been announced. It is that of Wheeler vs. Field, 6 Met. 290. There the court held, to charge an indorser upon a note dated in New York, where the maker had removed out of the State where it was made and dated before its maturity, that a demand should have been made at the maker's last place of residence in New York, when he had removed to the State of Illinois. No authorities are cited for the opinion expressed, and no reasons are given why it should be recognised. It is certainly in direct conflict with those which have been already referred to, and is not in harmony with the principles settled in numerous cases. We think it better to adhere to the long-settled rule as laid down in the case in 9th Wheaton, even although cases might be supposed in which its application might, by possibility, work some wrong. It is of the highest importance in a commercial community, that the rules relating to the presentment, demand, and protest of bills and notes, should be certain, and when once enunciated should be adhered to; and no reasons are suggested which we think should influence us to depart from or modify the rule as laid down by the United States Supreme Court in the case in 9th Wheaton. We think it a reasonable, just, and proper rule, and one which should have universal application. The judgment appealed from should be affirmed, with costs.

I. Express conditions. The most common express condition arises when the note is made payable at a particul place. In England, it is the rule that such a condition forms part of the coz tract both with the maker and indorser and no action can be brought agains either, unless the condition is performe or dispensed with. In this country ge nerally, the engagement of the mait A test by which the liability of an in- under such circumstances is not cond dorser may be ascertain is the appli- tional but absolute, and the failure of th cation of legal princip belonging to holder to make the presentment can or conditional contracts. in acts in be urged as matter of defence. The ind the nature of conditic ent, must ser may however insist that the clam be performed by the ore the forms an essential part of his contra indorser can be iable. and that a demand should be made These conditions r ress the place named, in order that he 'mplied. The { re be charged. It is evident that the m terial point in this condition is localu

'h cases the

It is much to be regretted that the rule applicable to an important point of mercantile law should be different in two States of such commercial importance as New York and Massachusetts. The opinion in the principal case shows that the weight of authority is in favor of the New York rule. The question may also be examined from another point of


It is unimportant where the maker may reside. The parties have chosen by an explicit statement to contract, that though the maker may remove from the country or may abscond, the demand must be made at the place specified. It was upon this ground that Sands vs. Clark, 8 C. B. 751, was decided. An -action was brought against the maker of a note payable at a particular place. No presentment had been made, and the excuse was offered that the maker had absconded. But as locality was the substance of the condition, the court held that it had not been performed, and the maker was not liable. The case was argued both by counsel and the court upon the law of conditions, and upon commercial decisions. Maine's case, 5 Coke R. 25 a, among others was cited. It was evidently the opinion of the court that the condition precedent in the case of negotiable paper would be dispensed with under the same circumstances as in other branches of the law. What would constitute a dispensation as to the maker would also as to the indorser. This was suggested by counsel, and denied by no one. It is evident, under the English law, the condition so far as it is expressed is the same in both cases.

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What then are the circumstances under which the condition in question in the law of negotiable paper is waived? The indorser stipulates that certain acts in reference to the maker shall be done by the holder before he is liable, but he engages on his part that the maker shall remain in a condition to have those acts done. If the entire contract were written, it would be somewhat as follows: "it is understood that if the holder of the note shall, upon the day on which by the rules of commercial law it falls due, present it at the place of business or of the residence of the maker for payment, and if this is refused, shall give timely notice to the endorser, he will be liable. The endorser on his part agrees that the maker shall do no act to prevent the demand from being made in the manner agreed upon." This is the fair and reasonable construction of the contract. It is manifestly the engagement by the English law when the maker expressly stipulates for demand at a particular place, and no suggestion has ever been made in the English courts that the indorser's contract is in that case different from the maker's upon the subject of demand. There is, of course, no legal rule which would prevent the indorser from entering into an undertaking as to the conduct of the maker.

II. It is true that there is a difference in one respect between express and implied conditions. The latter cannot affect the contract of the maker, but only of the endorser. In the absence of an express condition, the engagement of the maker is absolute. There is an entire accord between the commercial law of England and of this country in this r spect. Implied conditions must, ho ever, when they exist, be observed v the same accuracy as express conditi and parol evidence can no more var one than the other. Suse vs. Pon C. B. N. S. 537, (1860), Byles, livering the opinion of the court


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The circumstances dispensing with the performance of a condition precedent are thus stated by Addison. "Whenever a party by doing a previous act would acquire a right to any debt or duty, and the other prevents him from doing it, he acquires the right as completely as if it had been actually done,"

889, and cases cited. The only iniry then is, has the maker prevented holder from performing the condition or pent? This is, for the purpose of the indorser that the note shall ded of the maker at his place



of business or residence. It is clear that the condition is not that the demand shall be made of the maker personally, nor at any mere locality, but at that place where the additional fact appears, that it is the maker's place of business or his residence. Chitty on Bills, 412; Byles on Bills, 157. It has been held that a personal demand upon the acceptor of a bill at some other place is not sufficient. King vs. Holmes, 11 Penna. St. 465. The element of residence is so important, that if the maker of a note payable generally happen to be out of the country of his residence when the note is made, and return before it is due, the demand must still be made at his residence. Spies vs. Gilmore, 1 Coms. 321. So if the maker

removes after the note is made to abother place within the State, demand must be made at the new residence. Demand at the residence is then the substantial part of the condition. If the maker removes from his residence to another State or country between the time of making the note and the day it falls due, he prevents the holder from fulfilling the condition. There is no necessity to present the note at the former residence. This would be substituting a different condition; that of locality instead of residence. It is well settled that the holder need not follow the maker out of the State to his new residence.

