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Thomas & Co., on the 29th January, 1881, so that the KEK EWICH, J. There is no question of fact in this plaintiffs might be registered as owners of the shares, case in the ordinary sense of the word -- that is to say, and as they alleged, for no other purpose.
all the events with their dates which are at all essenNothing further was done uutil the 9th December, tial to the consideration of the case are not only proved 1882, when inquiries were made by the plaintitis as to but admitted. But there are questions, whicb really the certificates and dividends thereon, to which are questions of fact and very difficult questions, beMessrs. Thomas & Co. replied on the 11th December, hind; questions of fact, not in the ordinary sense – 1882, stating that the certificates were in New York namely, questions respecting the usage of the monetary pending the instructions of the plaiutiffs in case they world touching instruments of this kind, and a ques. desired a sale, and to izvoid the risk of a double trans tion of American law, which in our courts is a quesmission of the certificates. The letter also stated that I tion of fact. But the events and dates are all before a power of attorney would have to be signed by the me without contradiction, and without dispute, and I executors for the receipt of the dividends, and con- | need not recapitulate them. Before going to the rest cluded thus: “We need hardly say that there is no of the case, I wish to clear out of the way the quesrisk in leaving the certificates in New York, as they | tion what is meant by the American witnesses when are not indorsed." The certificates were, in fact, never they say there is a legal title to the shares in the persent to New York, but in February and April, 1881, son holding a certificate indorsed as this is, and not the certificates of 1210 shares, with the transfers in up to this time carrying any change of ownership on blank indorsed thereon, were deposited with the the register. Now, I have listened to all the evidence Colonial Bank as security for advances.
as it was read, and the comments on it, and I have Some of the certificates were redeemed and re since had an opportunity of looking through it in print, deposited, and ultimately 710 were left with the Colo- and the evidence of the American witnesses is, to my nial Bank, aud 500 with the Chartered Bank of Aus mind, summed up intelligibly and accurately in an tralia.
auswer by Mr. Choate to the plaintiff's seventh cross The firm of Messrs. Thomas & Co. were adjudicated interrogatory at p. 59 of the evidence taken on combankrupt on the 5th February, 1881, and Frederick mission. He says: “In American law the legal title Whimney was appointed trustee.
to shares rests in the person who for the time being is On the 2180 February, 1884, the plaintiffs commenced the only person entitled to have them upon demand, their action against the Colonial Bank and Frederick duly registered in his name as the legal owner thereof. Whinney, asking for a declaration that the deposit of There are cases in which the rule obtains in American the 710 shares was in fraud of the plaintiffs, and con- law that between persons who have equal rights in ferred no legal title on the bank; for delivery of the equity, the right of the person having the legal title certiticates, and for an injunction.
prevails; but such proposition is of rare application, The defendants by their counter-claim asked for a and I do not see that it can be applied to the question declaration that they were entitled to a valid mort of title to stock acquired in any such way as has been gage or charge upon the share in question for the indicated in this examination hitherto. According to amount due to them from the estate of Messrs. Thomas the law of New York a person who is not on the regig. & Co., and that the plaintiffs and the defendant F. ter of shareholders may have a legal title to shares in Whinney might be ordered to do and concur in all a company." Therefore taking that to be, as I think acts necessary for vesting the shares in the defendants it is, a fair statement of the evidence on the subject, or their nominees and enabling them to become the it follows that the American law does recognize that registered proprietors thereof.
