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here repeated : “Wherever power is lodged it may be but that cannot otherwise affect the right or the power abused. But this forms no solid objection against its of the court. Before the court could exert its power, exercise. Confidence must be reposed somewhere; the offender, taking advantage of the confusion, aband if there should be an abuse, it will be a public sented himself and went beyond the reach of the grievance, for which a remedy may be applied by the court; but nevertheless the jurisdiction remained, Legislature, and is not to be devised by courts of jus- and i: was competent for the court to take such action tice.” It results from what has been said that it was as might be deemed advisable, leaving the action to competent for the Circuit Court, immediately upon be enforced, and the sentence carried into executhe commission, in its presence, of the contempt re- tion, whenever there might be an opportunity to do cited in the order of September 3, to proceed upon so. If it was necessary that the judgment should be its own knowledge of the facts, and punish the preceded by a trial, and the facts found upon a judioffender, without further proof, and without issue or cial hearing, as with ordivary criminal cases, it would trial in any form. It was not bound to hear any ex- | be otherwise. But in this proceeding nothing of the planation of his motives, if it was satisfied-and we kind was required. The judicial eye witnessed the must conclusively presume, from the record before us, act, and the judicial mind comprehended all the cir. that it was satisfied, from what occurred under its cumstances of aggravation, provocation or mitigation, own eye and within its hearing-that the ends of jus. and the fact being thus judicially established, it only tice demanded immediate action, and that no ex- | remained for the judicial arm to inflict proper punishplanation could mitigate his offense, or disprove the ment." It is true that the present case differs from fact that he had committed such contempt of its au the one just cited in that the offender did not attempt thority and dignity as deserved instant punishment. by flight to escape punishment for his offense; but Whether the facts justified such punishment was for that circumstance could not affect the power of the that court to determine under its solemn responsibil. Circuit Court, without trial or further proof, to inflict ity to do justico, aud to maintain its ow! dignity and instant punishment upon the petitioner for the conauthority. In re Chiles, 22 Wall. 157, 168. Its conclu. I tempt committed in its presence. It was within the sion upon such facts, we repeat, is not, under the stat. discretion of that court, whose dignity he had iu. utes regulating the jurisdiction of this court, open to sulted, and whose authority he had openly defied, to inquiry or review in this collateral proceeding. Jur determine whether it should, upon its own view of isdiction of the person of the petitioner attached in what occurred, proceed at once to punish bim, or stantly upon the contempt being committed in the postpone action until he was arrested upon process, presence of the court. That jurisdiction was neither brought back into its presence, and permitted to make surrendered nor lost by delay on the part of the Cir defense. Any abuse of that discretion would be at cuit Court in exercising its power to proceed, without | most an irregularity or error, not affecting the jurisnotice and proof, and upon its own view of what oc | diction of the Circuit Court. We have seen that it is curred, to immediate punishment. The departure of a settled doctrine in the jurisprudence both of Eug. the petitioner from the conrt-room to another room, land and this country, never supposed to be in condict Bear by, in the saine building, was his voluntary act. with the liberty of the citizen, that for direct cone And his departure, without making some apology for tempts committed in the face of the court, at least ono or explanation of his couduct, might justly be held to of superior jurisdiction, the offender may in its disaggravate his offense, and to make it plain that con- cretion be instantly apprehended and immediately imsistently with the public interests there should be no prisoned, without trial or issue, and without other delay upon the part of the court in exerting its power proof of its actual knowledge of what occurred; to punish. It in order to avoid 'punishment he had and that acoording to an unbroken chain of authori. absconded or fled from the building immediately after ties, reaching back to the earliest times, such power, his conflict with the marshal, the court in its discre although arbitrary in its nature and liable to abuse, is tion, and as the circumstances rendered proper, could absolutely essential to the protection of the courts iu have ordered process for his arrest, and give him an

the discharge of their functions. Without it judiopportunity, before sending him to jail, to answer the cial tribunals would be at the mercy of the disorderly cbarge of having committed a contempt. But in such and violent, who respect neither the laws enacted for a case the failure to order his arrest, and to give him the vindication of public and private rights, nor the such opportunity or defense, would not affect its officers charged with the duty of administering them. power to inflict instant punishment. Jurisdiction to

