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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 couflicting, 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; rior with legal fraud imputed to a party who value, renders himself liable to the purcbaser if he has committed no moral fraud.

rely thereon and is deceived. So too if a party makes A number of the defendant's points were rightly re- a representation of facts of which he assumes to have fused, but that they could not be affirmed was no rea- a definite knowledge, superior to that of the party to sou for including in the answers instructions that if whom he makes it, or as to that of which the 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 to 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 to 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 facias de novo to be an expert, and thus competent to give advice. awarded

Upon other grounds representations by the agent may On a motion for a re-argument the following opinion bind the principal. was filed October 27, 1884:

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

cases where there is no moral turpitude. If the ex. he 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 ou 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? Upon this there is no present occatiffs, his warrauty 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 the Common Pleas charged; but he did not

work already cited. submit to the jury that if 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. Ir our view it seems very plain that the case was tried and submitted as if Selden was acting as the defend- NEW YORK COURT OF APPEALS ABSTRACT, ant's agent. The instructions to the jury contain nothing respecting the liability of an expert for a false

CONTRACT-CONSIDERATION--PERFORMANCE-RELYstatement to one who consults 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 plaintiff, who transferred them for a valupert? We are not convinced that the court assumed | able consideration. Before 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 give his own notes for the dissumption.

counts, agreed to advance the money necessary aud If we have misconceived the basis and import of the take up said notes; this he did as they matured. Upon instructions, we think we bave understood them in the defendant's refusal to give his own uotes, plaintit same sense as did the jury. It is true that in this court, brought this action to recover the amount so paid. the plaintiffs contended both in their paper books Held, that the agreement of defendant was for a good and by oral argument, that Seldeu professed to be an

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 preraised or mooted at the trial. If it was it constituted vent such an express contract as the one before us. no foundation for the instructions already ruled to be

Nor 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 had not undertaken to do-a8 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 waive protest and give his uotes, It may be assumed that the law is correctly stated the plaintiff owed no duty 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 bis the paper. By reason of it, something was done be

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yond what he was already bound to do, and this is ductor to put the train in motion while the plaintiff
consideration enough within 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. Shadwell, 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 testimouy stood it was
& N. 295; L'Amoreux v. Gould, 7 N. Y. 349. Iu 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 con-
and those yet to become due, is pointed out, and it sideration on that question, unless it distinctly ap-
was held that while payment of the first would form peared that the plaintiff was chargeable with Degli-
no 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 de-
being fixed as indorser, he assumed a liability and per- cide. The plaintiff was called upon to act on a sud-
formed 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 49; Filer v. N. Y.C. R. Co., 49 id. 52. If the plaintiff
compensation to the first indorser of a note, in case he had reason to believe, from what passed between him
paid it at maturity, was sustained upon the ground and the conductor, and from the surrounding circum-
tbat 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 conclu-
ises. But the form makes no difference. The legal sion was a fair question which should have been sub-
consequence is the same. Willetts v. Sun Mutual Ins. mitted to the jury. Beecher v. N. Y. C., etc., R. Co.
Co., 45 N. Y. 45. There is however more than that in Opinion by Miller, J.
the case before us, for it cannot be said as matter of

[Decided Jan. 20, 1885.] law that it was no advantage to the defendant to have

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 agreemeut. They seemed to him material at the time.

plaiutiff did not waive or forfeit tbe 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, made 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 during the tion of the plaintiff, and he should have had judgment

summer months when they are not needed and cannot upon the verdict. Wyckoff v. DeGraff. 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 the 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 advautage that the evidence showed no negligence on the part of to which it is entitled, and is consistent with the the defendant; second, that the evidence showed veg- policy upon which the exemption is based. Plaintiff, ligence on the part of the plaintiff wbich 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 8 the jury upon these questions; this request was re- boarding-house, during a summer vacation. The asfused and the motion for a nousuit 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, nnder 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 the plaintiff an opportunity to leave the cars it was claimed by defendant that the assessment was in accordance with defendant's contract with him. void by reason of the indefiniteness of the description. This was clearly negligence, but there is also evidence The property was definitely described in the notice of to show that the conductor used lauguage to the sale. Held, 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 un- 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 disa deed would be a cloud on the title, and that the action regard of the duty it owes him not to stop the train was maintainable. See Scott v. Onderdonk, 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. Cramer. Opinion by Andrews, J. tended to show that a signal was given by the con- [Decided Jan. 20, 1885.]

