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evidence tending to show that the contract was actually between Shearman, acting for himself, and the plaintiffs, it is by no means so strong as to warrant the court to rule that the jury ought not to have found that Shearmar acted as the defendant's agent when the plaintiffs contracted for the boiler. Nor should the third assignment be sustained. The offer was files of letters, each book a mouthly file, from November, 1873, to April, 1874, to show that the whole correspondeuce between Shearman and the defendant was inconsistent with the idea of principal and agent, and not a letter, or part thereof, which was rejected, has been printed or shown so that it may be determined that it was pertinent.

Whatever may have been the precise terms of the original contract, the parties agree that the boiler was not made according to the order, and that the plaintiffs had declined to accept it until after certain representations by the president or the company defendant. One of the plaintiffs testified that the president said the boiler was equal in every respect to such an one as ordered, aud superior in many respects; and also guaranteed the boiler to be good, aud in every respect equal to the one which had been ordered. The president denies that he made a guaranty. There is scarcely dispute respecting the fact that the boiler was ordered and manufactured for a particular purpose, and that its acceptance upon the representations of the manufacturer was for that purpose. Expert witnesses on the part of the plaintiffs testify that the boiler was unsafe, poorly manufactured, made of very bad iron, and was not thick enough, if good; and that a boiler properly made, as the plaintiffs ordered, would have been sufficient and safe; also some of them say that the man who made the boiler must have known the inferior quality of the iron. Like witnesses, on the part of the defendant, say the iron was good good or better than flange iron was thick enough, and if there was defect in quality it could not have been discovered by the workmen, nor by any person by inspection. For present purposes the verdict settles that the boiler was defective, and that the representations respecting its quality were untrue.


The defendant was engaged in the business of manufacturing boilers, and had built more than any other company or person in the country for a number of years. Selden, the president and general manager of the works, had had large experience in superintending the manufacture of boilers. He testifies that ninety per cent of the boilers of that kind made by the defendant was made of the same kind of iron as the one sold to the plaintiffs, and that the plaintiffs' is the only one he ever knew to blow up. He states the care that was taken in procuring the iron for this boiler, and in doing the work; also that he believed the iron was of high quality, and that he believed the representations that he made to the plaintiffs.

A corporation engaged in the manufacture of machinery ought to be responsible to purchasers the same as natural persons under similar circumstances. As it can only speak or act by agent, there is stronger reason for holding it answerable for the acts and representations of the agent done within the ostensible scope of his authority, and while transacting the business of the principal, than where the principal is a natural person. However, the same rule applies alike to natural and artificial persons. "The purchaser can maintain an action of deceit against the innocent principal where the fraud of the agent has been committed within the scope of his authority, and where the principal has been benefited by it. In this respect it makes no difference whether the principal be a corporation or an individual." 1 Benj. Sales, §708 (3 Eng., 4 Am. ed.) "The principal is liable in a civil suit to

third persons for the frauds, deceits, concealments, misrepresentations, torts, negligences and other malfeasances and misfeasances of his agent in the course of his employment, although the principal did not authorize, justify or participate in, or indeed know of such misconduct, or even if he forbade the acts or disapproved of them. This rule of liability is not based upon any presumed authority in the agent to do the acts, but on the ground of public policy, and that it is more reasonable when one of two innocent persons must suffer from the wrongful acts of a third person, that the principal who has placed the agent in the position of trust and confidence should suffer, than a stranger." Lee v. Village of Sandy Hill, 40 N. Y. 442; see Angell & Ames Corp., §§ 305, 309, 310.

If a corporation be incapable of committing deceit, the safety of third persons with whom it deals by agent requires that it be held liable in the proper action for the deceit of its agent perpetrated in such dealing. The learned judge of the Common Pleas did not errin submitting the case as if the deceit of the defendant's president and general manager was the deceit of the defeudant.

