make the contract void as a gambling transaction. The proofs must go further, and affirmatively show that it was not the intention of either seller or buyer, when the contract was made, to deliver any property; and this is not proved by showing merely the intention of one party, even coupled with the intention of his agent representing him in the transaction. In the case at bar, some of the property was actually delivered and paid for. In other instances there was a payment of differences. The actual delivery of some of the property is a fact which goes to uphold the transaction in question as lawful and valid. The mere fact that in other instances there was a settlement of differences, is not sufficient to show an original intention of both seller and buyer, when the contracts were made, not to deliver any property. This being the state of the case, I do not see how the contracts entered into by the defendant through his broker, the plaintiff, can be held to be gamtling transactions, unless it be so inferred from the methods in which, ir. some instances, a settlement was made as a basis for arriving at differ

ences.

In Clarke v. Foss, supra, the "ringing up" process is commented upon, and shown to be in and of itself a legitimate method of adjusting differences, in accordance with the rules of business prevailing in the clearing-houses of the country.

In Williar v. Irwin, supra, it was said by Judge GRESHAM in his charge to the jury:

"The testimony tends to show that a general custom obtained among grain commission merchants in Baltimore to the following effect: When one commission merchant, upon the order of a customer, sells to another commission merchant a quantity of grain for future delivery, and it occurs that at some other time before the maturity of the contract the same commission merchant receives an order from another customer to purchase the same or a larger quantity of the same kind of grain, for the same future delivery, and he executes this second order by making the purchase from the same commission merchant to whom he had made the sale in the other case, that then, in such case, the two commission merchants meet together, and exchange or cancel the contracts as between themselves, adjusting the difference in the prices between the two contracts, and restoring any margins that may have been put up; and from that time forth the first commission merchant holds for the benefit of the customer for whom he sold the order or contract of the purchaser for whom he bought, so that the grain of the selling customer may, when delivered, be turned in on the order or contract of the purchasing customer, and that the commission merchant is held responsible as guarantor to his cus tomer. The evidence also tends to show a custom obtained among commission merchants in Baltimore to the further effect that, though the second transaction may have been had with a different commission merchant from the one with which the first transaction was had, yet where it can be found that a series of contracts are in existence for the sale of like grain for like delivery, so that the seller owes the wheat to the buyer to whom he sold, and he to another who owes like wheat for like delivery to the first commission merchant, that then, in such case, they settle by what they call a 'ring, that is, they all reciprocally surrender or cancel their contracts, adjust differences in price between themselves, and surrender all margins that have been put up; that in all such cases the commission merchant substitutes the contract of another customer in place of that with the commission merchant whose contract has been canceled or surrendered; and that he guaranties to his customer the performance of the contract originally made in his behalf."

This is a very good statement of what the testimony in the case at bar shows transpired between the parties, in the transactions here in question; and Judge GRESHAM held that the customs referred to were founded in commercial convenience, and that they were not in contravention of the law, but valid.

The supreme court of the United States in its review of the case in 110 U. S. 499, 4 Sup. Ct. Rep. 160, although it reversed the judgment of the court below upon another point, did not question the correctness of Judge GRESHAM's ruling upon the validity of the methods of business referred to, by which differences were adjusted.

I must hold, therefore, that, for want of adequate proof of an actual intention on the part of both the defendant and the parties with whom the plaintiff as his agent dealt, not to make real sales and purchases, or not to make actual deliveries of property sold and purchased, the contention that the contracts were mere gambling transactions is not established.

It has, however, been a further question with the court whether, upon another point, the case was within the ruling of the supreme court of the United States in Williar v. Irwin, wherein it was held that the defendant was not liable to his brokers for moneys paid in settlement of differences, because it was not shown that the methods of settlement by means of which differences were arrived at were not known to him, and therefore the settlements were not made with his assent. The plaintiffs in that case were commission merchants and grain brokers in Baltimore, and the defendant and his deceased partner were engaged in business in Indiana. The contracts of sale were made and settled by the plaintiffs on account of their customers according to the custom of the grain and flour exchange in Baltimore, of which they were members, and there was no proof whatever that the defendants, living thus remote from the scene of operations, had any knowledge of the customs of the exchange. The court below decided that the defendants, having employed the plaintiffs as grain commission merchants, to engage in transactions for them on the exchange, were bound by the general usages and customs of business there prevailing, whether they had knowledge of them or not. This ruling was held by the supreme court to have been error, not on the ground that the customs tended in any way to show that the transactions were wagers, but because they worked a material change in the principal's rights, and the obligations of third parties to him, and therefore could not be binding upon him without his assent.