which English law does not - namely, a legal title In the second action the facts were of a similar existing without legal ownership. According to character, but related to the 500 certificates deposited English law there is no such possibility. A man cannot with the London Chartered Bank of Australia at a be the legal owner unless he has the legal title, accordlater date; there was no counter-claim in this action. ing, at any rate, to the ordinary employment of the
Both actions now came on for trial together. A large words “legal title.” That is his definition, and I think amount of evidence was given with regard to Ameri- it is a definition which I must keep in my mind in can law and the usage on the Stock Exchange in considering the rest of the case. Looking at the quesAmerica and London, with regard to certificates of tion from that point of view, it divides itself into the this nature. From the evidence on American law it legal title as between the company and the person appeared that the legal title of shares vested in the claiming that legal title, or more than one person claim. person who for the time being was the only person ing that legal title, and the legal title as between perentitled to have them registered in his name as the sons claiming it. The legal title as against the comlegal owner thereof. And as to the usage of the pany, is, as I understand, settled entirely by that statemonetary world with regard to certificates iudorsed | ment. A man may go, having such an indorsement (it as these wore, the evidence was that such certificates may be) as we have in this case, and say, “ I am enti. were equivalent to securities to bearer and passed tled to be registered as the legal owner," and if he is from hand to hand, but there was evidence to show in that position he has the legal title, and he holds it that in the case of transfers of the shares of a deceased as against other persons who have not got such an owner, the appointment of his representatives had to equity as would displace the legal title, which one be strictly proved, and the transfers executed before passage I have read in that answer points to as somean American consul or the transfer agents of the com times occurring. Now that question, to niy mind, is pany; and that until this was done the document was the only question as regards the ownership of the incomplete and would not pass as “good delivery". shares, and is one of American law. There is also the upon the Stock Exchange.
question as to what is the meaning of the certificate,
what is the meaning of the indorsement before it is Finlay, Q.C., Warmington, Q.C., and Decimus Stur
filled up, and what is the effect of the indorsement ges, for plaintiffs.
when filled up in the way in which we have it here? Rigby, Q.C., Reid, Q.C., and Christopher James, for That latter question is really the same as the question Colonial Bank.
about the legal title. But the meaning of the docuLatham, Q.C., and T. H. Wright, for London Char
ment, both on its face and on the back, is a question,
to my mind, entirely of American law, and I am not tered Bank of Australia.
at liberty to construe it as if it were an Euglish docuGeorge Laurance, for trustee in bankruptcy.
ment, aud without the aid of the evidence of experts
in America. If I were to construe it as an English have ascertained that they are the executors in the document it is unnecessary to say how I should con- common sense of the word, you get rid of all that strue it, but I certainly should not construe it in the difficulty, and there is nothing more to be done, and way in which the American witnesses have construed an indorsement by the executors is precisely equivait, and said that it is construed in America. That I | lent to an indorsement by a registered owner himself. am not at liberty to do; I must take their evidence, I do not think that the case is in the slightest degree and taking their evidence, I have no doubt that Mr. complicated on one side or another by that difference Choate has correctly stated what the law in America, between the executors and the registered holder. Now is upon the subject. Then I am asked further, to con I pass on to the conduct of the executors, and what sider as a question of American law whether the plain. | they intended to do. These gentlemen had these 1210 tiffs are estopped in this case; that is to say, whether shares in this American railroad company, and in digthey are prevented from in any way insisting upon charge of their duty to the estate, they were minded wbat in their point of view is the correct version of to do whatever was needful in order to get themselves their conduct in the matter. To my mind, American | placed in the position of owners to this extent — that law has nothing whatever to do with that. It seems | they might sell them if they wished, and at any rate, to me to be a question of conduct — a question of might draw the dividends, which they could not do representatiou and absence of representation, to be because the power of attorney executed by their testadecided by an English court, respecting events which tors had of course ceased to have any effect on his have occurred between persons resident in England death. They corresponded with Messrs. Thomas & and carrying on business in England. That seems to Co. on the subject. Now there is not any anticipation, me purely a question of English law, and entirely un in the first instance, of any wish to sell. One might touched by American law. I think, having cleared the presume not necessarily a wish, and certainly not an ground in that way so as to see what there is of intention to sell, but an inquiry in their own minds English law and what of American law, and what the whether it would be desirable to sell or not. I do