Isaacs v. Silverberg

CourtUnited States State Supreme Court of Mississippi
Writing for the CourtCALHOON, J.
Citation87 Miss. 185,39 So. 420
PartiesJOSEPH ISAACS v. HENRY SILVERBERG et al
Decision Date20 November 1905

39 So. 420

87 Miss. 185

JOSEPH ISAACS
v.
HENRY SILVERBERG et al

Supreme Court of Mississippi

November 20, 1905


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...

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7 practice notes
  • Ascher v. Edward Moyse & Co., 14,853
    • United States
    • United States State Supreme Court of Mississippi
    • 29 Enero 1912
    ...Merrill v. Melchoir, 30 Ib. 516; Cowan v. Assurance Company, 73 Miss. 328; Charles Campbell v. Bank, 74 Miss. 526; Isaac v. Silverburg, 87 Miss. 185; Hulman v. Johnson, Cowp. Rep. 343; Dibbrell v. Danridge, 51 Miss. 55; Shattuck v. Miller, 50 Miss. 386; Insurance Co. v. State, 86 Tex. (1893......
  • Alamaris v. Jno. F. Clark & Co, 30425
    • United States
    • United States State Supreme Court of Mississippi
    • 13 Febrero 1933
    ...the present case 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 out of the rise and fall in the market price above or below the......
  • Stroud v. Loper, 34181
    • United States
    • Mississippi Supreme Court
    • 14 Octubre 1940
    ...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. 400. Appellee is not entitled to recover, even as a holder "for value" wi......
  • Falk v. J. N. Alexander Mercantile Co., 24592
    • United States
    • United States State Supreme Court of Mississippi
    • 16 Febrero 1925
    ...many times by our supreme court. 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. 279. Contracts not enforcible under the law cannot be made so by any such flimsy subterfuge as is undertaken in this......
  • Request a trial to view additional results
7 cases
  • Ascher v. Edward Moyse & Co., 14,853
    • United States
    • United States State Supreme Court of Mississippi
    • 29 Enero 1912
    ...Merrill v. Melchoir, 30 Ib. 516; Cowan v. Assurance Company, 73 Miss. 328; Charles Campbell v. Bank, 74 Miss. 526; Isaac v. Silverburg, 87 Miss. 185; Hulman v. Johnson, Cowp. Rep. 343; Dibbrell v. Danridge, 51 Miss. 55; Shattuck v. Miller, 50 Miss. 386; Insurance Co. v. State, 86 Tex. (1893......
  • Alamaris v. Jno. F. Clark & Co, 30425
    • United States
    • United States State Supreme Court of Mississippi
    • 13 Febrero 1933
    ...the present case 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 out of the rise and fall in the market price above or below the......
  • Stroud v. Loper, 34181
    • United States
    • Mississippi Supreme Court
    • 14 Octubre 1940
    ...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. 400. Appellee is not entitled to recover, even as a holder "for value" wi......
  • Falk v. J. N. Alexander Mercantile Co., 24592
    • United States
    • United States State Supreme Court of Mississippi
    • 16 Febrero 1925
    ...many times by our supreme court. 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. 279. Contracts not enforcible under the law cannot be made so by any such flimsy subterfuge as is undertaken in this......
  • Request a trial to view additional results

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