To say iu case of a contempt such as recited in the or iflict such punishment having attached while he was der below that the offender was accused, tried, adin the presence of the court, it would not have been | judged to be guilty and imprisoned, without previous defeated or lost by his flight and voluntary absence. | notice of the accusation against bim and without au Upon this point the decision in Middlebrook v. State,

opportunity to be heard, is nothing more than au ar43 Conn. 268, is instructive. That was a case of con gument or protest against investing any court, bow. tempt committed by a gro88 assault upon another in ever exalted, or however exteusive its general juriaopen court. The offender immediately left the court diction, with the power of proceeding summarily, house and the State. The court made reasonable ef without further proof or trial, for direct contempte forts to procure his personal attendance, and those conumitted in its presence. Nor in our judgment in it failing, & judgment was entered in his absence, an accurate characterization of the present case to say senteucing him to pay a fine and to be imprisoned for

that the petitioner's offense was committed "at a time contempt of court. One of the questions presented for preceding and separate from tbe commencement of determination was whether there was jurisdiction of I his progecution." His mishahavior in the presence of the person of the absent offender. The court said: the court, his voluntary departure from the courtThe offense was intentionally committed in the prey.

room without apology for the indignity he put upon euce of the court. When the first blow was struck, | the court, his going a few steps, and under the circuma that instant the contempt was complete, and jurisdic stances detailed by him, into the marshal's room m tion attached. It did not depend upon the arrest of the same building where the court was held, and the the offender, nor upon his being in actual custody, nor | making of the order of the commitment took place even upon his remaining in the presence of the court.

| substantially on the same occasion, and constituted, in When the offense was committed he was in the pres. | legal effect, one continuous, complete transaction, oc" ence, and constructively at least, in the power of the curring on the same day, and at the same session MI court. He may by flight escape merited punishment; the court. The jurisdiction therefore of the Circuit

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Court to enter an order for the offender's arrest and which the court decided that the mortgage, which, beimprisonment was as full and complete as when he sides permitting the mortgagor, by its terms, to retain was in the court-room in the immediate presence of possession of the goods, and on its face conferred on the judges. Nov. 12, 1888. In re Terry. Opiniou by him the power to sell and dispose of them as his owu, Harlan, J.

was therefore fraudulent and void in law as to cred

itors. Another decision of like character was made in FRAUDULENT CONVEYANCE-WHAT CONSTITUTES —

Nicholson v. Leavitt, 6 N. Y. 510, the head-note of CONSTRUCTIVE FRAUD.-A preferential assignment by

which correctly expresses what was decided, in the an insolveut firm of a stock of gouds for the benefit of

following words: “An assigument by insolveut debtcreditors, which provides that the assiguors shall re

ors of their property to trustees for the benefit of their main in possession and continue the business, which

creditors, authorizing the trustees to sell the assigned is yot recorded or made known to third parties until

property upon credit, is fraudulent and void as against an unpreferred creditor is about to obtain judgment,

the creditors of the assignors." This is founded upon and under which the assignors are allowed to con

the ground that such a provision has the effect of hintinue the business the same as before until they are

dering and delaying creditors. A very instructive declared bankrupts, is void, as being intended to bin

case, and very like the one before us, is that of Davis der and delay creditors, though no actual fraudulent

v. Ransom, 18 Ill. 396. A chattel mortgage of a stock intent is shown. The principles, if not the exact lau

of goods had been made, reciting the indebtedness of guage, of the statute of 13 Elizabeth, have been accepted

the mortgagor, but with an agreement that he should in the equitable jurisprudence of nearly all the States

keep possession of the goods, and sell them in the of common-law origin, and they are the law of North

usual course of trade. Out of the proceeds he was to Carolina, with a modification which is attempted to be

pay certain preferred creditors, dividing the remainapplied to this case; tbat is, that where the question

der pro rata among the others, with the right in the of the validity of au instrument of this kind, or any

mortgagee to take possession of the property under other conveyance of property, depends upon its

certain contingencies. This mortgage was held void fraudulent character, it must be shown that the

upon the principles already cited. To the same effect grantee participated in the fraud and the fact that the

is the case of Bank v. Hunt, 11 Wall. 392, which cites grantor alone is guilty of it is not sufficient to invali

with approval the case of Griswold v. Sheldon, supra. date the instrument. Conceding this to be the doc

