MONOPOLIES-Right to Recover on Monopolistic Con

tract.

The plaintiff is a corporation composed of nearly all the manufacturers of wall paper in the United States. Under the agreement forming the combination the plaintiff was empowered to fix the prices at which goods were to be sold, and to compel jobbers to buy at such prices. In pursuance of this purpose the defendant, a jobbing house, and practically all other jobbers were forced to to sign contracts binding themselves to buy paper only from the plaintiff and at the rates fixed. The defendant refused to pay for a quantity of paper so ordered and used. Upon an action for goods sold and delivered, held, (Mr. Justice Moody, Mr. Justice Brewer, Mr. Justice Peckham, dissenting,) that a recovery could not be had. Continental Wall Paper Company v. Louis Voight & Sons Company, (1909,) 29 Sup. Ct. 280.

The majority opinion is based upon upon the ground that the plaintiff exists in violation of the Sherman anti-trust law of July 2, 1890, (26 Stat. at L. 209, chap. 647, U. S. Comp. Stat. 1901, p. 3200,) and for the court to give judgment in its favor in this action would be to lend judicial aid toward making effective the illegal combination. Connolly v. Union Sewer Pipe Co., 184 U. S. 540, 22 Sup. Ct. 431, a leading case in the same court and based on similiar facts, is distinguished on the ground that in the latter case the defendant was wholly a stranger to the illegal combination and had nothing to do with the original agreement, and could not be heard to refuse payment solely upon the theory that the plaintiff was illegal in character. In considering a transaction of this nature, all the circumstances may be reviewed and the original contract taken into account as forming a part of the nature of the contract sued upon. Swift & Co, v. United States, 196 U. S. 375; 25 Sup. Ct. 276, Aikens v. Wisconsin, 195 U. S. 194, 25 Sup. Ct, 3; E. Bement & Sons v. National Harrow Co., 186 U. S. 70, 22 Sup. Ct. 747; Loewe v. Lawlor, 208 U. S 274, 28 Sup, Ct. 301.

Judge John H. Stotsenburg, a leading member of the bar of Floyd County, Indiana, died June 7 at New Albany, Ind. He was a graduate of Trinity College, Hartford, Conn. Judge Stotsenburg served three terms as city attorney of New Albany. He had also been a mem ber of the Indiana House of representatives during the Civil war, and was a member of the commission appointed to revise the statutes of Indiana about twentyfive years ago.

HUMOR.

A graduate of an Eastern law school wrote to a prominent lawyer in Arkansas to find out what chance there would be for him in that part of the country.

"I am a Republican in politics," he wrote, "and an honest young lawyer."

"If you are an honest lawyer," came the reply, "you will have no competition, and if you are a Republican the game laws will protect you."-Everybody's.

Uncle Mose, needing money, sold his pig to the wealthy Northern lawyer who had just bought the neigh boring plantation. After a time, needing more money, he stole the pig and resold it, this time to Judge Pickens, who lived "down the road apiece." Soon afterward the two gentlemen met and, upon comparing notes, suspected what had happened. They confronted Uncle Mose. The old darky cheerfully admitted his guilt.

"Well," demanded Judge Pickens, "what are you going to do about it?"

"Blessed if I know, Jedge," replied Uncle Mose with a broad grin. "I'se no lawyer. I reckon I'll have to let yo' two gen'mne settle it between yo'selves." Green Bag.

"Judge Hoar: Are you going to attend the funeral of Gen. Butler?" a friend asked him. "No,' was the calm reply. "No, I am hot going to attend-but I heartily approve of it."

THE

OKLAHOMA

LAW JOURNAL

VOL. 8.

EDITED AND PUBLISHED MONTHLY BY

D. H. FERNANDES, GUTHRIE, OKLAHOMA.

August, 1909.

No. 2.

VIEW BY THE JURY;—

'Points on the Subject, and to each of which the Latest and Controlling decisions have been appended.

