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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 nieans so strong as to warrant the court to rule that the jury ought not to have found that Shearmar ac as the defendant's agent when the plaintiffs contracted for the boiler. Nor should the third assignment bo sustained. The offer way files of letters, each book a monthly file, from November, 1873, to April, 1871, to show that the wholo 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 bad 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, and superior in many respects; and also guaranteed the boiler to be good, and 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 manufacturor was for that purpose. Expert witnesses on the part of the plaintiffs testify that the boiler was unsafe, poorly manufactured, mado of very bad iron, and was not thick enough, if good; and that a boiler properly made, as tho plaintiffs ordered, would have been sufficient and safe; also some of them say that the man who made tho boiler must have knowu the inferior quality of the iron. Like witnesses, on the part of the defendant, say the iron was good — as good or better than flange iron – was thick enough, and if there was defect in quality it could not have been discovered by the workmon, 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 ongaged 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 tho same kind of iron as the one sold to the plaintiffs, and that the plaintiffs' is tho only one he ever knew to blow up. He states the caro that was taken in procuring the iron for this boiler, and in doing tho work; also that ho believed the iron was of high quality, and that he beliered 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 ict by agent, there is stronger reilson 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 tho principal be a corporation or an individual." 1 Benj. Sales, $ 708 1:3 Eug., 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 tho principal did not authorize, justify or participate in, or in od know of buch misconduct, or even if he forbade the acts or disapproved of them. This rulo 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 ono 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 contidence should suffer, than a stranger.Lee v. l'illuge of Sandy 11ill, 40 N. Y. 442; see Angell & Ames Corp., $ 30.5, 309, 310.

If a corporation be incapablo 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 clealing. The learned judge of tho ('ommon Pleas did not err in submitting the case as if the deceit of the defendant's president and general manager was the deceit of tho defeudant.

The jury were instructed that there could be no recovery on the alleged express warranty, nor on an 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. Sellen knew that the boiler was defectivo in workmansbip and material, or either, and represented it as good, and equal to such boiler as was ordered, the plaintiff's could recover damages consequent on the deceit. There is no error in this instruction as respects the point subultted. The caso was put upon the single point — warranty and negligence were exclude as grounds upon which there could be recovery, and only considered as bearing on the alleged fraud. I had already been decided that the declaration must charge the defendant with having knowingly committed the deceit. Erie Cily Iron Works v. Burber, 1:3 Week. Notes, 192. 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 scientira 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 is first submitted, but added: “ILJr. Selden did not know that the boiler was bail, either in bad workmanship or in the quality of tho 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 ho 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 sail any thing respecting it. il lio 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 bail, then the company would also be liable big reason of this false representation made by him, is in fact the boiler was a bad ono." This may be regarded as tho full instruction, frequently epitomized in the answers to numerous points. Thus in answer to the lith: “There is no direct evidence that Mr. Selden personally knew at the time be made this representation that this was a bad boiler, the evidence is that be ordered the iron of a good company, and that the iron had a good reputation. But if he representeil, as I bare before said, that it was a good boiler, when he did not know

whether it was a good boiler, then the company would “When a manufacturer or dealer contracts to supply be liable."

