The master was guilty of no misconduct during his first term. To hold the sureties in the first bond liable for such default would be in violation of the well-known rule that the undertaking of a surety is to be strictly construed, that his liabilities are not to be extended by implication beyond the terms of his contract-that he has a right to stand upon its very terms. We do not well see how it could be held that the sureties in the master's first bond could be held liable for this default occurring after the expiration of the term of office in respect of which the bond was given, and it would seem to follow that the liability must be under the second bond. Perceiving no sufficient reason for a rehearing, it is denied.

DICKEY, J., dissenting:

I cannot concur in these views. The master, during his first term, had taken the notes and made the deed, and the notes remained in his hands for collection. Had another been appointed as his successor, and had this master, after the appointment of his successor, collected the money and failed to pay it over, I think the sureties in his bond would have been liable. The fact that he is his own successor does not qualify the liability or alter the case. It is true the liability of a surety cannot be enlarged by implication but is limited to a strict construction of the bond. When a master is charged by the order of the court with the sale of property, and has begun the work, I see no distinction between his powers and duties in relation to such sale and the powers and duties of a sheriff having begun to act under a fieri facias. The true construction of the bond is that the master will perform well all duties imposed upon him during his term of office. The duty of completing this sale and collecting the money was imposed during the first term of this office, and not during the second term. No doubt the court has the power by an intervening order to take from the hands of an out-going master business already in his hands and to place it in the hands of his successor. But until this is done, I think it is his duty to finish the business in hand when his successor comes in.

VALIDITY OF CONTRACTS FOR FUTURE DELIVERY-WAGERING CONTRACT.

KINGSBURY ET AL. v. KIRWAN.

Superior Court of New York-January Term, 1878. [Filed March 4, 1878.]

1. CONTRACTS FOR THE FUTURE DELIVERY OF COTTON NOT NECESSARILY WAGERING.-In an action by plaintiffs, a firm of cotton brokers, against the defendant, for losses paid by the plaintiff's for the defendant, arising out of the sale of 1.000 bales of cotton by plaintiffs for the defendant for future delivery, and for the commissions earned in such transaction: Held, that, as there was no proof of any intention on the part of the plaintiff's not to deliver, or on the part of the vendees, not to accept the cotton pursuant to the contracts, the contracts were not in contradiction of the statute against betting and gaming; and that such contracts are not objectionable, unless there is evi

dence to show that the parties to them intended thereby to lay a wager.

2. CLOSING OUT CONTRACTS FOR FAILURE TO KEEP MARGINS GOOD. -When, in such a transaction, the defendant agreed to keep his margins good, and the plaintiff's agreed to carry the contract so long only as defendant's margins were kept good: Held, that the plaintiffs had a right, upon the defendant's failure to make his margins good, and after proper notice to him, to close out the contracts and pay the losses arising therefrom, and that they could recover of the defendants the sum so paid, and also their commissions in the transactions; and that the defendant is presumed to know the usages pertaining to the matters as to which he made his agreement.

APPEAL from a judgment entered on a verdict in favor of the plaintiffs, against the defendant, and from an order denying a motion for a new trial on the minutes.

In July and August, 1876, the plaintiffs were cotton brokers, and one of them a member of the Cotton Exchange. During those months, acting as brokers for the defendant, their principal, they sold 1,000 bales of cotton for delivery in the months of September and October, 1876, for a certain price, and received from the defendant certain sums of money or margin, to cover losses if any should arise by increase of the market value of the cotton, as might daily occur from the changes of the market. It was agreed that the defendant's margin should be kept good, and should be paid by him on demand, and that the plaintiff's should continue to act as his brokers and carry the contracts they should make for him only so long as he did After these sales made by the plaintiffs for future delivery, the market price of cotton advanced so that if the defendant had bought cotton to cover his sales and made delivery at their maturity, he would have lost the difference between the two prices, and his margin deposited with the plaintiffs to meet such loss would have become exhausted.

So.

