public safety to cause all persons "of neutral and equivocal characters" in respect to their attitude in the "present cruel war waged by the King and parliament of Great Britain" to come before them and swear allegiance to the State.

The act more effectually to prevent robberies within this State" (ch. 19, L. 1779) deals chiefly with the countenance and abetting that disloyal persons have given the robbers, and with punishing the former therefor. This law required any person robbed to report to the nearest justice of the peace. "And the said justice is required forthwith to cause hue and cry and command fresh pursuit." All able-bodied men were required to join, or for each offense of failure to forfeit £100. It was further provided that in case the robbers were not caught and the goods recovered, a tax on persons who in the judgment of the justice, supervisor and assessors had not manifested themselves attached to the liberty and independence of America" should be levied and the robbed paid out of the fund thus secured. The Constitution of the United States did not go into effect until 1789, and in the meantime and during the period embraced by these laws the States exercised, or by express enactments delegated, to the General Congress many of those powers which are now expressly forbidden to them by the Constitution of the United States. Accordingly we find chapter 31, Laws of 1778, "authorizing the United States in Congress assembled, to levy a duty on foreign merchandize imported into this State."

Chapter 1, Laws of 1784, is an act levying a tonnage duty on vessels for the purpose of building a light-house at Sandy Hook, a right exclusively exercised under the Constitution by the general government.

Chapter 10 of the same year is a tariff act, imposing a duty on many kinds of "goods, wares and merchandize" imported from foreign countries, prescribing the method of imspecting imports and collecting the imposts upon them. It contains the outline of the vast and complicated system of collecting duties of which onr general government at present makes use." Another act is for "emitting moneys upon the credit of the State." It provides for the issuing of bills to the amount of $411,250. Each bill was a promise to pay the possessor in Spanish milled dollars by December 31, 1786, with interest from June 15, 1780, in like money, at the rate of five per cent per annum, by the State of New York. Bills of this early issue are not

IN

rated requires deposits or license fees from companies incorporated in New York, and doing business in that State, greater in amount than the laws of New York require from foreign companies, such foreign company doing business in New York shall be required to pay to the New York superintendent of insurance an amount equal to the amount imposed by the law of such State upon companies incorporated in New York. A fire insurance company organized under the laws of Pennsylvania applied, in 1872, for admission to the State of New York, and received annual license from year to year. An action being brought to recover license fees for the year 1881 under the New York acts of 1865 and 1875, held, that a corporation created by a State being a mere creation of local law, and obtaining recognition in another State only upon the conditions imposed by it, and the license tax in question being a prerequisite to the admission of the defendant into New York, the defendant is not a "person within the jurisdiction" of New York with reference to the subject in controversy, and within the meaning of the fourteenth amendment to the United States Constitution, and cannot, by virtue thereof, question the constitutionality of the statute imposing the tax.

error to the Supreme Court of the State of New York.

Jos. H. Choate, for plaintiff in error.

D. O'Brien, for defendant in error.

BLATCHFORD, J. This is a writ of error to the Supreme Court of the State of New York. Under the provisions of section 1279 of the Code of Civil Procedure of New York, the people of the State of New York and the Fire Association of Philadelphia, a Pennsylvania corporation, being parties to a question in difference which might be the subject of an action, agreed upon a case containing a statement of the facts on which the controversy depended, and presented a written submission of it to the Supreme Court of New York, so that the controversy became an action. The material facts set forth in the case are these:

"The defendant, the Fire Association of Philadelphia, is a corporation created and organized in the year 1820, by and under the laws of the State of Pennsylvania, for the transaction of the business of fire insurance, and having its principal place of business in the city of Philadelphia. In the year 1872 it established an agency in the State of New York, which it has ever since maintained. No question is here raised but that it has uniformly complied with all the re

vate collections of such curiosities.

In addition to the above enactments, this volume of laws contains many of equal and perhaps greater interest to the antiquarian and historian.

OSWEGO, N. Y.

GEO T. CLARK.

CONSTITUTIONAL LAW-FOURTEENTH AMENDMENT-FOREIGN INSURANCE COMPANIES —LICENSES--NEW YORK STATUTES.