The evidence in the case at bar shows that the defendant Vosburgh must have been familiar with the methods and usages of business on the Chicago Board of Trade at the time when the transactions between him and the plaintiff occurred. He lived not very remote from Chicago; was frequently in that city; and had for a considerable time been accustomed to transact business on the board of trade through brokers whom he employed. He sold butter and cheese on the board of trade at Elgin, Illinois; occasionally visited the board of trade in Chicago with the plaintiff; and the plaintiff testifies unqualifiedly that the defendant was familiar with the methods of business upon the board. This testimony is not contradicted by the defendant, and he nowhere in his testimony attempts to deny knowledge of such methods of business. He was in constant communication with the plaintiff, gave orders for purchases and sales by letter and telegraph, received statements from the plaintiff as often as transactions took place, and no other conclusion is consistent with all the facts, than that he must have known the manner in which various trades made in his behalf, were closed out. The case, therefore, in its facts upon this point, is unlike that of Williar v. Irwin.

Appreciating, as I do, as indicated in the outset, the hardship probably entailed upon the defendant by an adverse ruling in this case, the court feels constrained to hold, upon the testimony as it is presented, and upon what it conceives to be the weight of authority, especially in this circuit, that the defendant is liable to the plaintiff for the amount of the plaintiff's claim for advances and commissions in the transactions in dispute.

1

SANBORN v. STARK and others.

(Circuit Court, D. Colorado. May 4, 1887.)

1. PAYMENT-APPLICATION.

•

A creditor is at liberty to apply payments of a debtor upon any one of the debtor's obligations, unless the debtor names the debt on which he is making payment.

2. SAME-SECURED AND UNSECURED DEBTS.

Where there are two debts, one secured and the other unsecured, the court will as a rule apply a payment upon the unsecured debt.

3. PARTNERSHIP-POWERS-RENEWAL OF NOTE.

The renewal by one partner of a partnership note, after dissolution of the partnership, is binding upon the co-partner, if the latter recognized and consented to it.

On Motion for New Trial.

M. B. Carpenter, for plaintiff.
J. W. Horner, for defendants.

BREWER, J. In this matter of Sanborn against Stark, motion for new trial on two grounds, first that one payment of six hundred and odd dollars was not credited on the note of $650, but on some other indebtedness of the other partner. There is nothing in that; the creditor is at liberty to apply payment upon any one of the obligations of his debtor, unless the debtor names the debt on which he is making the payment. Even if he had not made that application himself, where there are two debts, one secured and the other unsecured, the court ordinarily will apply a payment upon the unsecured debt; and the claim here is that this note was the debt of defendant's partner, upon which defendant was security.

The other point is equally unsound. The claim is that the note for $650, upon which judgment was rendered, was a renewal, and that as a renewal it was not binding on this particular defendant, Stark, because of the prior dissolution of the partnership, a fact which was known to the creditor at the time he took it. The truth of the matter is, the renewal was consented to by this defendant. It was given as a renewal of a part of a $2,000 note upon which confessedly both defendants were liable. The renewal was some time about the twentieth of August. On the third of August this defendant writes to his partner: "Friend Sanborn: Yours of twenty-eighth July just at hand. I wrote you some days ago I could not provide for payment of note due 18th, Exchange Bank; and I cannot. It must be renewed." August 18th, Exchange Bank, $2,000, that was the note upon which both defendants were liable, and this defendant writes to his partner saying, "It must be renewed." And on the twenty-seventh of August, after the renewal, he writes: "Yours twentieth August received. I am surprised you should renew those notes for so short a time, as you must be aware collections are coming in very slowly, and I cannot meet them." Obviously both before and after he recognized and consented to the renewals.

