me without any pledge on that subject, seems to render it proper, now that that issue is forced upon me by influential supporters of Mr. Bryan, to return to their hands the power which they may again exercise of naming a candidate wholly in accord with the national ticket, although I cannot but deprecate the closeness with which national issues are allowed to bear upon the selection of officers whose powers and duties are not related to national affairs. This phase of the matter has been developed since the convention, and I have delayed this letter partly for that reason, and partly also because of the absence of Judge Brown, whose action I did not desire to anticipate. "In conclusion, I wish to thank the convention for the great honor conferred, and to express my sincere regret that the considerations mentioned compel my declination. 'Yours very respectfully, "NATHANIEL H. CLEMENT." GAMBLING UPON THE STOCK EXCHANGE W THAT is "gambling" upon the Stock Exchange? It is very difficult upon the face of it to say. The London Stock Exchange itself, the representative agency of business and enterprise upon the largest scale covering all the world, despite its immense prestige and its invaluable work both in the distribution of wealth and in its assistance of wealthproduction, presents nevertheless-even in cases when its members are the most honorable of their profession and when their energies are most legitimate-many of the features of gambling. The markets ever rise and fall, and, so long as they do so, an element of speculation is inevitable. The test of a gambling contract is the same test as that upon which the law of England is almost perpetually insisting, wherever contracts are its subject-matter. The test is "the intention of the parties." a peculiar difficulty, In ordinary contracts, one The body calling itself "The Universal Stock Exchange, Limited," is a company of "outside brokers" on a large scale. They gambled with the defendant Strachan and won; Strachan refusing to pay, they said it was no gambling, but a iegal contract. The course of business was admitted, "differences" only in fact were paid. But, for the reasons above appearing, that was not conclusive-many legal contracts having this element. The intention of the parties then became the question. The plaintiffs referred to Condition 2 of the "Terms of Business," which were printed on the back of their bought notes and their sold notes. The defendant had signed these "terms of business." Here, therefore, it was said the intention of the parties will manifestly appear. Condition 2 was as follows: "Every purchase or sale contracted by the company is a bona fide transaction for delivery on a specified settling day, and the company is always prepared, and by means of its capital able to deliver or take up any stock it may have bought or sold, and the contracts entered into by the company are not contracts of gaming or wagering. All bargains are to be completed on the settling day named in the contract, but any customer wishing to postpone completion of a purchase or sale may arrange with the company (upon terms) for postponement of completion until a future date (carry over), but the company, being always preA contract where the accounting for "differ-pared to complete on the settling day originally ences is all that is intended by the parties is a fixed, may decline to postpone completion at its gambling contract. The fact that the payments | option." actually made are for "differences" only is no guide in the matter at all. It is every-day practice for that to happen in the case of innocent (i. e. nongambling) contracts. It is this last fact which makes the decision of so many of the cases which arise under statute 8 and 9 Vict. c. 100 (the Gambling Act, 1845) so very difficult. The intention cannot be gathered from the form in which the contract is carried out. We must look, therefore, to its inception. ments. But its inception is usually evidenced by docuWill not these, at any rate, show the intention of the parties? Even here these cases present Now, in the first place, it is clear that the agreement that "the contracts entered into by the company are not contracts of gaming or wagering," would not conclude the matter. The law of England must determine that question, not the intention of the parties themselves. It is like the case of the agreement, which, after reciting an advance by F. D. provided that "such advance did not, and should not, be considered to render the said F. D. a partner in the business." That, again, was a matter for the partnership law of England to determine, and not for the parties to settle for themselves. The law did "consider" F. D., under the circumstances, a partner, and said so, malgre all agreements to the contrary. (Ex parte Delhasse; Re Megevand, 38 L. T. Rep. 106.) And so in this case, all that the "terms of business" at the most, could show, was the intention of the parties. Did they show even that? Upon