It was unnecessary to explain to them the reasons why the direction was given.

Objection is made that the court misconstrued a mortgage deed given by E. B. Wilmot, one of the plaintiff's predecessors in title, in 1869, and the release of it to him, given in May, 1871. These deeds purport to convey about 34 acres of land, and bound it "easterly by highway." At these dates the road above the line of the old stone wall had been laid out by the town, and was in use. The whole Wilmot farm, if bounded southerly or easterly on Long Island Sound, comprised about 37 acres. If the trial court ruled that the calls of these deeds were satisfied by taking the easterly bound as on the new highway, it did not err. Whether it made such a ruling, however, is not shown in the record with sufficient distinctness to save the exception, if one was taken.

In disposing of the cause, the court ruled that two of the defenses set up were claims of title of the same character. Each of these was of an estate in fee in the town of Orange through title derived by the act of incorporation from the town of New Haven, and a similar estate in the latter town since its formation; but in one of them was added a claim of immemorial possession, and also of title under the Walter Wilmot deed of 1846. A defense of adverse possession had been filed and then withdrawn. Mere possession, however long continued, unless exclusive and adverse, could be of no avail against the paper title established in the plaintiff, accompanied, as it was, by evidence tending to show actual possession by him. The Walter Wilmot deed did not embrace the land in controversy. In substance, therefore, so far as the issues to be determined by the jury were concerned, the defenses were identical.

It is contended that in ruling that two of the claims set up in the answer were legally insufficient to support a verdict for the defendants the trial judge erred, because, on demurrer, they had been decided by another judge to be sufficient. The former decision was not that they were sufficient, but that their sufficiency could not be attacked by demurrer. These and several other of the "defenses" into which the answer is divided were in the form of claims of title, followed by a specification in the shape of a recital of the sources of title from which they are derived. The claim was not the subject of an issue. The specification of the sources of title, if pleaded as an averment of fact, was. Whether it was so pleaded was questionable.

In the memorandum of decision filed by Judge Thayer, it is pointed out that the demurrer filed by the plaintiff, which was under consideration, reached back to the first fault in the pleadings, and that the complaint contained a mere claim of title, without any allegation of title. If, however, any differences exist between the views set forth in his mem

61 A.-8

orandum and those which induced later rulings of Judge Gager, the important question is not whether there was a difference, but which view was right. Wiggin v. Federal Stock & Grain Co., 77 Conn. 507, 516, 59 Atl. 607. Assuming that the answer alleged title and specified its source, it was the proper subject of demurrer or denial. The claim was an affirmative one. An assertion of title put forward in pleadings by either party must be supported, if attacked, whether it be challenged because unsound in law or untrue in fact.

In the arguments before us, counsel for the defendants sought to raise the point that it was not an undisputed fact that the land in controversy was included in the allotment made to Thomas Trowbridge in 1680. It is explicitly stated to have been such in the finding. No exception having been taken to this statement in connection with the appeal, it must stand as conclusive. There is no error.

TORRANCE, C. J., and HALL and PRENTICE, JJ., concurred. HAMERSLEY, J., dissented.

(211 Pa. 556)

YERKES et ux. v. STETSON. (Supreme Court of Pennsylvania. April 24, 1905.)

SERVICE OF PROCESS-MEMBER OF FAMILY.

A return to a service of summons in trespass against a minor was served on S., Jr., by handing, November 19, 1903, a copy of the "within writ to an adult member of his family at his dwelling house, said adult being his father." Held, that under Act July 9, 1901, authorizing a summons to be served by handing a copy to an adult member of defendant's family at his dwelling house, the service will not be set aside on the ground that the dwelling house was that of the father, and not that of the son.

Appeal from Court of Common Pleas, Montgomery County.

Action by A. Addis Yerkes and Anna R. Yerkes against John B. Stetson. From an order overruling a motion to set aside service of process, defendant appeals. Affirmed.

