properly filled, as follows: "Mr.

: In consideration of $

re

received,

ceived, can buy of the undersigned, if called for before the stocks sells, per cent. below, or 5 per cent. above, contract price, shares, at E. W. TODD." And in case of a sale a kindred document, with the necessary changes, as follows: "Mr.: In consideration of $can sell to the undersigned, if delivered before the stock sells, per cent. above, or 5 per cent. below, contract price, shares, at E. W. TODD." The blank before the words "per cent." was filled in to correspond exactly with the sum deposited by the customer, which was generally 1 per cent. If the advance or decline were in favor of or against him, the transaction was closed, either by the exhaustion of his margin, unless he enlarged his deposit, or the payment to him of the advance. It was not a part of the scheme to deliver the stock, but to settle the difference which was caused by the fluctuation in value or price as indicated by the quotations mentioned. These contracts, as stated by the learned trial judge, were not illegal per se, but might be, if used and so intended as a mere disguise for gambling; for the reason that where an optional contract for the sale of property is made, and there is no intention on the one side to sell or deliver it, or on the other to buy or take it, but merely that the difference should be paid according to the fluctuation in market values, the contract would be a wager, within the statute. Bigelow v. Benedict, 70 N. Y. 202; Story v. Salomon, 71 N. Y. 420; Harris v. Tunbridge, 83 N. Y. 92. But it does not follow that a wager, as a contract, constitutes a crime under chapter 9 of the Penal Code, or becomes a criminal offense under its provisions, and punishable as such.

The question here presented is distinctly whether the transactions mentioned are within these provisions. The appellant's place of business is an open market, and so arranged that his customers can see the quotations, which are recorded on a blackboard, and are correct statments of dealings recorded in the Stock Exchange, and by which, if any dispute arise, it is to be settled. There is nothing dependent upon chance or device which the appellant can influence or control, so far as the record develops the modus operandi; and the difference, therefore, between his transactions and those of the Stock Exchange, consists in settling by fluctuations, without a purchase or sale of the stock. Assuming that it was not the intention of the customer or the appellant to buy or sell the stock embraced in the transaction consummated, and that the contract was one of wager, and not binding, nevertheless it was not included in the category furnished by chapter 9 of the Penal Code entitled "Gaming." The first section (336) relating to the subject under consideration declares it unlawful to keep or use any table, cards, dice, or other apparatus commonly used in playing any game, etc. Section 337 makes the violation of section 336 a misdemeanor, and section 338 makes the keeping of any article or apparatus in violation of section 336 a public nuisance. Section 339 declares it a misdemeanor to win by fraud while playing at any game; and section 340 provides that any person exacting anything won by cards, or any other game of chance, or any bet upon the hands or sides of the players, shall forfeit five times the value thereof. Section 341 provides that "a person who wins or loses at play, or by betting at any time," the sum of $25 or upwards, within 24 hours, is punishable by a fine of five times the value or sum so lost or won, to be recovered in a civil action, and section 342 provides for the attendance and privilege of witnesses. These sections, separately and collectively, relate to games eo nomine,-games of chance played, and by cards, dice, or faro, or any other games of chance, wholly fortuitous, and not connected in any way other than with the factors of the game itself, and illegal per se, without reference to the intention; an absolute hazard, not dependent upon legitimate fluctuations in legal business modes, and necessarily embracing only the playing of games of chance as such, with table, cards, dice, or other articles or apparatus, and the keeping of the same for such games of chance.

