. , FEDERAL RE;PORTER.
THAYER, J., (oraUy.) A clause in a contract agreeing generally to submit all of the q)lestionsthat might arise under the contract to arbitration, is void; the same being against public policy, because the effect is to oust the jurisdiction of the courts. Nev:ertheless, it is competent for parties to stipulate in a 'contract that the value of property contracted to be sold or delivered shall be ascertained, or fixed by arbitrators chosen for such purpose. . Such special stipulations in contracts, relating to the manner in which the value.of things forming the subject-matter of the contract shall be ascertained, are valid. In the latter class of cases, parties cannot ignore the stipulation and sue on the contract; they must at least make an 'effort to have the valUe of the thing ascertained accordingto the stil1ulations in the agreement, before suit can be maintained. Motion overruled. . '
eARN 'lI. KENSLER·
.(Ot'rcuit Oourt. W. lJ. Mis8ouri. W;]). March 16.1888.)
NEW ,TBrAIr-OBJECTIONl!. TO VERDIOT.
AlthoughfactB are presented upon the trial whlch.would have fnduclld th& court to sustain defen dant's demurrer setting up that the contract sued on was contrary iO,tbe constitution and laws of the state, the jury having found Il q!Jestion of fact agoainst defendant, which the supreme court might hold sufficient to render him liable,and all the facts being preserved in the record by bill of excoJptions, the motion for a new trial will be overruled.
At Law. On motion fClt new trial. Graves « Aull and G. G. Vest, for plaintiff. Wamer, Dean« for defendant·
. BREWER, J. In overruling defendant's application for a new trial, I feel constrained to make these observations: The petition alleges that. plaintiff and defendant' jointly paid and delivered to the lottery company the sum of $10, for which amount the said company then and there duly delivered to, defendant two tickets, .and further that one of the tickets drew the capital prize, and thereafter the defendant received the money. To that petition the defendant answered, and for a second defense averred that both parties were citizens and residents of Missouri at the time of the tran8l1ction, and that the constitution and laws of Missouri prohibited dealing in lottery tickets. 'fo that defense the plaintiff· demurred, aud, after argument, I sustained the demurrer. ' While the exact facts ail they were afterwards developed on the trial may have been stated by counsel, yet the question was considered by me as though each of the parties had. in fact paid one-half of the dol· lars, -and the point of my decision "was that if each party had pahl" one-half, they jointly owned the tickets, and whatever might be received on those tickets; and if either got possession of the whole proceeds, tht
CHAMBERS 11. UPTON.
other could recover his share. On the trial these facts were developed. The plaintiff's testimony was, not that he had paid his five dollars, but that he had agreed to; and up to the time of the drawing, and the receipt of the money by defendant, plaintiff had never paid a cent. It is true, according to his theory of the case,-a theory found by the jury to have been thetruth,-he had promised to pay. Now, 1 am frank to say that, upon these facts, lam very doubtful whether the law is with the plaintiff. Dealing in lottery tickets is prohibited by the laws and constitution of the state; Could an executory contract be enforced? Put the question in this light: Suppose no money had been drawn, could defendant have maintained an action to recover the five dollars which plaintiff had promised to pay? If that promise was void as in contravention of the laws, can it be that his promise, thus void, made him a joint owner? 1 very much doubt it, and 1 have been embarrassed as to what course 1 ought to pursue.' 1 think that if on the argument of the demurrer I had understood the facts as 1 do now, 1 should have filled against the plaintiff; but a long trial has been had, a question of fact has been settled against the defendant, and it may be that the supreme court will hold that this promise to pay was equivalent to payment; if so, the judgment ought to be as it is, and with some hesitation I have concluded to let the judgment stand, and overrule the defendant's application for a new trial; for, the facts all being Upon the record, having been duly preserved by bill of exceptions, the defendant can obtain a final opinion from the supreme court. If in his favor, it will end the case, llnd so it will if it be against him. 1 felt that this explanation was due to myself. The order will be that the application for a new trial is overruled.
CHAMBERS 11. UPTON
March 14, 1888.)
'w: D. Michigan,
MALICIOUS PROSECUTION-LmELING VESSEL-DAMAGES.
The D.and the S., engaged in freight and passenger traffic between the Lake Michigan ports of Manistee and Frankfort, were rivals in business. Certain stockholders in the S., learning that a chattel mortgage on the D. was overdue, entered into a combination with one Z. to get the D. out of the way by buying in the mortgage and foreclosing it, said stockholders to pay, each. hIS proportion of the purchase money. This was done. and the vessel seized the next night at her dock in Frankfort, by the sheriff and the nominal assignee of the mortgage. and sent with Z. to Milwaukee. to report to M., a proctor there to whom said stockholders claimed to have shown a copy of the mortgage, and who advilled them that they might do what they afterwards did. The mortgage, which was made and filed in Michigan, was in the usua! form, and contained no provisions as to foreclosure, except that notice thereof was to be given for at least BO days by publication in a Ludington, Mich., paper, a provision which was not complied with. The day after the D.'sarrival in Milwaukee,Z., by M., libeled her in behalf of his father for a -half interest. The D. was thereby detained BO days, at the end of which time the libel was