Thomas & Co., on the 29th January, 1881, so that the plaintiffs might be registered as owners of the shares, and as they alleged, for no other purpose.

Nothing further was done until the 9th December, 1882, when inquiries were made by the plaintiffs as to the certificates and dividends thereon, to which Messrs. Thomas & Co. replied on the 11th December, 1882, stating that the certificates were in New York pending the instructions of the plaintiffs in case they desired a sale, and to avoid the risk of a double transmission of the certificates. The letter also stated that a power of attorney would have to be signed by the executors for the receipt of the dividends, and concluded thus: "We need hardly say that there is no risk in leaving the certificates in New York, as they are not indorsed." The certificates were, in fact, never sent to New York, but in February and April, 1881, the certificates of 1210 shares, with the transfers in blank indorsed thereon, were deposited with the Colonial Bank as security for advances.

Some of the certificates were redeemed and redeposited, and ultimately 710 were left with the Colonial Bank, and 500 with the Chartered Bank of Australia.

The firm of Messrs. Thomas & Co. were adjudicated bankrupt on the 5th February, 1884, and Frederick Whinney was appointed trustee.

On the 21st February, 1884, the plaintiffs commenced their action against the Colonial Bank and Frederick Whinney, asking for a declaration that the deposit of the 710 shares was in fraud of the plaintiffs, and conferred no legal title on the bank; for delivery of the certificates, and for an injunction.

The defendants by their counter-claim asked for a declaration that they were entitled to a valid mortgage or charge upon the share in question for the amount due to them from the estate of Messrs. Thomas & Co., and that the plaintiffs and the defendant F. Whinney might be ordered to do and concur in all acts necessary for vesting the shares in the defendants or their nominees and enabling them to become the registered proprietors thereof.

In the second action the facts were of a similar character, but related to the 500 certificates deposited with the London Chartered Bank of Australia at a later date; there was no counter-claim in this action.

Both actions now came on for trial together. A large amount of evidence was given with regard to American law and the usage on the Stock Exchange in America and London, with regard to certificates of this nature. From the evidence on American law it appeared that the legal title of shares vested in the person who for the time being was the only person entitled to have them registered in his name as the legal owner thereof. And as to the usage of the monetary world with regard to certificates indorsed as these were, the evidence was that such certificates were equivalent to securities to bearer and passed from hand to hand, but there was evidence to show that in the case of transfers of the shares of a deceased owner, the appointment of his representatives had to be strictly proved, and the transfers executed before an American consul or the transfer agents of the company; and that until this was done the document was incomplete and would not pass as 'good delivery " upon the Stock Exchange.

Finlay, Q.C., Warmington, Q.C., and Decimus Sturges, for plaintiffs.

Rigby, Q.C., Reid, Q.C., and Christopher James, for Colonial Bank.

Latham, Q.C., and T. H. Wright, for London Chartered Bank of Australia.

George Lawrance, for trustee in bankruptcy.