an article which be manufactures or produces, or in Under that instruction, if Selden had skill and expe which he deals, to be applied to a particular purpose, rience, and ample reason to believe the boiler was good, so that the buyer necessarily trusts to the judgment and did so believe, he was as guilty of deceit as if he or skill of the manufacturer or dealer, there is an imknew it was bad. He may have made it with his own plied warranty that it shall be fit for the purpose to hand, or directly superintended the making, and be which it is to be applied, since here the buyer does not lieved the workmanship and material to be the best, purchase upon his own judgment, but relies upon that yet if at the time of sale he told the buyer it was good, of the seller." upon such ruling, he committed actual fraud in case Without inquiry as to the limitations of this docthere was a latent and unknown defect. If there was trine in Pennsylvania, it is plain that the seller's liasuch a defect, it was impossible that he could kuow it bility is upon his warranty. An implied warranty is was good. If it was defective it was not good. And neither more nor less than a contract, and the remethe pith of the instruction is that if Selden repro dies for its breach are the same as for breach of an exsented the boiler to be good, and in fact it was bad, press warranty. That there may be recovery in au acthe defendant is liable for deceit. In order to make a tion in the uature of deceit does not change the charperson liable for a fraudulent representation he must acter of the foundation of the right to recover. Forhave been guilty of some moral wrong; legal fraud, merly it was common to sue in this form where the unaccompanied by moral fraud, will fail to support claims were on contracts of warranty, and such remthe action. But though it is necessary that the de edy is not obsolete in this State. The plaintiff may fendant, in making the false statement, should have choose either case or assumpsit. “No matter which committed some moral turpitude, it is not necessary form of declaration be chosen, the plaintiff may reto show that he knew as a fact what he stated was cover on an express warranty without either alleging false. If he made the representation not knowing it or proving the knowledge of the defendant that it was to be true, or without reasonable and probable grounds false. A scienter need only be shown when the action on which to suppose it to be true, he acted fraudu is for deceit.” Vanleer v. Earle, 26 Penn. St. 277. lently. When a man, having no knowledge whatever Therefore the fact of recovery on a contract of warupon a subject, takes it upon himself to represent a ranty in an action of deceit does not justify an infercertain state of facts to exist, he does so at his peril, ence that when recovery is sought on the ground of and if it be done either to secure some benefit to him deceit the scienter need not be showu. self or to deceive another, he is guilty of fraud. By The case of Lynch v. Mercantile Trust Co., 18 Fed. assuming to have knowledge of a material fact, when Rep. 486, is where the veudor of a block of land, by his he is conscious that he has not, and representing it as agent, pointed out certain fences, and stated that the his own knowledge, in such manner as to import block included all the laud between said fences; the knowledge in him thereof, he commits a moral wrong, representation was false, but believed to be true by similar in character as if he knew the representation the agent when he made it. It was held that the purto be untrue. The fraudulent purpose is essential. chaser was entitled to the benefit of his contract, and Moak's Underhill on Torts, 517-8.

could recover the difference between the value of the Bigelow on Frauds sets forth the same principles, property actually sold and the value of the property and it is there said, p. 63: “Deceit cannot be main as represented. Nothing in the facts and judgment in tained for a false representation, believed to be true, that case tends to show that the vendor was guilty of which is based on adequate information; nor will the deceit or was liable on that ground, though some replea of fraud, or a bill asking for relief for fraud, be marks of the judge måy have that tendency. The supported by such evidence.”

true ground for recovery in such cases was tersely True it is also said that the action can be maintained stated by Chief Justice Marshall: “He who sells “for a falso representation, believed to be true, but property on a description given by himself is bound to the truth of which the defendant was bound to know.” make good that description; and if it be untrue in a The illustrations given under this rule apply to tho material point, although the variance be occasioned by case of express or implied representation of agency to mistake, he must still remain liable for that variance," one professing to be a partuer in a mercantilo firm, M[cHerr'un v. Taylor, 3 Cranch, 270. and to a person professing to be an expert, and thus In Randall y. Newson, 2 Q. B. D. 102; 19 Eng. Rep. competent to give advice in matters pertaiuing to his 243, one of the cases cited by the plaintiff's to support art. These and like cases rest on the ground that the the action of deceit, it was held that the warranty exrepresentation, though made by mistake or ignorance, tends to latent defects unknown to and undiscovered operates as an imposition upon the other party, and by the vendor which render the article sold unfit for the person making it, as against the immocent man tho purpose intended. There is 110 gainsaying the corwho has suffered by reason thereof, will not be al rectness of that ruling when there is such a warranty, lowed to say he made it honestly, believing it to be express or implied. If unfit, by the terms of the contrue. There is reason for his liability without holding tract, the seller is liable for its breach. But that case him guilty of moral turpitude.

