to open the case to admit it in evidence, on the ground that their former counsel had misjudged as to the scope of the prior patent, and that they had relied upon his skill and fidelity as an attorney of the court, when in fact he was not at that time, although assuming to be, an attorney of the court at all. Judge BLATCHFORD denied the motion, after a very careful review of the case and grounds of the motion. In doing so he said:

"This is not a case of newly-discovered evidence. The gravamen of the application is the alleged laches, and inexperience and incompetence, of Mr. Whitney. If such grounds were to be admitted as reasons for opening cases, there would never be an end of a suit, so long as new counsel could be employed who could allege and show that prior counsel had not been sufficiently diligent, or experienced, or learned."

These cases abundantly show that no mistakes of judgment, or want of attention, of counsel, if there were any such, which is not intended to be affirmed or implied, affords any just or proper grounds for granting this motion and opening the case. The judgments and decrees of courts should rest upon such solid bases of fact as may be had by the usual modes of procedure, and the rules of evidence established by law and usage. At first sight, it might appear that the retaking of evidence, or the taking of new evidence, could justly wrong no one, for the making of more truth to appear would afford greater opportunity for just judgment. But affording chances for retaking testimony after judgment might not always, and probably would not often, tend to the elucidation of truth. Temptations would be furnished which it is the policy of the law to avoid.

The testimony of Albert Sowles, as taken and filed in this case, is apparently straightforward, candid, truthful, and fair. The defendant had, and availed himself of, full opportunity to cross-examine him upon it, and, after months to consider it in, a further opportunity to examine him, and to testify himself with reference to any facts that might be elicited. It does not satisfactorily appear now that truth and justice would be any more likely to be reached in this cause by affording another opportunity, which cannot be done without breaking over wellsettled rules and established modes of procedure. These views are not intended to reflect upon the testimony of any of the witnesses taken and filed, nor upon the course taken by client or counsel in making and presenting this motion; but they lead inevitably to the conclusion that this motion must be denied.

It is admitted by the orator that there are securities held by him, from the avails of which there may be something to apply on this debt, and thereby lessen the loss in consequence of this loan; and that it was understood that, if the amount of the loss should be necessary to be ascertained, a reference to a master for that purpose would be necessary. The directions for a decree should be modified accordingly.

Motion to reopen case denied. And let a decree be entered that the defendants Albert Sowles and Burton are chargeable for the amount of the loss on the loan of $36,000 to Edward A. Sowles; that an account

be taken of the amount of that loss, and that they pay the amount when ascertained to the orator, with costs; and that the bill be dismissed as to the defendants Edward A. Sowles and Hall, without costs.

WARD v. Vosburgh.

(Circuit Court, E, D. Wisconsin. May, 1887.)

1. CONFLICT OF LAWS-CONTRACTS-GAMING.

The rule laid down in Barnard v. Backhaus, 52 Wis. 593, 6 N. W. Rep. 252, and 9 N. W. Rep. 595, that, "to uphold a contract for a sale and delivery of grain at a future date for a price certain, it must affirmatively and satisfactorily appear that the contract was made with an actual view to the delivery and receipt of grain, and not as an evasion of the Wisconsin statute against gaming, or a cover for a gambling transaction," does not apply to an action in the federal courts in that state by a broker, resident in Illinois, to recover advances and commissions growing out of orders given him by a citizen of Wisconsin, to be executed on the floor of the Chicago Board of Trade. The rights of the parties to such a suit are governed by the laws of Illinois. 2. CONTRACTS-GAMING-OPTIONS-INTENT-BURDEN OF PROOF-LIABILITY FOR COMMISSIONS AND ADVANCES.

Under the Illinois statutes, a simple option, reserved by the seller to himself, as to time of delivery of property within certain limits, and the settlement of differences upon such a contract, does not render the contract void as a gambling transaction. The burden of proof, in an action on such a contract by a broker for commissions and advances for settlements made by the "ringing up" process, is therefore upon the defendant to show the gambling intent; and it does not follow, from the fact that he himself intended no delivery, that such was the intention of the broker and of the other principal, or that deliveries were not made as a matter of fact.

3. CUSTOM AND USAGE-"RINGING UP”-GAMING.

The custom of "ringing up," in vogue among brokers and commission merchants, is founded in commercial convenience, and when not adopted to promote a gambling transaction, is not in contravention of the law. 4. SAME-EFFECT OF-ESTOPPEL.