The jury were instructed that there could be no recovery on the alleged express warranty, nor on au implied warranty of the manufacturer and seller; but if they found that the iron was bad, or the boiler defectively made, and that the contract was with the defendant, and that Mr. Selden knew that the boiler was defective in workmanship and material, or either, and represented it as good, and equal to such boiler as was ordered, the plaintiffs could recover damages consequent on the deceit. There is no error in this instruction as respects the point submltted. The case was put upon the single point - warranty and negligence were excluded as grounds upon which there could be recovery, and only considered as bearing on the alleged fraud. It had already been decided that the declaration must charge the defendant with having knowingly committed the deceit. Erie City Iron Works v. Barber, 13 Week. Notes, 492. And the amendment was accordingly made. There is no occasion to consider the question of misjoinder of counts. That was not raised at the trial. But is the scienter a matter so essential that it must be averred in the declaration in an action for deceit, or presumed from the fact that the representation was untrue?

The court did not leave the point as first submitted, but added: "If Mr. Selden did not know that the boiler was bad, either in bad workmanship or in the quality of the iron, but without knowing absolutely, asserted that the iron was good and the workmanship perfect, or without any further words that it was a good boiler, suitable for the purpose for which it was intended, then he would be liable, the company would be liable, upon his false assertion of matters respecting which he did not know, if you find as a fact that the iron was bad and the workmanship defective; in other words, if he did not know he ought not to have said any thing respecting it. If he did know, then he was guilty of direct deceit and fraud. But if he undertook to assert that the boiler was a good one, when he did not know whether it was good or bad, then the company would also be liable by reason of this false representation made by him, if in fact the boiler was a bad one." This may be regarded as the full instruction, frequently epitomized in the answers to numerous points. Thus in answer to the 17th: "There is no direct evidence that Mr. Selden personally knew at the time he made this representation that this was a bad boiler, the evidence is that he ordered the iron of a good company, and that the iron had a good reputation. But if he represented, as I have before said, that it was a good boiler, when he did not know

whether it was a good boiler, then the company would be liable."

Under that instruction, if Selden had skill and experience, and ample reason to believe the boiler was good, and did so believe, he was as guilty of deceit as if he knew it was bad. He may have made it with his own hand, or directly superintended the making, and believed the workmanship and material to be the best, yet if at the time of sale he told the buyer it was good, upon such ruling, he committed actual fraud in case there was a latent and unknown defect. If there was such a defect, it was impossible that he could know it was good. If it was defective it was not good. And the pith of the instruction is that if Selden represented the boiler to be good, and in fact it was bad, the defendant is liable for deceit. In order to make a person liable for a fraudulent representation he must have been guilty of some moral wrong; legal fraud, unaccompanied by moral fraud, will fail to support the action. But though it is necessary that the defendant, in making the false statement, should have committed some moral turpitude, it is not necessary to show that he knew as a fact what he stated was false. If he made the representation not knowing it to be true, or without reasonable and probable grounds on which to suppose it to be true, he acted fraudulently. When a man, having no knowledge whatever upon a subject, takes it upon himself to represent a certain state of facts to exist, he does so at his peril, and if it be done either to secure some benefit to him self or to deceive another, he is guilty of fraud. By assuming to have knowledge of a material fact, when he is conscious that he has not, and representing it as his own knowledge, in such manner as to import knowledge in him thereof, he commits a moral wrong, similar in character as if he knew the representation to be untrue. The fraudulent purpose is essential. Moak's Underhill on Torts, 547-8.

Bigelow on Frauds sets forth the same principles, and it is there said, p. 63: "Deceit cannot be maintained for a false representation, believed to be true, which is based on adequate information; nor will the plea of fraud, or a bill asking for relief for fraud, be supported by such evidence."

True it is also said that the action can be maintained "for a false representation, believed to be true, but the truth of which the defendant was bound to know." The illustrations given under this rule apply to the case of express or implied representation of agency to one professing to be a partner in a mercantile firm, and to a person professing to be an expert, and thus competent to give advice in matters pertaining to his art. These and like cases rest on the ground that the representation, though made by mistake or ignorance, operates as an imposition upon the other party, and the person making it, as against the innocent man who has suffered by reason thereof, will not be allowed to say he made it honestly, believing it to be true. There is reason for his liability without holding him guilty of moral turpitude.