The result is, that the condition is entirely waived.

T. W. D.



Joint-Stock Company-Transfer of Shares-Forged Transfer-Liability of Company to re-transfer-Suit in Equity-Action at Law.T. and B. were in partnership, and took shares in the Midland Railway Company, as partnership property. B. forged T.'s name to a deed of transfer of the shares, purporting to be from T. and B. to L. for a nominal consideration. The company acted on this deed, and entered the name of L. as proprietor, and paid the dividends to B. for L., but B. appropriated the same, T. having died before B. Held, the administrator of T. had a right of suit in equity against the company, to replace the stock, and pay over the dividends which had been fraudulently obtained by B.; and it made no difference that there was no person capable of bringing an action at law: Midland Railway Company vs. Taylor.1

Legacy-Vesting-Gift to a Class and Survivors-Meaning of word "Vest"-General Rules of Construction.-Where a testator gives a lifeestate in his funds, and at the expiration thereof gives the principal to be

16 L. T., N. S. 73.

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divided among several, and if any die then to the survivors, without specifying the time of survivorship, he is held to mean the contingency to extend over the whole period which elapses before the time of distribution or expiration of the life-estate, unless the context points out another time; in other words, the legacy does not vest till the death of the tenant for life: Richardson vs. Robertson.1


Therefore where A., by will, gave a life-estate to B., and at B.'s death to six persons equally, declaring that "if any die without issue before his share vests, the same shall belong equally to the survivors," there was nothing in the word "vest" to prevent the application of the above rule: Id.

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The word "vest" means primâ facie, "come into possession," and not accrue in point of interest:" Id.

Joint-Stock Company-Fraud-Misrepresentations by Secretary and Directors-How far Binding on Company.-A court of equity will not relieve on a general charge of fraud, but it must be alleged in what the fraud consists, and how it has been effected: New Brunswick, &c., Railway Company vs. Conybeare.2

If reports are made to the shareholders of a joint-stock company by the directors, and adopted at one of the meetings of the company, and afterwards industriously circulated, the representations in those reports become, after this adoption, those of the company, and therefore binding on the company. And if those reports so circulated, can be shown to be proximate and immediate cause of the shares being bought by individuals, the company cannot retain the benefit of the contract and keep the purchase-money which has been paid: Id.

If an incorporated company, acting by its agent, induces a person to enter into a contract for the benefit of the company, that company can no more repudiate the fraudulent agent than an individual could repudiate him, and the company are bound by the misrepresentations of their agent. But the principle cannot be carried so far that an action can be brought against the company on the ground of deceit, because the directors have done an act which might render them liable to such an action (per Lord Cranworth): Id.

16 L. 1, N. S. 75.

26 L. T., N. S. 109.


Injunction-Mining Lease-Demise of License to make Roads, &c.Covenant to yield up Roads, &c.-Execution-Creditor of Lessee — His Right to seize Iron Plates and Sleepers.-In a lease of mines the plaintiff demised to K. full and free liberty aud license to make and use such roads and ways upon the premises as should be "necessary or expedient for carrying and conveying" the minerals, and for "the commodious carrying on of the business of an iron-master." There was then a covenant by the lessee, at the determination of the lease, to yield up such roads and ways in such good repair, &c., as that the works might be carried on by the lessor, his heirs and assigns.

Upon the works were two tram-roads, the plates of which were attached to iron and stone sleepers, fixed in the roadway. These tram-roads existed at the date of the lease, but they had since been much enlarged, and new tramplates had been, to a great extent, substituted. Upon a bill filed by the lessor to restrain an execution-creditor of the lessee from taking up and removing the iron railroads and tramplates, Held, that such movable chattels, as are referred to, were not included in the terms "works," or "ways," or "roads," and the injunction granted by Stuart, V. C., against the creditor, was dissolved: Duke of Beaufort vs. Bates.1


Patent-Validity of Specification-Publication.-Although the construction of a specification belongs to the court, the explanation of technica! terms of art, commercial phrases, and the proofs and results of the processes which are described in it, are matters of fact, upon which evidence may be given, contradictory testimony adduced, and therefore upon which it is the province of the jury to decide; but when those portions of s specification are made the subject of evidence and brought within the province of the jury, the direction to be given to the jury with regard to the construction of the rest of the specification, which is conceived in ordinary language, must be a direction given only conditionally; that is, a direction as to the meaning of the patent upon the hypothesis or basis of the jury arriving at a certain conclusion with regard to the meaning of the terms used, the signification of the phrases and the truth of the processes de scribed in the specification: Hills vs. Evans.2

16 L. T., N. S. 82.

26 L. T.,

N. S. 90.

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