does not establish the rule that a vendor is guilty of The plaintiffs contend their case falls within excop deceit and liable in damages for a tort, when he makes tions to the general rule, one of which is that an ac and sells an article in good faith, representing that it is tion for deceit will lio against a manufacturer or seller good and fit for a specified purpose, which contained a of goods

for
particular pnrpose,

if unfit latent defect that was unknown and undiscoverable for that purpose, although ho had 10 until tried by use. Nor is such principle supported fraudulent intent. Jones V. Bright, 5 Bing. 53:3. It by any other case of which we are advised. was thero held that if a manufacturer sells goods Wo are os opinion that the jury should have been infor a particular purpose“ the law implies a warranty structed that if the representation by Mr. Selden rethat it was fit and proper for that purpose.

specting the boiler was made in good faith, and that If a party sells an article for a particular purpose he he had adequate reason to believe it was true, there thereby warrants it to be fit for such purpose.' This could be no recovery for the alleged deceit. The eviand most other cases following in its wake are well denco bearing on the question whether the defendant collated by Mr. Biddle on Warranties on the Sales of and its agents knew that the boiler, by reason of bad Chattels, $8 167-183, and the doctrine stated thus: workmanship or bad irou, was defective and unfit for

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the purpose intended, or whether there was adequate art, is liable as for deceit or false warranty in case he reason to believe that both the material and workman makes any false statements of substance to another, ship were good, is conflicting, and therefore was for intending that the same should be acted upon, though the jury to consider and find the facts therefrom. De he believes them to be true. Thus one who during ceit should not be confounded with warranty, express negotiations for the sale of lands professes to have peor implied; nor with mistake, which is often ground culiar scientific knowledge of the value of lands for for relief of a party who suffers by it against him who the production of oil, and falsely represents such made it; nor with legal fraud imputed to a party who value, renders himself liable to the purcbaser if he has committed no moral fraud.

rely theroon and is deceived. So too if a party makes A number of the defendant's points were rigatly re a representation of facts of which he assumes to have fused, but that they could not be affirmed was no rea a definito knowledge, superior to that of the party to son for including in the answers instructions that if whom he makes it, or as to that of which tho latter is the boiler was represented to be good, and was bad, entirely ignorant, though the same does not relate to the defendant was liable. “The law raises 10 pre the party's own business, he will be liable as for a sumption of knowledge from the mere fact that the fraud.” representation is false."

All that applies to the very person who made the There is some difference between a judgment for a profession, or assumption, and representations, and to tort and one on contract. When it comes to execution no other. Nor could any other person be held liable the defendant has rights in one case that he could not therefor in the absence of proof that he procured the have in the other. The gist of the action should not act to be done, or participated in the doing of it. The be lost in its form. If the plaintiffs had choosen 10 mere relation of principal and agent does not imply rest their case solely on an alleged fraud in fact, in that the principal is responsible for such acts done by volving moral turpitude, they should be held to its the agent while transacting the business with which proof as firmly as if it did not appear that there was he was intrusted. It is not to be inferred from the an expressed or implied warranty.

fact of agency that the agent is authorized to profess Judgment reversed, and a venire fucius de novo to be an expert, and thus competent to give advice. awarded.

l'pon other grounds representations by the agent may On a motion for a re-argument the following opinion

bind the principal. was filed October 27, 188t:

It is said that the expert is liable as for deceit or TRUNKEY, J. Selden is not the defendant. llis of false warranty. Such liability may exist in it class of fice and employment warranted the conclusion that

cases where there is no moral turpitude. If the ex. ho was the defendant's general agent, and therefore

pert has skill and adequate information of the subject whatever he did within the scope of his authority

of which he speaks, and makes representations which bound his principal. Of his agency there was abund

he believes to be true, though untrue, to a party who ant proof, and the fact does not appear to have been

relies on them, is he liable for deceit, which involves denied. In consummating the sale of the boiler, which allegation and proof that he knowingly made the false had been manufactured by the defendant for the plain representations? l'pon this there is 110 present occatiffs, his warranty and 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 tho ('ommon Pleas charged; but he did not

work already cited. submit to the jury that is Selden assumed the charac

We are of opinion that the motion for reargument ter of an expert, and the plaintiff relying on him as

should be denied. such accepted the boiler on the opinion and represen

Re-argument refused. tations of said expert, the defendant would be liable. In our view it seems very plain that the case was tried and submitted as is Selden was acting as the defend- | NEW YORK (OURT OF 1PPE.ILS ABSTR:1('7. ant's agent. The instructions to the jury contain nothing respecting the liability of an expert for a false