The plaintiffs contend their case falls within exceptions to the general rule, one of which is that an action for deceit will lie against a manufacturer or seller of goods for a particular pnrpose, if unfit for that purpose, although he had 10 fraudulent intent. Jones v. Bright, 5 Bing. 533. It was there held that if a manufacturer sells goods for a particular purpose "the law implies a warranty that it was fit and proper for that purpose. * ** If a party sells an article for a particular purpose he thereby warrants it to be fit for such purpose.' This and most other cases following in its wake are well collated by Mr. Biddle on Warranties on the Sales of Chattels, §§ 167-183, and the doctrine stated thus:

"When a manufacturer or dealer contracts to supply an article which be manufactures or produces, or in which he deals, to be applied to a particular purpose, so that the buyer necessarily trusts to the judgment or skill of the manufacturer or dealer, there is an implied warranty that it shall be fit for the purpose to which it is to be applied, since here the buyer does not purchase upon his own judgment, but relies upon that of the seller."

Without inquiry as to the limitations of this doctrine in Pennsylvania, it is plain that the seller's liability is upon his warranty. An implied warranty is neither more nor less than a contract, and the remedies for its breach are the same as for breach of an express warranty. That there may be recovery in an action in the uature of deceit does not change the character of the foundation of the right to recover. Formerly it was common to sue in this form where the claims were on contracts of warranty, and such remedy is not obsolete in this State. The plaintiff may choose either case or assumpsit. "No matter which form of declaration be chosen, the plaintiff may recover on an express warranty without either alleging or proving the knowledge of the defendant that it was false. A scienter need only be shown when the action is for deceit." Vanleer v. Earle, 26 Penn. St. 277. Therefore the fact of recovery on a contract of warranty in an action of deceit does not justify an inference that when recovery is sought on the ground of deceit the scienter need not be shown.

The case of Lynch v. Mercantile Trust Co., 18 Fed. Rep. 486, is where the vendor of a block of land, by his agent, pointed out certain fences, and stated that the block included all the laud between said fences; the representation was false, but believed to be true by the agent when he made it. It was held that the purchaser was entitled to the benefit of his contract, and could recover the difference between the value of the property actually sold and the value of the property as represented. Nothing in the facts and judgment in that case tends to show that the vendor was guilty of deceit or was liable on that ground, though some remarks of the judge may have that tendency. The true ground for recovery in such cases was tersely stated by Chief Justice Marshall: "He who sells property on a description given by himself is bound to make good that description; and if it be untrue in a material point, although the variance be occasioned by mistake, he must still remain liable for that variance." McFerran v. Taylor, 3 Cranch, 270.

In Randall v. Newson, 2 Q. B. D. 102; 19 Eng. Rep. 243, one of the cases cited by the plaintiffs to support the action of deceit, it was held that the warranty extends to latent defects unknown to and undiscovered by the vendor which render the article sold unfit for the purpose intended. There is no gainsaying the correctness of that ruling when there is such a warranty, express or implied. If unfit, by the terms of the contract, the seller is liable for its breach. But that case does not establish the rule that a vendor is guilty of deceit and liable in damages for a tort, when he makes and sells an article in good faith, representing that it is good and fit for a specified purpose, which contained a latent defect that was unknown and undiscoverable until tried by use. Nor is such principle supported by any other case of which we are advised.

We are of opinion that the jury should have been instructed that if the representation by Mr. Selden respecting the boiler was made in good faith, and that he had adequate reason to believe it was true, there could be no recovery for the alleged deceit. The evidence bearing on the question whether the defendant and its agents knew that the boiler, by reason of bad workmanship or bad irou, was defective and unfit for

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the purpose intended, or whether there was adequate
reason to believe that both the material aud workman-
ship were good, is conflicting, and therefore was for
the jury to consider and find the facts therefrom. De-
ceit should not be confounded with warranty, express
or implied; nor with mistake, which is often ground
for relief of a party who suffers by it against him who
made it; nor with legal fraud imputed to a party who
has committed no moral fraud.

A number of the defendant's points were rightly refused, but that they could not be affirmed was no reasou for including in the answers instructions that if the boiler was represented to be good, and was bad, the defendant was liable. "The law raises uo presumption of knowledge from the mere fact that the representation is false."

There is some difference between a judgment for a tort and one on contract. When it comes to execution the defendant has rights in one case that he could not have in the other. The gist of the action should not be lost in its form. If the plaintiffs had choosen to rest their case solely on an alleged fraud in fact, involving moral turpitude, they should be held to its proof as firmly as if it did not appear that there was an expressed or implied warranty.

