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tion. It must have been a part of the contract,
-or there must have been in some way such a
•combination of intention between the lender and
borrower that the money furnished should be used
in aid of and to promote the unlawful enterprise
thAt they became parUceps criminia. Tyler v.
<;arlisle, 79 Me. 210, 9 Atl. Rep. 356; Waugh y.
Beck, 114 Pa. St. 422, 6 Atl. Rep. 928; Tracy v.
Talmage, 14 N. Y. 162; Arnot v. Coal Co., 68 N.
T. 568. Thus it was held In Bickel v. Sheets, 24
Ind. 1, that a contract for the sale of property
which the purchaser'intended to use for gaming
purposes, in violation of a statute, was not void,
Although the seller was informed at the time of
the sale of the purpose for which the property was
to be applied. Cummings v. Henry, 10 Ind. 109;
Feineman v. Sachs, 33 Kan. 621, 7 Pac. Rep. 222;
Distilling Co. v. Nutt, 34 Kan. 724, 10 Pac. Rep.
163; fisher v. Lord, 63 N. H. 514, 3 Atl. Rep. 927;
Oil Co. V. Boyett, 44 Ark. 230. There must be
knowledge of and participation in the illegal or
immoral purpose.

It is not necessary, however, that we pursue
this feature of the case further, and it is conceded
«ipon the record that the note in suit came to the
hands of the plaintiffs in the due course of trade,
t>efore maturity, for value, and without notice of
the purpose for which it was executed or drawn.
In order, therefore, to uphold a judgment which
invalidates commereial paper in the hands of in-
nocent holders, such as the plaintiffs are conceded
to be, it is essential that a statute should be shown
governing the case which in direct terms declares
that transactions such as those here involved are
•unlawful, and that notes given under the circum-
stances exhibited by the facts in this case are
Absolutely void. The principle may be considered
as well established that when a statute in express
terms pronounces contracts, notes, bills, securi-
ties, and the like, resulting from or growing out
of wagering or gambling transactions, which are
prohibited by statute, absolutely void, no recovery
•can be had thereon ; and the doctrine that trans-
lotions which a statute, in direct terms declares
to be unlawful cannot acquire validity by the
transfer of commercial paper based thereon,
which is also under direct legislative denuncia-
tion, is fully supported by authority. New v.
Walker, 108 Ind. 365, 9 K. E. Rep. 386; Thompson
T. Bowie, 4 Wall. 463; Vallett v. Parker, 6 Wend.
•615; 1 Daniel, Neg. Inst. §§ 197, 807. In such a
case the note will be declared void in the hands
of an innocent holder, in pursuance of the per-
emptory words of a statute which embraces in its
terms the contract or obligation under consider-
jttion. Town of Eagle v. Kohn, 84 III. 292. The
axithorities justify the statement that a defendant
may insist upon the illegality of the contract or
<<^n8ideration, notwithstanding the note is, in 4he



hands of an innocent holder for value, in all those
cases in which he can point to an express declara-
tion of the legislature that the illegality insisted
upon shall make the security, whether contract,
bill, or note, void ; but unless the legislature has
so declared, then, no matter how illegal or im-
moral the consideration may be, a commercial
note, in the hands of an innocent holder for value,
will be held valid and enforceable. Hatch v.
Burroughs, 1 Woods, 439; Town of Eagle v. Kohn,
supra; Bank v. Tinsley, 11 Mo. App. 498; Bank
V. Harrison, 3 McCrary, 316, 10 Fed. Rep. 243;
Edwards v. Dick, 4 Barn. & Aid. 212; Day v.
Stuart, 6 Blng. 109; Chit. Bills, 492; 2 Rand.
Com. paper, § 511.

