Page:Harvard Law Review Volume 4.djvu/54

38 38 HARVARD LAW REVIEW. In the case of Brennan v. Brighton Beach Racing Association,'^ the General Term of the New York Supreme Court has just decided that a person who buys a pool ticket on a race-course can enforce the contract at law. The plaintiff in this case had bought twenty pool tickets on a cer- tain horse, which proved to be a winner. He demanded his winnings, amounting to about $750, from the seller of the pool, who, for some reason, refused to pay. Brennan thereupon brought suit to enforce payment. In the lower court the judge dismissed the suit, on the ground that the contract being a gambling transaction was void. Against this decision the plaintiff appealed, with the result above stated. The decision is based on the so-called Ives' pool bill, which was passed in 1887. The court says, that before that time the transac- tion would have been unlawful ; but the law then passed, among other provisions, regulates the times and places at which pools may be sold during the racing season. From this it appears that the Legislature intended to legalize such sales. *' They are neither for- bidden nor condemned, but they are regulated. There would have been no sense nor reason in declaring that pool-selling should be confined within the period mentioned, and to the places designated, unless it was intended to sanction the right of the association to make such sales." We cannot agree with some of the daily papers that by this decision the court have given an effect to the law which is opposed to the inten- tion of the Legislature which passed it. Section four of the law pro- vides for the suspension of sections 351 and 352 of the Penal Code during the days on which racing is authoiized, and, also, "that pool- selling shall be confined to the tracks, where the racing takes place, and to the days of the races." At other times and places pool-selling shall be severely punished. The suspended sections of the Penal Code make it a crime to sell pools, or in any way to aid in betting, or to race a horse for money. The only reasonable interpretation of these provisions is, that, at the times and places mentioned, pool-selling is to be lawful. In the case before us the pool tickets represented a contract which is good in substance, but which the courts have refused to enforce, as being contrary to law. The Legislature expressly says that at certain times and places such a contract shall no longer be contrary to law. On what ground, then, can the court refuse to enforce it? Under the law as framed it would seem that no other decision could well have been reached. The following paragraph appears in the "Law Quarterly" for Jan- uary : ^ "It is to be regretted that so eminent a judge as Fry, L. J., should be reported as calling the citation of American authorities I See the " New York Herald" of March 15, 1890. ^ Vol. 6, p. 122. 3 Lord Halsbury (interrupting counsel): " We should treat with great respect the opinion of eminent American lawyers on points which arise before us, but the practice, which seems to be increasing, of quoting American decisions as authorities, in the same way as if they were decisions of our own courts, is wrong. Among other things it involves an inquiry, which often is not an easy one, whether the law of America on the subject in which the point arises is the same as our own." Fry, L. J. : " I also have been struck by the waste of time occasioned by the growing practice of citing American authorities." Cotton, L. J.: "I have often protested against the citation of Americau autliorities."
 * waste of time.' {Re Missouri Steamship Co., 42 Ch. Div. 330.) *