The practice to permit a jury to view the site in which an occurrence took place or the surroundings where a crime has been committed is regulated in the United States almost entirely by statute; although the practice to do so was always recognized by the English courts and was as old as the common law. 135 Ill. 552; and 115 Ga. 346.

It has become the rule that in proceedings where a view is asked for, either in civil or criminal cases that the ruling of the trial court is not reviewable on appeal, unless the court's discretion has been actually abused. 82 Iowa 74; 95 Mich.586; 139 Ind.611; 36 Kan. 422.

Courts are not inclined to grant a view of their own motion. (90 S. W. 604); although they have the power to do so. If the privilege is obtained, it must be upon the motion of one of the parties to a controversy, or the consent of both parties. 194 Mass. 250.

In some cases the view has been granted upon the motion of one party and over the objection of the other. 104 Va. 833.; but the court is not compelled to grant the view if he deems it unnecessary, in the exercise of sound

discretion, even if both parties insist upon it. 66 S. Car. 302.

Where changes in the premises to be viewed have taken place since the occurrence in controversy a view is properly refused. 97 Ga. 643; 156 N. Y. 286; 103 Ky. 182.

In asking for a view the distance to be traveled by the jury is to be taken in consideration, as well as the expense and delay. 75 S. Car. 390 (where the distance to be traveled was 18 miles), see also 135 Ill. 552.

While the above is the rule of practice, as universal as the steps taken in any other statutory or ordinary code procedure that rarely recognizes special proceedings, yet, there are a few exceptions, where the view may be demanded as of right in a few jurisdictions: in eminent domain cases, in some, and in Colorado in proceedings involving mining rights. 135 Ill. 552, 102 Ill. 666; 27 Colo. 473. In Massachusetts also a view must be allowed on request in actions on special assessments and in highway proceedings. 134 Mass 499.

Where a proper showing is made for a view, and the subject of the expense cannot be made or used to overthe justness of the view, a jury may be sent to any part of a state, however distant and beyond the territorial jurisdiction of the court granting the view. 114 N. W. 633; 71 Cal. 602; 51 Ohio St. 331 (But also see contra, 66 Ill. 510.

The object of the view is generally held to be to enable the jury to understand the evidence and its application, not to colleet new evidence. This was clearly the original purpose of the view, as shown by the English statutes, the reasons for adhering to the early conception of its purpose are well stated by the Supreme Court of California in Wright vs. Carpenter as far back as 49 Cal. 607-609: "In authorizing a court to send a jury to view the premises in litigation, it was not the purpose of the statute to convert the jurors into silent witnesses, acting on their own inspection of the land, but only to enable them the more clearly to understand and apply the evidence. If the rule were otherwise, the jury might

base its verdict wholly on its own inspection of the premises, regardless of an overwhelming weight of evidence to the contrary, and the losing party would be without remedy by a motion for a new trial. It would be imposible to determine how much weight was due to the view by the jury, as contrasted with the opposing evidence, or (treating the inspection as in the nature of evidence) whether it was sufficient to raise a substantial conflict in the evidence. The cause would be determined, not upon evidence given in court, to be discussed by counsel and considered by the court in deciding a motion for a new trial, but upon the opinion of the jurors, founded on a personal inspection, the value and the accuracy of which there would be no method of ascertaining. The statute could not have been intended to produce such results as these."

Appeal from Lincoln County.

Hon. R. H. Gaylen, Judge pro Tempore.

Affirmed.

First. (a) A judge pro tempore may fix the time within which a case-made may be prepared and served, but after he has fixed such time he cannot extend the time for preparing and serving such case-made.

(b) If a judge pro tempore has tried a case, and has fix. ed time within which a case-made may be prepared and served, and it is desired to secure an extention of time to prepare and serve such case-made, such extention of time may be granted by the regular judge of the district in which the case was tried, or it may be granted by any judge who may be presiding in said court, but if granted by the judge presiding in said court, the record must show that court was actually in session at the time that the extention was granted by the court.