488

BEDERAL REPORTER.

The plaintiff relies upon the aot of first Maroh, 1879, § 21, (20 St. 351,) whioh enacted that' 'gallont' whenever used in the internal.revenuelaw, relatirlg to ;beer, ale, porter, or other similar fermented liquors, shall be held and taken to mean a wine gallon,the liquid measure containivg 231 cubic inches." But this act was plainly declaratory;. of the law as it then existed, and was not intended to e3tablish anew standard of measurement in the customs and excise departments. Its object was to put a stop to an erroneottBpractice then prevailing in the internal-revenue department, of estimating domestic malt liquors by beer measure, and to require it to conform to the reorganized standard of the customs service and of the mercantile community. We are of opinion that the collector was right in estimating the plaintiff's importation by the wine gallon, and assessing the duty thereon accordingly. The point was determined in the same way by Mr. Attorney General DEVENS, whose learned opinion is reported in 16 Op. A.tty. Gen. 859.· 'We fully concnr both in' his reasoning and conclusion. Judgment for the defendant.

UNION NAT. BANK Ol" CHICAGO, ILLINOIS, 'lJ. CARR

and others.

(OircuiHlo'U'I't, B.D. IOtDu, U. D.

OPTION CONTRAc'rs-VALIDITY OF.

1883.)

Option contracts are not necessarily illegal, and the incident of putting up margins amounts to nothing unless the contract itself is illegal. The validity of such contracts depends upon the mutual intention of the parties as to the actual sale and delivery of the property, or a pretended and fictitious sale. to. be settled upon differences,

OD Exceptions to Master's Report., Lehmann et Park,. for complainants. E. J. Goode, for defendants. LOVE, J. There seems to be no.serlOUS question made in this case. except that of the legality of the contracts, which lie at. the basis of the controversy. It is insisted that the contrl:1-cts in. question wel'e illegal because they were "()ption" contracts, and ,because the defend. ant was charged with certain losses, by reason of his failure to put up "margins;" etc. The evidence, however, falls far short of what is necessary to, establish illegality incQntracts of this kind. All "option" contracts are not illegal, the of up

THE ,"IODANTHlll"OASlll.

margins amounts to nothing, unless 'the contract itself is illegal., The validity of "option" coritracts ,depends l1potithe mutual intentions of the parties. , If it be not their' in,tention .in. making the contract that any property shall be delivered or paid for, but that the pretended and fictitious sale shall be settledupori differences, the agreement amounts to a mere gambling upon the fluctuations of prices, and the. contract is. utterly void. But if it is the l,wna fide intention of the seller to deliver or the buyer to pay, and the option consists merely in the time of delivery within a given time, the con· tract is valid. If the contract itself is lawful, the putting up of margins to cover losses which may accrue from the flllcttiationot prides, and theflI1a1 settlement :of the transactionacoerding to the usages and· rules of the board of trade, are entirely legitimate and Nothing whatever appears in the present case to impeach the valid:' ity of the transactions in question, except that the 'defendant was dealing in optionstbrough his broker on the board of trade; that he failed to put up required margins; and that his transaotionswere set.:. tIed at heavy los8es, whioh were eharged to him. ThisiS.:intirely insufficient toinv'ttlidate the charges made in the account 'against him. The exceptions to the master's report will be overruled and a decree entered for the complainant. " . , There is, at doubtwhetber a decree Mn be entered till the' next term. Let thecatlse, therefore, stand over t:illth"t time.

CARTEV. FORD

and another.

(Circuit Court, n. Maryland. February 21,1883.)
1.

DEDJCATX6N OF OPERA .BY PUBLICATION 01' UNdopYBIGHTED SCORE AND BRETTO.

LI-

The non·resident alien authors of the comic opera of '! Iolanthe,'" having States of the librettO and VOCIl.l score, sanctioned the publication in the with a piano accompaniment, and having kept th!!. in manu,' script, held, that a person who had independently arranged aneworchestratiop, using for that purpose only Ute' published vocal and piano.forte sl:mes, could not he enjoined from pUbliCly perfomiing the'opera with the new orchestra. .