eighteen inches: *there were two heaps of stones. I kept an account of the stones. Forty stones were taken off the line and thrown over, and three pieces of slate."

[*210

Cross-examined: "None of the forty,stones were taken off the wall by Mr. Preston's men: they were stones taken from the wall previously, and then thrown over. Mr. Preston told the men to go away. A man made an attempt to measure the distance. Mr. Preston did not lay hold of the man. The stone that was within three inches was not thrown there by a squabble between Preston and the man. Some of the stones were as near the wall as they could be. I did not see any of the men placing the stones. There were some loose on the wall. Some of the men were at it building. Roberts was on the premises at Bryn Helen, behind the wall. After Mr. Preston had told the men to go away, Roberts said in Welsh to the men, 'Go on,' and nodded."

Re-examined: "The stones that were on the wall were not 'built in' stones. I saw Roberts on the railway as I was going there: and, when we got there, he went through the door, and stood on his own ground." Joseph M'Carter: "I am a driver on Nantlle Railway, and drove a train last Tuesday, and saw stones on the line under Bryn Helen. If I had seen stones on any other part of the line I would have slackened my speed. I slackened my speed there."

Alexander Marshall: "I was on the railway by Bryn Helen on Tuesday. There is a small water table there. There is not more than enough room for vehicles: about eighteen inches between the rail and the wall. There was one stone close to the rail which was dangerous. I saw stones upon the railway."

Cross-examined: "It is possible that John Jones was standing, when the train was passing, between the rail and wall. It was the closest part of the line. I should not like to have stood there."

*This closed the examination in support of the information: and no evidence was given or tendered on behalf of Roberts.

[*211

Mr. Willliams, solicitor for Roberts, contended that there was no evidence whatever in support of the information to fix him, Roberts, with any of the allegations in the information. The justices convicted Roberts in the sum of 10s. and costs; when Williams applied in writing to them to state and sign a case setting forth the facts and the grounds of their determination, for the opinion of the Court of Common Pleas.

Aspland, for the appellant.-One of the points intended to be urged on the other side, is, that the Nantlle Railway Company should have been made respondents here, and not Preston. But, if that were any ground of objection, the proper course would have been to apply to strike out the appeal. Besides, it is clear that Preston alone could have been the informant. As long ago as the case of The Weavers' Company v. Forrest, 2 Stra. 1241, it was held that a corporation cannot sue as common informers. There are many cases which show that the information need not be laid by the party grieved himself, unless the penalty is given to him only: see Middleton v. Gale, 8 Ad. & E. 155 (E. C. L. R. vol. 35), 3 N. & P. 372.(a) [ERLE, C. J.—Is this a question that is reserved to us by the justices?]

Brown, contrà.(6)—The 2d section of the 20 & 21 Vict. c. 43, under (a) And see Morden, app., Porter, resp., 7 C. B., N. S. 641 (E. C. L. R. vol. 97). (b) The points marked for argument on the part of the respondent, were as follows:

which this case comes before the court, enacts, that, "after *212] the hearing and determination by a justice or justices of the peace of any information or complaint which he or they have power to determine in a summary way, by any law now in force or hereinafter to be made, either party to the proceeding before the said justice or justices may, if dissatisfied with the said determination as being erroneous in point of law, apply in writing within three days after the same to the said justice or justices to state and sign a case setting forth the facts and the grounds of such determination for the opinion thereon of one of the superior courts of law to be named by the party applying.' Here, the Nantlle Railway Company were the parties grieved, and the notice of appeal should have been given to them. [ERLE, C. J.-Your argument would have been more tenable if the penalty or part of it went to the party grieved. The justices here dealt throughout with Preston as the real party. There is nothing in the objection.]

Aspland. Then, as to the merits, in order to sustain this appeal, the appellant must show that the decision of the justices was erroneous in point of law; or, in other words, that there was no evidence to support the conviction, that is, none upon which the justices ought reasonably to have acted: Cuthbertson, app., Parsons, resp., 12 C. B. 304 (E. C. L. R. vol. 74); The British Industry Life Assurance Company, app., Ward, resp., 17 C. B. 644 (E. C. L. R. vol. 84). The judgment of Maule, J., in the first-mentioned case shows the true principle. "No doubt," he says, "if it could have been made to appear, by any *inference of fact that could legitimately be drawn from the *213] evidence submitted to us, that the judgment of the county court might be as it is without any miscarriage in point of law on the part of the judge, that judgment must be left undisturbed, notwithstanding this court might incline to draw inferences from the facts which might not consist with the conclusion which he has come to. But we feel no difficulty whatever in saying that, drawing any inferences that could legiti mately be drawn from the evidence here set forth, the judgment for the respondent could not have been arrived at without error in point of law,

that is to say, that the judge of the county court, in deciding that there was any evidence to warrant him in holding the appellant liable in point of law for the injury complained of, must necessarily have been wrong." Here, the evidence does not show that the appellant was personally guilty of anything to bring him within the act. All that was done was done by his agents. The only shadow of evidence against him, was, that, on one occasion, he was standing by. [BYLES, J.-And that he directed his men to go on, and nodded.]