The plaintiff's claimed at the trial that when the margins became exhausted they were liable to the other brokers to or through whom the sales were made, by the rules and customs of the exchange, for all such losses, and that they demanded from the defendant the deficiency, and notified him that if he did not respond they would close out the contracts of sale, and that they did so upon his refusal to keep his margins good, and settled the loss with the other parties to the transactions by paying it. The plaintiffs bring this action to recover these margins advanced by them for him, and their commissions.

The defendant claimed that the transactions were void under the statute against gaming and betting, that no actual sales or purchases were made and that no notice of the time, place and manner of closing out was given him. Various exceptions were taken at the trial by the defendant and he also claimed a return of all moneys paid by him to the plaintiffs as margins. There was a verdict for the plaintiffs.

Thomas Bracken for defendant and appellant. Albert Gallup for plaintiffs and respondents. CURTIS, C. J., delivered the opinion of the court:

The evidence does not sustain the defendant's claim that these purchases through his brokers of the cotton for future delivery were in contradiction of the statute against gaming and betting. There is no proof of any intention on the part of the plaintiffs not to deliver, or on the part of the vendees not to accept the cotton pursuant to the contracts. Such a contract as the parties to the suit entered into is not objectionable, unless there is evidence to show that that they intended to lay a wager. Tyler v. Barrows, 6 Robt., 110; Cassard v. Hinman, 1 Bos., 207.

The permission given at the trial by the court to the plaintiffs to amend their complaint by inserting an allegation of due notice to the defendant that he would be closed out if he did not keep his margins good, was a proper exercise of discretion on the part of the court, and warranted by the proofs. Lounsbury v. Purdy, 18 N. Y. 521. The answer admits in substance that the defendant ordered the sale of the cotton, and agreed that he would keep the margin good as the cotton advanced in the market. If, then, after demand and notice the defendant failed to keep his margin good, the plaintiffs had a right to close the transaction. White v. Smith, 54 N. Y. 522.

There was some conflicting testimony as to the demands for margins and as to the notice, but it was left to the jury to find whether the plaintiffs made the demands and gave the defendant notice of the time and place in which they intended to close out the transaction, and also as to whether the defendant put up the margins when he was notified to put up; and there is no just reason shown for disturbing the conclusion of the jury, which was adverse to the claims of the defendant in these respects, and which was in accordance with the weight of evidence.

The defendant must be presumed to know the usages pertaining to the matters as to which he made his agreement. Walls v. Bailey, 49 N. Y. 472. The usages in respect to cotton brokers and the cotton exchange were in evidence, and also the fact that the defendant had been closed out on a former occasion. He had such previous knowledge of the nature of the business, that he is not in the position of a person of inexperience and ignorant of the meaning of the term "closing out" and the mode in which it is done by going into the market and buying the cotton at the lowest price at the time that it could be bought, and using that in settlement of the contract with the buyer on the principal contract.

The court charged the jury that if the plaintiffs failed to prove to them that due notice was given to the defendant, that then the plaintiffs violated their duty to the defendant, and that he was entitled to recover back the amount of margins he paid with interest.

There are some exceptions to the admissibility of evidence, but they are not well taken. The refusals of the judge to charge as requested by the defendant, are sustained by our views of the law, and by what the testimony at the trial establishes. The same should be said as to those parts of the charge to which the defendant excepts.

The court left it to the jury to determine whether, as the plaintiff's claimed, the margin of $800 was demanded of the defendant on Saturday; also, whether he was told he must furnish that margin on Monday by ten o'clock, and thereupon acquiesced in it, and promised to do so. The jury were properly instructed that if they found such to be the fact, it was a sufficient and reasonable notice, because there was a time to which the defendant agreed and an amount as to which he was notified.

The judgment and order appealed from should be affirmed with costs.

