to accept cargoes from shippers, except upon terms 
 that shippers could not ship by plaintiff's steamers, and threaten- 
 ing to stop shipment of homeward cargoes altogether, which 
 threats they carry into effect," 
 
 The agreement with keepers of particular boarding-houses not 
 to ship sailors at the offices of certain notaries is a conspiracy, it is 
 boycotting.' 
 
 To incite persons to prevent others from taking or occupying 
 farms from which others have been evicted for nonpayment of 
 rent is an offense at common law. A combination to prevent 
 persons buying goods taken in execution is an offense at common 
 law, and is a crime, if the means to carry out these incitements 
 were those commonly known as boycotting.* 
 
 Every man has the right to employ his talents, industry, and 
 •capital as he pleases, free from the dictation of others ; and if two 
 or more persons combine to coerce his choice in this behalf, it is 
 .a criminal conspiracy, whether the means employed are actual 
 ^violence or a species of intimidation that works upon the mind.'' 
 
 ^State V. Glidden, 3 New Eng. Rep. 849, 55 Conn. 46. 
 
 ^Mogul S. S. Co. V. McGregor, L. R. 15, Q. B. D. 476. 
 
 ^Emanual's Case, 6 City Hall Rec. 33. 
 
 *Iieg. V. Parnell, 14 Cox, C. C. 508. 
 
 ^State V. Stewart, 4 New Eng. Rep. 378, 59 Yt. 273.
 
 412 CONSPIKACy AT COMMON LAW — CONTINUED. 
 
 § 78. Indictments for Conspiracy. — Generally the conspiracy 
 is indictable as a common law offense, when such offenses are 
 recognized as existing at common law.* 
 
 A conspiracy to commit an abortion is not a felony at common 
 law.^ 
 
 In states where common law crimes are recognized, the legisla- 
 tion on the subject of conspiracy does not usually abolish the- 
 common law offense.^ The venue where any act in giving effect 
 to the conspiracy was performed by any member of the confed- 
 eration, may be the place selected for bringing the indictment 
 against all the parties concerned in the conspiracy.* 
 
 In stating the object of a conspiracy in an indictment, the same 
 certainty and strictness are not required as in the case of an in- 
 dictment for the offense conspired to be committed.* 
 
 A general allegation that two or more person conspired to effect 
 an object criminal in itself — as to commit a misdemeanor or felony — 
 is sufficient, even although the indictment omit all charges of the 
 particular means to be used,' and the cases are now equally uni- 
 form in holding that if the agreement or combination be to do an 
 act or to effect an object not criminal, by the use of unlawful 
 means, a general charge of a conspiracy to effect the object is not 
 sufficient, and the charge of such a conspiracy must be accompa- 
 nied with a particular statement of the means by which the object, 
 of the conspiracy was to be effected, so that these means may 
 appear to be criminal, or the indictment will be bad.^ 
 
 It is only necessary to set forth the specific means intended to- 
 be employed, when the act to be done is itself lawful, but the 
 
 ^ State V. Mrfon, 23 N. J. L. 33; Com. v. Hunt, 4 Met. Ill; State v. PuUe, 
 12 Minn. 164. 
 
 ^Scott V. Eldridfje (Mass.) 12 L. R. A. 379; Com. v. Demain, Brightly, 441;. 
 Eeg. V. Banks, 12 Cox, C. C. 393; State v. Jackson (Tenn.) 12 L. R. A. 370, 
 note. 
 
 ^State V. Norton, 23 N. J. L. 33. 
 
 *Com. V. Codies, 3 Brewst. 575; Rex v. Ferguson, 2 Stark. 489. 
 
 '■United States v. Stevens, 44 Fed. Rep. 132. See also Com. v. Meserve, 154' 
 Mass. 64; Moschell v. State (N. J.) June 4, 1891; United States v. Lan- 
 caster, 10 L. R. A. 317. 44 Fed. Rep. 885. 
 
 ^St/itev. Keach, 40 Vt. 113; Slate v. Ormistvi, 68 Iowa, 143; People v. Pether- 
 am, 7 West. Rep. 392, 64 Mich. 252; People v. Clark, 10 Mich. 310. 
 
 ''State V. Stewart, 4 New Eog. Rep. 378, 59 Vt. 273.
 
 INDICTMENTS FOR CONSPIRACY. 413 
 
 -combination is to do it in an unlawful manner. The allegation 
 of the means intended to be used only then becomes important in 
 order to show the criminal or unlawful purpose/ 
 
 When the act contemplated is unlawful in itself, the means in- 
 tended to accomplish it need not be alleged.^ 
 
 To wrongfully injure the person of another is at least a misde- 
 meanor and conspiracy, for that purpose is sufficiently charged 
 mthout means intended being stated.^ 
 
 In charging a conspiracy to seduce a girl, it is not necessary to 
 show the means intended to be used were unlawful or criminal.' 
 
 The court may direct that a bill of particulars be given, when 
 the indictment is not sufficiently specitic in its terms, but not to 
 include the particular acts, nor the locality or date." 
 
 When the criminality of a conspiracy consists in an unlawful 
 agreement of two or more persons to compass or promote some 
 criminal or illegal purpose, that purpose must be fully and clearly 
 stated in the indictment; and if the criminality of the olfense 
 which is intended to be charged, consists in the agreement to 
 compass or promote some purpose not of itself criminal or unlaw- 
 ful, by the use of fraud, force, falsehood, or other criminal or un- 
 lawful means, such intended use of fraud, force, falsehood or other 
 -criminal or unlawful means must be set out in the indictment.' 
 
 Lambert v. People, 9 Cow. 5TS, decided simply that the frame 
 
 ^ People Y. Richards, 1 Mich. 216: State v. Crowley. 41 Wis. 271; People v. 
 Barkelow, 37 Mich. 455; Com. v. Eastman, 1 Cush. 190; State v. Jones, 13 
 Iowa, 269; State v. Potter, 28 Iowa, 554; State v. Steicart, 4 New Eng. 
 Rep. 378, 59 Vt. 273. 
 
 '^People V. Clark, 10 Mich. 310; State v. Bray. 107 N. C. 822; United States 
 V. Gardner, 42 Fed. Rep. 829; Sydserf v. Reg, 11 Q. B. 245: Reg. v. 
 Ileymann, L. R. 8 Q. B. 102; Latham v. Reg, 9 Cox, Cr. Cas. 516. But 
 in Montana the means must be stated. Territory v. Garland, 6 Mont. 
 14. And in Texas the acquisition of the property, under an indictment 
 for swindling must be alleged. Cannon v. State (Tex. App.) 15 S.W. 117. 
 
 ^State V. Ormiston, 66 Iowa, 143. 
 
 * Smith V. People, 25 111. 17. 
 
 ''Reg. V. Kenrick, 5 Q. B. 49; Reg. v. Brown. 8 Cox. C. C. 69; Reg. v. Ry- 
 croft, 6 Cox, C. C. 76; Reg. v. Hamilton, 7 Car. & P. 443; State v. Bart- 
 lett, 30 Me. 132; Com. v. McKisson, 8 Serg. & R. i20: State v. Buchanan, 
 5 Harr. & J. 317; People v. Richards, 1 Mich. 216; Com. v. Warren, 6 
 Mass. 72; Reg. v. Esdaile, 1 Fost. & F. 213. 
 
 «Co?n. V. Emit, 4 Met. Ill ; 1 East, P. C. 461 ; 1 Stark. Crim. PI. (2d ed.) 156; Op. 
 Spencer Sen. 9, Co. 586; Cole v. People, 84 III. 216; Smith v. People, 25 111. 
 17; People v. Petheram, 7 West. Rep. 392, 64 Mich. 252; Com. v. Shedd, 
 7 Cush. 515.
 
 414 CONSPIRACY AT COMMON LAW CONTINUED. 
 
 of the indictment was defective in not specifying the means bjr 
 which the conspiracy was to be effected/ 
 
 "When the means used are unlawful under the statute, and the- 
 purpose is unlawful at common law, the words of the statute may 
 be used without setting forth their meaning, and it is unnecessary 
 to state specifically the kind of threats, or methods of intimida- 
 tion used. 
 
 AVhere the charge is that the defendants "unlawfully, fraudu- 
 lently and deceitfully did conspire, combine, confederate and 
 agree together to cheat and defraud" it is sufficient.^ 
 
 The doing of an overt act must be charged, though the partic- 
 ular act is not set out, nor actual injury alleged, and except when 
 the conspiracy is to cheat a particular set of persons or the pub- 
 lic generally, the names of the persons intended to be imposed 
 upon must be stated if known.^ 
 
 In Reg. v. Rowlands, 17 Q. B. 671, the indictment charged a. 
 conspiracy to force workmen to quit the employment of certain 
 persons by the use of threats and intimidation. The Statute of 
 6 Geo. IV., chap. 129, § 3, forbids the use of such means, and the 
 court said: "It is objected that some counts do not disclose the 
 nature of the molestation or intimidation by which the conspiracy 
 was to take effect, but it is quite unnecessary." The words of the- 
 Legislature are used." 
 
 The words used in the statute have a meaning stamped upon 
 them by the Act itself, and it must be taken that they are used in 
 the indictment in the same sense, and they are not employed as 
 describing the substantive offense for which the indictment is 
 preferred, as that offense consists in the conspiracy, when that is 
 a common law offense. If the conspiracy is to commit an offense- 
 which is indictable it is sufficient to state the offense to be com- 
 
 ^State V. Norton, 23 N. J. L. 33. 
 
 "^SydserfY. Beg. 11 Q. B. 245. 
 
 ^McKee v. State. 9 West. Rep. 838, 111 Ind. 378: Rex v. DeBerenger, 3- 
 Maule & S. 67; Wood v. SUite, 1 Cent. Rep. 441. 47 N. J. L. AQ\;Com. v. 
 Fuller, 132 Mass. 563; Com. v. Judd, 2 Mass. 329; Com. v. Andrews, 133 
 Mass. 263; Miller v. State, 79 Ind. 198. 
 
 ^See Com. v. Dyer, 128 Mass. 70; State v. Cook, 38 Vt. 437; StaU v. Stewart, 
 4 New Eng. Rep. 378. 59 Vt. 273; State v. Jones, 33 Vt. 443; Beg. v. Row- 
 lands, 17 Q. B. 671.
 
 INDICTMENTS FOK CONSPIRACY. 415 
 
 mitted, in words that will describe it as a conclusion of law. Th& 
 means need not be particularly set out.' 
 
 If an act in its natural characteristics and quality is unlawful, 
 knowledge of its wrongful character is presumed, and no aver- 
 ment of such knowledge is required in the indictment. But it is- 
 otherwise when the act only becomes illegal or wrongful by the 
 presence of accidental or fortuitous features not usually attendant 
 upon the doing of the particular thing. Thus in State v. Car- 
 penter^ 54 Vt. 551, the respondent was presumed to know that it 
 was unlawful for him to assault an individual. But when the act 
 was enlarged to the offense of impeding an officer in the discharge 
 of his duty, it took on a character so abnormal that knowledge 
 of this artificial quality of his act by the respondent must be 
 alleged in order to lay a basis for the charge of a guilty intent.* 
 
 "Where a statute provides for the definition and punishment of 
 a felonious conspiracy, and for an additional punishment for any 
 overt act of a criminal nature, which is committed in pursuance 
 of the conspiracy, the whole being one transaction, the description, 
 in an indictment for the conspiracy of the crime as an entirety, is 
 necessary and proper, although such description requires the set- 
 ting out of the facts constituting the separate crime.^ 
 
 The offense of conspiracy may be complete without the com- 
 mission of the overt act which the conspirators agreed to commit.* 
 But of course no civil action will lie for simply conspiring to do 
 an unlawful act, as the act itself and resulting injury to plaintiff 
 are the very grounds of action.^ 
 
 Unless the statute requires that the overt act should be charged 
 if it has been committed, it is unnecessary to do so.^ But it must 
 be so alleged if the statute requires it.' 
 
 ^Statev. Ormiston, 66 Iowa, 143; Thomas v. People, 113 III. 531; State v. 
 
 Noyes, 25 Vt. 415; 8tate\. Bartlett, 30 Me. 133; State v. Bipky, 31 Me. 
 
 386; Hazen v. Com. 23 Pa. 355; Pewle v. Bus?i, 4 Hill, 133. 
 '^State V. Stewart, 4 New Eag. Rep. 378, 59 Vt. 273. 
 ^United States v. Lancaster, 10 L. R. A. 317, 44 Fed. Rep. 885. 
 *Com. V. Judd, 2 Mass. 329; Com. v. Warren, 6 Mass. 74; State v. ITbyes, 25- 
 
 Vt. 415; State v. Ormiston, 66 Iowa, 143; State v. Buchanan, 5 Harr. & 
 
 J. 317. 
 'Kimball v. Harman, 34 Md. 407; McEenry v. Sneer, 56 Iowa, 649. 
 ^State V. Ormiston, 66 Iowa, 143; Com. v. Wallace, 16 Gray, 222; Bowen v.. 
 
 Matheson, 14 Allen, 503. 
 'jStofe V. Norton, 23 N. J. L. 33; State v. Noyes, 25 Vt. 415; Collins v. Com.. 
 
 3 Serg. & R. 220; Com. v. Corlies, 8 Phila. 450.
 
 416 CONSPIRACY AT COMMON LAW CONTINUED 
 
 It may, indeed, be alleged in aggravation of the offense and 
 given in evidence to prove the conspiracy,' Though the ofiense 
 of conspiracy, even when the overt act is committed, is complete 
 before the commission of the overt act, in the sense that nothing 
 more is necessary to complete the crime, yet the conspiracy must 
 be deemed to continue until the overt act is committed;'* and it is 
 a renewal of the conspiracy.' 
 
 And in every case that can be adduced of conspiracy the offense 
 depends upon the unlawful agreement and not on the act which 
 follows it; the latter is but the evidence of the former. The 
 offense is therefore complete when the confederacy is made.* 
 
 A conspiracy is a substantive offense and punishable at common 
 law, though nothing be done in execution of it;* and all the 
 authorities agree that the conspiracy is the gist of the offense," 
 
 Under a statute declaring it a " criminal conspiracy to unlaw- 
 fully and maliciously obstruct and impede the business of corpor- 
 ations," the indictment need not set forth that the defendants did 
 more than conspire to do the acts.'' 
 
 From all which it results that every conspiracy to do an unlaw- 
 ful act, or to do a lawful act for an illegal, fraudulent, malicious, 
 or corrupt purpose, or for a purpose which has a tendency to 
 prejudice the pul)lic in general, is at common law an indictable 
 offense, though nothing be done in execution of it, and no matter 
 by what means the conspiracy was intended to be effected, which 
 means may be perfectly indifferent, and form no ingredient of 
 the crime, and therefore need not be stated in the indictment.' 
 
 ^State V. Mayberry, 48 Me. 218. 
 ^Gom. V. Coiiies, 3 Brewst. 575. 
 ^State V. Chapin, 17 Ark. 561; Com. v. White, 123 Mass. 430; Johns y. State, 
 
 19 Md. 421; Slate v. Hamilton, 13 Nev. 386. 
 *Rex V. Sx>ragg, 2 Burr. 993; Rex v. Rispal, 3 Burr. 1321; State v. Buchanan, 
 
 5 Harr. & J. 317; Collins v. Com. 3 Serg. & R. 220; Com. v. Judd, 2 Mass. 
 
 337; Com. v. Tibbetts, 2 Mass. 538; Corn. v. Warren, 6 Mass. 74; People 
 
 V. Mather, 4 Wend. 259; State v. Cawood, 2 Stew. (Ala.) 360; State v. 
 
 Rickey, 9 N. J. L. 364; Co7n. v. M'Kisson, 8 Serg. & R. 420. 
 «Book of Assises Ct. 44; The Poulterers Case (1611) 9 Rep. 55, Moore, 814; 
 
 Rex V. Edwards (1725) 1 Strange, 707, 1 Sess. Cas. 836, 8 Mod. 320; Rex 
 
 V. Eccles (1783) 1 Leach, C. C. 274; Rex v. De Berenger, 3 Maule & S. 68; 
 
 Rex V. Oill (1818) 2 Barn. & Aid. 204. 
 
 '^Rex V. Journeyman Tailors, 8 Mod. 11. 
 
 ''People V. Petheram, 7 West. Rep. 502, 64 Mich. 252. 
 
 ^Rex V. Eccles (1783) 1 Leach, C. C. 274; Rex v. QUI (1818) 2 Barn. & Aid. 
 204.
 
 INDICTMENT FOB CONSPIKACY. 417 
 
 In punishing a conspiracy, not carried into execution, the law- 
 does not punish a mere unexecuted intention. It is the act of 
 conspiring, not the mere intention to do this. Until the conspir- 
 acy is formed, it is mere individual intent and not punishable. 
 But when it is formed, each individual intent has been united in 
 one common purpose, and a new element of danger to social order 
 has sprung into existence ; an element whose essense is union, 
 and which in turn is met by the united force of the civil and 
 criminal law. The individual must rely on individual effort to 
 protect himself from individual falsehood, fraud and malice, and 
 when he fails he may resort to the civil law to redress his civil 
 wrongs, but against concerted fraud, falsehood and malice the law 
 interposes to avert the intended blow, and arrests the conspirators 
 before the consummation of the proposed purpose. The act of 
 •conspiring is like that of unlawful assembling. The act of assem- 
 bling to do an unlawful act is a crime, though no other act but the 
 meeting together for such purpose is shown. 
 
 The intention of any number of men acting separately, so long 
 as they do nothing, is not a crime of which the law will take cog- 
 nizance; but when several men form the intent and come together, 
 and agree to carry it into execution, the conspiracy as generally 
 defined by statute is completely formed. The combination then 
 becomes dangerous and subversive of the rights of others, and the 
 law declares it a crime.' The least degree of consent or collusion 
 between parties to an illegal transaction makes the act of one the 
 act of the others.^ But a mere presence on the occasion of the 
 conspiracy is not sufficient to make one guilty. One must incite, 
 procure, or encourage the act; ' but if one join the conspiracy 
 after it is formed, he becomes a co-conspirator, and the acts of 
 others become his acts by adoption." But that two conspired to 
 do an act so that a third person would commit a felony, does not 
 sufficiently charge that the purpose of conspiring to do the act was 
 to induce the third party to commit it.* 
 
 ^State V. Olidden, 3 New Eag. Rep. 849, 55 Conn. 46. 
 ^State V. Anderson, 92 N. C. 732. 
 
 ^Evans v. People, 90 III. 384; People v. Stevens, 68 Cal. 113. 
 ^United States v, Johnson, 26 Fed. Rep. 683. 
 *C(?OT. V. Barnes, 133 Mass. 242. 
 27
 
 418 COJSrSPIKACT at common law — CONTINUED. 
 
 The consummated conspiracy should be so alleged when the 
 facts will sustain the charge, and not the mere conspiracy to com- 
 mit the offense.' 
 
 The charge of conspiracy cannot be aided by averment of acts 
 done by one or more of the conspirators where the conspiracy 
 itself is not sufficiently charged.* 
 
 But there need not be a detailed statement of the connection 
 between the act alleged to be done and the conspiracy itself.* 
 The charge that a conspiracy existed to obstruct justice by divers 
 false pretenses and devices, is sufficient where it is followed by 
 an allegation that defendants have prevented the trial of the 
 cause.'' 
 
 All are charged as principals in a statutory conspiracy unless 
 otherwise charged as guilty in a less degree." 
 
 Where the counts in an indictment cover the same identical 
 acts, the divers felonies charged, or misdemeanors and felonies 
 may be joined," and where it appears that but one transaction 
 forms the basis of the different counts, the intent is manifest that 
 but one crime is charged.' While reference will not be tolerated 
 from one count to another, but the offense must be fully stated in 
 each; ' yet a verdict has been held to cure this defect.' 
 
 If it is intended to charge several illegal acts, the facts as to 
 each may be stated in g,eparate counts.'" The indictment may 
 charge the conspiracy as the substantive offense, or the conspiracy 
 
 ^Reg V Boulton, 12 Cox, C. C. 87; State v. Clary, 64 Me. 369; UniUd States 
 V. Cruikshank, 92 U. S. 542, 23 L. ed. 588; Reg. v. Selsbg, 5 Cox, C. C. 
 495, note; United States v. Gardner, 42 Fed. Rep. 829. 
 
 ^United States v. Britton, 108 U. S. 199, 27 L. ed. 698; United States v. Wat- 
 son, 17 Fed. Rep. 145. 
 
 ^United States v. Donau, 11 Blatchf. 168. 
 
 ^Schwab V. Mahley, 47 Mich. 572. See also United States v. Gardner, 43 
 
 Fed. Rep. 839. 
 ^-United States v. Bayer, 13 Nat. Bankr. Reg. 88, 400; Com. v. Gannett, 1 
 
 Allen, 7; Thornton v. State, 25 Ga. 303. 
 
 ^State V. Stewart, 4 New Eng. Rep. 378, 59 Vt. 273. 
 
 ■'Leslie v. Com. 82 Ky. 250; State v. Glidden,'_3 New Eng. Rep. 849, 55 Conn. 
 
 46. 
 ^State V. Norton, 23 N. J. L. 33. 
 *Reg. V. Aspinall, L. R. 1 Q. B. Div. 730. 
 ^''State V. Kennedy, 63 Iowa, 197.
 
 EVIDENCE IN CONSPIRACY. 419 
 
 may be charged in coimts which are joined with counts for the 
 substantive crime.' 
 
 § 79. Evidence in Conspiracy. — Conspiracy is in its nature a 
 joint offense, and cannot, either under common law or under stat- 
 ute, be committed by one alone; but the proof must show that two 
 or more persons were engaged in the offense.* 
 
 An action for a conspiracy will not therefore lie against a hus- 
 band and wife alone, as they are in law one person.^ Althougli 
 if a man and woman marry in the name of another for the pur- 
 pose of raising a specious title to the estate of the person whose 
 name is assumed, it is a conspiracy.^ 
 
 As soon as the union of wills for the unlawful purpose is per- 
 fected, the offense under the usual statutory definition of the 
 crime of conspiracy is complete. This joint assent of minds may 
 be established by facts and circumstances, and by even slight 
 evidence of collusion, or by circumstantial evidence. Evidence of 
 a conspiracy between two persons to commit an assault upon another 
 is not essential to the conviction of one who does not strike the 
 blow, when he was present prepared to assist, and did in fact in- 
 terfere by jumping upon the assailed person and seizing him, so 
 that it required two men to pull him off.* 
 
 An agreement, to constitute a conspiracy, need not be ex- 
 pressed in words, but may be gathered from the conduct of the 
 parties.* 
 
 The agreement itself is an act in advancement of the intent of 
 each.' 
 
 ^Burk V. State, 2 Harr. & J. 426; State v. Gaffney, 1 Rice, L. 431; State v. 
 Boise, 1 McMill. L. 190: State v. Montague, 2 McCord, L. 257; Harman 
 V. Com. 12 Serg. & R. 69; State v. Coleman, 5 Port. (Ala.) 32. 
 
 -4 Bl. Com. 137; Pollard v. Etam, 2 Show. 50; Evans v. People, 90 111. 384; 
 State V. Clinstianhury, 44 N. C. 48; Com. v. Manson, 2 Ashm. 31; Co}n. 
 V. Irwin, 8 Phila. 380. 
 
 ^Kirtley v. Deck, 2 Munf. 15. 
 
 *Bi«x V. Robinson, 1 Leach, C. C. 37. 
 
 '"State V. Gooch, 105 Mo. 392. 
 
 ^United States v. Logan, 45 Fed. Rep. 872: Spies v. People, 10 West. Rep. 
 701, 122 111. 1; State v. Wolcott, 21 Conn. 281; Riehl v. Evansville Foundry 
 Asso. 1 West. Rep. 885, 104 Ind. 70; Kelley v. People, 55 N. Y. 566; Mc- 
 Dowell V. Rissell, 37 Pa. 164; Evans v. Matson, 56 Pa. 54; Crary v. 
 Sprague, 12 Wend. 41; Arclierv. State, 4 West. Rep. 726, 106 Ind. 426; 
 Rex V. Cope, 1 Strange, 144; Rex v. Parsons, 1 W. Bl. 392. 
 
 ''Mulcahy v. Reg. L. R. 3 H. L. 306, Ir. Q. B. 1 Ir. R. 0. L. 13; United 
 States V. Stevens, 44 Fed. Rep. 133,
 
 420 CONSPIRACY AT COMMON LAW CONTINUED. 
 
 In criminal law no overt act is necessary to constitute the 
 offense.' Concurrence of sentiment and co-operative conduct in 
 a criminal enterprise, and not formality of speech, are the essen- 
 tial ingredients of a criminal conspiracy.'' 
 
 To constitute conspiracy the combination must l)e corrupt.' It 
 must be a joint, malicious and willful common purpose." 
 
 Statutes have been passed in various states to prevent and pun- 
 ish a course of proceeding not defined at the common law, and of 
 comparatively recent origin ; to punish all unlawful interference 
 with the business of another, when such interference is shown to 
 be willful and malicious, although the act is not inspired, as in 
 the common law oliense, by any particular wantonness, cruelty, 
 or revenge against the owner of the property, but to obstruct the 
 business of others that the conspirators may gain thereby some 
 advantage or profit to themselves. 
 
 In Michigan a statute declares that "if two or more persons 
 shall willfully and maliciously combine or conspire together to 
 obstruct or impede by any act, or by means of intimidation, the 
 regular operation or conduct of the business of any railroad com- 
 pany, or any other corporation, firm, or individual of this State, 
 or to impede, hinder or obstruct, except by due process of law, 
 the regular running of any locomotive, engine, freight or passen- 
 ger train on any railroad, or the labor and business of any such 
 corporation, firm or individual, such persons shall, on conviction 
 thereof, be punished," etc.* 
 
 Under this statute, malice against the owner of the business 
 disturbed, or his property, is not required to be shown in the 
 same sense as does the common law in cases of malicious mis- 
 chief." 
 
 Where a party is shown to have acted conjointly with others, 
 
 ^Com. V. Eastman, 1 Cush. 223; State v. Ripley, 31 Me. 388; Lambert v. 
 
 People, 9 Cow. 625; State v. Wilson, 30 Conn. 507; Alderman v. People, 4 
 
 Mich. 414; State v. Keac7i, 40 Vt. 113. 
 * Archer v. State, 4 West. Rep. 736, 106 Ind. 426-432; McKee v. State, 9 
 
 West. Rep. 840, 111 Ind. 378. 
 ^Wood V. State, 1 Cent. Rep. 441, 47 N. J. L. 461; People v. Flack, 11 L. R. 
 
 A. 807, 125 N. Y. 324. 
 "^People V. Petheram, 7 West. Rep. 592. 64 Mich. 252. 
 5How. Stat. § 9275. 
 ^People V. Petheram, 7 West. Rep. 592, 64 Mich. 252; McCartney v. Berlin 
 
 (Neb.) Feb. 18, 1891.
 
 EVIDENCE IN CONSPIKACY. 421 
 
 he cannot complain if lie is charged with having conspired with 
 them in producing the resnlts, even though the names of his co- 
 conspirators are unknown.' 
 
 Where a number of persons combine with a common design to 
 do an unlawful act to which the ordinary law of conspiracy 
 applies, the acts and declarations of each, done in furtherance 
 of the common design, are the acts and declarations of all.^ Each 
 conspirator is responsible for everything done by his confederates 
 which follows on the execution of the common design, as one of 
 its probable and natural consequences, even though it w^as not 
 intended as a part of the original design or common plan." 
 
 When men combine to do an unlawful thing, and in the prose- 
 cution of their intent one goes a step beyond the rest of the party, 
 and does acts which they do not perform, all are responsible for 
 what he does ; but there should be shown some concert of agree- 
 ment — an agreement to do some unlawful thing/ But if the act 
 is not the natural and probable outcome of the common design, 
 but is the independent act of some of the party, outside of the 
 common purpose, the others are not responsible for it." 
 
 When an unlawful act agreed to be done is not of a dangerous 
 or homicidal character, or its execution does not necessarily or 
 probably require the use of such force or violence as may naturally 
 or probably produce death, and a person is killed by one of the 
 conspirators while such act is being done, such killing is regarded 
 by the law as collateral to the conspiracy to commit the other 
 crime ; and he only who does the killing is liable for such killing." 
 
 Each conspirator is responsible only for things done by his 
 confederates which follow incidentally in the execution of the 
 common design, as its natural consequence. But it is not admis- 
 
 ^ People V. Mather, 4 Wend. 229; Bex v. Steel, 2 Moody, Crown Cas. 246. 
 