A speculator who is familiar with the methods and usages of the Chicago Board of Trade is presumed, upon giving orders to his broker, a member of that body, to contract with reference thereto; and he will not be heard to set up, as a defense to a suit by the broker for commissions and advances, that the custom prevailing there, in obedience to which the advances were made, enlarged his liability under the contract.

At Law.

Joseph Wright and Shepard & Shepard, for plaintiff.
Quarles & Spence, for defendant.

DYER, J. This is undoubtedly a hard case for the defendant, and, if the court could see its way clear to relieve him from the liability which is sought to be enforced against him, it would be glad to do so. So many decisions have been rendered by various courts upon the particular question we have here to decide, in which may be found the expression of conflicting views, that it is not easy to arrive at a conclusion unattended with doubts. One proposition is well settled, namely, that

where in fact no purchase or sale of property is intended, but simply a wager on the rise or fall of prices, the transaction is a gambling one, and cannot be upheld. It is also equally true and well settled by authorities, so familiar that they need not here be cited, that where the gambling intent exists only on one side, and the other party intends an actual purchase or sale, then the transaction is valid. The difficulty always is in applying these principles of law to the facts as they are developed in the given case. It has been of late repeatedly decided, that, if the parties intend in fact to buy or sell property to be delivered at a future time agreed upon by them, it is not a gambling transaction, although they exercise the option of settling the difference in price, rather than make delivery of the property.

Upon a careful perusal of the opinion of the court in Barnard v. Backhaus, 52 Wis. 593, 6 N. W. Rep. 252, and 9 N. W. Rep. 595, and of the record and testimony in that case submitted by counsel for the defendant, I am strongly inclined to the opinion that if the case in judgment involved a Wisconsin transaction, arising under the Wisconsin statute, that opinion might be considered a controlling authority in favor of the defendant here. The rule laid down in that case was that, to uphold a contract for a sale and delivery of grain at a future date, for a price certain, it must affirmatively and satisfactorily appear that the contract was made with an actual view to the delivery and receipt of grain, not as an evasion of the statute against gaming, or as a cover for a gambling transaction. The meaning of this proposition would seem to be that the burden of proof to uphold such contract is upon the party who seeks to recover upon it.

It was held by Judge GRESHAM, then district, now circuit judge in this circuit, in Williar v. Irwin, 11 Biss. 60, that "the burden of showing that the parties were carrying on a wagering business, and were not engaged in legitimate trade or speculation, rests upon the defendant. On their face, these transactions are legal, and the law does not, in the absence of proof, presume that parties are gambling. A person may make a contract for the sale of personal property for future delivery which he has not got. Merchants and traders often do this. A contract for the sale of personal property which the vendor does not own or possess, but expects to obtain by purchase or otherwise, is binding, if an actual transfer of property is contemplated. A transaction which on its face is legitimate cannot be held void, as a wagering contract, by showing that one party only so understood and meant it to be. The proof must go further, and show that this understanding was mutual; that both parties so understood the transaction. If, however, at the time of entering into a contract for the sale of personal property for future delivery, it be contemplated by both parties that, at the time fixed for delivery, the purchaser shall merely receive or pay the difference between the contract and the market price, the transaction is a wager, and nothing more."

Other cases might be cited in which the same rule is applied to these contracts for the sale and purchase of grain on the board of trade as is

applied to every other contract, namely, that presumptively they are legal and valid; and that the burden is not, in the first instance, upon the plaintiff to show that the contract was not an evasion of the statute, or a cover for a gambling transaction. The supreme court of the United States in Irwin v. Williar, 110 U. S. 507, 508, 4 Sup. Ct. Rep. 160, expressly approve the statement of the law on this point, as it has just been quoted from the opinion of Judge GRESHAM; and I must therefore hold that the burden here is not upon the plaintiff to make it satisfactorily and affirmatively appear that the contracts in question were legal, but that it is incumbent upon the defendant to show that the contracts were in fact gambling transactions; and this is not shown by merely proving his own intention in the transaction. As was well said in Clarke v. Foss, 7 Biss. 548:

