o »% ^ "^/iajAiNn-aviV** ^ojitvjjo'^ ^ojitvjjo^ ' ?^ ^OFCAIIFOI?^ 5 ^ ^' ^ 5" ^lOSANCfier^ "^/XMAINflaV^ v^lOSANCflfx^ ^tUBKARYQ^ ^OFCAllFOff^ CI A oe Mill 11 |V^ ^ '- oAlUBKARVC//: ^vvfllBKAftrO/^ < ^iCISAKtflti^ %)jnV3J0^ %0JI1V3J0'^ ^'TUDNVSOl^ %a3MNIlBV^ ^OFCAllFOff^ ^OFCAllFORi^ <<3i33NVsov^ ^eviNQ-av^^ ^^rttUNIVHRV/x ^lOSAKCnfJ-^ vlOSANCn£n> ^OFCAUFOBUj, ^OF'CAlIFORl M T/' ;^H' 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. 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, 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 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 ^|^«^ 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!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 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, 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 /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 £>. ;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. 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 \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 . 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 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; Tton^ 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 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 ^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. OeEazen 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; iRev. 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- 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 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- 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'. 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 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 ?/?. 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. 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^- 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. 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