Isaacs v. Silverberg

Decision Date20 November 1905
Citation87 Miss. 185,39 So. 420
CourtMississippi Supreme Court
PartiesJOSEPH ISAACS v. HENRY SILVERBERG et al

November 1905

FROM the circuit court of Warren county, HON. GEORGE ANDERSON Judge.

Isaacs the appellant, was plaintiff in the court below; Silverberg and others, appellees, were defendants there. From a judgment sustaining defendants' demurrer to plaintiff's declaration and (the plaintiff not seeking to amend) dismissing the suit, the plaintiff appealed to the supreme court. The facts as charged in the declaration appear from the opinion of the court.

Affirmed.

Brunini & Hirsch, for appellant.

The declaration is based upon Code 1892, § 2116, and the contract, commonly called "futures," set out in the declaration, is a "wager." Clay v. Allen, 63 Miss 426; Campbell v. National Bank, 74 Miss. 526 (S.C., 21 So. 400; 23 So. 25); Tiedeman's Commercial Paper, sec. 189. Section 2116 is not to be strictly construed. "In general where a right of action for his own benefit is given to a loser, or where a right accrues to the wife or children of the loser, these statutes are treated as remedial, not penal, in their nature, and are liberally construed." 14 Am. & Eng. Ency. Law (2d ed.), 625, and cases cited in support of text.

A mere reading of this section shows clearly that the verbal confirmation thereof leaves no foundation for the application of the doctrine of ejusdem generis. The clause "or by any wager whatever" stands out distinct, and wholly independent of the preceding clauses. It is to be read as if all that part of the section between it and the first words of the section, "if any person," were omitted entirely. It would, therefore, read, "if any person, by any wager whatever, shall lose any money," etc. It is true that the clause "or by any wager whatever" is disjunctively connected with the clauses preceding it, but it has no direct reference or connection with them. It is separate and distinct, standing upon its own meaning. It does not rest or depend for its foundation upon the immediately preceding clauses; it would not fail of meaning if the clauses between "if any person" and "or by any wager whatever" were entirely omitted.

If the clause "or by any wager whatever" were not independent, separate and distinct, it would read or by playing or betting at any wager whatever;" or the word "by" would be omitted and the clause would read, "or any wager whatever;" or the word "other" would be inserted after "any." In these constructions of the clause, its independence and connection with the preceding clauses would be evident.

In the first and third instances the connection, reference, and independence are shown by the words employed, and in the second by the omission of a word.

The clause in the section reading "or by betting on any horse race or cockfight or at any other sport or pastime" shows by its conformation a proper basis for the application of the doctrine of ejusdem generis. The latter part of the clause "or at any other sport or pastime" is independent, has reference to and is connected with the preceding part of the clause last quoted.

Aside from the above contention, the doctrine of ejusdem generis does not always apply, even though the foundation for the same exists in the composition of the enactment. At most this rule of interpretation is merely an aid in determining the legislative intention.

"This rule can be used only as an aid in determining the legislative intent, and not for the purpose of controlling the intention or of confining the operation of a statute within narrower limits than were intended by the lawmaker. It affords a mere suggestion to the judicial mind that where it clearly appears that the lawmaker was thinking of a particular class of persons or objects, his words of more general description may not have been intended to embrace any other than those within the class. The suggestion is one of common sense. Other rules of construction are equally potent, especially the primary rule, which suggests that the intent of the legislature is to be found in the ordinary meaning of the words of the statute." Sutherland, Stat. Const., sec. 279; Black on Interpretation of Laws, sec. 63, p. 143.

"But in the absence of some clear indication that the language is to receive a limited signification, general words will receive their general and natural meaning, and the courts should put no greater restriction on the language used than the nature of the provision and the subject-matter to which it relates necessarily impose." 26 Am. & Eng. Ency. Law (2d ed.), 608.

The evil of gambling in "futures" was not abating when the legislature enacted the code of 1892; it was on the increase. Where is the "clear indication" that the language of sec. 2116 is to receive a "limited signification?"