The following is the opinion of the court below (Weand, J.): "The writ in this case is in the ordinary form, and, according to the return of the sheriff, was served as follows, viz.: 'Served John B. Stetson, Jr., by handing November 19, 1903, a true and attested copy of the within writ to an adult member of his family at his dwelling house, said adult being his father, John B. Stetson, Sr.' The reason for setting aside the service as set forth in the petition of John B. Stetson is that said John B. Stetson, Jr., party defendant in said suit, is a minor between the age of fourteen and twenty-one years; that said minor was at the time of service, and still is, absent in a distant state, for his protection; and that the house referred to in said return is not the dwelling house of the infant, but of your petitioner, and is his ex

clusive property. By Act July 9, 1901 (P. L. 614), a writ of summons is to be served (a) by handing a true and attested copy thereof to him personally; or, (b) by handing a true and attested copy thereof to an adult member of his family at his dwelling house; or (c) by handing a true and attested copy thereof at his place of residence, to an adult member of the family with which he resides.' All the material facts necessary to a decision of this case are set forth in the petition to set aside the service and the answer thereto. It is not necessary to cite authority to show that the defendant, being a minor, has not, by a mere temporary absence, acquired a domicile or residence separate from his father; the only question being as to the regularity of the service which was made under clause 'b.' If the dwelling house of the father is also within the meaning of the law, the dwelling house of a minor son, living with his father, then the service was strictly in accordance with the requirements of the act. In personal actions in this state the law makes no distinction as to the method of service of original process between a minor and an adult; but, after service, before judgment can be taken against a minor he must have a guardian. It is claimed by counsel for this motion 'that the service upon a minor must be personal,' and that the dwelling house of the father was not the dwelling house of the son. To hold the first proposition to be true would be equivalent to saying that by mere temporary absence service could be avoided, if by personal service is meant service upon him individually, and not by leaving a copy with others. If so, in this case, if the minor is fourteen years of age, by remaining away at school, or for his health, for seven years, he would not lose his domicile or residence in the county (his father remaining), and thus prevent service. We cannot so construe the law. By clauses 'b' and 'c' the act provided for different classes. In the first 'b', where the defendant has a dwelling house, or, what is known generally as a home, where a person resides permanently with his family. By 'c,' where the defendant resides or lives with others-with persons not members of his family; not at his own home or dwelling house; a distinction being drawn between 'residence' and 'dwelling house.' A person may have a dwelling house without being the owner, and hence the term in clause 'b' is not used in the sense of 'ownership,' but of 'occupation.' A minor's home, habitation, or domicile, whichever term is used, is prima facie with his parent, and it is therefore his dwelling house or place of abode. Anderson's Law Dictionary defines 'dwelling' in these words: 'A person has his dwelling where he resides permanently or from which he has no present intention to remove.' 'Dwelling house, a description of realty.' This service therefore was made at the dwelling place of the defendant, being at the

house where he lived, and the house or place recognized by law as his home, or domicile. If this position is correct, then the service upon his father was also 'upon an adult member of his family,' else it could not be made upon him at his dwelling house, unless handed to him personally. A minor, unless married, strictly speaking, has no family of his own, but he is a member of his father's family; and in that sense every member of the father's family is also a member of the family of the others comprising the household. The Century Dictionary defines 'family' to mean: (1) The collective body of persons who form one household under one head and one domestic government, including parents. children, and servants, and, as sometimes used, even lodgers or boarders. (2) Parents with their children, whether they dwell together or not; in a more general sense, any group of persons closely related by blood, as parents, children, uncles, aunts, and cousins; oftener used in a restricted sense only of a group of parents and children founded upon the principle of monogamy.' (4) In the most general sense, those who descend from a common progenitor.' It is no answer to say that the son resides with his father, and that, therefore, it is 'his place of residence,' within the meaning of clause 'c.' It is his place of residence; but it is also 'his dwelling house,' within the meaning of the act of assembly. The law did not intend to change the family rela tionship in this regard when it merely provided for a method of service of process in a personal action; and clause 'c,' in speaking of service at his place of residence, did not place a minor living with his parents on the same basis as a defendant residing or living with others, and not at his own home or dwelling house. And now, April 18, 1904, the motion to set aside the service is overruled."

Argued before MITCHELL, C. J., and DEAN, FELL, POTTER, and ELKIN, JJ.

N. H. Larzelere and John G. Johnson, for appellant. Russell Duane, Theodore Lane Bean, Algernon B. Roberts, and Harry T. Bauerle, for appellees.