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PLEADING--CONTRIBUTORY NEGLIGENCE-WHEN 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 need not allege the contributory negligence require. But the Legislature has not overlooked in of the plaintiff; such separate and direct avermeut this respect any property right of the State. Where in the pleading was unnecessary. Hackford 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 indemnity. Here the averment that the injury set out was occasioned by the Legislature has ordained it. Ten per cent annually is defendaut'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. Smith, 78 N. Y. 483. more, excludes any plausible contention that the tax In the multitude of cases of this general character we payer is liable beyond it. People v. Gold and Stock know of none which requires of the pleader any inde- Telegraph Co. Opinion by Danforth, J. pendent or explicit allegation that the plaintiff him. [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 evidence tended to show that defendant's emloyees, PENNSYLVANIA SUPREME COURT in changing a gas-pipe under plaintiff's baru, 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 FUND-POWER OF quested by defendant's counsel that “if the plaintiff had reason to believe that the gas was escaping, and

COURT TO GRANT.--An attorney has a lien for his serknew the danger of escaping gas, and left the horse

vices only upon a fund or upon papers which he actu

ally has in his possession. But where a fund is brought there without providing for the danger, thinking the

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." Held no error; 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 owner thereof to the extent of the value of his for the jury. Lanigan v. N. Y. Gas Light Co., 71 N.

services, and the court administering the fund will in

tervene for his protection, and award him a reasonY. 29. Lee v. Troy Citizens Gas Light Co. Opinion

able compensation therefrom. The court may in such by Finch, J. [(1) See 28 Am. Rep. 563.-ED.).

case determine itself, or through an auditor, what is [Decided Jan. 20, 1885.1

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 PENALTY INTEREST. in equity has always been under the control of a chan- (1) The act of 1881, chapter 361, wbich is, cellor. As was said by Justice Sharswood, in Free"An act to provide for raising taxes for the use of v. Shrere, 5 Norris, 135: “It is true that a the State upon certain corporations, joint-stock com- chancellor will, out of a fuud 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. Home Ins. Co., 92 N. Y. 328; People v. Equitable reasonably deserve to have. He will often order such Trust Co., 96 id. 387. (2) Said act repeals, so 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 1853, ch, 471, 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 couscience 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 statute, 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, 384; Imler v. Imler, 13 id. 372; Dubois' Appeal, so repuguapt that they cannot stand together. Iu the 2 Wr. 231. MvKelvey's Appeal. 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 AND BANKING AUTHORITY OF AGENT TO ted by the amount of capital itself, with an exemption CERTIFY CHECKS-PRACTICE - NONSUIT – WHEN NOT from other assessment or taxation except as therein GRANTED.-(1) Where an agent of a banking firm is provided. The whole law indeed is not repealed, but authorized to certify the checks of drawers with suf80 muoh 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. Qucere, whether a usage which confers well settled by which a later statute covering the same authority on a teller or assistant teller to certify Bubject-matter and embracing new provisions operates

checks is good. (2) A nonsuit should never be granted to repeal a former act, even if the two are not in ex- where there is any evidence sufficient to justify ihe inpress terms repugnant. Heckmann v. Pinkney, 81 N. ference of the disputed facts, on wbich 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, 7 Norprescribes the penaity for default in payment, and no ris, 496; Express Co. v. Wile, 14 P. F. S. 201. Hill y. other may be collected. Interest is not given either National Trust Co. Opinion by Sterrett, J. by this act or by any general law of the State. The (Decided Jan. 5, 1885. ]


son, J.

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CONTRACT-RESTRAINT OF TRADE.- A., being a physi- son, 20 id. 448, distinguished. A contract to deliver cian in J., sold his practice to B. and agreed never to ore of a certain weight, and of a certain price per ton, locate again in J. to practice medicine, and further, but where no time is fixed for the completion of the never to practise within five miles of J. Subsequently contract, nor any amount as a monthly delivery, and B. agreed to permit A., on payment to bim of $500, to where a payment is made before any delivery, is an practice within five miles of J., but this agreement entire contract. 2 Pars. Cont. 29-31. To determine contained the further clause: * Nothing herein con- the value of ore which has been found unfit for the tained shall refer to or include any place without the uses for which it was sold, evidence is admissible to limits of the city and county of P." A. practiced show its unfitness for other purposes. The legal measafterward within five miles of J., and outside of the ure of damages when inferior ore has been furnished city and county of P., without objection on the part is the difference between the contract price of the ore of B., who frequently saw him and met him in con- and the market value. Where shipments have been sultation. Held, that in view of the construction received without any protest by the buyer, or induceplaced upon the supplementary contract by the par- | ments by the seller, the dates for estimating the marties, it must be taken only to preclude A. from locat- ket price are the dates when the shipments were reing in J., and not to preclude him from practicing ceived. Iuterest should be allowed in all cases of without the city and county of P., within five miles of contract where it is the duty of the debtor to pay J. Caley v. R. Co., 80 Penn. St. 363. Paxson's Ap-money without a previous demand by the creditor; peal. Opinion by Trunkey, J.

