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agent in his own name for the purchase of land, be enforced as the simple contract of the real principal when he shall be discovered? No authority for this broad proposition has been cited. There are cases which hold that when a sealed contract has been executed in such form, that it is, in law, the contract of the agent and not of the principal, but the principal's interest (?) in the contract appears upon its face, and he has received the benefit of performance by the other party and has ratified and confirmed it by acts in pais, and the contract is one which would have beeu valid without a seal, the principal may be made liable in assumpsit upon the promise contained in the instrument, which may be resorted to to ascertain the terms of the agreement. ** * We find no authority for the proposition [then you should have considered it on principle], that a contract under seal may be turned into the simple contract of a person not in any way appearing on its face to be a party to or inter

on the principal as a simple contract. Lawrence v. Tay-ested in it, on proof dehors the instrument, that the

lor, 5 Hill, 113; Warrall v. Munn, 5 N. Y. 229; Stowell v. Eldred, 39 Wis. 614; Dickerman v. Ashton, 21 Minn. 538; Minor v. Willoughby, 3 id. 225. Cowen, J., in speaking of a specialty executed by an attorney without authority under seal, says: "Yet in such case it does not follow that it shall not operate at all. If the contract may be made without deed, the seal shall not prevent its inuring as a simple contract, though the authority be by parol, or merely implied from the relations between the principal and agent." 5 Hill, 113. As the agent had no authority to affix a seal to the instrument, which would be effectual without one, the instrument will be good as a simple contract.

The doctrine is also settled in this State, and is supported by high authority elsewhere, that a principal may be charged upon a written parol executory contract entered into by an agent in his own name, within his authority, although the name of the principal does not appear in the instrument, and was not disclosed, and the party dealing with the agent supposed that he was acting for himself; and this doctrine is applicable to contracts which are required to be in writing, as to those where a writing is not essential to their validity. Per Andrews, J., in Briggs v. Partridge, 64 N. Y. 362.

Therefore, where an agent is authorized by parol to contract for his principal, and executes the agreement in the name of his principal under seal, or, in his own name, but disclosing, or not disclosing, the name of the principal on the face of the instrument, in either case the agreement inures as a simple contract, and parol evidence is admissible to charge the principal thereon, even though he has not received any benefit therefrom. Is not this a logical conclusion from the premises? Is not the contract, in either case, to be considered as a simple contract? Are they not founded on the same reasons, and should they not be governed by the same rule? In either case the agent had no authority to affix a seal to the agreement and it was not essential to its validity; therefore, in either case, the instrument inured as a simple contract. If the contract is to be considered as a contract not under seal, then the rules applicable to those contracts are to govern. But if it is to be considered as a specialty, then the rules applicable to specialties are Ito govern. This question has been considered by the Court of Appeals in the case under consideration. We will quote from the opinion of the court, by Andrews, J.: "Can a contract under seal, made by an

nominal party was acting as the agent of another, and especially in the absence of any proof that the alleged principal has received any benefit from it, or has in any way ratified it, and we do not feel at liberty to extend the doctrine applied to single contracts, executed by an agent for an unnamed principal, so as to embrace this case."

The authorities do not make the qualification, that the name of the principal must appear in the instrument, or that he must have received some benefit, or ratified and confirmed it by acts in país, but they state the proposition broadly, that if the instrument would be valid without a seal, the addition of a seal will not prevent its inuring as a simple contract; being affixed without authority, it is to be disregarded and treated as surplusage. Indeed, the mere fact that the principal's name was disclosed in the writing, and he received the benefit of performance by the other party, would not change the nature of the contract nor dispense with the necessity of proving an authority under seal. Is the contract in this case to be considered as a simple contract or a specialty? If the former, then it is not essential that the principal's name should appear in the instrument. If the latter, then the rule is strict, that the instrument must be executed in the name and as the act or deed of the principal, and the agent's authority must be under seal. If these requirements are not complied with the principal is not liable, at least upon the instrument; and it is difficult to see how, or upon what principle of law, he can be charged with liability for benefits received under the contract. It is not his contract, and cannot, therefore, be admitted in evidence. He cannot be charged upon an implied contract, for another party expressly contracted to pay for the benefit received, and it is a general rule that a contract will not be implied where an express one is made. In order to charge the principal with liability, the instrument must be regarded as a simple contract. We are aware that it has been held by learned courts, that where an instrument is not properly executed in the name of the principal, so as to charge him thereon, he may be held liable upon the common counts for goods sold and delivered, and the written contract may be received in evidence, "not as a basis of recovery, but to show that it was void"! 22 Barb. 143. Or, in other words, the " principal may be made liable, in assumpsit, upon the promise contained in the instrument, which may be resorted to to ascertain the terms of the agreement.' That is