Judgment reversed, and a venire facias de novo awarded.

On a motion for a re-argument the following opinion was filed October 27, 1884:

All that applies to the very person who made the profession, or assumption, and representations, and to no other. Nor could any other person be held liable therefor in the absence of proof that he procured the act to be done, or participated in the doing of it. The mere relation of principal and agent does not imply that the principal is responsible for such acts done by the agent while transacting the business with which he was intrusted. It is not to be inferred from the fact of agency that the agent is authorized to profess to be an expert, and thus competent to give advice. Upon other grounds representations by the agent may bind the principal.

It is said that the expert is liable as for deceit or false warranty. Such liability may exist in a class of cases where there is no moral turpitude. If the ex. pert has skill and adequate information of the subject of which he speaks, and makes representations which he believes to be true, though untrue, to a party who relies on them, is he liable for deceit, which involves allegation and proof that he knowingly made the false

We are of opinion that the motion for reargument should be denied.

TRUNKEY, J. Selden is not the defendant. His office and employment warranted the conclusion that he was the defendant's general agent, and therefore whatever he did within the scope of his authority bound his principal. Of his agency there was abundaut proof, and the fact does not appear to have been denied. In consummating the sale of the boiler, which had been manufactured by the defendant for the plain-representations? Upon this there is no present occatiffs, his warrauty aud representations of quality are sion to intimate an opinion; nor need reference be treated as if made by the principal. So the learned made to the views of Mr. Bigelow, as expressed in the judge of the Common Pleas charged; but he did not work already cited. submit to the jury that if Selden assumed the character of an expert, and the plaintiff relying on him as such accepted the boiler on the opinion and representatious of said expert, the defendant would be liable. Ir our view it seems very plain that the case was tried and submitted as if Selden was acting as the defendant's agent. The instructions to the jury contain nothing respecting the liability of au expert for a false statement to one who consults him upon a matter within his art. What evidence is there that the defendant authorized Selden to speak and act as an expert? We are not convinced that the court assumed that the defendant was liable as an expert for what Selden said, aud based his instructions on such assumption.

Re-argument refused.

If we have misconceived the basis and import of the instructions, we think we have understood them in the same sense as did the jury. It is true that in this court, the plaintiffs contended both in their paper books and by oral argument, that Selden professed to be an expert, and that the charge was correct for that reason, but we were not satisfied that the question was raised or mooted at the trial. If it was it constituted no foundation for the instructions already ruled to be erroneous. All Selden's representations were admissible for the purpose of showing misrepresentation and warranty by the defendant through its agent; not to prove that he was an agent or an expert, and it is not shown that any thing was expressly offered to establish the latter character.


It may be assumed that the law is correctly stated in Bigelow on Frauds, 59, 60, as follows: 'One who professes to be an expert in any particular, and thus competent to give advice in matters pertaining to his

art, is liable as for deceit or false warranty in case he makes any false statements of substance to another, intending that the same should be acted upon, though he believes them to be true. Thus one who during negotiations for the sale of lands professes to have peculiar scientific knowledge of the value of lands for the production of oil, and falsely represents such value, reuders himself liable to the purchaser if he rely thereon and is deceived. So too if a party makes a representation of facts of which he assumes to have a definite knowledge, superior to that of the party to whom he makes it, or as to that of which the latter is entirely ignorant, though the same does not relate to the party's own business, he will be liable as for a fraud."



ING ON PROMISE.-Defendant indorsed certain notes for the accommodation of the maker; these were discounted by plaintiff, who transferred them for a valuable consideration. Before their maturity, plaintiff, at the request of defendant and upon his promise to waive protest and to give his own notes for the discounts, agreed to advance the money necessary and take up said notes; this he did as they matured. Upon defendant's refusal to give his own notes, plaintiff brought this action to recover the amount so paid. Held, that the agreement of defendant was for a good consideration and that the action was maintainable. These obligations grew out of his relation to the paper and are implied from its terms, but they do not prevent such an express contract as the one before us. Nor to sustain it, need it appear that the promisor acquired any actual advantage. It is enough that at his request something was done which originally the other party had not undertaken to do-as in this case, payment at maturity aud before protest, instead of after default by the other parties. Before the promise by defendant to waive protest and give his notes, the plaintiff owed no duty whatever to the defendant. At that time one was created, and of a very different kind from that which he was under to the holder of the paper. By reason of it, something was done be