the debtor can only relieve himself of liability by ten. [Decided May 19, 1884.)

dering payment of the debt. Where a definite time is

fixed for the payment of money the law imposes the PARTITION-LESSEE FOR YEARS-MUST HAVE NOTICE. obligation to pay damages by way of interest at the -A lease for twenty years of an exclusive right for the legal rate for the detention of the money after the sole and only purpose of mining and excavating for breach of the contract for its payment. Foote v. petroleum in one-balf of certain lots, in alternate Blanchard, 6 Allen, 221. The right to interest upon quarters, passes an interest in the land to the lessee.

money owing upon contract depends not on discretion He has an estate in the land, and not a lien merely. but upon legal right. Dana v. Fiedler, 12 N. Y. 40; Hence the lessee is not bound by an amicable parti- Adams v. Fort Plain Bank, 36 id. 255, “It is a legal tion made by a purchaser under a mortgage of the in- and uniform rate of damages, in absence of any exterest of one of the tenants in common who owned

press contract, when payment is withheld after it has said lots with the other tenants in common, which di- become the duty of the debtor to discharge the debt.” vides the land to his prejudice. See Chicago, etc.,

Minard v. Beans, 64 Penn. St. 411. If that was a dicMining Co. v. U. S. Petroleum Co., 57 Penn. St. 83;

tum we think it accords with the policy of this State. Long's Appeal, 77 id. 151; 1 Danl. Ch. 257 ; 1 Story Eq. Soon after this court decided that no judgment could Jur., $ 656. Under the statute of 32 Henry VIII, ch. bear interest from the date of the verdict on which it 32 (reported by the judges to be in force in Pennsyl

was entered, unless entered on the same date, the Legvania), no person having an interest in the land, even

islature enacted that it shall be lawful for a party in as a tenant for years, can be prejudiced by a partition whose favor a verdict may be rendered for a sum of thereof to which he is not a party. In support of the

money, after judgment thereon, to collect interest position that a person who has not a freehold interest

from the date of the verdict. Where land is taken by in the land camot be made a party in partition with

a corporation in the exercise of eminent domain, inthe owners of the fee, the plaintiffs cite McKee v.

terest should be added to the amount of damages from Straub, 2 Bimn. 1; Long's Appeal, 77 Penn. St. 151; and

the time the landowner was entitled to compensation. Mark v. Mark, 9 Watts, 410, The last two cases are

Delaware B. Co. v. Burson, 61 Penn. St. 369. Genernot in point. Mark v. Mark was decided on the ally in this country interest is looked upon as an inground that neither the widow nor the executors of a cident of the money, to be paid with the principal decedent, who was a tenant in common in his life- when the latter bas been withheld after it became the time, bad an estate in the laud. Long's Appeal ruled duty of the debtor to pay it. The conflict on this subthat a mortgagee cannot be a party in partition of ject between the English and American cases need not land owned by the mortgagor and others as tenants in be noted, nor would it profit to note some exceptional common, and that the lien of the mortgage attached

cases in this country. West Rep. Mining Co. v. Jones. to the part taken by the mortgagor in severalty. In Opinion by Trunkey, J. McKee v. Straub the decision was put on two grounds, [Decided Jan. 5, 1885. ] first, that the action had abated by the death of one of the parties; and second, that the tenants had not a freehold estate. The first was fatal. The second re

CRIMINAL LAW. ceived very brief remark, and neither counsel nor court noted the statute of 32 Henry VIII, ch. 32. Had

INDICTMENT -ALLEGATIONS-PERJURY that statute been brought to the attention of the

LAW-REGISTERS ARE JUDICIAL OFFICERS—"IMFAMcourt, instead of others which did not touch the point,

OUS CRIME.”—(1) In an indictment for perjury under the reversal might have been on the first ground alone.

the statute (Code, art. 30, $ 155) it is sufficient to Be that as it may, it seems clear that the statute was not considered, and that misconstruction thereof is maliciously and falsely.” It is not necessary to aver

charge that the traverser swore “willfully, knowingly, not demanded by the decision. Duke v. Hague. Opin- that he swore “corruptly." i Whart. Am. Cr. Law, iou by Trunkey, J.

