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ernment made the surrender and granted the jurisdiction gained thereby. What is thus implied is as obligatory as if it had been formally and positively stated. The remedy, without this implication, may, in its completion and final stage, entirely change the characteristics which marked its incipiency.

A very strong confirmation is given to this view by the law enacted by the British Parliament immediately after the negotiation of the treaty of 1842, for the purpose of carrying it into effect, and also by the law of Congress enacted in 1848, and applicable to all the extradition treaties of the United States. The third section of the English law provided for the surrender of the person charged with crime within the limits of the treaty, after certain preliminary proceedings had been taken, "to such person or persons as shall be authorized in the name of the United States to receive the person so committed, and to convey such person to the territories of the United States, to be tried for the crime of which such person shall be so accused." This reference to the crime for which the person was to be tried, not only has its basis in the express provisions of the treaty, but, like the treaty itself, is clearly an implied negative as to trial for any other crime. According to the construction claimed by Secretary Fish in the Winslow controversy, the words "or any other crime of which such person may be accused," should have been added. These words would express his understanding of the treaty; yet the understanding of the British Parliament, as shown by the wording of the law, was that the trial secured by the delivery was to be only for the offense of which the person had been "so accused." The phrase "so accused" clearly refers to the proceedings by which the fact of accusation in respect to a particular crime had been ascertained: and it was for this offense, and not for some other offense of which the party had not been "so accused," that he was to be delivered up to be tried.

The Congress of the United States in the law of 1848 expressed the same understanding of the treaty. The second section of that law provided that, after the proceedings named in the first section had been completed, it shall be lawful for the Secretary of State "to order the person so committed to be delivered up to such person or persons as shall be authorized, in the name and on behalf of such foreign government, to be tried for the crime of which such person shall be so accused." The words in italics correspond exactly with those of the English law, and differ only in being meant to apply to all the extradition treaties of the United States. They go upon the supposition, provided for in all these treaties, that the person to be delivered up has been accused of a specific crime, and his surrender, after the necessary preliminary proceedings, is directed to

be made that he may be tried upon that accusation. Nothing can be more foreign to the plain meaning of the language than the idea that the person, thus delivered up on a specific accusation that had been judicially considered as to its prima facie character, may, being delivered up, then be tried on another and wholly different accusation, and that, too, whether he is first tried for the offense charged, and then tried for another not charged, or tried only for the latter. Congress did not contemplate, as among the legal possibilities of the case, that the party delivered up could be tried for any other offense than the one of which he had been "so accused." This particular question had not then become a subject of controversy, any more than it is now a matter of controversy whether a man shall be tried on the indictment regularly found against him, or upon some other charge trumped up for the occasion; and, hence, it was enough for Congress, as it was for the British Parliament, to specify the crime of which the party "shall be so accused.” No other crime was contemplated by the law, and no other contemplated by the treaty.

The addition to the law made by Congress in the Act of March 3rd, 1869, and reproduced in section 5275 of the Revised Statutes of the United States, provides that, in respect to any person delivered up and "brought within the United States" for the purpose of being "tried for any crime of which he is duly accused, the President shall have power to take all necessary measures for the transportation and safe keeping of such accused person, and for his security against lawless violence, until the final conclusion of his trial for the crimes or offenses specified in the warrant of extradition, and until his final discharge from custody or imprisonment for or on account of such crimes or offenses, and for a reasonable time thereafter." The words in italics show that Congress, when passing this law, had not the remotest idea of any other crimes for which the party might be tried, than those "specified in the warrant of extradition;" and in this respect the Congress of 1869 had precisely the view held by the Congress of 1848.

We give, as follows, a specimen of an extradition warrant made out by the Secretary of State under the authority of law:

"Now, therefore, pursuant to the provisions of Section 5272 of the Revised Statutes of the United States, these presents are to require the United States Marshal for the Eastern District of New York, custody of the aforesaid James Bowen, alias William or any other public officer or person having charge or Miller, to surrender and deliver him up to Adam Bligh, a constable of the United Counties of Stormont, Dundas and Glengary, Canada, who has been authorized, in the name and on behalf of the British Government, by His Majesty's Minister at this capital, to receive him, or to any other person or persons who may in like manner be authorized, in the name

or on behalf of the said government, to receive the said James Bowen, alias William Miller, to be tried for the crime of which he is accused."