this point, Mr. Justice Cave, after referring to the evidence, which proved (inter alia) that in no single instance were any of the shares actually delivered or taken up, and after reading the "terms of business" to the jury, asked their opinion as follows: "Notwithstanding those ostensible terms, was there a secret understanding that the stock should never be called for or delivered, and that differences only should be dealt with?" And the jury found against the company's contention on this point. The direction of Mr. Justice Cave to the jury was subsequently upheld both by the Court of Appeal and by the House of Lords. Still more recently, another case of a similar nature called Giéve v. Doyle, came before Mr. Justice Wills and a jury. In this case, one Giéve, trading as "John Shaw," sued a young man named Captain Doyle, on contracts almost precisely identical with that which formed the subject of dispute in The Universal Stock Exchange, Limited, v. Strachan. The whole of the case of Giéve v. Doyle turned upon the plea of the Gaming Act. It is true that counsel on both sides claimed for their respective clients that they had behaved honorably, but the judge treated this rightly as mere prejudice, and thought that the jury would not have much sympathy with either side. And, indeed, all in court were inclined to say, as Lady Teazle did upon a certain occasion to Joseph Surface, "Don't you think we had better leave honor out of the question?" The contracts, we have said, very closely resembled those in the recent leading case. As regards the evidence, however, one material difference was pointed out between the circumstances of that case and the present. In the previous case there was no instance of the shares having been delivered or taken up; whereas now in Doyle's case completion had been made in several instances. But, as against this, it was shown that two accounts were kept. One, called the "investment account, contained all the bona fide transactions. The other, called the "open account," contained those which the defendant alleged to be of a gambling description. Mr. Justice Wills said that the test was the same as that stated by Mr. Justice Cave and the House of Lords in the earlier case; and the jury found that the transactions in question were gambling transactions (The Times, July 10, 1896.) The matter was subsequently compromised, and Now this view of the law is not a new one, although both The Universal Stock Exchange, Limited," and "John Shaw" had previously succeeded in enforcing in court similar contracts to those under which they now suffered defeat. The truth is that, in those cases, different inferences of fact were drawn from the evidence from those which were drawn in these recent cases. Our allusion is to The Universal Stock Exchange, Limited, v. Stevens, 66 L. T. Rep. 612, and the Scotch case of "John Shaw" v. The Caledonian Railway Company, 17th New Sess. Cass. Fourth Series, 475, and the following extracts from the judgments of the learned judges who tried the two cases, will make it apparent that their view of the law did not materially differ from that now enunciated by the House of Lords. Mr. Justice Romer in the first case says: "The written terms between the parties show that the transactions involved the liability on the part of the plaintiffs to deliver the stocks, if called on so to do. There is nothing to show these terms were not to be acted on. Lord Shand, in the other case, says: "The rule or principle in this, that, if it appears clearly that the contracts were for differences only, and were not intended to be real transactions, and were not in fact real transactions, then they must be regarded as gambling transactions, and the court will not give effect to them. And I may say further that, if it appears that any writings which passed between the parties in the form of sale notes or otherwise were a mere form, intended by both parties to give a color to the transactions and to have no legal effect of any kind, then I do not think that the writings in such circumstances would take the case out of the rule I have mentioned."- The Law Times. Notes of American Decisions. RELEASE OF TORT-FEASORS.- Where several defendants are charged as joint tort-feasors, a release of any one of them, by withdrawal of the action against him on the payment of a sum agreed upon between him and the plaintiff, operated to release other defendants from all further liability. (Chetwood v. California Nat. Bank of San Francisco [Cal.], 45 Pac. Rep. 704.) TENANCY IN COMMON-CONVERSION BY CO-TENANT. A tenant in common of personal property, to the actual possession of which he is entitled, may maintain an action for conversion against his co-tenant who denies his interest and by whose acts the plaintiff has been deprived of the possibility of any enjoyment of the property. (Wood v. Steinaur [S. Dak.], 68 N. W. Rep. 160.) shareholder (but by no one else) on the grounds (1) that the resolution