NOTE.-1. An executory contract of sale of goods for future delivery, is not rendered wagering by reason of the vendor's not having the goods at the time of entering into the contract, or any expectation of receiving them, otherwise than by purchasing them in the market at or before the time they are required to be delivered under the contract. 2. To make such a contract wagering, there must be a mutual intent and understanding between the vendor and vendee at the time of entering into it, that there is to be no delivery of the goods, and that the contract is to be settled between them at its maturity by the payment, by one of them to the other, as the market value of the goods may have declined or advanced during the interval, of the difference between the contract and the market price of the goods at the maturity of the contract. 3. It is of the essence of a wagering contract, that there be a reciprocity between the parties thereto as to the chances of winning or losing the sum staked; and hence no contract can be a wager where all the loss or gain under it is to accrue to one only of the parties thereto. The following authorities sustain one or more of these three propositions: Hibblewhite v. McMorine, 5 M. & W. 462; Mortimer v. McCallan, 6 Id. 58; Grizewood v. Blane, 11 C. B. 526; Ashton v. Dakin, 4 Hurlstone & Norman 867; Frost v. Clarkson, 7 Cowen 24; Stanton v. Small, 3 Sandford 230; Cassard v. Hinman, 1 Bosw. 207; McIlvaine v. Egerton, 2 Robert. 422; Tyler v. Barrows, 6 Id. 104; Brua's Appeal, 55 Penn. State 294; Smith v. Bouvier, 70 Id. 325; Kirkpatrick v. Bonsall, 72 Id. 155; Brown v. Speyers, 20 Grattan 296; Rumsey v. Berry, 65 Me. 570; Walcott v. Heath, 78 Ill. 433; Pixley v. Boynton, 79 Id. 351; Logan v. Musick, 81 1d. 415; Carbett v. Underwood, Chicago L. N., Feb'y 17th, 1877; Warren v. Hewitt, 45 Ga. 501; Lehman v. Strasberger, 3 Cent. L. J. 134; s. c., 2 Woods. 554. S. B. J.

crossing the track at such places. The increased care required of the company on the one hand and of the public on the other, is, under such circumstances, equal.

2. WHEN THE EVIDENCE TENDS TO PROVE negligence on the part of the defendant, contributing to the damage, or when such regligence is conceded, and there is also undisputed evidence of negligence of the person injured or damaged, it seems it is the duty of the court to determine, as a matter of law, whether such negligence of the injured or damaged person contributed to the injury, and a verdict in such a case is without evidence, and will be set aside on appeal or error. Hicks v. Pacific R. R.,64 Mo. 430, distinguished.

On motion for rehearing.

HENRY, J., delivered the opinion of the court: The motion for rehearing was based on the following grounds: That the court overlooked material facts in the record, showing the peculiar and complicated circumstances surrounding the killing of Harlan, and in overlooking said facts applied a rule of law not otherwise applicable. Second, that the judgment of the court was in direct conflict with the case of Hicks v. The Pacific R. R. Co., 64 Mo. 430, decided at this term, and with other cases heretofore decided by this court.

The facts which, it is assumed, were overlooked, are that the accident occurred in a crowded city. where the defendant had an intricate combination of tracks, side tracks and switches, almost in constant use, and where the public had a right to expect extraordinary care to prevent accidents. Those facts were not overlooked, and we recognize the the rule that, under the circumstances stated, the company must exercise a degree of care to avoid injuring persons and property commensurate with the danger of the occurrence of such accidents; but it seems that the counsel do not, as we do, recognize a corresponding obligation on the part of the public to exercise care and watchfulness in crossing a railroad track at such a point commensurate with the danger to which persons crossing the track there are exposed. The increased care exacted of the company on the one hand, and of the public on the other, is equal, and leaves the question of liability of the company to an adult person of sound mind, in the enjoyment of the senses of sight and hearing, dependent upon the rules applicable, if the accident had occurred at any other point on the road. The evidence that the deceased was guilty of negligence contributing directly to cause his death is uncontradicted. The undisputed facts constitute direct contributory negligence,

The case at bar is not like that of Hicks v. The Pac. R. R. Co., with which counsel think the judgment herein is in conflict. The defense in that case was that Hicks was a trespasser, and that, therefore, the company owed no duty to him.