This extradition warrant was issued against James Bowen in execution of the treaty and the law to carry it into effect. It names the man to be delivered up, and just as distinctly points to the crime for which he is to be tried. That crime is the one mentioned in the previous recital, and which is here referred to as "the crime of which he is accused." To specify that crime and at the same time assume that he may also be tried for any other crime, is to make the specification utterly meaningless, except to grant a jurisdiction of which it does not give the slightest hint. The assumption changes the character of the extradition warrant.

President Tyler, when communicating the treaty of 1842 with Great Britain to the Senate, accompanied it with an explanatory paper prepared by Daniel Webster, in which the President thus refers to the extradition article of the treaty:

"The article on the subject in the proposed treaty is carefully confined to such offenses as all mankind agree to regard as heinous and destructive of the security of life and property. In this careful and specific enumeration of crimes the object has been to exclude all political offenses or criminal charges arising from wars or intestine commotions. Treason, misprision of treason, libels, desertion from military service, and other offenses of similar character are excluded." Webster's works, vol. 6, p. 355.

How are these offenses, not meant to be included, excluded? Certainly not expressly, but by obvious implication; and this implication arises from the fact that they are not placed in the extradition list. Yet this exclusion is the merest farce, if it be true that either government, having obtained possession of the fugitive on the charge of some one of the crimes named, may proceed to try him for any one of these other offenses not named, or for any offense other than the one charged as the basis of the demand and specified in the warrant of delivery. The moment the demanding and receiving government, in the exercise of its penal jurisdiction, passes the limit fixed by the enumeration of extradition offenses, and fixed by its own charge of a specific offense or offenses within the enumeration as the ground of the demand, and fixed by the surrender, it passes all limits, and may try and punish for just what it pleases, without any reference to the circumstances under which it acquired the power to try and punish at all. A single step in this direction completely sweeps away all the security which Mr. Webster supposed to have been gained by a careful enumeration of the offenses for which extradition might be claimed.

We have, then, the authority of writers on the subject of extradition, the authority of the extradition treaties of the United States, and the authority of

the laws of the United States for the execution of these treaties, all uniting in the general proposition of an implied obligation to confine the extradition remedy to the specific purpose for which it was sought by one government, and granted by the other. This implication rests not only upon the reason of the thing, but upon the treaties themselves, and is in fact a part of these treaties. Considered in its relation to the United States, and as operative within the territory thereof, it is a part of the local, municipal, and “ supreme law" of this country, and, as such, binding upon courts, both State and Federal, so far as these treaties are self-executing, or as Congress has provided for their execution. If the implication be real, then the Constitution makes it a part of the law of the land; and that it is real it has been the object of the preceding argument to show.

VALIDITY OF STATE LEGISLATION ALTERING CORPORATE CHARTERS.

SUPREME COURT OF THE UNITED STATES, OCTOBER TERM, 1877.

SHIELDS, PLAINTIFF IN ERROR, V. STATE OF OHIO. By a general act of the legislature of Ohio passed in 1851, provision was made for the consolidation of railroad companies and it was declared that "such new corporation shall possess all the powers, rights and franchises conferred upon the corporations of which it was made went up. Subsequently a Constitution of the State into effect which declared that "no special privileges shall ever be granted, that may not be altered, revoked or repealed," and that corporations could only be formed under general laws which might be altered or repealed. Thereafter two railroad companies which were formed previous to 1851, consolidated themselves and formed a new corporation. Held, that the consolidation destroyed the old corporation, and the new corporation was subject to the provisions of the Constitution, and the law under which it was formed might be altered so as to abridge the powers of such corporation.

IN

N error to the Supreme Court of the State of Ohio. The facts appear in the opinion.

Mr. Justice SWAYNE delivered the opinion of the Court.

The plaintiff in error was the conductor of a train of cars upon the Lake Shore and Michigan Southern Railway, between Elyria and Cleveland. Ulrich was a passenger intending to go from the former to the latter place. The intermediate distance was twentyfive miles. The fare fixed by the company was ninety cents. Ulrich offered to pay seventy-five cents, which was at the rate of three cents per mile, and refused to pay more. The conductor ejected him from the train and was thereupon indicted in the proper local court for assault and battery. The court instructed the jury that Ulrich had tendered the proper sum, and that Shields had no legal right to demand more. The case turned upon this point. It was not claimed that the defendant was guilty if Ulrich was in the wrong. A verdict and judgment were given against Shields. The case was removed by a writ of error to the Supreme Court of the State. The judgment of the court below was affirmed. The defendant sued out this writ of error and has brought the case here for review. The only question presented for our determination is the legal right of Shields to demand more than Ulrich offered to pay.