PER CURIAM. This appeal being taken shortly after the close of the Montgomery county list last year, the appellees, in May, 1904, made a special motion to quash on the ground that there was no final judgment in the court below from which an appeal would lie. The motion, being somewhat unusual as to time and out of the ordinary course of practice, was dismissed temporarily, and the consideration of the matter postponed until the case should appear in its regular place on the Montgomery county list, where it has now been reached. The appellees now withdraw their motion, and ask to have the question raised on the record decided, so as to relieve them from further delay on this

1. GAMBLING CONTRACTS - SPECULATION IN FUTURES.

A transaction in futures is illegal if it is the intent of the parties only to pay or receive the difference between the contract price and the future market price, without delivery of the subject of sale.

[Ed. Note. For cases in point, see vol. 24, Cent. Dig. Gaming, §§ 22, 25.] 2. SAME-Pledge.

The legality of a purchase of merchandise for sale on speculation is not affected by the fact that the purchaser pledges the merchandise to secure the purchase money.

3. SAME EVIDENCE.

Where testimony is conflicting, the intent of the parties in speculating in futures may be determined from the course of dealing.

[Ed. Note. For cases in point, see vol. 24, Cent. Dig. Gaming, § 101.]

Appeal from Court of Common Pleas, Philadelphia County.

Action by Edmund P. Jennings against William McK. Morris and Edwin J. Morris, trading as Morris & Co. From an order dismissing exceptions to the referee's report, plaintiff appeals. Affirmed.

From the referee's report it appeared that the plaintiff was a cotton broker in Philadelphia, and the defendants were manufacturers of cotton at Yardville, N. J. The defendants had for four or five years bought cotton through the plaintiff. During the year 1900 the defendants gave plaintiff orders to buy many thousand bales of cotton. These orders were filled, and subsequently, on a marked decline on the price of cotton, and on the failure of defendants to furnish sufficient margin, the cotton was sold, resulting in a loss, for which this suit was brought. The referee, after stating the facts, reported as follows:

"The principle governing the facts is distinctly established by decisions in Pennsylvania. Peters v. Grim, 149 Pa. 163, 24 Atl. 192, 34 Am. St. Rep. 599, and Assigned Estate of L. H. Taylor & Co., 192 Pa. 304, 43 Atl. 973, 73 Am. St. Rep. 812. It may be stated as follows: Merchandise (grain, cotton, oil, etc.) may legally be bought and sold upon speculation, and the purchase may be with borrowed money or upon credit, and with or without security; and the legality is

not affected if the purchaser pledges the merchandise to secure the payment of the purchase money, or, in other words, he may engage the pledgee (his broker or another) to 'carry it' (to use the commercial phrase), and this (further to adopt the current word) either with or without part payment of the purchase money, 'the margin.' But the transaction becomes illegal if, instead of this, it is the intention of the parties, shown by their course of dealing, merely to pay or receive the difference between the contract prices and the future market prices, without the delivery of the subject of the sale.

"In the case for decision the plaintiff testified he had every reason to believe, did believe, and expect that the cotton for the purchase of which he had the defendants' orders would be taken by them (that is to say, that the contract was to be perfected by delivery), and that in the case of every purchase he tendered the cotton to the defendants. E. J. Morris, on the contrary, testified that the dealings in futures were gambling transactions, pure and simple, although on cross-examination he seemed reluctant to repeat this, and very much modified it. In view of this contradiction, such as it is, what the intention of the parties was must be determined from such of their acts and course of dealing as manifested it.

"The legal presumption is that the transactions were not contrary to law. Bibb v. Allen, 149 U. S. 481, 13 Sup. Ct. 950, 37 L. Ed. 819; Clews v. Jamieson, 182 U. S. 461, 21 Sup. Ct. 845, 45 L. Ed. 1183. And the onus of proving they were so was upon the defendants. This they sought to do from the plaintiff's statements of account of futures rendered them. The significance of these is only developed when compared with the plaintiff's bills for cotton that was delivered. In all such bills the cotton was either designated by marks and the weight of each bale or of the entire amount sold. So many bales a month were to be delivered at the defendants' mills, and the terms for which the note in payment was to be given were specified, and subsequently the cotton sent each month was weighed at the mill, and the plaintiff advised of this in detail. In the statements of account with regard to the transactions in dispute, the cotton was not designated either by marks, number, or weight; and since these statements showed that not only the purchases, but also the sales, of the same merchandise were in the hands and under the control of the plaintiff, it was doubly businesslike, if bales were delivered, that they should be so described that the defendants might verify the accuracy of what was stated to have taken place. These statements of account are such as would be rendered if no more was intended than a settlement of differences between the contract and market prices. There are so many bales bought, the same number sold at the same time, and the dif

ference in price designated as profit or as loss, as the case may be. The presumption of legality was in this manner rebutted by evidence, and it thereupon fell to the lot of the plaintiff to establish by further evidence, if practicable, the legality of the contracts with the defendants. This was undertaken by the letters which in each case he wrote to the defendants, stipulating that in such transaction actual delivery was understood and intended, and by his testimony that he tendered the cotton to the defendants, and that they assured him they were buying to load up with cheap cotton to protect themselves from an expected trust combination.