We

held otherwise, and that whether a trespasser or not made no difference, if by the exercise of ordinary care the defendant could have avoided injuring him. There was evidence that he was guilty of negligence contributing directly to produce the injury; but there was also evidence to the contrary. There was also a conflict of evidence as to the negligence of the defendant; but those issues, on

proper instructions, were submitted to the jury, and if this court had reversed the judgment, it could have been on no other ground than that the verdict was against the weight of evidence. In the case we are considering, the judgment was not reversed because the verdict was against the weight of evidence, but because there was no evidence to support it.

But counsel insist that, aside from Harlan's want of care, the question still remained whether the company could have prevented the accident by the observance of due care, as well as what amounted to due care under the circumstances, and that three propositions are necessarily submitted to the jury in this class of cases, viz: First. Was the defendant guilty of negligence? Second. Was the plaintiff guilty of negligence contributing directly to the result? Third, Notwithstanding plaintiff's negligence, could the defendant, by the exercise of ordinary care, have prevented the result?

It must be borne in mind that the negligence for which the company is liable is that which directly contributes to produce the injury. The fact that the company has been guilty of negligence followed by an injury does not make the company liable, unless the injury were occasioned by that negligence. The connection of cause and effect must be established. For instance, a passing train by an accident, the result of negligence on the part of the company, is compelled to reverse its engine and run backwards, and in so doing runs over a person crossing the track. The negligence of the company made it necessary to back the train; yet unless guilty of negligence in running the train backwards, the company would not be held liable for the injury.

But, if after discovering the danger in which the party had placed himself, even by his own negligence, the company could have avoided the injury by the exercise of reasonable care, the exercise of that care becomes a duty, for the neglect of which the company is liable. When it is said, in cases where plaintiff has been guilty of contributory negligence, that the company is liable, if by the exercise of ordinary care it could have prevented the accident, it is to be understood that it will be so liable, if by the exercise of reasonable care after a discovery by defendant of the danger in which the injured party stood, the accident could have been prevented, or if the company failed to discover the danger through the recklessness or carelessness of its employees, when the exercise of ordinary care would have discovered the danger and averted the calamity. So that the first and second propositions which counsel insist should be submitted to the jury in this class of cases require modification, as above suggested. The evidence that Harlan's negligence contributed directly to produce the injury was clear and uncontradicted, and there was no evidence whatever tending to show that, after the deceased got on the track, it was even possible to prevent the accident.

There was no issue to submit to a jury under the evidence as preserved in the bill of exceptions. The judgment of the court is in harmony with Hicks v. The Pacific R. R. Co, Evans v. The

Pacific R. R. Co., 62 Mo. 49, and Fletcher v. The St. L., K. C. & N. R. R. Co., decided at the present term. The record and authorities cited, and others not cited, have been examined carefully by every member of the court, and all concur in overruling the motion for a new hearing.

HOUGH, J., concurring:

I concur in overruling the motion for a rehearing. It may be conceded that the defendant was guilty of negligence in failing to ring the bell. But the undisputed testimony in the cause shows that the acts of the deceased directly contributing to produce his death amounted to negligence per se. The case standing thus it is clear that the plaintiff would not have been entitled to recover, as a matter of law. Now, if there had been any testimony tending to show that the defendant could, by the exercise of proper care, after discovering the danger to which the deceased was exposed, have avoided injuring him, then the verdict should be permitted to stand. There was not only no such testimony, but there was testimony to the contrary, and it was therefore properly held, not that the verdict was against the weight of evidence, but that there was no evidence whatever to support the verdict. That this court will interfere in such cases has been repeatedly decided.

PHYSICIANS and surgeons can not be compelled to give professional opinions, as experts, in courts of justice, without receiving extra pay for such services, beyond the ordinary witness fees; and upon refusal so to testify, they can not be committed for contempt. Whether this rule applies to all classes of experts -quaere.

