Page:Harvard Law Review Volume 4.djvu/253

237 NOTES. 237 licenses would be constitutional; and it expressly recognizes the right of the legislature to regulate any lawful trade. On principle it would seem that the case would have been governed by the same considerations if the ordinance had dealt with the licensing of restaurant keepers or apothecaries. To refrain from drinking liquor, smoking, and playing cards or billiards is very likely not a detriment from a moral standpoint ; and the Supreme Court of New York points out in Hamer v. Sidway ( 1 1 N. Y. Supp. 182) that it cannot be disadvantageous in a pecuniary sense to abstain from habits which are " not only expensive, but unnec- essary and evil in their tendency." But to say that no legal detriment is involved in such a course, i.e., that no legal right is parted with, would probably surprise a good many persons who are in a situa- tion similar to the plaintiffs in that case. The defendant's testator said to his nephew, fifteen years old, that if he would refrain from the habits above-mentioned till he was twenty-one, he would give him Whether the parties to the transaction regarded it as an offer for a unilateral contract, or merely as a promised gift (the latter was the view of the court), is a question of fact on which the result reached may have been correct enough, though the argument drawn from the use of the word *' give " in the uncle's promise — that it presumably meant a gratuitous transfer, unless evidence could be brought forward to show the contrary — seems to overlook a common use of language. The conduct of the nephew, moreover, indicates that he thought he had something more than a mere moral claim. But the court's further suggestion, that even if there were an intention to contract the acts of the nephew, though performed at the uncle's request and in exchange for his promise, would not be a sufficient consideration, is surprising. The proposition that the promisee must incur a detriment in a pecu- niary sense can hardly be sound, in any such application of it, at least, as the court would here make. These points were not, however, con- clusive of the decision in Hamer v. Sidway, as there were further dif- ficulties in the way of plaintiffs recovery. A CASE presenting a very curious situation of affairs has recently been decided in the courts of Massachusetts, and is now on its way to final settlement in the Supreme Court of the United States. The facts are briefly as follows : The county of Nantucket comprises and is coterminous with the town of the same name. In 1888 the selectmen of the town discovered that the town treasurer, one Brown, had been fraudulently obtaining money from the town for a number of years by means of forged vouchers. A town-meeting was immediately called, which was very largely attended by the voters of the town, and at which it was unanimously decided to take steps towards having Brown prosecuted. Accordingly, at the next session of the Superior Court for the county of Nantucket, a grand jury, drafted by the selectmen at a town-meeting called for that purpose, brought in an indictment against Brown for forgery. The trial jury was also drafted by the selectmen in like manner. Before pleading to the indictment, the defendant asked the judge to rule that the grand jury, by reason of bias and inter- est, was not competent to make the presentment for the crime. And
 * ^5,ooo; the nephew did so, and suit is brought on the promise.