It is quite manifest that these various provisions were intended to prevent gambling, in the ordinary acceptation of that term, by cards, dice, or other symbols of chance or hazard, and in places more or less private or secluded, and which in itself, without reference to any other element, was malum prohibitum and malum in se. And section 343, which is as follows: "A person who keeps a room, shed, tenement, tent, booth, building, float, or vessel, or any part thereof, to be used for gambling, or for any purpose or in any manner forbidden by this chapter, or being the owner or agent, knowingly lets or permits the same to be so used, is guilty of a misdemeanor,”. -was designed to punish for keeping a place where any of those games might be played,— a place were any prohibited contrivance could be used or practiced. The word "gambling" occurs in this section for the first time, and is undoubtedly intended to relate to the games prohibited in the preceding sections, and to embrace them only. This is the more apparent from the language of the section, "to be used for gambling, or for any purpose or in any manner forbidden by this chapter;" that is, to be used for gambling forbidden by this chapter, or to be used for any purpose forbidden by this chapter. The proper construction of this section leads to this result. The object in view was to prevent the use of any place for playing or practicing any one of the prohibited games or devices or hazards or chances designated or fairly embraced within the purview of the statute. There is no intention manifest of including all matters of hazard, which might involve many legal transactions by forced construction. There is an element of chance, of speculation, in all purchases which, in the main, are made for gain, and in which there may be either loss or profit to the parties, and perhaps both, for the seller may lose by selling too low, and the purchaser profit by a good bargain. It must be observed, also, that the language employed consists of words of general import, and designed to cover beyond peradventure all the prohibited games,-a species of recapitulation in general terms. And, when particular words are followed by general ones, the latter are held to apply to persons and things of the same kind as those which precede. Potter's Dwar. St. 236; Sedg. St. & Const. Law, 425. The accuracy of this interpretation is enforced by the provisions of some of the remaining sections. Section 344, for example, declares what a common gambler is, and the three following sections provide for the seizure of articles suitable for gambling, specifying cards, dice, etc.; and section 348 provides that a person who persuades another to visit any building used for the purpose of gambling, in consequence of which such person gambles therein, is guilty of a misdemeanor, and in addition thereto is made liable to such person for the money lost at play. It will have been observed that the sections relating to the destruction of gambling devices specify cards, dice, etc.,—thus indicating what is meant by the word "gambling;" and that, by the last section mentioned, the word is again inferentially defined by providing for the recovery of money lost at play. Sections 349, 350, and 351 have no application to the question discussed, and contain no provisions the consideration of which will aid in the solution of the question in hand. The Penal Code in reference to gaming is substantially a re-enactment of the provisions of the Revised Statutes, (see notes to section in Donnan's Annotated Code,) and which were chiefly enacted before the introduction of many of the stratagems, devices and symbols which are now in use, and are the off-spring of inventions similar to the quotation indicator; thus illustrating what is maintained by some philosophers, with cogent reason, that immorality and crime keep pace with intellectual development, and travel hand in hand with science and progress, with civilization, which enlightens for good, and for evil as well. However this may be, the result of the examination of the statute upon which the appellant was convicted is that it was aimed at all games of chance, and lotteries, and betting on horse-racing and elections, but not against the transactions which distinguish the appellant's as one in the field of strategy, if not

of games. If the question were only whether the contracts made by the appellant were gambling transactions, there could be no doubt of the propriety of the judgment rendered herein, inasmuch as the evidence warrants the finding that they were mere disguises for gambling. Cases, supra. And the appellant's place of business would be one kept for that purpose, but the appellant was indicted under one of a series of sections relating to the subject of gaming, and designed to cover the methods, devices, and hazards then in the legislative mind, and of which the transactions of the appellant form, it would seem, no part. He was held under one of the sections which relate to the subject expressed in and covered by them, and that section must be interpreted by its relation to the whole context. The gambling inveighed against was such as the ordinary acceptation of that term included, unless otherwise expressed or particularized. The words of a statute are to be taken in their ordinary and familiar signification and import, and regard is to be had to their general use, and the intent is not to be collected from any particular expression, but from the whole act. Potter's Dwar. St. 193. Statutes are to be read according to the natural and obvious import of their language. Sedg. St. 260; Waller v. Harris, 20 Wend. 555-557; Martin v. Hunter, 1 Wheat. 326; Clark v. City of Utica, 18 Barb. 451. It is correctly insisted on this subject that the word "gamble" is a derivative of the word "gamen," from the Anglo-Saxon "gamen," which means to play; and, accordingly, the word "game" is defined by Webster "to play for a stake or purse; to use cards, dice, billiards, or other instruments, according to certain rules, with a view to win money or other thing waged upon the issue of the contest;" "to practice playing for money, or some other stake;" and Worcester defines it to be "to play at any sport, especially to play for money, or any other stake;" and Bouvier declares gambling to be “a contract between two or more persons by which they agree to play by certain rules at cards, dice, or other contrivance, and that one shall be the loser and the other the winner." Here there was no contest to be decided,-no game eo nomine to be played. The result was to be determined by such fluctuations in the legal disposition of securities as marked their value, or their price, by sale or purchase, at the Stock Exchange, and the hazard was dependent, therefore, upon such lawful transactions as might occur in regard to the stock. We are not called upon to do more than to say whether the appellant was lawfully convicted, under section 343 of the Penal Code, and that must be answered by the interpretation of that section as it stands, without reference to any other statute or rule of law embracing such a crime, if any exist. The examination of the subject leads to the conclusion, however unfortunate that may be for the community, and however much it must be regretted, that the conviction was wrong, and that it cannot, therefore, be sustained.