But this whole subject has been so frequently distrine of the State of North Carolina, we are of opin

cussed in the American courts that it would be an imion that it can have no important application to the

meuse labor to go very extensively into the authoricase before us, because the fraud here is one in law, as

ties. The prevailing doctrine however is unquestiondistinguished from actual fraud; that is to say, that

ably that which we have stated; and its fundamental while the parties to this transaction, either grantors or

essence is, that an insolvent debtor making an assigngrantees, probably never bad in view the ultimate loss

ment, even for the benefit of his creditors, cannot reof the debts of the unsecured creditors by their acts,

serve to himself any beneficial interest in the property and may really have supposed that they were taking

assigued, or iuterpose any delay, or make provisions the best means to insure payment to them all, yet the

which would hinder and delay creditors from their law has said that the means which they took is to be

lawful modes of prosecuting their claims. Nov. 19, regarded as a fraud in law by necessary implication.

1888. Means v. Dowd. Opinion by Miller, J.
All experience has shown how very common it is for
failing or insolvent debtors who have auy considerable

STATUTES — REPEAL-New York ConsoLIDATION means on hand, and especially in cases where a mer

ACT – EX POST FACTO – PROSPECTIVE OPERATION cantile business of considerable value is still going on,

-(1) The Penal Code of New York, section 72, to delude themselves with the idea that, if they can

prescribing the punishment for bribery, repealed New get time, they can pay their debts; that if their cred

York city charter, section 100, and subsequently the itors will delay until they can make such arragements

Consolidation Act, the purpose of which was to codify as they believe themselves capable of, that they will

the existing laws local to the city, passed July 1, 1882, be able to pay every body, and even to save a very con

to take effect March 1, 1883, re-enacted section 100 as siderable surplus out of their busiuess. This delusion

section 58 of the new act. The Penal Code, section leads thein to undertake to obtain this delay by means

725, which took effect December 1, 1882, excepted from which the law does not sanction. If the creditors re

its operation acts granting or amending the charters fuse to extend time on their obligations, and thus give

of municipalities, except as repealed by subsequent them the delay which they deem neoessary, or if they

laws. The Consolidation Act provided that as to the fear to expose their condition to their creditors, they operation of the two acts, the Penal Code should be adopt, in many instances, the principle of making an

treated as taking effect after the former act. Held, absolute sale to certain friends, who will settle up their

that section 725 did not preserve section 100 of the foraffairs, and return to them any, surplus; or they make

mer charter as section 58 of the Consolidation Act, assiguments or deeds of trust, conveying the title to

but that section 72 became the law applicable to all their property to some trustee or assignee, and bribery in the city, as to cases arising after its passage. vesting it in them; thus opposing an obstruction to the Following People v. Jaehne, 103 N. Y. 182, and Same efforts of creditors at law to collect the amounts | v. O'Neill, 109 id. 261. (2) Though said section 72. which may be due to them. In this manner they fre- which increased the penalty for bribery, was by its queutly take the law into their own hands, and at- adoption by the Consolidation Act made applicable to tempt to secure that delay which can only be obtained | bribery in the city committed before it took effect, by the consent of the creditors, or by such a convey-| and as to such is void, its validity is not affected as to auce as leaves the creditors in no worse condition offenses arising after April 1, 1883, when both the Con. than they were before. It has always been held that solidation Act and the Penal Code were in force. whatever transfer of this character, that is, of the title | Nov. 12, 1888. Jaehne v. People. Opinion by Fuller, to property by a failing or insolvent debtor, may be valid, any instrument which secures to the assignor an interest in or an unlimited control over the prop ABSTRACTS OF VARIOUS RECENT DEerty conveyed, and which has the effect of hindering or delaying creditors, is void, as being a fraud upon