It is argued, however, in support of the ruling
below, that, because the note sued on was nego-
tiated in consideration of money advanced with
which to prosecute a wagering or gambling spec-
ulation, it is nevertheless void in the hands of an
innocent holder, within the provisions of section
4950, Rev Stat. Ind. 1881, which declares, in ef-
fect, that all notes, bills, etc.^ when the whole or
any part of the consideration thereof shall be for
money or other valuable thing won on the result
of any wager, or for repaying money lent at the
time of such wager, for the purpose of being
wagered, shall be void. The note In suit having
been executed and made payable in the State of
New York, and it appearing that the alleged il-
legal transactions contemplated by the parties
concerned in issuing and putting the note in cir-
culation were to be engaged In and consummated
in the State of New York, the law of that State
must be looked to primarily in determining the
validity of the contract, the rule in that respect
being that a contract valid by the law of the State
in which it is made and is to be performed is valid
and enforceable everywhere, unless it is clearly
contrary to good morals, or jrepugnant to the pol-
icy or positive statutes of the jurisdiction in which
it is sought to be enforced. Tildon v. Blair, 21
Wall. 241 ; Bank v. Low, 81 N. Y. 566 ; Hawley v.
Bibb, 69 Ala. 52; Stix v. Matthews, 75 Mo. 96;
Swann v. Swann, 21 Fed. Rep. 299; Burns v.
Railroad Co., 113 Ind. 169, 15 N. E. Rep. 230;
Flagg V. Baldwin, 38 N. J. Eq. 219, 48 Am. Rep.
308; Hyatt v. Bank, 8 Bush, 193; MiUiken v.
Pratt, 125 Mass. 374. A contract, although valid
where made, will not be enforced if, by the laws
of the State whose jurisdiction is invoked, the
contract which is sought to be enforced is stigma-
tized as unlawful, and so prohibited. Relying
upon the invalidity of the note by force of the lex
loci contractus, the appellee has, as we have seen,
pleaded the statute of the State of New York re-
lating to gaming contracts, in one of the para-
graphs of his answer. In the other paragraph he
relies upon the statute of our own State to invali-
date the note. By section 8 of the New York
statute (2 Rev. St. ch. 20, tit. 8, § 8), all wagers,
bets, or stakes, made to depend upon any lot,
chance, casualty, or unknown or contingent event,
are declared to be unlaw tul, and all contracts fcfr



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or on account of any money, property, or thing in
action so wagered, bet, or staked are declared
void. The other section (2 Bev. St. cb. 20, tit. 8,
§ 16) declares, in effect, that all securities, any
part of the consideration of which is money won
by playing at any game, or by betting on the
hands of such as do play at any game, or tojrepay
any money knowingly lent, at the time and place
of any such play, to any person so playing, shall
be utterly void. This last section can have no
possible application to a transaction such as that
disclosed by the facts in the present case. It
would be an unwarranted perversion of common
and correct speech to hold that the consideration
of a note which had been executed in order to
obtain money with which to purchase options,
or to put up as margins in cotton speculations,
was money won by playing at a game, or by bet-
ting on the hands of others who do play, or to
repay money lent at the time and place of such
play. However much dealing in options may
resemble gambling or betting, and demoralizing
and pernicious as it may be, it cannot with any
degree of propriety be said to be winning or losing
money by playing at or betting upon any game
within the meaning of the statute. Statutes in-
volving penal consequence cannot be extended by
construction so as to include acts not in terms
forbidden, merely because of their resemblance to
the acts prohibited, or because they may be
equally demoralizing and injurious. Shaw v.
Clark, 49 Mich. 384, 13 N. W. Kep. 786. The pur-
pose of the legislation in enacting the statute was
to avoid securities, any part of the consideration
of which was money won by playing at any game,
etc. The words of the statute are not to be en-
larged by intendment, so as to extend beyond the
mischief contemplated, where such a construction
would be injurious to innocent third persons. A
statute ought not to be enlarged, by mere con-
struction, so as to to permit the very persons
guilty of the offense prohibited to retain money
obtained, contrary to the statute, from third per-
sons guilty of no violation of law whatever. Ed-
wards V. Dick, supra. The statutes against gam-
ing, which render all wagers, bets, and stakes
unlawful, and avoid all contracts for or on account
of any money wagered or bet, or any notes or
other securities, when the whole or any part of
the consideration thereof shall be for money won
or lost on any game or wager, and statutes which
make it a criminal offense to bet upon any game,
or the like, although not applicable in terms to
the purchase of options, are sufficiently indicative
of the policy of the law as respects mere wagering
contracts, of whatever description or nan^e, to re-
quire the court to pronounce all such contracts
and securities invalid in the hands of those who
were implicated in violating public policy by
frpeviUcally aiding or directly participating in the
furtherance of such transactions. They do not,
however, go to the extent of destroying commer-
cial securities in the hands of innocent holders for
value, even though such securities may have had