CONTRACT-CONSUCRATION-PERFORMANCE-RELYstatement to one who consult: him upon a matter

ING ON PROMISE. - Defendant indorsed certain notes within his art. What evidence is there that the de for the accommodation of the maker; these were disfendant authorized Selden to speak and act as an ex

counted by plaintill, who transferred them for a valupert? We are not convinced that the court assumed able consideration. Beforo their maturity, plaintiff, that the defendant was liable as an expert for what at the request of defendant and upon his promise to Selden said, and based his instructions on such as waive protest and to givo his own notes for the dissumption.

counts, agreed to advance the money necessary and If we have misconceived the basis and import of the take up said notes; this he dil as they matured. l'pon instructions, we think we have understood them in the defendant's refusal to give his own notes, plaintiff same sense as did the jury. It is true that in this court, brought this action to recover the amount so paid. the plaintiff's contended both in their paper books | Helil, that the agreement of defendant was for a good and by oral argument, that Selden professed in bean

consideration and that the action was maintainable. expert, and that the charge was correct for that rea These obligations grew out of his relation to the paper son, but we were not satisfied that the question was and are implied from its terms, but they do not preruised or mooted at the trial. If it was it constitute vent such an express contract, as the one before us. no foundation for the instructions already ruled to be Vor to sustain it, need it appear that the promisor acerroneous. All Selden's representations were admis- quired any actual advantage. It is enough that at his sible for the purpose of showing misrepresentation and request something was done which originally the warranty by the defendant through its agent; not to other party hall not undertaken to do--as in this case, prove that he was an agent or an expert, and it is not payment at maturity and before protest, instead of shown that any thing was expressly offered to estab after default by the other parties. Before the promlish the latter character.

ise by defendant to waire protest and give his notes, It may be assumed that the law is correctly stated the plaintiff owed no cluty whatever to the defendant. in Bigelow on Frauds, 59, 60, as follows: “One who At that time one was created, and of a very different professes to be an expert in any particular, and thus kind from that which he was under to the holder of competent to give advice in matters pertaining to his the paper. By reason of it, something was done be

yond what he was already bound to do, and this is duotor to put the train in motion while the plaintiff consideration enough withiu all the authorities. was getting off and without warning to him. If this Williamson v. Clements, 1 Taunt. 523; Baily v. Croft, was established it tended to show negligence on the 4 id. 611; Shadwell v. Shad well, 9 C. B. (N. S.) 159; part of the defendant. Keating v. N. Y. C. & H. R. Nash v. Armstrong, 10 id. 259; Scotson v. Pegg, 6 H. R. Co., 49 N. Y. 673. As the testimony stood it was & N. 295; L'Amoreux v. Gould, 7 N. Y. 349. In the for the jury to determine whether there was any case last cited the distinction between the liability of proof of negligence on the part of the defendant, and an indorser to pay notes upon which he was charged, the court should have submitted the case to their conand those yet to become due, is pointed out, and it sideration on that question, unless it distinctly apwas held that while payment of the first would form peared that the plaintiff was chargeable with neglino consideration for a promise of repayment; by the gence contributing to the injury. As to the plaintiff's voluntary payment of the other, without reference to