CISIONS. those creditors. A very similar case to the one before! CARRIERS - OF GOODS - DELIVERY --TO HOLDER OF us was that of Griswold v. Sheldon, 4 N. Y, 581, in UNINDORSED BILL OF LADING.–A carrier is liable for

goods consigued to the shipper and delivered without chaser for value, will divest the owuership of the perorders to a person who ordered the goods and to | son who lost them, or from whom they were stolen.'' whom the shipper had sent au unindorsed bill of lad Shaw v. Railroad Co., 101 U. S. 557. See also Hutch. ing, drawing on him through a bauk for the price, and Carr., $ 348. In 2 Pars. Cont. 292, it is said: "The con accompanying the draft with another bill of lading siguor frequently sends to a consignee a bill not inaud au order for the goods to be delivered on pay- dorsed, and then sends to his own agent in or within ment of the draft, though the company was ignorant | reach of the same port an indorsed bill-it may be in. of the sending of the other bill of lading and draft, as dorsed in blank, or to the agent, or to the party orwell as of the fact that the goods were not paid for. dering the goods—and the cousignor sends to bis agent Appellant insists that it was not in fault in delivering with the bill orders to deliver the bill to the party tbe goods to Evans for the reason that the delivery to ordering the goods, or to receive the goods and de. him of the bill of lading was in effect an assigument | liver them to him, provided payment be made or seof the goods and invested him with a right to demand cured, or such other terms as the consignor prescribes and receive them. We are referred to many authori are complied with. This course secures to the conties which are claimed to support this view. One of signor, beyond all question, the right and power of rethese is Bank v. Transportation Co., 69 N. Y. 374. An taining the goods until the price for them is paid or examination of tbat case and of the cases therein secured to him." This is not only in point, but seems cited will show that what the court really decided to be sound in prinoiple. The fact that Evans prewas that a delivery of the forwarder's receipt with- sented the bill of lading in this case was not sufficient out assigment, but with intent that the title to the to overcome the presumption which the terms of the goods for which it was given or au interest thereinbill raised that the consignee was the owner of the should be thereby transferred, would be effectual togoods. That such is the presumption is well estabaccomplish the transfer intended. Other authorities lished. Congar v. Railroad Co., 17 Wis. 485; Krulder cited by appellant are to the same effect. In this case v. Ellison, 47 N. Y. 37; Lawrence v. Minturn, 17 How. it was the intentiou of the canping company to retain 100; Alderman v. Railroad Co., 115 Mass. 234. See also the title and right of possession in itself until the | Tuttle v. Becker, 47 Iowa, 486; 1 Benj, Sales, SS 577, price of the goods should be paid. The bill of lading 579; 2 Am. & Eug. Cyclop. Law, 242, 243. The contract required the delivery of the goods to the consignor. with the canuiug company required the defendant to It did not provide for delivery to bearer or order, but deliver the goods to the consiguor. The unindorsed to the Elgin Canning Company. Therefore it is clear | bill of lading presented by Evaus was evidence that that the forwarding of the bill of lading to Evans with the contract was still in force, and that the camping directions to pay the draft and obtain the order for | company was then the owner of the goods. The dethe goods did not invest him with any right to the livery to Evans was not authorized, and was made by goods as against the consignor. But it is said that de defendant at its owv risk. Hutch. Carr., &$ 129, 130, fendant was justified in delivering the goods to Evans 344. But it is said that the capping company clothed because of his possession of the bill of lading. The Evans with the apparent right to demand the goods, cases of Lickbarrow v. Mason, 1 Smith Lead. Cas. *838, and that since“ one of two innocent parties must sufwith annotations; Dows v. Greene, 24 N. Y. 638; Al fer a loss from the wrong of another, the loss should leu v. Williams, 12 Pick. 297, and others, are cited in fall upon the party who put it in the power of that support of this claim. It is true that statements were other to perpetrato the wrong.” This case does not made in some if not all of those cases which, con fall within that rule, for as we have seen the possessidered apart from the connection in which they are sion of the bill of lading, without indorsement or other found, might seem to sustain the claim; but when evidence of assignment, did not vest Evans with any they are considered in connection with the facts oi apparent right to the property. The loss resulted from the cases where found, and the general conclusions of the negligence of defendant in not insisting upon the court which made them, we think they go no proper evidence of an assignment before it surrenfurther than to hold that the delivery of an unin dered the goods. Iowa Sup. Ct., Oct. 22, 1888. Weydorsed bill of lading would be a good symbolical de and v. Atchison, T. & S. F. Ry. Co. Opinion by Roblivery of the goods it represented, where such was the inson, J. intent and purpose of the parties. In Fearon v. Bow.