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to say, the contract is not his contract, he is not liable upon it, and it cannot be used as a basis of recovery, but the judge may look at it sideways or through his fingers so as to ascertain the terms of the agreement. Such nice distinctions in the law must make the judicious grieve, if they do not make the injudicious smile. If the principal cannot be charged upon the written contract, then it is inadmissible against him for any purpose whatever. If the principal is not liable upon it, he cannot sue upon it without taking an assignment. Where agents or officers of a corporation affix their own seals to their signatures, and not the seal of the corporation, the latter may be charged in an action of assumpsit. 19 Johns. 60; 4 Wend. 285. The fallacy of the learned judge's argument consists in this, that the instrument is a specialty, when it is not such. Even though the contract was properly executed in the name of the principal, he could not be charged, the agent's authority not being under seal. We state our propositions thus: If an agent affixes a seal to an instrument, without authority, and the instrument does not require a seal, it will inure as a simple contract. An agent without authority affixed a seal to the instrument, and the instrument would be effectual without one; therefore, the instrument inured as a simple contract. We have not made a critical examination and study of all the authorities, but we think that the principles and analogies of the law lead to the conclusion that the instrument in this case inured as a simple contract, and that, therefore, the principal is liable thereon. It was also observed, in this case, that " persons dealing with negotiable instruments are presumed to take them on the credit of the parties whose names appear upon them; and a person not named thereon cannot be charged upon proof that the ostensible party signed or indorsed as his agent." Perhaps there are as many authorities in this State against this doctrine as there are in favor of it. If the law be a science and really deserves so sublime a name, it must be founded on principle and claim an exalted rank in the empire of reason.'

F. P. M.

JURISDICTION OF EQUITY IN ACTIONS FOR INFRINGEMENT — PATENTABILITY

PROCESS.

THE

OF

Α

case of Cochrane et al., appellants, v. Deener et al., decided at the late term of the Supreme Court of the United States, was a suit in equity, instituted in the Supreme Court of the District of Columbia | for injunction and relief against an alleged infringement of various patents belonging to the complainants. The bill was dismissed, and the complainants appealed.

A preliminary question is raised with regard to the jurisdiction of the court below to hear the case on a bill in equity, before a determination of the rights of the parties in an action at law.

The powers of the Supreme Court of the District of Columbia, in patent cases, are the same as those of the Circuit Courts of the United States. See Revised Statutes relating to the District of Columbia, sections, 760, 764.

The Circuit Courts were first invested with equity jurisdiction in patent cases by the act of February 15, 1819, which declared that these courts should have "original cognizance, as well in equity as at law, of all actions, suits, controversies, and cases, arising under any law of the United States, granting or confirming

to authors or inventors the exclusive right to their respective writings, inventions, and discoveries; and upon any bill in equity, filed by any party aggrieved in any such cases, should have authority to grant injunctions, according to the course and principles of courts of equity," etc.

This law was substantially re-enacted in the seventeenth section of the patent law of July 4th, 1836, and the fifty-fifth section of that of July 8th, 1870, special powers to assess damages in equity cases being also conferred by the latter act.

Before the act of 1819 was passed, the Circuit Courts had cognizance of actions at law brought to recover damages for the infringement of patents, but not of suits in equity in relation thereto unless the parties happened to be citizens of different States. Phillips on Pat. 379; Livingston v. Van Ingen, 1 Paine, 54; Sullivan v. Redfield, id. 447. Under that act and the subsequent acts in which it became incorporated, bills in equity for injunction, discovery, and account have constantly been sustained, frequently without any previous action at law. As said by Mr. Justice Grier in a case decided at the circuit, "It is true that in England the chancellor will generally not grant a final and perpetual injunction in patent cases, when the answer denies the validity of the patent, without sending the parties to law to have that question decided. But even there the rule is not universal; it is a practice founded more on convenience than necessity. It always rests in the sound discretion of the court. A trial at law is ordered by a chancellor to inform his conscience, not because either party may demand it as a right, or that a court of equity is incompetent to judge of questions of fact, or of legal titles. In the United States, the practice is by no means so general as in England." Goodyear v. Day, 2 Wall. C. C. R. 296. Subsequently, in the case of Sickles v. Gloucester Manufacturing Co., 3 Wall. C. C. R. 196, the same judge said: "The courts of the United States have their jurisdiction over controversies of this nature by statute, and do not exercise it merely as ancillary to a court of law." And after quoting the statute, he proceeds: "Having such original cognizance * * * the courts of the United States do not, in all cases, require a verdict at law on the title, before granting a final injunction, or concede a right to every party to have every issue as to originality or infringement tried by a jury."