KEKEWICH, J. There is no question of fact in this case in the ordinary sense of the wordthat is to say, all the events with their dates which are at all essential to the consideration of the case are not only proved but admitted. But there are questions, which really are questions of fact and very difficult questions, behind; questions of fact, not in the ordinary sensenamely, questions respecting the usage of the monetary world touching instruments of this kind, and a question of American law, which in our courts is a question of fact. But the events and dates are all before me without contradiction, and without dispute, and I need not recapitulate them. Before going to the rest of the case, I wish to clear out of the way the question what is meant by the American witnesses wheu they say there is a legal title to the shares in the person holding a certificate indorsed as this is, and not up to this time carrying any change of ownership on the register. Now, I have listened to all the evidence as it was read, and the comments on it, and I have since had an opportunity of looking through it in print, and the evidence of the American witnesses is, to my mind, summed up intelligibly and accurately in an answer by Mr. Choate to the plaintiff's seventh cross interrogatory at p. 59 of the evidence taken on commission. He says: "In American law the legal title to shares rests in the person who for the time being is the only person entitled to have them upon demand, duly registered in his name as the legal owner thereof. There are cases in which the rule obtains in American law that between persons who have equal rights in equity, the right of the person having the legal title prevails; but such proposition is of rare application, and I do not see that it can be applied to the question of title to stock acquired in any such way as has been indicated in this examination hitherto. According to the law of New York a person who is not on the register of shareholders may have a legal title to shares in a company." Therefore taking that to be, as I think it is, a fair statement of the evidence on the subject, it follows that the American law does recognize that which English law does not - namely, a legal title existing without legal ownership. According to English law there is no such possibility. A man cannot be the legal owner unless he has the legal title, according, at any rate, to the ordinary employment of the words "legal title." That is his definition, and I think it is a definition which I must keep in my mind in considering the rest of the case. Looking at the question from that point of view, it divides itself into the legal title as between the company and the person claiming that legal title, or more than one person claiming that legal title, and the legal title as between persons claiming it. The legal title as against the company, is, as I understand, settled entirely by that statement. A man may go, having such an indorsement (it may be) as we have in this case, and say, "I am entitled to be registered as the legal owner," and if he is in that position he has the legal title, and he holds it as against other persons who have not got such an equity as would displace the legal title, which one passage I have read in that answer points to as sometimes occurring. Now that question, to my mind, is the only question as regards the ownership of the shares, and is one of American law. There is also the question as to what is the meaning of the certificate, what is the meaning of the indorsement before it is filled up, and what is the effect of the indorsement when filled up in the way in which we have it here? That latter question is really the same as the question about the legal title. But the meaning of the document, both on its face and on the back, is a question, to my mind, entirely of American law, and I am not at liberty to construe it as if it were an English document, and without the aid of the evidence of experts

in America. If I were to construe it as an English document it is unnecessary to say how I should construe it, but I certainly should not construe it in the way in which the American witnesses have construed it, and said that it is construed in America. That I am not at liberty to do; I must take their evidence, and taking their evidence, I have no doubt that Mr. Choate has correctly stated what the law in America is upon the subject. Then I am asked further, to consider as a question of American law whether the plaintiffs are estopped in this case; that is to say, whether they are prevented from in any way insisting upon what in their point of view is the correct version of their conduct in the matter. To my mind, American law has nothing whatever to do with that. It seems to me to be a question of conducta question of representation and absence of representation, to be decided by an English court, respecting events which have occurred between persons resident in England and carrying on business in England. That seems to me purely a question of English law, and entirely untouched by American law. I think, having cleared the ground in that way so as to see what there is of English law and what of American law, and what the statement of the American law is respecting the legal title which must be disposed of in the first instance, I will proceed to get rid of one or two others matters which I think have no material bearing on the main question in dispute, though they are necessarily mixed up in it, and have necessarily led to some discussion. In the first place, we have had a good deal of evidence, both in print and in the witness-box, of what is held to be good delivery. Now to my mind, what is, or is not, a good delivery does not directly, and I doubt whether it does indirectly, affect any question in the case. Stockbrokers, bankers, and other men in business, will only do that in the hurry of their business which can be done consistently with that hurry. I am using the word 'hurry" as meaning rapidity or promptitude. They will not want to get proof. If you present to a man a document which requires some evidence to prove its genuineness, he declines it, be cause that would take time, and not only take time, but perhaps involve him in difficult inquiries, which would send him to his lawyers, or to some other expert in that particular line, to get information on a point about which he himself is not sufficiently informed. Therefore among classes of business men, such as stockholders, it is held for their common convenience that one man shall not be at liberty to enforce on another, in fulfilment of a contract or document, whatever it may be, that which involves him in a difficult inquiry, and possibly some risk. That is not really the question in this case. Whether these particular certificates pass from hand to hand, pass as securities to bearer, is to my mind an entirely different question from whether they would be a good delivery under circumstances such as exist here, or under any other circumstances. Again, I think that I may forget any distinction between a registered owner and the executors of a registered owner. The evidence proves what I might assume without evidence, that the executors (that is to say, the legal personal representatives constituted by the proper court in a proper manner) of a deceased registered owner have precisely the same powers of disposition which the registered owner himself had, and if an indorsement by the registered owner be sufficient, an indorsement by the executors is equally sufficient. There is no difference between the two. But the only question which comes in is, who are the executors? Have they been constituted by a proper court? Are they therefore the legal personal representatives, and are they the legal personal representatives for all purposes? Those are questions of law, and questions of inquiry; but when once you