CONTRACT-RESTRAINT OF TRADE—"ANY ENGAGEers, reported in 1 Smith Lead Cas. *782, cited by ap- MENT"-"ANY BUSINESS"-INVALIDITY.- A contract pellant. the consignor had sent two bills of lading, one was entered into between a fureman tailor and his of which was indorsed to one person and the other to l employer, whereby the foreman agreed not to leare another, and the court held that a delivery might be | the service of the tailor, or enter the service or emmade to the holder of either bill. That case has but I ploy of any other persons, or euter into any engagelittle relation to the principle involved in this. Ap- | ment or be concerned or interested in carrying ou, pellant insists that the bill of lading 18 like a promis- | either on his own account or otherwise, any business sory note, in that possession is prima facie evidence of | whatsoever within the distance of one mile of a specia ownership: but we do not think that such is the case. I fied place, or any other place of business of the em. A bill of lading is a non-negotiable instrument. Bank | ployer which he then or thereafter might bave during v Railway Co., 67 Iowa, 534. The following language I the continuance of the term of three years, or after. is pertinent: “ Bills of lading are regarded as so much ward during the further period of two years. Held, cotton, grain, iron or other articles of merchandise. that the restraint imposed by such covenant was un• * * * They are in commerce a very different thing I reasonable, and that the covenant was not divisible from bills of excbauge and promissory notes, answer-1 into two

parts, and could not be enforc ing a different purpose and performing a different by the plaintiff's counsel to break up the agreement, function." Also: “It is not a representative of money | and read it as if the words of the agreement were not used for transuission of money or for the payment of to carry on the business of a tailor or any other busidebts or for purchases. It does not pass from hand to ness, and then to give effect to the words “the buslo hand ng banknotes or coin. It is a contract for the l pess of a tailor." and to reiect the words "any other performance of a certain duty. True, it is a symbol of business.” But the rule to be applied is that ald ownership of the goods covered by it- & repre- | down by Willes, J., in Pickering v. The Ilfraoombe sentative of those goods; but if the goods them- | Railway Co., L. R., 3 C. P. 235: "The general rule is selves be lost or stolen, po sale of them by 1 that, where you cannot sever the illegal from the legal the finder or thief, though to a bona fide pur- | part of a covenant, the contract is altogether void;

asked

but, where you can sever them, whether the illegality right to buy coal at a future time. But it is said that be created by statute or by the common law, you may this right is not an "option" within the meaning of reject the bad part and retain the good.” This being the statute, aud that the statute “was passed to curb the rule, it is impossible to accede to the plaintiff's the gambling transactions of boards of trade in large coutention, for that would be in fact to create a new cities, and to reach such contracts there made, and covenant altogether, instead of explaining the existing made in similar ways, and was never intended to reach covenant. The case of Baines v. Geary, 35 Ch. Div. contracts like the one in suit, when, upon an actual 154, has also been pressed upon me by the plaintiff's sale, a privilege, based upon the same transaction and counsel; but there the covenant was divisible into consideration, was given to take more of the sold artitwo parts, which fact distinguishes that case from tbe cle ou same terms." We have no guide to the legislapresent case. Chan. Div., May 29, 1888. Baker v. tive intent in this case, excepting the language of the Hedgecock. Opinion by Chitty, J. 59 L. T. Rep. (N. statute. That gives no color to the claim that its apS.) 361.