There can be no doubt of the objectionable, demoralizing nature of the appellant's business. It cannot be other than just such traps for the unwary as the legislature hoped to prevent, but which has failed in so doing in consequence of the ingenuity displayed in the method adopted to frustrate such design. But it is not beyond the reach of that body yet, and it is to be hoped that prompt action will be taken to overcome the evil, and to punish the offender by proper and comprehensive enactments. It is true that devices beyond the sphere of any statute may be employed, but they can be met and crushed by further legislation. Many subjects have required a multitude of statutes in England and in this country to root out the wrong inveighed against, and the result has been a success. The transgressor may have short intervals under such a system, but the day of punishment will come at last. Judgment reversed, and new trial ordered.

VAN BRUNT, P. J., and DANIELS, J., concur in the result.

CAMPBELL v. ARBUCKLE.

(Supreme Court, General Term, First Department. January 28, 1889.) 1. BREACH OF PROMISE OF MARRIAGE-EVIDENCE-SUFFICIENCY.

In an action for breach of promise of marriage, where it appears that defendant made no effort to carry out his promise, that all his letters to plaintiff ignored the existence of any engagement, and that he made no answer to her requests to name the day for their marriage, a refusal to comply with his promise is sufficiently shown.

2. SAME-INSTRUCTIONS.

Though defendant, in answering plaintiff's letters requesting him to fix the wed ding day, referred frequently to his ill health, but did not give it as a reason for delaying the marriage, it is not error to refuse to charge that if defendant was not well, and it was arranged that the marriage should be deferred until his health should be restored, plaintiff, to recover, must show that his health had been restored, and that he subsequently broke the engagement, or had previously absolutely declined to marry plaintiff.

3. SAME-DAMAGES-IMPROPER PROPOSALS.

An instruction that if the jury believe a letter written by defendant to plaintiff contained a proposal to become his mistress instead of his wife, they might take that fact into consideration as bearing upon the damages, if they awarded any, is proper; the letter, which was written during the engagement, being capable of that construction.1

4. SAME-HOW ESTIMATED-DISCRETION OF JURY.

In such case it is proper to charge that if the jury find for plaintiff she is entitled to recover such damages as they may award, and that the amount is discretionary with them, provided only that their conduct should not be marked by prejudice, passion, or corruption; the jury being also charged that they should be bound by the evidence in the case, and must not be influenced by sympathy for one party or hatred of another. VAN BRUNT, P. J., dissenting.

Appeal from circuit court, New York county.

Action by Clara Campbell against Charles Arbuckle, for breach of promise of marriage. The promise was alleged to have been made in April, 1882, and the damages were laid at $250,000. Verdict and judgment were for plaintiff for $45,000 and costs, from which, and from an order denying a new trial, defendant appeals.

Argued before VAN BRUNT, P. J., and BRADY and MACOMBER, JJ.

T. J. & R. F Tilney and John E. Parsons, for appellant. Jordan & Hodges and William Fullerton, for respondent.

MACOMBER, J. The evidence of the engagement of marriage of the parties to this action is conclusive, and substantially undisputed. It rests in the offer of the defendant to the plaintiff, and in her acceptance of that offer, which was embodied in a written communication by the man to the parents of the woman, informing them of the engagement, and asking their sanction thereto, which was accordingly given. The breach of the contract is also satisfactorily proven. It does not stand, it is true, upon a verbal or written refusal to carry out the obligation which the defendant had assumed, but rather upon circumstances from which only a refusal may be derived. A perusal of