SUPREME COURT OF THE UNITED STATES, NOVEMBER 15, 1886.

FIRE ASS'N OF PHILADELPHIA V. PEOPLE OF THE STATE OF NEW YORK.

On April 4, 1873, an act was passed in Pennsylvania requiring foreign insurance companies doing business in that State to pay into the State treasury a tax of 3 per cent upon the premiums received by them in the State. By a New York statute of 1865 (Laws N. Y. 1865, ch. 694), as amended by an act of 1875 (Laws N. Y. 1875, ch. 60), it is provided that whenever the law of the State in which a foreign company doing business in New York is incorpo

this State upon fire insurance companies from other States establishing and maintaining agencies in this State, except the payment of the tax now in dispute, upon premiums received by it in 1881 upon risks located within the State of New York, and which is the subject of this controversy, and has received from year to year certificates of authority from the superintendent of the insurance department of this State as provided to be issued under the act, chapter 466 of the Laws of 1853, and the subsequent acts amendatory thereof.

"The act of the people of the State of New York, passed May 11, 1865, three-fifths being present, being chapter 694 of the Laws of 1865, entitled 'An act in relation to the deposits required to be made, and the taxes, fines, fees, and other charges payable by insurance companies of sister States,' as amended by the act of 1875, chapter 60, provides as follows, viz.: Whenever the existing or future laws of any other State of the United States shall require of insurance companies incorporated by or organized under the laws of this State, and having agencies in such other States, or of the agents thereof, any deposit of securities in such State for the protection of policy-holders

or otherwise, or any payment for taxes, fines, penalties, certificates of authority, license fees, or otherwise, greater than the amount required for such purposes from similar companies of other States by the then existing laws of this State, then, and in every such case, all companies of such States establishing, or having heretofore established, an agency or agencies in the State, shall be, and are hereby required to make the same deposit for a like purpose in the insurance department of the State, and to pay the superintendent of said department, for taxes, fines, penalties, certificates of authority, license fees, and otherwise, an amount equal to the amount of such charges and payments imposed by the laws of such State upon the companies of this State, and the agents thereof; and the superintendent of the insurance department is hereby authorized to remit any of the fees and charges which he is required to collect by existing laws, except such as he is required to collect under and by virtue of this act; provided however that no discrimination shall be made in favor of one company over any other from the same State.'

"The State of Pennsylvania, by an act passed April 4, 1873, and ever since in force, enacted as follows, viz. Section 10. No person shall act as agent or solicitor in this State of any insurance company of another State, or foreign government, in any manner whatever, relating to risks, until the provisions of this act have been complied with on the part of the company or association, and there has been granted to said company or association, by the commissioner, a certificate of authority showing that the company or association is authorized to transact business in this State; and it shall be the duty of every such company or association, authorized to transact business in this State, to make report to the commissioner, in the month of January of each year, under oath of the president or secretary thereof, showing the entire amount of premiums of every character and description received by said company or association in this State, during the year or fraction of a year ending with the 31st day of December preceding, whether said premiums were received in money or in the form of notes, credits, or any other substitute for money, and pay into the State treasury a tax of three per centum upon said premiums; and the commissioner shall not have power to grant a renewal of the certificate of said company or association until the tax aforesaid is paid into the State treasury.''

In the year 1881, the defendant, through its authorized agents in the State of New York, received for insurance against loss or injury by fire, upon property located within the State of New York, premiums to the aggregate amount of $196,170.22. The superintendent of the insurance department of New York claimed that the defendant ought to pay, as a tax, for the year 1881, $1,848.45, with proper interest, being the amount arrived at by deducting from $5,885.10 (which would be a tax of 3 per cent on $196,170.22) the sum of $4,036.65, which the defeudant, as a Pennsylvania corporation, had paid as a tax on premiums, during 1881, under laws of New York in force in 1881, other than the act of 1865, as amended by the act of 1875. The case then states that "the controversy between the parties is as to whether the defendant is liable to pay any tax to the superintendent of the insurance department of the State upon the said premiums received by it in the year 1881, and if any, what amount; " that "the defendant claims that it is not liable to the plaintiffs for any amount, insisting, first, that the said act of 1865, as amended by the act of 1875, is unconstitutional and void, and not a legitimate exercise of legislative power," and making further claims as to the amount due from it if the act in question is valid; that "the question submitted to the court for decision

upon the foregoing statement of facts is whether the defendant is liable to pay to the plaintiffs, or to the superintendent, the whole or any, and if any what part, of the" $1,848.45; and that judgment is to be entered according to its decision.

