"When such contracts are made as a cover for gambling, without intention to deliver and receive the grain, but merely to pay and receive the difference between the price agreed on and the market price at some future day, they come within the statute of gambling, and are void in law." Per cur. Barnard v. Backhaus, 52 Wis. 597.

1 Sampson v. Shaw, 101 Mass. 145, and cases cited infra, sec 453. As to Illinois statute against "options" and "corners," see Tenney v. Foote, 4 111. Ap. 594; Williams v. Tiedemann, 6 Mo. Ap. 269. As to "corners," see sec 4536.

2 Central Ohio Salt Co. v. Guthrie, 35 Ohio St. 666.

3 India Bagging Ass. v. Knox, 14 La. An. 168; see Gulick v.Ward, 5 Halst. 87.

4 Bramwell, B., Jones v. Lees, 1 H. & N. 189.

where the money invested is but a trifling percentage of the property to be handled, and where the only intent is to produce unnatural fluctuations in prices, is entirely outside the limits of buying and selling for honest trade purposes. It is the plainest and worse kind of produce gambling, and it is impossible for any but dangerous results to come from it."1 sec 442 a. An agreement between all carriers and transportation companies of a particular section for the purpose of absorbing or crushing all competition, and fixing on the community arbitrary and unreasonable prices of transportation, will be held void as against the policy of the law.2 In determining questions of policy of this class two opposite dangers are to be avoided. On the one side to declare all combinations and absorptions by carriers illegal would be to inflict a serious blow, not only on the carrying interests, but on the interests of those desiring carriage. If it were illegal for railroad companies to agree to fix upon remunerative rates, then, each company caring for itself, a reckless and bankrupt corporation, whose object is to snatch at whatever it can and pay out nothing that it can help, would be able to inflict sometimes ruinous loss on its competitors, and permanently damage transportation, by charging non-remunerative rates. It is likely, also, that the country will be far better served, and customers be encouraged to far larger shipments, if it is understood that prices between the chief centres of trade are equitably and permanently fixed by agreement between the great competing carriers, and are not liable to fluctuate as the momentary temper of any one of these carriers may dictate. On the other side, it would be intolerable if all the carriers between any of our great centres were to be permitted to combine to charge extortionate rates. It is as much against the policy of the law that such a combination should be permitted as it is against the policy of the law that a combination to absorb all the necessary staples of a community should be permitted.1 The line to be taken is analogous to that to be drawn in respect to the absorption of staples. On the one side, combinations of carriers to enforce uniformity and constancy of reasonable rates are consistent with the policy of the law. On the other side, combinations to absorb all the possible carrying interests between specific centres into a general direction, and for the purpose of imposing unreasonable rates, are void as against the policy of the law.2 So of agreement to absorb transportation.

1 Campbell, J., Raymond v. Leavitt, ut supra. See Story Eq. Jur. sec 292 et seq.

2 Oregon St. Nav. Co. v. Winsor, 20 Wall. 64; Hooker v. Vandewater, 4 Denio, 349; Stanton v. Allen, 5 Denio, 434; Maguire v. Smock, 42 Ind. 1; Transportation cases reported Wh. Precedents, No. 658, and discussed in an article in the Criminal Law Mag. for Jan. 1842, p. 8. In these cases, which were prosecutions instituted in Pittsburgh in 1842, a habeas corpus was taken out before Judge Grier, then sitting as president of the Pittsburgh District Court. It appeared in evidence that the defendants, being "engaged in the business of carriers and transporters of merchandise on the Pennsylvania canal," made an agreement, which they swore to observe, requiring a return of freight received, under oath, "and, in the event of any line being out of freight, a fund to be formed, by the payment of seven per cent. on all freights, to be divided into nine shares, and each line to draw one-ninth without regard to the amount to be put in by said line." A minimum rate of freight was fixed. Each member attending the stated meeting was required to present an affidavit that he had observed the rules, though the option of withdrawing from the association on two weeks' notice was reserved. Of this combination, Judge Grier said: " It is nothing less than a combination between the chief capitalists and carriers on this line of our public works to raise or depress the rate of freight, as it may suit their own interests, either to increase their profits or crush a competitor." See opinion in full Wh. Prec. No. 658. The defendants were remanded for trial, and were convicted before Judge Patten in the Quarter Sessions, June T. 1842, No. 37. They were pardoned after a few days' imprisonment.

1 Supra, sec 442.

2 Special contracts by carriers with special customers by which such customers are peculiarly favored, the object being to supersede a competing carrier, are not void as against the policy of the law. Fitchburg R. R. v. Gage, 12 Gray, 399; Hersh v. R. R., 74 Penn. St. 181; Munhall v. R. R., 92 Penn. St. 150. "The cause of complaint," said the court in Munhall v. R. R., "is that the Alleghany Valley Railroad Company entered into an arrangement with the Pennsylvania Railroad Company, the effect of which was to take from the plaintiffs that transportation of oil which they would otherwise have obtained. It is not complained that the price of freight from Pittsburgh east was increased by this arrangement, nor that the public in any manner suffered thereby. Each party had an undoubted right to enter into a just and fair arrangement with a corporation or association of men whereby its business should be increased, although the effect of this arrangement may have been to take business from the other." In reference to English pooling contracts, see Brice's Ultra Vires, 2d Am. ed. 419; Shrewsbury R. R. v. London, etc., R.