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The position of Justice Grier is undoubtedly true, that, whether a case shall be first tried at law is a matter of discretion, and not of jurisdiction; and, in this matter, the courts of the United States, sitting as courts of equity in patent cases, are much less disposed than the English courts are, to send parties to a jury before assuming to decide upon the merits. But the counsel for the defendants suggest that the Revised Statutes have not preserved, in entirety, the previous enactments on this subject; but have omitted the vesting of original cognizance in the Circuit Courts sitting as courts of equity in patent cases. From a careful consideration, however, of all the sections of the Revised Statutes on the subject, we think that no intention is evinred to make any change in the law. The original enactments ard inta distinct

parts, and somewhat condensed; but the substance of them is retained. By section 629, the Circuit Courts are invested with jurisdiction, among other things, Ninth, of aeuits at law or in equity arising under

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the patent or copyright laws of the United States." And by section 4921, it is declared, that "the several courts vested with jurisdiction of cases arising under the patent laws shall have power to grant injunctions according to the course and principles of courts of equity," etc., following precisely the language used in the act of 1870, the last previous revision of this branch of the law. The grant of jurisdiction is as broad and general as it could well be, and the mode of exercising it is prescribed in precisely the same terms as in previous statutes.

One of the questions raised was as to the patentability of a process independent of the instrumentalities employed in effecting it. The court said that a process may be patentable irrespective of the particular form of the instrumentalities used, cannot be disputed. If one of the steps of a process be that a certain substance is to be reduced to a powder, it may not be at all material what instrument or machinery is used to effect that object, whether a hammer, a pestle and mortar, or a mill. Either may be pointed out, but if the patent is not confined to that particular tool or machine, the use of the others would be an infringement, the general process being the same. A process is a mode of treatment of certain materials to produce a given result. It is an act, or a series of acts, performed upon the subject-matter to be transformed and reduced to a different state or thing. If new and useful it is just as patentable as is a piece of machinery. In the language of the patent law, it is an art. The machinery pointed out as suitable to perform the process may or may not be new or patentable; whilst the process itself may be altogether new, and produce an entirely new result. The process requires that certain things should be done with certain substances and in a certain order; but the tools to be used in doing this may be of secondary consequence.

COMPUTATION OF TIME IN BANKRUPTCY PROCEEDINGS.

IN

the case of Dutcher et al., appellants, v. Wright, assignee, decided by the Supreme Court of the United States at its recent term, a question as to the computation of time under the bankrupt law came up. It was shown that appellants had secured a transfer of property from respondent's assignor in fraud of the bankrupt law, and the dispute was whether the petition in bankruptcy was filed within the statutory four months. The court first defines what constitutes insolvency under the act, saying: Insolvency in the sense of the bankrupt act means that the party whose business affairs are in question is unable to pay his debts as they become due, in the ordinary course of his daily transactions; and a creditor may be said to have reasonable cause to believe his debtor to be insolvent, when such a state of facts is brought to his notice respecting the affairs and pecuniary condition of his debtor as would lead a prudent man to the conclusion that the debtor is unable to meet his obligations as they mature, in the ordinary course of his business. Buchanan v. Smith, 16 Wall. 308; Toof v. Martin, 13 id. 40.

Reasonable cause for such a belief cannot arise unless the fact of insolvency actually existed, but if it appears that the debtor giving the preference was actually insolvent, and that the means of knowledge were at hand, and that such facts and circumstances

were known to the creditor securing the preference as clearly ought to have put a prudent man upon inquiry, it must be held that he had reasonable cause to believe that the debtor was insolvent, if it appears that he might have ascertained the fact to be so by reasonable inquiry. Scammon v. Cole, 5 N. B. Reg. 263; Wilson v. City Bank, 17 Wall. 487. In regard to the main question, the court said: It is insisted by the respondents that the notes, accounts and property were not assigned to them within four months before the petition in bankruptcy was filed in the District Court by the insolvent debtor. Both parties agree that the petition in bankruptcy was filed April 8, 1870, and it appears both by the bill of complaint and the plea filed by the respondents that the notes, accounts and property were assigned by the bankrupt to the respondents the 8th of December of the preceding year. Undisputed as the facts are, the decision must turn upon the construction of the bankrupt act. 14 Stats. at Large, 534; Rev. Stats., § 5128.