yond what he was already bound to do, and this is consideration enough within all the authorities. Williamson v. Clements, 1 Taunt. 523; Baily v. Croft, 4 id. 611; Shadwell v. Shadwell, 9 C. B. (N. S.) 159; Nash v. Armstrong, 10 id. 259; Scotson v. Pegg, 6 H. & N. 295; L'Amoreux v. Gould, 7 N. Y. 349. In the case last cited the distinction between the liability of au indorser to pay notes upon which he was charged, and those yet to become due, is pointed out, and it was held that while payment of the first would form no consideration for a promise of repayment; by the voluntary payment of the other, without reference to being fixed as indorser, he assumed a liability and performed an act detrimental to himself, which would furnish a good consideration for the promise. This decision was followed in Sanders v. Gillespie, 59 N. Y. 250, where a promise by a second indorser to make compensation to the first indorser of a note, in case he paid it at maturity, was sustained upon the ground that a different relation was assumed and a more onerous duty. In the Gould case there was performance in reliance upon a promise; in the other, mutual promises. But the form makes no difference. The legal consequence is the same. Willetts v. Sun Mutual Ins. Co., 45 N. Y. 45. There is however more than that in the case before us, for it cannot be said as matter of law that it was no advantage to the defendant to have payment made before protest or new credit given to him, and both of these things were secured by the agreement. They seemed to him material at the time. The plaintiff therefore waived a right to which he was entitled, and so enlarged his liability and the defendant received a benefit. The plaintiff performed on his part. The jury have found that the money was paid at the request of the defendant, made May 24. Under these circumstances a valid contract was established, differing in all respects from the former legal obligation of the plaintiff, and he should have had judgment upon the verdict. Wyckoff v. DeGraff. Opinion by Danforth, J.

[Decided Jan. 20, 1885.]


-QUESTION FOR JURY.-Upon the close of plaintiff's testimony on the trial of this action, the defendant's counsel moved for a nonsuit upon two grounds: First, that the evidence showed no negligence on the part of the defendant; second, that the evidence showed negligence on the part of the plaintiff which contributed to the injury. The plaintiff's counsel asked to go to the jury upon these questions; this request was refused and the motion for a nonsuit granted, and an exception taken to the ruling by the plaintiff's counsel. It appeared that the train did not stop at the station for which the plaintiff had purchased a ticket, and at which he had a right to get off. It was the custom to stop there, but for some unexplained reason, when it arrived, instead of stopping as it should have done, the train merely slowed up and thus did not furnish the plaintiff an opportunity to leave the cars in accordance with defendant's contract with him. This was clearly negligence, but there is also evidence to show that the conductor used language to the plaintiff which authorized the conclusion that he had a right to get off the train and that he could do so under the conductor's direction. The rule is well established that it is culpable negligence on the part of a railroad corporation for its officers to induce a passenger to leave the train while in motion, and a gross disregard of the duty it owes him not to stop the train entirely and give the passenger ample time and opportunity to alight. Filer v. N. Y. C. R. Co., 49 N. Y. 51. It may be added that there was also evidence which tended to show that a signal was given by the con

ductor to put the train in motion while the plaintiff was getting off and without warning to him. If this was established it tended to show negligence on the part of the defendant. Keating v. N. Y. C. & H. R. R. Co., 49 N. Y. 673. As the testimony stood it was for the jury to determine whether there was any proof of negligence on the part of the defendant, and the court should have submitted the case to their consideration on that question, unless it distinctly appeared that the plaintiff was chargeable with negligence contributing to the injury. As to the plaintiff's negligence, that also was a question for the jury to decide. The plaintiff was called upon to act on a sudden emergency, and under such circumstances should not be held to the most rigid accountability for his action. Salter v. Utica & Black River R. R., 88 N. Y. 49; Filer v. N. Y. C. R. Co., 49 id. 52. If the plaintiff had reason to believe, from what passed between him and the conductor, and from the surrounding circumstances, that it was safe and prudent for him to leave as he did, then he was justified within the authorities last cited. Whether the facts warranted this conclusion was a fair question which should have been submitted to the jury. Beecher v. N. Y. C., etc., R. Co. Opinion by Miller, J.