plication is not to be as broad as its terms. It is true

the word “option” is not defined in the statute; but - GAMBLING - OPTIONS.- A contract entered | the pleadings do not show that it was used with referinto in the State of Illinois for the purchase of 150 cars ence to any local definition or usage. The Supreme of coal at a fixed price, to be delivered within certain Court of Illinois has defined the word as used in the dates, with the privilege of ordering an additional 250 statute in a number of cases. It has said that "the cars on the same terms, is separable, since consisting true idea of an option is what are called in the pecuof two parts-one a contract to purchase, and one a liar language of the dealers 'puts' and 'calls.' A contract for the privilege of purchasing, and as to the put'is defived to be the privilege of delivering or not part relating to the privilege of purchasing, is a con- delivering the thing sold, and a call' is defined to be tract for an option to buy at a future time, designed the privilege of calling for or not calling for the thing for the benefit of the vendees, and is void, under the bought. Optional contracts,' in this sense, are usuCriminal Code of Illinois, section 130, providing that a ally settled by adjusting market values, as the party contract to have or give the option to sell or buy any having the option may elect. It is simply a mode grain or other commodity at a future time shall be adopted of speculating in differences in market values void. It is claimed by appellant that the transaction of grain or other commodities. It must have been in between the coal company and defendants was vir this sense the term 'option' is used in the statute. tually two contracts-one of which was legal, and the Such a contract is obviously fictitious, having none of other illegal; while appellees claim that there was but the elements of good faith, as in a contract where both one agreement, aud that, since that contemplated an parties are bound, and is defined by statute as a gambactual sale and delivery of at least 150 car-loads of ling contract. Fictitious purchases or sales, such as coal, it must be held valid in all its provisions. If were in the contemplation of tbe parties, were as there was in fact but a single contract, a part of which nothing; and it is a matter of no consequence where was valid, the effect claimed by appellees would not it is pretended they were made, whether on the board result. If the coutraot is not separable, and is illegal of trade or elsewhere." Pearce v. Footę, 113 Ill. 228; in part, then it is invalid as an entirety, and cannot citing Pixley v. Boynton, 79 id. 351. In Teuney v. be enforced. Dillon v. Allen, 46 Iowa, 300; Cassady Foote, 4 Bradw. 594, approved, on appeal, 95 Ill. 99, v. Woodbury County, 13 id. 116; 2 Pars. Cont. 673; the court said: “The word 'option,' as used in the Meto. Cont. 221, 246. But we think the contract is se- statute here, taken with the context, means a mere parable. It is said that “if the part to be performed choice, right or privilege of selling or buying; and it by oue party consists of several distinct and separate is the contracting for such choice, right or privilege of items, and the price to be paid by the other is appor- selling or buying, at a future time, any commodity, tioned to each item to be performed, or is left to be the statute was intended, to prohibit, as contradisimplied by law, such a contract will geuerally be held tinguished from an actual sale or purchase with the to be severable; and the same rule holds where the intention of delivering and accepting the commodity price to be paid is clearly and distinctly apportioned specified." The case of White v. Barber, 123 U. S. 392, to different parts of what is to be performed, although it cited by both parties to this appeal. In so far as it the latter is in its nature single and entire." 2 Pars. construes the statute under consideration, it is in harCont. 517. It is said in Metc. Cont. 246, “that it one mony with the decisions quoted. By implication, it of two considerations of a promise be void merely, the approved an instruction of the trial court which stated other will support the promise; but that if one of two that “the statute is levied against what are called considerations be unlawful, the promise is void.'puts' and 'calls;' that is, the right or the privilege When however the illegality of a contract is in the act which a party may have to buy or sell of you at a futo be done, and not in the consideration, the law ture day-not an absolute agreement now to sell, but is different. If for a legal consideration a party un where one man pays another $5 or $10 for the privi. dertakes to do two or more acts, and part of them are lege of delivering to him 1,000 or 5,000 or 10,000 bushunlawful, the contract is good for so much as is law els of grain at a future time, or pays him a similar ful, and 1 for the residue. Whenever the unlawful | amount for the privilege of buying or accepting from part of a contract can be separated from the rest, it nim grain at a future time; a