have ascertained that they are the executors in the common sense of the word, you get rid of all that difficulty, and there is nothing more to be done, and an indorsement by the executors is precisely equivalent to an indorsement by a registered owner himself. I do not think that the case is in the slightest degree complicated on one side or another by that difference between the executors and the registered holder. Now I pass on to the conduct of the executors, and what they intended to do. These gentlemen had these 1210 shares in this American railroad company, and in discharge of their duty to the estate, they were minded to do whatever was needful in order to get themselves placed in the position of owners to this extent that they might sell them if they wished, and at any rate, might draw the dividends, which they could not do because the power of attorney executed by their testators had of course ceased to have any effect on his death. They corresponded with Messrs. Thomas & Co. on the subject. Now there is not any anticipation, in the first instance, of any wish to sell. One might presume not necessarily a wish, and certainly not an intention to sell, but an inquiry in their own minds whether it would be desirable to sell or not. I do not know what the terms of their trust were, or whether there were any terms at all; but the executors would be bound, in dealing with these securities, to inquire whether they were securities which they ought to hold, and I assume that the idea presented itself to their minds, but they did not in the first instance wish to sell. What they wished to do was to get the dividendsThen they were told, and told rightly, that the certificates must be sent over for registration. The indorsement of the certificates in the first instance seems to have been neglected, and it is singular that Messrs. Thomas & Co., who were brokers of large experience, did not know what everyone who has listened to this case knows-that the certificates would have to be indorsed, and that some formalities would have to be complied with beyond merely sending over the certificates for registration. However, although it is not proved, I gather that the certificates were sent over and were returned in the first instance, and the objection was that there was no signature at all. At last, after some correspondence, on the 29th January, 1881, Mr. Pryor, the agent of the executors, writes to Messrs. Thomas; "I now beg to return 121 New York Central Certificates for 1210 shares, signed by the executors, by which kindly do the needful and acknowledge the receipt." Pausing there for a moment, I might mention this, that probably, not on the same day (that is immaterial), but when they were sent with that letter they were signed by the only two executors who had then proved. The third executor out of four had not proved, but did prove afterward, when as I understand, he attained his majority. The certificates were signed then by the only two executors who had proved. Whether between that date and some other date the third executor had proved is, to my mind, utterly immaterial. The two executors were then in the position of legal personal representatives of the deceased, and what they did then operated to bind the estate, whatever happened afterward as regards the other executor, who as a matter of fact does not seems to have interfered in the least. The certificates were sent to Messrs. Thomas & Co., simply as I hold on the construction of the correspondence, for the purpose of seeing that the registration was changed in America. It is important to remember that there was a contemplation then, not merely in the minds, but expressed by the executors in the letters, of selling, and they were aware that the same signature which was required for registration was equally required for selling, and more than that, they believed, and may be said to have been aware, that the signature which was re

case.