ERLE, C. J.-Looking at all the facts set out in the case, we are all satisfied that the conviction was right. There was clear evidence to fix the appellant. Appeal dismissed, with costs.

"That the testimony of the witnesses set out in the case was evidence of the offence charged against the appellant; and that the magistrates were the sole judges of the weight of the evidence: That the evidence proved the offence: That no point of law was raised for the appellant, or decided by the magistrates, and therefore no appeal lies: And that the Nantlle Railway Company, and not the respondent, were the informers before the magistrates, and that notice of appeal should have been given to them; and that the appeal does not lie against Edward Preston."

*SMITH and Others v. VERTUE and Another. Nov. 24.

[*214

A bill was accepted by the defendants,-" Payable on giving up bill of lading for 76 bags of clover-seed per Amazon, at the London and Westminster Bank, Borough Branch:"-Held, that this was a conditional acceptance to this extent, that the holders were only entitled to receive the amount on delivering over to the acceptors the bill of lading; but that they were not bound to present the bill on the precise day on which it became due.

THE first count of the declaration stated that certain persons using the name, style, and firm of T. B. Sands & Co., on the 24th of December, 1859, in parts beyond the seas, to wit, at New York in the United States of America, by one J. A. Edwards, their agent in that behalf, made their bill of exchange in writing, and directed the same to the defendants by the name, style, and firm of Messrs. Vertue & Sons, and thereby required the defendants to pay to the order of themselves the said T. B. Sands & Co., sixty days after sight, in London, 2287. 38. 5d., which period had elapsed before the commencement of this suit; and the defendants, so using the name, style, and firm of Vertue & Sons, accepted the said bill, payable, on giving up a bill of lading for 76 bags of clover-seed per Amazon, at the London and Westminster Bank, borough branch; and the said T. B. Sands & Co., by their aforesaid agent in that behalf, endorsed the said bill to a certain person or certain persons using the name, style, and firm of John Stewart & Co., or to his or their order; and the said person or persons so using the name, style, and firm of John Stewart & Co., endorsed the said bill to the plaintiffs; and though all things had happened and had been done, and all times had elapsed, to entitle the plaintiffs to have the said bill paid by the defendants, yet the defendants had not paid the same.

There was also a count for money payable to the plaintiffs by the defendants for money found to be due from the defendants to the plaintiffs on accounts stated between them: claim, 3007.

First plea, to the first count,-that the plaintiffs were not ready and willing to give up the said bill of lading in the declaration and in the defendants' said acceptance mentioned, as alleged.

[*215

Second plea,-to the first count,-that the drawers of the said bill had contracted to sell to the defendants the said clover-seed in the first count mentioned, and had shipped the same on board a ship called the Amazon, under the bill of lading in the said first count mentioned, and that the defendants accepted the said bill of exchange, being the bill in the first count mentioned, in payment of the price of the said cloverseed; that, after their said acceptance, and before maturity of the said bill of exchange, the defendants contracted to sell a large portion of the said clover-seed to certain persons, the said last-mentioned contract of sale to be performed by the defendants by delivery to the said persons on or before the said 14th of March, 1860, being the day on which the said bill should become due: That on the said 14th of March, 1860, being the day on which the said bill of exchange became due and payable, and from thence until the expiration of a reasonable time after the said last-mentioned day, they, the defendants, were ready and willing to pay the same according to the tenor and effect of their said acceptance thereof, and then, on the said day, during business hours, demanded the said bill of lading of the plaintiffs, then being holders of the said bill of exchange, and possessed of the said bill of lading, and offered

the plaintiffs to pay the said bill of exchange on giving up the said bill of lading, but the plaintiffs then neglected and refused to give up the said bill of lading, nor did nor would the plaintiffs deliver up to the defendants the said bill of lading till after the expiration of a reasonable time for delivery of the said bill of lading after the said day on which the said bill of exchange became due, or until after the said persons to whom the defendants had so contracted to sell the said portion *216] of the said clover-seed had repudiated *their said contract on account of the inability of the defendants to obtain the said bill of lading, or to deliver the said portion of the said clover-seed so contracted to be sold to the said persons; whereby the defendants were deprived of the benefit and profits of their said contracts, and the said bill of lading by the said default of the plaintiffs became and was deteriorated in value, wherefore the defendants refused to accept the said clover-seed or bill of lading or pay the said bill of exchange.