A brief chronological statement with respect to the provision in the Constitution, and those in the laws of the State bearing upon the subject is necessary to a clear presentation of the point to be decided.

1. An act passed March 2d, 1846, incorporated the Junction Railroad Company and authorized it to build a railroad from Cleveland to Elyria, and thence west. The 11th section empowered the company to charge such tolls for the transportation of freight and passengers as it might deem "reasonable." The 22d section declared that after the lapse of ten years from the completion of the road the State might reduce the tolls "should they be unreasonably high," and might "exercise the same power at intervals of every ten years thereafter." It was upon the road built under this act that the present controversy arose.

2. The act of March 7, 1850, incorporated the Toledo, Norwalk and Cleveland Company, and the charter was amended by the act of January 20, 1851.

The 12th section of the latter act declared that in case the Junction Company should become consolidated with theToledo, Norwalk and Cleveland Company the consolidated company might assume the name of the Cleveland and Toledo Railroad Company, and in that event should be governed by sections 9, 10, 11, 15, and 17 of the act incorporating the Junction Company and in other respects by the act incorporating the Toledo, Norwalk and Cleveland Company, and the acts amendatory thereof. The 22d section of the act first named, which allowed the State, after the lapse of ten years, to regulate the tolls of the Junction Company in the event specified, is not one of the sections enumerated.

3. The act of March 3, 1851, was a general act authorizing the consolidation of railroad companies coming within its provisions. The process was prescribed with great fullness of details. Section 3 declared: "And such new corporation shall possess all the powers, rights, and franchises conferred upon such two or more corporations by the several acts incorporating the same or relating thereto respectively, and shall be subject to all the duties imposed by such acts, so far as the same may be consistent with the provisions of this act."

4. The Constitution of Ohio of 1851 took effect on the first of September in that year. It declared that "no special privileges shall ever be granted that may not be altered, revoked, or repealed by the general assembly." Art. 1, sec. 2. "The general assembly shall pass no special act conferring corporate powers." Art. 13, sec. 1. "Corporations may be formed under general laws, but such general laws may from time to time be altered or repealed." Art. 13, sec. 2.

5. On the 15th of June, 1853, the Junction Company became consolidated with the Toledo, Norwalk and Cleveland Company, pursuant to the provisions before mentioned of the acts of January 20, 1851, and March 3, 1851.

6. The act of April 10, 1856, authorizes railroad companies of Ohio to consolidate with such companies of other States. The 3d section declares that such consolidated companies respectively "shall be deemed and taken to be one corporation, possessing within the State all the rights, privileges, and franchises, and subject to all the restrictions, liabilities, and duties of such corporations of this State so consolidated." was provided that the old stock should be extinguished, that a board of directors of the consolidated

It

company should be elected, and that new stock should be created and issued to the parties entitled to it. Those refusing to receive it were to be paid the highest market price for the old stock.

The 7th section enacts "that suits may be brought and maintained against such new corporation in the courts of this State for all causes of action, in the same manner as against other railroad companies of this State."

7. On the 11th of February, 1869, by an agreement of that date, the Cleveland and Toledo, and the Lake Shore Railroad Company became consolidated under the name of the Lake Shore Railway Company.

On the 6th of April, 1869, the Lake Shore and the Michigan Southern and Northern Indiana Railroad Companies were duly consolidated under the name of the Lake Shore and Michigan Southern Railway Com

pany.

Shields, the defendant in error, was an employee of this company when he ejected Ulrich.

8. The act of April 25th, 1873, provides that "any corporation operating a railroad in whole or in part in this State may demand and receive for the transportation of passengers over said road not exceeding three cents per mile for a distance of more than eight miles."

The defendant in error insists that the power of the company in the case in hand was fixed and limited by this act. The plaintiff in error denies this and maintains that the 11th section of the first-named act of 1846 is the governing authority.

In support of this view it is further maintained that this section was a contract, and that it was simply transferred to each successive consolidated corporation, including finally the Lake Shore and Michigan Southern Company, and that at the time of the occurrence here in question it was in full force.

This renders it necessary to consider the legal status and character of the new corporation. In the present state of the law a few remarks upon the subject will be sufficient.