The motion will be overruled.

UNITED STATES v. MOLLOY.

(Circuit Court, E. D. Missouri, E. D. April 20, 1887.)

1. VOTERS-FRAUDULENT REGISTRATION.

Where the state statutes require voters to appear before the register and take a prescribed oath before registering, it is an offense indictable under section 5512, Rev. St. U. S., for a recorder of voters to knowingly, willfully, and fraudulently enter in the registration books, or cause to be entered therein, the name of a person as a qualified voter who has not appeared before him and applied for registration, nor taken the oath required by law.

2. SAME.

Where the act is proved to have been done knowingly and willfully, and not merely through inadvertence or ignorance of official duty, a fraudulent motive may be inferred.

3. SAME-IGNORANCE AND INADVERTENCE.

To register a voter who has not appeared or taken the oath is not a criminal offense, however, if done without any fraudulent or criminal motive, but merely through inadvertence or ignorance of official duties, or of the manner in which they should be performed.

4. SAME-WRITING VOTER'S NAME.

The mere writing of a person's name in the registration books is in itself no offense if the person whose name is written appears and applies for registration, or takes the oath, and expressly or by necessary implication requests the officer to write his name.

5. SAME-DECEPTION OF REGISTER.

Where persons appear before a register and give false names or places of residence, and apply for registration under such names or from such places of residence, and the register is imposed upon and places their names upon the registration books as duly qualified voters, he is guilty of no offense.

6. CRIMINAL PRACTICE-ARRAIGNMENT AND PLEA.

Where a defendant was not arraigned and made no plea before the trial, but was identified, knew exactly the offense charged, denied the charge, went to trial on the denial, and went upon the witness stand and there denied the offense, and was convicted, held, that he was not entitled, under the federal statutes, to a new trial, because of the failure of the record to show an arraignment and plea, for the reason that the irregularity was a "defect or imperfection in matter of form only," within the meaning of section 1025, Rev. St. U. S., and did not tend to his prejudice.

7. SAME-EXPERT EVIDENCE.

The jury in a criminal case are not bound by expert evidence as to handwriting any further than it coincides with their own opinions, or than they think it deserves to be credited.

Indictment under Rev. St. U. S., § 5512, for fraudulent registration of voters in St. Louis, Missouri.

For Missouri statute relative to registration of voters in cities of over 1,000, see Sess. Laws Mo. 1883, p. 38.

There was no formal arraignment and plea.
Thomas P. Bashaw, for the United States.

Naplon & Frost, for defendant.

THAYER, J., (charging jury.) If the testimony in this case satisfies you beyond any reasonable doubt that this defendant was a deputy recorder of voters for the Twelfth ward of this city at the registration held last September, for the November election of the year 1886, and that as such recorder of voters, having the registration books in his custody, he "knowingly and willfully," and not merely through ignorance or inadvertence, entered therein, or caused to be entered in such books, the names of any of the persons named in this indictment, as though they were qualified and duly registered voters, when in point of fact such persons did not appear before him or apply for registration or take the oath required of voters, then you will find him guilty. You may infer that he was actuated by some evil or fraudulent motive, if he committed the act charged in this indictment "knowingly and willfully," and not merely through inadvertence or ignorance of his official duties. You may judge of the credibility of all of the witnesses, and give their testimony such weight as you think it deserves.

The testimony of the expert as to handwriting is simply an expression under oath of an opinion which he entertains, and you are not bound by it any further than it coincides with your own opinion based on the examination you have made of the handwriting in question, or than you think it deserves to be credited with on account of the experience he has had in comparing handwriting.

Now, on the other hand, you will give the defendant the full benefit of the presumption that he is an innocent man, and you will not convict him unless the government has proven the charge in the indictment beyond any fair or reasonable doubt; and even though you think that he wrote the names mentioned in the indictment, or caused some of them to be entered on the registration books, when the persons did not appear before him or take the oath, still you must not convict him if the