"Undoubtedly the letters must be deemed as the stipulation of each party that actual delivery of cotton was intended. But each knew doubtless that dealings in mere differences were wagers and illegal, and, knowing this, each might naturally choose to cover the illegality by a seeming legal contract. Passing that as of no great moment, however, it is clear that, notwithstanding the plain written assertion that actual delivery was intended, such intention might be given up for another; and that it was abandoned by the course of dealing is shown by the difference between bills rendered for cotton bought and delivered, and statements of cotton futures before pointed out. Although the testimony of the plaintiff that he always tendered to defendants the cotton he bought for their account was denied by no more than an inference from E. J. Morris' testimony, yet the statement itself was insufficient to establish an offer to deliver so many bales of cotton, inasmuch as it failed to show that plaintiff had the control of, and could have made actual delivery of, the cotton tendered, in failing to designate the locality of such cotton, or the production of the books of the warehouse in which it was, or any explanation why this was not done. It is determined, therefore, that, whatever the plaintiff meant by the assertion that he tendered the cotton, it did not establish the fact that he controlled it so that he could actually deliver. Finally that part of the plaintiff's testimony to the effect that the parties intended actual delivery, because defendants wanted to load up with cheap cotton, seems plainly inconsistent with the established fact that the defendants required or permitted the plaintiff to sell all that he bought, and to do so within a few weeks or months of each purchase. The testimony intended to re-establish or to maintain the presumption in favor of legality failed of its purpose, and this, it is thought, becomes further evident by a comparison of these dealings with the more common but analogous ones in stock. As is generally known, when stocks are bought upon margins, and the purchasing broker carries the stock, he actually buys for his customer the shares, takes them to a bank or trust company, there pledges them to obtain the greater part

of the funds with which to pay their cost. With respect to margin transactions in merchandise, where they are not mere settle. ment of differences between the contract and the market price, the broker buys for his customers' account the grain or cotton, generally stored in a warehouse, obtains a negotiable warehouse receipt, pledges it with a bank or company having money to loan, and so gets the greater part of the money with which to pay the price of the merchandise. In such or some similar way the plaintiff would have had control of cotton if he had in fact purchased bales for the defendants' account, and in such case could readily have established in this suit that he had the means to perfect the tender of cotton which he said he had made.

"It was urged that the defendants, under the writing with respect to actual delivery, could have legally compelled it; that therefore the plaintiff has a similar right with regard to them. If one might do so, the other certainly could. But had the defendants sought by suit to compel delivery, the plaintiff had it in his power successfully to defend on the ground of illegality of contract (if a sense of business adherence to a contract did not prevent), and, yielding in such a suit, would have been a voluntary and not a compulsory act.

"It remains to consider the persuasive, the potent, appeal of the attorneys for the plaintiff that E. J. Morris having admitted that his firm received from the plaintiff large profits in dealings in 1899 exactly analogous to those which he characterized as gambling in this suit in order to escape the payment of losses, and the evidence having demonstrated that if the plaintiff had declined to stand by an agreement with the defendants, as they were now doing with him, he would have saved himself the loss of over $8,000, it would be in a high degree unjust to allow the defense to prevail, and that the testimony of E. J. Morris was evasive, at times contradictory, at others incredible, and that his manner of giving it was suggestive of withholding that which he knew, and therefore every intendment should be made against him. If the decision which has been reached depended upon his testimony, a critical review of it would be proper. But as has appeared, the conclusion arrived at depends upon the evidence alone of the course of dealing of the parties. Among men of the business world and in the market place, if any answer could be made to this appeal on behalf of the plaintiff, it is unknown to the referee. The only one which he can make is that which his office compels, and it is to say that the contract under consideration intended no more than wagering, which, in a court of law, is illegal, and the illegality is not affected by the heavy hardship which in this case follows in its train. "The plaintiff, in the game in which the defendants were playing with him, believed

they would play according to rule and in fairness. Accordingly he felt he was justified, instead of appropriating the proceeds of two notes of $2,742.15 and $3,190, which the defendants' letters of May 19, 1900, directed to be used to renew two others in another way, and to the then very heavy indebtedness of the defendants to him. Whatever might have been his right in this behalf, had such indebtedness been the result of legal dealings, he had not the right to use the proceeds of these notes with regard to an indebtedness resulting from the mere settlement of differences, and accordingly from the misappropriation he is indebted to the defendants in $5,932.15, with interest from July 24, 1900, to the date of this report.