This court in Clay v. Allen, supra, and Campbell v. National Bank, supra, in construing sec. 2114, whose language is almost identical with sec. 2116, failed to supply the doctrine of ejusdem generis and thereby exclude "futures" from those "wagers" legislated against. What reason can be advanced for its application to sec. 2116 which will not be a reason for its application to sec. 2114?

Was sec. 2116, so far as futures are concerned, repealed by implication by the enactment of sec. 2117?

In the case of Campbell v. National Bank, supra, on suggestion of error, it was contended that the act of 1882--which is Code 1892, § 2117--repealed, by implication, Code 1880, § 990; Code 1892, § 2114, in so far as "futures" were concerned.

In answer to this contention, this court says: "But there is not the slightest reference in the act of 1882 to sec. 990 of the code (1880), and repeals by implication are not favored."

Smith, Hirsh & Landau, for appellees.

Adler v. Searles, 86 Miss. 406 (S.C. 38 So. 209), is decisive of this case, and under the principles there announced the judgment below should be affirmed. In the Adler case a peremptory instruction was sustained for the plaintiff, although it appears, as stated by this court:

"The contention of appellant is that the dealings in question were based upon gambling contracts, and that his accounts had been charged with commissions claimed by appellee for negotiating his gambling contracts, which amounted in the aggregate to more than the amount sued for, and that (quoting from brief of counsel for appellant) 'by reason of the illegality of the contracts in question, Searles was not entitled to retain these commissions, and that they should be set off against the sum sued for.'" If a broker "is privy to the lawful design of two parties and brings them together for the purpose of entering into an illegal agreement, he is particeps criminis, and cannot recover for services rendered or losses incurred by himself on behalf of either in forwarding the transaction," as declared by the supreme court of the United States in Embry v. Jemison, 131 U.S. 336-345, and which is the general doctrine in the United States.

The appellant concedes that his declaration is based on Code 1892, § 2116, and insists that the contract set forth in the declaration is "none other than a gambling one in cotton futures," and is embraced by sec. 2116. But, in order to...

To continue reading

Request your trial
8 cases
  • Ascher v. Edward Moyse & Co.
    • United States
    • Mississippi Supreme Court
    • January 29, 1912
    ...1 Pick. (Mass.) 45; Sedgwick on Stat. Const. 366; Deaton v. Burchart, 59 Miss. 144; Clay County v. Chickasaw County, 64 Miss. ; Isaac v. Silverburg, 87 Miss. 185; Banking Co. v. Haney, 93 Miss. 619; Fellows v. Harris, 12 Smed. & M., 462; Hart v. Foundry Co., 72 Miss. 809, 17 So. 769; Zeller......
  • Alamaris v. Jno. F. Clark & Co
    • United States
    • Mississippi Supreme Court
    • February 13, 1933
    ... ... is dealing in "futures" and subject to attachment ... Dillard ... v. Brenner, 18 So. 933; Isaacs v. Silverberg, Parry & ... Company, 39 So. 420 ... A ... contract for the payment of differences in prices, [166 Miss ... 125] arising ... ...
  • Stroud v. Loper
    • United States
    • Mississippi Supreme Court
    • October 14, 1940
    ... ... 21, 102 So. 483; ... Cohn v. Brinson, 112 Miss. 348, 73 So. 59; ... Ascher & Baxter v. Moyse, 101 Miss. 36, 57 So. 298; ... Isaacs v. Silver Parry & Co., 87 Miss. 185, 39 So ... 420; Campbell v. N. O. National Bank, 74 Miss. 526, 21 So ... Appellee ... is not ... ...
  • Falk v. J. N. Alexander Mercantile Co.
    • United States
    • Mississippi Supreme Court
    • February 16, 1925
    ... ... We call the court's attention to a few cases ... Lemonius v. Mayer, 71 Miss. 514; Isaacs v ... Silverburg, 87 Miss. 185; Wells v. Austin, 107 Miss ... Contracts ... not enforcible under the law cannot be made so by any such ... ...
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT