The news & observer. [volume] (Raleigh, N.C.) 1894-current, 1905-03-14

drawn bills, but in every instance the
grand juries have been unable to Sc
cure the necessary evidence upon
which to find true bills, for the reason
that witnesses when summoned to APP
pear before the grand jury have de-
clined to testify, claiming their consti-
tutional privilege THAT no person
shall be compelled in any criminal
case to be a witness against him
self" 1t has been impossible to pro-
cure other testimony, and it can be
readily seen why this should be so.
The knowledge of these speculations
is generally confined to the managers
of the bucket shops or exchanges and
the parties specializing. / recall the
publication in the Charlotte papers
last year of the attempt of Solicitor
Webb to procure indictments against
the managerS of these establishments
in Charlotte. His report to the pres1d-
ing Judge of his inability to procure
the testimony was based upon the re-
fusal of the witnesses to testify, they
claimed their constitutional protee-
ton; hence Section of the new act,
which provides, THAT no person shall
be excused on any prosecution under
chapter 221 of the Public Law of 1889,
and the amendment there to from tes-
tifying touching anything done by
himself or others contrary to the pro-
visions of said act and the amend
ment; but no such discovery made by
the witness upon such examination
shall be altogether pardoned of the
offence so done or participated in by
him." was inserted to remedy this de-
feet of the act of SO. This section is
a copy of section 1915 of the Code,
which was construed by the Supreme
court in the case in re Briggs, 135 n.
c., page 118. In this case one Morgan
q. lrx~O to- IN fVaNp
house Briggs was summoned as
witness for the State, refused to tes-
tify, claiming his constitutional priv
ilege. The judge presiding required
the witness to testify; he appealed and
the Supreme court affirmed the judg-
ment. The witness was required to
testify and the defendant was convict
ed. This section is vital part of the
new bill.
The law upon the subject of specu-
lating in futures has been clearly de-
fined by the Supreme court of the
United States in several cases. The
doctrine laid down in these cases has
been followed by the courts of the
Union.
In the case of Erwin VS.. Williar, Ito
II. S. Reports at page sos, the court
says: 1.-THE generally accepted doc
trines in this country is, as stated by
Il.
sale of goods to be delivered at a flu
ture day is valid, even though the
seller has not the goods, nor any other
means of getting them than to go in
to the market and buy them; but
such a contract is only valid when the
parties really intend and agree that
the goods are to be delivered by the
seller and the price to be paid by the
buyer; and if under guise of such q
contract the real intent be merely to
speculate in the rise and fall of prices
and goods are not to be delivered, but
one party is to pay to the other the
difference between the contract price
and the market price of the goods at
The date fixed for executing the con-
tract, then the whole transaction con-
stitutes nothing more than wager
and is null and void.
In England it is held that contracts
although wagers, were not voio at
common law, and that the statute does
not make them illegal, but only nom
enforceable, while generally in this
country wagering contracts are held
to be illegal and void against public
policy 1t makes on difference that
bet or a wager is made to assume the
form of contract gambling is none
the less such because it is carried on
in the form or guise of legitimate
trade" The rule in this case distin
gushing between legal and illegal con-
tracts has been approved in the case
of Embrey VS.. Immersion, 13l U. 3,
page 341 Pierce VS.. Rice, 142 u. S.,
page 28.. Bibb VS.. Allen, 149 u. S., at
page 4S1 The Supreme court of
North Carolina, Williams VS.. Carr, so
N. c., page 29S, Chief Justice Smith
delivering the opinion of the court,
says: "In Biglow VS.. Benedict, 70
New York, at page 202, the court say.
Contracts of this kind may be mere
DISCUSSES for gambling, and where an
optional contract for the sale of prom
erty is made and there is no intention
on one side to sell or deliver the prop
erty, or on the other to buy or take
it, but merely that the difference
should be paid according to the fiuc-
tuation in the market values the con-
tract would be a wager within the
statute. And again the form of
contract of sale may be resorted to as
a mere cover for betting on the future
price of the commodity agreed to be
sold, and if this is the real meaning
of the transaction and no actual sale
or purchase is intended, the contract
is illegal and will not be enforced In
our opinion this is a correct statement
of the law for determining the valid
ity of the contract. Now while it is
true the form of the contract may
between the parties to it, that the pay
ment of differences in price, as the
case may be, on the day of delivery,
shall discharge the obligation. Such
understanding, if found to exist, would
render it illegal as q wagering con-
tract"
The court also in Erwin VS., Will
liar, ITO u. S., at page $40, in dis
cussing the question as to whether the
broker or manager of the bucket
shops, or so called exchange, could
recover for money advanced to par
ty engaged in speculation say: 1T
is certainly true that the broker might
negotiate such contract without be-
ing privy to the illegal intent of the
principal party to it, which renders it
void, in such a case. being innocent
of any violation of the law, and not
suing to enforce an unlawful contract,
has a meritorious ground for the re-
covery of compensations for services
and advances. But we are also of the