was ultra vires (2), that it was contrary to the agreement of 1890, and (3) that in the circumstances, it was inequitable. Held, (1) that, having regard to the clauses above mentioned of the memorandum and articles, the case was not within Hutton v. Scarborough Cliff Hotel Company (13 L. T. Rep. 57), nor Ashbury v. Watson (54 L. T. Rep. 27), and that the resolution was not, therefore, ultra vires; (2) that, as there was nothing in the agreement of 1890 that future capital was not to have any priority, it was not violated by the resolution; and (3) that, having re WILL DEVISE — - REMAINDERS. -Where testator devises land to two sons, with remainder to the children of each for the share of the parent, the remainder, contingent because at testator's death the sons have no children, becomes vested on their having children, and in no wise remains contingent because of the possibility of the birth of other children; so that the Orphan's Court has no jurisdic-gard to the facts that the deferred shareholders had tion, under the Price act, to sell the property, its authority thereunder not extending to vested remainders. (Anthracite Sav. Bank v. Lees [Penn. 35 Atl., Rep. 187.) Notes of English Decisions. COMPANY REDUCTION OF CAPITAL.-In 1886, a company with a capital of not less than £1,000,000, was formed to take over and work a concession which had been granted by the Nizam of Hyderabad. Disputes having arisen between the company and the Nizam, an agreement was come to in 1890, whereby, in settlement, the company raised an additional capital of £15,000, deferred shares of £10 each. Clause 5 of the memorandum of association provided that "the shares of which the company shall from time to time consist may be divided into different classes, with such preferences, priorities, restrictions or special incidents as may, from time to time, be provided by the articles and special resolutions of the company." The articles contained no power to reduce capital, but they provided that shares might be issued or re-issued of different classes, and that any special priority might be attached to or taken away from them, and that special resolutions affecting one class of shareholders were to be valid if passed in the presence and with the votes of such a number of such shareholders as were sufficient to make the resolution valid as a special resolution independently of shareholders of other classes. Power to reduce was inserted by an additional article, and at the same time a special resolution was duly passed and confirmed that the capital be reduced by £30,000, which had been lost, and that the loss should fall on the deferred shareholders by surrender of 3,000 of such shares, the remaining 12,000 to be raised to the position of ordinary shares. This petition was then presented, praying for confirmation of the reduction, and was opposed by the Nizam agreed to take the whole loss, the Nizam had full notice of all the proceedings, and that his position as a creditor under the original concession was not affected, that it was not unfair nor inequitable, and that the proposed reduction ought to be confirmed. (Chan. Div.; Re The Hyderabad (Deccan) Company, Limited, 75 L. T. Rep. 23.) CONFLICT OF LAWS.- The plaintiffs were English creditors of a Spanish firm carrying on business in Spain. The debt arose upon a contract made in England, and the action was for administration of the English assets of a deceased partner of the firm who had died in England. It was admitted that by the Spanish law the joint assets of the partnership must be exhausted, or their insufficiency judicially established, before the separate estate of a partner can be resorted to. Held, that this was merely a matter of procedure, and accordingly the rule of English law that the creditor of a partnership firm may, if he pleases, proceed against the assets of a deceased partner without first exhausting the joint assets or proving their insufficiency, even where the partnership is domiciled in a foreign country by the law of which the partnership assets must be exhausted, or their insufficiency judicially established, before the estate of a partner can be resorted to. (Bullock v. Caird, 32 L. T. Rep. 814; L. Rep. 10 Q. B. Div. 276, and Wilkinson v. Henderson, 1 My. & K. 582, followed. Chan. Div.; Re Doetsch; Matheson & Co. v. Ludwig, et al., 75 L. T. Rep. 69.) GRANT OF LAND. A grant of land by a colonial government contained a reservation that "the said land shall be liable without compensation * * * to have any ** * * watercourses made over any part of it for the public use and benefit, by order of the colonial government," with certain exceptions as to buildings. Held, that the right to make a watercourse included a right to divert water from a natural stream on the land to fill it, and to use the water so diverted. (Priv. Council; Remfry v. Surveyor-Genea large ral of Natal, 75 L. T. Rep. 58.) METROPOLIS. — In 1866 the owner of a block of houses in the metropolis drained them by a line of pipes which ran into a sewer in an adjoining street. There was no evidence that this was done by the order or with the consent of the local authorities. Held, that these pipes were a sewer " which vested in, and was repairable by, the local authority. (Ct. of App.; Reg. v. Vestry of St. Matthew, Bethnal Green, 75 L. T. Rep. 60.) 