keeping of a bawdy house was also a misdemeanor at common law and is now made so by the Penal Code (§ 322), which took effect Dec. 1, 1882. The relator, while he kept the bawdy house, could have been arrested and dealt with as a disorderly person, or he could have been indicted and punished for keeping such bawdy house. The two proceedings had different ends in view and could both be taken against one who kept such a house. Such person could be arrested as disorderly and compelled to give the security required, and afterwards indicted and punished for having kept a bawdy house.

The statute under which the relator was sentenced provides that the judge may "sentence such person to imprisonment in such penitentiary, there to be received, kept and employed in the manner prescribed by law and the rules and discipline of such penitentiary." It was objected that the words italicised are not contained in the sentence.

Held, That those words are no part of the sentence, but are simply directory to the keeper of the penitentiary, prescribing what shall be done with the prisoner and how he shall be kept.

Order of General Term, affirming order dismissing writ, affirmed. Opinion by Earl, J. All concur, except Rapallo, J., absent.

FOREIGN JUDGMENT. N. Y. SUPREME COURT. GENERAL TERM. FIRST DEPT.

Wm. Anderson et al., as liqui

dators, applts., v. John Haddon, respt.

Decided Oct. 8th, 1884.

A judgment of a court of a foreign country is not conclusive upon and will not be enforced in the courts of this State unless upon a proper examination it is established that the cause of action upon which it was recovered is one recognized by the common law and the proceeding in which it was obtained was one in which a trial was had in accordance with the rules of the common law; and if such is not the case, even the appearance of the party in the foreign court will not be regarded as conclusive of his rights or as affecting them at all injuriously.

Appeal from interlocutory judgment sustaining demurrer to 2d, 3d, 4th and 5th defences contained. in the answer.

This action was brought by the plaintiffs as liquidators of the City of Glasgow Bank, a foreign corporation created by the laws of Great Britain, against the defendant as one of the stockholders of the bank to enforce his individual liability upon the stock he owned as determined by a decree pronounced against him by the Court of Sessions in Scotland, or the Lord Ordinary. It appeared by the complaint that the decree upon which the action was brought was obtained under § 121 of a statute of the Kingdom of Great Britain, known as the "Companies Act of 1862," authorizing the pronouncing of such a decree by the Court of Sessions in Scotland, or the Lord Ordinary, after the dissolution of a corporation, upon the production by the liquidators of a list, certified by them, of the names of the contributories liable in payment of any calls which they may

wish to enforce, and of the amount due by each contributory respectively.

The 2d, 3d, 4th and 5th defences contained in the answer set up substantially that the court had no jurisdiction of the action; that the plaintiffs had no capacity to sue; that no notice had been given to defendant of the settlement of the list of contributories or of the application for the decree; that he was not served with process, and did not appear in the proceedings. These defences were demurred to, and the Court at Special Term sustained the demurrer, chiefly upon the ground that the defendant having voluntarily become a member of the corporation, had subjected himself to the law under which it was created and by which it was governed, and had thereby assented to the proceedings, taken under its provisions, for determining and enforcing his liability.

Edward Patterson, for applt. Shearman & Sterling, for respt. Held, That inasmuch as the mode provided by the act of Great Britain of ascertaining the liability of the defendant was summary, in derogation of the common law, and in the nature of bankruptcy proceedings, it had no extra territorial force, either by virtue of its

comity, and that principle does not require the adoption of adjudications of a court in a foreign. country which proceeds in a manner unknown to our laws; and when a foreign judgment is presented as a cause of action, inquiry must be made to ascertain whether the cause of action was one recognized by the common law, and whether the proceeding was one in which a trial was had according to the rules of the common law; and when upon a proper examination it appears that such was not the case, the judgment should not be enforced either as a matter of courtesy or otherwise, and even the appearance of the party in the foreign court should not be regarded as conclusive of his right, or indeed as affecting them at all injuriously.

That the application of the above doctrine to this case would relieve the defendant from liability under the decree sued upon. De Brimont v. Pennyman, 10 Blatch. Civ. Court Rep.

Judgment reversed and demurrer overruled.

Opinion by Brady, J.; Davis, P. J., and Daniels, J., concurred.

AGENT. NEGLIGENCE.

TERM. FIRST DEPT.

That the principle upon which foreign judgments receive any recognition in our courts is one of

Dennis Barber, respt., v. Abendroth Brothers, applts.

Decided Oct. 8, 1884.