 ^Spies V. People, 10 West. Rep. 701, 122 111. 1. All of a series of forged notes 
 may be exhibited to show the plan of the conspiracy in their issuance. 
 Cord V. State, 7 West. Rep. 81, 109 Ind. 415. "Acts" embraces instru- 
 ment of writing, printed matter and everything done to carry forward 
 the conspiracy. Spies v. People, 10 West. Rep. 701, 122 111. 1. 
 
 'Bowero v. State, 24 Tex App. 542; State v. McCahill, 72 Iowa, 111; Lusk v. 
 State, 64 Miss. 845; Gibson v. State, 89 Ala. 121. 
 
 * United States v. Kane, 23 Fed. Rep. 748. 
 
 *Lusk V. State, 64 Miss. 845. 
 
 « United States v. Boyd, 45 Fed. Rep. 851.
 
 422 CONSPIKACY AT COMMON LAW CONTINUED. 
 
 sible to prove acts or declarations of co-conspirators not tending to 
 accomplish the common purpose/ 
 
 An agreement to commit a robbery is an agreement to do such 
 an act that if a person is killed in the execution of it all who are 
 in the conspiracy to rob, and are aiding in executing it at the 
 time of the killing, are guilty of murder ; for the crime of robbery 
 is homicidal in its character." 
 
 When the means are not specifically agreed upon, each con- 
 spirator becomes responsible for the means used by any co-con- 
 spirator in the accomplishment of the purpose.^ 
 
 One engaged in a conspiracy to mob prisoners in custody of 
 the law is none the less liable to punishment because he went with 
 the prisoners as guard or was an officer in charge of them." 
 
 The same rule as to the admission of acts or declarations of 
 one conspirator applies in civil as well as in criminal cases.'' 
 
 When a conspiracy is charged between two or more, the acts 
 of one person engaged in the conspiracy are the acts of all the 
 conspirators, and may be alleged in the declaration as the indi- 
 vidual acts of the one.' 
 
 When several persons take part in the execution of a criminal 
 purpose, all are equally liable for the acts of each, and for the 
 incidental and probable consequences of the joint purpose.'' 
 
 ^Long V. State, 13 Tex. App. 211; U. S. v. Gunnell, D. C. 3 Cent. Rep. 764; 
 State V. Eirkpairick. 42 Fed. Rep. 689; State v. Fredericks, 85 Mo. 145; 
 Strout V. Packard, 76 Mo. 148. 
 
 ^United States v. Boyd, 45 Fed. Rep. 851. 
 
 ^Spies V. People, 10 West. Rep. 701, 122 111. 1. 
 
 " United States v. Logan, 45 Fed. Rep. 872. 
 
 ^Smith V. Freeman, 71 Ind. 85; Hague v. McClintock, 76 Ind. 205; Wolfe v. 
 Piigh, 101 Ind. 293: Daniels v. McGinnis, 97 Ind. 549; Card v. State, 7 
 West. Rep. 81, 109 Ind. 415. 
 
 ^Booker v. Puyear, 27 Neb. 346. 
 
 "^ Frank v. State, 27 Ala. 37; Thompson v. State, 25 Ala. 41; People v. Wood- 
 ward, 45 Cal. 293; Oriffin v. State, 26 Ga. 493; Hanna v. People, 86 111. 
 243; Brennan v. People, 15 111. 511; Willinim v. People, 54 111. 422; Wil- 
 liams V. State, 47 Ind. 56S; C»m. v. Campbell, 7 Allen, 541; Com. v. 
 Knapp, 9 Pick. 496; People v. Knapp, 26 Mich. 112; Oreen v. State, 13 
 Mo. 382; Norton v. People, 8 Cow. 137; Ruloff v. PeopU. 45 N. Y. 213; 
 Carrinqton v. People, 6 Park. Crim. Rep. 336; Com. v. Neills, 2 Brewst. 
 553; Com. v. Daley, 2 Pa L. J. 361; Bree'<e v. State, 12 Otiio St. 146; 
 Com. V. Hare, 2 Pa. L. .1. 467; Moody v. State, 6 Coldw. 299; Berry v. 
 State, 4 Tex. App. 492; United States v. Ro.^s, 1 Gall. 624; Miller v. State, 
 25 Wis. 384; Reg. v. Hilton, 5 U. C. L. J. 70; Reg. v. Sl<ivin, 17 U. C. C. 
 P. 205; Rex v. Lockett, 7 Car. & P. 300; Rex v. Passey, 7 Car. & P. 282; 
 Reg. V. Cruise, 8 Car. & P. 541; Reg. v. Howell, 9 Car. & P. 437; Rex v.
 
 EVIDENCE IN CONSPIRACY. 423 
 
 It is immaterial at what time one charged with the conspiracy 
 to commit a crime is shown to have entered the consi^iracy.' 
 
 Each person who joins a conspiracy at any time, whether at its 
 inception or afterwards, becomes Hable for all that is done at any 
 time, in the prosecution of the conspiracy, to effect its unlawful 
 object.^ 
 
 It is not necessary that the accused should have been the 
 original contriver of the mischief for he may become a companion 
 in it by assisting the others while it is being executed/ 
 
 When persons knowingly promote and participate in an unlaw- 
 ful scheme to advance the price of a commodity, they are all 
 principals, although one of them acts in some respects in subordi- 
 nation to the others, and is to profit less than the others, or not 
 at all/ 
 
 Everyone who enters into a common purpose or design is gen- 
 erally a party in law to every act which may afterwards be done 
 by any of the others or which had been before done in further- 
 ance of such common design/ 
 
 Evidence of acts or statements of co-conspirators are admis- 
 sible against one sought to be convicted of a felony by evidence of 
 a conspiracy, only when they were performed or made at times 
 the proof permits of a belief that a conspiracy existed and when 
 they might have been in furtherance of the common design/ 
 
 An information which alleges that the defendants conspired to 
 threaten and use means (the boycott) to intimidate a publishing 
 
 Higgins, 2 East, 5; Duffey's Case, 1 Lew. 194: Rex v. Hodgson, 1 Leach, 
 C. (J. 7; Reg. v. Taylor, L. R. 2 C. C. 147; Rex v. Standley, Russ. & R. 
 305, 1 Hale, P. C. 439, 462, 2 Hawk. P. C. chap. 29, § 8. 
 
 ^Smith V. Slate, 21 Tex. App. 96. 
 
 '^United States v. Logan, 45 Fed. Rep. 872. 
 
 ^Spies V. People, 10 West. Rep. 701, 122 111. 1. 
 
 ^Leonard v. Poole, 4 L. R. A. 728, 114 N. Y. 371. 
 
 K'ard v. State, 7 West. Rep. 82, 109 Ind. 415; McKee v. State, 9 West. Rep. 
 838, 111 lad. 378; Williams v. Slate, 47 Ind. 568; Jones v. State, 64 Ind. 
 473; Walton v. State, 88 Ind. 9; Archer v. Slate, 4 West. Rep. 726, 106 
 Ind. 426; Nudd v. Burraics, 91 U. S. 426, 23 L. ed. 286. 
 
 "^People V. Kief, 126 N. Y. 661; State v. Brady, 107 N. C. 822; Barkley v. 
 Uopeland, 86 Cal. 492, modifying 86 Cal. 483; Shelby v. Com. (Ky.) 16 S. 
 W. 461; Rolling v. Pueblo County Comrs. 15 Colo. 103; Poe v. Stockton, 
 39 Mo. App. 550; Brackett v. Griswold, 69 Hun, 617. But statements 
 made before the commission of the crime, by one jointly indicted but 
 not on trial, are not admissible until after proof of conspiracy. Belcher 
 V. Slate. 125 Ind. 419.
 
 424 CONSPIRACY AT COMMON LAW — CONTINUED. 
 
 company, to compel it, against its will, to abstain from doing an 
 act (to keep in its employ wT)rkmen of its own choice) which it 
 had a legal right to do, and to do an act (employ the defendants 
 and such persons as they should name) which it had a legal right 
 to abstain from doing, charges acts clearly prohibited. The fact 
 that the threat is designed as a means to an end, and that end in 
 itself considered a lawful one, does not devest the transaction of 
 its criminality. They had not the right to say to the publishing 
 company: "You shall do this or we will ruin your business." It 
 is no answer to say that the conspiracy was for a lawful purpose; 
 to better their own condition; to fix and advance their rate of 
 wages, and further their own material interest. The charge that 
 this conspiracy contemplated the wholesale boycotting of the 
 patrons of the publishing company states an offense. Prima facie 
 such conduct must be considered malicious and corrupt. Where 
 there was proof that the "boycott" was inaugurated and prosecuted 
 by a typographical union, of which the five or six persons in 
 conversation, including the identified defendant, were members 
 their declarations were admissible. Evidence was properly ad- 
 mitted of a conversation between five or six printers, members of 
 the union, among whom was one identified as a defendant, and 
 others not identified. Evidence was properly admitted after there 
 had been proof introduced tending to show that a particular de- 
 fendant had been active in attempting to induce the public not to 
 patronize the paper published by the publishing company. It. 
 was held proper, on the trial, to admit the declarations of a con- 
 spirator, not a defendant, made in the presence of one of the 
 defendants, to a workman of the company, for the purpose of 
 inducing him to join the conspiracy, that he believed that the 
 company would not fight, as another publishing company had 
 done. A circular as follows, in large letters, "A word to the wise 
 is sufficient: Boycott the Journal and Courier," was ruled to be 
 admissible in evidence. A notice to the "News" that it would be 
 charged $50 per week as its share of the expense of the "boycott'' 
 was admissible for the purpose of proving that defendants com- 
 mitted a similar offense, with the purpose to pursue the same 
 general policy.* 
 
 ^ State V. GUdden, 3 New Eng. Rep. 849, 55 Conn. 46; Com. v. Curren, S 
 Pittsb. 143.
 
 EVIDENCE IN CONSPIKACY. 425 
 
 The acts and declarations of one conspirator, made in the ab- 
 sence of the others, in furtherance of the common design, are in 
 ordinary cases only admissible after a prima facie case of conspir- 
 acy has been made out by competent evidence.' 
 
 The admission in evidence of statements of alleged co-conspira- 
 tors, made in the absence of the defendant, before the existence 
 of the conspiracy has been established, is within the discretion of 
 the trial judge. Declarations of co-conspirators, made in the 
 absence of defendant, are admissible against him when made in 
 furtherance of the conspiracy, but not when made in a casual 
 conversation with neighbors, and not in furtherance of the con- 
 spiracy, although relating to the subject-m.atter thereof.' 
 
 Yet when several men form the intent and come together and 
 agree to carry it into execution, this agreement is a step in tiie 
 direction of accomplishing the purpose, and it is a crime.' And 
 if it be proved that the defendants pursued by their acts the same 
 object, often using the same means, one performing one part, and 
 another another part of the same object, the jury will be justiHed 
 in concluding they were engaged in a conspiracy to effect the 
 same object.* 
 
 The rule requiring a conspiracy to be first established cannot 
 well be enforced where the proof of the conspiracy depends upon 
 a vast amount of circumstantial evidence, a vast amount of isolated 
 and independent facts; and in any case, where such acts and 
 declarations are introduced in evidence, and the entire proof, 
 taken together, shows that such conspiracy actually exists — it will 
 be considered immaterial whether the conspiracy was established 
 before or after the introduction of the acts and declarations of the 
 several persons charged." 
 
 The prosecutor may either prove the conspiracy which renders 
 the acts of the conspirators admissible in evidence, or he may 
 prove the acts of the different persons, and thus prove the con- 
 spiracy.* 
 
 ^Moore v. Shields, 121 Ind. 267. So the threats of one conspirator made in 
 the absence of the other. Slade v. State, 29 Tex. App. 381. 
 
 ^Siate V. McOee, 81 Iowa, 17. 
 
 'State V. Olidden, 3 New Eng. Rep. 849, 55 Conn. 46. 
 
 *The Musftel Slough Case, 5 Fed. Rep. 680. 
 
 ''State V. Winner, 17 Kan. 298; Spies v. People, 10 West. Rep. 701, 122 111. 1. 
 
 *Roscoe, Critn. Ev. (7th ed.) p. 415.
 
 426 CONSPIRACY AT COMMON LAW CONTINUED. 
 
 As between conspirators, antecedent acts and declarations of 
 each, pending and in pursuance of tlie common design, and tend- 
 ing to throw light upon its execution or upon the motive or intent 
 of its perpetrators, are competent evidence against each and all of 
 them.' 
 
 When a conspiracy has been proved sayings and movements of 
 defendant's co-conspirators before the perpetration of the crime 
 are admissible against the defendant, although occurring in his 
 absence." 
 
 But when the common design has been consummated nothing 
 said or done by one can affect the other.^ 
 
 Where a conspiracy arises out of a concert of action and with- 
 out any previous agreement as to its purpose or extent, the respon- 
 sibility of any one of the consjjirators ceases when he withdraws 
 his aid and encouragement or countenance from the enterprise, 
 but his mere absence from the scene of the unlawful act will not 
 exonerate him wdien he lends his aid and encouragement to the 
 acts and the purpose for which they are committed.* So long as 
 tlie conspiracy continues, the act or declaration of one, though in 
 the absence of the other, is evidence against the latter.^ The rec- 
 ord of the acquittal of one is admissible on trial of others cliarged 
 with him with conspiracy.' 
 
 Where an unlawful plot to advance the price of lard is entered 
 into, one of the parties thereto cannot be aided by the court to an 
 accounting against another party to the contract, even if the 
 latter is only an agent of the former, where there has been no 
 
 ^ Clark V. State, 28 Tex. App. 189; Thomas v. State, 1 West, Rep. 309, 103 
 Ind. 432; Walton v. State, 88 Ind. 9; Daniels v. McOinnis, 97 Ind. 549; 
 Harding V. State, 54 Ind. 359; Williams v. State, 81 Ala. 1; Brown v. 
 Berr, 21 Neb. 113; Slate v. Qlidden, 3 New Eng. Rep. 849, 55 Conn. 46; 
 Tucker Y. Finch, 66 Wis. 17; Owens v. State, 16 Lea, 1; Campbell v. Com. 
 84 Pa. 187; State v. McCahill, 72 Iowa, 111; Card v. State, 7 West. Rep. 
 81, 109 Ind. 415; Hex v. Hammond, 2'Ea?,\>. 719; People v. Mather, 4 Wend. 
 261; United States v. Cole, 5 McLane, 601; Reg. v. Most, L. R. 7 Q. B. 
 Div. 244. 
 
 '^ Clark V. State, 28 Tex. App. 189. 
 
 ^Owens V. State, 16 Lea, 1; Johnson v. State, 48 Ga. 116; Willei/ v. State, 
 Tex. 85 U. S. 570. 
 
 ^State V. McCahill, 72 Iowa, 111. 
 
 "Scott V. Slate, 30 Ala. 503, 509, 510; O'Mal v. State, 14 Tex, App. 582. 
 
 ^Paul V. State, 12 Tex. App. 346.
 
 EVIDENCE IN CONSPIRACY. 427 
 
 accountino; or admission, of indebtedness or promise to pay since 
 the completion of the illegal scheme.' 
 
 In a suit to recover damag-es for a loss occasioned by a conspir- 
 •acy to injure plaintilf's business by driving away customers, dec- 
 larations of customers as to wby they withdrew their custom, 
 made at the time of withdrawing, are admissible as part of the 
 7'es gestae^ 
 
 Trespass on the case may be maintained for conspiracy to defame 
 and thereby injure one in his business, when, in pursuance of the 
 <;ombination, means have been employed which tended to accom- 
 pHsh the object of the conspirators.' 
 
 In an action against two or more in case, in the nature of a con- 
 spiracy, if the tort be actionable, whether committed by one or 
 more, recovery may be had against but one, otherwise proof of 
 the conspiracy is essential." 
 
 But conspiracy is not the subject of a civil action until a third 
 person has sulfered a damage from something done under it. 
 Then and not before, he may sue; and the wrong inflicted, not 
 the combination to do it, is the real foundation of the action." 
 
 In an action for damages resulting from a conspiracy to defraud 
 the plaintiff, it is not necessary to a recovery that there should 
 be actual evidence that the defendants conspired together, if there 
 is proof that by their wrongful acts they have injured the plam- 
 tiff.' 
 
 ^Uonard v. Poole, 4 L. R. A.. 728, 114 N. Y. 371: Barilett v. Smith, 13 Fed. 
 
 Eep. 263; OM v. Prell, 15 Fed. Rep. 774; Irwin v. WUliar, 110 U. S. 
 
 499, 28 L. ed. 225. 
 -Moores v. Bricklayers Union No. 1 (Super. Ct. Cin.) 7 Ry. & Corp. L. J. 
 
 108. 
 ^Wildee v. McKee, 1 Cent. Rep. 919, 111 Pa. 335. 
 *Rundell v. Kalhfus, 125 Pa. 123. 
 ^Samle v. Roberts, 1 Ld. Raym. 374, 378; Hutchins v. Eutchins, 1 Hill, 104, 
 
 108; Eerron v. Nichols, 25 Cal. 555. 
 *Booker v. Puyear, 27 Neb. 346.
 
 APPENDIX. 
 
 My friend, Alfred B. Shepperson, the editor and publisher of 
 " Cotton Facts," who is recognized as the most thoroughly advised 
 man as to the production and profitable handling of cotton in all 
 the markets of the world, has kindly responded to my request for 
 "views from the cotton brokers' standpoint, regarding '"' Futures " in 
 cotton ; the same force necessarily controlling " Futures " iii grain 
 and other farm products. 
 
 Although the letter is too late for an earlier insertion, it is far 
 too valuable to be lost to my readers ; and I insert it here, sure 
 that they will appreciate the force of the learned writer's presen- 
 tation of the debated question. 
 
 87 Cotton Exchange, 
 
 ]S"ew Yokk, Feb. 4, 1392. 
 Hon. Charles A. Rat, 
 
 40 Wall St., New York. 
 My Dear Sir : 
 
 At present a large business is done in buying and selling for 
 future delivery, cotton, wheat, corn, oats, pork, bacon, lard, coffee, 
 .and the manufactured products of cotton and flour mills. These 
 transactions are designated as "Cotton Futures," "Wheat 
 Futures," " Coffee Futures," etc., to distinguish them from trans- 
 actions for the immediate or prompt delivery of those com- 
 modities. The transactions in " futures," for their own account 
 and for account of their customers, are made by members of 
 regularly incorporated commercial exchanges at Kew York, 
 Chicago, ISTew Orleans, Liverpool, Havre, etc. Each exchange 
 has rules for the regulation of the business in "futures" based 
 upon commercial law and equity, and every transaction made is 
 subject to these rules. Actual delivery by the seller and actual 
 receipt by the buyer is contemplated of every contract for future 
 -delivery which is entered into. The rules of the exchanges im- 
 
 429
 
 430 APPENDIX. 
 
 pose money penalties for the nondelivery of the merchandise con- 
 tracted to be delivered, measured in such degree that a failure ta 
 deliver will cost the seller more than to purchase the commodity 
 in the open market and fulfill his contract. Money penalties are 
 likewise imposed for the failure to receive the article bought for 
 future delivery, so that it will cost the delinquent buyer more to 
 violate his contract than to keep it. The rules regulating the 
 business in futures for cotton, grain, coffee, and other commodi- 
 ties are all based upon the same general principles and contemplate 
 the actual fulfillment of every contract. 
 
 Trading in cotton futures was established in New York in 1870 
 and in New Orleans a few years later. As I am more familiar 
 with the cotton trade than with the other trades in which transac- 
 tions in futures are made I will confine my remarks more especi- 
 ally to cotton futures. Contracts in cotton futui^es are made for 
 the delivery in lots of 100 bales during the month contracted for, 
 such delivery to be at the seller's option upon 5 days notice to 
 the buyer. An order on a warehouse for the cotton is tendered 
 for every notice of delivery, by the seller to the party to whom he 
 has sold. If the buyer has also sold the cotton for delivery dur- 
 ing the month for which he has received notice, it is customary 
 for him to transfer the notice of delivery and warehouse order to 
 the party to whom he has sold, and such transfers are made until 
 3 P. M., of the day of issuing the notice or until its receijjt before 
 that hour by a party who has bought but has not sold, or whO' 
 desires to receive the cotton, and this party receives the cotton 
 from the one who issued the notice and warehouse order and pay& 
 for it. As those who have bought and sold have no interest 
 beyond the difference in the price at which they bought and the 
 price at which they sold, it would be a useless expense to have 
 the cost of delivery and receipt incurred for each change of 
 ownership, when the passing of the warehouse order accomplishes 
 every purpose and saves unnecessary charges. All intermediate 
 parties between the party who issues the notice and warehouse 
 order and the party who receives the cotton settle with each other 
 the difference between the price of their respective contracts and 
 the price at which the cotton is received and paid for. In the 
 course of business it happens that many contracts are settled
 
 APPENDIX. 431 
 
 before the month of their maturity and without actual delivery 
 of cotton. For instance, a merchant may sell for a planter a con- 
 tract for October delivery, and the next day he may buy for a 
 Southern cotton buyer a contract for delivery the same month, and 
 if these transactions are made with the same party on the ex- 
 change, a direct settlement would be made as between the two 
 members of the exchange. 
 
 A merchant might sell to a party, who might sell to another, 
 and this other might have previously sold to the first party — all 
 the transactions being for the same month's delivery. This 
 would make a settlement of contracts between the three and is 
 called a "ring settlement." These "ring settlements" are purely 
 matters of chance. They may be affected very soon after the 
 transaction, or they may not occur for months, and they may not 
 occur at all. They do not in the slightest degree enter into the 
 matter of the original transaction which is based upon the prob- 
 ability and intention of actual delivery of the coUon contracted 
 for. In much of the legitimate business at present the transac- 
 tions in futures are of great benefit to producers, manufacturers, 
 merchants, bankers, and the general public. 
 
 About three fourths of the cotton crop is usually marketed dur- 
 ing the first four months of the season. If such a large propor- 
 tion of the crop was forced upon the market for immediate sale,, 
 the effect would certainly be to unduly and greatly depress prices. 
 By the sale of futures against consignments of actual cotton relief 
 is often given to an overstocked market and better prices are 
 secured for the planter than would otherwise be possible. If 
 prices are satisfactory, the planter can direct his merchant to sell 
 futures against his crop before it is actually ready to be marketed 
 and thus secure the benefit of a remunerative price which might 
 not be obtained if the sale could not be made until his crop had 
 actually reached a market. 
 
 Manufacturers of cotton goods, knowing the quantity of cotton 
 required by their mills for the season can buy futures against 
 their requirements, and being thus enabled to fix the cost of their 
 raw material can safely make contracts for the product of their 
 mills for months ahead. But for the abihty to buy futures, the 
 mills would be compelled to purchase large supplies of cotton at
 
 432 APPEWDIX. 
 
 the beginning of each season (losing interest and the expense of 
 carrying the cotton) or forego making sales of their product 
 beyond their purchases of actual cotton. Under the present 
 system it is customary for the mills to sell their product for 
 delivery many months ahead, thus ensuring constant work and 
 with no risk of loss by fluctuations in the cost of cotton. This 
 method of conducting business enables a mill of small capital to 
 compete successfully with concerns of greater means, for neither 
 are compelled to carry large stocks of actual cotton. The mills 
 can sell their goods at a smaller margin and yet do a safe and 
 remunerative business if they can make certain and easy provision 
 for the cost of their supply of cotton for the season. Cotton 
 factors and country merchants are protected in their ad. 
 vances on the growing crops or on consignments of actual cotton 
 if enabled to take advantage of favorable prices and sell futures 
 for account of their customers, against the cotton. Fertilizers are 
 extensively sold payable in cotton to be delivered in the fall at a 
 fixed price — so many pounds of middling cotton for each ton of 
 fertilizers. The sale of cotton futures by fertilizer dealers against 
 the cotton to be received by them enables them to fix, months 
 beforehand, the money price which they are to get per ton for 
 their fertilizers. Bankers can more safely, and will therefore 
 more readily make loans upon cotton, if in the event of default 
 by the Ijorrower, they can protect themselves immediately by 
 sales of cotton futures against the cotton held as collateral. 
 Exchange finds readier sale when the bankers who buy it have 
 every assurance that the cotton against which it is drawn has long 
 since been sold for future delivery and will not incur the risk of 
 being sold upon a declining market after its arrival in Europe. 
 Every method which removes or lessens the element of uncer- 
 tainty and risk in any industry enables the price to be reduced 
 without diminishing the profits and thus inures to the benefit of 
 the general public. 
 
 The tendency of business in every staple is to reduce the charges 
 between the producer and consumer (and by "consumer " I mean 
 cotton mills, flour mills, pork packers, etc.) to a minimum and to 
 dispense as much as possible with "middlemen." In former 
 years spinners bought their cotton through commission merchants
 
 APPENDIX. 433 
 
 to whom thej paid a commission on the purchases made for them 
 and also all expenses of recei%'ing and shipping the cotton. This 
 custom has been generally abandoned and the spinners now buy 
 ■of dealers at a price which includes the first cost of the cotton, 
 the receiving and shipping charges and the dealer's profit. The 
 dealer is given from 10 to 60 days (according to agreement) in 
 which to ship the cotton. Usually the dealer does not own the 
 ■cotton when he makes the sale, but immediately upon closing the 
 transaction protects himself by buying cotton futures in Xew 
 York or New Orleans against the operation. As he purchases the 
 actual cotton of a quality to suit the requirements of his sale, he 
 resells his futures to a like extent and thus insures himself against 
 loss. By reason of his ability to " hedge," as it were, against his 
 sales to spinners he is enabled to do business at a smaller margin 
 and with far less risk than if he had to take the chance of an 
 advance in price before he had succeeded in buying the cotton to 
 deliver upon his sale. This enables the buyer to pay a higher 
 price for the cotton just to the extent of the smaller profit he is 
 willing to take because of his lessened risk. If compelled to 
 exact a larger profit for his risk he must pay a less price to the 
 planter, for the price of cotton is regulated by what the spinners 
 are willing to pay and not l)y what the planter wishes to get. 
 
 It is undeniably true that there is much of pure speculation in 
 futures for cotton, grain, etc. This cannot be prevented, but 
 should not cause people to overlook the benefits conferred upon 
 legitimate business by this system of trading. Every kind of 
 business is in some degree speculative. No article of merchandise 
 remains constantly at the same fixed value. The most conserva- 
 tive of retail dealers takes the risk of his stock of goods declining 
 in market value before he can dispose of it. This risk is a specu- 
 lation, but it is called good foresight or bad foresight according to 
 its result. The retail dealer tries to read the future of prices and 
 trade and buys heavily or sparingly according to his view of the 
 future. It is simply a speculation upon his correctness in fore- 
 casting: the future. A builder will contract to erect a block of 
 houses before he owns the necessary lumber, bricks, stone and 
 hardware. A railroad contractor will contract to build a railway 
 before buying a cross-tie or a length of steel rail. Does anyone 
 28
 
 434 APPENDIX. 
 
 class the builders and the railway contractors as mere speculators^ 
 and yet the element of speculation enters largely into all their 
 transactions. The planter who sells only sufficient of his crop to 
 pay advances and meet present wants, and holds back the remain- 
 der in the hope of getting a higher price for it, is quite as much 
 of a speculator as the merchant who buys the planter's cotton and 
 holds it for an advance. In this country of boundless possibilities 
 a majority of men take hopeful views of things. In all specula- 
 tive affairs vastly more people operate for an advance than for 
 lower prices. More speculators are interested always in putting 
 up prices than in depressing values. Farmers who raise grain and 
 cotton should not object to these allies, the " bulls " of specula- 
 tion, for their elation often advances prices beyond their proper 
 level. 
 
 The " bears " of speculation, who sell what they do not own 
 and then try to depress values so as to buy it back at a price lower 
 than at which they sold, are often the means of advancing prices. 
 Nothing exceeds the eagerness to buy of the " bear" who has sold 
 what he did not possess and finds the market advancing. In his 
 haste to buy he does not stop at trifles, and often forces prices far 
 above a proper rate. His efforts are often a source of real strengtli 
 to an otherwise weak market. Merchants all understand this, and 
 after a while I trust farmers will also realize it and cease their 
 attacks upon the business of trading in futures. It will readily 
 be admitted that the more buyers there are for any commodity 
 the better the chances are for good prices. This is but another 
 way of stating the proposition that prices are regulated by supply 
 and demand, and that the greater the demand the higher the 
 price. Every " bear " operator who sells what he does not own 
 will sooner or later, but inevitably, have to buy it. The more he 
 sells the more he will have to buy, and he cannot dictate the price 
 he will have to pay, for the seller will have a large share in regu- 
 lating that matter. It not infrequently happens that "bears" are 
 about the only people who do want to buy, and at such times 
 prices would inevitably decline, and perhaps seriously, but for 
 their opportune buying. 
 
