not at once yield to the consideration that it led to indecent evidence, and was injurious to the feelings and interests of a third person. I am sorry, likewise, that the witnesses subpoenaed had not been told they might refuse to give evidence if they pleased. But no objection to their being examined was made by the counsel for the defendant; nor did any of themselves apply for protection or hesitate to answer. I have since heard that many of them had been confidentially employed by the person whose sex was in controversy, in the way of their profession or business. That any two men by laying a wager concerning a third party may compel his physicians, servants and relations to disclose what they know about his person, would have been an alarming proposition. Mere indecency of evidence is no objection to its being received when it is necessary to the decision of a civil right or a criminal liability. Upon this ground we think that Mr. Justice Burnet was wrong in refusing to try the case before him, where a young lady brought an action of slander for saying that she had a defect in her person which unfitted her for marriage, and the defendant alleged in his plea that she had such a defect; for there, if the statement was false, the plaintiff had received a grievous injury for which she was entitled to exemplary damages; and if it was true, the defendant ought to have been freed from the charge of a malicious lie, however he might still be liable to censure for indelicately proclaiming the truth. But if it had been merely an action on a wager whether the young lady had such a defect, it would have been nearly the present case, and I think the judge would have been well justified in refusing to proceed with the trial, or declaring that the supposed contract was void in instantly nonsuiting the plaintiff. Indifferent wagers upon indifferent matters, without interest to either of the parties, are certainly allowed by the law of this country. We come to the present case. There is a person who represents himself to the world as a man, is stated in the record to be Monsieur le Chevalier D'Eon, has acted in that character in a variety of capacities and has his reasons and advantages in so appearing. Shall two indifferent people, by a wager between themselves, try whether he is a cheat and impostor, and be allowed to subpoena all his intimate friends and confidential attendants to give evidence that will expose him all over Europe?

*

We have no authority to declare all wagers illegal; a wager whether the next child is a boy or a girl hurts no one. But are we to lay down doctrine which would give validity to a wager whether a young woman had a mark upon a particular part of her body and authorize the calling of her chambermaid to prove it? The present wager being indecent in itself and manifesting a gross injury to a third person, is not to be endured. Judgment for defendant." Lord Campbell adds in a foot-note, "Although the verdict was set aside on legal grounds, it was allowed to settle many other bets which had been made on the same question. The Annual Register for 1765, p. 167 says, 'By this decision no less a sum than

£75,000 will remain in this country, which would otherwise have been transmitted to Paris. The Chevalier has left England declaring that she had no interest whatever in the policies opened on her sex.' The Chevalier then assuming female attire remained in France supported by a pension from the French Government, for having been long a spy of Louis XV, till the breaking out of the Revolution in 1790. He then came to England, and, being in great distress, lived with a lady of reputation as her companion; but, dying in the year 1810, was found on a post-mortem examination, to be of the sex which he had originally claimed and in all respects perfectly formed."

That wagers concerning the person of another have been held void is settled in other cases. Judge Buller, in the case of Good v. Elliot, 3 T. R. 693, said that a bet on a lady's age, or whether she had a mole on her face, was void. No person had a right to make it a subject of discussion in a court of justice, whether she passed herself in the world to be more in the bloom of youth than she really was, or whether what was apparent to every one who saw her was a mole or a wart; although a lady could not bring an action against a man for saying she was thirty-three when she passed for only twenty three, nor for saying she had a wart on her face. Nor would the courts try a wager as to whether a young lady squints with her right eye or with her left.