contract which cannot will be rejected, and the remainder established.” Iu be enforced in terms, because it lis wholly at the opthis case the purchase-price was to be paid on each tion of the party holding the option whether shipment, thirty days after it was made, and the price he will call for the grain or not. That is what was affixed to each ton of coal. Hence there was no is termed a 'gambling contract,' or a 'put' or difficulty in separating the parts of the contract, and call,' or an option to buy or sell at a future time, no injustice would result in so doing. But the agree within the meaning of the Illinois statute.” Many ment must of necessity be considered as separable, for cases have been cited by counsel which involve the the reason that it consisted of two parts-ove of which principle that “when the parties to an executory conwas in effect a contract of purchase, and the other a tract for the sale of property intend that there shall contract for the privilege of purchasing. We shall be no delivery thereof, but that the transaction shall therefore treat so much of the contract as relates to be settled by the payment of the difference between the 250 car-loads of coal as separate and distiuct from the contract price and the market price of the comthe remainder. Thus considered, there can be no modity at the time fixed, the contract is void.” Bank question that it is a contract to give to defendants the v. Packing Co., 66 Iowa, 46. But such cases are not directly in point. In the case at bar the intent of the instauces are admitted, even by the courts, which parties at the time the agreement was entered into maintain this theory, which cannot be said to involre does not appear. So far as the pleadings show, the any element of fraud, uuless by a complete perversiou defendants may at all times have intended to demaud of language and misuse of terms. The confusion to the sale to them of the 250 cars of coal. Under the be found in some of the books on this subject is due contract and the statute pleaded, the intent with doubtless to the fact that the fraud referred to has its which defeudants entered into the contract does not origin in the effort afterward to set up rights contrary seem to us to be material. It was nothing which the to the conduct of the party, although at the time of coal company could enforce. There was uothing in the act constituting the estoppel there was the most the coutract to prevent defendants from changing their perfect good faith. The term, as used in such cases, intent at pleasure. In the absence of legal or moral is, as Mr. Pomeroy expresses it, virtually synonymous obligation, people usually do those things whiob they with “unconscientious" or "inequitable." It is in think will result in benefit, and avoid doing those this sense that it may be said that it is a fraud or which would result in Joss. Therefore it must have fraudulent to attempt to repudiate the conduct which been understood by both parties to the contract, when has induced the other party to act, and upon which it was made, that defeudauts would not claim the the estoppel is predicated; but it is entirely another privilege which it attempted to give, unless it should thing to say that the conduct itself-the acts, words or prove to be for their financial interest to do so. If the silence of the party-constituting the estoppel must be price of coal advanced after the contract was made, au actual fraud, done with the intention of deceiving. the defendants would insist on the privilege, and if It may therefore be safely said that although fraud the price declined the privilege would be abandoned. may be, and often is, an ingredient in the conduct of Conceding that the consideration of the optional part the party estopped, it is not an essential element, il of the contract is found in the obligation of defend. the word is used in its commonly accepted sense; aud auts to purchase 150 car-loads of coal, yet it is clear the use of the term is unnecessary, and often im. that the option was desigued for the benefit of defend proper, unless applied to the effort of the party esants, and to secure to them the privilege of speculat topped to repudiate his conduct, and to assert a right ing in the cbanges in the market. In our opinion, or claim in contravention thereof. The best-consuch a transaction is as much a gambling contract, sidered cases are in accord with the views above exwithin the meauing of the Illinois statute, as though pressed. Bank v. Bank, 50 N. Y. 575; Waring v. Somthe parties to it had intended that no coal should be boru, 82 N. Y. 604. And although the earlier Peulldelivered, but that the coal company should pay to sylvania decisions generally leaned strongly in favor defendants the differevce in their favor between the of the theory that an actual fraud is of the essence of contract price and the market price at the date named every such estoppel by conduct, it is worthy of note for delivery. Iowa Sup. Ct., Oct. 20, 1888. Osgood v. that in the late case in that State of Bidwell's. PittsBauder. Opinion by Robinson, J.