 In closing this communication it is proper that I should refer 
 to a comparatively new but very large business which is now done
 
 APPENDIX. 435 
 
 in actual grain and cotton through the instrumentality of dealing 
 in future deliveries and as an outgrowth of that system. This is 
 the buying of actual grain and cotton by merchants who store the 
 produce and sell contracts for future delivery against their pur- 
 chases. The price for futures is usually enough higher than the 
 price of the article for immediate delivery to cover storage, insur- 
 ance, loss in weight and a fair interest to the time of delivery. 
 
 This is a perfectly legitimate business, and while, as a rule, it 
 pays only moderate profits, there is very little risk involved. It 
 affords a safe and fairly remunerative employment of capital 
 which otherwise would seek investment in other channels. This 
 business is of great benefit to farmers, because it provides a. 
 demand for the surplus production of grain and cotton beyond 
 the immediate wants of the flour and cotton mills, which demand 
 takes the weight of this surplus from the market and carries it 
 until needed for actual consumption. If this class of buyers wa& 
 taken from the market by the discontinuance of the system of 
 trading in ' futures,' all articles of produce for which transactions 
 for future deliveries are now made would have to find a market 
 at the price at which manufacturers would be willing to buy and 
 keep the produce until needed for consumption. There would be 
 no competition with the mill owners, and it is but reasonable to 
 suppose that tliey would form combinations to regulate prices, and 
 that very much lower figures would rule than if competitive buy- 
 ers were in the market. At j)resent there is a stock of cotton in 
 New York of 388,000 bales and in New Orleans of 449,000 bales, 
 the combined stock in the two markets being nearly twice as much 
 as at the corresponding time last year. Sales of futures have been 
 made against a very large proportion of this immense stock, thus 
 relieving the markets of a pressure which would inevitably have car- 
 ried prices far below the present rates which are lower than for 43 
 years. Mr. A. J. Sawyer, a prominent merchant and capitalist of 
 Minneapolis, owns 175 grain elevators located upon the lines of 
 the Northern Pacific and the Manitoba railroads, «,nd buys wheat 
 directly of the farmers, selling futures against his purchases. By 
 his methods of business the farmers in the vicinity of his elevators 
 are given a near and constant market for their wheat and at fair 
 prices. I am told his payments for wheat often amount to
 
 436 • APPENDIX. 
 
 :$150,000 a day. His immense business which is of such great 
 advantage to the farmers could not be carried on without the 
 ■existing facilities for selling wheat futures in Chicago and New 
 York. Indeed Mr. Sawyer has recently made a statement to this 
 effect to a committee of Congress. 
 
 Nearly everything which I have written concerning cotton will 
 apply equally to grain and provisions. 
 
 Yours very truly, 
 
 ALFRED B. SHEPPEESON.
 
 APPENDIX. 437 
 
 B. 
 
 The bills to prevent dealing in "options" and "futures," now 
 pending in Congress, and one of which, in the improbable event 
 of there being any legislation, will likely pass, are the one intro- 
 duced in the Senate, December lith, 1891, by Senator Washburn, 
 and the other introduced in the House of Representatives, Janu- 
 ary 11th, 1S92, by Congressman Hatch. 
 
 It does not follow that because either of these measures are 
 advocated by two or three of the largest manufacturers of flour, 
 that this is done in the general interest of the producers of that 
 article. It is possible if either of these bills pass, that when wheat 
 comes upon the market after harvest in immense quantities and 
 is thereby depressed in price, — there being then no market for 
 "futures" — these wealthy manufacturers may purchase their year's 
 supply, storing it for use; and the smaller manufacturer, not being 
 able to make this investment, and not being permitted to contract 
 for the future delivery to them of the wheat, will be driven out 
 of the business; and it may chance, that the means thus taken to 
 prevent dealing in "futures," will result in reducing the compe- 
 tition among the purchasers of wheat, contracting the time within 
 which it must be sold, forcing it on the market, and thereby de- 
 pressing its price, and at the same time creating a monopoly in 
 flour, which will increase its price, placing the difference in the 
 pockets of the manufacturer, and degrading the quality. Crude 
 legislation to control the course of trade, does not always result 
 advantageously. 
 
 The pi'oposed legislation is as follows: 
 
 A Bill Deflning "(3ptions" and "Futures" and Imposing Spe- 
 cial Taxes on Dealers Therein, and for Other Purposes. 
 
 Be it Enacted hy tlie Senate and House of Iie_presentatives of 
 the United States of America, in Congress assemhled, That for 
 the purpose of this Act the word "options" shall be understood 
 to mean any contract or agreement whereby a party thereto, or 
 any party for whom or in whose behalf such contract or agree- 
 ment is made, contracts to have or give to himself or another the 
 option to buy or sell at a future time any of the grain or other 
 commodity mentioned in section three of this Act. 
 
 Sec. 2. That for the purposes of this Act the word "futures"
 
 438 APPENDIX. 
 
 shall be understood to mean any contract or agreement whereby 
 a party agrees to buy, or agrees to sell and deliver, at a future 
 time to another any of the articles mentioned in section three of 
 this Act, when at the time of making such contract or agreement 
 the party so agreeing to make such delivery, or the party for 
 whom he acts as agent, broker, or employe in making such con- 
 tract or agreement, is not at the time of making the same the 
 owner of the article so contracted and agreed to be delivered, (or 
 unless tlie articles so contracted to be sold and delivered shall 
 subsequently be actually delivered to the purchaser for manufac- 
 ture or consumption:) Provided, however, That this Act shall 
 not apply to any contracts or agreements for the future delivery 
 of any of the said articles made with the United States, or any 
 State, county, or municipality, or with the duly authorized officers 
 or agents thereof, nor to the contracts or agreements made by 
 farmers for the sale and delivery of any of the articles aforesaid 
 which are in actual course of production by such farmers at the 
 time of making such contract or agreement. 
 
 Sec. 3. That the articles to which the foregoing sections relate 
 are wheat, corn, oats, rye, barley, cotton, and all other farm pro- 
 ducts; also pork, lard, and all other hog products. 
 
 Sec. 4. That special taxes are imposed as follows: Dealers in 
 ^'options" or "futures" shall pay annually the sum of one thous- 
 and dollars, and shall also pay the further sum of five cents per 
 pound for each and every pound of cotton or pork, lard, or other 
 hog products, and the sum of twenty cents per bushel for each 
 and every bushel of any of the other articles mentioned in section 
 three of this Act, the right and privilege of delivering which may 
 be acquired under any "options" contract or agreement as defined 
 by section one of this Act, or which may be sold to be 
 delivered at a future time or period under any " futures " 
 contract or agreement as defined in section two of this Act, 
 which said amounts shall be paid to the collector of internal 
 revenue, as hereinafter provided, and by him accounted 
 for, as required in respect to other special taxes collected by 
 him. Every person, association, copartnership or corporation 
 who shall, in their own behalf, or as broker, agent, or em- 
 ploye of another, deal in "options" or make any "options" con-
 
 APPENDIX. 439 
 
 tract or agreement as hereinbefore defined shall be deemed a 
 dealer in "options," and every person, association, copartnership, 
 or corporation who shall, in their own behalf, or as broker, agent, 
 or employe of another, deal in "futures" or make any "futures" 
 contract or agreement as hereinbefore defined shall be deemed a 
 dealer in "futures." 
 
 Sec. 5. That every person, association, copartnership, or cor- 
 poration engaged in, or proposing to engage in, the business of 
 dealer in "options" or of dealer in "futures" as hereinbefore de- 
 fined shall, before commencing such business or making any such 
 "options" or "futures" contract or agreement, make application 
 in writing to the collector of internal revenue for the district in 
 which he proposes to engage in such business or make such con- 
 tract or agreement, setting forth the name of the person, associa- 
 tion, partnership, or corporation, or place of residence of the ap- 
 plicant, the business engaged in, and where such business is to be 
 carried on, and in case of partnership, association, or corporation, 
 tlie names and places of residence of the several persons consti- 
 tuting the same, and shall thereupon pay to such collector the sum 
 aforesaid of one thousand dollars, and shall also execute and de- 
 liver to such collector a bond in the penal sum of five thousand 
 <lollars, with two or more sureties satisfactory to the collector, 
 conditioned upon the full and faithful compliance by the obligor 
 therein with all the requirements of this Act. And thereupon 
 the collector shall issue to such applicant a certificate, in such 
 form as the commissioner of internal revenue shall prescribe, that 
 such applicant is authorized for the period of one year from the 
 date of such certificate to be a dealer in "options" or "futures," 
 and to make "options" or "futures" contracts or agreements as 
 hereinbefore defined, and for the period specified in such certifi- 
 cate the party to whom it is issued may conduct the business of 
 dealer as aforesaid. Such certificate may be renewed annually 
 upon compliance with the provisions of this Act, and any "op- 
 tions" or "futures" contract or agreement as defined by this Act 
 shall be absolutely void as between the parties thereto and their 
 respective assigns unless the party making such contract or agree- 
 ment shall have at the time of making the same a certificate as 
 aforesaid authorizino^ the makins: thereof.
 
 440 APPENDIX. 
 
 Sec. 6. That it shall be the duty of the collector to keep in his 
 office a register containing a copy of each and every application 
 made to him under the foregoing section, and a statement in con- 
 nection therewith as to whether a certificate had been issued 
 thereon, and for what period, which book or register shall be a, 
 public record and be subject to inspection of any and all persons 
 desiring to examine the same. 
 
 Sec. 7. That every "options" or "futures" contract or agree- 
 ment, as hereinbefore defined, shall be in writing and signed in 
 duplicate by the parties making the same ; and any such contract 
 or agreement not so made and signed shall, as between the parties 
 thereto and their assigns, be absolutely void. 
 
 Sec. S. That it shall be the duty of every person, copartner- 
 ship, association, or corporation, on the first day of the week next 
 succeeding the date of the certificate issued to them, and on the 
 first day of each and every week thereafter, to make to the 
 collector of the district in which any "options" or "futures" 
 contract or agreement has been made full and complete return 
 and report, under oath, of any and all such contracts or agree- 
 ments made or entered into by such person, copartnership, asso- 
 ciation, or corporation during the previous week, together with a 
 statement of the article or articles embraced in or covered by such 
 contracts or agreements and the amounts, respectively, of each, 
 and the name of the party or parties with whom such contracts or 
 agreements have been made, and at the same time to pay to such 
 collector the amount of the tax hereinbefore required of five 
 cents per pound on each and every pound of cotton, and of pork,, 
 lard, or other hog products, and of twenty cents per bushel on 
 each and every bushel of any of the other articles mentioned in 
 section three of this Act w^iich are the subject of, or covered by,, 
 such contracts or agreements, or any of them, for which sums 
 such collector shall give his receipt to the party so paying, and 
 the suras so collected shall be accounted for by the collector as 
 provided by law in respect to other taxes collected by him. 
 
 Sec. 9. That every person who shall, in his own behalf or in 
 behalf of any other person, association, partnership, or corpora- 
 tion, enter into any "options" or "futures" contract or agree- 
 ment as defined by this Act M'ithout having a certificate of
 
 APPENDIX. 441 
 
 authority from the collector as hereinbefore provided, and cover- 
 ing the time at which such contract or agreement shall be made, 
 shall, besides being liable for the amounts prescribed in section 
 four of this Act, be lined not less than one thousand dollars and 
 not more than live thousand dollars for each and every such 
 offense. And every person who shall make to the collector a 
 false or fraudulent return or report required by section eight of 
 this Act shall be subject to a fine of not less than one thousand 
 dollars nor more than five thousand dollars, or to imprisonment,, 
 for not less than thirty days nor more than six months, or to both 
 such fine and imprisonment. 
 
 Sec. 10. That neither the payment of the taxes required nor 
 the certificate issued by the collector under this Act shall be held 
 to exempt any person, association, copartnership, or corporation 
 from any penalty or punishment, now or hereafter provided by 
 the laws of any State for making contracts or agreements such as 
 are hereinbefore defined as "options" or "futures" contracts or 
 agreements, or in any manner to authorize the making of such 
 contracts or agreements within any State or locality contrary to 
 the laws of such State or locality ; nor shall the payment of the 
 taxes imposed by this Act be held to prohibit any State or munic- 
 ipality from placing a tax or duty on the same trade, transaction 
 or business for state, municipal or other purposes. 
 
 Sec. 11. That section thirty-two hundred and nine of the Re- 
 vised Statutes of the United States is, so far as applicable, made 
 to extend and apply to tlie taxes imposed by this Act and to the 
 persons upon whom they are imposed.
 
 442 APPENDIX. 
 
 c. 
 
 Mr. Hatch introduced the following bill ; 
 
 A Bill Defining "Ojjtions" and "Futures" and Imposing 
 Special Taxes on Dealers Thei-ein, and for Other Purposes. 
 
 Be it Enacted hy the Senate and House of JRepresentatives of 
 the United States of America in Congress assembled, That for 
 the purjjose of this Act the word " options " shall be understood 
 to mean any contract or agreement whereby a party thereto, or 
 any party for whom or in whose behalf such contract or agree- 
 ment is made, acquires the right or privilege, but is not thereby 
 •obligated, to deliver to another, at a future time or within a 
 •designated period, any of the articles mentioned in section three 
 •of this Act. 
 
 Sec. 2. That for the purposes of this Act, the word "futures" 
 shall be understood to mean any contract or agreement whereby 
 a party contracts or agrees to sell and deliver to another at a 
 future time, or within a designated period, any of the articles 
 mentioned in section three of this Act, when at the time of mak- 
 ing such contract or agreement the party so contracting or agree- 
 ing to sell and make such delivery, or the party for whom he acts 
 -as agent, broker or employe in making such contract or agree- 
 ment, is not the owner of the article or articles so contracted or 
 agreed to be sold and delivered : Provided, hoioever, That this 
 Act shall not apply to any contract or agreement for the future 
 •delivery of any of said articles, made for and in behalf of the 
 United States, or of any State, Territory, county or municipality, 
 with the duly authorized officers or agents thereof, nor to any 
 -contract or agreement made by any farmer for the sale and 
 delivery at a future time, or within a designated period, of any of 
 ^aid articles which are in actual course of production at the time 
 of making such contract or agreement, on land then owned or 
 occupied by such farmer. 
 
 Sec. 3. That the articles to which the foregoing sections relate 
 Are raw or unmanufactured cotton, wheat, corn, oats, barley, rye, 
 pork, lard, bacon, and other edible products of swine. 
 
 Sec. 4. That special taxes are imposed as follows: Every 
 •dealer in "options" or "futures," as defined in this Act, shall pay 
 annually the sum of two thousand dollars, and shall also pay the
 
 APPENDIX. 443 
 
 "further snm of five cents per pound for each and every pound of 
 raw or manufactured cotton, pork, lard, bacon, or other edible 
 product of swine, and the sum of twenty cents per bushel for each 
 :and every bushel of any of the other articles mentioned in section 
 three of this Act, the right or privilege of delivering which to 
 another at a future time, or within a designated period, may be 
 acquired by such dealer in his own behalf, or in behalf of others, 
 under any "options" contract or agreement, as defined by section 
 •one of this Act, or which may be contracted, or agreed to be sold, 
 by such dealer in his own behalf, or in behalf of others, to be 
 delivered to another at a future time, or within a designated 
 period, under any " futures " contract, or agreement, as defined in 
 section two of this Act, which said amount or amounts shall be 
 paid to the collector of internal revenue, as hereinafter provided, 
 and by him accounted for, as required in respect of other special 
 taxes collected by him. Every person, association, copartnership, 
 or corporation who shall in their behalf, or as agent, broker, or 
 employe of another deal in "options" or make any "options" 
 contract or agreement, as hereinbefore denied, shall be deemed a 
 dealer in " options," and every person, association, copartnership, 
 or corporation who shall in their own behalf, or as agent, broker, 
 or employe of another, deal in "futures" or make any "futures" 
 contract or agreement, as hereinbefore defined, shall be deemed a 
 dealer in " futures." 
 
 Sec. 5. That every person, association, copartnership, or corpo- 
 ration engaged in, or proposing to engage in, the business of 
 •dealer in " options," or of dealer in " futures," as hereinbefore 
 defined, shall, before commencing such business or making any 
 such "options" or "futures" contract or agreement, make appli- 
 cation in writing to the collector of internal revenue for the dis- 
 trict in which he or any of them proposes to engage in such busi- 
 ness or make such contract or agreement, setting forth the name 
 •of such person, association, copartnership, or corporation, place of 
 residence of the applicant, the business to be engaged in, where 
 such business is to be carried on, and in case of an association, 
 ■copartnership, or corporation, the names and places of residence 
 of the several persons constituting such association, copartnership, 
 or corporation, and shall thereupon pay to such collector the sum
 
 444 APPENDIX. 
 
 aforesaid of two thousand dollars, and shall also execute and 
 deliver to such collector a bond in the penal sum of forty thous- 
 and dollars, with two or more sureties satisfactory to said col- 
 lector, conditioned that the obligor therein shall pay, or cause to- 
 be paid, the tax or taxes as herein provided, and upon the full 
 and faithful compliance by such obligor with all the requirements 
 of this Act. And thereupon the collector shall issue to such appli- 
 cants a certificate, in such form as the commissioner of internal 
 revenue shall prescribe, that such applicant is authorized, for the 
 period of one year from the date of such certificate, and within 
 such district, to be a dealer in " options " and " futures," and to 
 make, within such district, " options " and " futures " contracts or 
 agreements, as hereinbefore defined, and for the period specified 
 in such certificate the party to whom it is issued may conduct the^ 
 business of dealer as aforesaid. Such certificate may be renewed 
 annually upon compliance with the provisions of this Act, and any 
 "options" or "futures" contract or agreement, as defined by this 
 Act, shall be absolutely void, as between the parties thereto and 
 tlieir respective assigns, unless the party acquiring, for himself or 
 another, the right or privilege of delivering, or contracting and 
 agreeing, for himself or another, to sell and deliver the article or 
 articles named in such contract or agreement shall have, at the 
 time of the making thereof a certificate, as aforesaid, authorizing 
 the making of " options " and " futures " contracts and agreements, 
 as hereinbefore defined : Provided^ however. That so long as any 
 tax provided in this Act shall remain due and unpaid the person, 
 association, copartnership or corporation from whom such tax 
 shall be due shall not, during the time such tax remains due and 
 unpaid, conduct or transact the business of a dealer in " options " 
 or conduct or transact the business of a dealer in " futures," and 
 any " options " or " futures " contract or agreement made or 
 entered into by any person, association, copartnership, or corpora- 
 tion from whom any sum as a tax, as provided in this Act, shall 
 remain due and unpaid shall, as between the parties thereto and 
 their respective assigns, be absolutely void, and every person, 
 association, copartnership, or corporation making any such 
 "options" or "futures" contract or agreement while an}^ tax 
 herein provided shall remain due from such party, shall be sub- 
 ject to the fines and penalties hereinafter provided.
 
 APPENDIX. 
 
 445 
 
 Sec. 6. That it shall be the duty of the collector of internal 
 revenue to keep in his office a book in which shall be reo'istered a 
 •copy of e?.ch and every application made to him under the fore- 
 going section, and a statement in connection there witli as to 
 "whether a certificate has been issued thereon, and for what period, 
 which book or register shall be a puljlic record and be subject to 
 the inspection of any and all persons. 
 
 Sec. T. That every " options '■ or " futures " contract or agree- 
 ment, as hereinbefore defined, shall be in writing and signed in 
 duplicate by the parties thereto, and every such " options " con- 
 tract shall state, in explicit terms, the time when the right or 
 privilege of delivering the article or articles therein named shall 
 expire, and every such "futures" contract shall state, in explicit 
 terms, the day upon which, or the last day of the period within 
 which, the article or articles therein contracted or agreed to be 
 sold shall be delivered, and any such contract or agreement not 
 including such statement and not so made and signed shall, as 
 between the parties thereto and their respective assigns, be abso- 
 lutely void. 
 
 Sec. 8. That it shall be the duty of every person, association, 
 copartnership, or corporation conducting or transacting the busi- 
 ness of a dealer in " options " or " futures," as defined by this Act, 
 to keep a book in which shall be recorded, on the day of its exe- 
 cution, the date of each and every " options " or " futures " con- 
 tract or agreement made or entered into in behalf of such person, 
 association, copartnership, or corporation, or in behalf of another, 
 and setting forth the name and place of business of the person, asso- 
 ciation, copartnership, or corporation in whose behalf, as vendor, 
 such contract or agreement shall have been made, the name and 
 place of business of the party or parties, as vendee, with whom 
 such contract or agreement shall have been made, the kind and 
 amount of the article or articles embraced in or covered by each 
 such contract, the time when the right or privilege of delivering 
 such article or articles as are embraced in any " options " contract 
 shall expire, and the time when, or the designated period within 
 which, delivery shall be made of the article or articles embraced 
 in or covered by any " futures " contract, and such book shall, at 
 all times, be subject to inspection by the collector, deputy col-
 
 446 APPENDIX. 
 
 lector, and inspector of internal revenue, or any duly authorized 
 agent of the Internal Revenue Department, who may take memo- 
 randa or transcripts therefrom. 
 
 Sec. 9. That it shall be the duty of every person, association, 
 copartnership or corporation, on the Monday of the week next 
 succeeding the date of the certificate issued to them, and on the 
 Monday of each and every week thereafter, to make to the col- 
 lector of internal revenue for the district in which any " options " 
 or "■ futures " contract or agreement shall have been made by such 
 person, association, copartnership, or corporation, full and com- 
 plete return and report, under oath and in such form as the Com- 
 missioner of Internal Revenue shall prescribe of any and all such, 
 contracts or agreements made or entered into by such person,, 
 association, copartnership, or corporation during the preceding 
 week, whereby such person, association, copartnership, or corpo- 
 ration acquires, in their own behalf or in behalf of others, the 
 right or privilege of delivering to another, at a future time, or 
 within a designated period, or contracts and agrees, in their own 
 behalf or in behalf of others, to sell and deliver to another, at a . 
 future time, or within a designated period, any of the articles 
 mentioned in section three of this Act, together with a statement, 
 of the article or articles embraced in or covered by each such 
 contract or agreement and the amounts, respectively, of each such 
 article, and the name or names of the party or parties with whom 
 each such contract or agreement shall have been made ; and at 
 the same time the party whose duty it shall be to make such 
 return or report shall pay to such collector the amount of tax 
 provided, and then due and payable of five cents per pound on 
 each and every pound of cotton and of pork, lard, bacon, or edible 
 product of swine ; and of twenty cents per bushel on each and 
 every bushel of any of the other articles mentioned in section 
 three of this Act which are the subject of, embraced in, or covered 
 by, such contracts or agreements, or any of them, for which sums 
 such collector shall give his receipt to the party so paying, and 
 such collector shall, upon the making of such return or report . 
 enter in a book, to be kept for that purpose, the date of each such 
 " options " or '' futures " contract or agreement included in such . 
 return or report, the name, residence and place of business of each.
 
 APPENDIX. 44 T 
 
 party thereto, and whether they appear as vendor or vendee, the 
 kind and amount of each article, the right or privilege of deliver- 
 ing which, to another, is thereby acquired, and the kind and 
 amount of each article thereby contracted to be sold, and deliv- 
 ered to another, the date upon which each such " options " or 
 ''futures" contract or agreement shall, by its express terms, 
 expire or mature, and the amount of tax upon the article or 
 articles the right or privilege of delivering which is acquired, or 
 that shall have been contracted or agreed to be sold and delivered 
 as aforesaid, which book or register shall be a public record sub- 
 ject to the inspection of any and all persons. That the person^ 
 association, coj)artnership, or corporation making or entering into 
 any " options " or " futures " contract or agreement, as defined in 
 this Act, in their own behalf or in behalf of others, shall, upon fil- 
 ing with the collector of internal revenue the return or report- 
 aforesaid, in addition to the taxes hereinbefore provided, pay to 
 such collector the sum of two dollars, as a registry fee, for each 
 and every such " options " or " futures " contract or agreement 
 included in such return or report. 
 
 Sec. 10. That every person who shall, in his own behalf, or in 
 behalf of any other person, association, copartnership, or corpora- 
 tion, make or enter into, as vendor, any "options" or "futures" 
 contract or agreement, as defined by this Act, without having a 
 certificate of authority from the collector of internal revenue, as 
 hereinbefore provided, and covering the time at which such con- 
 tract or agreement shall be made, or who shall fail or refuse to 
 keep any book or make any return or report required by this Act, 
 or in lieu of the return or report required by this Act shall make a 
 false, fraudulent or partial return or report, or shall make or enter 
 into any " options " or " futures " contract or agreement in form 
 other than as prescribed in section seven of this Act, or fail or 
 fail or refuse to pay, when due, any tax herein provided, or shall 
 in any other respect violate any of the provisions of this Act shall, 
 besides being liable for the amount of tax or taxes prescribed in 
 this Act, for each and every such offense, pay a fine of not less 
 than one thousand dollars nor more than twenty thousand dollars,^ 
 or be imprisoned not less than six months nor more than ten years,.. 
 or be subject to both such fine and imprisonment.
 
 Sec. 11. That neitlier the payment of the taxes hereinbefore 
 provided, nor the certificate issued by the collector of internal 
 revenue under this Act, shall be held to exempt any person, asso- 
 ciation, co])artnersliip, or corporation from any penalty or punish- 
 ment, now or hereafter provided by tlie laws of any State or 
 Territory for making contracts or agreements such as are hereiu- 
 l)efore defined as "options" or "futures" contracts or agreements, 
 or in any manner to authorize the making of such contracts or 
 agreements witliin any State, Territory, or locality contrary to the 
 laws of such State, Territory, or locality ; nor shall the payment 
 of the taxes imposed by this Act be held to prohibit any State, Terri- 
 tory, or municipality from placing a tax or duty upon the same 
 trade, transaction, or business for state, territorial, municii)al, or 
 other purposes. 
 
 Sec. 12. That all provisions of the law now in force relating to 
 the recovery and enforcement of taxes, fines, and penalties imposed 
 under the laws concerning internal revenue, and not inconsistent 
 with the provisions of this Act, are hereby made to extend and 
 :apply to the recovery and enforcement of the taxes, fines, and 
 penalties imposed by this Act. 
 
 Sec. 13. That the commissioner of internal revenue shall pre- 
 scribe such rules and regulations as may be necessary to carry into 
 effect the provisions of this Act, and when such rules and regula- 
 tions shall have been approved by the Secretary of the Treasury, 
 they shall have the force and effect of law.
 
 ArPE.NDix. 449 
 
 D. 
 
 Protest of the Xew York Produce Excliange against the passage 
 of Senate Bill No. 1T57, introduced by the Hon. Mr. Washburn, 
 and entitled " A Bill Defining ' Options ' and ' Futures,' and Im- 
 posing Special Taxes on Dealers Therein, and for Other Purposes." 
 
 To the Honorable the Senate of the United States: 
 
 Gentlemen : — The New York Produce Exchange received its 
 charter from the Legislature of the State of New York in 1S62. 
 Some of the purposes of the corporation are therein set forth as 
 being " To inculcate just and equitable principles in trade, to 
 ■" establish and maintain uniformity in commercial usage, to ac- 
 " quire, preserve and disseminate valuable business information 
 " and to adjust controversies and misunderstandings between per- 
 •" sons engaged in business." 
 
 "We have fulfilled our charter obligations in a manner that has 
 obtained for us leadership and influence abroad, and confidence 
 and respect at home. Our membership numbers three thousand 
 .active, business merchants, among whom are representatives from 
 our large financial institutions and managers of all the lines of 
 inland and ocean transportation centering in New York. Our 
 sessions are held dailj' during the business hours, we are in con- 
 tinuous telegraphic contact with the markets of the old and new 
 world, and the information thus obtained is free to all our larsre 
 constituency. 
 
 "While not entirely confined to, our business is largely in, the 
 food products of the United States (both in their original and man- 
 ufactured states), and its ramifications extend to the producer on 
 the farm and the consumer in both the home and foreign markets. 
 In fact it is almost impossible to fix a limit to the influence we 
 <exert, or say where it is not potently felt. 
 