The agreed case having been heard by the Supreme Court in General Term, as required by law, it rendered a judgment to the effect that the defendant was not liable to pay any part of such amount claimed by the superintendent. Two of the three judges holding the court concurred in that judgment. The third dis sented. The opinions of the majority and minority accompany the record. The majority held that the statutes of New York in question were void because in conflict with the Constitution of New York, and did not discuss any question arising under the Constitution of the United States. The dissenting judge differed with the majority as to the question adjudged by them, and further raid: "Nor can I agree with the claim that this statute is contrary to the fourteenth amendment to the Constitution of the United States."

The plaintiffs having appealed to the Court of Appeals of New York, that court reversed the judgment of the Supreme Court, and rendered judgment for the plaintiffs for $1,848.45, with interest and costs, and remitted the record to the Supreme Court, where a judgment to that effect was entered, to review which the defendant has brought a writ of error. The Court of Appeals, in its decision (92 N. Y. 311), after overruling the view taken by the majority of the judges of the Supreme Court as to the validity of the statute under the Constitution of New York, proceeds to consider its constitutionality under that clause of the fourteenth amendment to the Federal Constitution which commands that no State shall "deny to any person within its jurisdiction the equal protection of the laws." It holds that that clause has no application to the rights of the defendant, because being a foreign corporation, it was not within the jurisdiction of New York until it was admitted by the State upon a compliance with the conditions, of admission which the State imposed and had the right to impose.

The defendant claims here the benefit of the fourteenth amendment, and a question has occurred as to whether the record presents that point for our review. There being no pleadings, the obvious place to look for the claim would be the agreed statement of facts. But all that is there said is that the defendant insists that the statute is "unconstitutional and void. and not a legitimate exercise of legislative power." The question was considered, in both the Supreme Court and the Court of Appeals, as to the validity of the statute under the Constitution of New York, as being a law made to depend for its operation on the legislation of a foreign State, and thus an illegitimate exercise of legislative power. This contention is fairly within the words of the agreed statement, and if it depended wholly on that statement to determine whether the record raises a Federal question, some doubt might exist. But in view of what was said in Murdock v. Memphis, 20 Wall. 590, 633; in Gross v. United States Mortg. Co., 108 U. S. 477; and in Adams Co. v. Burlington & M. R. Co., 112 id. 123, we think that we are at liberty to look into the opinion of the Court of Appeals, a copy of which, duly authenticated by the proper officer, is transmitted to us with the record, in compliance with our eighth rule, for the purpose of aiding in determining what was decided by that court. From that opinion it appears that the court not only decided against the defendant all the questions other than Federal which were raised, including two under the Constitution of New York, but also decided against it the Federal question referred

to.

If the court had decided in its favor any one of the other questions which went to the whole cause of action, there would have been no, necessity for considering the Federal question. But as it was, the decision of that question became necessary to the disposition of the case, and was fully considered, not sua sponte, but as a point presented by the defendant.

The provision of the fourteenth amendment, which went into effect in July, 1868, is that no State shall "deny to any person within its jurisdiction the equal protection of the laws." The first question which arises is whether this corporation was a person within the jurisdiction of the State of New York with reference to the subject of controversy, and within the meaning of the amendment.

