tract has been canceled or surrendered; and that he guaranties to his customer the performance of the contract originally made in his behalf."

This is a very good statement of what the testimony in the case at bar shows transpired between the parties, in the transactions here in question; and Judge GRESHAM held that the customs referred to were founded in commercial convenience, and that they were not in contravention of the law, but valid.

The supreme court of the United States in its review of the case in 110 U. S. 499, 4 Sup. Ct. Rep. 160, although it reversed the judgment of the court below upon another point, did not question the correctness of Judge GRESHAM's ruling upon the validity of the methods of business referred to, by which differences were adjusted.

I must hold, therefore, that, for want of adequate proof of an actual intention on the part of both the defendant and the parties with whom the plaintiff as his agent dealt, not to make real sales and purchases, or not to make actual deliveries of property sold and purchased, the contention that the contracts were mere gambling transactions is not established.

It has, however, been a further question with the court whether, upon another point, the case was within the ruling of the supreme court of the United States in Williar v. Irwin, wherein it was held that the defendant was not liable to his brokers for moneys paid in settlement of differences, because it was not shown that the methods of settlement by means of which differences were arrived at were not known to him, and therefore the settlements were not made with his assent. The plaintiffs in that case were commission merchants and grain brokers in Baltimore, and the defendant and his deceased partner were engaged in business in Indiana. The contracts of sale were made and settled by the plaintiffs on account of their customers according to the custom of the grain and flour exchange in Baltimore, of which they were members, and there was no proof whatever that the defendants, living thus remote from the scene of operations, had any knowledge of the customs of the exchange. The court below decided that the defendants, having employed the plaintiffs as grain commission merchants, to engage in transactions for them on the exchange, were bound by the general usages and customs of business there prevailing, whether they had knowledge of them or not. This ruling was held by the supreme court to have been error, not on the ground that the customs tended in any way to show that the transactions were wagers, but because they worked a material change in the principal's rights, and the obligations of third parties to him, and therefore could not be binding upon him without his assent.

The evidence in the case at bar shows that the defendant Vosburgh must have been familiar with the methods and usages of business on the Chicago Board of Trade at the time when the transactions between him. and the plaintiff occurred. He lived not very remote from Chicago; was frequently in that city; and had for a considerable time been accustomed to transact business on the board of trade through brokers whom he employed. He sold butter and cheese on the board of trade at Elgin, v.31F.no.1-2

Illinois; occasionally visited the board of trade in Chicago with the plaintiff; and the plaintiff testifies unqualifiedly that the defendant was familiar with the methods of business upon the board. This testimony is not contradicted by the defendant, and he nowhere in his testimony attempts to deny knowledge of such methods of business. He was in constant communication with the plaintiff, gave orders for purchases and sales by letter and telegraph, received statements from the plaintiff as often as transactions took place, and no other conclusion is consistent with all the facts, than that he must have known the manner in which various trades made in his behalf, were closed out. The case, therefore, in its facts upon this point, is unlike that of Williar v. Irwin.

Appreciating, as I do, as indicated in the outset, the hardship probably entailed upon the defendant by an adverse ruling in this case, the court feels constrained to hold, upon the testimony as it is presented, and upon what it conceives to be the weight of authority, especially in this circuit, that the defendant is liable to the plaintiff for the amount of the plaintiff's claim for advances and commissions in the transactions in dispute.

SANBORN. STARK and others.

(Circuit Court, D. Colorado. May 4, 1887.)

1. PAYMENT APPLICATION.

A creditor is at liberty to apply payments of a debtor upon any one of the debtor's obligations, unless the debtor names the debt on which he is making payment.

2. SAME SECURED AND UNSECURED DEBTS.

Where there are two debts, one secured and the other unsecured, the court will as a rule apply a payment upon the unsecured debt.

8. PARTNERSHIP-POWERS-RENEWAL OF NOTE.

The renewal by one partner of a partnership note, after dissolution of the partnership, is binding upon the co-partner, if the latter recognized and consented to it.

On Motion for New Trial.
M. B. Carpenter, for plaintiff.
J. W. Horner, for defendants.

BREWER, J. In this matter of Sanborn against Stark, motion for new trial on two grounds, first that one payment of six hundred and odd dollars was not credited on the note of $650, but on some other indebtedness of the other partner. There is nothing in that; the creditor is at liberty to apply payment upon any one of the obligations of his debtor, unless the debtor names the debt on which he is making the payment. Even if he had not made that application himself, where there are two debts, one secured and the other unsecured, the court ordinarily will apply a payment upon the unsecured debt; and the claim here is that this

note was the debt of defendant's partner, upon which defendant was security.

The other point is equally unsound. The claim is that the note for $650, upon which judgment was rendered, was a renewal, and that as a renewal it was not binding on this particular defendant, Stark, because of the prior dissolution of the partnership, a fact which was known to the creditor at the time he took it. The truth of the matter is, the renewal was consented to by this defendant. It was given as a renewal of a part of a $2,000 note upon which confessedly both defendants were liable. The renewal was some time about the twentieth of August. On the third of August this defendant writes to his partner: "Friend Sanborn: Yours of twenty-eighth July just at hand. I wrote you some days ago I could not provide for payment of note due 18th, Exchange Bank; and I cannot. It must be renewed." August 18th, Exchange Bank, $2,000, that was the note upon which both defendants were liable, and this defendant writes to his partner saying, "It must be renewed." And on the twenty-seventh of August, after the renewal, he writes: "Yours twentieth August received. I am surprised you should renew those notes for so short a time, as you must be aware collections are coming in very slowly, and I cannot meet them." Obviously both before and after he recognized and consented to the renewals. The motion will be overruled.

UNITED STATES v. MOLLOY.