[Decided Jan. 20, 1885.]

TAXATION [— EXEMPTION EDUCATIONAL INSTITU TION-POLICY OF STATUTE-CLOUD ON TITLE— VOID ASSESSMENT-ACTION TO REMOVE. We think the plaiutiff did not waive or forfeit the exemption given by the statute (1 Rev. Stat. 388, § 4, subd. 3), by leas ing the building and premises during the usual vaca tion period in the summer for a boarding-house. The policy of the exemption is the encouragement of learning. This policy is not subverted, but on the contrary is promoted by permitting the plaintiff to devote the premises to a profitable use during the summer months when they are not needed and cannot be used for the purposes of a school. If the premises should be left wholly vacant during this time, it is not pretended that the property could be taxed. By leasing the premises during the summer the corporation is enabled to increase its income applicable to the purposes of its creation. If the exemption from taxation enables it to obtain a larger net rental than could be obtained from ordinary property, it is an advantage to which it is entitled, and is consistent with the policy upon which the exemption is based. Plaintiff, an incorporated seminary of learning, leased its school building and premises, at Saratoga Springs, to D. fora boarding-house, during a summer vacation. The assessors of the town assessed the property to D., and after the expiration of the lease, a tax was levied thereon. The receiver of taxes for the town was proceeding to sell, nnder the Statute act of 1880, ch. 68, which authorizes him to sell any real estate upon which taxes were unpaid. Whereupon plaintiff brought this action to restrain the sale, and to vacate and set aside the tax, as authorized by said act. On the trial it was claimed by defendant that the assessment was void by reason of the indefiniteness of the description. The property was definitely described in the notice of sale. Held, that as by the act the receiver is directed to execute a conveyance to the purchaser, which is made (§ 8) presumptive evidence of regularity of all the proceedings, including the assessment, a grantee, under a sale, would not be required to show a regular assessment in order to recover the premises, and his deed would be a cloud on the title, and that the action was maintainable. See Scott v. Ouderdonk, 14 N. Y. 9; Metzger v. Attica & Arcade R. Co., 79 id. 171; Rumsey v. City of Buffalo, 97 id. 114. Temple Grove Seminary v. Cramer. Opinion by Andrews, J. [Decided Jan. 20, 1885.]

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PLEADING--CONTRIBUTORY NEGLIGENCE--WHEN NOT QUESTION OF LAW.-(1) The complaint in an action of negligence need not allege the contributory negligence of the plaintiff; such separate and direct averment in the pleading was unnecessary. Hackford v. N. Y. C., etc., R. Co., 6 Lans. 381; affirmed,53 N.Y. 654. Substantially that allegation is always involved in the averment that the injury set out was occasioned by the defendant's negligence. To prove that, it is necessary for the plaintiff to show, and the burden is upon him to establish that his own negligence did not cause or contribute to the injury. Hale v. Smith, 78 N. Y. 483. In the multitude of cases of this general character we know of none which requires of the pleader any independent or explicit allegation that the plaintiff himself was without fault. (2) In an action to recover damages for an alleged negligence on the part of defendant, causing the death of plaintiff's horse, plaintiff's evidence tended to show that defendant's emloyees, in changing a gas-pipe under plaintiff's barn, bent the pipe so that it leaked, and that the horse was killed by the escaping gas. The court declined to charge as requested by defendant's counsel that "if the plaintiff had reason to believe that the gas was escaping, and knew the danger of escaping gas, aud left the horse there without providing for the danger, thinking the escape of gas was not sufficient to do any damage, he cannot recover. Held no error; that as matter of law negligence was not the inevitable and necessary inference from the facts stated, but it was a question for the jury. Lanigan v. N. Y. Gas Light Co., 71 N. Y. 29. Lee v. Troy Citizens Gas Light Co. Opinion by Finch, J. [(1) See 28 Am. Rep. 563.-ED.] [Decided Jan. 20, 1885.]