Taken literally it might be suggested that the phrase, "four months before the filing of the petition," would exclude the day the petition was filed, fractions of a day being forbidden in such a computation; nor would it benefit the respondents if the rule prescribed by section 5013 of the Revised Statutes should be applied, which is that in all cases in which any particular number of days is prescribed in that title, or shall be mentioned in any rule, or order of court, or general order which shall at any time be made under the same for the doing of any act or for any other purpose, the same shall be reckoned, in the absence of any expression to the contrary, exclusive of the first and inclusive of the last day.

Where the phrase to be construed does not contain any expression to the contrary the enactment is that that rule shall apply, leaving it to be understood that the phrase to be construed may contain words prescribing its own rule in that regard, and that, if it contains any inconsistent expression to the contrary, the rule prescribed in that section shall not necessarily control the meaning of the phrase to be construed.

Apply that qualification to the rule prescribed in section 5013 and still it might be suggested that the meaning of the phrase, “within four months before the filing of the petition," is entirely consistent with that rule.

Unless the day when the notes, accounts and property were assigned and the day when the petition in bankruptcy was filed are both included in the computation, the defense fails and the complainant is entitled to an affirmance of the decree. Neither argument or authority is found in the brief of the respondents supporting any such rule of construction, and it is believed that no decided case can be referred to, where such a theory was ever adopted. Decided cases may be found in which it is held, where an act is required by statute to be done a certain number of days at least before a given event, that the time must be reckoned excluding both the day of the act and that of the event. The Queen v. The Justices, 8 Ad. & Ell. 173; Zouch v. Empsey, 4 Barn. & Ald. 522; Mitchel v. Foster, 12 Ad. & Ell. 172.

Search has been made in vain for a decided case in which it is held that both the day of the act and the day of the event shall be included in the computation in order to ascertain the specified period of time. Cases may be found in which it is held that where the

(Potts)

computation is to be made from an act done, the day on which the act is done is to be included. Arnold v. United States, 9 Cranch, 120.

Exceptions undoubtedly exist to that rule, and it must be admitted that there are many cases in which it is held that the last day is included and that the first is excluded.

Speaking of the conflict of judicial decision upon the subject, Lord Mansfield said that the cases for two hundred years had only served to embarrass a point which a plain man of common sense and understanding would find no difficulty in construing, and he came to the conclusion that courts of justice ought to construe the words of parties so as to effectuate their deeds and not destroy them, and that "from the date" may, in popular use and even in strict propriety of language, mean either inclusive or exclusive. Pugh v. Leeds, Cowper, 714.

Special reference was made to that decision in the case of Griffith v. Bogert, 18 How. 163, in which this court held to the effect that the general rule is to treat the day or terminus a quo from which the period of time is to be calculated, as inclusive, and they applied that rule in the decision of that case, but they remarked in the opinion that "every case must depend on its own circumstances." Thirty years before that the Supreme Court of New York decided that it was the practice of that court, where an act is to be done within a specified number of days, to consider the day on which notice is given and the day on which the act is to be done, the one inclusive and the other exclusive, without any particular designation that the one or the other shall be exclusive. Gillespie v. White, 16 Johns. 120.

Three of the courts of England, to wit, the King's Bench, the Common Pleas, and the Exchequer, fortyfive years ago adopted the following rule to regulate the practice in those courts: "That in all cases in which any particular number of days, not expressed to be clear days, is prescribed by the rules or practice of the courts, the same shall be reckoned exclusively of the first day and inclusively of the last day, unless the last day shall happen to" be dies non in legal conemplation. 8 Bing. 307.

Repeated attempts have been made to settle the question, but different rules still prevail in different jurisdictions.

Due weight in every case should be given to the words of the phrase to be construed, and by so doing many of the reported cases otherwise seemingly inconsistent may be satisfactorily reconciled. Still it must be admitted that it is difficult, if not impossible, to deduce from the reported decisions any rule which will apply in all cases, nor is it necessary to make the attempt in this case, as the court is unanimously of the opinion that the day the petition in bankruptcy was filed must be excluded in making the computation, and that the decree of the Circuit Court is correct. Rev. Stats., § 5013.

RECENT BANKRUPTCY DECISIONS.