The defendant, on the assumption, that if it was within the jurisdiction of the State of New York, it was, though a foreign corporation, a "person," and so entitled to the benefit of the amendment, contends that it was within such jurisdiction. The argument is that it established an agency within the State in 1872, which it had ever since maintained; that it complied, from year to year, with all the requirements and conditions imposed by the laws of the State on foreign fire insurance companies doing business in the State; that it received from year to year certificates of authority from the superintendent of the insurance department, as provided by statute; that under those circumstances, it was legally within the State and within its jurisdiction; that being in the State, by permission of the State, continuously from 1872 to 1882, the State imposed on it, while there, in 1882, an unequal and unlawful burden; and that the New York act of 1865 did not come into effect as to Pennsylvania corporations until the Pennsylvania act of 1873 was passed, at which time the defendant had already been a year in the State.

But we are unable to take that view of the case. In Paul v. Virginia, 8 Wall. 168, at December Term, 1868, a statute of Virginia required that every insurance company not incorporated by Virginia should, as a 'condition of carrying on business in Virginia, deposit securities with the State treasurer, and afterward obtain a license; and another statute made it a penal offense for a person to act in Virginia as agent for an insurance company not incorporated by Virginia without such license. A person having acted as such agent without a license, and been convicted and fined under the statute, this court held that there had been no violation of that clause of article 4, section 2, of the the Constitution of the United States, which provides that "the citizens of each State shall be entitled to all privileges and immunities of citizens in the several States;" nor any violation of the clause in article 1, section 8, giving power to Congress "to regulate commerce with foreign nations and among the several States." The view announced was that corporations are not citizens within the clause first cited, on the ground that the privileges and immunities secured to the citizens of each State, in the several States, are those which are common to the citizens of the latter States, under their Constitutions and laws, by virtue of their being citizens; and that as a corporation created by a State is a mere creation of local law, even the recognition of its existence by other States, and the enforcement of its contracts made therein, depend purely on the comity of those States, a comity which is never extended where the existence of the corporation or the exercise of its powers is "prejudicial to their interests or repugnant to their policy." And the court, speaking by Mr. Justice Field, said: "Having no absolute right of recognition in other States, but depending for such recoguition and the enforcement of its contracts upon their assent, it follows, as a matter of course, that such assent may be granted

upon such terms and conditions as those States may think proper to impose. They may exclude the foreign corporation entirely, they may restrict its business to particular localities, or they may exact such security for the performance of its contracts with their citizens as in their judgment will best promote the public interest. The whole matter rests in their discretion." As to the power of Congress to regulate commerce among the several States, the court said, that while the power conferred included commerce carried on by corporations as well as that carried on by individuals, “issuing a policy of insurance is not a transaction of commerce." This decision only followed the principles laid down in the earlier cases of Bank of Augusta v. Earle, 13 Pet. 519, 588, and Lafayette Ins Co. v. French, 18 How. 404.

The same rulings were followed in Ducat v. Chicago, 10 Wall. 410, where it was said that the power of a State to discriminate between her own corporations and those of other States desirous of transacting business within her jurisdiction being clearly established, it belonged to the State to determine as to the nature or degree of discrimination, "subject only to such limitations on her sovereignty as may be found in the fundamental law of the Union." Other cases to the same effect are Liverpool Ins. Co. v. Massachusetts, 10 Wall. 566; Coyle v. Continental Ins. Co., 94 U. S. 535; and Cooper Manf'g Co. v. Ferguson, 113 id. 727; S. C., 5 Sup. Ct. Rep. 739.

As early as 1853, the State of New York, by a statute (ch. 466), required of every fire insurance company incorporated by any other State or any foreign government, as a prerequisite to doing business in the State, that it should file an appointment of an attorney on whom process was to be served, and a statement of its pecuniary condition, and procure from a designated public officer a certificate of authority stating that the company had complied with all the requisitions of the statute; and also required the renewal, from year to year, of the statement and evidence of investments and provided that such public officer, on being satisfied that the capital of the company and its securities and investments remained secure, should furnish a renewal of the certificate of authority. A violation of the provisions was made a penal offense. This act, with immaterial amendments, is still in force.