 Having thus introduced ourselves, we now, in the name of the 
 New York Produce Exchange, respectfully but earnestly protest 
 .against the enactment of the "Washburn BiU, for the following 
 reasons : 
 
 1. — That it seeks to legalize a most pernicious and vicious sys- 
 tem of gambling that is demoralizing and degrading, and to the 
 operation of which our Exchange has always been opposed. 
 29
 
 40(J 
 
 Al'l'KMnX. 
 
 3. — Tliat it aims to overturn existing conditions that are the 
 outcome of careful thought, and sound mercantile judgment 
 brought to bear upon old methods that became inoperative, under 
 the strain of increasing production, the rapid development of rail- 
 road transportation, the more general and prompt transmission 
 of business information, and the intense energy of commercial 
 enterprise. 
 
 3. — That it seeks to destroy existing benefits that legitimate 
 sales for future delivery now confer upon the agriculturist at his 
 own door, and through which he reaUzed what may be termed 
 " the highest workl price," at the time he desires to sell, less the 
 cost of transportation ami a minimum charge by the middlemen 
 who stand ready at all times to purchase his products. 
 
 4. — That it would drive to the wall a large army of middlemen, 
 as a rule modest merchants of moderate means, but active, earn- 
 est, honorable, who are to be found in the smaller towns and vil- 
 lages located on the lines of our great railroads, and who have 
 done so much to build up their respective neighl)orhoods, and 
 bring the commerce of the United States to the magnihcent pro- 
 portions that it presents to-day. 
 
 5. — That it is veneered with moral and pliilauthropic pretense 
 to hide a selfish purpose, which aims to injure the many for the 
 direct benefit of the few. 
 
 First Objection. — The Bill in question, it is proper to state, 
 makes a distinction in the meaning of terms which have hereto- 
 fore, on our Exchange, been considered synonymous. Sales for 
 future delivery have always been dealt in and deemed the estab- 
 lished right of buyer and seller whenever the occasion requii'ed 
 such transactions, but they did not become a recognized necessity 
 for the purposes of protection against loss and for faciHty of oper- 
 ation until about the year 1875. Then, because of the raj)idly 
 increasing volume of business in farm products, they became more 
 general, and for brevity were sometimes called " options," simply 
 for the reason that when the period of delivery was arranged to 
 suit the convenience of the purchaser, it was called a " buyer's 
 option," and vice vei'sa, a " seller's option;" in either case it was 
 a transaction similar in all respects to the meaning given to ihe 
 term " futures " in the second section of the Bill.
 
 APPENDIX. 
 
 451 
 
 The meaning given to the term " option " in the first section is 
 known to us as a species of gambling called " puts and calls," or 
 "•privileges," which are transactions opposed to law and good 
 morals, and should not be permitted under any circumstances. 
 Noticing a growing tendency in some places to tolerate such trad- 
 ing, this Exchange adopted a rule in 1SS7 which disciplines any 
 member, by public censure, suspension, or expulsion, as the Board 
 of Managers should determine, who may be proved guilty of mak- 
 ing such trades on the tioor of our Exchange. 
 
 If section one of this Bill suppressed altogether such vicious 
 trading, w^e would heartily endorse it, but it is because the proposi- 
 tion is to legalize it, and place it on a parity with sales for future 
 delivery, that we earnestly protest against it. 
 
 Second Objection. — ''That it aims to overturn existing condi- 
 tions," etc. If there is any one element more noteworthy than 
 another in advancing what may be termed the "agricultural" or 
 ••farm connnerce" of the United States into the proportions it 
 presents to-day it is the facility with wdiich transactions can be 
 made with all markets (foreign and domestic) for our surplus farm 
 products, through the medium of purchases and sales for future 
 delivery. It is impossible to give you the volume or value of 
 liome transactions as they are being operated daily in hundreds, 
 I might even say thousands, of major and minor markets through- 
 out the length and breadth of the land. Such statistics cannot 
 be obtained, but from our statistician I have received the declared 
 value of the three great articles of commerce that are attacked in 
 this bill, viz, breadstuHs, provisions, cotton, which were shipped 
 to foreign countries during the year 1S91. They are as follows : 
 
 BreadstufEs 8231,275,709 
 
 Provisions 130,321,693 
 
 Cotton 277,038,511 
 
 Total 8638,635,913 
 
 The total value of all articles exported from the United States 
 (specie excepted) during the same period was 8^57,339,705, so 
 that you are faced with the grave responsibility of dealing with a 
 measm-e that directly afEects not only our enormous home trade,
 
 452 APPENDIX. 
 
 but also almost eighty-one per cent (exact SOj\^) of onr total for- 
 eign exports (specie excepted), and all parties who are directly or 
 indirectly interested therein. 
 
 Now, we do not hesitate to say (althongh we speak more from 
 an experience in breadstuffs and provisions, but our cotton friends 
 are present and will please correct us if we are in error) that by 
 far the larger j)art of these enormous shipments were purchased 
 by the exporter for future delivery, and that before they reached 
 the port of ultimate shipment they formed the basis of transac- 
 tions for future delivery outside of the exporter, aggregating a 
 very much larger amount, every one of which was legitimate and 
 mercantile. But this is not all, the vessel service which was re- 
 quired to transport all this merchandise to its place of final desti- 
 nation was contracted for, to a very great extent, long before the 
 vessels sailed for their American ports, and the bills of exchange 
 which provided the "ways and means" for payment were also 
 largely sold to the dealers in foreign exchange, for future deliv- 
 ery. In fact, almost every element in these shipments partook of 
 the "future" character, the object being to minimize the risk aris- 
 ing from a possible change in market values between the date of 
 the original purchase from the producer and arrival at the place 
 of consumption. 
 
 We will make a further statement relative to these shipments 
 and challenge its contradiction. If the "future" element had 
 been eliminated from such transactions, the volume of our ex- 
 ports would have been much decreased, and the farmer would 
 have received a much less price for the product that he would 
 have been able to market, for the reason that under the old regime 
 the middlemen, who were generally firms of large wealth, 
 required a very much larger percentage of margin against possi- 
 ble loss than is required under the present system. 
 
 l!^ow, what is urged in opposition to future sales ? It is said 
 that the system is used as a cloak for transactions which some- 
 tunes savor more of gambling than of legitimate operations, and 
 the assertion is made, that as a large part of the merchandise sold 
 for future delivery on our prominent exchanges is never actually 
 delivered to the original purchaser, this fact is prima facie evi- 
 dence of their illegitimate character. Before answering this
 
 APPENDIX. 45 > 
 
 statement (and it is held to be true, we doubt not, by many -who 
 have only superficially examined the subject), permit me to pre- 
 sent the form of contract that is required in these future transac- 
 tions. It reads as follows: 
 
 GRAIN CONTRACT. 
 
 IS^EW York, February, 1S92. 
 
 In consideration of one dollar in hand paid, the receipt of 
 which is hereby acknowledged, I have this day sold to (or hought 
 from) Richard Roe, 5,000 bushels of JSTo. 2 wheat, Xew York 
 inspection, at 100 cents per bushel of 60 lbs., deliverable at seller's 
 (or buyer's) option in May, 1892. 
 
 This contract is made in view of, and in all respects subject to 
 the by-laws and rules established by the i^ew York Produce Ex- 
 change, in force at this date. John Doe. 
 
 It is concise and definite and in every resjDect legal and bind- 
 ing. If either one of the contracting parties desires actual deliv- 
 ery under it, it mast be made and there is no power extant that 
 can relieve the other from this obligation, or the damage that may 
 arise from such non-delivery. It is true, however, that at times a 
 large, and during seasons of great activity such as we have just 
 been having, a very large proportion of these future transactions 
 are not consummated by actual delivery, but this is done by mu- 
 tual consent of both parties, and for which an equitable mercan- 
 tile equivalent is substituted, simply as a convenience to facilitate 
 settlements, which under the old system of actual delivery under 
 all cu'cumstances, was f oimd to be cumbersome and attended with 
 the loss of valuable time and risk. Take New York, for exam- 
 ple. It is a great objective point for mercantile transactions 
 made on behalf of parties throughout the old and new world. 
 "With such a constituency it continually happens, that the mer- 
 chant who sells to-day is a purchaser of the same article to-morrow, 
 and in the aggregate of these transactions, it also often happens, 
 that a transaction in which he was the buyer, can be matched 
 with a subsequent one in which he was the seller of the same de- 
 scription of merchandise and for like delivery in all respects 
 except as to price, and when this matching does take place diiier- 
 ences in value only are paid and the contract closed without going 
 thi'ough the forms of delivery and re-delivery with all their at-
 
 454 APPENDIX. 
 
 tendant inconveniences. In such cases, and they are tlie only 
 ones where actual delivery does not take place, there would be 
 absolutely nothing gained by a strict adherence to the old rule, 
 and therefore it was willingly abandoned. 
 
 Perhaps this can be made more evident by citing the bank 
 clearing-house system in vogue in all our large cities. By means 
 of this system, enormous daily monetary transactions are settled 
 in a very few minutes, by the actual interchange of comparatively 
 small sums of money. Bank A receives on deposit during the 
 day cheques on Bank B to the aggregate of $200,000 and Bank 
 B cheques on Bank A to the aggregate of $190,000. The follow- 
 ing day tliese banks send their respective claims to the clearing 
 house, and that of B is matched against that of A, as far as it will 
 go, and the balance paid in cash. In this hypothetical case a 
 joint indebtedness of $390,000 was settled by the payment of 
 only $10,000 of actual money, and yet every item in the major 
 amount was legitimate, nor did the system of settlement employed 
 suggest that a single factitious element had entered into the trans- 
 action from its inception to its close. It was the growing business 
 of the banks that suggested the invention of the clearing-house, 
 just as it was the urgent needs of commerce to improve upon the 
 old method of actual delivery in every instance and under all cir- 
 cumstances, that suggested the application of the clearing system, 
 when practicable, as a more rapid and convenient means of set- 
 tling contract obligations. In like manner the railroad, the steam- 
 ship, the telegraph and the telephone, have all been made the 
 servants of commerce, and each has contributed its quota in aiding 
 her marvelous development, and now all such means are deemed 
 absolutely essential adjuncts, which cannot safely be disj)ensed 
 with. But even if the charge, "that some illegitimate speculation 
 is operated under the cloak of sales for future delivery," is true, 
 what then ? Is a great public good to be abrogated because of a 
 claimed inability to entirely check a minor defect ? It is as im- 
 possible, at all times, to draw the line so definitely that a mercan- 
 tile offense of this character cannot be committed, as it is to make 
 laws which will absolutely suppress all crime. But (as far as an 
 intelligent consideration of the subject can suggest remedies which 
 will counteract this injurious influence) you will find our boards
 
 APPENDIX. 455 
 
 'of trade and exchanges have not been idle, and hj rnles and 1j_y- 
 laws have controlled these "commercial pirates," to a strict ac- 
 countability for their acts. Here is a rule that holds both buyer 
 and seller to a money responsibility that they cannot avoid: 
 
 "On all sales or purchases of grain for future delivery either 
 party to the contract shall have the right to call an original mar- 
 gin of ten cents per Inishel on wheat, rye and barley, and five 
 •cents per bushel on corn and oats, and a further margin from 
 time to time to the extent of any variation in the market value 
 from the contract price." 
 
 This rule is both restrictive and protective, and forcibly reminds 
 each party entering into future transactions that he must put up 
 his money and leave it beyond his control till he has fulfilled his 
 obligation, as an evidence of his good intent. It also limits the 
 "short seller" to the ability of his pocket to respond to marginal 
 calls, and keep the margin good. Now, when it is rememl)ered 
 that the "short seller" is operating in the face of a world-wide 
 market, it is evident that the moment he gets below legitimate 
 values, he will be overwhelmed with purchasers who are always 
 •on the lookout for bargains and who will insist on the money 
 protection under the marginal rule. It is our experience that the 
 application of this rule is a most effective check upon the profes- 
 sional "short seller." Here is another rule which is equally pro- 
 tective, but in another direction, and is given as an evidence of 
 the thoughtful care that surrounds all these future transactions : 
 
 "Rule 32. — Sec. 1. — In case any property, contracted for fu- 
 ture delivery, be not delivered at maturity of contract, the pur- 
 chaser shall notify, in writing, the Committee on Grain, of the 
 failure to deliver, and the Committee on Grain shall, at the next 
 call, publicly read such notice, and buy in the grain for account 
 of the party directing the purchase, but no unreasonable price 
 shall be paid, arising from manipulated or fictitious markets, or 
 unusual detention in transportation. Any legitimate loss resulting 
 to the buyer shall be paid by the party in default and the grain 
 so bought shall be a good delivery on defaulted contracts matur- 
 ing that day." 
 
 Under this rule the person who aims to operate a "corner" is 
 quickly defeated, for a manipulated or fictitious price cannot be 
 jenforced.
 
 ■iuO APPENDIX. 
 
 These examples could be largely multiplied, but we infer that 
 enough has been said to show that the possible evils of future 
 sales have been much exaggerated, and that their correction has- 
 received, and is continuously receiving, the thoughtful attention 
 of honorable, competent men. 
 
 Third and Foukth Objection. — " That it will injure the pro- 
 ducer by restricting the range of his market," and " will drive to 
 the wall the large army of middlemen " is self-evident and will be 
 treated of, doubtless, by the representatives of the boards of trade 
 near to the sources of pi'oduction and the homes of those active 
 traders, than we in New York, that -I will not occupy your time 
 discussing it, further than to say that the absolute success of a 
 large part of the business enterprises operated on and though 
 our exchange is almost wholly dependent upon the agricultural 
 classes, and the person and lirms and elevator associations with 
 whom they directly deal. An injury to them conies rapidly home 
 to us, and from that standpoint of intimate relationship, we give 
 it to you as our deliberate judgment that you could not enact a 
 more unfortunate or aggressive law against our common interests, 
 than the bill under consideration, which we denounce as ill-advised,, 
 illogical, and in its spirit, bad. 
 
 To destroy by legislation the protective element furnished by 
 sales for future delivery, is simply to drive a large " produce pur- 
 chasing constituency" from the field, and would prove so dis- 
 astrous to the agricultural classes that upon the first opportunity 
 after they realized its injurious effect, they would relegate the 
 legislator who advocated and enacted it into political oblivion. 
 
 Fifth Objection. — "It is veneered with moral and philanthropic- 
 pretense," etc. 
 
 In making this assertion we have simply stated our belief with 
 the view of putting you on your guard, and inducing critical 
 examination into motives, before reaching a conclusion. In seek- 
 ing a reason for the introduction of this objectionable measure 
 into Congress, we soon found to our satisfaction (that while ignor- 
 ance of the whole subject and a laudable desire to shield the 
 agriculturist from the " raids " of the " short seller," and the com- 
 munity at large from the efforts of the " corner " monger to give 
 to food products an exaggerated value, had something to do with
 
 APPENDIX. 457' 
 
 it) the more dangerous element was cloaked imder the cry " that 
 it was morally wrong to sell what was not actually held in hand." 
 The authors of this foolish platitude, while posing as the " farm- 
 er's friend," are nothing short of his worst enemies. Their aim 
 is to deprive him of his " world-wide market " by driving off 
 competition through legislative aid, and thus having corralled him 
 into the narrow limits prescribed in this bill, purchase his pro- 
 ducts at their own time and price. 
 
 Many expedients have heretofore been resorted to, to induce 
 the holding back of farm products from the ordinary channels 
 of commerce (particularly in- the Northwest) and failed, and now 
 as a last effort the Congress of the United States is unblushingly 
 asked, under the plea of needed revenue legislation, to tax out of 
 existence a mercantile right that is in every way lawful and never 
 before questioned, and has proved of incalculable benefit to the 
 commercial interests of the whole country. 
 
 Permit us to call your attention to the peculiar wording of this 
 bill, and especially to the bracketed words in the second section, 
 reading as follows: "or unless the articles so contracted to be 
 " sold and delivered shall subsequently be actually delivered to 
 " the purchaser for manufacture or consumption.") In other 
 words, a miller can purchase wheat for delivery from anyone who 
 wishes to sell, whether he has it in hand or not, without the tax 
 being operative on either party, provided it is delivered to the 
 said miller for manufacture. A merchant or exporter cannot 
 make such a purchase, because he is neither a manufacturer nor a 
 consumer under this law, therefore the man who wishes to sell 
 wheat for future delivery, without incurring the tax, which he 
 has not actually in hand, has only the one class of customers, and 
 they are the privileged millers. 
 
 Now please examine the third section and you will notice that 
 while all the products of the hog are made subject to the proposed 
 tax, the product of wheat (flour) is not mentioned. Here again 
 the miller is made the favored son of legislation. This may be 
 the result of accident and not design, but when taken in connec- 
 tion with the fact that the exports of flour from the United States 
 during 1891 amounted to the value of $64,783,861 and that it 
 was largely dealt in for future delivery, exactly as wheat, corn,^
 
 458 APPENDIX. 
 
 provisions and the other articles mentioned in the hill as snhjeet 
 to tax are, some idea may l)e formed of the immense advantage 
 the pro])osed legislation would give to the large milling interest 
 of the Northwest. 
 
 For these reasons we think wc are justified in characterizing 
 the measure as "hiding a selfish purpose which aims to injure the 
 many for the direct benefit of the few." 
 
 Gentlemen, one word more and I have done. The United 
 States is eminently a commercial country, and through her com- 
 merce, backed up as it is by agricultural, mineral, mechanical and 
 ,S3ientific development, is rapidly becoming the wealthiest of all 
 the countries of the world. 
 
 Let me call your attention to this fact, which, while we do not 
 claim it as a result, we have a right to say of it that it is a coinci- 
 dence. Buying and selling for future delivery (although always 
 more or less operated as now carried on) became the rule with the 
 American merchant about the year 1875. Since that period 
 (hecause of its protective element) it has 1>een adoi)ted by every 
 European country with whom we trade, and it is found to give 
 every satisfaction. For the seventeen years prior to 1875 the 
 balance of trade against this country aggregated in round num- 
 bers $1,200,000,000. Since that period, which is also seventeen 
 years, the balance of trade 2W favor of this country aggregates in 
 round numbers the enormous sum of $1,825,000,000, of which 
 amount $155,500,000 was for the year 1891. Do not these figures 
 speak volumes for the men who hold the helm of commercial 
 enterprise in the United States, and are not their views on com- 
 mercial subjects entitled to consideration and respect ? 
 
 We do not come here as suppliants, but ask for, in the firm 
 hope of receiving, recognition for what we have done, and are 
 doing, in forcing the country to the front. There is no egotism 
 in our claim that the American merchant stands out as the central 
 ligure in our national development. He is as necessary to the 
 ao-riculturist in obtaining the largest money value for his labor, as 
 he is to his government to whom he contributes the major part of 
 the revenues which it receives. He is the patron of the railroad, 
 the steamship, and the wonderful discoveries of science, whose 
 inventions he quickly adapts to the more rapid and economic
 
 APPE^^)IX. 459 
 
 requirements of his business. He is the friend, and to a great 
 ■extent the supporter, of the professions and contributes largely to 
 education, literature and the arts and every other reiininff influ- 
 ence that creates and furthers social happiness. It is consistent, 
 therefore, that we should ask for, and you grant the fostering 
 care of legislation to commercial enterprise, and that the great 
 mercantile associations throughout the land, who are more directly 
 responsible for the outcome and who are continually alive to the 
 changes that are of necessity always taking place, are the best able 
 to detect injurious influences as tiiey arise and to suggest to legis- 
 lative bodies the needed remedies. 
 
 Kespectfully submitted in behalf of the 
 
 NEW YORK PRODUCE EXCHANGE, 
 
 By A. E. Oek. 
 February 16, 1802. 
 
 The folloM'ing protest against the passage of either bill lias been 
 duly presented to Congress : 
 
 " New York, February 4th, 1892. 
 " To the lion. The House of Representatives of the Un Ited States : 
 
 " The undersigned, engaged in the banking business in the city 
 of New York, believe that if House of Representatives' Bill, No. 
 2099 [the Hatch bill], now before your honoraljle body, taxing 
 purchases and sales of cotton, grain and hog products for future 
 delivery, becomes a law it will do great damage to the business in 
 those articles, and work a serious injiiry to jiroducers. 
 
 " That, as bankers, we consider our risk in advancing on such 
 property, very much less than was the ease prior to the inaugura- 
 tion of the i^resent method of doing business. 
 
 "We therefore earnestly protest against the passage of this 
 measure, and trust that no legislation in this direction may be 
 approved by your honorable body. 
 
 Jas. T. "Woodward President, Hanover National Bank. 
 
 J. Edward Simmons President, Fourth National Bank. 
 
 Warner Van NoRDEN .President, National Bank of North 
 
 America. 
 
 Arthur B. Graves President, St. Nicholas Bank. 
 
 James Stellman President, National City Bank.
 
 4G0 APPENDIX. 
 
 A. E. Orr Vice-Pres. Mechanics' National Bank. 
 
 Forest H. Pahkeh President, New Yorlt Produce Ex- 
 
 cliange. 
 
 Charles M. Fry President, Banlt of New York, N.B.A. 
 
 R. M. Gallaway President, Merchants' National Bank. 
 
 H. RocHOLL President, German American Bank. 
 
 "W. W. Flannagan President, Southern National Bank. 
 
 W. A. Nash President, Corn Exchange Bank. 
 
 J. H. Parker President, United States National Bank. 
 
 Jno. B. Woodward President, Third National Bank. 
 
 W. "W. Sherman President, National Bank of Commerce. 
 
 W. H. Perkins President, Bank of America. 
 
 R. L. Edwards... President, Bank of the State of New 
 
 York. 
 E. H. Perkins, Jr. President, Importers' and Traders' Nar 
 
 tional Bank. 
 
 H. W. Cannon President, Chase National Bank. 
 
 J. K. CiLLEY President, Ninth National Bank. 
 
 D. C. Hays President, Manhattan Company. 
 
 George Bliss Of Morton, Bliss & Co., Bankers. 
 
 'Ladenburg, Tiialmann & Co Bankers. 
 
 Knauth, Nachod & KuHNE Bankers, 
 
 Lazard Freres Bankers. 
 
 Baring, Maqoun & Co Bankers. 
 
 Brown Bros. & Co Bankers. 
 
 J. & W. Seligman & Co. Bankers. 
 
 Heidelbacii, Ickeliieimer & Co. -Bankers. 
 
 KuHN, Loeb & Co. Bankers. 
 
 Blake Brothers & Co. ..Bankers. 
 
 *These are the leadinir dcalei-s in foreign exchange in the city— I might properly say^ 
 In the country.— C. A. E.
 
 APPENDIX. 4G1 
 
 E. 
 
 I append also a third bill which has been appropriately referred. 
 
 In the Senate of the United States, January 5, 1892. 
 
 By Mr. Peffer : — A Bill to Protect Interstate Commerce ; to 
 Prevent Dealing in " Options " and " Futures ; " to Prohiljit 
 the Formation of " Trusts," " Combines," " Corners," and all 
 other Combinations which Affect Prices ; and to Punish 
 Conspiracies against Freedom of Trade among the People of 
 the Several States. 
 
 Be it enacted hij the Senate and House of Representatives of 
 'the United States of America, in Congress assemlAed, That corn, 
 wheat, cotton, tobacco, cattle, horses, swine, sheep, beef, pork, 
 mutton, wool, rice, cloth, iron, copper, lead, wood, glass, coffee, tea, 
 sugar, oil, paper, and every other article in common and general 
 use among the people of the several states, wliether in crude, nat- 
 ural, or manufactured form, are hereby declared to be articles of 
 interstate commerce, and they may be carried from jjlace to place 
 within the jurisdiction of the United States, and be sold or dealt 
 in without interference, obstruction, or impediment by or on the 
 part of Uny person, company, corporation, trust, combine, syndi- 
 cate, corner, business proceeding, or device whatsoever : Provided, 
 That in any State where, by the laws thereof, the manufacture or 
 sale of any article or articles is prohibited, such article or articles 
 shall not be carried into such State for sale, nor shall they be sold 
 or otherwise disposed of there in violation of the laws of such 
 State. 
 
 Sec. 2. That every willful act, proceeding, agreement, custom, 
 shift, or [device, by whatsoever name or title it may be known, 
 which shall have the effect to in any way interfere with the free- 
 dom of transit of articles of interstate commerce, or with the free- 
 dom of traffic therein, or which shall have the effect to influence 
 prices or values of commodities by raising or lowering them, or 
 which shall in any manner interrupt the lawful and usual course 
 of trade in such commodities, is hereby declared to be a felony, 
 punishable by imprisonment and hard labor for a period of not 
 less than two years, nor more than ten years, in the discretion of 
 .the court.
 
 4 G2 APPENDIX. 
 
 Sec. 3. That every combinations of persons, partnerships, com- 
 panies, or corporations engaged in the same or similar lines of 
 business entered into for the purpose of controlling or regulating 
 l^rices of articles of interstate commerce, or which shall have that 
 effect ; every agreement, contract, or arrangement by, between, or 
 among such persons, j)artnersliips, companies, or corporations,, 
 whereby one or more of the parties thereto shall agree, j^romise 
 or stipulate, expressly or impliedly, directly or indirectly, to tem- 
 porarily close his, her, or their business, or shall in such manner 
 agree or promise to go out of business, the object or purpose of 
 such agreement, promise, or stipulation being to prevent competi- 
 tion in the particular l)usiness, and thus enable the other party or 
 parties to such agreement or stipulation to regulate, control, or 
 influence market prices of the article or articles, raised, produced, 
 manufactured, or dealt in by the parties interested in such arrange- 
 ment, is hereby declared to be a felony, punishable by imprison- 
 ment and hard labor for a period not less than two years, nor more 
 than ten years, in the discretion of the court. 
 
 Sec. 4. That all dealings, trades, contracts, agreements, stipula- 
 tions, promises, proceedings, and devices voluntarily entered into, 
 practiced, used, applied, or adopted for the purpose of collecting 
 and storing any article or articles of interstate commerce with 
 intent to raise or lower market prices or values of such articles, or 
 which shall have that effect,- and all proceedings and acts com- 
 monly designated "corners," and all dealings in oj^tions and 
 futures, and all trading, dealing, or proceeding of that nature, and 
 having like effect, are hereby declared to be felonies, punishable 
 by imprisonment and hard labor for a period not less than two 
 years nor more than ten years, in the discretion of the court. 
 
 Sec. 5. That for the purposes of this Act the word " options " 
 shall be understood to mean any contract or agreement whereby 
 a party thereto, or for any party for whom or in whose behalf 
 such contract or agreement is made, acquires the right or privi- 
 lege, but is not thereby obligated, to deliver to another at a future 
 time or period any of the articles mentioned in section one of this 
 Act. 
 
 Sec. 6. That for the purpose of this Act the word " futures " 
 shall be understood to mean any contract or agreement whereby
 
 APPEJsDIX. 463 
 
 a party ag-rees to sell and deliver at a future time to another any of 
 the articles mentioned in section one of this Act, when at the time of 
 making such contract or agreement the party so agreeing to make 
 such delivery, or the party for whom he acts as agent, broker, or 
 employe in making such conti-act or agreement, is not at the time 
 of making the same the owner of the article so contracted and 
 agreed to be delivered. 
 
 Sec. 7. That district courts of the United States shall have 
 jurisdiction in all cases provided for by this Act ; the provisions 
 hereof shall be specially given in charge to the grand jury at every 
 term, and, under proper instructions of the court, touching the 
 scope and object of the law, the jury shall determine, as matter of 
 fact, in every case brought under the provisions hereof, whether 
 the testimony adduced on the trial brings the case within the 
 intent of the law, aud whether it proves the person or persons 
 charged in the indictment to be guilty of a violation of the law. 
 The indictment may be amended at any stage of the trial or pro- 
 ceedings to conform to the facts proved, but the defendant shall 
 I )e allowed time aud opportunity to answer anything substantially 
 new or different which the amendment charges. 
 
 Sec. 8. That in all cases of violation of the provisions of this 
 Act by partnerships, companies, corporations, syndicates, or other 
 combinations of persons under particular names, titles, or designa- 
 tions, the person or persons managing or conducting the business, 
 proceeding, or device of such partnerships, companies, coi-pora- 
 tions, syndicates, or other combinations so violating the law, and 
 all agents, attorneys, and employes thereof knowingly assisting in 
 the management or conduct of such business or device, shall be 
 held amenable to the provisions hereof, and tried and punished 
 accordingly. 
 
 Sec. 9. That this Act shall take effect and be in force on and 
 after the hrst day of the second calendar month next after its 
 passao'e.
 
 IISTDEX. 
 