As to whether insurance policies constitute wagers has been a considerably litigated question. In the case of Godsall v. Boldero, 9 East, 72, the life of William Pitt, the statesman, was insured by plaintiffs, coachmakers, who, having been paid the amount of their debt by his executors, sought to recover from the insurauce company the amount insured. Lord Ellenborough held that they could not; that the contract was not by way of wager but one of indemnity; and as such, plaintiffs, after the payment of their debt, could proceed no further. But in the case of Dalby v. India & London Life Assurance Company, 15 C. B. 365, this decision was overruled by Baron Parke, who said, substantially: "This was an action on a policy of life insurance brought by the plaintiff as trustee for the Anchor Assurance Company upon a policy for £1,000 on the life of the Duke of Cambridge. The Anchor Life Assurance Company had insured the duke's life in four separate policies, two for £1,000, and two for £500 each, granted by that company to a Mr. Wright. Having limited their insurances to £2,000 on one life, and this insurance exceeding it, they effected a policy for the defendant for £1,000 by way of counter insurance. At the time the policy was subscribed by the defendants, the Anchor Company had unquestionably an insurable interest to the full amount. Afterwards, an arrangement was made between the office and Mr. Wright, for the former to grant an annuity to Mr. Wright and his wife in consideration of a sum of money, and of the delivering up the four policies to be canceled, which was done; but one of the directors kept the present policy in force by the

payment of the premiums till the duke's death. It may be conceded for the purpose of the present argument, that these transactions between Mr. Wright and the office totally put an end to that interest which the Anchor Company had when the policy was effected, and that at the time of the duke's death, and up to the commencement of the suit the plaintiff had no interest whatever. * This species of insurance in no way resembles a contract of indemnity. Policies of assurance against fire and against marine risks are both properly contracts of indemnity.

*

* *

But it is said that the case of Godsall v. Boldero has concluded the question. Upon considering this case, it is certain that Lord Ellenborough decided it upon the assumption that a life policy was in its nature a contract of indemnity; but though we are satisfied that the case of Godsall v. Boldero was founded on a mistaken analogy and wrong, we should hesitate to overrule it, if it had been constantly approved and followed. ** * * * Since that case we know practically that the insurance offices generally speaking have not availed themselves of the decision, as they found it very injurious to their interests to do so; and it may be truly said that instead of the decision being uniformly acquiesced in and acted upon, it has been uniformly disregarded." It is now generally held in this country that when an insurance is effected without interest, or where there is a subsequent failure of interest, the policy is in the nature of a wager, and, consequently void. The contract of insurance is now held to be one of indemnity. As to the character of the interest necessary to render the policy valid, the court in one case (Trenton M. Life Ins. Co. v. Johnson, 4 Zab. 576), has said if interest is requisite, it need not be a direct or pecuniary interest,or other than that which parent and child, sister and brother, husband and wife, and other near relatives have, in the continuance of the support and solace derived from each other's society and good offices, and that a partner may insure the lives of his co-partners, and even of the agents employed to transact or manage the business of the firm. The reason for the rule is that to insure the life of another without an interest in its continuance is to give rise to an interest in his death. Ruse v. Ins. Co., 23 N. Y. 516. The question as to what contracts are insurances as distinguished from wagers, is commented on by Grose, J., in the construction of the English statute upon the subject, who said that to construe every wager on an event to be a policy, would have the effect of dividing all written wagers into two classes: 1. Wagers upon questions capable of solution in præsenti; 2. Wagers upon questions incapable of solution in præsenti or events. For instance, under the former class would fall a wager whether a particular horse is black or white, since the color of the horse is an existing fact; under the second class, a wager whether the foal a mare now goes with will be black or white, as that is a wager upon an event. But if such really were the distinction between the cases comprised and those not comprised within the statute (the statute 14 G.

* *

III. ch. 48, enacted "that no insurance shall be made by any person or persons, bodies politic or corporate on the life or lives of any other person or persons, or any other event or events whatsoever, wherein the person or persons for whose use, etc., such policies shall be made, shall have no interest, or by way of gaming or wagering * shall be null and void”), it would be a very thin one indeed; for, after all, if two men lay a bet upon a matter, the truth of which is presently ascertainable, although the thing either is or is not, as is asserted, and therefore its status can not, with reference to the general nature of things, be an event; still, as the betters are themselves uncertain how the truth will, upon examination, be discovered to be, their discovery of the true state of things is an event, although the thing discovered is not. And the distinction would, indeed, be a fine one which should consist in the difference between a wager on a future thing, and a wager on a future discovery of an existing thing. Good v. Elliot, 3 T. R. 693.