negligence, that also was a question for the jury to debeing fixed as indorser, he assumed a liability and per cide. The plaintiff was called upon to act on a sudformed an act detrimental to bimself, which would den emergency, and under such circumstances should furnish a good consideration for the promise. This not be held to the most rigid accountability for his decision was followed in Sanders v. Gillespie, 59 N. Y. action. Salter v. Utica & Black River R. R., 88 N. Y. 250, where a promise by a second indorser to make 43; Filer v. N. Y. C. R. Co., 49 id. 52. If the plaintiff compensation to the first indorser of a note, in case he ad reason to believe, from what passed between him paid it at maturity, was sustained upon the ground and the conductor, and from the surrounding circumthat a different relation was assumed and a more oner stances, that it was safe and prudent for him to leave ous duty. In the Gould case there was performance as he did, then he was justified within the authorities in reliance upon a promise; in the other, mutual prom last cited. Whether the facts warranted this concluises. But the form makes no difference. The legal sion was a fair question which should have been subconsequence is the same. Willetts v. Sun Mutual Ins. mitted to the jury. Beecher v. N. Y. C., etc., R. Co. ('0., 15 N. Y. 45. There is however more than that in Opinion by Miller, J. the case before 19, for it cannot be said as matter of [Decided Jan. 20, 1885.] law that it was no advantage to the defendant to havo

TAXATION EXEMPTION EDUCATIONAL INSTITU. payment made before protest or new credit given to

TION-POLICY OF STATUTE-CLOUD ON TITLE- VOID him, and both of these things were secured by the

ASSESSMENT-ACTION TO REMOVE. - We think the agree ent. They seemed to him material at the time.

plaintiff did not waive or forfeit the exemption given The plaintiff therefore waived a right to which he was

by the statute (1 Rev. Stat. 388, § 4, subd. 3), by leasentitled, and so enlarged his liability and the defend

ing the building and premises during the usual vaca ant received a benefit. The plaintiff performed on his

tion period in the summer for a boarding-house. The part. The jury have found that the money was paid

policy of the exemption is the encouragement of at the request of the defendant, mado May 24. Under | learning. This policy is not subverted, but on the these circumstances a valid contract was established,

contrary is promoted by permitting the plaintiff to differing in all respects from the former legal obliga

devote the premises to a profitable use durivg the tion of the plaintiff, and he should have had judgment

summer months when they are not needed and cannot upon the verdict. Ilyckosh v. DeGrall. Opinion by

be used for the purposes of a school. If the premises Danforth, J.

should be left wholly vacant during this time, it is not [Decided Jan. 20, 1885.]

pretended that the property could be taxed. By NEGLIGENCE-LEAVING TRAIN WHILE IN MOTION-. leasing the premises during the summer the corporaCONTRIBUTORY NEGLIGENCE-ACTING IN EMERGENCY

tion is enabled to increase its income applicable to the -QUESTION FOR JURY.–Upon tho close of plaintiff's purposes of its creation. If the exemption from taxatestimony on the trial of this action, the defendant's tion enables it to obtain a larger net rental than could counsel moved for a nonsuit upon two grounds: First, be obtained from ordinary property, it is an advantage that the evidence showed no negligence on the part of

to which it is entitled, and is consistent with the the defondant; second, that the evidence showed neg policy upon which the exemption is based. Plaintiff, ligence on the part of the plaintiff which contributed an incorporated seminary of learning, leased its school to the injury. The plaintiff's counsel asked to go to building and premises, at Saratoga Springs, to D. for å the jury upon these questions; this request was re boarding-house, during a summer vacation. The asfused and the motion for a nonsuit granted, and an

sessors of the town assessed the property to D., and exception taken to the ruling by the plaintiff's coun after the expiration of the lease, a tax was levied sel. It appeared that the train did not stop at the

thereon. The receiver of taxes for the town was prostation for which the plaintiff had purchased a ticket,

ceeding to sell, mnder the Statute act of 1880, ch. 68, and at which he had a right to get off. It was the cus

which authorizes him to sell any real estate upon tom to stop there, but for some unexplained reason,

which taxes were unpaid. Whereupon plaintiff brought when it arrived, instead of stopping as it should have

this action to restrain the sale, and to vacate and set done, the train merely slowed up and thus did not