 ACT OF CONGRESS AGAINST MONOPOLIES, adopts principles 
 
 of common law, 218 
 
 removes question whether restraint is partial or general, 218 
 
 AGENT, contract where license required of real estate, 85 
 
 no power to appoint, in hostile territory, 102 
 
 resident may have, in hostile territory, 103 
 
 ALABAMA, sale of stock deliverable under option, valid under statute, 51 
 
 constitutional and statutory provisions on trade trusts, 262 
 
 conditional sale, 251,253 
 
 conspiracies among workmen, 341 
 
 APP0INT3IENTS, contracts influencing, 111 
 
 ARIZONA, constitutional and statutory provisions on trade trusts, 262 
 ARKANSAS, statute in, prohibiting dealing in futures not in restraint of 
 
 trade, 51 
 
 constitutional and statutory provisions on trade trusts, 262 
 
 ASSIGNMENT FOR CREDITORS, foreign enforcement of, 89 
 
 law of domicil of owner of property in insolvency, 86, 92 
 
 state law fixing method of transfer controls in, 86, 92 
 
 regarding legal process where property located in, 86, 92 
 
 contracts of, 86, 92 
 
 ATTORNEY, contract with non-professional to procure employment 
 
 void, 5 
 
 cannot contract for monthly compensation to defend illegal sales, 5 
 
 employment of, to secure street contracts, 107 
 
 procuring escape of witness, 117 
 
 giving part of recovery, not maintenance and champerty, 122, 123 
 
 contracts with clients champertous wh£n, 125 
 
 to prevent employment, by publishing as "scab," 335 
 
 B. 
 
 BANKS, contracts for excessive loans from, 82 
 
 illegal loans from, 82,83 
 
 investments forbidden to, 82, 83 
 
 BANKERS, protest of New York, Appx. 459 
 
 among London, settlement through " Clearing House," 46 
 
 New York, settlement through " Clearing House," 46 
 30 465
 
 466 INDEX. 
 
 BILLS OF EXCHANGE AND PROMISSORY NOTES, surrender of 
 
 instrument to maker of for gambling debt, 9- 
 defence of illegal consideration sustained on public grounds, 83 
 obtained by fraud, 97 
 drawn by alien during war, _ 102 
 to invalidate in innocent bands, statute must be shown, 53. 55 
 in hands of participant in wagering contracts void, 54, 55 
 on condition no suit on ofljcial bond, 108 
 on condition that building be used as postofflce, . 109 
 for compounding of offense, 116 
 securities given to shield crime, 139 
 BILLS OF LADING, state law requiring stamp for gold and silver ex- 
 ported, 220 
 BOYCOTTING, to prevent all persons from doing business with one, 410 
 to coerce by a let-alone policy, 410 
 applied to some phase of conspiracy, 410 
 combinations among workmen. 406 
 suit to restrain typographical union from, 859, 370, 406 
 on refusal to discharge employes, 308 
 to prevent employment of non-union men by, 383 
 to compel employment of union men by. 383 
 extortion to procure money by threat of, 887 
 longshoremen's union, 404 
 to prevent occupying farms of evicted tenants, 411 
 to prevent sale of goods on execution, 411 
 by typographical union prima facie malicious and corrupt, 424 
 BREWERS, contracts of, 172, 174 
 BRIDGE PRIVILEGES, monopoly of by attorney void, 213 
 BROKER, cannot recover advances on wager contract, 58,63 
 BUCKET SHOP devices being mere wager on futures, illegal, 57 
 
 o. 
 
 CALIFORNIA, under Constitution broker can enforce no right on sale 
 on margin, 
 
 wagers on indifferent matters valid in, 51, 62 
 
 CALLS, the privilege of calling or not for the thing bought, 43 
 
 " option," " put," " straddle " with intent to deliver enforceable, 44 
 
 question of jury whether transaction real, 44 
 
 CANAL BOATS, pooling profits illegal, 246 
 
 CAR TRUSTS, union under car trust plan, 248, 260 
 
 method stated, 248 
 
 lease under, 252, 259 
 
 conditional sale under, 250,260 
 
 CARRIERS, distribution of production enlarges markets, 238 
 
 combination of for lawful pursuit approved, 238 
 
 51
 
 INDEX. 467 
 
 CARRIERS, connecting: lines cheapen charges, 238 
 
 combination with open competition harmless, 238 
 
 rates that can be paid controls, 238 
 
 pooling contracts not enforced, 238 239 
 
 competing systems pooling earnings not enforced, 240 
 
 competition secures efficiency, 245 
 
 cannot set aside combination injurious, 246 
 
 state tax on interstate passengers, 220 
 
 on interstate freight, 220 
 
 combination to reduce competition, 220 
 contracts exempting, for negligence, 88 93 100 
 CHAMPERTY. See Maintainance. 
 
 contracts involving, 115 
 
 a species of maintainance, ItS i26 
 
 CHEAT, combinations to, 324 
 
 to extort by threat to prevent carrying on business, 384, 402 
 
 to extort by fear induced by threat of " boycott," 387 
 
 CIVIL GOVERNMENT, conspiracy against, 319 
 
 CLEARING HOUSE, settlements through by committee, 46 
 
 settlement made outside of, 4g 
 
 COAL, combination restraining interstate commerce in, 21G-229 
 
 COFFEE EXCHANGE, rules requiring actual delivery do not render 
 
 speculative contract valid, qq 
 
 COLORADO, constitutional and statutory provisions on trade trusts, 262 
 
 statutes on conditional sale in, 253 
 
 on conspiracy among workmen, 34I 
 
 COMBINATIONS. See also Conspikacies. 
 
 to control comforts and necessities of life, 213 
 
 opposition of legislative, executive and judicial power, 213 
 
 to absorb and monopolize transportation, 214 
 
 restraining commerce in coal, 216 229 
 
 to prevent general competition, 219 
 
 to impede competion illegal, 233 234 
 
 competition with, will not relieve illegality, 235 
 
 in various disguises, 236 
 
 to absorb the manufactories of an article, 236 
 
 to monopolize the market, 23G 
 
 to exclude apprentices, 236 
 
 to conceal trade secrets, 236 
 
 to reduce activity to idleness, 237 
 
 to produce unreasonable profits, 237 
 
 courts take notice of, 237 
 
 to control manufacture and sale of sugar, 289 
 
 corporation charged with public duly, 240-278 
 
 for lawful purposes approved, 247 
 
 to control prices, 219
 
 468 INDEX. 
 
 COMBINATIONS, continued. 
 
 to cheat, 324 
 
 Among Workmen, 
 
 statutes in England and the United States regarding, 338 
 
 legislation affecting the law concerning, 378 
 
 present condition of the law concerning trade or labor, 406 
 
 picketing, 406 
 
 boycotting, • 406 
 
 legislation concerning has not changed common law here, 378 
 
 relation to and influence upon compensation, 3T8 
 
 peaceful withdrawal of workmen by "strike," 378 
 
 for unlawful purpose tending to injury of public or individual rights 
 
 is criminal, 378, 379 
 
 to better their condition every way encouraged, 378, 384, 400, 405 
 
 not controlled by ancient precedents, 378 
 
 early English statutes concerning, not adopted here, 379-384 
 
 the lawfulness of, a question of fact, 379 
 
 are presumptively commendable, 379 
 
 general legislation concerning, evidence on question of fact, 379 
 
 notifying workmen not to hire themselves pending a dispute, 
 
 380, 381, 384, 393 
 may regulate wages without violence or threats to others, 380, 381, 400 
 giving notice to dismiss nonunion men, 380, 381, 407 
 
 must not forbid one man to work for another, 381, 382, 384, 407, 409 
 may peaceably pursuade others to abstain from work, 405 
 
 everyone has the right to employ his talents, industry and capital 
 
 free from dictation, 382 
 
 to abstain from work not unlawful, 391 
 
 threatening to abstain from work not unlawful, 391, 392 
 
 collecting about coal mines, 403 
 
 gathering about a mill to intimidate, 403, 404 
 
 if innocent, those only abusing its power liable, 404 
 
 to coerce workmen to unite, 404 
 
 to interfere with or obstruct in working, 404 
 
 to prevent employers making just discrimination in wages paid, 404 
 
 to interfere with emploj^ers' proper control of business, 404, 409 
 
 property or traffic or employment, 404, 409 
 
 have no more right to injure others than individuals have, 404 
 
 must not overcome free agency of others by intimidation, 405, 409 
 
 stand on broad level of equality with all, 407 
 
 not to work for anyone employing men below wages named, 408 
 
 prescribing penalty for employers violating trade union rules, 408 
 
 party to illegal, cannot have relief in courts, 138 
 
 COMMERCE, free between states; only restrained by Congress, 220 
 
 state law granting exclusive right of navigation, 220 
 
 imposing taxes on the importer, 220 
 
 requiring license to sell goods, 220
 
 INDEX. •i^Q 
 
 COMMERCE, continued. 
 
 imposing tax for passengers, 220 
 
 requiring stamp for bills of lading, 220 
 
 imposing conditions to landing of passengers, 220 
 
 granting exclusive right to telegraph line, 220 
 
 excluding meat from other states, 221 
 
 prohibiting sale in " original packages," 221 
 
 state license on railroad agent from other State, 221 
 
 on office of other state railroad, 221 
 
 stat« tax on passengers, 220 
 
 on transportation of freight, 220 
 
 sale of goods manufactured out of State, 320 
 
 telegraph message sent without State, 320 
 
 upon alien passengers, 221 
 
 by city upon tow boats from other states, 221 
 
 upon steam ferries between states, 221 
 
 discriminating against other States' goods, 221 
 
 upon sleeping-cars run through the State, 221 
 
 upon gross receipts for passengers, 221 
 
 not imposed on interstate commerce, 221 
 
 license tax upon telegraph company, 221 
 
 upon "drummer," 221 
 
 COMMERCIAL FERTILIZERS, contracts for sale of. 83 
 
 COMMERCIAL LAW, rests on principles of public policy, 92, 100 
 
 rule of, questioned, 93, 100 
 
 rule in United States Supreme Court on, 92 
 
 when contracts governed by, 92 
 
 COMMERCIAL PAPER. See Bills of Exchange. 
 
 COMMON LAW. so far as applicable and of general nature governs, 385 
 
 will not permit individual's contract for injury to public, 285 
 
 holds agreements to prevent competition void, 385 
 
 contracts creating monopolies void by, 285, 286 
 
 as contrary to, 285 
 
 conspiracy as an offense at, 391 
 
 origin of conspiracy shown from villenous judgment, 393 
 
 precedents and decisions, 393 
 
 COMPETITION, public policy opposes whatever prevents, between 
 
 those in public business, 284 
 combinations to stifle, 318, 319 
 
 when excessive, ruinous, 238 
 
 secures safe and efficient transportation, 245 
 
 injuriously affecting facilities of travel, 265 
 
 CONDITIONAL SALE, car trusts 250, 260 
 
 Alabama rule, 251 
 
 Pennsylvania rule, 251 
 Statutes of Illinois, 252, 253
 
 470 INDBX. 
 
 CONDITIONAL SALE, contiaued. 
 
 Colorado, 253 
 
 Dakota, 253 
 
 Washington, 253 
 
 New Mexico, 253 
 
 Minnesota, 253 
 
 Wisconsin, 253 
 
 Oliio, 253 
 
 Delaware, 253 
 
 New Jersey, 253 
 
 Maryland, 253 
 
 North Carolina, 253 
 
 West "Virginia, 253 
 
 Alabama, 253 
 
 Kentucky, 253 
 
 Tennessee, 253 
 
 New York, 2.-53 
 
 Iowa, 253 
 
 South Carolina, 253 
 
 Missouri, 253 
 
 New Hampshire, 254 
 
 contract of, {Note 75. 76) 74, 79 
 
 CONNECTICUT, contract discharged by payment of differences invalid, 51, 52 
 
 constitutional and statutory provisions on trade trusts, 262 
 
 statute on conspiracy among workmen, 841 
 
 CONSIDERATIONS, essential, 6 
 
 illegal in part, 6 
 
 moral and immoral, 6 
 
 good and equitable, 8 
 
 mutual promises, 11 
 
 valuable, 13 
 
 expectation of results not, 20 
 
 voluntary services and promises no, 21 
 
 existing obligations not, 21 
 
 of contract must not be tainted, 6 
 
 moral, support contract under some circumstances, 8 
 
 Code of Georgia recognizes moral, 8 
 
 after dissolution of partnership allowing partner compensation for 
 
 past services good, 8 
 moral duty and obligation not sufficient, to support future promises, 8 
 "love and affection," "blood relationship," "friendship" or "courte- 
 sy" not sufScient, 8 
 father's duty sufficient, to support gift for benefit of daughter, 8 
 conveyance for benefit of illegitimate child good, 9 
 natural affection in an executed contract is sufficient, 9 
 promise by father, of land not sufficient, 9 
 of illegitimate child to the mother for support of child sufficient, 9 
 to obtain possession of sufficient, 9
 
 IKDEX. 
 
 471 
 
 CONSIDERATIONS, continued. 
 
 deceiving by void marriage suflBcient, for promise, 9 
 discontinuance of prosecution for bastardy sufficient, for, 9, note 
 minors abstaining from liquors, tobacco, profanity and cards suffi- 
 cient, ^ ^' JJ 
 equitable, will sustain, but gratuitous promise not sufficient to enforce, 11 
 
 mutual promises sufficient, J 
 
 exchange of notes sufficient, ^ 
 
 conveyance to firm sufficient, for note of firm, 13 
 
 promise to induce performance of prior engagement not sufficient, 12 
 
 promise to wait for money then due not sufficient, ^ 13 
 
 sureties promise in ignorance of discharge not sufficient, 13 
 
 creditor's promise to take part as payment not sufficient, 13 
 release of indorser of note of joint maker on payment of part is suffi- 
 
 . lo 
 cient, 
 
 promise to witness for attendance is without, io 
 
 valuable, what constitutes, 1^ 
 waiver of legal or equitable right on request sufficient, 13, 15 
 
 forbearance of suit for which plausible grounds exist is sufficient, 14 
 
 suspension of existing actual demand sufficient, 14 
 
 compromise of doubtful claim sufficient, 14= 
 
 compromise of differences regarding rights under contract sufficient, 14 
 
 surrender of collaterals sutlicienl, 14 
 
 relinquish of defense good, ^ 
 
 release of royalties is sufficient. 1 
 
 release of right on obtaining judgment is sufficient, 14 
 
 14 
 
 release to confirm title good, 
 
 tract bindinff, 
 
 15 
 
 performance of, renders contract binding, 
 promise or performance to injury of promisor, ] 
 
 expressed, sufficient, 
 
 withdrawal of caveat by heir-at-law, l'"* 
 
 15 
 
 15 
 
 money expended on faith of contract, 
 
 expenditure on permanent improvement of land, 
 
 promise by habitual drunkard to physician for cure- 16 
 
 expenditure of money for his own benefit on another s promise. lb 
 
 surrender of son's note not enforceable, good, 1° 
 
 promise for goods delivered to another, ^ 
 
 conveyance of unclaimed possible interest, 1^ 
 
 extension of time and use of property sold, ^ 1^ 
 
 note, maker's assent to compromise claim against third person is, lb 
 
 release of claim on land to enhance annuity, 1^ 
 
 resignation of private office for annuity, ' 
 
 surrender of over-due note for new without additional indorser, 17 
 
 17 
 
 payment of doubtful claim in full to avoid litigation, 
 promise to pay judgment on withholding execution good, 17 
 
 to credit transferred debt upon precedent one good, 17 
 
 either a benefit to promisor or injury to promisee, 1". 1» 
 
 valuable however small if in good faith,
 
 472 INDEX. 
 
 CONSIDERATIONS, continued. 
 
 promise of land to son if he will remain at home, 18, 1& 
 
 onerous contract under Louisiana Code, 19 
 
 promise of service during life, 18 
 
 possession of land given son and improvement, 18 
 
 property for care of promisor, 19 
 
 promise on purchase of land to transfer securities sufficient, 19 
 promise if one would settle on certain lands they should be conveyed, 20 
 
 though fulfilled not sutlicient, 20 
 
 by performance of yearly contract terminated by death, 20 
 
 distinction betweeu motive that induced contract and the, 20 
 
 nothing is, not so construed by each, 20 
 
 neither expectation nor result constitute, 20 
 
 voluntary promise not enforceable without, 21 
 promise of husband to wife on her deathbed of benefit to son is 
 
 without, 21 
 
 promise to allow new trial to defeated creditor is without, 21 
 
 vohmtary services vvithout privity not suIBcient, 21 
 
 promise after voluntary service is known sometimes suflQcient, 21 
 
 promise to pay relative for past services not sufficient, 21 
 
 promise to pay for past services rendered on request sufficient, 21 
 
 concurrence of the minds of all parties constitutes sufficient, 21 
 promise by stranger on permission to insure a life to pay the wife 
 
 not sufficient, 24 
 
 defense of illegal sustained on public grounds, 63 
 
 where illegal can not be severed, 141 
 
 legal, but purpose unlawful, 141 
 
 illeirality of only known to one party, 141 
 
 independent of illegality of will sustain contract, 146, 147 
 
 in locus pcenitenticB may be recovered, 146, 147 
 
 recovered where neither public policy nor morality forbid, 146, 147 
 
 executed, recovery may be had though not eniorcible, 147, 149 
 
 marriage, the highest, in law, 150, 151 
 
 ante-nuptial settlement on marriage sufficient, 152 
 
 revocation of ante-nuptial settlement requires, 153 
 
 marriage brokerage contracts founded on illegal, 153, 153 
 
 restoration of marital rights, when a, 152 
 
 assessment to secure money on marriage without, 153 
 
 goods sold to wife during separation, 153 
 
 bond to secure wife maintenance is on valid. 156 
 
 bond by wife to husband on separation, 157 
 
 illegal, may be actual, substantial and valuable but insufficient, 206 
 
 restraint of trade is invalid without, 201, 202 
 
 question is not of sufficiency but legality of, 201 
 
 courts consider the reasonableness of, 202 
 
 if restriction seems reasonable, sufficient, 199 
 
 CONSPIRACIES, of common law origin, 291
 
 INDEX. 473 
 
 CONSPmACIES, continued. 
 
 villenous judgment in, shows common law origin of, 292 
 
 defined, 293 
 
 are odious in law and always taken mala parte, 832 
 
 influence of act determines character of, 314 
 
 to do any act criminal per se indictable, 315, 316 
 must intend something specially adapted to injure by combination 
 
 or something indictable if done by one, 315 
 
 to do acts necessarily collective, 315, 317 
 
 where ends or means are criminal in themselves, 316 
 
 to cause injury poisons the agreement, 316 
 
 does not require all parties to assist, 316, 317 
 
 must include agreement, not intention only, 318 
 
 must include two or more persons, 318 
 
 consent in amounts to agreement, 818 
 
 to do acts punishable by exemplary damages, 818 
 
 when not necessary to state the means, 802 
 immediate purpose to hurt another, 803, 307, 312, 316, 318 
 to ruin man in his trade, 306, 3U7, 317, 318 
 
 to maliciousl}^ induce singer to break contract, 303 
 
 to hiss an actor from the stage, 807 
 
 to induce customers to leave trader, 803 
 
 to break up business of selling goods on consignment, 303, 306 
 
 where malice is a necessary element, 305, 306 
 
 to set up a suppositious child as legitimate, 308 
 
 to defraud an individual, 308 
 
 by false rumors to raise price of public funds, 308 
 
 to spread false rumor to increase price of commodity, 308, 309 
 
 to give fictitious value to article, 309 
 
 to create comers in tbe market, 309 
 
 to create fictitious values to induce advances, 809 
 
 to monopolize a particular business by fraud, 309 
 
 among large operators to control the market, 309, 310 
 
 to keep from market an article of public use, 310 
 
 to circulate false and forged bills, 310 
 
 to cheat, although means not determined, 310, 311 
 
 to accomplish a seduction, 311, 312 
 
 to procure fraudulent marriage ceremony, 312 
 
 to do an act offensive to public decency, 312 
 
 to destroy reputation by charging crime, 312, 316 
 
 against civil government, 319 
 
 which are such at common law or by statute, 319 
 
 to overthrow civil government as treason, 319 
 
 to excite discontent and sedition, 820 
 
 to promote ill will between classes, 320 
 
 to excite disaffection in the army, 320 
 
 by physical force to alter government or laws, 330 
 
 to obstruct the execution of the laws, 320
 
 474 INDEX. 
 
 CONSPIRACIES, continued. 
 
 to defraud the government, 820 
 
 to control an election by bribery, 820 
 
 to corrupt an officer by bribery, 820 
 
 to corrupt the appointing power, 320 
 
 under U. 8. Statute need not allege success, 320 
 
 affecting the public injuriously, 821 
 
 against the public quiet, 821 
 
 to excite a riot, 821 
 
 to denounce and excite resistance to police, 8il 
 
 among officers to violate or permit violation of law, 821 
 
 the intent to violate law must appear to sustain, 821 
 
 to induce officers to violate law, 821 
 
 to commit fraud at an election, 821 
 
 to procure by fraud an appointment to office, 321 
 
 to promote sale of unhealthy food, 321 
 
 to induce violation of statute, as a liquor law, 321 
 
 to provoke a trespass, 321 
 to do acts injurious to the public if the subject of a combination to 
 
 accomplish them. 821, 323 
 
 to injure the public resulting in private injury, 822 
 
 by landsman to injure a seaman, 822 
 
 to defraud the State of taxes or customs, 322 
 
 against the due administration of justice, 322 
 
 to procure a forfeiture on conviction to divide estate, 822 
 
 to destroy a will to secure estate, 822 
 
 to prevent competition at judicial sale, 823 
 
 to pervert legal process to criminal ends, 823 
 
 to suppress, fabricate or falsify evidence, 823 
 
 to prevent prosecution for crime, . 323 
 
 to acquit by bribery, 823 
 
 to charge or indict falsely, 323 
 
 to obstruct an officer, 323 
 
 to procure fraudulent judgment or decree, 828 
 
 to entice one within jurisdiction of court, 823 
 
 against public virtue and individual morality, 823 
 
 to seduce a particular woman, 323 
 
 to induce one to enter a life of prostitution, 323 
 
 to induce a girl under legal age to marry, 824 
 
 to induce young girl to elope for prostitution, 324 
 
 and combinations to cheat, 324 
 
 at common law, as distinct from civil action, 327 
 involving fraud, falsehood and malice, 327, 328 
 in case of statutory deceit, sufficiency of means employed not 
 
 essential, 328 
 not lie where an action at law affords relief, if means used are 
 
 private, 324 
 
 to defraud the State, 825
 
 IKDEX. 
 
 475 
 
 CONSPIRACIES, continued. 
 
 to defraud a public corporation, 324, 330 
 
 to control positions in public corporations, 325 
 
 the agreement to cheat constitutes the offense of, 825 
 
 to cheat a bank of circulation or deposit, 325 
 
 to obtain credit or goods without payment, 325 
 
 the success of the, is simply aggravation, 835 
 
 325 
 
 826 
 626 
 
 332 
 332 
 
 832 
 332 
 332 
 
 with member of firm to cheat partner by, to make false entries, 
 to issue fictitious bill of false firm, 
 to cheat by public tokens— false weights, etc., 
 to fraudulently fill up railroad tickets, 526 
 
 to falsely represent condition of corporation, 526 
 
 of public stocks, ^^ 
 
 to cheat by sham bidding at auction, 829 
 
 to obtain funds in a false name, 329 
 
 to secure real estate in false name, 329 
 
 to commit acts morally unlawful or by means morally wrong, 329, 331 
 to defraud though means not determined, 331 
 
 to use the mails to defraud, 331 
 
 to extort anything of value from an individual by intimidation, 
 to extort from a corporation or class by threats or intimidation, 
 to obtain unauthorized security for a debt by pretense of judicial 
 
 authority, 
 to induce a charge of crime falsely to procure money, 
 to force payment of money to avoid prosecutioo. 
 to induce payment of money under fear of disgrace, 332 
 
 to extort money under false affidavit of obtaining under false pre- 
 
 tense 
 to extort money by charge, whether true or not. of act criminal or 
 
 not, 
 to slander, 
 
 to slander to extort money, 
 
 to slander to injure reputation by means not indictable in an indi- 
 vidual, 
 by verbal defamation whether charge be indictable or not, 
 by trade mark to defame and injure work of non-union men, 333, 334 
 relating to trade and labor, ^ 
 
 to deter from employing attorney by publishing as a " scab, 33o 
 
 to deter employers from selecting workmen by threats, etc., 335, 338 
 
 of journeymen to prevent employment of apprentices, 335 
 
 in trade combinations. Development of the doctrine, 33o 
 
 in England is now controlled largely by statute, 335, 338, 341 
 
 in this country controlled by decisions and statutes, 835, 341 
 
 of boot and shoe makers of Philadelphia, 335 
 
 combination to change the price of labor not conclusive of, 335 
 
 combination of employers to depress wages of journeymen. 335 
 
 to commit criminal act need not state means, 336, 367. 368 
 
 332 
 332 
 333 
 
 333 
 333
 
 476 INDEX. 
 
 CONSPIRACIES, continued. 
 
 to commit act not illegal, means illegal must be shown, 836 
 
 by shoemakers to prevent workmen taking less wages, 'i'di> 
 
 where the act must necessarily injure the public or oppress per- 
 sons, 336 
 
 state must protect against, to injure person in busines-^, 336 
 
 union of workmen against employment of others not, . 336, 337 
 
 against retention of others, 336, 337, 338, 368 
 
 to violate contracts is, 337 
 
 to diminish gains of employer when, 337 
 
 to fix wages of union men, not 337 
 
 to require dismissal of others is, 337, 338, 368 
 
 master stevedores to lix wages, not 337 
 
 statutes in England and the United States regarding, among work- 
 men, 338, 377 
 
 England Act of 1875 concerning, 338, 376 
 
 workmen may combine and insist on agreed wages without, 338 
 
 combination not, if proposed act be one not criminal, 338 
 
 "friendly societies" not, 
 
 " friendly societies" funds to support strikes may be, 
 
 "strikes" not necessarily, 
 
 Alabama Code 1886, 
 
 Colorado Acts 1887, 1889, 
 
 Connecticut Gen. Stat. 1888, 
 
 Delaware Acts 1877, 
 
 Florida Stat. 1881, 
 
 Georgia Code 1882. 
 
 Illinois Stat. 1885, 1887, 
 
 Indiana Stat. 1881, 
 
 Iowa Stat. 1886, 
 
 Kansas Acts 1886, 
 
 Kentucky Gen. Stat. 
 
 Louisiana Rev. Laws, 
 
 Maine Acts 1889, 
 
 Maryland Pub. Gen. Laws 1888, 
 
 Massachusetts Acts 1886, 1888, 1890-91, 
 
 Michigan Stat. 1882, 1886, 
 
 malice need not be shown under Michigan statute, 
 
 Missouri Rev. Stat. 1889, 
 
 Minnesota Penal Code 1886, 
 
 Montana Slat. 
 
 New Hampshire Acts 1887, 
 
 New Jersey Rev. Stat. 1877, Sup. 1883, 
 
 New York Rev. Stat. 1883, Acts 1887. 
 
 indictments against officers K. of L. of Rochester, N. T,, 
 
 report of Board of Mediation and Arbitration of New York, 
 
 North Carolina Statutes, 
 
 North Dakota 1883, black lists forbidden, 
 
 338 
 
 -340 
 
 338. 
 
 340 
 
 339, 
 
 371 
 
 
 341 
 
 341. 
 
 342 
 
 
 342 
 
 342, 
 
 343 
 
 
 ;M3 
 
 343, 
 
 344 
 
 344, 
 
 ,346 
 
 346, 
 
 347 
 
 347, 
 
 348 
 
 
 348 
 
 
 348 
 
 
 348 
 
 848, 350, note 2 
 
 
 350 
 
 350, 
 
 351 
 
 351, 
 
 352 
 
 
 352 
 
 
 352 
 
 352, 
 
 353 
 
 
 353 
 
 
 353 
 
 353, 
 
 354 
 
 354, 356, 
 
 note 
 
 356-358 
 
 rk, 357, 
 
 358 
 
 
 358 
 
 
 359
 
 INDEX. 4:77 
 
 CONSPIRACIES, continued. 
 