Plaintiff's boat, with a load of sand consigned to defendants, arrived at the latter's wharf near the middle of the night. A watchman

in the employ of defendants was upon the wharf, to whom the plaintiff applied for directions as to where the sand was wanted, and was answered by the watchman that he could not tell, but he indicated a point upon the wharf where sand had previously been received by defendants. moored his boat at that point, and upon the

Plaintiff

ground, which at that place proved to be uneven, and for that reason inflicted the injury to the plaintiff's boat which was the subject of the action. Held, That the watchman had the apparent authority to indicate where a vessel might be safely moored, and that the defendants could not escape liability for his act by asserting that his real authority extended only to the protection of the premises against fire, &c.

When a wharf has been maintained in its position for such a length of time and under such circumstances as to warrant the imputation of negligence to its owners in failing to remove an unevenness in the bottom alongside of such wharf, which causes an injury to a vessel lawfully coming there to, the owners of the wharf are liable for such injury.

Appeal from a judgment recovered on the verdict of a jury and from an order denying a motion for a new trial.

The plaintiff, who was the owner and captain of a canal boat, received a load of sand consigned to defendants, and under such consignment proceeded to defendants' dock, in the vicinity of which he arrived about midnight. He found a watchman upon the dock, and he applied to him for directions as to where the sand was wanted, and was answered by the watchman that he could not tell, but he indicated a point on the wharf where sand had previously been received, and at the point so indicated the plaintiff moored his boat, being assisted by the watchman in so doing. Subsequently the tide went out

the trial the defendants proved that the duties of the watchman were limited to the protection of the premises against fire and burglary, and insisted that they were guilty of no negligence in the mat

ter.

D. B. Ogden, for applts.

Hyland & Zabriskie, for respts.

Held, That the fact that the watchman was in the service of defendants and was upon the premises in their apparent charge and possession, was an indication that it was his duty as well as his authority to look after their affairs, and that he so far represented them as to be authorized to indicate where a vessel might properly be moored which arrived at the wharf in the defendants' business during the night time, when no other person was to be found who could be consulted at the time, for when one person is in the employment of another he is to be regarded by others acting upon his apparent authority, as possessing all the power on behalf of his employers which is necessary to promote the object and end of his employment. 60 Barb., 181, 196; 50 id., 407; 46 N. Y., 325, 329. That the plaintiff acted upon the apparent authority of the watchman and the defendants could not relieve themselves from liability

by asserting that the apparent was not the real authority.

That the plaintiff, under the evidence, could very well have been found to have located his boat where, in the exercise of reasonable care and caution, it was prudent to do that; and, since the wharf had been maintained in its position for such a length of time and under such circumstances as war ranted the jury in finding that the defendants had negligently failed to render the locality safe by removing the unevenness of the bottom, for the use and occupation of a vessel employed as the plaintiff's was to transact its business at the dock, they were liable for the injury caused thereby. Mass., 116, 7 Black, 290; 59 N. Y., 28; 4 Hun, 99.

Judgment affirmed.

99

Opinion by Daniels, J.; Brady, J.. concurred.

Davis, P. J., dissented, holding the defendants had not been shown

to have been guilty of negligence, and even if such negligence had been shown, that the plaintiff was guilty of contributory negligence in mooring his boat and leaving her without proper care or inquiry where she was exposed to injury.

CRIMINAL LAW. INDICTMENT.

N.Y. SUPREME COURT. GENERAL TERM. SECOND DEPT.

The People, respt., v. John Lynch, applt.

Decided Sept., 1884.

Vol. 20.-No. 1a.

A criminal charge may be resubmitted to the grand jury under § 270 of the Code of Criminal Procedure as often as the Court may so direct.

Appeal from an order resubmitting a criminal charge to the grand jury.

A complaint for an assault in the third degree was preferred at the Westchester Oyer before the grand jury, and upon the close of the evidence no bill was found. This result was reached on the 6th of February, 1884. On the 7th of February, 1884, the case was reconsidered and a bill was found. Upon the motion to dismiss the indictment it was admitted by the District Attorney and the defendant's counsel "that this matter was sent to the grand jury for their action pursuant to the provision of the Code of Criminal Procedure of this State."

Nelson N. Baker, for respt.
Smith Lent, for applt.

Held, No error. By § 270 of the Code of Criminal Procedure it is provided that a charge may be resubmitted to the grand jury as often as the court may so direct. The admission is broad enough to cover a proper order for resubmis

sion.

Order affirmed.

Opinion by Barnard, P. J.; Pratt and Dykman, JJ., concur.

CORPORATIONS. MORTGAGE. THE N. Y. COURT OF APPEALS.

The Rochester Savings Bank respt., v. Averill et al., applts.

Decided Oct. 7, 1884.