Third plea, to the residue of the declaration,-never indebted.

-

The plaintiffs joined issue on the first and third pleas, and demurred to the second, the ground of demurrer stated in the margin being, that the time at which the bill of lading was tendered had no connection with the liability of the defendants to pay upon their acceptance to the bill of exchange in the declaration mentioned. The defendants joined in demurrer.

The cause came on for trial before Erle, C., J., at the sittings in London after the last term, when the following facts appeared in evidence: -The plaintiffs were bankers in London, and the defendants seed merchants carrying on business in Southwark. The bill of exchange upon which the action was brought was in the following form:

*217] *On the back of the bill were the following endorsements:

"Pay Messrs. John Stewart & Co., or order.

"T. B. SANDS & Co.,

"Per J. A. EDWARDS, attorney."

"Pay Messrs. Smith, Payne & Smiths, or order.

"JOHN STEWART & Co."

Messrs. Stewart & Co., who were American merchants residing at Manchester, and who banked with Messrs. Smith, Payne & Smiths, on the 27th of February, 1860, sent the bill of exchange in question with the bill of lading for the 76 bags of clover-seed annexed to it, to the plaintiffs, with instructions "to receive payment under discount, when

called for ;" and on the same day Stewart & Co. informed the defendants that the bill was at the plaintiffs' bank, and directed them to apply there when they wanted to take it up.

The bill arrived at maturity on the 14th of March, 1860, but was not presented for payment. If it had been, it would have been duly honoured. No inquiry was made by the defendants respecting the bill until the 15th of March, when one of the defendants called at Smith, Payne & Smiths, and asked why it had not been presented. It did not appear what answer he received; but, the bill being then presented to him, with `the bill of lading annexed, he refused to accept the latter or pay the former, saying that he had entered into a contract to ship the seed on that day to Scotland, and it was then too late to do so.

The bill was presented at the Borough branch of the London and Westminster Bank on the same day (with the bill of lading annexed), and refused payment; whereupon this action was commenced.

Upon this state of facts, the Lord Chief Justice *directed a verdict to be entered for the plaintiffs, reserving leave to the defendants to move to enter a verdict for them.

[*218

Montague Smith, Q. C., on a former day in this term, obtained a rule nisi accordingly. He submitted that time was the essence of the contract, that the delivery of the bill of lading to the defendants was a condition precedent to the holders' right to demand payment of the bill, and that that condition was not performed within the stipulated time.

It was arranged that the argument of the rule and on the demurrer should come on together.

Bovill, Q. C., and Coleridge, for the plaintiffs. (a)—The first question is, what is the effect of the defendants' acceptance," payable on giving up bill of lading for 76 bags of clover-seed per Amazon, at the London and Westminster Bank, Borough Branch ?" Is it a conditional acceptance, or an absolute acceptance, the payment being conditional? It is submitted that it falls within the latter description, and that the defendants are liable. Ever since the statute 1 & 2 G. 4, c. 78, which was consequent upon the decision of the House of Lords in Rowe v. Young, 2 Brod. & B. *165 (E. C. L. R. vol. 6), 2 Bligh 391, the mere addition of a place of payment is no qualification of the accept[*219 ance, unless the words "and not otherwise or elsewhere" be superadded. Here, the added words do not qualify or cut down the generality of the acceptance; the only qualification being as to the particular proceeds out of which the amount is to be paid. Assuming that this acceptance was a conditional one, it became absolute upon the condition being performed. In Bayley on Bills, 6th edit. 198, it is said: "A conditional acceptance becomes absolute as soon as its conditions are performed. Thus, an answer by the drawee that he could not accept until a navy bill should be paid, was thought (Pierson v. Dunlop, Cowp. 571) to

(a) The points marked for argument on the part of the plaintiffs on the demurrer were as follows:

"That, as the acceptor of a bill of exchange is liable to pay it at all times within six years, there is nothing disclosed in the plea to vary this general rule, or prevent its operation in this

case:

"And that the obligation on the part of the plaintiffs, if it existed at all, to deliver the bill of lading mentioned in the plea, had no connection with the duty of the defendants to pay the bill upon their acceptance, so as to relieve the defendants from their duty if it was not delivered in a reasonable time."