 Ohio Rev. Stat. 1885, J 886, 359 
 
 suit to restrain to boycott Typo. U. No. 3, Cincinnati, 359, 870 
 
 Oregon An. Laws 1887, 370 
 
 Pennsylvania Acts 1795, 1887, 1889, Dig. 1885, 370, 372 
 
 workman's organization for higher wages not, 373, 376 
 
 Rhode Island Pub. Stat. 1882, 372 
 
 South Carolina Gen. Stat. 1886, 372 
 
 South Dakota Rev. Code 1883, 372 
 
 Tennessee Act 1887, 372 
 
 Texas Rev. Stat. 1879, 872, 373 
 
 Vermont Rev. Laws 1880, 373 
 
 Wisconsin Acts 1887, 873 
 
 actionable if evil result, 873 
 
 Wyoming Rev. Stat. 1887, 878 
 
 United States, 873-375 
 
 authorizing board of arbitration, 375 
 
 autliorizing national trade union, 876 
 
 to coerce free choice of employment or wages, 411 
 
 to prevent by violence and intimidation employment of non-union 
 
 men, 328, 383, 403 
 
 to boycott to prevent employment of non-union men, 383 
 
 to compel employment of union men, 883 
 
 to prejudice a third party highly criminal. 883 
 
 manner of committing acts proof of malice in, 383 
 
 congregating about shop door and giving out circulars in pursu- 
 ance of 884 
 to intimidate by large bodies of men collecting, 403 
 among boarding house keepers not to ship sailors, 411 
 under statutes punishing willful and malicious interference with busi- 
 ness, 420 
 legislation regarding, does not abolish common law offense, 418 
 venue where any act was done by anyone charged, 412 
 indictments for as common law offense generally, 413 
 in stating object exact strictness and certainty not required, 412 
 in stating criminal purpose must be full and clear, 413 
 general allegation that two or more united for criminal purpose, 412 
 that two conspired to do an act so that a third should commit a felony, 417 
 the acts of one person may be charged as the individual acts, 422 
 charging criminal purpose need not state means, 412, 416 
 all are principals unless otherwise charged, 418 
 not alleging criminal purpose must state criminal means, 412, 413, 416 
 to wrongfully injure another need not state means, 413 
 to seduce a girl need not state means, 413 
 if fraud, force or falsehood be intended to be used must be charged, 
 
 413, 414 
 court may direct bill of particulars, 413 
 
 words of statute may be used if means and purpose unlawful, 414
 
 478 INDEX. 
 
 CONSPIRACIES, continued. 
 
 to unlawfully and malicioasly obstruct business of corporation suf 
 
 ficient. 416 
 that defendants "unlawfully, fraudulently and deceitfully did con- 
 spire" to cheat, suflicieut, 414 
 that defendauts conspired to threaten, and used the boycott to in- 
 timidate, 423, 424 
 doing overt act charged though act not set out, nor injury, 414 
 may charge conspiracy as substantive offense or in counts joined 
 
 with counts for substantive crime, 41& 
 when to cheat particular persons names stated if known, 414 
 need not aver knowledge of character of unlawful act, 415 
 must charge knowledge if act not unlawful in itself, 415 
 to impede an officer must aver knowledge of official character, 415 
 where additional punishment imposed for overt act, 415 
 may charge crime witiiout averring overt act, 415, 416 
 conspiracy is the gist of the offense, 416 
 overt act to be charged onlj' wben statute requires, 415 
 overt act may be charged in aggravation, 416 
 overt act is a renewal of offense, 416 
 offense depends upon the agreement, 416, 417 
 not sufficient charging mere intent, 417 
 least degree of consent or collusion is sufficient, 417 
 the act of conspiring is like that of unlawful assembling, 417 
 consummated conspiracy charged when complete, 418 
 not sufficiently charged, cannot be aided by acts of individuals, 418 
 no detailed statement of connection between act and, 418 
 to obstruct justice having prevented trial sufficient, 418 
 counts covering same identical acts may be joined, 418 
 reference to counts not sufficient, but cured by verdict, 418 
 several illegal acts charged in separate counts, 418 
 proof must show two or more engaged, 419 
 not sufficient to show husband and wife alone, 419 
 that man and woman marry in name of another for fraud, 419 
 proof of union of will sufficient, 419 
 joint assent of minds proved by facts and circumstances, 419 
 that one incited procured, or encouraged the act sufficient, 417 
 proof of presence prepared to assist sufficient, 419 
 agreement need not be iu words but by conduct, 419, 420 
 agreement is an act in advancement, 419 
 one joining after conspiracy formed becomes co-conspirator, 417 
 no proof of overt act necessary, 420 
 combination must be proved corrupt, 420 
 combination must be proved joint, malicious and willful, 420 
 under statutes need not show common law malice, 420 
 that party acted jointly with others sufficient, though names un- 
 known, 420, 421 
 acts and declarations of each in common design bind all, 421, 424, 425, 426
 
 INDEX. 
 
 479 
 
 CONSPIRACIES, continued. 
 
 cannot prove acts and declarations not to carry on common purpose, 
 
 422, 423, 425 
 
 same evidence of declarations and acts in criminal as in civil cases, 422 
 
 of declarations and acts after formation and in furtherance of, 423 
 
 individual acts and declarations admissible after prima facie case, 425 
 
 in discretion of judge, ~ 
 
 charges each with natural consequences of act of each, 431, 4-d 
 
 of an act by one beyond that of others, charges all, 421 
 if act of one be outside of common purpose, others not held, 421, 423 
 if intended act not dangerous, a killing by one is collateral. 421 , 423 
 
 to rob, renders all liable for killing, j22 
 
 to mob prisoners, renders guard conspiring liable, «3 
 
 of time when one entered into it immaterial, «* 
 
 that one joins at any time renders him liable for all acts, 428 
 
 is not necessary that one was the original contriver, 423 
 
 that one acts in subordination to the other immaterial, 428 
 
 of threat intended to accomplish lawful purpose, sufficient. 424 
 of hoycott by typographical union prima faaie malicious and cor- 
 
 that defendants committed a similar offense in same general policy, 424 
 
 that several men form the intent and come together to execute, 425 
 
 that one object was pursued, some doing one part, others another, 425 
 
 may first prove conspiracy, rendering acts of each admissible, 425 
 
 may first prove acts of different persons and thus prove conspiracy, 425 
 after design consummated, cannot prove subsequent individual dec- 
 larations on acts, 
 without previous agreement of purpose and extent, with withdrawal 
 
 - 426 
 of one, 
 
 of acquittal of one is admissible on trial of others. *~o 
 that one was only an agent will not call for accounting, 426. 427 
 of declarations of customers of motive of withdrawal of patronage 
 
 admissible, 
 to defame and injure business, with proof of acts, sustain trespass 
 
 on the case, . 
 
 in case, if tort actionable, if committed by one, recovery agamst one, 4.57 
 
 not sufficient until third party has suffered, 427 
 
 that wrongful act of each injured plaintiff, sufficient, 427 
 
 CONSTITUTION of State indicates public policy, 230 
 does not exclude all monopolies, 230, 23^ 
 
 permits monopolies of gas, ^^ 
 
 of street railroad, 
 
 denies, 23^ 
 
 CONTRACTS, void where effect is in general restraint of trade, 164, 218 
 
 restraint unreasonable, 
 
 it injuriously affects the public, * 
 no consideration to support it,
 
 480 INDEX. 
 
 CONTRACTS, conlinued. 
 
 there is combiuatiun to stifle competitiou, 218 
 
 it controls prices of necessities of life, 218 
 
 what is reasonable restraint, question of law, 218 
 
 whether injurious to public, (]Ucstion of law, 218 
 
 restraining trade judged by circumstances, 239 
 
 in restraint of trade why void, 2139 
 
 will not relieve corporation of public duty, 240 
 
 to prevent ruinous competitiou, 200 
 
 restraint of trade, 270 
 
 must not invade interests cherished by the law, 1, 12, 6 
 
 to invade interests favored at law, 6 
 
 consideration essential, 6 
 
 illegal in part, 6 
 
 moral and immoral, 6 
 
 good and equitable, 8 
 
 mutual promises, ] 1 
 
 valuable, I'.i 
 
 expectation of results not, 20 
 
 voluntary services or promises, 21 
 
 existing obligations not, 21 
 
 wager policies on life, 22 
 
 for future delivery of stocks, grain and produce, 88 
 
 courts will protect the public in. 63 
 
 to contravene statute void, 66 
 
 when void though not prohibited, 68 
 
 statutes simply directory do not invalidate, 69 
 
 invalidating statutes protecting against imposition, 70 
 
 statutes against impericism, 70 
 
 requiring inspection, etc., of goods, 70 
 
 involving illegal sale of liquors, 71 
 
 violation of foreign laws, 73 
 
 in violation of Sunday laws, 79 
 
 subject-matter of statute determines effect on, 79 
 
 purpose of legislation determines effect on, 79 
 
 intent of legislators must control, 79 
 
 involving reduction of wages for imperfection in product, 850, 3.}1 
 
 violating "Homestead Laws," 79 
 
 for sale of unbranded goods, 83 
 
 with unlicensed pedlar, 83 
 
 for illegal dealing in commercial fertilizers, 83 
 
 concerning matter malum in se, 84 
 
 malum prohibitum, 84 
 
 foreign, local policy determines validity of, 85 
 
 when state comity enforces, 85 
 
 of foreign assignments for creditors, 89, 92 
 
 controlled by commercial law, 92, 100 
 
 war as affecting, 101
 
 INDEX. 
 
 481 
 
 CONTRACTS, continued. 
 
 executory, cancelled by war, ^01 
 
 with public enemy void, ^^^ 
 
 appointing agent during war invalid, ^"« 
 
 iDSuring property enemy, 104' 105 
 
 private, and affecting civil government, 106 
 
 affecting injuriously operations of government, 106 
 
 contingent upon ministerial action, 108 
 
 10 influence legislation, 1^0 
 
 influencing elections and appointments, HI 
 involving maintenance and champerty, 115, 118, 136 
 
 obstructing public justice, 115 
 
 to influence the actions of corporations, 126 
 
 when courts will and will not relieve from, 136 
 
 no relief in case of fraudulent, 136 
 
 illegal and immoral, 136 
 
 illegality in, need not be pleaded, 137-139 
 
 illegality in part, 1*0 
 
 illegal, individual may release damages, 141 
 
 agamst public policy courts will not enforce, 141 
 
 relief from illegal, 143 
 
 parlies in pari delicto in illegal, 143 
 
 parties to tiltra vires, 143 
 
 relief independent of, 146 
 
 locus poenitentiae \n illegal, 146 
 
 relief upon executed, 147 
 
 affecting marriage, I'^O 
 
 to promote or rupture the marriage relation, 150, 153 
 
 for immediate separation of husband and wife, 153, 156 
 
 for support of wife on immediate separation, 153 
 
 after accomplished separation, 153 
 
 for separation and support how far supercedes marital duties, 156 
 
 of marital separation trustee not essential, 157 
 
 husband treated as trustee, 157 
 marital separation husband not liable criminally for non-support, 157 
 
 void where immediate separation not contemplated, 158 
 
 regarding property, but in partial restraint of marriage, 158 
 
 excluding one from pursuing his employment, 163 
 
 for disposal of one's labor, 163 
 
 depriving the public of avails of labor, 162, 164 
 
 •excluding from everywhere and always, 163, 165 
 
 manufacture "so far as the law allows," 163, 171 
 
 limiting engaging in business transferable, 163, 169 
 
 courts will enforce where limitation is reasonable, 164 
 
 rivals may enter into partnership, 164 
 
 with manufacturer to induce trade with merchant, 164 
 
 in restraint of trade must not be unreasonable, 165 
 31
 
 482 LNDEJt. 
 
 CONTRACTS, continued. 
 
 to bid at auction to stifle competition, 165 
 
 among stockboUlers not to give proxies or sell, 165 
 restricting use of real estate, IGO, 172, 174 
 
 to enhance price of bread, 166 
 
 of grain, 166 
 to create "comers" in prnin, 160 
 not to employ commercial travelers, 166 
 to control water power, 166 
 against compromising litigation, 187 
 imposing limited restraints territorially as condition of employ- 
 ment, 167 
 for protection of purchaser, 107, 109, 174, 181 
 of purchase to prevent competition, 174 
 not to engage in trade at certain place, 167-169 
 for purchase of "good will," 177 
 not to run steam-boats between certain places, 167 
 
 stage on certain route, 169 
 
 not to use steam-boats on state waters, 167 
 
 to sell only to one person in a town, 167 
 
 not to send poultry to a certain markot, 168 
 
 not to sell marl off certain land, 16)^ 
 
 excluding tailor from certain town, 168 
 
 with i-mi)loyt' limiting place of business, 168, 169 
 
 liiniling within obligee's spliere, 168 
 
 imposing territorial limitations sustained, 107 
 bow distances in territorial limitations are determined in instances, 169 
 
 with physician not to practice within 12 miles, 169 
 
 in neighborhood, 169 
 
 with physician must show practice sold, 169 
 
 excluding iron casting within 00 miles, 169 
 
 not to open apothecary shop within 20 miles, 109. 170 
 
 restricting dentist over territory of 200 miles, 170 
 
 restricting sale secret compound, 170 
 
 limit of state laws in, 170 
 
 territorial limitations too restrictive in, instances, 171, 173 
 never to do business in a State, 171, 172, 179 
 
 excluding business west of Albany, . 172 
 
 limitations in regard to lime, 172 
 
 limiting time may be indefinite, 172 
 
 for exclusive fui-nishing of cars for 15 years, 172 
 
 of partnership not sustain perpetual restriction, 172 
 
 brewers, 172, 174 
 
 for exclusive right to supply beer, 173, 174 
 
 brewer's covenant between lessor and lessee, 174 
 
 mortgagor and mortgagee, 173, 174 
 
 limitations to protect purchaser of business imposed in, 174, 181 
 
 for sale of discovery, 181, 182
 
 INDEX. 4:83 
 
 CONTRACTS, continued. 
 
 to restain seller from divulging "trade secret," 181, 182 
 
 restricting competition in the same line is valid, 175 
 
 restriction applies to space covered by business, 175 
 
 limiting space with no limit of time, 173 
 
 limiting space according to nature of contract, 173 
 
 limiting manufacture of matches to two states, 175. 176, 195 
 
 excluding so long as purchaser runs business in place, 175 
 
 vendor may preclude competition with purchaser, 176, 183, 195 
 
 motive of covenantee not test of validity, 177 
 
 promise of merchant not to deal in an article, 177-181 
 
 for sale of medical discovery in certain limits, 181, 182 
 
 regarding patent rights under coutiicting claims, 182 
 
 for use of patent right in dispute, 182 
 
 not to aid competition against purchasers of patent, 183 
 
 to regulate competition between patents 183, 187 
 
 to supply district with flour made under patent, 183 
 
 for monopoly of patent right, 183, 187 
 
 in restraint of trade, modification of rule, 188 
 
 Act of Parliament repealing statutes regarding trade, 188, 189 
 
 if restraint and interest protected are ecjiial it makes valid, 194 
 
 public policy concerning trade restrictions in, 197 
 
 examples of modern rule regarding restrictions in, 189, 201 
 
 legality of consideration question of law, 201 
 
 reasonableness of resliiction question of law, 201, 202 
 
 presumption of legality in partial restraint of, 202 
 
 restraint of trade legal in part and severable in, 203, 206 
 
 may be divisible or indivisible, 204, 206 
 
 an illegal severable stipulation will not invalidate, 203, 206 
 
 restriction "in the county of Lehigh or elsewhere " is divisible, 203 
 
 in the city of St. Louis or at any other place is divisible, 205 
 
 illegal in part of not severable makes void, 203, 206 
 
 without limitation in general, and exclusion of a special trade in 
 
 Fall River not severable, 205 
 
 by partners in illegal business to defend late agent, 204 
 
 partial restraint not permissible by corporations in, 206, 210 
 
 infants, married women and lunatics disqualified from making, 1 
 
 must not contemplate injury to rights of others, 1 
 to accomplish lawful purpose by violation of contract with another 
 
 illegal, 2 
 
 to do a legal thing by fraud upon another unlawful, 2 
 
 with lawful object but through breach of trust towards another 
 
 illegal, 2 
 
 involving trespass against personal property of anyone is unlawful, 2 
 
 involving trade-mark to deceive the public no protection, 2 
 
 discriminate between union and non-union labor void, 2 
 
 to pay unlicensed physician void, 2 
 
 giving telegraph companies exclusive right of telegraph wires void, 3
 
 484 INDEX. 
 
 CONTRACTS, continued. 
 
 if unfair will not be enforced in equity, 4 
 
 falsely read to illiterate person not enforced, 4 
 
 for sale of property at inadequate price set aside, 4 
 
 procured through duress or imprisonment not enforced, 4 
 
 taking advantage of pecuniary distress, 5 
 
 where direct purpose in itself unlawful, incapable of enforcement, 5 
 stipulating for the commission of an act forbidden, not validated 
 
 by change in the law, 5 
 between attorney and non professional to procure employment for 
 
 the latter void, 5 
 
 by attorney for monthly compensation to defend illegal sale void, 5 
 
 which in spirit violate statute illegal, 6 
 
 injuriously affecting marriage relation void, 6 
 
 in restraint of libertj' of commerce, 6 
 
 restraining natural or legal rights, 6 
 
 wager, illegal, 6 
 
 upon consideration in part illegal incapable of confirmation, 6 
 
 consideration must not be tainted, 6 
 
 with the view of future cohabitation void, 7 
 after marriage no recovery by wife for expenses during unlawful 
 
 relation, 7 
 
 on separation from illegal relations to allow female annuity for life, 7 
 
 code of Georgia recognizes moral consideration, 8 
 
 if anything essential is undetermined there is no, 22 
 
 if one party has no mind capable of consenting, no, 22 
 promise by stranger, on permission to insure a life, to pay the wife 
 
 is not sufficient, 24 
 
 of wager policies are, contra bonos mores, 25 
 
 by stranger to insure life of slave reported lost, 25 
 
 common law rule, articles non existent not within, 38 
 in futures permit investment without interest, cost of storage and 
 
 hazards, 38 
 
 in futures enable manufacturer to contract sale for determined price, 38 
 
 in futures valid where intent contemplates delivery, 39 
 
 promote interests of farmers and planters, 39 
 
 promote interests of manufacturers and miller, 89 
 
 in purchase of grain for speculation legitimate, 39 
 
 executory, in futures for stocks valid, 40 
 
 in futures valid though option as to time, 40 
 
 where difference is only paid is a wager, 40, 63 
 
 one party contemplating delivery good, 40, 42 
 
 burden on party denying validity, 40, 48 
 
 doubt must be removed if evidence suggests it, 49 
 
 for sale of stock deliverable within time limited valid, 43 
 
 to make a "corner" in stock illegal, 45 
 
 waser, in England not void by statute, but not enforcible, 51 
 
 must be knowing participation in illegal purpose, 55
 
 INDEX. 485 
 
 CONTRACTS, continued. 
 
 unreasonable but not fraudulent secures only equitable relief, 4 
 
 can not be ignored while benefit retained, 4 
 
 when enforcement injurious to third party, 4 
 
 courts in matters of, first protect public, 63 
 
 to impose a spiirious article or unqualified person, 63 
 
 in fraud of the revenue, 63 
 
 to prevent elections, 63 
 
 to bribe public officers, 63 
 
 to compound felonies, 63 
 
 ■which amount to gambling, 63 
 which contravene purpose of statute, 68, 69, 79 
 which violate the law, 63, 66, 70 
 prohibited under penalty, 66, 67, 84, 85 
 
 involving immorality, 64 
 
 which are unjust or contra bonos mores, 64, 65 
 
 for rental of premises for prostitution, 64, 65 
 
 for furniture of house of ill repute, 64 
 
 demoralizing in their character, 64 
 
 void as to all affected if legal, 65 
 
 to sell letters to quacks, 65 
 
 with broker secretly acting for another, 65 
 
 to pay referee per cent on amount of award, 65 
 
 rule declaring void, not arbitrarily extended, 65 
 
 utmost freedom consistent with public good in, 65 
 
 illegal not defeat relief for independent injury, 65 
 
 elevated railway injuring premises used for prostitution, 65 
 
 void where consideration unlawful. 67 
 
 promise unlawful, 67 
 
 for performance of act against public policy, void. 67 
 
 to omit a public duty, 67 
 
 to secure discharge of bankrupt, 69 
 
 preference of creditor, 69 
 
 of mortgage by wife in fraud of insolvent laws, 69 
 
 not void under statute only directory, 70 79 
 
 under statutes requiring inspection of goods, 70 
 
 "branding" of goods, 70 
 
 with unlicensed physician, 70 71 
 
 for illegal purchase of liquors, 71, 72 
 
 for rent of premises for illegal sale of liquors, 73 
 
 hiring clerk for illegal sale of liquors, 72 
 
 for purchase of liquors for brothel, 72 
 
 where sale of liquors is indictable, 72 73 
 
 where mere knowledge of unlawful use, 72 
 
 for sale of cigars to promote illegal sale of liquors, 72 
 
 violating foreign statutes, 73 
 
 where foreign statute forbids sale of liquor, 73, 79 
 of conditional sale, {N^ote, pages 75-76) 74, 79
 
 4S6 INDEX. 
 
 CONTRACTS, continued. 
 
 on Sunday, 79, not« 
 
 of advertisement iu Sunday papers, 79 
 
 intent of statute determines validity of, 79, 80 
 
 "C. O. D." by express, 76, 77 
 
 to ulienate against "Homestead Law," bO, 81 
 
 to locate excess of mineral lands, 81 
 
 attempting to avoid burdens imjmsed on employment, 81 
 
 evading burdens imposed for administrative purpowcs, 81 
 
 marriage where oflicer forbidden, 82 
 
 usury, bank prohibitfd from, 82 
 
 usury under penalty of forfeiture, 82 
 
 wholesale dealer violating Internal Revenue, 82 
 
 for illegal loans by banks, 82. 83 
 
 for investments forbidden by l)anks, 82, 83 
 
 illegal loans by insurance companies, 82, 88 
 
 forbidden investments by insurance companies, 83 
 
 illegal loan of school funds, 83 
 
 olTering "unbranded" or uusurveyed goods, 83 
 
 for service with unboxed threshing machine, 83 
 
 where no civil right no legal remedy under, 84 
 
 not void because may facilitate illegality, 85 
 
 connection with illegal transaction direct, 8") 
 
 w ithout license as required. 8.'» 
 
 where license required of real estate agent, 85 
 
 law of, travels with parties to it, 85,88 
 
 rule of state comity controls. 85, 88 
 
 sit 'IK of debt follows the creditors in, 86, 88 
 
 when contravenes criminal law, does not follow crctlitor, 86 
 
 law of domicil of creditors controls in, 86, 88 
 
 of owner of property in insolvency, 86, 92 
 
 state law fixing method of transfer controls in. 86, 92 
 
 regarding legal process where property located in, 86, 92 
 
 of assignment of creditors, 86, 92 
 
 not enforceable if contravene local law or policy, 87 
 exempting common carrier for negligence, 88, 93, 100 
 
 of carriers, when not controlled by state decisions, 93 
 
 when governed by mercantile law, 92 
 
 when not controlled by state statute or a rule of property, 92 
 
 depending on construction of statute, 93 
 
 rule of public policy, 93 
 made and performable in State, 88, 93, 100 
 
 regarding ancient lights, 95, 96 
 
 promissory note obtained by fraud, 97 
 
 between citizens of belligerents, 101, 102 
 
 for illegal trading during war. 102 
 
 bill of exchange drawn during war, 102 
 
 to control business operations of government, 106, 108
 
 I^■DEX. 487 
 
 CONTRACTS, continued. 
 
 to procure appointment for unfit teachers, 106 
 to prevent performance of public duties, 106 
 procuring through personal influence public, 107 
 employing attorney to secure opening of street, 107 
 by city officer for purchase of property, 107 
 to pay city officer additional percentage, 108 
 excluding others from public records, 108 
 to erect building for postotfice, 109 
 to pay for retention of postotfice, 109 
 for location of country seat, 109 
 to indemnify officer for unlawful act, 109 
 for personal influence with executive officer, HO 
 for solicitation with judicial officers, HO 
 procured by bribing government official, 147 
 for lobby service, 110 
 contingent compensation for legislation, HI 
 for sale of public office, HI 
 to abandon contest for office, 112 
 to conceal default in office, 112, 113 
 to divide emoluments in office, 112 
 to serve as officer for reduced salary, li:{, 115 
 to discontinue prosecution, 115 
 to compound crimes, 115, 116 
 to deprive courts of jurisdiction, 116 
 to influence attendance of witness. H7 
 to induce confirmation of partition sale, 117 
 to defeat a public enterprise, 126 
 influencing appointments to private office, 126 
 to influence officers to locate depots, 126 133 
 between railroad officials and another for profits on materials fur- 
 nished, 128 
 with stock agent to furnish forage, 128 
 locating route of railroad, 126 133 
 to obtain grant for railroad for interest therein, 133^ 134 
 of conditional subscription to railroad, 133 
 giving exclusive right 6f way to railroad, I33 
 giving railroad option on coal lands, I34 
 of sale of fictitious railroad stock, I34 
 by directors of corjwrations for private gains, 134 
 ■with president of corporation for retention of office, 135 
 for employment by corporation iu settlement of claim, 135 
 court of equity not require account in executed illegal, 138 
 courts do not annul illegal, nor enforce them, 137-139 
 party to illegal trade trust cannot have relief, 138 
 party lending money to pay loss on illegal, may recover, 138 
 conveying land to defeat street extension, 138 
 against public policy where thing contracted legal, 189
 
 488 INDEX. 
 
 CONTRACTS, continued. 
 
 securities given to shield crime, 139 
 
 property trausferral to defraud creditors, 139, 140 
 
 heirs of property transferred to defraud creditors, 140 
 
 entire consideration in part illegal, 140, 141 
 
 where illegal consideration cannot be severed, 141 
 
 where illegal part severable, 141 
 
 equity not enforce, for personal service, 142, 143 
 
 parties not in pari delicto, 143, 145 
 
 one partner cheating customers, 144 
 
 party influenced to fraud by another, 144 
 
 for operating rival railroad line, 144 
 
 rights may be enforced independent of illegal, 146 
 
 money loaned to purchase options, 148, 149 
 
 marriage brokerage illegal, 152, 153 
 
 marriage, will support conveyance or promise, 150, 151 
 
 ante-nuptial favored, 153 
 
 revocation of ante-nuptial, 152 
 
 for restoration of marital rights, 162 
 
 not to contest fraudulent divorce, 155 
 
 to obtain fraudulent divorce, 155 
 
 for support of wife during separation, 153, 156 
 
 in partial restraint of marriage, 158, 159 
 
 CORPORATIONS, develop manufacturing interests, 237, 288 
 
 promote mining enterprise, 2^37. 238 
 
 extend carrier enterprise, 237, 238 
 
 aid farming interest, ' 237, 238 
 
 charged with public duties cannot by contract avoid, 240, 278 
 
 combinations without partnership, 244, 245 
 
 pooling protils, 245 
 
 cannot transfer public duties, 241 
 disabling itself by contract. 241, 265, 273, 279 
 
 to control manufacture of article, 241, 242 
 
 partnership to prevent competition, 241, 244 
 
 exercise only powers granted, 241, 265 
 
 consolidation illegal, 243, 264 
 
 consolidated, procedure against, 266 
 
 contract to prevent ruinous competition, 260, 261 
 
 combination to control business, 274, 277 
 
 combination to control the supply of gas, 277, 280 
 
 voting stock of other corporations, 267, 278 
 
 restriction on sale of stock of, 278 
 
 control voting of stock of, 278 
 validity of combinations between, determined by circumstances 
 
 conduct and purpose, 279 
 forming " cotton seed oil trusts" liable to dissolution, 281 
 misuser must threaten substantial injury to public to- forfeit fran- 
 chise of, 2S1
 
 INDEX. 
 