66 TRADE-MARK REGISTRATION.-The plaintiff was a manufacturer of and a wholesale dealer in confectionery, and, amongst other things, made and sold in packets and tins a particular kind of cough lozenge described on the wrappers as "Rowland's Army and Navy Paregoric Tablets." The wrappers also contained a device consisting of a portrait (from a photograph) of the plaintiff in an oval frame, the portrait being the essential part of the plaintiff's trademark, which was registered as such in 1891. WILL. A testator devised all his manors, lordships, messuages, farms, lands, tenements and other hereditaments of freehold and copyhold tenure situate in six counties, also nine advowsons and all his other freeholds in England to trustees for a term of 2,000 years upon the trusts thereinafter declared, and subject thereto to the events which happened of one of his sons for life with remainder to the sons of that son in tail mail. And the testator declared that every estate for life therein before limited should be unimpeachable for waste, and that the trust of the terms of 2,000 years were to raise by mortgage of the hereditaments comprised in the term the amount required in aid of his personal estate for payment of debts, expenses, and the legacies thereinafter bequeathed. And the testator gave to his trustees a power of sale over his estates except his two mansion houses and the lands held therewith, and declared that the net rents and profits of his estates so long as the legacies, portions and moneys to be raised by mortgage should remain unpaid should be divided into two equal parts, one to be retained by the person entitled in possession to his estate, and the other to be paid to his trustees, who, after thereout paying interest on mortgages and maintaining his infant children, should therewith form a fund for the payment of legacies and portions when payable. In 1892, the plaintiff had threatened with proceedings one H., who was also selling cough lozenges in wrappers labelled "Army and Navy Paregoric Tablets," and got up in a manner so closely resembling the plaintiff's as to enable them to be passed off as plaintiff's goods. The defendant subsequently purchased and carried on H.'s business, continuing the practices complained of. There were circumstances in the case which satisfactorily accounted for the plaintiff's delay in bringing the action, and prevented it from amounting to acqui-ject to charges, portions, annuities, legacies and escence. The action was brought for an injunction to restrain the infringement of plaintiff's trade-mark, and the passing off of the defendant's goods as the plaintiff's. There was a concurrent motion by the defendant to expunge the plaintiff's trade-mark from the register on the ground that a portrait was not a "distinctive device," or the proper subject-matter of a trade-mark. Held (1), distinguishing Re Anderson's TradeMark, 26 Ch. Div. 409, that a portrait might be, and the portrait here was, a distinctive device " within section 10 of the Patents, etc., Act of 1888, and the motion to expunge therefore failed. Held (2), that though the plaintiff could not by using his portrait as a trade-mark prevent any one else from using a substantially different portrait of another person on goods sold by him, the plaintiff was entitled to succeed on the ground that the defendant's goods were got up so as to enable them to be passed off as the plaintiff's, that being obviously the defendant's intention. Held (3), that the plaintiff had not lost his right by acquiescence or delay, and following Fulwood v. Fulwood (38 L. T. Rep. 380; 9 Ch. Div. 176,) that mere delay for a short period would not in itself be sufficient to defeat his legal right. (Chan. Div.; Rowland v. Mitchell, 75 L. T. Rep. 65.) The properties included in the devise were sub many mortgages on specific parts thereof. The tenant for life in possession mortgaged his interest to a life assurance society, who afterwards foreclosed and entered into possession. The society discov ered that the incomes of the estate included in some of the mortgages were insufficient to keep down the interest payable thereon, while there was a surplus from the incomes of the other estates after discharging all outgoings in respect thereof, and decided to give up to the mortgagees possession of those estates the incomes of which were insufficient to keep down the interest payable in respect thereof, and to retain the other estates. In an action by the tenant in tail in remainder against the society to prevent them from carrying out that decision: Held, that the society were not entitled