not statement of the American law is respecting the legal kuow what the terms of their trust were, or whether title which must be disposed of in the first instance, I there were any terms at all; but the executors would will proceed to get rid of one or two others matters be bound, in dealing with these securities, to inquire which I think have no material bearing on the main whether they were securities which they ought to hold, question in dispute, though they are necessarily mixed and I assume that the idea presented itself to their up in it, and have necessarily led to some discussion. minds, but they did not in the first instance wish to In the first place, we have had a good deal of evidence, sell. What they wished to do was to get the dividendsboth in print and in the witness-box, of what is held Then they were told, and told rightly, that the certitito be good delivery. Now to my mind, what is, or is cates must be seut over for registration. The indorseniot, a good delivery does not directly, and I doubt ment of the certificates in the first instance seems to whether it does indirectly, atfect any question in the have been neglected, and it is singular that Messrs. case. Stockbrokers, bankers, and other men in busi Thomas & Co., who were brokers of large experience, ness, will only do that in the hurry of their business did not know what everyone who has listened to this which can be done cousistently with that hurry. I am case knows -- that the certificates would bare to be using the word "hurry" as meaning rapidity or indorsed, and tbat some formalities would have to be promptitude. They will not want to get proof. If you complied with beyond merely sending over the certifipresent to a man a document which requires some cates for registration. However, although it is not evidence to prove its genuineness, he declines it, be proved, I gather that the certificates were sent over cause that would take time, and not only take time, and were returned in the first instance, and the objecbut perhaps involve him in difficult inquiries, which tion was that there was no signature at all. At last, would send him to his lawyers, or to some other expert after some correspondence, on the 29th January, 1881, in that particular line, to get information on a point Mr. Pryor, the agent of the executors, writes to Messrs. about which he himself is not sufficiently informed. Thomas: "I now beg to return 121 New York ('entral Therefore among classes of business men, such as Certificates for 1:210 shares, signed by the executors, stockholders, it is held for their common conveuience by which kindly do the needful and acknowledge the that one man shall not be at liberty to enforce on receipt." Pausing there for a moment, I might menanother, in fulfilment of a contract or document, tion this, that probably, not on the same day (that is whatever it may be, that which involves him in a diffi immaterial), but when they were sent with that letter cult inquiry, and possibly some risk. That is not really they were signed by the only two executors who had the question in this case. Whether these particular theu proved. The third executor out of four had not certificates pass from hand to hand, pass as securities proved, but did prove afterward, when as I underto bearer, is to my mind an entirely different ques stand, he attained his majority. The certificates were tion from whether they would be a good delivery inder signed then by the only two executors who had proved. circumstances such as exist here, or under any other Whether between that date and some other date the circumstances. Again, I think that I may forget any third executor had proved is, to my mind, utterly imdistinction between a registered owner and the execu material. The two executors were then in the position tors of a registered owner. The evidence proves what of legal personal representatives of the deceased, and I might assume without evidence, that the executors what they did then operated to bind the estate, what(that is to say, the legal personal representatives con ever happened afterward as regards the other execustituted by the proper court in a proper manner) of a tor, who as a matter of fact does not seems to have deceased registered owner have precisely the same interfered in the least. The certificates were sent to powers of disposition which the registered owner him Messra. Thomas & Co., simply as I hold on the conself had, and if an indorsement by the registered struction of the correspondence, for the purpose of owner be sufficient, an indorsement by the executors seeing that the registration was changed in America. is equally sufficient. There is no difference between It is important to remember that there was a conthe two. But the only question which comes in is. templation then, not merely in the minds, but expreswho are the executors? Have they been constituted sed by the executors in the letters, of selling, and they by a proper court? Are they therefore the legal per-| were aware that the same signature which was resonal representatives, and are ther the legal personal quired for registration was equally required for selling, representatives for all purposes? Those are questions and more than that, they believed, and may be said of law, and questions of inquiry; but when once you to have been aware, that the signature which was required for registration would also suffice for selling, so were advanced has not been gone into, and may rethat "once signing" - to use Mr. Pryor's owii expres quire some careful investigation, but they insist on sion - would do. Still my construction of the corre their title as pledgees or mortgagees. Now in order spondence is, that the sale was only a thing contem to determine that question, I have to consider