quired for registration would also suffice for selling, so that once signing". to use Mr. Pryor's own expression would do. Still my construction of the corre spondence is, that the sale was only a thing contemplated as possible on which they were to arrive at a decision on some future occasion, and that the certificates were only placed in the hands of Messrs. Thomas & Co., for the immediate purpose of registration. Now we know that they never fulfilled that purpose, and the certificates never were sent to America for registration, and there can be no doubt it has not been suggested to the contrary - Messrs. Thomas & Co., or the partner in the firm who represented the firm, in doing what he did, acted entirely contrary to his instructions, and in fraud of his clients. If that consideration could determine the case, there could be no question that that is so, and what the determination would be. As a matter of fact, he did nothing in fulfilment of his instructions; and for some reason which has not been explained, though there was some explanation attempted, the executors lay idle for a considerable time; and Mr. Rigby, without wishing to impute negligence to the executors, had pointed out that this delay may fairly be taken into consideration in weighing the merits and demerits of the plaintiff's Now I should be very unwilling to say a word which would impute negligence to these gentlemen, because I have not the cestuis que trust here, and I do not know what claim may be made against the trustees, if unfortunately, there is a loss to the estate. Moreover, I should be unwilling to say a word about negligence where it was unnecessary. Therefore in saying that I do not think that any negligence is proved, I mean precisely what I say, and no more and no less. I am not satisfied that the delay which occurred, and which is certainly unaccountable, was the causa causans of what happened, nor even that it was the causa sine qua non. The deposit with the Colonial Bank was made early in 1881, and even if the executors had written and urgently demanded information by mail, there is no doubt that the Colonial Bank would have insisted on their securities. The Chartered Bank would never have had theirs, because that would have been stopped; but no other alteration would have been made in the case at all. Therefore I cannot rest this case, or my decision of this case, in the least on the negligence of the executors, nor can I say that there has been any negligence which has led to what has occurred. I am at a loss to know what executors in such a position could have done different to what they did do in 1881, and I am not going to inquire into they delay further. They were bound to get these shares registered, either in their own names or in the name of some purchaser from them. their duty to do it, and what were they to do but to intrust them to brokers of standing and reputation brokers who had been trusted by their own testator; and if unfortunately they have suffered for their confidence in Messrs. Thomas & Co., as many other persons have suffered, it seems to me to be the result of a proper transaction on their part, and not of any fault of theirs. Messrs. Thomas & Co., as a matter of fact, treated these shares as their own, and deposited them with the Colonial Bank. I may leave the Chartered Bank out of the case, because as I say, that was not done till afterward. That was with regard to some shares-500-which had been released by the Colonial Bank, and I do not think there is any difference between the two cases. The shares were deposited, and there the shares are now, and the Colonial Bank say that they are entitled to hold these certificates as the legal owners, and insist upon their legal title according to American law by way of security for the moneys which they advanced on the shares. What moneys

It was

were advanced has not been gone into, and may require some careful investigation, but they insist on their title as pledgees or mortgagees. Now in order to determine that question, I have to consider these two points: First, what is the evidence as regards the usage of the monetary world respecting documents of this kind, and then I have further to consider, supposing that usage establishes what the defendants, the Colonial Bank, say it does, whether the executors are bound by that usage so as to be deprived of these shares as forming part of their testator's estate. Now on the first point, as to what the usage of the monetary world is, I am not going to refer to any thing but the evidence of the bankers, brokers and other persons, and in referring to their evidence, I strike out of my mind entirely all they say about the law of the case. Those gentlemen, not here but in America, have told us a good deal about the law of the case, but I do not consider a banker or a broker, either in this country or elsewhere, a good witness on a question of law. They are good witnesses on matters coming within their own cognizance, with which they are presumably familiar, that is to say, any thing which goes to the custom of merchants, but I do not consider their evidence receivable on any question of law, of course I am speaking of foreign law. But though I say I refer to the evidence both in America and here, 1 do not think it necessary to do more than to refer to the American evidence in the way in which I have done. The evidence of bankers and brokers in England is quite sufficient for this case. I do not say that the evidence in America is not admissible. So would evidence in Paris or evidence in Vienna or anywhere else be. I do not think the evidence of a Parisian broker would be valuable, because what you have to inquire into is not what is the custom or usage in a particular place, but what is the usage of the monetary world, and you take the usage of a large capital such as London as sufficient evidence to govern the whole monetary world unless it is contradicted. It so happens, we hear, that there is no difference between the American evidence and the English evidence, but I am content to take the English evidence which we had here yesterday. Now to my mind it is proved beyond dispute, whether rightly or wrongly, as a matter of law, and whether wisely or unwisely I do not inquire, and I ought not to inquire, the merchants using the word merchants to mean all engaged in commercial transactions do regard documents of this character as passing from hand to hand, or I think the better expression is, as "equivalent to securities to bearer." I have evidence that such things will pass sometimes for many years from hand to hand, without registration, and that by some arrangement the registered owner authorizes some one to receive the dividends, so that the dividends are from time to time received by the person holding the certificate. That is their view, and they so deal with these things; they run any risks that may be incident to the transaction of not getting the registration when required. Of course, at the bottom of all there is confidence in the customer applying for the advance, which without being told by witnesses, one knows is the foundation of all commercial transactions. But we have one witness after another stating that it has been the custom in the city of London for many years to deal with documents of this particular character as equivalent to securities to bearer. The only blot in the evidence is this, that no one remembers a single instance of certificates indorsed by executors; they none of them remember cases of executors, and one does not know, if they had noticed a case of executors, what they would have said with reference to their willingness to accept such certificates. But that they would still have passed

