Page images

forgotten on this forgetful earth.

Alas !

of the books of the celestial city, no matter how negligentiy

for those who give to others all their affection! When the ties are broken the struggle is indeed hard, and when we see this venerable head bearing its seventy-five years, bowed over his writing at his desk and shedding passionate tears over the memory of the wife who had been his constant companion during his busy life, we feel the wealth of affection he had bestowed, and the depth of feeling of which his spirit was capable. Yet to Marshall was given a great consolation too often denied to those whose days have long outlived their generation. As the charred brand that lies on the hearth, and with blue smoke curling feebly upward seems to offer a mute appeal for its separation from its fellows so brightly blazing in the glowing grate. So the last days of those cursed with a too great longevity, are too frequently passed in silence and seclusion the former companions dead, the former faculties fast fading, and the world with its burning issues of the bright present leaving them further and further behind. was of that character that built far into the future, and each year of life, but assured him the stronger of its complete fulfillment. He worked to the last, no decline of mental vigor, no symptoms of approaching decay, and when fourscore well spent years had passed away, his dust was gathered to mingle with the other illustrious dead in the soil of that country whose prosperity he had so nobly cnhanccd, and of the State whose

he had so highly adorned, and the great bell that “proclaimed liberty throughout the land," as if conscious that, in this man's death, its work was donc, cracked its iron heart in the strokes that tolled his funeral knell. “De Mortuis" is not necessarily a cynical aphorism, but the result of the calm judgment of retrospection. Many that have labored through a toilsome life to build their immortality have reaped its rewards only in death. Often at the close of a hot summer's day we turn our eyes toward the sun as he sinks

are but too apt to undervalue master minds.


or the next, his surroundings changed but his work


behind the hills in his fiery splcndor, with his bright bcams lying athwart the landscape and Nashing upward like the golden lances of a scrried square, and in this most noble of spectacles, forgetting the oppressive burden and heat with which we had reviled his disc at noonday, we gaze half regretfully at his expiring glories. Something of a prayer breathed that we may atone on the morrow for this day's ingratitude to the great life-giver; a morrow that too often we may not sce. And thus when the heat of party strisc and faction has passed away, the people hasten to the death bed of a mastcrsul intellect too late, indecd, to accord an earthly satisfaction to a soul now freed from worldly tramnicls, but yet to breathe their prayers of atonement and their wishes for another lifc that can never come. The pomp and pagcantry of a solemn funcral, the glowing tribute of cloquent eulogies, the sculptor's chisel and thic painter's brush may all be invoked as a sacrifice in propitiation, and as a symbol branded deep in history, of past neglect, of ingratitude when living.

Thc true grcatness of Marshall could not be appreciated during his lifetime, only the eye that could scan futurity could behoid the fruition of his work. Only the cye trained to prophetic vision could have seen cach constitutional fibre of our National Government knit tighter together with cach succeeding year, or perceive how each plank in the ship of Statc fashioned by his hand, would cling closer to its fellow, only scasoned and hardencd by use, until a government based on political liberty should float through the mightiest surges of time, scathless, enduring, a model for posterity.

And even the glory accorded the dead, has not yet been given in its proper fulness to Marshall. His name stands with thousands of people as a name and nothing more. needs a memorial, other than that which he himself has wrought, not carved in perishablc marble or limned in fading color, nor made of the breath of oratorical vaporing, but sketched in living words, a biography, written by a master hand, and woven in the undecaying fabric of the English tongue.

NOTE.—The above address was delivered by Chester N. Parr, Jr., of the Philalelphia Bar, at the recent Counmencement of the University of Pennsylvania.

He yet

streth. Department of EQUITY:

The Annotations are prepared by the following Editors and Assistants :
Hon. George W. Dallas, Editor. Assistants : Anlemus Stewart,

Henry X. Smaltz, John A. McCarthy, William Sanderson Furst. Department of CuxSTITUTIUSAL LAW.

Prof. Christopher fi, Tiedeman, Editor. Assistants: Wm. Draper Department or MUSICIAL. CORINIRATIONS.

Ilon. John F. Dillon, LL. D., Editor. Assistant: Mayne R. Long.

Richard C. Mr.Juririe, LL. D., Editor. Assistants: Sydney G. Department of Torts.

Melville 1. Bigelow, Esq., Editor. Assistants : Benjamin H. DEPARTHIEST OF CORPORATIONS.

Angelo T. Freedles. Esq., Editor. Assistants : Lewis Lawrence Department of CARRIERS AND TRANSPORTATION COMPANIES.

Charles F. Beach, Jr., Esq., Editor. Assistants : Lawrence Gode Department of ADMIRALTY. Department of COMMERCIAL LAW.

orton P. Henry, Esq., Editor. Assistant: Horace L. Cheyney.

Frank P. Prichard, Exy., Editor. Assistants : H. Gordon Mo Department of IXSCRISCE..

George Richards, Esq., Editor. Assistants : George Wharton Department of CRIMINAL LAW AND CRIMINAL PRACTICE.