BILLS OF LADING-NEGOTIABILITY— FRAUDULENT VENDEE.

TIEDEMANN v. KNOX.

Court of Appeals of Maryland, April Term, 1880.

1. If a State law makes a bill of lading negotiable in the same sense as bills of exchange and promissory notes, an indorsee who receives it from a fraudulent vendee, with instructions to take up a certain draft drawn by the indorsee, accepted by the vendee and discounted by a bank with the indorsement of the drawer thereon, is a bona fide holder.

2. Although an indorsee receives a bill of lading from a fraudulent vendee, with instructions to take up a particular draft, yet if he is liable upon other drafts of the vendee, he may hold the goods to indemnify himself against that liability, although he receives notice of the fraud before the other drafts become due.

MILLER, J., delivered the opinion of the court: The act of 1876, ch. 262, provides that "all bills of lading" executed in this State, or if executed elsewhere, providing for the delivery of merchandise within this State, "shall be, and they are hereby constituted and declared to be negotiable instruments and securities (unless it be provided in express terms to the contrary on the face thereof) in the same sense as bills of exchange and promissory notes, and full and complete title to the property in said instruments mentioned or described, and all rights and remedies incident to such title, or arising under or derivable from the said instruments, shall enure to and be vested in each and every bona fide holder thereof for value, altogether unaffected by any rights or equities whatsoever of or between the original or any other prior holders of or parties to the same, of which such bona fide holder for value shall not have had actual notice at the time he became such."

This statute is more comprehensive and sweeping in its phraseology and effect than the statutes of Missouri and Pennsylvania, recently construed by the Supreme Court in the case of Shaw v. Merchants' National Bank, 11 Cent. L. J. 189. In that case a bill of lading for cotton was stolen from the bank during transit of the cotton from St. Louis to Philadelphia, and indorsed over to parties who advanced $8,500 thereon, and the jury found that when these parties received it they knew facts from which they had reason to believe that the parties from whom they took it were not the lawful owners of it, and had no right to dispose of it; and the question was whether, under these circumstances, the indorsees acquired a good title to the cotton as against the bank which sold the bill of lading to secure the payment of an accompanying discounted time draft. The statutes of Missouri and Pennsylvania were relied on by the indorsees, which declared that bills of lading "shall be negotiable by written indorsement thereon, and delivery in the same. manner as bills of exchange and promissory notes." As to these statutes the court, speaking by Mr. Justice Strong, decide that each of them simply prescribed the manner of negotiation-i. e., by indorsement and delivery, but neither undertakes to define the effect of such transfer; and then in a very conclusive argument proceed to show that it was not the purpose of these laws by thus declaring bills of lading to be negotiable by indorsement and delivery in the same manner as bills of exchange and promissory notes, to totally charge the character of such instruments and put them in all respects on the footing of instruments which are the representatives of money, and charge the negotiation of them with all the consequences which usually attend or follow the negotiation of bills and notes. The court therefore determine that the rule asserted in Goodman v. Harvey, 4 Ad. & El. 873; Goodman v. Simonds, 20 How. 343; Murray v. Lardner, 2 Wall. 110, and other similar cases, is not applicable to a stolen bill of lading, or at least that the purchaser of such a-bill with reason to believe that his vendor was not its owner, or that it was held to secure the payment of an outstanding draft, is not a bona fide purchaser, and is not entitled to hold the merchandise covered by the bill against its true owner.