This Pennsylvania corporation came into the State of New York to do business, by the consent of the State, under this act of 1853, with a license granted for a year, and has received such license annually, to run for a year. It is within the State for any given year under such license, and subject to the conditions prescribed by statute. The State having the power to exclude entirely, has the power to change the conditions of admission at any time for the future, and to impose as a condition the payment of a new tax, or a further tax, as a license fee. If it imposes such license fee as a prerequisite for the future, the foreign corporation, until it pays such license fee, is not admitted within the State, or within its jurisdiction. It is outside, at the threshold, seeking admission, with consent not yet given. The act of 1865 had been passed when the corporation first established an agency in the State. The amendment of 1875 changed the act of 1865 only by giving to the superintendent the power of remitting the fees and charges required to be collected by then existing laws. Therefore the corporation was at all times after 1872 subject, as a prerequisite to its power to do business in New York, to the same license fee its own State might thereafter impose on New York companies doing business in Pennsylvania. By going into the State of New York in 1872, it assented to such prerequisite as a condition of its admission within the jurisdiction of New York. It could not be of right within such jurisdiction until it should re

ceive the consent of the State to its entrance therein under the new provisions, and such consent could not be given until the tax, as a license fee for the future, should be paid.

Ruchizky v. De Haven, 97 Penn. St. 202. A bond given to cover margins in a gambling transaction will not be enforced in favor of an assignee, unless the obligor precluded defense by stating that he had none, to the assignee, before his purchase from the obligee. Grif

Judgment affirmed.

Harlan, J., dissenting.

GAMING MONEY LENT FOR ILLEGAL STOCK

JOBBING.

PENNSYLVANIA SUPREME COURT, NOV. 1, 1886.

WAUGH V. BECK.

Money lent and applied by the borrower for the express purpose of settling losses on illegal stock-jobbing transactions, to which the lender was no party, cannot be recovered back; but the mere fact that a lender of money knew that it was to be used for gambling in oil is not sufficient to defeat a recovery, unless he confederated with the borrower for its unlawful use.

ERROR to Common Pleas, Mercer county. Feigned

issue to try whether notes on which judgments were based, were given as part of a gambling transaction. Verdict and judgment for defendant.

S. Griffith & Son and E. P. Gillespie, for plaintiff in

error.

Mason & Mason, for defendant in error.

TRUNKEY, J. In England wagers were not unlawful or unenforceable at common law, and therefore some of the decisions in that country upon wagering contracts are inapplicable where such contracts are unlawful.

It has never been held in the highest tribunals of Pennsylvania that a wager is recoverable, and from 1803 the uniform consent of authority is to the cou. trary. Every species of gaming contract, whether of insurance by a valued policy where the insured has no interest, or a bet on the existence of a letter, or the purchase of stocks or other commodities without the intention to deliver or receive them, is reprobated by our law. Pritchet v. Ins. Co., 3 Yeates, 458; Edgdell v. McLaughlin, 6 Whart. 176; Brua's Appeal, 55 Penn. St. 294. In the latter case, Thompson, C. J., remarked: "Any thing 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, and demoralizing to the community. All gambling is immoral."

A transaction in stocks by way of margin, settlement of differences, and payment of gain or loss, without intending to deliver stocks, is a mere wager. Maxton v. Gheen, 75 Penn. St. 166. It is a gambling or wagering operation which the law does not sanction, and will not carry into effect. And a broker who advances money to pay losses incurred in such operations cannot recover the amount advanced, nor even his commissions for his services. Fareira v. Gabell, 89 Penn. St. 89; Dickson's Ex'rs v. Thomas, 97 id. 278. Where an infant dealt in stocks or margins through brokers who did not know he was an infant until the losses amouuted to more than $5,000, which he had paid them, it was held that he dealt with the brokers as principals, and could recover back the whole amount he had deposited with them as margins.

hibited by statute, a wagering or gambling transaction in stocks, grain, oil, or other commodities, is unlawful in this State. A gambling agreement, being in violation of the law and in the nature of a public wrong, has no legal effect. The law forbids it on the ground that it is demoralizing to the community. In an issue which involves inquiry whether such wrong was agreed to be committed, and was committed, it is as fitting to call it a gambling transaction as if it were so declared by statute.