aside the tax, as authorized by said act. On the trial furnish tho plaintiff an opportunity to leave the cars

it was claimed by defendant that the assessmeut was in accordance with defendant's contract with him. void by reason of the indefiniteness of the descriptiou. This was clearly negligence, but there is also evidence The property was definitely described in the notice of to show that the conductor used language to the sale. lleld, that as by the act the receiver is directed plaintiff which authorized the conclusion that he had to execute a conveyance to the purchaser, which is a right to get off the train and that he could do so um

made ($ 8) presumptive evidence of regularity of all der the conductor's direction. The rule is well estab the proceedings, including the assessment, a grantee, lished that it is culpable negligence on the part of a

under a sale, would not be required to show a regular railroad corporation for its officers to induce a passen

assessment in order to recover the premises, and his ger to leave the train while in motion, and a gross dis

deed would be a cloud on the title, and that the action regard of the duty it owes bim not to stop the train was maintainable. See Scott v. Ouderdonk, 14 N. Y. entirely and give the passenger ample time and oppor 9; Metzger v. Attica & Arcade R. Co., 79 id. 171; Rumtunity to alight. Filer v. N. Y. C. R. (Co., 49 N. Y.51. sey v. City of Buffalo, 97 id. 114. Temple Grove SemiIt may be added that there was also evidence which nary v. Crumer. Opinioni by Andrews, J. tended to show that a signal was given by the con [Decided Jan. 20, 1885.]

PENALTY

PLEADING--CONTRIBUTORY NEGLIGENCE--WUEN NOT payment of it cannot be imposed by implication. QUESTION OF LAW.-(1) The complaint in an action of What the State omitted to demand, the court cannot negligence veed not allege the contributory nogligence require. But the Legislature has not overlooked in of the plaintiff; such separate and direct averment this respect any property right of the State. Where in the pleading was unnecessary. Ilackford v. N. Y. interest is given, it is as damages or compensation for C., etc.,R. Co., 6 Lans. 381; affirmed,53 N.Y. 654. Sub delay in payment. The creditor is supposed to have stantially that allegation is always involved in the lost something and to require indenivity. IIere the averment that the injury set out was occasioned by the Legislature has ordained it. Ten per cent annually is defendant's negligence. To prove that, it is necessary

to be added. Whether it lay in the mind of the Legisfor the plaintiff to show, and the burden is upon him lature that this was interest or not, we do not know. to establish that his own negligence did not cause or

It is what is given; and that it is given, and nothing contribute to the injury. Hale v. Sunith, 78 N. Y.483. more, excludes any plausible contention that the tax In the multitude of cases of this general character we payer is liablo beyond it. People v. Gold und Stock know of none which requires of the pleader any inde Telegraph Co. Opinion by Danforth, J. pendent or explicit allegation that the plaintiff bin [Decided Jan. 20, 1885.] self 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 evidenco tended to show that defendant's emloyees, PENNSYLVANIA SUPREME COURT in changing a gas-pipe under plaintiff's barn, bent the

ABSTRACT. pipe so that it leaked, and that the horse was killed by the escaping gas. The court declined to charge as re

ATTORNEY-ALLOWANCE OUT OF FI'ND-POWER OF quested by defendant's counsel that “if the plaintiff

COURT TO) GRANT.-An attorney has a lien for his serhad reason to believe that the gas was escaping, and

vices only upon a fund or upon papers which he actuknew the danger of escaping gas, and left the horse there without providing for the danger, thinking the

ally has in his possession. But where a fund is brought

into a court of equity by the services of an attorney, escape of gas was not sufficient to do any damage, he

who looks to that alone for compensation, though his cannot recover." Ileli no orror; that as matter of

interest is not of the nature of a lien, he is the equitlaw negligence was not the inevitable and necessary inference from the facts stated, but it was a question

able (wuer thereof to the extent of the value of his

services, and the court administering the fund will infor the jury. Lanigan v. N. Y. Gas Light Co., 71 N.