ASSIGNMENT FOR BENEFIT OF CREDITORS. What it passes: badge of fraud.—An assignment for the benefit of creditors of "all the goods, chattels and effects and property of every kind, personal and mixed," does not pass the real estate to the assignee. In a sale by an insolvent vendor, inadequacy of price is evidence of fraud, and the question of fraud on

such sale should be left to the jury. Sup. Ct., Pennsylvania. Rhoads v. Blatt, 16 Nat. Bankr. Reg. 32.

ATTACHMENT.

Lien of attachment issued under laws of Vermont.-Under the laws of Vermont an attachment of a debt by trustee process creates a lien on the funds in the hands of the trustee after service upon him, although no notice is given to the principal debtor. Such lien is a lien by attachment by mesne process and will be saved when made the prescribed length of time before the commencement of the proceedings in bankruptcy. U. S. Dist. Ct., Vermont. In re Peck, 16 Nat. Bankr. Reg. 43.

JURISDICTION.

State court and bankrupt court: habeas corpus.Where a decree operating as a lien upon defendant's estate has been obtained in a State court, and the defendant afterward goes into bankruptcy, proceedings under State statute will not lie before a State officer against defendant for discovery of his estate similar to those given by section 5086 of the Revised Statutes of the United States; they must be taken in the bankruptcy court. Where such proceedings are taken before a State officer, and the bankrupt is imprisoned by him, he will be released on habeas corpus by a United States court, where the decree of the State court is not for a fiduciary debt of the bankrupt. Section 5117 does not embrace the surety in a guardian's bond among those not released by a discharge in bankruptcy. U. S. Circ. Ct., E. D. Virginia. Ex parte Taylor, 16 Nat. Bankr. Reg. 40.

PARTNERSHIP.

1. Sale of interest of partner on execution: what is partnership property.—The sale on execution of either or both the partners' interest in the joint assets gives to the purchaser only an interest in such assets as may remain after the payment of the partnership debts. The fact that the interest of both partners were sold on separate executions to the same purchaser can have no effect to enlarge the interest of either partner acquired by such purchaser on the separate sale of such interest, nor to discharge the assets from liability for the partnership debts. Premises used by partners for the purpose of carrying on their business prima facie form part of the partnership property; but this presumption may be rebutted. U. S. Dist. Ct., California. Osborn v. McBride, 16 Nat. Bankr. Reg. 22.

2. Partners in two firms: former adjudication.-The fact that persons have been adjudicated bankrupts as members of one firm is no bar to nor does it defeat a

petition against them as partners with others in another firm. As to whether the individual property of such persons should go to pay the debts of the former or of the latter firm, quære. U. S. Circ. Ct., W. D. Wisconsin. In re Jewett & Co., 16 Nat. Bankr. Reg. 48.

PRACTICE.

Confirmation of sale.-Under the rules of practice in the District of Maine the United States District Court for that district will not confirm any sales made by an assignee, but will leave the purchaser to establish his title whenever the occasion may arise. U. S. Dist. Ct., Maine. In re Alden, 16 Nat. Bankr. Reg. 39.

PREFERENCE.

Exchange of securities, when not.-The exchange of a mortgage for notes, in pursuance of a parol contract that such mortgage should be given when the creditor asked for it, is not a preference under the provisions

of the bankrupt act, although made within four months before the commencement of bankruptcy proceedings. N. Y. Sup. Ct., 3d Dept. Hewitt, assignee, v. Northup, 16 Nat. Bankr. Reg. 27.

PROOF.

Of debt taken in foreign country.-Proof of debt can only be taken in a foreign country before one of the officers authorized by section 5079 of the Revised Statutes to do so. U. S. Dist. Ct., S. D. New York. In re Lynch et al., 16 Nat. Bankr. Reg. 38.

WAIVER.

Discharge in bankruptcy may be waived: position of assignee.-A debtor who has been discharged in bankruptcy may waive the discharge and allow a judgment to be recovered against him for the original debt. Where the debtor has waived his discharge as a defense, it cannot be raised by one who is in possession of property of the debtor, transferred with intent to defraud creditors, in an action to set aside such transfer. The assignee is but a trustee for the creditors; while he holds the property a creditor may bring an action to set aside a transfer by the bankrupt as fraudulent, if he makes the assignee a party; if not, the defendant must set this up as a defect of parties. Upon the discharge of the assignee the property remaining in his hands reverts to the debtor without reassignment. N. Y Sup. Ct., 3d Dept. Dewey v. Moyer, 16 Nat. Bankr. Reg. 1.