these plated as possible on which they were to arrive at a two points: First, what is the evidence as regards the decision on some future occasion, and that the certifi. usage of the monetary world respecting documents of cates were only placed in the hands of Messrs. Thomas this kind, and then I have further to consider, sup& Co., for the immediate purpose of registration. Now | posing that usage establishes what the defendants, the we know that they never fulfilled that purpose, and Colonial Bauk, say it does, whether the executors are the certificates never were sent to America for regis. bound by that usage so as to be deprived of these shares tration, and there can be no doubt - it has not been as forming part of their testator's estate. Now on the suggested to the contrary – Messrs. Thomas & Co., or first point, as to what the usage of the monetary world the partner in the firm who represented the firm, in | is, I am not going to refer to any thing but the evidoing what he did, acted entirely contrary to his in dence of the bankers, brokers and other persons, and structions, and in fraud of his clients. If that con in referring to their evidence, I strike out of my mind sideration could determine the case, there could be no entirely all they say about the law of the case. Those question that that is so, and what the determination gentlemen, not here but in America, have told us a would be. As a matter of fact, he did nothing in ful good deal about the law of the case, but I do not confilment of his instructions; and for some reason which sider a banker or a broker, either in this country or has not been explained, though there was some ex elsewhere, a good witness on a question of law. They planation attempted, the executors lay idle for a con are good witnesses on matters coming within their biderable time; and Mr. Rigby, without wishing to own cognizance, with which they are presumably impute negligence to the executors, had pointed out familiar, that is to say, any thing which goes to the that this delay may fairly be taken into consideration custom of merchants, but I do not consider their eviin weighing tho merits and demerits of the plaintiff's dence receivable on any question of law, of course I case. Now I should be very unwilling to say a word am speaking of foreign law. But though I way I refer which would impute negligeuce to these gentlemen, to the evidence both in America and here, I do not because I have not the cestuis que trust here, and I do think it necessary to do more than to refer to the not know what claim may be made against the trus. | American evidence in the way in which I have done. tees, if unfortunately, there is a long to the estate. The evidence of bankers and brokers in England is Moreover, I should be unwilling to say a word quite sufficient for this case. I do not say that the eviabout negligence where it was unnecessary. There dence in America is not admissible. So would evidence fore in saying that I do not think that any negligence | in Paris or evidence in Vienna or anywhere else be. I is proved, I mean precisely what I say, and no more do pot think the evidence of a Parisian broker would and no less. I am not satisfied that the delay which be valuable, because what you have to inquire into is occurred, and which is certainly unaccountable, was not what is the custom or usage in a particular place, the causa causans of what happened, nor even that it but what is the usage of the monetary world, and you was the causa sine qua non. The deposit with the take the usage of a large capital such as London as Colonial Bank was made early in 1881, and even if the sufficient evidence to govern the whole monetary executors had written and urgently demanded infor world unless it is contradicted. It so happens, we hear, mation by mail, there is no doubt that the Colo- | that there is no difference between the American evinial Bank would have insisted on their securities. The dence and the English evidence, but I am content to Chartered Bank would never have had theirs, because take the English evidence which we had here yesterthat would have been stopped; but no other alteration day. Now to my mind it is proved beyond dispute, would have been made in the case at all. Therefore I whether rightly or wrongly, as a matter of law, and cannot rest this case, or my decision of this case, in whether wisely or unwisely I do not inquire, and I the least on the negligence of the executors, nor can I ought not to inquire, the merchants -- using the word say that there has been any negligence which has led merchants to mean all engaged in commercial transto what has occurred. I am at a loss to kuow what actions - do regard documents of this character as executors in such a position could have done different passing from hand to hand, or I think the better exto what they did do in 1881, and I am not going to in pression is, as “ equivalent to securities to bearer." I quire into they delay further. They were bound to have evidence that such things will pass sometimes get these shares registered, either in their own names for many years from hand to hand, without registraor in the name of some purchaser from them. It was tion, and that by some arrangement the registered their duty to do it, and what were they to do but to owner authorizes some one to receive the dividends, 80 intrust them to brokers of standing and reputation - that the dividends are from time to time received by brokers who had been trusted by their own testator; the person holding the certificate. That is their view, and if unfortunately they have suffered for their con and they so deal with these things; they run any risks fidence in Messrs. Thomas & Co., as many other persons that may be incident to the transaction or