"It is very easy for either party to swear to what his own understanding of the contract was, but that, standing alone, is manifestly immaterial. The secret intentions of one party, contrary to what appears on the face of the contract, and not communicated to the other party, cannot prevail to make a contract illegal which is otherwise valid. The real question is, what was the contract? and that implies an inquiry as to the mutual understanding and meeting of the minds of the parties. What was that? It is easy for a party to swear what his own understanding and intentions were; but, when he comes to swear to the intentions and understanding of the other party, the consideration due to his testimony stands on an entirely different footing. He may be presumed to know his own intentions, but the evidence of the intentions of the other party should not be of a merely subjective character, but should consist of tangible facts and circumstances, outside of his own consciousness, and a knowledge of which would be capable of satisfying other minds." In Bangs v. Hornick, 30 Fed. Rep. 97, Judge BREWER in his opinion

says:

"Counsel for defendant say that it is the absolute duty of the court to denounce this transaction, unless it clearly appears that it was a valid and honest one. I think the duty of the court is precisely the reverse, and that it is the duty of the court to uphold it, unless it appears that it was an invalid and dishonest one."

This is a terse and accurate statement of the rule of law applicable to the present case. The plaintiff was a broker or agent of the defendant in the transactions in question. He was the middle-man between. the defendant and other parties, to whom sales and from whom purchases of commodities were made. Like the case of Bangs v. Hornick, just cited, as there observed by Judge BREWER, it is not a case where the defendant, as principal on the one side, was dealing with the plaintiff as principal on the other. There was no contract of purchase or sale, real or pretended, between them. He was merely a broker,-an agent to do the defendant's bidding in transactions real or pretended. "There is no presumption that an agent does not obey the instructions given, or that he does not intend to obey them; and, it matters not what the intent or supposition of the principal may be, the law will presume that the agent obeyed the instructions that were given, and as they were given; and, if the contrary be alleged, it must be proved."

Now, although the defendant may not have intended any real pur

chase or sale of grain or other commodities, it is not satisfactorily proven that the parties with whom the plaintiff dealt for the defendant, did not contemplate the actual receipt of property purchased, and delivery of property sold. Just here is the difficulty with the defendant's case. The proofs do not come up to the point of showing that both or all the parties to the various transactions, regarded them simply as wagers on differences in prices. As we have seen, the test of illegality is the intention, not alone of one of the parties, but of both or all.

As before observed, these were transactions arising in Illinois, and therefore governed by the Illinois statute. The Wisconsin statute is broader in its scope. Indeed, as pointed out by Judge HOPKINS in Re Green, 7 Biss. 338, the statute of this state on the subject of gaming has gone further than the English statutes on the subject. Clarke v. Foss, supra; Gilbert v. Gaugar, 8 Biss. 214; and Jackson v. Foote, 11 Biss. 223, 12 Fed. Rep. 37,—all decided in this circuit,—were cases involving transactions under the Illinois statutes. Clarke v. Foss, in many of its prominent features, is on all fours with the case at bar, involving also the validity of settlements made by the so-called "ringing up" process, and the contracts out of which that case arose, were sustained. In that case, as in this, the evidence showed that in some of the transactions, grain was actually delivered and paid for, and in other respects, the case was very similar to that here in hand. Although not officially reported, I happen to know that an appeal was taken from the judgment of Judge BUNN in Clarke v. Foss, to the circuit court, and that, in an oral opinion delivered from the bench by Judge DRUMMOND, the contracts there involved, were sustained, and the decision of the district court was fully affirmed. In Jackson v. Foote, Judge BLODGETT decided that an agreement between a person and his broker on the Chicago Board of Trade, by which he is to deal in time contracts for the purchase and sale of grain, and settle the differences so as to avoid paying for and carrying the commodities bought, does not show an intention to deal in "options to buy or sell at a future time," such as are prohibited by the Illinois statute, though the contracts might be wagering contracts at common law, and that such statute does not cover dealing in differences. So in Gilbert v. Gaugar, supra, the same judge decided that the Illinois statute was not intended to prohibit sales of grain or other commodities for future delivery, where the seller reserves to himself a simple option as to the time of delivery within certain limits; and that if one makes a contract to deliver grain during a future month, at a fixed price, and, by reason of the adverse aspect of the market, directs his broker to settle with the purchasers before the maturity of the contract, this does not make the contract void as a gambling transaction, and he is liable for the differences paid by the brokers in his behalf, as well as for their commissions.

The weight of authority, therefore, in this circuit, is all one way, as applied to Illinois transactions, namely, that a simple option reserved by the seller to himself as to time of delivery of property within certain limits, and the settlement of differences upon such a contract, does not