The legislature had provided for the consolidation. In each case before it took place the original companies existed and were independent of each other. It could not occur without their consent. The consolidated company had then no existence. It could have none while the original corporations subsisted. Allthe old and the new-could not co-exist. It was a condition precedent to the existence of the new corporation that the old ones should first surrender their vitality and submit to dissolution. That being done, eo instanti the new corporation came into existence. But the franchise alone to be a corporation would have been unavailing for the purposes in view.

There is a material difference between such an artificial creation and a natural person. The latter can do any thing not forbidden by law. The former can do only what is authorized by its charter. B. & 0. R. R. Co. v. Harris, 12 Wall. 81. It was, therefore, indispensable that other powers and franchises should be given. This was carefully provided for. The new organization took the powers and faculties designated in advance in the acts authorizing the consolidation--no more and no less. It did not acquire any thing by mere transmission. It took every thing by creation and grant. The language was brief, and it was made operative by reference. But this did not affect the legal result. A deed inter partes may be made as effec

tual by referring to a description elsewhere as by reciting it in full in the present instrument. The consequence is the same in both cases.

If the argument of the learned counsel for the plaintiff in error be correct, the constitutional restrictions can be readily evaded. Laws may be passed at any time enacting that all the valuable franchises of designated corporations antedating the Constitution shall, upon their dissolution, voluntary or otherwise, pass to and vest in certain newly created institutions of the like kind. The claim of the inviolability of such franchises would rest on the same foundation as the affirmation in the present case. The language of the Constitution is broad and clear and forbids a construction which would permit such a result.

When the consolidation was completed, the old corporations were destroyed, a new one was created, and its powers were "granted" to it, in all respects, in the view of the law, as if the old companies had never existed and neither of them had ever enjoyed the franchises so conferred. The same legislative will created and endowed the new corporation. It did one as much as the other. In this respect there is no ground for any distinction.

These views are sustained by several well-considered cases, exactly in point. One of them embodies the unanimous judgment of this court. Clearwater v. Meredith, 1 Wall. 40; McMahan v. Morrison, 16 Ind. 172; The State of Ohio v. Sherman, 22 Ohio, 628; Shields v. The State of Ohio, 26 Ohio St. 86.

The constitutional provision that "no special privileges or immunities shall ever be granted that may not be altered, revoked, or repealed by the general assembly," entered into the acts under which the consolidations were made, and rendered the corporations created and the franchises conferred subject to repeal and alteration, just as if they had been expressly declared to be so by the act. The act of 1873, in the particular in question, was a legitimate exercise of the reserved power of alteration, and was, therefore, valid. Parker v. The Metropolitan Railroad Co., 109 Mass. 509.

Another branch of the argument of the counsel for the plaintiff in error calls for some further remarks.

It is urged that the franchise here in question was property held by a vested right, and that its sanctity, as such, could not be thus invaded. The answer is consensus facit jus. It was according to the agreement of the parties. The company took the franchise subject expressly to the power of alteration or repeal by the general assembly. There is, therefore, no ground for just complaint against the State.

Where an act of incorporation is repealed, few questions of difficulty can arise. Equity takes charge of all the property and effects which survive the dissolution and administers them as a trust fund primarily for the benefit of the creditors. If any thing is left, it goes to the stockholders. Even the executory contracts of the defunct corporation are not extinguished. Curran v. Arkansas, 15 How. 308, 311.

The power of alteration and amendment is not without limit. The alterations must be reasonable; they must be made in good faith, and they must be consistent with the scope and object of the act of incorporation. Sheer oppression and wrong cannot be inflicted under the guise of amendment or alteration. Beyond the sphere of the reserved powers, the vested rights of property of corporations, in such cases, are surrounded by the same sanctions and are as inviolable as in other cases. Tow authoritative adjudica

tions throw a strong light from opposite directions upon this subject. We cite them only for the purpose of illustration. In Miller v. The N. Y. & E. R. R. Co., 21 Barb. 575, the legislature, under the reserved power of alteration, required the company which had been previously incorporated to construct a highway across their road. The work was expensive, and of no benefit to the company. The act imposing the burden was held to be void.

In The Mayor and Aldermen of Worcester v. The Norwich and Worcester R. R. Co., and others, the legislature had passed an act requiring the railroad companies therein named to unite in a passenger station in the city of Worcester (the place to be fixed as provided) to extend their tracks in the city to the Union station, and after the extension to discontinue parts of their existing locations. The act was held to be constitutional and valid, being a reasonable exercise of the right reserved to the legislature to amend, alter, or repeal the charters of those companies. See, also, The Commonwealth v. The Essex Co., 13 Gray, 239, and Crease v. Babcock, 23 Pick. 334.