 489 
 
 CORPORATIONS, continued. 
 
 stockholders placing stock with trustees to vote, ■^W^ 
 
 purpose must be lawful, 
 
 its formation to purchase shares in competing corporations not 
 
 lawful, " 
 
 meaning of the word " unlawful " as applied to. -O'l 
 
 for illuminating gas charged with public business, 210 284 
 
 for gas illumination claiming territory by assignment, l^. 
 
 engaging in distributing gas cannot be restrained by contract. 284 
 
 for illuminating gas contracting for abandonment by one. 209, 210 
 
 implied powers will be presumed to accomplish the purposes of the 
 
 • • „* 286 
 creation oi, 
 
 incidenUil power is one directly aiding execution of specific power 
 
 granted, 
 whether corporations can invest surplus funds in stocks of other. 287 
 cannot become stockholders in another corportion unless empow- 
 ered, "1 
 under general acts take ordinary corporate powers only, 288 
 law not confined to articles of association, 288 
 restricted to the powers mentioned in general laws of organization, 289 
 acts done in pursuance of unauthorized provisions in ai tides of as- 
 sociation void as to, "^^ 
 articles of a.ssociation construed in favor of the government and 
 
 general public, 
 
 cannot assume power in another State not granted in its home, 289 
 powers not granted in organization not conferred by comity of 
 
 another State on, ~^^ 
 nonresident, cannot do indirectly through resident corporation 
 
 what has been forbidden it, 290 
 non-resident, guilty of wrong in a State subject to jurisdiction of 
 
 its courts, 2^^ 
 
 forfeiting its franchise does not work the escheat of its property, 281 
 
 general acts will not authorize formation of trusts, 282 
 
 contracts by directors of for private gain, 134 
 
 imposing liability, 1^ 
 
 directors of, charged with like duties as public officers, 134 
 
 conspiring to convert assets, 135 
 
 contract with president of regarding office, 139 
 
 in settlement of claim to employ, 135 
 
 agreement between directors and attorney hostile to, 139 
 
 plea of ultra vires by, when available, 144-147 
 
 partial restriction of trade not permissible, 206-210 
 
 when may abandon public work, 207 
 
 cannot disable itself by contract, 207-210 
 
 monopolizing avenue of industry are dangerous. 207 
 
 restraining competition beyond self-protection, S07--10 
 
 use of franchise for public benefit by, 209 
 
 annulled for failure to use franchise for public, 209
 
 490 INDEX. 
 
 CORPORATIONS, continued. 
 
 caunot make public interest subservient to private. 210 
 conspiracy to extort by threats or iulirnidatioii, 832 
 COTTON, letter of Alfred B. Sbepperson on "futures" in, Appx. 429 
 COTTON SEED OIL TRUST, or^'anized by corporations is ?/?</v/ cire«, 281 
 COTTON EXCHANGE, stipulation that no delivery be made forbid- 
 den in, 4« 
 contract in "futures" not intending delivery in wager in, 45 
 how delivery shall be made, 45 
 when seller has resold the goods, 45 
 written notice to buyer of delivery, 45 
 if goods resold notice passed to vendee, 45 
 transferable order on warehouse goes with notice in, 45 
 vendee who has not sold bound to receive, 45 
 differences settled between immediate parties, 45 
 delivery orders must be accepted by members of, 46 
 settlements by delivery orders recognized by the courts, 46 
 new rule in New York, to relieve merchant " rung out," 47 
 New York, enforces " ring settlement" among its members, 47 
 " ring settlements" are valid, 47 
 New Orleans rules approve " ring settlements," 48 
 COURTS, do not enforce contracts against public policy, 136, 139, 240, 241 
 protect rights under conditional sale, 258 
 protect the public in contracts, 63 
 when will and when will not relieve. 136 
 no relief in fraudulent, illegal or immoral contracts, 136, 146, but see 147 
 when illegality need not be pleaded in, 137 
 relief where illegal in part, 140 
 relieve from illegal contracts, 143 
 when parties in pari delicto no relief in, 136, 143, 145 
 when ultra vires a defense in, 144, 145 
 relief independent of contract in, 146 
 relieve in locvs pcsnitentia, 146 
 relieve upon executed contracts, 147 
 duty to refuse to sustain what is against public policy, 285 
 must respect public policy shown in legislation of State, 285 
 of equity will aid creditor to redeem from liens, 3 
 will not aid speculative purchasers to the injury of creditors, 3 
 are active when conscience, good faith and diligence exist, 3 
 will not take an accounting between robbers, 5 
 of equity will not enforce unfair contracts, 4 
 contracts not enforceable if contravene local, or public policy, 87, 88 
 enforce foreign contract not authorized by local law, 86 
 wliere no civil right no legal remedy under contract, 84 
 enforcing foreign assignments for creditors, 89, 92 
 contracts to deprive, of jurisdiction, 116
 
 INDEX. 491 
 
 COURTS, continued. 
 
 will not assist parties to violate law, 136, 140 
 take notice of illegal contracts when, 136, 139 
 do not require illegality of contract pleaded when, 137 
 do not annul illegal contracts nor enforce them, 137, 139 
 will not aid vendor of goods to be used criminally, 138 
 when will not aid lender of money to be used criminally, 138, 149 
 of equity not require account in executed illegal contract, 138 
 party to illegal trust combination no relief in, 138 
 of equity not enforce contract for personal service, 142, 143 
 relief in where parties not in pari delicto, 143, 145 
 not receive plea ultra vires when, 144, 147 
 will enforce express trust against wife, I45 
 will enforce rights independent of illegal contract, 146, 147 
 recovery upon executed non-enforceable contracts, I47 
 not refuse to deal with property under illegal contract, 148 
 contracts against compromising litigation, 167 
 discretional to grant equitable relief in valid contract, I75 
 will protect rights sold in secret process, 182 
 do not extend restriction beyond express terms, 200 
 if consideration is shown only examine illegality, 201 
 consider the reasonableness of the consideration, 202 
 will only favor equity in severing the legal from the illegal, 203, 204 
 will not enforce contract disabling corporation, 207 210 
 restrain corporations from preventing competition beyond self -pro- 
 tection, 207, 210 
 will restrain from use of intimidation, 406 408 
 parties to fraud can not sue each other, 13y 139 
 will not execute fraudulent contracts, 138 
 
 r>. 
 
 DAKOTA, constitutional and statutory provisions on trade trusts, 263 
 
 statutes on conditional sale in, 253 
 
 DELAWARE, wagers on indifferent matters valid in. 51 62 
 
 constitutional and statutory provisions on trade trusts, 263 
 
 statutes on conditional sale in, 253 
 
 on conspiracies among workmen in, g42 343 
 
 DIVORCE. See ^Iarriage. 
 
 contract to secure fraudulent, void, jgg 
 
 not to contest fraudulent, void, jijg 
 
 state statutes limit time for opening, jgg 
 
 consent to alimony on, jgij- j^g 
 
 DURESS, a threat followed by fear of its execution is, 5 
 
 settlement obtained under, invalid, ' 5 
 
 ELECTIONS. See CoNSPrRACiES. 
 
 contracts influencing, m
 
 492 INDEX. 
 
 ELEVATORS, not included in railroad mortgage, 256 
 EMPLOYERS. See Conspiracy. 
 
 unlawful for, to coerce, intimidate or hinder free choice of work- 
 man, 407 
 
 EVIDENCE. See Conditional Sale; Fctures, Wagers. 
 
 in conspiracy, 419, 427 
 
 want of warehouse receipt and "ringing up" indicate wager, 59 
 
 EXPRESS TRUSTS, court will enforce even to defraud wife. 145 
 
 rule as to "secret trusts" does not apply to, 146 
 EXTORT. See Conspiracy. 
 
 conspiracy to, anything of value from individual, 882 
 
 F. 
 
 FEDERAL COURTS. See Courts. 
 
 jurisdiction of, ~ 217 
 United States party to a suit, 217, '219 
 
 same principles apply to United State.<? as to other parties, 222 
 
 trial by jury in case of crimes, 222 
 
 FERRY PRIVILEGES, monopoly of, to attorney void, 213 
 
 FLORIDA, constitutional and statutory provisions on trade tru.st.s, 263 
 
 statutes on conspiracies among workmen, 343 
 
 FOREIGN CONTRACTS. See Contracts; Conditional Sale. 
 
 courts enforce, not enforced by local law when, 86 
 of assignments for creditors, 89, 92 
 
 FOREIGN STATUTES. See Statutes; Corporations; Carriers, 
 
 contracts under, 85 
 
 contracts not enforceable if contravene local law or public policy, 87 
 
 FRANCFIISES. See Corporations; Contracts; Trade Trusts. 
 
 misuser by corporation must threaten substantial injury to forfeit, 281 
 
 corporation disabling itself to discharge duties will forfeit, 282 
 
 FRAUD, courts will not relieve parties in pari delicto in, 136, 137, but see 147 
 
 not relieve from consequences of parties' own, 137 
 
 equity follows rule of law as to participators in, 137 
 
 parties to cannot sue each other, 138. 139 
 
 law will not execute contract in fraud, 138 
 
 property transferred in, 140 
 
 repurchase of property fraudulently conveyed, 140 
 
 party influenced to, by another, 144 
 
 FUTURES, in cotton, letter of A. B. Shepperson, 'Appx. 429 
 in cotton, grain, etc., U. S. House of Representatives Bill prohibit- 
 ing, Appx. 442 
 U. S. Senate Bill prohibiting, Appx. 437 
 for delivery of stocks, grain and produce, 38 
 common law rule, articles non-existent not within, 38
 
 INDEX. 493 
 
 FUTURES, continued. 
 
 relieves investment from interest, cost of storage and hazards, 88 
 
 enables manufacturer to contract sale for determined price, 38 
 
 contracts in, valid where intent contemplates delivery, 39 
 
 promote interests of manufacturer and miller, 39 
 
 of farmer and planter, 39 
 
 in purchase of grain for speculation legitimate, 39 
 
 executory contracts in for stocks valid, 40 
 
 contracts in, valid though option as to time, 40 
 
 where difference is only paid is a wager, 40, 63 
 
 one party contemplating delivery good, 40, 42 
 
 burden on party denying validity, 40, 48 
 
 where doubt cast on contract must be removed, 49 
 
 rule in Iowa and Maine regarding, 41 
 
 rule as to, 41 
 
 stock purchased on margin in, sharing profits or losses, 42 
 
 that vendor in does not own property immaterial, 42 
 
 broker makiug valid contract in can recover, 42, 43 
 
 sellers' and buyers' "options " in, 43 
 
 Arkansas statute prohibiting dealings in, 51 
 
 on cotton exchange not for present delivery, 45 
 
 in cotton not contemplating delivery, wager, 45 
 
 written contracts for, not conclusive of good faith, 51 
 
 indictment for dealing in, following statutes sutlicicnt, 51 
 
 under Calfornia constitution sale of stock on margin gives broker 
 
 no right, 51 
 
 losses in cannot be recovered in Georgia, 52 
 
 in Indiana contracts in, delivery intended valid, 53 
 
 which are speculative wagers upon the prices, invalid, 54 
 
 orders in, contemplating differences or " setting off" illegal, 57 
 
 in 2sew York executory contract for delivery enforced, 60 
 
 GAS TRUSTS, corporations organized for the purpose of, 277, 280 
 
 voting stock of other corporations, 278 
 power to manufacture gas does not authorize purchase of stock in 
 
 competing company, 286, 289 
 
 GEORGIA, code of recognizes moral consideration of contract, 8 
 
 contract in "futures" pure speculation not enforceable, 52 
 
 constitutional and statutory provisions on trade trusts, 262 
 
 statute concerning conspiracies among workmen, 343, 344 
 
 GOVERNMENT, private contracts affecting injuriously, 106 
 
 contracts contingent upon ministerial action of, 108 
 
 GRAIN, monopoly in illegal, 234. 235 
 
 settlements of bona fide contracts for sale of by set off s, 48
 
 494 IJS'DEX. 
 
 H. 
 
 HOMESTEAD LAWS, contracts violatiog, 79 
 
 marriage valid iLongh illegally solemnized, 82 
 
 violating usury law.s, 82 
 
 invading internal revenue laws, 82 
 
 for excessive loans from banks, 82 
 
 from iusurance companies, 82 
 
 ILLINOIS, Tvagers on different matters valid in, 51, 62 
 constitutional and statutory provisions ou trade trusts, 263 
 state statutes forbid trade trusts in, 270, 272 
 statutes on conditional sale in, 2o2, 253 
 conspiracies among workmen in, 344, 346 
 IMMORAL, consideration insuflkicnt, 6 
 INDIANA, contracts in, future delivery intended valid, 68 
 wagers on indifferent matters void, 56 
 constitutional and statutory provisions on trade tnists, 262 
 statutes on conspiracies among workmen in, 846, 847 
 INDICTMENTS, for conspiracy, 412, 419 
 for dealing in futures following statute sufficient, 51 
 INDIVIDUAL MORALITY, conspiracies against indictable, 828 
 INTERNAL REVENUE LAWS, contracts of wholesale dealer vio- 
 lating, 82 
 
 INTERSTATE COMMERCE, combination restraining. 210, 229 
 
 Act of Congress adopts principles of common law, 218 
 
 removes question wbetber restraint partial or general, 218 
 
 Congress bas power to regulate, 219 
 
 INTIMIDATION, to deter employers from selecting workmen, 835 
 
 to prevent employment of apprentices, 885 
 
 by strikes, illegal in England, 340 
 
 order to dismiss non-union men under threat of strike not, 340, 341 
 
 of railway employes, crime, 373 
 
 to prevent an employment an offense, 872 
 
 by distribution of circulars at shop doors, 884 
 
 collection of numbers about coal mines for purpose of, 403 
 
 halting a mob near premises, 403 
 
 to overcome free will of others unlawful, 405 
 
 to procure increase of wages condemned, 406 
 
 show of numbers unaccompanied by threats often is, 406 
 
 courts will interpose by injunction to restrain, 406, 408 
 
 unlawful for employer to use, 407, 411 
 
 for workmen, 407, 411 
 
 by threat intended to accomplish lawful purpose, 424
 
 INDEX. "^^^ 
 
 INSURANCE, on property of public enemy, ^ ^04 
 
 on life of stranger payable in part to his widow is wager, 24, 28 
 policies on life, 
 
 where no insurable interests in life is a policy of wager, 25 
 wager policies are contra bonos mores, *5 
 policy upon the life of another for speculative purposes, 26 
 insurable interests must be substantial, 26, 27 
 if valid at inception policy does not become wager, 26 
 large, to secure small debt is wager, ^" 
 with liability to assessment is not wager, 27 
 sum of. not grossly disproportionate to interest not wager, 28 
 wheiher policy depends on the excess of, over debt is wager is ques- 
 tion of law, _ 
 rule determining whether unreasonable excess constitutes wager, 29, 37 
 where creditor has insurable interests, is not wager, 33 
 creditor may take policy sufficient to secure debt, 84 
 to secure creditor based on "Carlisle Tables" not wager, ^ 84 
 assessments in mutual companies approximate on question of 
 
 wager, **" 
 creditor may cover debt, interest, cost of, on expectance in "Car- 
 lisle Tables," 87 
 creditor in some states holding, is trustee for excess. 87 
 in some states presumption against trust for excess of, 87 
 held only as guarantee of debt, 88 
 collateral security where debtor pays premiums, 88 
 where creditor pays premium his right absolute, 88 
 illegal loans by companies, 82, ^3 
 forbidden investments ly companies. ^3 
 when contracts not controlled by state decisions, 92, 93 
 by licensed alien enemy, 1^3 
 of property of public enemy, 104. 105 
 IOWA, notes for "Bohemian oats" as speculation not void ander code, 
 constitutional and statutory provisions on trade trusts, 
 Btatute on conditional sale in, 263 
 
 K. 
 
 KANSAS, under statute the question in "futures" whether intention to 
 
 deliver, ^'^ 
 
 constitutional and statutory provisions on trade trusts, 262 
 
 statutes and conspiracies among workmen in, 348 
 
 KENTUCKY, intended settlement of differences void, 57 
 
 statute on conditional sale in, 253 
 
 ■wagers on indifferent matters void in, 67 
 
 LABOR. See Statutes; Trades Union; Trade Combinations. 
 
 conspiracies relating to, ^^'^i ^^^ 
 
 262
 
 496 INDEX. 
 
 LEASE, car trusts under, 248, 260 
 
 railroads must be authorized to, 266 
 
 railroad cannot by, escape liability, 269 
 
 railroad cannot guarantee, covenants of another road, 269 
 
 LEGISLATION, of State indicates public policy, 230 
 
 contracts influencing, 110 
 
 should indicate, 197, 198 
 
 LIBEL. See Slander. 
 
 LICENSE, contract without, as required. 85 
 
 LOAKS, contracts for excessive, from bankers, 82 
 
 from insurance companies, 82 
 
 LUMBER TRUSTS, to control lumber market in restraint of trade, 278 
 
 ]M. 
 
 MAINE, in, contract contemplating payment of differences void, 58 
 
 constitutional and statutory provisions on trade trusts, 243 
 
 instrumentalities used in violating statute may be seized in, 79 
 statutes on conspiracies among workmen in, 348, 350, and note 2, p. 350 
 
 MAINTAINANCE, contracts involving, 116 
 oflicious strangers intermeddling in law suit, 118, 126, 294 
 
 law of, greatly modified, 119, 134 
 
 rule as to. never adopted in equity, 119 
 ])urohasf of railroad from foreclosing holders not, ■ 121, 125, 126 
 
 8ile of claim is not, 121 
 
 purchase interest pending suit to rescind not, 121 
 
 in land pending suit not, 121 
 
 any interest in matter of suit exempt from, 122 
 
 giving attorney part of recovery not, 122, 123 
 
 patentees may sustain each other witliout, 124 
 
 mill owner may i)revent forfeiture of railroad without, 124 
 
 attorneys contracts with clients champertous, 125 
 
 MALUM IN SE, contracts concerning matter, 84, 85 
 
 MALUM PROHIBITUM, contracts concerning matter, 84, 85 
 
 MARRIAGE, contracts affecting, 150 
 contracts to promote or rupture, 150, 153 
 for immediate separation and support during, 153 
 for support after accomplished separation during, 153 
 for separation and support suspend certain duties of, 156 
 trustee not essential in contract for separation during, 157 
 husband treated as trustee in contract for separation during, 157 
 husband not criminally liable for non-support in contract for sepa- 
 ration during, 157 
 when immediate separation not contemplated during, 158 
 contracts regarding property and in partial restraint of, 158 
 injuriously affecting relation, 6
 
 INDEX. ^"^ 
 
 MARRIAGE, continued. 
 
 no recovery after, for expenses during illegal relation, 
 
 en, S^ 
 
 _ > 
 
 hiehcst consideration known, 
 
 loO 
 
 contract, wliere officer forbidden, 
 favored as promoting morality, 
 
 good consideration for a deed, ^ 
 
 sufHcient for promise to convey to husband, j^| 
 
 supports promise of equal justice to daughter, 151 
 
 to convey made after, 
 ante-nuptial settlements favored, 
 
 consideration required for revocation of, settlement. 15^ 
 
 brokerage, contracts illegal, ' 
 
 assessments to secure money on, ^ 
 
 agreement for separation during or dissolution of, 15d. loo 
 
 for wife's support on separation durin-, lo<J' 1^° 
 
 Beparation suspends only partially duties of, ij» 
 
 contract in restraint of, ^r-n am 
 
 , . 1 • » r 15", lol 
 
 devise m restramt of, ' 
 
 devise inducing dissolution of, ^ ^ ' ,,« 
 
 MARYLAND, purchase of shares without intention to deliver gambling, 
 constitutional and statutory provisions on trade trusts. 
 Statutes on conditional sale in, 
 
 conspiracies among workmen, 
 •wagers on indifferent matters void in, 
 MASSACHUSETTS, under statutes party must own shares sold or rep 
 resent owner, 
 instrumentalities used in violating statute may be seized in, 
 modification of doctrine of maintainance and champerty, 
 statutes on conspiracies among workmen, 850. 3_ 
 
 wagers on indifferent matters void in, 
 MERCANTILE LAW. See Commeucial Law. 
 
 MICHIGAN, in. contract contemplating payment of differences void, 58 
 
 constitutional and statutory provisions on trade trusts. 264 
 
 statutes on conspiracies among workmen in, 851, 3o3 
 
 wagers on indifferent matters void in. 
 MINISTERIAL ACTION, contracts contingent upon, 108 
 
 3I1NNES0TA, constitutional and statutory provisions on trade trusts, 264 
 
 statute on conditional sale in, '^ 
 
 conspiracies among workmen in, 3o^, 6bi 
 
 MISSISSIPPI, " futures" contemplating delivery valid in, 58 
 
 MISSOURI, contract contemplating differences is a wager in, 59 
 
 constitutional and statutory provisions on trade trusts, ^ 264 
 
 state statutes forbid trade trusts in, 2 < 0, 27"^ 
 
 statute on conditional sale in, ~'_*^ 
 
 conspiracies among workmen in, *>^- 
 
 wagers on indiflerent matters void in, 
 32 
 
 58 
 264 
 268 
 
 57 
 
 78 
 
 119
 
 498 INDEX. 
 
 MONOPOLIES, contrary to spirit of free institution, 211 
 
 couliicts with constitulioual prccodculs, 211. 233 
 
 to promote public heallli, 211 
 
 for the public security, 211 
 
 to increase public comfort, 211 
 
 to aiil government enterprise, 211 
 
 govermeunt control over, 211 
 
 not protected in equity, 211 
 
 bill of rights indicates hostility to, 21^ 
 
 not sustained over important industries, 212, 213 
 
 not sustained covering important staple, 212, 213 
 
 as usurpation of common rights, 213, 232 
 
 ordinance locally favoring one void, 213 
 
 in ferry and bridge privileges to attorney void, 213 
 
 destroys individual rights and freeduni, 213 
 
 contrary to public policy, 233 
 
 odious in law, 233 
 
 under corporate cover, 233 
 
 results of, 283. 23 1 
 
 dangerous with increase of commerce, 232 
 
 in manufacture and sale of sugar illegal, 2'69 
 
 result in the absolute fixing of values, 214 
 
 producing an artificial scarcity of trade article, 214 
 
 ellect of constitutional provisions regarding it, 229 
 
 statute of 21 James I., chap. 3, declares void, 229 
 
 not all included in constitutional prohibitions, 230 
 
 lawful from their nature and their necessity when, 231 
 
 contracts to supply gas to public lamps, 231 
 
 street railway, 231 
 
 of grain illegal, 234,235' 
 
 by corporation to control trade in article, 241, 273 
 
 to prevent competition, 274 
 
 Act of Congress against, 214, 215 
 
 for compressing cotton, 142, 143 
 
 receiver may not recover on dissolution of, 145- 
 
 patents exception to rule against, 183 
 
 rule invalidating restraint without limitation applies to, 209 
 
 MONTANA, statute on conspiracies among workmen in, S.'JS 
 
 MORALS, contracts against illegal, (y 
 
 MORTGAGE, includes railroad iron rails removed and renewed, 2.'J5 
 
 bridge and bridge materials removed and renewed, 255 
 
 does not include temporary railroad tiack, 256 
 
 machinery used on track, 256 
 
 tools used in repairing track, 256 
 
 material used for fuel, 256 
 
 " appurtenances " include property indispensible to use, 256 
 
 rolling stock title reserved does not pass, 256, 257 
 
 property acquired by fraud not included in, 25&
 
 INDEX. 
 
 499 
 
 MUTUAL PROMISES, concurrent promises resting one upon the other 
 
 constitute, ^^ 
 
 may be shown by independent instrument, 11 
 
 to sell goods and promise to pay are, 12 
 where several agree to pay money for object of common interest 
 
 promises of each are, !■- 
 
 NEBRASKA, in, want of warehouse receipt and "ringing up" indicate 
 
 wager, 5^ 
 
 constitutional and statutory provisions on trade trusts, 264 
 
 wagers on indifferent matters void in, 59 
 NEW HAMPSHIRE, constitutional and statutory provisions on trade 
 
 trusts, 264 
 
 statutes on conditional sale in, 254 
 
 conspiracies among workmen, 353 
 
 wagers on indifferent matters void in, 59 
 
 NEW JERSEY, contract contemplating payment of differences invalid. 61 
 
 broker making contract binding not sufficient, 61 
 
 wagers on indifferent matters valid in, 51, 62 
 
 constitutional and statutory provisions on trade trusts, 264 
 
 statutes on conditional sale in, 253 
 
 conspiracies among workmen, 353, 354 
 
 NEW MEXICO, statute on conditional sale in, 253 
 
 NEW YORK, executory contract for future delivery enforced in, 60 
 
 constitutional and statutory provisions on trade trusts, 265, 266 
 
 money advanced solely for carrying cotton "futures" payable in 
 
 differences void by statute in, 63 
 
 modification of doctrine of maintenance and champerty, 119 
 
 longshoremen's union declaring " boycott " under statute, 404 
 
 statute on conditional sale in. 253 
 conspiracies among workmen in, 354, 356, n/jte p. 356 
 wagers on indifferent matters void in, 59, 60 
 NORTH CAROLINA, constitutional and statutory provisions on trade 
 
 trusts, . 267 
 
 statute on conditional sale in, 253 
 
 conspiracies among workmen, 858 
 
 NOTE, surrender of instrument to maker of for gambling debt, 6 
 
 o. 
 
 OHIO, by statute "futures" in food products, grain and flesh seller not 
 
 owning property void in, 60 
 where purchaser has not the means to pay or without intention to 
 
 contract void in, 80 
 
 condemnation of "futures" extends to stock and petroleum in, 60
 
 500 INDEX. 
 
 OHIO, continued. 
 
 incorporated exchanges, chambers of commerce, or boards of trade 
 
 excepted from statute in, CO 
 
 statute does not apply to or interfere with legitimate business iu, 60 
 
 contracts contemplating payment of dillerence void, 61 
 
 constitutional and statutory provisions on trade trusts, 267 
 
 statutes on conditional sale in, 253 
 
 conspiracies among workmen, 3')9 
 
 OPTIONS, of sellers and buyers in " futures," 43 
 
 "puts" and "calls" are simple options to sell and buy, 43 
 
 "put," "call," "straddle" with intent to deliver enforceable, 44 
 
 question whether trausiiction real question for jury, 44 
 
 in Alabama statute, sale of stock deliverable under valid, 51 
 under Illinois statute, purchase of actual wheat under not forbidden, 53 
 
 as to time of delivery not prohibited in Illinois, 52 
 
 purchase of coal with, of taking more void in part in Illinois, 52 
 
 if taken "on or before" a certain day void in Illinois, 53 
 
 possibility of a settlement by dillerences not invalid, 56. 57 
 
 OREGON, wagers on indifferent matters valid iu, 51. 62 
 
 statutes on conspiracies among workmen, 370 
 
 r. 
 
 PARTNERSHIP, car trusts, 249, 250 
 
 of corporations to suppress competition, 241, 242 
 
 of corporation in line of business. 248 
 
 corporations cannot assume new duties under, 243, 244 
 
 what are lawful, 247 
 
 what illegal, 247 
 
 courts can reach, 247 
 
 allowing partner compensation for past services In, 8 
 
 one partner cheating customers of, 144 
 
 when receiver may not recover on dissolution of, 145 
 
 will not justify perpetual limitation, ' 172 
 
 sale by one restricts him so far as necessary to protect business. 174 
 
 PATENTS, patentees may sustain each other without maiuteuaute and 
 
 champerty, 124 
 
 contracts regarding use under conflicting, 182 
 
 restricting use to members of association, 182 
 
 exception to rule against monopoly, 183 
 
 contract not to aid competition against purchasers of, 183 
 
 to regulate competition between, 183, 187 
 
 to supply district with flour made under, 183 
 
 PEDLER, contract by unlicensed, 83 
 
 PENNSYLVANIA, in, "futures" contemplating settlement of differences 
 
 are invalid, 61 
 
 broker making contract binding not sufficient, 61 
 
 constitutional and statutory provisions on trade trusts, 267 
 
 rule on conditional sale in, 251 
 statute on conspiracies among workmen in. 370, 372, 376
 
 INDEX. ^^1 
 
 PHYSICIAN, unlicensed, cannot recover under contract, 2 
 
 unlawful to dictate to employe, 872 
 
 PICKETING, combinations among workmen, 406 
 watching and enticing workmen to leave employment not unlawful, 406 
 
 POLICIES. See iNSimANCE. 
 
 wager, on life, 
 POOLING CONTRACTS, between members of a syndicate who are di- 
 rectors of a corporation, ^°^ 
 PRODUCE EXCHANGE, protest of New York, Appx. 449 
 margin rate is fixed specially upon grains, pork, etc., 48 
 •'option" is as to day when delivery demandable in, 45 
 PROMISSORY NOTES. See Bills of Exchange. 
 