Prof. lieo. S. Giraham, Editor. Assistants: E. Clinton Rhoada
Department of l'Atest Law.
Department of PROPERTY.

Icwis, li'm. Struthers Ellis.
Fisher, Johu Douglass Brown, Jr., Robert P. Bradford.
Lowry, Alex. Durbin Lauer, Patrick C. B. O'Donovan.
Smith, Clinton Rogers Woodruff, Maurice G. Belknap, H.
Bovce Schermerhorn.
kiu, Owcu Wister, Victor Lcovy, Cyrus E. Woods.
Couch, Chas. C. Binncy, Chas C. Townsend, Francis H.
Bohlen, Oliver Boyce Judson.
Pepper, Luther E. Hewitt, Samuel Kahn Loucheim.

C. Percy Wilcox.
George Harding, Esq., Editor. Assistant : Hector T. Fenton.
Hon. Clement B. Penrose, Editor. Assistants: Alfred Roland

Haig, Wm, d. Davis, Jos. T. Taylor.

Hon. Marshall D. Emell, LL. D., Editor. Assistants : Thomas

E. D. Bradley, Jilton O. Sarauiorc.



Ilon. Wm. S. Ashman, Editor. Assistants : Howan! W. Page,

Charles Wilfred Conarıl, Joseph Howard Rhoads, William
Henry Loyd, Jr., Ellwanl Brooks, Jr., Sapiuel D. Matlack.


H. La Barre Jayne, Esq., Editor. Assistants : George S. Patterson,
Charles F. Eggleston,



Assisted by





Dealing in Futures-Delivery-Validity of Contract-Evidence. When there is evidence that the defendant and his cousin bought a quantity of wheat through repulablc members of the Chicago Board of Trade, which was delivered to them in the form of warehouse receipts; that actual delivery on demand was intended by all parties, and that they could have got the wheat on demand ; that thisy carried it a while on margin with said dealers; that whcat depreciated, and they closcd out at a loss, which was aii paid by the cousin, defendant giving him the note iu suit in settlement of his share-_in view of these facts a finding that the vote was unt fouuded on a gambling consideration will not be reversed.

FUTURES. No gambling device has ever afforded the votaries of fortune such opportunities or such incentives as the invention of “future" contracts; and at no time in the history of the world has gambling been carried to such ruinous excess. Thc tales of old-world extravagance and of ante-bellum recklessness fade into obscurity beside the millions that are staked on a single deal in wheat or corn; and no mania for cards could ever have wrought the widespread loss and suffering due to the cold blooded manipulations of a Gould or of a Fisk. But the effects of such dealings belong to the domain of economic science; the law is only concerned with their validity. The forms of these contracts are as numerous as the condi

Reported in 36 N. E. Rep. 296.

into an absolute obligation to deliver, and therefore bargains


“future" sell, or time.

I. A

which is

tions of human affairs; and their varicty is bewildering to any into a labyrinth of "puts" and "calls," sales "short" and "long," and the like, until we reach the highest development of the stock gambler's inventive genius in the famous “straddle,” that marvelous machine designed to rescue the unhappy operator from being impaled on either horn of a dilemma, though having a peculiar tendency to transfix him with both. But whatever the name, and whatever the outward form, a

to deliver or to receive commodities at some future

contract to buy or to sell goods, the execution of invalid, even though the goods are not in the possession of the vendor, nor has he contracted to procure them from possessed of them by the time appointed, otherwise than by McMorine, 5 M. & W.462; Ashton v. Dakin, 4 H. & N. 867;

392; S. C., 8 Sup. Ct. Rep. 221; Bibb v. Allen, 149 U. S. 481; S. C., 13 Sup. Ct. Rep. 950; Wolcott v. Heath, 78 Ill. 433; Pixley v. Boynton, 79 III. 351; Logan v. Brown, 81 Ill. 415; Cole v. Milmine, 88 Ill. 349; Apple6 Mo. App. 269; Cassard v. Hinman, i Bosw. (N. Y.) 207; Tyler v. Barrows, 6 Robt. (N. Y.) 104; Kingsbury v. Kirwin, 43 N. Y. Super. Ct. 451; Kahn v. Walton, 46 Ohio St. 195; S. C., 20 N. E. Rep. 203; Brua's App., 55 Pa. 294; Smith v. Bouvier, 70 Pa. 325. Nor is a future sale, with the privilege to produce or acquire them in time for a future delivery, and while wishing to make a market for them, is unwilling to enter

one not to the manner born or at least bred. Starting with simple "option" (to buy or to sell) we are soon introduced

Contract means substantially a contract to buy or to postponed to some future time, is not necessarily nor has any reasonable expectation of becoming

them after the contract is made: Hibblewhite v. o. Smith, 13 Fed. Rep. 263; White v. Barber, 123

Fisher, 34 Md. 540; Williams v. Tiedemann, on either side to execute the contract or not, necesillegal contract. “The vendee of goods may expect



Bartlett U. S.


[ocr errors]

reserved sarily an

« PreviousContinue »