It is unnecessary to pursue the subject further in this case.

The judgment of the Supreme Court of Ohio is affirmed:

STRONG, J., dissented.

UNITED STATES SUPREME COURT ABSTRACT, OCTOBER TERM, 1877.

CONSTITUTIONAL LAW.

Act impairing obligation of a contract: provision in bank charter limiting rate of taxation.-The charter of a bank granted by the State of Tennessee contained this: "The said company shall pay to the State an annual tax of one-half of one per cent on each share of the capital stock subscribed, which shall be in lieu of all other taxes." Subsequently, under the State revenue law the State and the county, where a stockholder resided, assessed his stock and imposed a tax of one and six-tenths per cent thereon. Held, that the provision as to taxation, contained in the charter, was a contract between the State and the corporation, limiting the amount of taxation, and that the revenue law authorizing a greater taxation was in contravention of the contract and invalid under the Federal Constitution. Judgment of Supreme Court of Tennessee reversed. Farrington, plaintiff in error, v. State of Tennessee. Opinion by Swayne, J. Cases cited.-Trist v. Child, 21 Wall. 441; Dartmouth College v. Woodward, 4 Wheat. 682, 683; Pillans v. Van Mirop, 3 Burr. 1663; Forth v. Stanton, 2 Saund. 211; Von Hoffman v. City of Quincy, 4 Wall. 551; Dash v. Vankleck, 7 Johns. 477; Society v. Wheeler, 2 Gall. 104; Rex v. Passmore, 3 T. R. 290; Morris & Essex R. R. Co. v. Yard Comm'r; Farmers and Mechanics' Bank v. Deering, 1 Otto, 29; West Wisconsin R. R. Co. v. Supervisors, 93 U. S. R. 598; Tucker v. Ferguson, 22 Wall. 527; Wood v. Dummer, 3 Mason, 308; Curran v. Arkansas, 15 How. 304; Gordon v. Appeal Tax Court, 3 How. 133; People v. Commrs, 4 Wall. 258; Van Allen v. Assessors, 3 id. 584; Queen v. Arnaud, 9 Ad. and E. (N. S.) 806; Bank Tax Cases, 2 Wall. 209; Union Bank v. State, 9 Yerg. 49; Bradley v. People, 4 Wall. 462; Nat. Bank v. Com., 9 id. 353; State v. Branin, 3 Zabriskie, 484; McCultoch v. Maryland, 4 Wheat. 436; Hamilton v. Massachusetts, 6 Wall. 638;

Wilmington R. R. v. Read, 13 Wall. 264; State v. Utter, 34 N.J. Law, 493; St. Louis Mutual Ins. Co. v. Charles, 47 Mo.462; Atty.-General v. Bank, etc., 4 Jones' Eq. (N.❘ C.) 289; Bank of Cape Fear v. Edwards, 5 Ired. 516; Providence Bank v. Billings, 4 Pet. 514; Binghamton Bridge case, 3 Wall. 78; Gordon,v. Appeal Tax Court; State Bank v. Knoop, 16 How. 369; Dodge v. Woolsey, 18 id. 331; Home of the Friendless v. Rouse, 8 Wall. 430. Ib.

CONTRACT.

When time is of the essence of an executory contract.Time is usually of the essence of an executory contract for the sale and subsequent delivery of goods, where no right of property in the same passes by the bargain from the vendor to the purchaser, and the rule in such a case is that the purchaser is not bound to accept and pay for the goods unless the same are delivered or tendered on the day specified in the contract. Addison on Cont. (6th ed.) 185; Gath v. Lees, 3 Hurlst. & Colt. 558; Coddington v. Paleologo, Law Rep.. 2 Exch. 196. Judgment of Court of Claims affirmed. Jones, appellant, v. United States. Opinion by Clifford, J.