One Hamilton was on trial on an indictment for rape. On the trial he put upon the stand, as a witness, the defendant, Dr. Buchman, who testified, upon questions propounded to him, that he was a practicing physician, and had followed that profession for seven years. Being asked whether or not, in female menstruation, there is, sometimes, a partial retention of the menses after the main flow has ceased, he refused to answer unless reasonably compensated before testifying as a medical expert. He refused to answer another question, saying that this answer would depend upon his professional knowledge of the subject, and he would not give it without being paid. Being asked to whom he looked for pay, he replied that he expected the party calling him to pay him, or that the court would provide for his compensation. The court being of opinion that the witness was required by law to answer the questions without

compensation other than the ordinary witness fee, and the witness persisting in his refusal to answer, he was committed as for contempt. From the commitment the witness appealed to this court.

WORDEN, J., delivered the opinion of the court: The question presented, being a novel one in Indiana, so far as we are advised, and an important one, we have bestowed such time and care upon its consideration as its importance seemed to require.

It must be and is conceded that a physician or surgeon, when called upon, must attend and testify to facts within his knowledge, for the same compensation, in the way of fees, as any other witness. In respect to facts within his knowledge,. he stands upon an equality, in reference to compensation, with all other witnesses. But the question presented is whether he can be compelled to give a professional opinion without compensation other than the ordinary fees of witnesses.

In England, there is some diversity in the decisions in respect to the question whether an attorney or medical man is entitled to higher compensation for attendance as a witness than ordinary witnesses. This diversity, however, relates to witnesses required to testify to facts, and not to give professional opinions. In respect to professional opinions, we are not aware of any diversity of decision. In note 2 to sec. 310, 1 Greenl. Ev., 13 ed., it is said: "An additional compensation for loss of time was formerly allowed to medical men and attorneys, but this rule is now exploded. But a reasonable compensation paid to a foreign witness, who refused to come without it, and whose attendance was essential in the cause, will, in general, be allowed and taxed against the losing party. See Lonergan v. The Royal Exchange Assurance, 7 Bing. 725; s. c., id. 729; Collins v. Godefroy, 1 B. & Ad. 950. There is also a distinction between a witness of facts and a witness selected by a party to give his opinion on a subject with which he is peculiarly conversant from his employment in life. The former is bound as a matter of public duty to testify to facts within his knowledge. The latter is under no such obligation, and the party who selects him must pay him for his time before he will be compelled to testify. Webb v. Paige, 1 Car. & Kir. 23." The case of Lonergan v. The Royal Assurance, referred to in the above note, was not the case of a witness called to give a professional opinion, but the witness was a foreign sea captain, without whose presence the plaintiff's attorney" deemed it unsafe to trust the trial of the cause to written depositions, so long as he could prevail on the captain to remain in England to give his evidence personally on the trial before the jury; inasmuch as the demeanor and manner of Captain Moffatt's giving his evidence before the jury might have great weight with the jury, in addition to his intelligent and gentlemanly appearance." Tindal, C. J., said, amongst other things: "But the general rule has been that when witnesses attend under a subpoena, none receive any allowance for loss of time, except medical men and attorneys. If that rule were to undergo revision, I can not

say that it would stand the test of examination. There is no reason for assuming that the time of medical men and attorneys is more valuable than that of others whose livelihood depends on their own exertions. But that rule is not applicable to the case of a foreign witness, who may refuse to attend if the terms he proposes are not acceded to. If he asks only what is reasonable, I can not see why it should not be allowed, and be charged to the unsuccessful party."

The case which is supposed to have exploded the rule that attorneys and medical men are to have additional compensation for loss of time, is that of Collins v. Godefroy, cited in the above note. In that case Collins sued Godefroy, to recover a remuneration for plaintiff's loss of time, in attending as a witness, under a subpoena issued by Godefroy, in a case in which Godefroy was a party. The plaintiff attended six days as a witness, but was not called upon to give his evidence. Lord Tenterden, C. J., said: "If it be a duty imposed by law upon a party regularly subpoenaed to attend from time to time to give his evidence, then a promise to give him any remuneration for loss of time incurred in such attendance is a promise without consideration. We think such a duty is imposed by law, and on consideration of the statute of Elizabeth, and of the cases which have been decided on the subject, we are all of the opinion that a party can not maintain an action for compensation for loss of time in attending a trial as a witness. We are aware of the practice which has prevailed in certain cases of allowing as costs between party and party so much per day for the attendance of professional men, but that practice can not alter the law. What the effect of our decision may be is not for our consideration. We think on principle that an action does not lie for a compensation to a witness for loss of time in attendance under a subpœna."