But as we have seen, the terms of our statute are different and more comprehensive in scope and purpose. Shortly before this law was passed, it had been decided by this court, in the case of Baltimore, etc. R. Co. v. Wilkens, 44 Md. 27, that the law does not regard bills of lading "as negotiable in the same sense in which a bill of exchange and promissory note is so," and the legislature using the very language of this decision declares they shall be negotiable instruments and securities, "in the same sense as bills of exchange and promissory notes." The act thus affirms that hereafter such instruments shall be what the court, in view of the then existing law declared they were not, and then in very explicit terms provides that the effect of their negotiation or transfer shall be to vest the title to the property mentioned in them in every successive bona fide

holder for value, wholly unaffected by any rights or equities between the original or any other prior holders of which he had not actual notice at the time he received them. This is a very different thing from merely prescribing that the manner of their negotiation shall be by indorsement and delivery. The present case, however, does not require us to construe or give effect to this statute, save in one or two particulars, and does not raise the question presented in the case decided by the Supreme Court.

The only question relating to this act we now propose to decide is this: It has been argued by the appellant's counsel that the bills of lading in this case were received by the appellee in payment, or were made use of by him to pay, an antecedent debt due him by the party from whom he received them; that an antecedent debt is not sufficient to constitute a purchase for value of a chattel, while it is as respects a promissory note; and he insists the statute has not changed the law, so as to place bills of lading, which are mere symbols of the possession of property, on the same footing with notes in this regard. But assuming the facts to be as stated, we are clearly of opinion the statute has effected such change in the law, and that a party receiving a bill of lading in payment of an antecedent debt becomes a purchaser and bona fde holder thereof for value, as effectually as if it had been a bill of exchange or promissory note.

Having thus disposed of this preliminary question, raised in argument rather than directly presented by any of the rulings of the court to which exceptions were taken, we now proceed to consider those rulings, and this necessitatès a brief statement of the main facts of the case.

Earnest Waltjen, trading under the firm name of "John Campsen & Co." did business in Charleston, South Carolina, as a miller,' grain dealer and commission merchant. The appellant (the plaintiff below) was a flour merchant in St. Louis, and James Knox, the defendant and appellee, was a commission merchant in Baltimore, trading under the firm name of James Knox & Co. There had been for some time business dealings between Campsen & Co., and Knox & Co., and among other transactions of a similar character, there was a draft for $1,803.75 drawn by Knox & Co. to their own order, and accepted by Campsen & Co., which fell due on the 19th of September, 1878; and this draft Knox & Co. had indorsed and procured to be discounted by the Citizens' National Bank in Baltimore. About the 9th or 10th of September, 1878, Campsen & Co. purchased a lot of flour from the plaintiff through one West, the plaintiff's agent in Charleston, to be shipped to Charleston via Baltimore, subject to the order of Campsen & Co., and about the same time also purchased other flour from other parties in St. Louis to be shipped in the same way. The reason assigned for shipment by this route, was that Campsen & Co. had made arrangements with the Merchants' Steamship Company, running between Baltimore and Charleston, (in which Waltjen appears to have been interested) for a de