their inception ia a transaction thus condemned.
In respect to section 8, above referred to, it may
be said the distinction between contracts for or
on account of any money, etc., wagered, bet, or
staked upon any game, and securities, bills, notes,
etc., any part of the consideration of which shaU
be money won or lost by playing at any game,
etc., is obvious. The contracts mentioned are the
agreements of the parties, by which they under-
take beforehand to bind themselves to pay or de-
liver to the winner the money, property, or thing
wagered, bet, or staked on the game or contingent
event. These are declared unlawful and void,
and so they are, in whose ever hands they may be
found. The things in action, notes, biUs, securi-
ties, etc., referred to in the other section, are the
evidences of indebtedness given for money won
or lost by playing at any game, or by betting on
the hands of those who play, after the event, or
for money knowingly lent at the time and place
of such play, to a person so playing; and these
are declared to be utterly void, and so they are,
without regard to their form or the fact that they
may be in the hands of an innocent holder. City
of Aurora v. West, 22 Ind. 88; 1 Daniel, Neg.
iDSt. § 807; Chit. Bills, 92; New v. Walker, supra;
Greenland V. Dyer, 2 Man. & B. 422; 2 Band.
Com. Paper, § 611. The note sued on does not
fall within the terms of either section of the New
York statute. The paper was made by, and was
payable to, Miller Bros. It was indorsed by them,
or in their name, and delivered to Banger, who
advanced no consideration for it, but negotiated
it to persons who took it for full value, in the
regular course of business, without notice. Until
the paper was negotiated for a consideration, it
had no legal inception as a promissory note. In
the hands of the parties to the illegal transaction
contemplated, it was not a note given upon an
illegal consideration, but it was a pai>er without
any consideration, signed merely for purposes of
accomodation. After it was negotiated, it became
a promissory note, the consideration which was
money advanced by persons who had no notice of
the illegal purpose for which the parties contem-
plated using it, and wko were in no way or sense
parties implicated in the illegal confederacy.
Having reached the conclusion that the statutes
of the State of New York do not, in terms, render
void mercantile notes executed in consideration
of money, which the parties receiving the money
intended to embark in gambling speculations on
the stock market, it only remains that we say that
the statutes of our own State already referred to
indicate such a coincidence in the policy of both
States as that the courts of this State will not hes-
itate to enforce the liability of a maker of a note
such as that involved in the present case, in the
hands of an innocent holder. It is not necessary
that we should remark further upon the effect of
the Indiana statute, as applied to notes growing
out of transactions such as that under considera-
tion, when such notes are executed and payable
in this State. It is enough to say that we are no



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217



disposed to indulge in a forced and strained con-
struction of the language of our own statute, in
order to reach the conclusion that, to enforce
payment of a commercial note in the hands of an
innocent holder, 'Which is not within the inhibi-
tion of the statute of the State where the note was
executed and made payable, would be either op-
posed to public morals, or violative of the policy
or law of this State. These conclusions lead to a
reversal of the judgment. The judgment is ac-
cordingly reversed, with costs.

NOTB.— Coii/lic< o/Law«.— The general rule is well
settled that the validity of a contract is to be deter-
mined by the lex loci contractus,^ unless it is to be per-
formed in another State or country, and In that event
it is generally governed by the law of the place of per-
formance.' This rule has been applied in many cases
to negotiable instruments.* Thus, the rights of the
original parties to a bill or note are determined by the
law of the place where it is made and payable,^ but if
payable in another State the law of tbe place of pay-
ment will govern .s Each indorsement is regarded as
a new contract, and the rights and liabilities of the In-
dorsers are determined by the law of the place where
the Indorsement is made and executed.* But these
rules are subject to one well-defined exception. If the
note or other contract is clearly contrary to good morals
or repugnant to the policy or statutes of the State In
which suit is brought, it will not be enforced In that
State.7 In Louisiana, however. It has been held that,
while as a general rule the court **will not enforce tbe
laws of anoiher country to the injury of their own citi-
zens, yet if a citizen goes abroad and makes a contract
under the law of tbe place he must be bound there-
by."*