The jury have found that the plaintiff furnished the money, that is, the consideration of the notes, for the benefit of the defendant, but knowingly, and with the purpose of furthering a gambling transaction. No question has been made as to what commodity was the subject of the transaction, or whether the money was used for the purpose of gambling. It would be well that the record show a finding of what the transaction was; not only that it appear whether it was a violation of a statute, or of the common law, but also that it may appear whether the act was a public wrong. If a statute prohibit an act, it is not necessary, in order to invalidate a contract to do the act, that the statute should provide a penalty; nor does it follow, because the statute imposes a penalty on a particular act, that such act is illegal. Whart. Cont., §§ 363, 364. The issue should be so framed that the verdict will show the character of the transaction or agreement.

As a general rule, money loaned for the specific purpose that it shall be used by the borrower to do an act in violation of law, and has been so used, cannot be recovered back by the lender. It is not enough to defeat recovery by the lender, that he knew of the borrower's intention to illegally appropriate the loan; he must know that the borrower is purposing the specific illegal use, and must be implicated as a confederate in the transaction. Whart. Cont. 341, 343. "Where stock-jobbing is illegal, money lent for the purpose of carrying it on cannot be recovered, supposing it was lent knowingly, and with the purpose of furthering the illegal act." Whart. Cont. 453. Money lent and applied by the borrower for the express purpose of settling losses on illegal stock-jobbing transactions, to which the lender was no party, cannot be recovered back. It being unlawful for one man to pay, it cannot be lawful for another to furnish him the means of paying. This is said of a case where the means were furnished with a full knowledge of the object to which they were to be applied, and for the express purpose of accomplishing that object. Cannan v. Bryce, 3 Barn. & Ald. 179. That case arose out of the violation of a statute, founded on public policy, to prevent stock-jobbing; and it prohibits payment or receipt of money for satisfying or making up any difference under penalty of £100. Where the plaintiff, while engaged with the defendant and others in gaming and playing at cards for money, lent the defendant a sum of money for the purpose of enabling the defendant to engage and continue in the gaming, it was held that the loan was an illegal contract, and that the money could not be recovered. The law which prohibits the end will not lend its aid in promoting the means designed to carry it into effect. That which the law prohibits, either in terms or by affixing a penalty to it, is unlawful, and it will not promote in one form that which it declares wrong in another. White v. Buss, 3 Cush. 448.

The cases of Cannan v. Bryce and White v. Buss were cases where the acts were violation of statutes.

But the principle is not limited in its application to su h. It applies in many cases where the acts are illegal solely on the ground of public policy. A boud given in consideration of the loan of money with which to put a substitute in the Confederate army cannot be enforced. Critcher v. Holloway, 64 N. C. 526. A note given for money knowingly lent to be applied to the purpose of suppressing a prosecution for a crime is illegal. Plumer v. Smith, 5 N. H. 553. Whether such offenses are forbidden or punished by statute or not, money advanced for the purpose of furthering their commission, and so used, cannot be recovered.

At the argument the case of Third Nat. Bank, 10 Fed. Rep. 243, was cited as favoring the position that the rule that money, lent knowingly and for the purpose of furthering an illegal act, cannot be recovered, applies to acts contrary to statute law, and not those contrary to the law founded on public policy. That case was upon promissory notes, the plaintiff claiming to be an innocent holder for value. The notes were given for balances on an illegal agreement, unenforceable between the original parties; but it was not within the gaming statute of Missouri, which destroys the negotiable character of a note given for a gaming consideration, within the terms of that statute, for it pronounces a gaming contract absolutely void; and it was held that an innocent holder for value could recover. In the opinion it is said that the great weight of authority supports the rule that a broker or agent employed to buy or sell commodities for the purpose of speculating on the rise and fall of prices merely, and purchasing in his own name, but on his principal's account, and after losses have occurred in such transactions, advancing money, at his principal's request, to pay such losses; or if he pays such losses, and afterward his principal gives him a note therefor, may recover against his principal the advances so made, or the note so executed, notwithstanding the illegal character of the original venture. Whether such be the rule in this State need not be considered. But it is further remarked: "If a broker or factor supply his principal with funds for the express purpose of enabling him to engage in illegal transactions, and if he (the agent) conducts the illegal venture in his own name, it seems clear that he becomes a particeps criminis, aud the law will not aid him to recover moneys advanced for such purpose, nor will it enforce securities taken therefor."