(1) The act of 1881, chapter 361, which is, "An act to provide for raising taxes for the use of the State upon certain corporations, joint-stock companies and associations," does not violate any provision of the Constitution of the United States. People v. Home Ins. Co., 92 N. Y. 328; People v. Equitable Trust Co., 96 id. 387. (2) Said act repeals, so far as taxation for State purposes is concerned, so much of the act of 1853, ch. 471, providing for the incorporation of telegraph companies, as provides for such taxation and corporation organized under the latter act are liable to taxation under, and as prescribed by the former. The Legislature must no doubt be presumed to have known of the existence of the earlier statute, and its repeal might have been the subject of express enactment, but in the respect named the two acts are so repugnant that they cannot stand together. In the one, taxation upon property, in the other, taxation upon franchise and business; in the one, the thing taxed estimated by the actual cost of works upon which capital has been expended, in the other, estimated by the amount of capital itself, with an exemption from other assessment or taxation except as therein provided. The whole law indeed is not repealed, but so much only as relates to these purposes. In other words, the effect of the act of 1881 is to take taxation for State purposes out of the operation of the act of 1853. The same result is reached under a rule now well settled by which a later statute covering the same subject-matter and embracing new provisions operates to repeal a former act, even if the two are not in express terms repugnant. Heckmann v. Pinkney, 81 N. Y. 211. (3) In an action against a corporation for a failure to comply with the requirements of said act, no interest should be allowed as damages; the statute prescribes the penaity for default in payment, and no other may be collected. Interest is not given either by this act or by any general law of the State. The

payment of it cannot be imposed by implication. What the State omitted to demand, the court cannot require. But the Legislature has not overlooked in this respect any property right of the State. Where interest is given, it is as damages or compensation for delay in payment. The creditor is supposed to have lost something and to require indemnity. Here the Legislature has ordained it. Ten per cent annually is to be added. Whether it lay in the mind of the Legislature that this was interest or not, we do not know. It is what is given; and that it is given, and nothing more, excludes any plausible contention that the tax payer is liable beyond it. People v. Gold and Stock Telegraph Co. Opinion by Danforth, J.

[Decided Jan. 20, 1885.]



ATTORNEY-ALLOWANCE OUT OF FUND-POWER OF COURT TO GRANT.-An attorney has a lien for his services only upon a fund or upon papers which he actually has in his possession. But where a fund is brought into a court of equity by the services of an attorney, who looks to that alone for compensation, though his interest is not of the nature of a lien, he is the equitable owner thereof to the extent of the value of his services, and the court administering the fund will intervene for his protection, and award him a reasonable compensation therefrom. The court may in such case determine itself, or through an auditor, what is a reasonable fee, without referring the matter to a jury. The allowance of counsel fees touching a fund in equity has always been under the control of a chancellor. As was said by Justice Sharswood, in Freeman v. Shreve, 5 Norris, 135: "It is true that a chancellor will, out of a fuud for distribution, order compensation to the counsel engaged, in his sound discretion, according to his estimate of what they reasonably deserve to have. He will often order such compensation to the counsel of a losing party, who is decreed to have no interest, on the equitable ground that being a necessary party he was compelled to liti. gate, or had sufficient reason. It is a charge which the fund ought in equity and good conscience to bear." The compensation allowed the appellee was reasonable, regard being had to the character of his services and the result obtained, and his right to be paid out of the fund is clear. See also Daly. v. Maitland, 7 Norris, 384; Imler v. Imler, 13 id. 372; Dubois' Appeal, 2 Wr. 231. MvKelvey's Appeal. Opinion by Paxson, J.

[Decided March 9, 1885.]

BANKS AND BANKING AUTHORITY OF AGENT TO CERTIFY CHECKS-PRACTICE NONSUIT WHEN NOT GRANTED.—(1) Where an agent of a banking firm is authorized to certify the checks of drawers with sufficient funds, the fact that he transgresses his authority and certifies checks where the drawer has no funds will not relieve the bank from responsibility to an innocent holder. Quare, whether a usage which confers authority on a teller or assistant teller to certify checks is good. (2) A nonsuit should never be granted where there is any evidence sufficient to justify the inference of the disputed facts, on which the right to recover rests. The plaintiff is entitled to the benefit of every inference which might fairly be drawn by the jury from the evidence. Maynes v. Alwater, 7 Norris, 496; Express Co. v. Wile, 14 P. F. S. 201. Hill v. National Trust Co. Opinion by Sterrett, J. [Decided Jan. 5, 1885.]

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