from hand to hand, and still have been equivalent to securities to bearer, provided that the banker asked to make the advance was satisfied of the genuineness of the signature does not remain in doubt, and I cannot doubt myself for a moment that if a customer, bringing a bundle of these things, and asking|for an advance upon them, said: "It is all right; I knew the testator; I know he is dead, and his will has been proved, and these gentlemen are his executors," any little difficulty arising from the caution of bankers and others to accept documents signed by executors without strict proof would have been got rid of. Therefore I think I am bound to hold, that according to the usage of the monetary world these documents have been for a long time past accepted as securities to bearer, on which bankers daily make advances as they do on securities to bearer. I do not think that the Colonial Bank was in any way put upon inquiry by the fact that Messrs. Thomas & Co. were brokers. It is with brokers that these banks deal; they know that brokers very frequently raise money for their clients without disclosing the names, and that is done by many securities being tied up in one bundle, and intended perhaps really to meet different occasions, though there is only one advance on the whole. That is part of the custom, that is part of the usage as regards these matters; and if a court were to hold that whenever a broker was to tender securities the bank would be put upon inquiry, it might or might not conduce to stricter dealings in these matters, it might or might not be a good thing for the commercial community, but it would certainly overrule a great many cases which have gone on the opposite principle. Nor do I think that they were in the least put upon inquiry by the fact that these were executors. I have really dealt with that point before, and I will not repeat what I have said. Then holding the Colonial Bank to have acted honestly, and not to have been put upon inquiry at all, I come to the real question whether the executors are, as the phrase is, estopped from denying the title of Thomas & Co., to pledge these shares. Now they were dealing with documents, which though not negotiable instruments in the proper sense of the word, were, as I say, equivalent to securities to bearer; they must be taken to have known the nature of the securities which they held, and they must, I think, be taken to have given to their agent, not as Mr. Finlay suggested, their clerk, or messenger, but to their broker, who was the proper person to deal with these things, all that authority which by the law merchant went with the particular instrument. Now I am not sure whether the word "estopped" is precisely the right word to use in these cases, but it has been used in many of them, and I think it is sufficiently understood. It is not used here in the strict technical sense of the word; it cannot be suggested for a moment that the executors are precluded from asserting the truth. On the contrary, my judgment goes on an examination of the real facts. What they are precluded from asserting, in my judgment is that Messrs. Thomas & Co. were not, by having the custody of those documents with their assent, precluded from dealing with them, as they from time to time considered desirable. They might have intended to sell them without sending them back to the executors. Messrs. Thomas & Co. were intended therefore to part with them, and it seems to me to have been a necessary incident to the authority that they should part with them in any manner in which they thought necessary; that is to say, the executors had confidence in Messrs. Thomas & Co., in the same way as the bank had confidence in Messrs. Thomas & Co. Unfortunately, the confidence was misplaced in both cases; but the confidence was placed, and as I have already