 PROPERTY, is a thing owned, that to which a legal title may exist, 398 
 
 includes plant of manufacturer, 406, 409 
 
 a business that may be built up, 389, 406, 409 
 
 labor and skill of workman, equipment of farmer, 382, 406 
 
 learning, skill and experience of professional man, 382 
 
 the trained skUl of artisan and artist, 883, 406, 409 
 a threat that men will not work until money is paid is not a threat 
 
 of injury to. . 384,402 
 
 injury must be direct, 389 
 
 something that can be injured like the person, 389 
 
 threat under New York Statute must relate to specific, 395, 396 
 
 PROTEST, of New York bankers, Appx. 459 
 
 New Y'ork Produce Exchange, Appx. 449 
 
 PUBLIC ENEMY, dealings with in war, 101 
 
 citizens avoid dealing with, 101 
 
 contracts with, void, ^02 
 
 license to trade with, 10° 
 
 license may be given to, 103 
 
 license to, liberally construed, 103 
 
 insuring property of, 104 
 
 PUBLIC JUSTICE, contract obstructing, 115 
 
 conspiracies agamst, ^^'^ 
 
 PUBLIC POLICY, of Slate, indicated by constitution and legislation, 230 
 
 monopolies contrary to, -*»'=' 
 
 does not arbitrarily restrict contract, 239 
 
 against limiting rights of traveler, 265 
 
 whatever is injurious to public interest is void because of, 285 
 
 is, that none can lawfully do that which is injurious to public good, 285 
 
 contracts against, void, 
 
 for performance of an act against, 07 
 
 contract not enforceable if contravene local law or, 87 
 
 no rights in courts where contract is against, 136, 139 
 
 contract against, where thing contracted legal, 139 
 
 favors utmost freedom of trade, 1"^^
 
 502 INDEX. 
 
 PUBLIC POLICY, continued. 
 
 encourages useful discoveries by securing results, 182 
 
 test of, to be applied with greatest caution, 197 
 
 is often vague and ditUcult to determine, 107 
 
 condemns whatever contravenes interest of society or morals, 197 
 
 courts leave it undefined like fraud, 197 
 
 Legislature the fairest exponent of, 197, 19s 
 
 contract not presumed against, 109 
 
 PUBLIC VIRTUE, conspiracies n.!,'ainst, 323 
 PUTS, privilege of delivering or not within a certain time at specified 
 
 price, 43 
 
 person receiving consideration in, contracts to accept and pay, 43 
 
 privilege of delivering or not the thing sold, 43 
 
 "option," "call," "straddle" in with intent to deliver enforceable, 44 
 
 question of jury whether transaction real in, 44 
 
 Q. 
 
 QUESTION OF LAW, what is reasonable restraint, 218 
 
 whether contract is injurious to public, 218 
 
 contravenes public policy, 6, 198 
 
 determined from face of contract, 218 
 
 whether contract has tendency to injure the public, 218 
 
 to cause unreasonable restraint, 218 
 
 If restraint and Ix^ncfit equal contract valid, 194 
 if only fair protection given by contract, 194, 197, 202 
 
 restraint in contract limited to express terms, 200, 2(i2 
 reasonableness of restriction in contract, 201, 202, 203 
 
 R. 
 
 RAILROADS, can not transfer public duties, 241 
 
 disabling itself by contract, 241, 2(55 
 
 car trusts, 248, 260 
 
 mortgage includes rails removed and renewed, 255 
 
 bridge and bridge materials removed and renewed, 255 
 
 does not include temporary railroad track, 256 
 
 includes property indispensible to use, 256 
 
 elevator not an appurtenance, 256 
 
 consolidation of rival lines, 264 
 
 lease of road, 264, 267 
 
 must be authorized to lease, 206 
 voting stock of other roads, 266, 267, 278 
 
 promoting interest of other road, 278 
 
 controlling competing road, 267, 268 
 
 continuous road, 268 
 
 lease will not release liability for torts, 269 
 
 cannot guarantee lease of another road, 269 
 
 combination to prevent competition, 269
 
 INDEX. 603 
 
 RAILROADS, continued. 
 
 contracts to defeat a public enterprise, 126 
 influencing appointments to oflice in, 126 
 to influence officers to locate depots of, 125, 133 
 between railroad official and another for profits on materials fur- 
 nished for, 128 
 ■with stock agent of to furnish forage, 128 
 locating route of, 129, 133 
 to obtain grant for railroad for interest in, 133, 134 
 of conditional subscription to, 133 
 giving exclusive right of way to, 133 
 giving, option to coal lands, 134 
 of sale of fictitious stock, 134 
 by directors of, corporation for private gains, 134 
 by directors of corporations imposing liability, 134 
 illegally operating rival line must account, 144 
 RECEIVER, rolling stock under conditional sale, 257 
 may recover fruits of illegal contract, 145 
 when may not recover on dissolution of monopoly, 145 
 RELEASE, obtained under "duress" void, 5 
 RESTRAINT OF TRADE, contracts in, 162, 27U 
 Arkansas statute prohibiting dealings in "futures" not in, 51 
 combinations to monopolize sugar illegal as in, 239 
 reasons against contracts in, 239 
 contracts, judged by circumstjinces, 23J 
 excluding one from pursuing his employment is in, 162 
 contract preventing disposal of one's own labor is in, 162 
 depriving the public of avails of labor is in, 162, 164 
 excluding from trade everywhere and always is, 163, 165 
 manufacturer restrained "so far as the law allows" not in, 163, 171 
 by limiting engaging in business, transferable, 163, 169 
 courts will enforce where limitation, is reasonable, 164 
 rivals may enter into partnership without, 164 
 contract with manufacturer to induce trade with merchant, 164 
 in general, is void, 104 
 in, must not be unreasonable, lg5 
 to bid at auction to stifle competition is in, 165 
 among stockholders not to give proxies or sell is, 165 
 restricting use of real estate when in, 166 172 174 
 to enhance price of bread is, 166 
 of grain is. 166 
 to create "corners" in grain is, Igg 
 noL to employ commercial travelers is, 166 
 to control water power is, 166 
 for protection of purchaser is not, 167 169 174, 181 
 of purchase to prevent competition is not, 174 
 not to engage in trade in certain place is not, 167, 1C9
 
 504 
 
 INDEX. 
 
 RESTRAINT OF TRADE, continued. 
 
 not to run stage on certain route not, 169 
 
 of purchase of "good will" not, 1T7 
 
 not to run steamboats between places, 167 
 
 not to use steamboats on state waters, 167 
 
 to sell only to one person in a town, 168 
 
 not to send poultry to certain nmrket, 168 
 
 not to sell marl off certain land, 168 
 
 excluding tailor from a town, 168 
 
 with employe limiting place of business, 168, 169 
 
 limiting within obligee's sphere, l&i 
 
 as condition of employment imposing territorial limltationfl, 167 
 
 territorial limitations sustained, 169 
 
 distance Low determined, 169 
 
 instances of territorial limitations in, 169 
 
 contract with physician not to pruclice within 12 miles, 169 
 
 in neighborhood, 169 
 
 must show practice sold, 169 
 
 excluding iron casting within 60 miles, lOJ) 
 
 not to open apothecary shop within 20 miles, 109 170 
 
 restricting dentist over territory of 200 miles, 170 
 
 restricting sale of Secret compound, 170 
 
 limit of state lines, 170 
 
 territorial limitations held too restrirtive, 171, 173 
 
 contract never to do business in a Stale, 171, 172, 199 
 
 excluding business west of Albany, 17'i 
 
 250 miles of New York, 172 
 
 limitations in regard to time, 172 
 
 contracts limiting time may be indefinite, 172 
 
 for exclusive furnishing cars for 15 years, 172 
 
 of partnership not sustain perpetual restriction, 173 
 
 brewers' contracts, 172. 173 
 
 for exclusive right to supply beer, 1'.'-\. 174 
 
 covenant between lessor and lessee, 114, 174 
 
 between mortgagor and mortgagee, 173, 174 
 
 limitations imposed to protect purchaser, 174, 181 
 
 sale of discovery, lyi 
 
 contract to restrain seller from divulging trade secret, 181, 183 
 
 restriction applies to space covered by business, * 175 
 
 contract restraining competition in same line valid, 175 
 
 limiting space with no limit of time, 173 
 
 limit of space according to nature of contract, 173 
 
 contract limiting manufacture of matches to two states, 175, 195 
 
 excluding so long as purchaser runs business in place, 175 
 
 motive of covenants no test of validity, 177 
 
 promise by merchant not to deal in article, 177, 181 
 
 sale of medical discovery in certain limits, 181, 183 
 
 contracts for use of patent rights in dispute, 183
 
 INDEX. 
 
 505 
 
 RESTRAINT OF TRADE, continued. 
 
 monopoly to secure patent right, 183, 187 
 
 Act of Parliament repealing statutes regarding, 188. 189 
 
 rule applies to present social and commercial condition, 188 
 
 changes with altering circumstances, 188 
 
 relaxed by exceptions and conditions, 188 
 modern doctrine that if restraint and benefit are equal law protects 
 
 contract, 194 
 
 true test whether only fair protection given by, 194, 197, 203 
 
 should impose no restriction not beneficial to the other, 195, 196 
 
 general tendency to limit rule regarding, 198 
 
 contract not to practice as solicitor in Great Britain, 198 
 
 union of dealers in tobacco to fix price, 198 
 
 contract not to sell champagne, 189 
 
 requiring attachment of patents to slobbing machine, 199 
 
 limiting stockholders in their purchases, 199 
 
 prohibiting use of particular name in trade, 199 
 
 not to trade with northwest coast of America, 200 
 
 steamship purchasing competing line, 200 
 
 courts limit to express terms, 200 
 
 within a town, permits sale without, for resale therein, 201 
 
 application of rule to special cases, 201, note S 
 
 public policy concerning contracts in, 197 
 
 samples of modern rule concerning contracts in, 198, 201 
 
 condition and reasonableness of restrictions questions of law in, 201 
 
 without consideration is invalid, 201 
 
 no question of sufflciency of consideration in, 201 
 
 reasonableness of the consideration is for the court, 202 
 
 no "hard and fast" rule of invalidity, if limited, 203 
 
 validity depends upon reasonableness, 208 
 
 prima facie valid if space limited, 203 
 
 presumption of legality of contracts in partial, 203 
 
 contracts legal in part and severable in, 203 
 
 may be divisible or indivisible, 204, 2U5 
 
 not invalidated by illeiral severable stipulation, 203, 206 
 
 "in the county of Lehigh or elsewhere" is divisible, 203 
 
 "in the city of St. Louis or at any other place" are divisible, 205 
 
 without limit to general trade and restriction of a special trade to 
 
 Fall Rfver, not severable, 205 
 
 contracts not permissible by corporations in partial, 206 
 
 between those in public employment and business unlawful, 284 
 
 as contrary to public policy, illegal and void, 285 
 
 RHODE ISLAND, contract to be settled in differences void in, 62 
 
 statutes on conspiracies among workmen in, 372 
 
 RING SETTLE.MENT, give practical effect to "Clearing House" method, 47 
 
 used in accounts between commission merchants, 47 
 
 New Orleans Cotton Exchange approves, 48
 
 506 INDEX. 
 
 RING SETTLEMENT, continued. 
 
 can not be enforced unless under rule, 47 
 
 is held valid, '" 
 
 S. 
 
 SALES, of unbranded goods, 83 
 
 by unlicensed pedler, °3 
 
 of commercial fertilizers illegally, 83 
 
 oflfering unsurveyed goods, 83 
 
 right to, of property essential to ownership, 109 
 
 contract to induce confirmation of partition, 117 
 
 of claim is not maintainance and champerty, 131 
 
 contract of, of fictitious railroad stock, 134 
 
 of goods for criminal use, 138, 141 
 
 SALT TRUST, which tend to advance market prices to injury of public 
 
 void, 285 
 
 SCHOOL FUNDS, contracts for illegal loan of school funds, 83 
 
 SHEPPERSON, ALFRED B., letter on "futures" in cotton, Appx. 439 
 
 SHORT SALES. See Futures. 
 
 where statute forbids sellers must prove ownership, 49 
 
 SLANDER AND LIBEL, conspiracy to, 332 
 
 verbal, tend to breach of peace as much as cheats and libels, 332, 333 
 
 conspiracy to utter verbal, involves deliberation and malice, 333 
 
 conspiracy to, to extort, 333 
 
 to injure reputation, 333 
 
 trade-mark containing personal denunciation and, 333, 334 
 
 international union trade-mark containing, 333, 334 
 
 to restrain publication of, 360 
 
 by publication in the "scab" list, 383 
 
 SOUTH CAROLINA, constitutional and statutory provisions on trade 
 
 trusts, 268 
 
 statutes on conditional sale in, 253 
 
 conspiracies among workmen in, 372 
 
 SOUTH DAKOTA, statutes on conspiracies among workmen in, 372 
 
 SPREAD EAGLE. See "Straddle." 
 
 STATE COMITY, rule of, controls contracts, 85-88 
 
 STATUTES, contracts to contravene, void, 66 
 
 when void though not prohibited. 68 
 
 simply directory do not invalidate contracts, 69 
 
 protecting the public from imposition or empiricism, 70 
 
 exercises of police power, 70 
 
 malum proldbitum, 84
 
 INDEX. 607 
 
 STATUTES, continued. 
 
 determines enforcement of foreign contract, 85 
 Colorado statutes on conditional sale, 253 
 Dakota trade trusts, 263 
 statutes on conditional sale, 253 
 question of commercial law, 92 
 regulating marriage ceremony, 82 
 usury laws, 82 
 international revenue laws, 82 
 limiting loans by banks, 82 
 trade trusts, 262, 263 
 restricting loans by insurance companies, 82 
 forbidding offering unbranded goods, 83 
 requiring license from pedler, 83 
 restricting sale of commercial fertilizers, 83 
 in England and United States concerning combinations among work- 
 men, 338, 340, 376, 877 
 U. S. House Representatives bill prohibiting " futures," Appx. 442 
 U. S. Senate Bill prohibiting "futures," Appx. 437 
 English, 8th and 9th Vict. chap. 109, § 18, 40 
 Arkansas, constitutional and statutory provisions on trafle tiusts, 262 
 statute prohibiting in dealing in futures not in restraint of trade, 51 
 Alabama, rule on conditional sale, 253 
 Stock deliverable under "option," 51 
 constitutional provisions on trade trusts, 262 
 conspiracies among workmen, 341 
 Arizona, respecting trade trusts, 262 
 Colorado, conspiracy among workmen, 341 
 Connecticut, conspiracy among workmen, 342 
 Delaware, conspiracy among workmen, 342 
 on conditional sale, 253 
 Florida, on conspiracies among workmen, 343 
 in Georgia, contracts in " futures " pure speculation and not en- 
 forceable in futures in goods not owned nor improved, 52 
 concerning conspiracies among workmen, 343, 344 
 in Illinois, concerning conspiracies among workmen, 344, 346 
 trade trusts, 263 
 on conditional sale, 52, 253 
 Indiana, conspiracies among workmen, 346, 347 
 trade trusts, 263 
 Iowa, trade trusts, 263 
 conspiracies among workmen, 347, 343 
 on conditional sale, 253 
 in Kansas, the question whether intention to deliver, ,'57 
 conspiracies among workmen, 348 
 trade trusts, 263
 
 508 INDEX. 
 
 STATUTES, continued. 
 
 in Kentucky, on conditional sale, 253 
 
 in Maine, conspiracies among workmen, 348-350, and note 2, 350 
 
 trade trusts, 263 
 
 in Maryland, conspiracies among workmen, 850 
 
 trade trusts, 264 
 
 conditional sale, 253 
 
 in Michigan, trade trusts, 264 
 
 conspiracies among workmen, 351, 352 
 
 in Massachusetts, conspiracies among workmen, 350, 351 
 
 in Minnesota, conspiracies among workmen, 352, 353 
 
 on conditional sale, 253 
 
 in Missouri, on conspiracies among workmen, 852 
 
 trade trusts, 264 
 
 on conditional sale, 253 
 
 in Montana, conspiracies among workmen, 353 
 
 in Nebraska, trade trusts, 264 
 
 in New Hampshire, trade trusts, 264 
 
 conspiracies among workmen, 353 
 
 on conditional sale, 253 
 
 in New Jersey, on conspiracies among workmen, 853, 354 
 
 trade trusts, 264 
 
 on conditional sale, 253 
 
 in New York, trade trusts, 265, 266 
 
 conspiracies among workmen, 354, 3C3, note 356 
 
 on conditional sale, 253 
 
 in North Carolina, conspiracies among workmen, 358 
 
 trade trusts, 267 
 
 conditional sale, 253 
 
 in New Mexico, on conditional sale, 253 
 
 in Ohio, "futures" in food products, grain and flesh, seller not 
 
 owning property, void, 60 
 where purchaser has not the means to pay or without intention in 
 
 Ohio, void, 60 
 in Ohio, condemnation of " futures" extend to stock and petroleum, 60 
 
 on conditional sale, 253 
 incorporated produce exchanges, chambers of commerce or 
 
 boards of trade excepted fiom, 60 
 
 does not apply to or interfere with legitimate business in Ohio, 60 
 
 trade trusts, 267 
 
 conspiracies among workmen, 359 
 
 in Oregon, conspiracies among workmen, 370 
 
 in Pennsylvania, conspiracies among workmen, 370, 372, 376 
 
 trade trusts, 267 
 
 on conditional sale, 251 
 
 in Rhode Island, conspiracies among workmen, 373 
 
 in South Carolina, conspiracies among workmen, 373 
 
 trade trusts, 268
 
 INDEX. 
 
 509 
 
 STATUTES, continued. 
 
 in South Carolina, trade trusts, 
 
 on conditional sale, 
 in South Dakota, conspiracies among workmen, 
 in Tennessee, trade trusts, 
 conspiracies among workmen, 
 on conditional sale, 
 in Texas, conspiracies among workmen, 
 
 trade trusts, 
 in Vermont, conspiracies among workmen, ^ 
 
 in Washington, m conditional sale, 
 in West* Virginia, trade trust, 
 
 conditional sale, 
 in Wisconsin, trade trusts, 
 on conditional sale, 
 conspiracies among workmen, 
 in Wyoming, conspiracies among workmen, 
 United States statutes, trade trusts, 
 authorizing board of arbitration, 
 national trade union, 
 contracts which contravene purpose of, 
 on contracts which violate the, 
 
 on contracts prohibited under penalty by, 66, 
 
 contracts not void under, only directory, 
 requiring inspection of goods, 
 
 " branding " of goods, 
 on contracts with physician unlicensed by, 
 for purchase of liquors forbidden by, 
 for rent of premises for sale prohibited by, of liquors, 
 contracts violating foreign, 
 where foreign, forbids sale ofjliquor, 
 intent of, determines validity of contract, 
 instrumentalities used in violating, may be seized in Vermont, 
 in ^Massachusetts, 
 in Maine, 
 contracts to alienate against " Homestead Laws," 
 to locate excess by, of mineral lands, 
 attempting to avoid burdens imposed by, on employment, 
 law of contract travels with parties to it, 
 laws of place of performance of contract, 
 law of domicile of creditors controls in contracts, 
 contracts when not controlled by State, or a rule of property, 
 contracts depending on construction of, 
 under New York, longshoremen's union declaring "boycott," 
 
 STEAMBOATS. 
 
 pooling profits, 
 
 contracts between rival lines of. 
 
 268 
 253 
 372 
 268 
 372 
 253 
 372, 373 
 268 
 373 
 253 
 268 
 253 
 268, 269 
 253 
 373 
 873 
 214, 216 
 375 
 376 
 68,79 
 63, 66, 70 
 67, 84, 85 
 70,79 
 70 
 70 
 70,71 
 71,72 
 72 
 73 
 73,79 
 79,80 
 78^ 
 78 
 79 
 80 
 81 
 81 
 85, 88 
 85,88 
 86,88 
 92 
 93 
 404 
 
 245, 265 
 266
 
 510 INDEX. 
 
 STOCK EXCHANGE. 
 
 call by eitlier party for margin valid in, 48 
 
 STOCKHOLDERS. 
 
 placing stock with trustee to vote, 283 
 
 right to vote stock not for protection of stockholders alone, 283 
 
 STRADDLE. 
 
 includes the double privilege of the " put " and " call," 43 
 
 forn> of contract in, 44 
 
 " option," " call," " put," with intent to deliver enforceable, 44 
 
 qucition of jury whether transaction real, 44 
 STREET RAILROAD. 
 
 monopoly of street by, 231 
 
 STRIKES. 
 
 simultaneous cessation of work, 889 
 not necessarily illegal, 889,840, 371 
 
 intimidation by, illegal in England, 840 
 
 unless nonunion men discharged, 841 
 
 which would injure employer not necessarily illegal, 841 
 
 to secure increase of wages to journeymen printers, 405 
 
 invasion of premises to induce, 405, 406 
 
 SUGAR. 
 
 to monopolize manufacture illegal, 239, 274, 277 
 
 union of refineries of, 274, 277 
 
 T. 
 
 TELEGRAPH COMPANY. 
 
 state license ta.x upon, 221 
 
 granting exclusive right for telegraph messages void, 3 
 
 TENNESSEE. 
 
 when no delivery is contemplated contract of sale is void, 62 
 
 constitutional and statutory provisions on trade trusts, 268 
 
 statutes on conditional sale in, 253 
 
 conspiracies among workmen, 372 
 
 TEXAS. 
 
 contract of sale is valid only when the parties intend actual delivery, 62 
 
 wagers on indifferent matters valid in, 51, 62 
 
 constitutional and statutory provisions on trade trusts, 268 
 
 statutes on conspiracies among workmen in, 372, 373 
 
 THRESHING MACHINE. 
 
 contract for service with unboxed, 83 
 
 TRADES COMBINATIONS. See Conspiracies. 
 
 doctrine of conspiracy in development of, 335 
 
 statutes in England and the United States regarding, 338 
 
 TRADE AND LABOR. See Conspiracies; Statutes. 
 
 conspiracies relating to, 334
 
 INDEX. 511 
 
 TRADE-MARK. 
 
 liable to deceive, no protection, 2 
 
 discriminating between union and non-union labor worthless, 2 
 to prevent sale of work of non-union men, 333, 334 
 TRADE SECRETS. 
 
 contract to restrain seller from divulging, 181, 182 
 
 court -will protect rights sold in, 183 
 TRADE TRUSTS. 
 
 history of, 261 
 organization and object, 272-273 
 
 general arts incorporation will not authorize, 282 
 
 sugar refining companies organized to create, 283 
 
 corporation disabling itself to discharge duties of, 281 
 
 conspiracies relating to, 334 
 car trusts, 260, 284 
 
 combination to prevent competition, 261 
 Constitutional and Statctoky Phovisioks. 
 
 Alabama, 263 
 
 Arizona, 263 
 
 Arkansas, 263 
 
 Colorado, 263 
 
 Conned icut, 263 
 
 Dakota, 26a 
 
 Florida, 268 
 
 Georgia, 263 
 
 Illinois, 26S 
 
 Indiana, 263 
 
 Iowa, 26a 
 
 Kansas, 268 
 
 IVIaine, 268 
 
 Mary hind, 264 
 
 Michigan, ^64 
 
 Minnesota, 264 
 
 Missouri, 264 
 
 Nebraska, 264 
 
 New Hampshire, 264 
 
 New Jersey, 264 
 New York, 265, 26ft 
 
 North Carolina, 267 
 
 Ohio, 267 
 
 Pennsylvania, 267 
 
 South Carolina, 26& 
 
 Tennessee, _ - 268 
 
 Texas. 268 
 
 West Virginia, 268 
 Wisconsin, 268, 269 
 United States, 214, 216
 
 512 INDEX. 
 
 TRADE TRUSTS, conUniicd. 
 State Statutes Foiuiiu. 
 
 Missouri, 270. 272 
 
 Illinois, 270, 272 
 
 Acts of Congress forbids, 21 1 
 
 charters refused to, 27a 
 
 union of sugar refineries, 274, 277 
 
 corporate union in forfeits cliartrr, 277 
 
 controlling manufacture of gas, 277, 280 
 
 gas trusts, 277. 280 
 
 lumber trusts, 277, 278 
 
 cotton seed oil trusts, 280 
 
 salt triism, 28.0 
 
 rtpresented by a corporation cannot act fn foreign territory, 289 
 
 party to cannot have relief in courts, 13H 
 
 receiver may not recover on dissolution of, 14."» 
 
 TRADES UNION, penalties imposed on employers violating rules of, 40h 
 
 rules forbidding calling at shops pending dispute, 408 
 
 requiring reference of dispute to executive council, 408 
 
 fining member binding his son to uonuuiun shop, 408 
 
 u. 
 
 UNBRANDED GOODS, contract for sale of, 83 
 
 UNLICENSED PEDLER, conlracU with, 88 
 
 U. S. SUPREME COURT, rule of commercial law, 92 
 
 USURY, bank prohibited from, contract, 82 
 
 under penalty of forfeiture of contract, 82 
 
 V. 
 
 VERMONT, instrumentalities used in violating statute may be seized In, 78 
 statutes on conspiracies among workmen, 873 
 VIRGINIA, by statute money advanced solely for carrying cotton ' fut- 
 ures " payable in differences void, 68 
 
 WAGER, contracts involving, illegal, 6 
 
 policy on life of stranger payable in part to his widow, 24, 28 
 
 policies on life, 22 
 
 where no insurable interest in life contract is a policy of, 26 
 
 Yiolicios are contra bonos mares, 25 
 
 policy upon the life of another for speculative purposes, 26 
 
 insurable interest must be substantial, 26, 27 
 
 if valid at inception policy does not become, 2(i 
 
 large insurance to secure small debt is, 27 
 
 insurance with liablility to assessment is not, 27 
 
 sum insured not grossly disproportionate to interest not, 28
 
 INDEX. 513 
 
 WAGER, continued. 
 
 •whether policy depending on the excess of insurance over debt is, is 
 
 question of law, 29 
 rule determining whether unreasonable excess constitutes, 29, 37 
 •where creditor has insurable interest it is not, 33 
 creditor may take policy in sum sufficient to secure debt, 34 
 policy to secure creditor based on " Carlisle tables" not, 34 
 assessments in mutual insurance companies approximated on ques- 
 tion of, 36 
 creditor may cover debt, interest, cost of insurance on expsctanoy 
 
 in " Carlisle tables " without, 37 
 
 on indifferent matters lawful at common law, 49 
 
 common law as to not adopted in states, 49 
 
 contracts of, illegal and void, 49, 51 
 
 in England, future sale not contemplating delivery is a, 49, 50 
 
 contracts in "futures" where difference only is paid are, 40, 63 
 
 contract by seller to repurchase with interest not, 45 
 
 neither party making books on horse races can recover, 52 
 
 money advanced to bet on horse races not recoverable, 52 
 
 securities in hands of participants void, 54, 55 
 
 contract for "futures" in cotton not intending delivery, 45 
 On Indifferent Matters Vamd in— 
 
 Delaware, 51, 62 
 
 California, 51, 62 
 
 Illinois. 51, 63 
 
 New JiT!?ey, 51, 62 
 
 Oregon, 51,62 
 
 Texas, ^ 51,62 
 Are Invalid in — 
 
 Indiana, 53 
 
 Kentucky, 57 
 
 Massachusetts, 57 
 
 Maryland, , 58 
 
 Maine, 68 
 
 Michigan, 58 
 
 Missouri, 58 
 
 Nebraska, .69 
 
 New Hampshire, 59 
 
 New York. 59,60 
 
 WASHINGTON, statute on conditional sale in, 253 
 
 WAR, as affecting contracts, 101 
 
 dealings with public enemy, 101 
 
 a citizen during, cannot contract with enem}', 101 
 
 executory contracts canceled by, tOl, 102 
 
 contracts with enemy during, 102 
 
 cannot appoint agent during, 102 
 
 license given to alien enemy during, 103 
 
 33
 
 514 INDEX, 
 
 VVArJ, continued. 
 
 license to trade liberally constnied during, 103 
 
 insuiinsj properly of enemy during, 104 
 
 contracts for illegal trading during. 102 
 
 devise to alien enemy, I'M 
 
 title to real estate transferred during, 103 
 
 license to trade with enemy, 103 
 
 insurance by licensee during, 103 
 
 by licensed alien enemy during, 103 
 
 insurance of propeity of public enemy, 104, 105 
 
 resident may have agent in hostile teirilory, • 103 
 
 WEST VIRGINIA, constitutional and statutory provisions on trade 
 
 trusts, . 26o 
 
 statutes on conditional sale in, 253 
 
 WILL, devising property in restraint of marriage, 151, 159, IGl 
 
 inducing legatee to live separate from husband, 159. lUl 
 
 WISCONSIN, transaction not enforceable where payment of differences 
 
 intended, 6:-{ 
 
 constitutional and statutory provisions on trade trusts, 2G8. 2G9 
 
 statute on conditional sale in, • 253 
 
 conspiracies among workmen in, 373 
 
 WORKMEN. See CoNsnuAciEs. 
 
 legislation affecting combination among, 37H 
 present conditions of the law concerning trade or labor combina- 
 tions among, 406 
 picketing, 406 
 boycotting, 406 
 
 WYOMING, statute on conspiracies' among workmen in, 373
 
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