not getuig have suffered, it seems to me to be the result of a the registration when required. Of course, at the proper transaction on their part, and not of any fault | bottom of all there is confidence in the customer apof theirs. Messrs. Thomas & Co., as a matter of fact, plying for the advance, which without being told by treated these shares as their own, and deposited them witnesses, one knows is the foundation of all commerwith the Colonial Bank. I may leave the Chartered | cial transactions. But we have one witness after anBank out of the case, because as I say, that was not other stating that it has been the custom in the city done till afterward. That was with regard to some of London for many years to deal with documents of shares — 500 - which had been released by the Colonia) this particular character as equivalent to securities to Bank, and I do not think there is any difference be bearer. The only blot in the evidence is this, that no tween the two cases. The shares were deposited, and one remembers a single instance of certificates inthere the shares are now, and the Colonial Bank say dorsed by executors; they none of them remember that they are entitled to hold these certificates as the cases of executors, and one does not know, if they bad legal owners, and insist upon their legal title accord noticed a case of executors, what they would have ing to American law by way of security for the moneys said with reference to their willingness to accept such which they advanced on the shares. What moneys certificates. But that they would still have passed
from hand to hand, and still have been equivalent to said, I think placed rightly by the executors. I do securities to bearer, provided that the banker asked to not know what really they could have done more. I make the advance was satisfied of the genuineness of think they did authorize Messrs. Thomas & Co. to do the signature does not remain in doubt, and I cannot what Messrs. Thomas & Co. thought necessary; and doubt myself for a moment that if a customer, bring unfortunately Messrs. Thomas & Co. thought it right ing a bundle of these things, and asking|for an advance to do what they ought not to have done, and what upon them, said: “It is all right; I knew the testa they were not instructed to do. They parted with tor; I know he is dead, and his will has been proved, these securities, not for the purpose of registration, and these gentlemen are his executors,” any little not for the purpose of sale, but for the purpose of difficulty arising from the caution of bankers and raising money on their own account. I think that the others to accept documents signed by executors with executors, when they signed these certificates and out strict proof would bave been got rid of. Therefore sent them up to Messrs. Thomas & Co., for the purI think Iam bound to hold, that according to the usage pose expressed in their letter, did enable them and of the monetary world these documents have been intended to enable them, to represent to anyone whom for a long time past accepted as securities to bearer, it concerned that they had appointed Messrs. Thomas on which bunkers daily make advances as they do on & Co. their nominees and attorneys, and that Messrs. securities to bearer. I do not think that the Colonial Thomas & Co. were at liberty to dispose of the shares Bank was in any way put upon inquiry by the fact that in whatever mander was required. I think that they Messrs. Thomas & Co. were brokers. It is with cannot now deny that authority. I think it was a brokers that these banks deal; they know that brokers | representation to the Colonial Bink made by their very frequently raise money for tbeir clients without signatures that Messrs. Thomas & Co. had the control disclosing the names, and that is done by many securi- of the certificates. That being so, I must come to the ties being tied up in one buudle, and intended perhaps conclusion that the executors cannot succeed in this really to meet different occasions, though there is action, and that the Colonial Bank and the Chartered only one advance on the whole. That is part of the Bank also have a charge on these certificates for the custom, that is part of the usage as regards these moneys advanced, with interest and costs; that is to matters; and if a court were to hold that whenever a say, the right of an ordinary mortgagee, and I think broker was to teuder securities the bank would be put that they are entitled to have an account taken. That upon inquiry, it might or might not conduce to stricter seems necessarily to follow. It does not necessarily dealings in these matters, it might or might not be a follow to my mind that they ought to have any other good thing for the commercial community, but it relief. The banks have taken the certificates, and they would certainly overrule a great many cases which are entitled, as I say, to hold them; but there is no have gone on the opposite principle. Nor do I think contract with the executors at all. The executors have that they were in the least put upon inquiry by the entered into no bargain with these banks. The execufact that these were executors. I have really dealt tors have not undertaken to do any thing more than with that point before, and I will not repeat what I was their duty; the executors have not said that they have said. Then holding the Colonial Bank to have would get this indorsement acknowledged before a acted honestly, and not to have been put upon inquiry United States consul, or any other officer. Therefore, at all, I come to the real question whether the execu although holding that the banks are entitled to a charge tors are, as the phrase is, estopped from denying the on the certificates, and are entitled to enforce that title of Thomas & Co., to pledge these shares. Now charge, if they can, by obtaining registration in they were dealing with documents, which though not America, I do not think that they have made any case negotiable instruments in the proper sense of the word, for compelling the executors to do any thing more were, as I say, equivalent to securities to bearer; they than they bave done. That is asked by the Colonial must be taken to have known the nature of the secu Bank's counter-claim. It is not asked by the Charrities which they held, and they must, I think, betered Bank. My judgment therefore goes to this, that taken to have given to their agent, not as Mr. Finlay there ought to be a declaration, that as regards 710 suggested, their clerk, or messenger, but to their shares the Colonial Bank, and as regards 500 the Charbroker, who was the propor person to deal with these tered Bank, are entitled to a charge for the money things, all that authority which by the law merchant advanced on these securities, and there will be an acwent with the particular instrument. Now I ain not count of what is due in respect of those advances. I sure whether the word “estopped " is precisely the do not propose to go further beyond that than to give right word to use in these cases, but it has been used liberty to apply. If when the accounts have been in many of them, and I think it is sufficiently under-| taken any further application is necessary, it can be stood. It is not used here in the strict technical sense made under that liberty, but I express distinctly my of the word; it cannot be suggested for a moment own opinion that the banks are not entitled to come that the executors are precluded from asserting the and say, "Now you must either redeem me, or must truth. On the contrary, my judgment goes on an complete my legal title, by giving me the means of examination of the real facts. What they are pre getting registered in the books of the company.” If cluded from asserting, in my judgment is that Messrs. the banks cannot get that without the assistance of Thomas & Co. were not, by having the custody of the executors, they are not entitled to it at all. I do those documents with their assent, precluded from not think I ought to say any thing more on that quesdealing with them, as they from time to time con- tion, which is a question which has been considerably sidered desirable. They might have intended to sell discussed in the evidence. Counsel for both banks them without sending them back to the executors. have averred at the bar that they have no doubt that Messrs. Thomas & Co. were intended therefore to they can get the registration in their own names at part with them, and it seems to me to have been a the proper time. I have formed my own opinion upon necessary incident to the authority that they should | it, but it being a question of American law, and one part with them in any manner in which they thought which I thiuk it is not proper for me to decide, I think necessary; that is to say, the executors had confidence I ought not to say any thing more on that subject. in Messrs. Thomas & Co., in the same way as the bank The banks will take their costs, as part of their secu. had confidence in Messrs. Tbomas & Co. Unfortu rity. I have had to decide a most unfortunate position nately, the confidence was misplaced in both cases; of affairs between two parties, who in the eye of the but the confidence was placed, and as I have already law are botb innoceut. I do not see how the exeoutors could possibly have done otherwise than have the case | effect, such consent could not be recalled or annulled thoroughly tbrashed out here. I am equally satisfied by auy cause set in operation by the city council. (4) that the banks could never have realized their security The city council imposed a further coudition to its witbout having the matter also thoroughly thrashed consent to the construction of the road, that the comout. I think in this state of circumstances the proper pauy enter into a bond to the city in a specified sum thing to do is not to make either party pay the costs that it will pay to the city a certain percentage of its of the other in any event. I think I have given gross receipts. Held, that whether or not the council the banks as much as I can properly give them in had power to impose such conditions as it could only directing them to add their costs to their security. be performed after the road was constructed, and as
the bond was not required to be given before the com.
pany acquired the right of way, it could not affect proNEW YORK COURT OF APPEALS ABSTRACT. ceedings for the condemnation of property on its
route. (5) Under the provision requiring the commisMUNICIPAL CORPORATIONS - POWER OF COMMIS
sioners to fix and determine the time withiu which
the railway shall be constructed and ready for operaSIONERS OF FIRE DEPARTMENT TO REMOVE MEMBER. (1) The commissioners of the department of fire and
tion, the commissioners, in providing that the work buildings of the city of Brooklyn have no authority to
should be completed at a specified date, but that time remove or dismiss any member from the department, unavoidably consumed by legal proceedings, or by the except upon notice, trial and conviction for one of
delay or interference of the public authorities, or the offenses enumerated in the Brooklyn charter act,
otherwise, should not be deemed a part of, but should Laws N. Y. 1873, chap. 863, tit. 13, $ 14. (2) Under
be added to the time limited, did not exceed their Code N. Y., $ 2138, the hearing upon return to a writ
power, and such provision fixed and determined the of certiorari must be had “upon the writ and return,
time within the meaning of the act. (6) The commisand the papers upon which the writ was granted.”