And this makes near approach to the controlling principle and facts as alleged in the case before us.

Where a man lends money to another for the express purpose of enabling him to commit a specific unlawful act, and such act be afterward committed by means of the aid so received, the lender is a particeps criminis.

The instructions, of the learned judge of the Common Pleas were, in the main, correct, and in accord with the views herein before stated. There was no dispute as to the use made of the money. The gist of the controversy was whether the plaintiff confederated with the defendant for its unlawful use. The court referred to the cases of felony and misdemeanor, stating what would make an accomplice in one, and a principal in the other, to enable the jury to understand that there must have been an agreement that the plaintiff would furnish for the defendant's benefit, $500 for the defined purpose of buying oil for the defendant's benefit, and for the further defined purpose that that purchase should be upon margins, in order to defeat the plaintiff's recovery. There was no error in that. The third assignment is not sustained. The plaintiff's second point was: "That if the jury believe, from the evidence, that the plaintiff loaned the money which formed the consideration of the notes

for the benefit of the defendant, and although he knew the money was to be used in buying oil on margins, still the plaintiff can recover. Answer. Simple knowledge by the lender of money that the borrower was likely to or was going to use it in gambling might not be enough to prevent a recovery of the money loaned; but if the plaintiff paid the money to Mr. Lamberton, the oil broker, in accordance with an arrangement made between himself and Mr. Comell, and if he knew this money was going to be used on margins, he could not recover. Therefore so far as this case is concerned, the request is refused."

The general charge concluded as follows: "The burden of proof in this issue is upon the defendant. It is for him to show, by the weight of the evidence, that Judge Waugh knew that this was being used for the purchase of oil upon margins. You will take all the evidence in the case, and conclude whether he did know that fact."

The plaintiff's second point omitted reference to the allegation that he furnished the money for the purpose of purchasing oil on margins, although there was evidence from which the jury could find that fact. If they believed all that was assumed in the point, it did not follow that the verdict should be for the plaintiff. It was rightly refused. The jury might find the facts assumed, and also find that the plaintiff gave the money for the purpose of being used to speculate in the rise and fall in the price of oil; that is, to purchase oil upon margins. Then the money having been so used, the verdict should be for the defendant. But the point simply referred to the plaintiff's knowledge of the borrower's purpose. The answer was explicit, that if the plaintiff knew of the defendant's intention to purchase oil upon margins, he could not recover. And the same thought was expressed in the closing part of the charge. That we think was error. While proper instruction was embodied in the remarks respecting a felony or misdemeanor, it is by no means clear that the jury would not understand that they could infer the purpose from the mere fact of knowledge. The fourth and fifth assignments of error are sustained. Judgment reversed, and venire facias de novo awarded.

NEGLIGENCE - EVIDENCE-DUTY OF INNKEEPER.

HOUSE OF LORDS, MARCH 26, 1886.

WALKER V. MIDLAND RAILWAY CO.*

A guest at an inn, the property of the respondent company, left his bedroom in the middle of the night to go to a water-closet. There were properly lighted and easily accessible closets in the same corridor, but he went to the dark"service room,' "the door of which was shut, but not locked, and fell down the unguarded well of a lift at the end of the room, and was killed. The "service room" was not lighted or used at night, and visitors had no business there at any time. In an action brought by the personal representatives of the deceased, held, that there was no evidence of negligence on the part of the respondents to go to a jury.

was an appeal from a judgment of the Court of Appeal (Fry, L. J., dissenting), which had affirmed a judgment of the Queen's Bench Division. The action was brought under Lord Campbell's act, by the appellants, as the personal representatives of a Mr. Smith, who was killed by a fall at the Midland Hotel, St. Pancras, in May, 1883, under circumstances which appear fully in the judgment of the Earl of Selborne.

*55 L. T. Rep. (N.S.) 489.