duction on freight when they received a certain amount of goods to be shipped by one steamer. The plaintiff and the other parties in St. Louis shipped the flour by rail, consigned to Campsen & Co., Baltimore, and forwarded to them the bills of lading therefor. On the 16th of September, Campsen & Co., wrote from Charleston to Knox & Co. in Baltimore, a letter enclosing bills of lading indorsed by them in blank for 500 barrels of flour from St. Louis, and directed them to hold the same for the writer's account, as they were not able to get through-freight via the Baltimore steamers at present, and they then add, "This flour should be there when you receive bills of lading; so please attend to it at once. We may draw on you for amount to pay our draft due 19th inst., and if not, take same up and charge to our account." Upon receipt of this letter with the enclosed bills of lading, Knox & Co. paid and took up the draft due on the 19th as requested. On the 20th Campsen & Co. wrote another letter to Knox inclosing a bill of lading indorsed in the same way for 200 barrels, thus making 700 in all, and in this they direct him, if he could not ship the flour to them at fifteen cents per barrel, to hold it for their account, or ship it to a good market, or, if he thought best, to sell it in Baltimore, but not at a loss, and place the net proceeds to their credit. The flour began to arrive in Baltimore on the 18th, and on the 22d the last of it was received. Knox tried to sell it in Baltimore without success, and was unable to forward it to Campsen & Co., at the rate they named. He then, on the 24th, shipped it to Liverpool and drew a draft on the consignees with a bill of lading attached, which he had discounted, and the proceeds of which he received and retained. After this he was informed by a letter from Campsen & Co. dated the 25th, of their failure, and on the 27th he received telegrams from the plaintiff and the other parties in St. Louis to hold the flour subject to their order as it had not been paid for, and they had been defrauded, To these telegrams he replied that the flour came regularly to his hands, and had been shipped to Europe; that Campsen & Co. owed him over $6,000, and he should retain the flour or its proceeds against that indebtedness. The proceeds of the flour bought from the plaintiff was not sufficient to pay the draft, which fell due on the 19th of September, and which was taken up by Knox on that uay. It is further shown that Knox also paid other accounts of Campsen & Co., subsequent to the 27th of September, for amounts in excess of the value of all the flour. The purchases of the flour by Campsen & Co. were upon a credit of thirty days, and they never paid for it. Evidence was also offered by the plaintiff tending to show that Campsen & Co. were insolvent, and knew they were so, at the time they made these purchases, but we do not find in the record any evidence legally sufficient to establish the fact that Knox knew of their insolvent condition, or had any reason to suspect it. prior to the shipment of the flour to Europe. Before the suit was instituted, the pla n ff demanded the flour from

Knox, and he refused to deliver it; and then, on the 21st of December, 1878, the plaintiff brought this action of trover to recover for the conversion. After the testimony was closed, four instructions were asked by the plaintiff, all of which were rejected, and one by the defendant, which was granted.

The plaintiff's first and second prayers proceed upon the theory and assert, substantially, the proposition that no title passed if Waltjen was insolvent and knew himself to be so, and had no reasonable expectation to pay for it, or did not intend to pay for it, when he purchased the flour, received the bill of lading, and indorsed and sent it to Knox, and if the jury find these facts, then the plaintiff is entitled to recover, notwithstanding they may further find that Knox, on the faith of this indorsement of the bill of lading and receipt of the flour paid the draft due on the 19th of September, and now holds the other drafts on Campsen & Co. given in evidence. It seems to us very clear there was no error in rejecting these prayers. As we have already said, the fact that Knox may have received the bill of lading and applied the merchandise covered by it in payment of this draft, even assuming it to have been an antecedent debt due to him by Campsen & Co. did not prevent his being a bona fide purchaser of the bill for value; and to hold that under these circumstances no title to the flour passed to Knox, though he had no notice of the insolvency of Waltjen, or of any fraud, or attempted fraud, on his part, in effecting the purchase, and in no way participated therein, is a proposition which the terms of the act of 1876 forbid us to entertain.

The plaintiff's third and fourth prayers in effect place his right to recover upon the ground that there was a combination between Knox and Waltjen to purchase the flour and apply the proceeds of it to pay the acceptances of Campsen & Co. held by Knox, and thus to cheat and defraud the plaintiff. But the defect in these prayers is, that there was no evidence in the cause to prove, or in the legal sense of the terms, "tending to prove," any such fraudulent combination or conspiracy. We have carefully examined the record, and can find therein no testimony legally sufficient" to sustain the alleged fact of such combination, and hence there was no error in the rejection of these prayers.

Nor do we find any error in the instruction granted at the instance of the defendant. It asserts that if the jury find that the defendant received from Campsen & Co. the letters of the 16th and 20th of September, and that the bills of lading for the flour in controversy indorsed by Campsen & Co., were transmitted to the defendant by these letters, and that the defendant had been the holder and owner of the acceptance of Campsen & Co. due on the 19th of September, mentioned in the letter of the 16th, and before the receipt of that letter this acceptance had been discounted by the Citizens' National Bank and indorsed by the defendant, and was then the property of that bank, and that in accordance with the request in that letter, the defendant paid this draft to the