2. Contract for the delivery of goods to be performed within a specified time.- Plaintiff made a contract to deliver to the United States a certain quantity of cloths by a specified time. Being unable to fully complete his contract by the time agreed, because the mill in which the cloths were manufactured was burned, he applied to the government authorities for a release from the unfinished part of the contract. He was told by the head of the Bureau of Clothing, to whom the Assistant Quartermaster-General referred him that there was no power out of Congress which could release him from his contract, but that, upon application to the Assistant Quartermaster-General, sufficient time would be given him to deliver the goods. He thereupon procured the cloth required to complete his contract to be manufactured, and applied to the Quartermaster-General for permission to complete the contract, but such permission was refused. He thereupon tendered the cloth, which was refused on the ground that the time for delivery was past. Held. that time was of the essence of the contract, and plaintiff was not entitled to recover the damages resulting from the refusal to receive the cloth tendered. Graves v. Legg, 9 Exch. 716; Morton v. Lamb, 7 Term, 125; Slate v. Emerson, 19 How. 224; Governeur v. Tillotson, 3 Edw. Ch. 348; Jervis v. Tompkinson, 1 Hurlst. & Norm. 208; Packard v. Sears, 8 Ad. & Ell. 474; Freeman v. Cook, 2 Exch. 654; Foster v,Dawber, 6 id. 854; Edwards v. Chapman, 1 Mees. & Wels. 231; Swan v. Seamons, 9 Wall. 274; U. S. v. Shaw, 1 Cliff. 310. Ib.

CORPORATION.

Construction of charter: act impairing obligation of contract. The original charter of a turnpike company gave it the right, in consideration of building the turnpike authorized thereby, and of keeping it in repair, to erect certain toll-gates, and to exact certain tolls for the use of the turnpike, until the expiration of twenty-five years from the date of the charter and as much longer as the State should fail to redeem the franchises so granted by paying the cost of the work. When the term of the charter had more than half expired, the State gave the company a new and additional privilege-namely, the privilege of using a bridge

and dyke, and of erecting a toll-gate thereon. The only consideration required was that the company should keep them in repair; but should not even be responsible for any destruction of the dyke by high floods. The consideration was continuous, and correlative to the continued use. No term was expressed for the enjoyment of this privilege; and no conditions were imposed for resuming or revoking it on the part of the State. Held, that the provisions of the charter related only to the turnpike then authorized to be constructed. Any donations or franchises which the State might subsequently grant to the company would stand upon their own considerations, and could not fairly be claimed as parcel of the consideration of the original contract. Therefore, the State might, when the corporate life of the company ceased, revoke the right to maintain a toll-gate on the bridge and dyke, and was not bound before doing so to pay the cost of the turnpike, and a law providing for the public resuming the possession of the dyke and bridge would not impair the obligation of a contract. Judgment of Supreme Court of Illinois affirmed. St. Clair County Turnp. Co., plaintiff in error, v. People of Illinois ex rel. Bowman. Opinion by Bradley, J.

JUROR.

Challenge for cause: when not justified.-A juror who was challenged for cause in a civil action had previously conversed with another party in relation to the facts of the case, and had received from him an impression in relation to them, but he expressed an entire willingness as well as an ability to accept the facts as they should be developed by the evidence and render a verdict in accordance with them. Held, that a challenge for cause was not justified. Rogers v. Rogers, 14 Wend. 131; Jackson v. Commonwealth, 23 Gratt. 919; Freeman v. People, 4 Denio, 9; Lonnbey v. People, 5 Park. Cr. 414; Sanchez v. People, 22 N. Y. 147. Judgment of Supreme Court of Colorado affirmed. Union Gold Mining Co., plaintiff in error, v. Rocky Mountain Nat. Bank. Opinion by Hunt, J.

COURT OF APPEALS ABSTRACT.

CONTRACT.

1. Agreement to purchase stock not, a gaming contract: sale of stock to be delivered. - Defendant made and delivered to plaintiff this memorandum, “For value received the bearer may call on the undersigned for one hundred shares of the capital stock of the Western Union Telegraph Company, at 77% per cent, any time in thirty days from date. Or the bearer may, at his option, deliver the same to the undersigned at 77% per cent, any time within the period named, one day's notice being required," etc. Subsequently, within the thirty days the parties settled at market 72%, which was the price of the stock at the time of settlement, and it was agreed that if liable at all defendant should be liable to plaintiff for the difference between the settled price and the price stated in the memorandum. Held, that in the absence of evidence showing it to be intended as such the contract was not a gaming one, and was valid. Judgment below affirmed. Story v. Solomon. Opinion by Earl, J. 2. Under what circumstances the contract would be void as a gaming one. If it had been shown that neither party intended to deliver or accept the shares. but merely to pay differences according to the rise or

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