••jPttttirw" and "Option*."— A bona fide sale of per-



1 Satterthwalte v. Doaghty, S9 Am. Dec. 6M, and note;
Webster y. Howe Machine Co., 8 Atl. Rep. 482; GUman
y. Btevenf, 68 N. H. 84S; Marvin Safe Co. y. Morton, 48 N.
J. L. 415; 8. C, 7 Atl. Bep. 418; Prltohard y. Norton, 106
U. S. 184; Laird v. Hodges, 26 Ark. 866; Weil v. Golden,
141 Mass. 864.

s Fitob y. Bemer, 8 Am. L. Beg. 654 ; Hyde v. Goodnow,
8 N. T. 266; lewis y. MoOabe, 49 Conn. 141; Tharman v.
Kyle, 71 Ga. 628; Pomeroy v. Aoisworth, 22 Barb. (N. T.)
U8; Andrews y. Pond, 8 Pet. 65; Bank v. Daniel, 12 Pet.
82. Bee also In re Peck, 27 Cent. L. J. 188, and note.

s Bee Story on Prom. Notes, 888; note to Ford y. Back-
eye Ins. Co.» 99 Am. Deo. 663, and anthoritles hereinafter
dted.

4 Mendenhall V. Gately, 18 Ind. 149; Emerson v. Part-
ridge, 27 Vt. 8; Lawrence y. Bassett, 5 Allen (Mass.), 140;
Commercial Bank v. Simpson, 90 N. C. 467.

5 Murray v. Gibson» 2 La. Ann. 811 ; Coffman v. Bank,
41 Miss. 212; Pant v. Miller, 17 Grat. (Va.) 47; Peck v.
Hibbard, 26 Vt. 698; Smith v. Mead, 8 Conn. 258; Hunt v.
Blandart,16Ind.8S.

• Donnlgan v. Btevens, 25 Cent. L. J. 542; Briggs v.
Latham (Kan.), 24 Cent. L. J. 468, and note; Aymar v.
Sheldon, 12 Wend. (N. Y.) 480; 8. C, 27 Am. Deo. 187;
Xverett v. Vendres, 19 N. T. 488 ; Hant v. S tandart, 15 Ind .
85; Sondder v. Union Nat. Bank, 91 U. S. 412. Compare
Yansant v. Arnold, 81 Ga. 210.

f Ivey V. Lalland, 42 Miss. 444; Warner y. Jaffray, 96
N. T. 248; 8. o., 48 Am. Bep. 616; Bryan v. Brisbnl, 26 Mo.
428; Greenwood V. Cortis, 6 Mass. 878; Armstrong v.
Toler, 11 Wheat. 258, 260; Thrasher v. Everhart, 8 GUI. A
J (Md.)284.

SArayov.CorreU, 1 La. 528; (8. o., 20 Am. Deo. 286.
Compare Cambloso v. Mailett Wash C. C 96; Biggs y.
Lawrenoe T. B. 454



sonal property may be valid, notwithstanding the
property is to be delivered in the future, and even
though the seller has no other means of getting it than
to go into the market and buy it.* '*But if, under the
guise of such a contract, valid on its face, the real pur-
pose and intention of the parties is merely to specu-
late in the rise or fall of prices and the goods are not
to be delivered, but the difference between the con-
tract and market price only to be paid, then the trans-
action is a wager and the contract void." ^ **Margins''
deposited in pursuance of such illegal transaction can-
not be recovered, as It is the policy of the law to leave
the guilty parties where it finds them.ii Tbe test of
the validity of a contract for the sale of goods not to
be delivered at the time is found in the intention of
the parties when it was made.i^ To render the trans-
action invalid as to both parties both must have in-
tended it as a riflk upon prospective differences rather
than as a &ona.^e sale in pursuance of which the prop-
erty was to really be delivered.i^ And if the contract
was entered into at tbe time of Its execution in good
faitb and without any illegal intent, it is perfectly
legitimate for the parties to afterwards agree upon a
settlement by payment of differences instead of by
actual delivery of the property .^^ So, a "margin" may
be required to be deposited as security without ren*
dering the contract illegal if it is otherwise valid.i*
And delivery may be made in warehouse recelpts.i^
Nor is a contract for the sale of goods to be actually