In actions for breach of marriage promise, the jury, in estimating damages, may consider the injury to plaintiff's feelings and reputation, and any circumstances of indignity under which the wrong was done, Vanderpool v. Richardson, (Mich.) 17 N. W. Rep. 936; Bird v. Thompson, (Mo.) 9 S. W. Rep. 788; and the money value or worldly advantage of the marriage, Dupont v. McAdow, (Mont.) 9 Pac. Rep. 925, or defendant's pecuniary circumstances, Olson v. Solverson, (Wis.) 38 N. W. Rep. 329; Bennett v. Beam, (Mich.) 4 N. W. Rep 8; and exemplary damages may be awarded in some cases, Johnson v. Travis, (Minn.) 22 N. W. Rep. 624. Evidence of seduction under the promise may always be considered in aggravation of damages, for mental suffering, injury to reputation, and loss of virtue, Giese v. Schultz, (Wis.) 10 N. W. Rep. 598, Bennett v. Beam, supra; but not that plaintiff was gotten with child by the seduction, and suf fered a miscarriage, Giese v. Schultz, supra, second appeal, 27 N. W. Rep. 353. Where defendant alleges plaintiff's unchastity as a defense, and fails to establish it, this aggravates damages. Kelley v. Highfield, (Or.) 14 Pac. Rep. 744.

the evidence, particularly the many letters written by the defendant to the plaintiff, shows that after June 4, 1883, if not prior thereto, the defendant had given up all purpose of marrying the plaintiff, though he nowhere, so far as I am able to find, in words so declared himself. If the defendant intended to carry out his contract at any time after this date, it was incumbent upon him to name the time for so doing. There is some evidence, chiefly by the defendant's assertions in his letters, that he was afflicted slightly with malaria and some other trouble, but not to an extent which would unfit him for matrimony, or for the existence of which he could properly claim to be absolved from his agreement. When, in December, 1883, the plaintiff asked him, by letter, positively to fix the day for their wedding, it was the duty of defendant to so fix it, or give some reasonable excuse for failing to do so. Ill health would doubtless be a justification for the postponement of the marriage-day, where the contract, as in this case, has not settled the day, and a reasonable delay on account of slight ill-health would, of course, be permitted; but a delay, accompanied by written correspondence, and by actions which so completely ignore the existence of a contract of an engagement to marry, as is disclosed by the testimony, is tantamount to a refusal, and constitutes a sufficient breach to enable an action to be maintained therefor.

It is claimed by the learned counsel for the appellant that the learned judge committed an error prejudicial to his client by refusing to charge the jury that, if the defendant was not well, and it was a part of the arrangement that the marriage should not take place until he should recover his health, the plaintiff could not maintain her action without showing that defendant's health was restored, and that he subsequently broke the engagement or previously absolutely declined. There is no evidence in the case which would justify the court in assenting to this proposition. Many of the defendant's answers to the plaintiff's letters asking him to fix a date for the marriage alluded to his condition of health, but not as a reason for not complying with her request.

It is further argued that it was error to instruct the jury that if they believed that the letter of November 4, 1883, which the defendant wrote to plaintiff, contained a dishonorable proposal, or a solicitation for her to become his mistress, instead of his wife, they might take that circumstance into consideration in determining the amount of damages, if they warded any. The exception to this portion of the charge is not well taken. There may, indeed, be two opinions entertained in respect to the purport of this extraordinary letter. Up to that time, so far as I can find, not one word of vulgarity or suggestion of licentiousness appeared in any of the communications which the defendant had addressed to the plaintiff. It is difficult to conceive of a letter, containing much of what is in this letter, being written by a man to a woman whom he expected soon to marry; but whether, read in the light of attending circumstances, it was designed to convey, covertly, a suggestion of an illicit relation to take place between them, or was a mere piece of vulgarity, it was proper to leave its contents to the consideration of the jury.

There are many things in the case which show a revengeful or wanton spirit on the part of the defendant towards the plaintiff, conspicuously in the bill of particulars, filed in pursuance of the order of the court under the allegation in the answer, and the jury would have been justified in finding that the failure of the defendant to carry out the contract was done in such wanton disregard of the feelings of the plaintiff as to justiy them in giving exemplary damages. Yet it is manifest that they have confined their verdict to actual damages only, and those, too, based upon a rather economical application of the rule of damages in this class of cases. The verdict was only four and one-half per cent., for one year, on the estate of the defendant, as he admitted it to be. This cannot be deemed excessive, and affords some evidence that the jury was not influenced by any desire to punish the defendant for his failure to carry out the contract.