I concur in the opinion of the court that there was error in the admission of evidence, but am of the opinion that upon this record the court should remand the case with instruction to enter judgment for the defendant.
The facts in the evidence certified to us, indeed, those stated in the finding and in the opinion, — purchases and sales of stock and grain on a one per cent. margin and a one eighth of one per cent. charge for commission by Davis in New London through a foreign correspondent, and neither a member of any exchange, no certificates given, no interest charged for carrying the stock and grain, no dividends credited though many earned, the purchase or sale complete when its price was reached by a purchase or sale on the New York stock exchange and recorded from telegraphic advices on a blackboard in Davis' New London office, and this, too, whether the purchase or sale was a small lot order or not, — all indicate a plain gambling transaction. The orders were mere wagering contracts on the fluctuations of the market, with no actual purchases or sales, and no intent that any such be made.
All the business world will, we think, recognize the nature of Davis' business as that of a "bucket shop," and these transactions mere wagers on the market.
If my conclusion as to the meaning of these facts is correct, a new trial would be a useless proceeding. *Page 702