"Pursuant to the foregoing, the decision of the referee is that the contract between the plaintiff and the defendants concerning futures required the mere settlement of differences between the contract price of cotton and its market price, did not intend the delivery of cotton, and is illegal, and that the claim of the plaintiff pursuant to his statement is not recoverable from the defendants."

Argued before MITCHELL, C. J., and FELL, BROWN, MESTREZAT, and ELKIN, JJ.

Henry J. Scott, Ruby R. Vale, and Alexander & Magill, for appellant. John G. Johnson, and J. W. Bayard, for appellees.

PER CURIAM. The learned referee in the court below reviewed the evidence with great care, and found as a fact, evidently with reluctance arising from the dishonesty of the defense, that the transactions out of which the plaintiff's claim arose were wagering agreements, not enforceable at law. To the facts thus found he applied the law with entire accuracy, and, after a most careful examination, we are forced to sustain his conclusions.

Judgment affirmed on the report of the referee.

(211 Pa. 606)

MORRIS et al. v. JENNINGS. (Supreme Court of Pennsylvania. May 1, 1905.)

Appeal from Court of Common Pleas, Philadelphia County.

Action by William McK. Morris and Edwin J. Morris, trading as Morris & Co., against Edmund P. Jennings. From an order dismissing exceptions to referee's report, defendant appeals. Affirmed.

Argued before MITCHELL, C. J., and FELL, BROWN, MESTREZAT, and ELKIN, JJ.

PER CURIAM. This case was tried be low and argued here with Jennings v. Mor

ris, 61 Atl. 115 (opinion filed herewith), and the judgment is affirmed on the referee's report.

(211 Pa. 577)

JONES et ux. v. SCRANTON COAL CO. (Supreme Court of Pennsylvania. April 24, 1905.)

INJURY TO EMPLOYÉ EVIDENCE.

In an action to recover for the death of a boy employed as a slate picker by a mining company, a nonsuit is properly entered where his death was caused by being caught in the elevator machinery of defendant's breaker, and his employment did not call him to such machinery, and there was nothing to show how he came near enough to be injured by it.

Appeal from Court of Common Pleas, Lackawanna County.

Action by Whitemore Jones and Elizabeth Ann Jones against the Scranton Coal Company. From an order refusing to take off a nonsuit, plaintiffs appeal. Affirmed.

On a rule for a new trial Kelly, J., filed the following opinion:

"Daniel Jones, a boy a little over fifteen years old, son of the plaintiffs, was killed on January 7, 1901, by being caught in the elevator machinery of the defendant's breaker. There was no eyewitness to the accident, and no evidence to show how he came to be near enough to the machinery to be injured by it. He was employed as a slate picker in the August previous, and during all of the intervening time worked at the breaker as a slate picker, until the day of his injury. On that day he was engaged in the occupation of keeping the coal running in the chutes which lead from the elevator machinery to the screens; that is, whenever the coal became clogged he loosened it with a shovel and started it running again. There is no evidence to show how he came to be so engaged on the day of the accidentwhether by order of the foreman or as a mere volunteer-but, assuming it was by order of the foreman, his work in keeping the coal running in the chutes did not require him to be in any dangerous proximity to the elevator machinery. When last seen, a minute or two before the accident, he was leaning over the chute, watching the coal running down into the screen, about ten feet away from the machinery. He would have to go up several steps to get to the elevator, and the evidence shows that it was no 'part of his business to go to it or be near it, even in the work of looking after the chutes. While some of the testimony showed that the machinery in question was substantially guarded, there is other testimony tending to show that it was not. The negligence complained of in the plaintiffs' declaration was that the boy was required and permitted to do other work than that which he was employed to do-work more hazardous and dangerous-viz., to care for and move the culm from the elevators, and to keep the elevators