sioners fixed August 1, 1979, for the completion of the Held, that where the return meets and traverses all
work in question, but provided that the time unavoidthe allegations of fact contained in the writ, and the
ably consumed by legal proceedings, or by the delay papers upon wbich it was granted, then the hearing
or interference of the public authorities, or otherwise, must be confined to the facts stated in the return; but
should not be deemed a part of, but should be added where the return admits or is silent as to the facts
to the time limited. The resolution was adopted Juve stated in the writ, or the papers upon which it was
ers upon which it was 30, 1878, and petitioner's articles of incorporation were granted, then such facto become important, and must
filed January 6, 1879. From the date of filing the be considered and have effect upon the hearing. | articles to December 2, 1885, the time was consumed People v. Commisioners, 103 N. Y. 380. June 7, 1887.
by legal proceedings and attempts to obtain cousent People, ex rel. Peck, v. Commissioners, etc., of City of
of property owners. Held, that the time consumed by Brooklyn. Opiniou by Earl, J.
these delays should not be included in the time limited
for the performance of the work. (7) Held, further RAILROAD COMPANIES - CONSTRUCTION OF ROAD
that as the Legislature has not anmulled or dissolved LAWS N. Y. 1875, CHAP. 606, $ 1.-(1) Laws N. Y. 1873,
the corporation, nor the courts pronounced judgment chap. 606, § 1, relating to the construction and opera
of forfeiture, the mere expiration of the time limited tion of steam railways in the counties of the State,
for the completion of the road would not of itself, in and authorizing the appointment of commissioners ou
the absence of express provision of the statute,work a presentation of an application of fifty reputable house
| forfeiture. (8) The commissioners, in providing for holders and tax-payers,” verified on oath" before a
the construction of the roads and formation of a justice of the Supreme Court, simply requires the ap corporation, located fifteen routes, but omitted to fix plication to be proven by a witness upon oath before the time within which they were to be completed, as such judge to have been signed by th', persons whose required by section 6, supra, except fire, as to each of names are suspended thereto, and an application
which specifically the time was fixed. Held, that the bearing sixty names, verified before a Supreme Court
| omission to determine the time within which the ten judge by a witness who knew all the persons whose were to be completed did not affect the validity of names are signed to it save five, and saw them sign, | proceedings taken as to the remaining five. March 22, and similarly verified by another witness as to four of 1887. In re Petition of Kings County Elevated Ry. Co. those five, is sufficient. (2) The commissioners regu
Opinion by Danforth, J.; Earl and Finch, JJ., dislarly appointed and qualified, determined on the neces
senting. sity 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
ABSTRACTS OF VARIOUS RECENT formation of a corporation to construct and operate
DECISIONS. it, and the petitioning corporation was thereupon organized in accordance therewith. A resolution of
CRIMINAL LAW — SALE BY AGENT - WIFE AND CONthe city council cousenting to the construction of the
CUBINE. - The presumption that a wife, who on her road in its streets provided that such consent was
husband's premises, and in his presence, and with his upon the conditions that the company consent that
knowledge, makes illegal sales at retail of intoxicating the city assessore arbitrate all damages to property
liquors, does so as his agent, does not attach to such owners, and that portions of the road be completed at
sales so made by the woman living with a man as his a specified time, different from that which had been
concubine; and to authorize the conviction of the fixed by the commissioners, and that non-compli
man for such sales by the concubine, the jury must be ance with such conditions should render such consent
satisfied, from the evidence, that she was acting as the void. The statute supra provides that the commis
agent of the accused when she made the sale. U. S. sioners shall determine the time within which the
Dis. Ct., S. Car., Aug. 1, 1887. United States v. road shall be completed, and that damages to property
Bonham. Opinion by Simonton, J. shall have been appraised by commissioners appointed LANDLORD AND TENANT — LIABILITY OF LANDLORD for that purpose. Held, that the city council had no FOR TENANT'S NUISANCE – RENEWAL OF LEASE. power to impose such conditions, and that its consent | Where a landlord leases a portion of his premises to a war absolute. (3) Held, further that as the conditions tenant, who covenants to repair, and a nuisance is could only be performed after the consent went into created by his failure to repair, the landlord cannot