9 Hibblewhite v. MoHorine, 5 Mees. A W. 462; Thaoker
v. Hardy, 18 Am. L. Beg. (N. 8.) 268, and note; Meloherl
v. Am. Union Tel. Co., 8 MoCrary , 521 ; Porter v. Yiets, 11
Fed. Bep. 193, and note; Kirkpatrick v. Adams, 20 Fed.
Bep. 287; Cobb v. Prell, 5 MoCrary, 80; 8. O., 22 Am. L.
Beg. 609, and note; Hatch v. Douglass, 48 Conn. 116;
8. 0., 40 Am. Bep. 154 ; Conner v. Bobertson. 87 La. Ann.
814; 8. 0. 55 Am. Bep. 521 ; Gregory v. WendeU, 89 Mich.
887^ s. O., 88 Am. Bep. 890; Cockrell y. Thompson, 85 MOr
510; Crawford y. Spencer, 02 Mo* 498; 8. c, 1 Am. St. Bep.
745, and note; Bigelow v. Benedict. 70 N. T. 202; 8. O., »
Am. Bep. 573; Seeligpon v. Lewis, 65 Tex. 215; 8. O., 5T
Am. Bep.598; Whitesidesy. Hont,97 Ind. 191; 8. O.. 49*
Am. Bep. 441 ; Wall y. Schneider, 69 852; s. 0.,46 Am. Bep.
520: Ben] on Sales (4th ed.), ( 542; 2 Addison Cont. ni57;
Bishop Cont. ( 584..

10 Crawford v. Spencer, 92 Mo. 498; 8. C, 1 Am. St. Bep.
745, 748, per Black, J. ; Whltesldes y. Hant, 97 Ind. 191;
8. O., 49 Am. Bep. 441 ; Dnnn y. BeU (Tenn.) 4 S. W. Bep.
41; Wangh v. Beck, 114 Pa. St. 422; Badolf v. Winters, 7
Neb. 125; Beadles v. MoElrath (Ky.), 8 S. W. Bep. 152;
Irwin y. WiUiar, 110 U. S. 499; Bangs y. Homick, 80 ^ed.
Bep. 97; Lowe v. Toong, 59 Iowa, 864; Elnnsey y. Berry,
66 Me. 570; Clay v. Allen, 68 Wis. 426; Waterman v. Back-
land, 1 Mo. App. 45; "Gambling Contracts," 16 Cent. L.
J. 225, and many of the authorities cited in note 9,tupra,

li Gregory v. Wendell, 89 Mich. 887; s. O., 88 Am. Bep.
890; Thompson y. Cnmmings, 68 Ga. 124. Compare Nor-
ton v. Blaine, 89 Chip St. 145.

u oookrell y. Thompson, 85 Mo, 510; Hents y. JeweU, 4
Woods, 666; 8. o., 20 Fed. Bep. 692; Tomblin v. Callen, 69
Iowa, 229; '^Gambling Contracts," 16 Cent. L. J. 226.

IS Marry v. Ochiltree, 60 Iowa, 485; s. o., 15 Cent. L. J.
484; Conner v. Bobertson, 87 La. Ann. 814; 8. O., 55 Am.
Bep. 621 ; Grizewood v. Banc, 11 C. B. 686; Pirley v. Boyn-
ton. 79 Ul. 851.

14 Kent V. Miltenberger, 18 Mo. App. 608; 8. o., 16 Cent.
L. J. 488; Wall v. Schneider, iO Wis. 862 ; 8. o., 48 Am. Bep.
620; Olark v. Foss, 7 Biss. 540; Sawyer y. Taggart, 14
Bash. (Ey.) 729. Compare Bveringham v. Meighan, 16-
Cent. L. J. 832.

15 Hatch V. Douglass, 48 Conn. 116; Wall v. Schneider^
69 Wis. 852; Whitesides v. Hunt, 97 Ind. 191.

M Gregory v. Wendell, 89 Mioh. 887; 8. o., 88 Am. BeiK
890, 802; WaU v. Sohnelder 69 Wi4. 869; 8. 0. 48 Am. Bep
520



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delivered rendered inyalid by an option being given as
to the time of dellvery.i^