WITNESS.

Death of bankrupt: interest.-When the bankrupt is dead, a creditor offering himself as a witness to prove his claim, cannot be excluded on the ground of interest. The proof of debt against an estate in bankruptcy is a proceeding in rem and not a proceeding against a bankrupt nor against his executors or administrators in case of his death. U. S. Dist. Ct., Vermont. In re Merrill, 16 Nat. Bankr. Reg. 35.

COURT OF APPEALS ABSTRACT.

ACTION.

containing the names of stockholders within thirty
days previous to any election of directors. Appeal
dismissed. Matter of Sage v. Lake Shore & M. S. Ry.
Co. et al. Opinion per curiam.

2. Rights of stockholders to examine books: man-
damus: appealable order.-The statute last mentioned
does not deprive stockholders of a corporation of the
right to examine its transfer books for proper pur-
poses and on proper occasions at other times, and a
proceeding by mandamus may be invoked for the pur-
pose of enforcing such right. But the granting or re-
fusing a mandamus is discretionary, and an appeal
from the General Term does not lie to this court from
an order in such proceeding. Ib.
[Decided June 19, 1877.]

NEGLIGENCE.

1. When a question for jury: contributory negligence. -The Albany and Susquehanna Railroad Company, by whom plaintiff's intestate was employed as engineer, and the New York Central Railroad Company had an agreement whereby at a crossing of the two lines the trains of the former were to have a right of way and those of the latter to stop, and the latter company had a general rule directing all those in management of its trains to stop at the crossing. The flagman at the crossing was in the employ of both companies. A Central train approaching the crossing, he signaled it to proceed, which it did without stopping. Just then he saw the Susquehanna train, on which intestate was engineer, approaching, and signaled that to stop. The signal was not seen. He then signaled the Central train to proceed, but seeing that his signal to the Susquehanna train had not been noticed, he displayed a danger signal to both, but too late, for a collision took place and intestate was killed. Held, in an action for such death against the Central Railroad Company, that it was for the jury to determine whether there was negligence entitling plaintiff to a recovery on the part of defendant, or contributory negligence precluding recovery on the part of intestate. Judgment below affirmed. Wood, adm'x, v. N. Y. C. & H. R. R. R. Co. Opinion by Church, C. J.

2. Violation of rules of railroad company by employees.-A refusal to charge that a violation of the rules of the defendant by its employees was not negligence, and a submission whether such neglect in this case caused the injury, and whether it was not negligence not to be governed by the rules, held, not to be error. Ib.

When process does not protect sheriff: husband and
wife: another action pending. In an action for tres-
pass committed by a sheriff in taking personal prop-
erty which was in the possession of plaintiff and in
which she had an interest, upon process issued in an
action of replevin against another, held, (1) that the
papers in the replevin suit were no protection to the
sheriff; (2) that the fact that plaintiff was the wife of
the defendant in the replevin suit would not affect the
matter, and (3) that the circumstance, if true, that the
defendant in the replevin suit was an agent of plain-
tiff in this action would not render the provisions of
Code, section 216, applicable, and plaintiff would not
be affected or bound by the result of such suit. Judg-hanna train was not in sight, his act was not negligent.
ment below affirmed. Otis v. Williams. Opinion by
Folger, J.

[Decided June 19, 1877.]

CORPORATION.

1. Lake Shore, etc., Railway Co. not a foreign corporation: examination of transfer books by stockholders.— The Lake Shore and Michigan Southern Railway Company held to be a domestic and not a foreign corporation, and chapter 165 of the Laws of 1842 held to have no application to this case but to the transfer agents of foreign corporations only. The provisions of the Revised Statutes (1 Edm. Stats. 558) held to apply to this case and to authorize an examination of books

3. What constitutes. - The flagman knew that the Susquehanna train was to be expected at any time. He could see it three-quarters of a mile. Held, that a refusal to charge that if, at the time the flagman signaled the defendant's train to come on, the Susque

Held, not error. Ib.
[Decided June 19, 1877.]

NEW YORK CITY.

1. Contracts made with: condition precedent to payment. - Plaintiff's intestate did work for the city of New York in making street improvements, the expense of which was to be assessed upon the property benefited. By an ordinance of the city, it was provided that, in work of such a character as this, final payment to the contractor should not be made until the assessment for the work should have been confirmed by the common council. This ordinance was referred to in, and made a part of the contract entered

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