tervene for his protection, and award him a reasonY. 29. Lee v. Troy ('ilisens Gas Light Co. Opinion by Finch, J. [(1) See 28 Am. Rep. 5633.-E..]

able compensation therefrom. The court may in such

case determine itself, or through an auditor, what is [Decided Jan. 20, 1885.]

a reasonable fee, without referring the matter to a CONSTITUTIONAL LAW-TAXATION-CORPORATION — jury. The allowance of counsel fees touching a fund ACT OF 1881, CHAPTER 361

INTEREST. in equity has always been under the control of a chan(1) The act of 1881, chapter 361, which is, cellor. As was said by Justico Sharswood, in Free“An act to provide for raising taxes for the use of

v. Shrere, 5 Norris, 13.5: " It is true that it the State upon certain corporations, joint-stock com chancellor will, out of a fund for distribution, order panies and associations,” does not violate any pro compensation to the counsel engaged, in his sound vision of the Constitution of the United States. Peo- discretion, according to his estimate of what they ple v. Flome Ins. Co., 9:2 N. Y. 3:28; People v. Equitable reasonably deserve to have. He will often order such Trust Co., 96 id. 35. (?) Said act repeals, 80 far as compensation to the counsel of a losing party, who is taxation for State purposes is concerned, so much of decreed to have no interest, on the equitable ground the act of 18533, ch, 171, providing for the incorpora that being a necessary party he was compelled to litition of telegraph companies, as provides for such tax gate, or had sufficient reason. It is a charge which the ation and corporation organized under the latter act fund ought in equity and good conscience to bear.” are liable to taxation under, and as prescribed by the The compensation allowed the appellee was reasonformer. The Legislature must no doubt be presumed able, regard being had to the character of his services to have known of the existence of the earlier statuto, and the result obtained, and his right to be paid out and its repeal might have been the subject of express of the fund is clear. See also. Daly v. Maitland, 7 enactment, but in the respect named the two acts are Norris, 381; Imler v. Imler, 13 id. 37:2; Dubois' Appeal, so repugnant that they cannot stand together. In the 2 Wr. 231. 11 Kelley's 1 ppeal. Opinion by Paxone, taxation upon property, in the other, taxation upon franchise and business; in the one, the thing | [Decided March 9, 1885. ] taxed estimated by the actual cost of works upon which capital has been expended, in the other, estima BANKS AVT) BANKING AL'TIIORITY OF AGCXT TO ted by the amount of capital itself, with an exemption ('ERTIFY CHECKS-PRACTICE -- NONSCIT - WHEN VOT from other assessment or taxation except as therein GRASTET).-(1) Where an agent of a banking tirm is provided. The whole law indeed is not repealed, but authorized to certify the checks of drawers with sufso much only as relates to these purposes. In other ficient funds, the fact that he transgresses his authorwords, the effect of the act of 1881 is to take taxation ity and certifies checks where the drawer has no funds for State purposes out of the operation of the act of will not relieve the bank from responsibility to an in1853. The same result is reached under a rule now nocent holder. Quir'e, whether a usage which confers well settled by which a later statute covering the saino authority on a teller or assistant teller to certify subject-matter and embracing new provisions operates checks is good. (2) Anonsuit should never be granted to repeal a former act, even if the two are not in ex where there is any evidence suflicient to justify the inpress terms repugnant. Heckmann v. Pinkney, s1 N. ference of the disputed facts, on which the right to Y.211. (3) In an action against a corporation for a recover rests. The plaintiff is entitled to the benefit failure to comply with the requirements of said act, of every inference which might fairly be drawn by the no interest should be allowed as damages, the statute jury from the evidence. Maynes v. Alwater, i Vorprescribes the penaity for default in payment, and no ris, 490; Express ('0. v. Wile, 14 P. F. S. 201. 11il v. other may be collected. Interest is not given either National Trust ('o. Opinion by Sterrett, J. by this act or by any general law of the State. The [Decided Jan. 5, 1885.]

man

son, J.

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