A promissory note or other security given for a debt
based either wholly or in part on an illegal transaction
cannot be enforced as between the parties.^ But, in
the absence of a statute, a pegotiable instrument in-
capable of enforcement as between the parties, because
of such illegality, may, nevertheless, be good in the
hands of a bona fide indorsee for value, without notice
and before maturity .1* In some of the States, how-
ever, there are statutes expressly avoiding negotiable
instruments based on such illegal transactions.^^ And
in nearly all of the States there are general statutes
against gaming or wagering. Although these statutes
are of the same general tenor and are not unlike in
terms, yet there is much conflict in the authorities as
to their effect, if any, on negotiable paper in the hands
of a bona Me holder. In the recent case of Cunning-
ham V. Nat. Bank, 17 Cent. L. J. 470; s. c, 71 Ga. 400,
it was held that a promissory note given for losses in a
speculation in cotton futures was void, under the
Georgia statute, even in the hands of an innocent pur-
chaser. That statute provides, however, that all evi-
dences of debt "executed upon a gaming consideration
are void in the hands of any person." Similar decisions
have been rendered in Alabama and Wisconsin under
the general "gaming statutes" of those States.sx On
the other hand, negotiable instruments growing out of
similar transactions have been held valid in the hands
of an innocent purchaser under statutes almost if not
•quite as comprehensive as those Just referred to.^ A
further consideration of the general subject of con-
tracts based upon acts prohibited by statute will be
found in a leading article in 16 Cent. L. J. 802, entitled
"Illegal Contracts." W. F. Elliott.

W Gregory v. Wattowa, 58 Iowa, 711 ; Williams v. Tlede-
man, 6 Mo. App. 26i), 278; Elrkpatrick v. Bonsall, 72 Pa.
St. 166 ; Union Nat. Bank v. Oarr, 16 Fed. Bep. 488 ; Sawyer
▼. Taggart, 18 Am. L. Beg. (N. S.) 23u, and note. See also
Bigelow V. Benedict. 70 N. T. 202; s. C, 26 Am. Bep. 678;
Harris v. Tumbridge, 83 M. Y. 92; s. c.,88 Am. Ben. 898.

18 Seeligson v. Lewis, 66 Tex. 215; s. C, 67 Am. Bep. 598;
Barnard v. Baokhaus, 62 Wis. 598. See also Steers v.
Lashley, 6 Term Bep. 61; Griffiths v. Sears, 112 Pa. St. 528;
Brown v. Turner, 7 Term Bep. 680.

IS See authorities cited to this effect in principal opin-
ion. AlsoOrawfordv. Spencer, 92 Mo. 498; s. o., 1 Am.
St. Bep. 746; Shaw v. Clark, 49 Mich. 884; s. o., 48 Am.
Bep. 474; Greenland v. Dyer, 2 Man. & B. 422.

so Boot V. Merriam, 27 Fed. Bep. 9C9; Tenney v. Foote,
4 Il]» App. 594; 8. O., 95 HI. 99; Statutes of South Carolina
(1888), 806, ( 6.

51 Hawley v. Bibb, 69 Ala. 62; Barnard v. Backhans, 62
Wis. 698.

52 Crawford v. Spencer, 92 Mo. 498; s. C, 1 Am. St. Bep.
746; Third Nat. Bank v. Harrison, 10 Fed. Bep. 248. See
also Lehman Bros. v. Strassburger, 8 Cent. L. J. 184, and
anttorities cited in note 19, tupra.



RECENT PUBLICATIONS.



The Grben Bag, A Useless but Entertaining Maga-
zine for Lawyers. Edited by Horace W. Fuller.



Published Monthly. January, 18:^.
Soule, Publisher. Boston, Mass.



Charles C.



We are frank to admit that the first glance at the
title page of this new magazine for lawyers, destroyed
in some measure, our preconceived and well -settled
notion of Boston people, and particularly of Boston
publishers. That many valueless articles have



emanated from that city, we are not disposed to deny.
But the inhabitant thereof who would not, blindly and
aggressively, undertake to prove the negative of that
prop<^sition, it is safe to say, could have a permanent
engagement in a dime museum, and this magazine, we
believe, is the first instance on record where a Boston
man has labelled his Infant production ''useless" and
sent it out into the cold world, thus introduced. We
are inclined to think that the publisher either knew
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could have found it to be so, and that, in thus brand*
ing his offspring, he at the same time expected to get
credit for an unusual display of modesty on the part of
a Boston publisher, and also to make strong his infant
in the sympathy at least of the profession. In other
words, we are forced to conclude that a Boston pub-
lisher is modest **for revenue only." But, independent
of its introduction, we take pleasure in saying, after a



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