But, notwithstanding the case above noticed, the rule allowing professional men additional compensation, was followed in England as late as 1862. In the case of Parkinson v. Atkinson, 31 L. J. N. S. 199, the master had allowed the expenses of an attorney who was called as a witness, but did not give professional evidence, on the higher scale allowed to professional witnesses. On motion for a rule to show cause why the taxation should not be reviewed, Earle, C. J., said: “We do not approve of the rule which is said to prevail in criminal cases, that if a surgeon is called to give evidence not of a professional character, he is only to have the expenses of an ordinary witness. We think the master was quite right in allowing the expenses of this witness on the higher scale." So, also, in the case of Turner v. Turner, Jurist, 1859, p. 839, the master allowed one Marcus Turner, a barrister, of London, one pound and a shilling a day for attendance as a witness. The Vice-Chancellor said: "The right of a professional man to one pound and a shilling per day was founded on the fact of his being abstracted from his functions. It was unnecessary to say what classes came within the definition 'professional man,' but there was no doubt that

a barrister did, and if subpœnaed as a witness, he had a right to receive the remuneration, small ̧or scanty, as it was." The motion to vary the taxation was overruled.

The foregoing cases, however, do not decide the point involved here, and they have been noticed rather with a view of showing that they are not in conflict with the right claimed by the appellant than as establishing that right. We come now to authorities more directly in point.

The case of Webb v. Paige, cited in the above note from Greenl. Ev., decided in 1843, was an action for negligence in carrying goods. A witness was called for the plaintiff to speak of the damage sustained by the goods, consisting of cabinet work, and the expense that would be necessary to restore or replace the injured articles. The witness demanded compensation, and Maule, J., in deciding the point, used the language set out in the latter part of the note above cited from Greenleaf. The witness, upon receiving an undertaking for his pay, was examined. This is the only English case that bears directly upon the point, of which we have any knowledge. The American cases are not numerous, and we proceed to notice such as there are.

In the matter of Roelker, Sprague, 276, during a trial upon an indictment, the district-attorney moved for a capias to bring in a witness, who had been subpoenaed to testify as an interpreter. But Sprague, J., said: "A similar question had heretofore arisen as to experts, and he had declined to issue process to arrest in such cases. When a person has knowledge of any fact pertinent to an issue to be tried, he may be compelled to attend as a witness. But to compel a person to attend because he is accomplished in a particular science, art or profession, would subject the same individual to be called upon in every case in which any question in his department of knowledge is to be solved. Thus the most eminent physician might be compelled, merely for the ordinary witness fees, to attend from the remotest part of the district, and give his opinion in every trial in which a medical question should arise. This is so unreasonable that nothing but necessity can justify it. The case of an interpreter is analagous to that of an expert. It is not necessary to say what the court would do if it appeared that no other interpreter could be obtained by reasonable effort. Such a case is not made as the foundation of the motion. It is well known that there are in Boston many native Germans and others skilled in both the German and English languages, some of whom, it may be presumed, might without difficulty be induced to attend for an adequate compensation."

In the case of The People v. Montgomery, 13 Abb. Prac. Rep. (N. S.) 207, Montgomery was indicted for murder. The district-attorney had procured the attendance of Dr. Hammond as a witness to testify professionally in the case, who was paid, or was to be paid, the sum of $500, for his attendance and services as such witness. This was complained of as an irregularity. The court said, E. D. Smith, P. J., delivering the opinion: "We do not see that the calling of Dr. Hammond