to give up possession of those estates the incomes of which were insufficient to keep down the mortgage interest payable in respect thereof and to retain the other estates, but that, as the testator devised the incumbered and unincumbered estates as a whole to the tenant for life, the society, who derived their title from him, were bound to apply the income of the whole in keeping down the interest payable in respect of the mortgages on the unincumbered parts thereof. (Chan. Div.; Frewen v. The Law Life Assurance Society, 75 L. T. Rep. 17.) The Albany Law Journal. WE ALBANY, OCTOBER 17, 1896. Current Topics. E publish in this issue of the LAW JOURNAL three very important decisions in relation to the Collateral Inheritance Tax act which have just been decided by the Court of Appeals. The decisions relate principally to the question as to whether or not bonds and stocks of a domestic and foreign corporation, or moneys deposited in this State, belonging to a non-resident decedent are taxable under the act to which we have referred. Previous to this time the decisions in this matter have somewhat differed, but it would seem that now the question is definitely and finally settled. The first decision, known as the Bronson case, holds that the bonds of a domestic corporation owned by a non-resident decedent, in his possession without the State at the time of the statute are not property within the State within the terms of the Transfer Tax act, and hence are not subject to taxation under that act, and that the stock of a corporation represents a distinct interest in the corporate prop erty, and stock in a domestic corporation owned by a non-resident decedent and in his possession without the State at the time of his death is liable to taxation under the Transfer Tax act. The opinion in this case is written by Justice Gray, and is a clear, logical interpretation of the law in the premises. The opinion gives an interesting summary of the decisions of the Court of Appeals and the General Term in their construction of the Transfer Tax act. In fact, we must say that we agree with Judge Gray's reasoning in each of the three cases, and fail to appreciate the distinctions which are made by the majority of the court in the Whiting and in the Houdayer cases. We fear that the construction given to the law in the last two mentioned cases will lead to many difficulties, which we believe could have been obviated by following the spirit of the decisions in the Bronson case. The principle of construction to which we particularly refer is in relation to the taxation of bonds of foreign VOL. 54 No. 16. corporations which form part of the estate of a non-resident decedent. The principle which is laid down in the Bronson case is that the property represented by the bonds is a debt which follows the creditor's person-it is difficult to see how the court can hold as they did in the Whiting case, that the bonds of a foreign corporation owned by a non-resident decedent, and on deposit in this State at the time of his death, are taxable under the law of this State. The same, in general, is our objection to the decision in the Houdayer case, where the court holds that moneys of a nonresident decedent deposited in a bank in this State after his death are taxable. Judge Gray writes the opinion of the court in the Bronson case, and the strength of his position in his dissenting opinion in the Houdayer case lies in the fact that he follows the principles which he so learnedly applies in his prevailing opinion in the Bronson case. It is also evident that the holdings of the majority of the court in the Houdayer case might necessarily lead to a double taxation. The argument of the majority of the court is that inasmuch as personal property is defined to include written instruments by which any debt or official obligation is created, bonds are expressly made property of a taxable nature, having a situs wherever physically present. This definition can only be sustained by the application of the definition of property as defined in the Statutory Construction act, which was passed subsequently to the Transfer Tax act, but as under the first mentioned law there is given a definition of the word property, we think that such definition should prevail over one which was made in a subsequent law, especially as in this way a construction would be permitted which is consistent with the rules of law, and which would, moreover, add greater dignity to the practices on the part of the State in their efforts to raise revenue. To us it seems that we are, in this State, too prone to pass acts which raise revenue in a new and peculiar manner, that we attempt to avoid direct taxation, and that our courts tend to construe our tax laws in a way which rather increases the amount of revenue to be raised under their arbitrary terms. Again, we must observe that there is an obvious prejudice to our interests in the construction which was given by the court in the |