said, I think placed rightly by the executors. I do not know what really they could have done more. I think they did authorize Messrs. Thomas & Co. to do what Messrs. Thomas & Co. thought necessary; and unfortunately Messrs. Thomas & Co. thought it right to do what they ought not to have done, and what they were not instructed to do. They parted with these securities, not for the purpose of registration, not for the purpose of sale, but for the purpose of raising money on their own account. I think that the executors, when they signed these certificates and sent them up to Messrs. Thomas & Co., for the purpose expressed in their letter, did enable them and intended to enable them, to represent to anyone whom it concerned that they had appointed Messrs. Thomas & Co. their nominees and attorneys, and that Messrs. Thomas & Co. were at liberty to dispose of the shares in whatever manner was required. I think that they cannot now deny that authority. I think it was a representation to the Colonial Bank made by their signatures that Messrs. Thomas & Co. had the control of the certificates. That being so, I must come to the conclusion that the executors cannot succeed in this action, and that the Colonial Bank and the Chartered Bank also have a charge on these certificates for the moneys advanced, with interest and costs; that is to say, the right of an ordinary mortgagee, and I think that they are entitled to have an account taken. That seems necessarily to follow. It does not necessarily follow to my mind that they ought to have any other relief. The banks have taken the certificates, and they are entitled, as I say, to hold them; but there is no contract with the executors at all. The executors have entered into no bargain with these banks. The executors have not undertaken to do any thing more than was their duty; the executors have not said that they would get this indorsement acknowledged before a United States consul, or any other officer. Therefore, although holding that the banks are entitled to a charge on the certificates, and are entitled to enforce that charge, if they can, by obtaining registration in America, I do not think that they have made any case for compelling the executors to do any thing more than they have done. That is asked by the Colonial Bank's counter-claim. It is not asked by the Chartered Bank. My judgment therefore goes to this, that there ought to be a declaration, that as regards 710 shares the Colonial Bank, and as regards 500 the Chartered Bank, are entitled to a charge for the money advanced on these securities, and there will be an account of what is due in respect of those advances. I do not propose to go further beyond that than to give liberty to apply. If when the accounts have been taken any further application is necessary, it can be made under that liberty, but I express distinctly my own opinion that the banks are not entitled to come and say, "Now you must either redeem me, or must complete my legal title, by giving me the means of getting registered in the books of the company." If the banks cannot get that without the assistance of the executors, they are not entitled to it at all. I do not think I ought to say any thing more on that question, which is a question which has been considerably discussed in the evidence. Counsel for both banks have averred at the bar that they have no doubt that they can get the registration in their own names at the proper time. I have formed my own opinion upon it, but it being a question of American law, and one which I think it is not proper for me to decide, I think I ought not to say any thing more on that subject. The banks will take their costs, as part of their security. I have had to decide a most unfortunate position of affairs between two parties, who in the eye of the law are both innocent. I do not see how the executors

could possibly have done otherwise than have the case thoroughly thrashed out here. I am equally satisfied that the banks could never have realized their security without having the matter also thoroughly thrashed out. I think in this state of circumstances the proper thing to do is not to make either party pay the costs of the other in any event. I think I have given the banks as much as I can properly give them in directing them to add their costs to their security.

NEW YORK COURT OF APPEALS ABSTRACT.

MUNICIPAL CORPORATIONS POWER OF COMMISSIONERS OF FIRE DEPARTMENT TO REMOVE MEMBER.

(1) The commissioners of the department of fire and buildings of the city of Brooklyn have no authority to remove or dismiss any member from the department, except upon notice, trial and conviction for one of the offenses enumerated in the Brooklyn charter act, Laws N. Y. 1873, chap. 863, tit. 13, § 14. (2) Under Code N. Y., § 2138, the hearing upon return to a writ of certiorari must be had " upon the writ and return, and the papers upon which the writ was granted.” Held, that where the return meets and traverses all the allegations of fact contained in the writ, and the papers upon which it was granted, then the hearing must be confined to the facts stated in the return; but where the return admits or is silent as to the facts stated in the writ, or the papers upon which it was granted, then such facts become important, and must be considered and have effect upon the hearing. People v. Commisioners, 103 N. Y. 380. June 7, 1887. People, ex rel. Peck, v. Commissioners, etc., of City of Brooklyn. Opinion by Earl, J.