(Circuit Court, E. D. Missouri, E. D. April 20, 1887.)

1. VOTERS-FRAUDULENT REGISTRATION.

Where the state statutes require voters to appear before the register and take a prescribed oath before registering, it is an offense indictable under section 5512, Rev. St. U. S., for a recorder of voters to knowingly, willfully, and fraudulently enter in the registration books, or cause to be entered therein, the name of a person as a qualified voter who has not appeared before him and applied for registration, nor taken the oath required by law.

2. SAME.

Where the act is proved to have been done knowingly and willfully, and not merely through inadvertence or ignorance of official duty, a fraudulent motive may be inferred.

To register a voter who has not appeared or taken the oath is not a criminal offense, however, if done without any fraudulent or criminal motive, but merely through inadvertence or ignorance of official duties, or of the manner in which they should be performed.

4. SAME-WRITING VOTER'S NAME.

The mere writing of a person's name in the registration books is in itself no offense if the person whose name is written appears and applies for registration, or takes the oath, and expressly or by necessary implication requests the officer to write his name.

5. SAME-DECEPTION OF REGISTER.

Where persons appear before a register and give false names or places of residence, and apply for registration under such names or from such places of residence, and the register is imposed upon and places their names upon the registration books as duly qualified voters, he is guilty of no offense.

6. CRIMINAL PRACTICE-ARRAIGNMENT AND Plea.

Where a defendant was not arraigned and made no plea before the trial, but was identified, knew exactly the offense charged, denied the charge, went to trial on the denial, and went upon the witness stand and there denied the offense, and was convicted, held, that he was not entitled, under the federai statutes, to a new trial, because of the failure of the record to show an arraignment and plea, for the reason that the irregularity was a "defect or imperfection in matter of form only," within the meaning of section 1025, Rev. St. U. S., and did not tend to his prejudice.

7. SAME-EXPERT EVIDENCE.

The jury in a criminal case are not bound by expert evidence as to handwriting any further than it coincides with their own opinions, or than they think it deserves to be credited.

Indictment under Rev. St. U. S., § 5512, for fraudulent registration of voters in St. Louis, Missouri.

For Missouri statute relative to registration of voters in cities of over 1,000, see Sess. Laws Mo. 1883, p. 38.

There was no formal arraignment and plea.

Thomas P. Bashaw, for the United States.
Naplon & Frost, for defendant.

THAYER, J., (charging jury.) If the testimony in this case satisfies you beyond any reasonable doubt that this defendant was a deputy recorder of voters for the Twelfth ward of this city at the registration held last September, for the November election of the year 1886, and that as such recorder of voters, having the registration books in his custody, he "knowingly and willfully," and not merely through ignorance or inadvertence, entered therein, or caused to be entered in such books, the names of any of the persons named in this indictment, as though they were qualified and duly registered voters, when in point of fact such persons did not appear before him or apply for registration or take the oath required of voters, then you will find him guilty. You may infer that he was actuated by some evil or fraudulent motive, if he committed the act charged in this indictment "knowingly and willfully," and not merely through inadvertence or ignorance of his official duties. You may judge of the credibility of all of the witnesses, and give their testimony such weight as you think it deserves.

The testimony of the expert as to handwriting is simply an expression under oath of an opinion which he entertains, and you are not bound by it any further than it coincides with your own opinion based on the examination you have made of the handwriting in question, or than you think it deserves to be credited with on account of the experience he has had in comparing handwriting.

Now, on the other hand, you will give the defendant the full benefit of the presumption that he is an innocent man, and you will not convict him unless the government has proven the charge in the indictment. beyond any fair or reasonable doubt; and even though you think that he wrote the names mentioned in the indictment, or caused some of them to be entered on the registration books, when the persons did not appear before him or take the oath, still you must not convict him if the

evidence satisfies you that he had no fraudulent or criminal motive in so doing, but that his act was merely the result of inadvertence or ignorance of his official duties, or ignorance of the manner in which those duties ought to be performed.

The mere writing of a person's name in the registration book by the registration officer is in itself no offense, if the person whose name is written appears before the registration officer and applies for registration, or takes the oath, and expressly or by necessary implication requests the officer to write his name. It is immaterial who writes the name. In other words, gentlemen, the offense laid in this indictment consists in the act of entering names of persons on the registration books who do not appear before the officer, or apply for registration or take any oath. such as the law requires. If persons came before this defendant and gave false names and places of residence, and applied for registration under such assumed names or from false places of residence, and the defendant was imposed upon by such persons and in good faith administered the oath and placed their names on the registration books as qualified voters, and in that way some of the names mentioned in the indictment were placed upon the books, then the court directs you that you cannot convict the defendant by reason of any of his acts in respect to such names. If all the names in the indictment, as the defendant has testified, are names that were given to the defendant by persons who actually came before him and gave such names and their residences, and took the oath and applied for registration, and the defendant accepted them and placed their names on the books in good faith, that is, he being ignorant of any wrong-doing on the part of those persons making the application, (if there was any wrong-doing on their part,) then you must acquit him.

You can take the case.

The jury brought in a verdict of guilty.

A motion for a new trial was then filed, and the following opinion was delivered thereon:

BREWER, J., (orally.) While this case was not tried before me, yet I was present and heard the argument yesterday, which was before both of us, and the single question presented is one of law, so that I take part in the decision of that question, which is this: the record fails to show an arraignment and plea before the trial. It has been repeatedly decided by the supreme court of this state that a record which fails to show an arraignment and plea discloses such error as compels the granting of a new trial by that court. It is claimed that that line of decision expressing the settled law of this state is controlling in this court, and that we must therefore, following it, set aside this verdict. It is worthy of note, in the first place, that while that is the settled law of Missouri, it is