burgh, 85 Penn. St. 412, it is said: “It is not necessary DEFINITION-INTOXICATING LIQUORS—"SALOONS"

that the party against whom an estoppel is alleged -POOL-PLAYING OF MINORS. -Under act of Arkansas,

should have intended to deceive. It is sufficient il he February 21, 1887, making it a misdemeanor to permit

intended that his conduct should induce another to a miuor to play pool in a “dram-shop or saloon,” a

act upon it, and the other, relying on it, did so act." place where cider, birch beer, and ginger ale are served

2 Pom. Eq. Jur., $S 804, 805, et seq. The case of Brant after the manner of dram-shops is a saloon within the

v. Coal Co., 93 U. S. 326, pressed upon us by couusel meaning of the act. There is nothing in the act, nor

for complainant as establishing the contention that in the evil it was iutended to prevent, to indicate

fraud is an essevtial element in the application of the that the words "dram-shop” and “saloon" are used

doctrine of estoppel, and that it is essential that the as synonymous in meaning. Neither in accurate sig

party invoking the estoppel was himself uot only desnification, nor by common acceptation, are they identia

titute of the knowledge of the true state of the title, cal in meaning. A dram-shop, or place where spiritu

but also of any convenient or available means of acous liquor is sold by the drink, is commouly called a

quiring such knowledge, merits special mention. In • saloon;" but the latter word has a much broader

addition to what we have already said as to the first meaning. To constitute a saloon it is not necessary

proposition, we will be content to adopt Mr. Pomethat ardent spirits should be offered for sale, or that it

roy's note upon this case, where, after quoting freely

of the opinion, he says: “ With great deference to the should be a business requiring a license under the revenue laws of the State. Kitson v. Mayor, 26 Mich.

opinion of so able a judge, I think his error in this 325; Goozen v. Phillips, 49 id. 7; State v. Mansker, 36

passage is evident. It consists in taking a special rule, Tex. 364. A place where cider, birch beer, ginger ale

established from motives of policy for a particular and like refreshments are served after the manner of

condition of fact, and raising it to the position of a

universal rule. Where au estoppel by conduct is aldram-shops, as the proof shows was done in this case,

leged to prevent a legal owner of land from asserting is a saloon withiu the letter and spirit of the prohibition of this stature. The influence upon the morals of

his legal title, courts of equity, in order to avoid the

literal requireinents of the statute of frauds, were youths of the company which is supposed to frequent

driven to the element of fraud in the conduct as esa such resorts is what the Legislature sought to avert

sential. See the text, sections 805-807. The passage by this act. Ark. Sup. Ct., Oct. 6, 1888. Snow v.

quoted from Judge Story is dealing with this long. State. Opinion by Cockrill, C. J.

settled rule of equity, and not with the subject of EstopPEL-IN PAIS-MARRIED WOMAN.-d married

equitable estoppel in general. When this special rule woman may be estopped by her conduct in pais as to | is made universal, its inconsistency with many familiar boundaries. It is urged that actual fraud must exist | instances of equitable estoppel becomes apparent, alla before an estoppel cau be maintained against one sui 1 Judge Field is forced to escape from the antagonisin iuris: and a fortiori before it can be applied to a mar- 1 by denying that these instances do in fact belong to ried woman, if against the latter it can be invoked at the doctrine. If this conclusion be correct, then all. It is true that there is a theory which makes the some of the most important and well-settled species Aggeuice of equitable estoppel to consist of fraud: but I of the estoppel, uniformly regarded as such by text this theory is not sustained by principle nor authority. | writers and courts, must be abandoned, and the beveu. There are many well-settled cases of estoppel familiar | cent doctrine itsell must be curtailed in its operato courts of equity, which do not rest upon fraud; and tion to one particular class of cases. This result is m

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