RAILROAD COMPANIES CONSTRUCTION OF ROAD LAWS N. Y. 1875, CHAP. 606, § 1.—(1) Laws N. Y. 1875, chap. 606, § 1, relating to the construction and operation of steam railways in the counties of the State, and authorizing the appointment of commissioners on presentation of an application of fifty reputable householders and tax-payers, “verified on oath" before a justice of the Supreme Court, simply requires the application to be proven by a witness upon oath before such judge to have been signed by the persons whose names are suspended thereto, and an application bearing sixty names, verified before a Supreme Court judge by a witness who knew all the persons whose names are signed to it save five, and saw them sign, and similarly verified by another witness as to four of those five, is sufficient. (2) The commissioners regularly appointed and qualified, determined on the necessity of the proposed road, the routes of which were through the streets of the city of B., and the conditions to be observed in its construction, and in the formation of a corporation to construct and operate it, and the petitioning corporation was thereupon organized in accordance therewith. A resolution of the city council consenting to the construction of the road in its streets provided that such consent was upon the conditions that the company consent that the city assessors arbitrate all damages to property owners, and that portions of the road be completed at a specified time, different from that which had been fixed by the commissioners, and that non-compliance with such conditions should render such consent void. The statute supra provides that the commissioners shall determine the time within which the road shall be completed, and that damages to property shall have been appraised by commissioners appointed for that purpose. Held, that the city council had no power to impose such conditions, and that its consent was absolute. (3) Held, further that as the conditions could only be performed after the consent went into

effect, such consent could not be recalled or annulled by any cause set in operation by the city council. (4) The city council imposed a further condition to its consent to the construction of the road, that the company enter into a bond to the city in a specified sum that it will pay to the city a certain percentage of its gross receipts. Held, that whether or not the council had power to impose such conditions as it could only be performed after the road was constructed, and as the bond was not required to be given before the company acquired the right of way, it could not affect proceedings for the condemnation of property on its route. (5) Under the provision requiring the commissioners to fix and determine the time within which the railway shall be constructed and ready for operation, the commissioners, in providing that the work should be completed at a specified date, but that time unavoidably consumed by legal proceedings, or by the delay or interference of the public authorities, or otherwise, should not be deemed a part of, but should be added to the time limited, did not exceed their power, and such provision fixed and determined the time within the meaning of the act. (6) The commissioners fixed August 1, 1879, for the completion of the work in question, but provided that the time unavoidably consumed by legal proceedings, or by the delay or interference of the public authorities, or otherwise, should not be deemed a part of, but should be added to the time limited. The resolution was adopted June 30, 1878, and petitioner's articles of incorporation were filed January 6, 1879. From the date of filing the articles to December 2, 1885, the time was consumed by legal proceedings and attempts to obtain consent of property owners. Held, that the time consumed by these delays should not be included in the time limited for the performance of the work. (7) Held, further that as the Legislature has not annulled or dissolved the corporation, nor the courts pronounced judgment of forfeiture, the mere expiration of the time limited for the completion of the road would not of itself, in the absence of express provision of the statute, work a forfeiture. (8) The commissioners, in providing for the construction of the roads and formation of a corporation, located fifteen routes, but omitted to fix the time within which they were to be completed, as required by section 6, supra, except five, as to each of which specifically the time was fixed. Held, that the omission to determine the time within which the ten were to be completed did not affect the validity of proceedings taken as to the remaining five. March 22, 1887. In re Petition of Kings County Elevated Ry. Co. Opinion by Danforth, J.; Earl and Finch, JJ., dissenting.

ABSTRACTS OF VARIOUS RECENT

DECISIONS.

CRIMINAL LAW - SALE BY AGENT - WIFE AND CONCUBINE. The presumption that a wife, who on her husband's premises, and in his presence, and with his knowledge, makes illegal sales at retail of intoxicating liquors, does so as his agent, does not attach to such sales so made by the woman living with a man as his concubine; and to authorize the conviction of the man for such sales by the concubine, the jury must be satisfied, from the evidence, that she was acting as the agent of the accused when she made the sale. U. S. Dis. Ct., S. Car., Aug. 1, 1887. United States v. Bonham. Opinion by Simonton, J.

LANDLORD AND TENANT — LIABILITY OF LANDLORD FOR TENANT'S NUISANCE RENEWAL OF LEASE.Where a landlord leases a portion of his premises to a tenant, who covenants to repair, and a nuisance is created by his failure to repair, the landlord cannot