364; State v. Elborn, 27 Md. 488; Cearfoss v. State, [Decided Oct. 6, 1884.)

42 id. 406; Parkinson v. State, 14 id. 198. (2) The Leg. SALE-ORE BY SAMPLE-RULE IN PENNSYLVANIA- islature having devolved upon the officers of registraCONTRACT ENTIRETY--DAMAGES-INTEREST.--Although tion, as well as the judges of election, the duty of exa sale by sample does not constitute a warranty inercising judgment in the discharge of their functions, Pennsylvania, a stipulation that future deliveries will their office is in its nature judicial; and the proceedequal the sample is enforceable, and it is immaterial to ing before the officer of registration is quasi judicial, determine whether such stipulation is a warranty or Bevard v. Hoffman, 18 Md. 479; Friend v. Hammill, 34 condition. Boyd v. Wilson, 83 Penn. St. 319; War- id. 314. (3) An indictment charging that the traverser, ren v. Philadelphia Coal Co., id. 437 ; Wetherill v. Neil

in answer to the questioning of an officer of registra

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tion, had falsely sworn that he had not been convicted guilty knowledge." Com. v. Sheppard, 1 Allen, 581. of an infamous crime, and had not been pardoned by | In case of murder by poisoning evidence of previous the goveruor of the State, is defective in not sufficiently acts of poisoning is admissible. Rex v. Geariug. 18 averring the offense of perjury. It should have | L. J. 215; see also King v. Wylie, 1 B. & P. 92; Reg. v. averred that the accused was convicted of some speci- | Bleasdale, 2 C. & K. 765. For the purpose of proving fic crime which was "infamous," and which subjected guilty knowledge evidence is admissible that the dehim to the constitutional disability of ever voting in fendant had previously passed similar counterfeit the State, and to the punishment for perjury coins, although indictments therefor are pending. for having falsely denied the

on oath. 1 Com. v. Stearns, 10 Metc. 256. “Although facts may
Whart. Cr. Law, SS 285, 288. (4) The statement of be pro ved not connected with the transaction consti-
the offense charged in an indictment must be clear, tuting the crime to establish guilty knowledge, yet
distinct and exact, so that the accused may be fully they are to be regarded as competent because they
informed of what he is charged with, and wherein his tend directly to prove an essential element of the
conduct has been supposed to be indictable, so that he crime, to wit: guilty knowledge of a given fact.” Per
may be able to refute it, if he can. Maguire v. State, Church, C. J., in Copperman v. People, 56 N. Y. 591.
47 Md. 486. (5) The Constitution in providing for the “Whenever the intent or guilty kvowledge of a party
exclusion from suffrage of any person convicted of an is a material ingredient in the issue of a case, then col-
"infamous crime" must be understood to have in- | lateral facts, that is, other acts and declarations of a
tended, by the language used, such crimes as were “in similar character tending to establish sucb iutent or
famous" at common law, and are described as such in knowledge, are proper evidence." Trogdon's case, 31
common-law authorities. An infamous crime" is such Gratt. 872; see also Coleman v. People, 58 N. Y. 555;
crime as involved moral turpitude,or such as rendered 23 Ohio St. 130. Such evidence is deemed admissible
the offender incompetent as a witness in court, upon whenever it is necessary to establish guilty knowledge.
the theory that a person would not commit so heinous | People v. Gray. Opinion by Morrison, J. 15 West
a crime unless he was so depraved as to be urworthy Coast Rep. 69.]
of credit. 1 Abb. Law Dict. 602, and authorities there
cited. The General Court of this State, in 2 H. &

McH. 378, defined "infamous crique" to be one which
rises at least to "the grade of felony." This is how-
ever too narrow, for perjury is a misdemeanor, but by

(E commencement exercises of the Albany Law all authority is “infamous." Maryland Ct. of App.,

School took place at the Clinton Square PresbyApril Term, 1884. State v. Bixler. Opinion by Irving,

terian Church, on the 28th inst. Orations were delivJ. [62 Md. 354.]

ered by Edward O. Woods, of Marion, S. C., on Legal

Development; Charles L. Smith, of Champaign, IlliEMBEZZLEMENT-EVIDENCE OF SIMILAR OFFENSES.- nois, on Elements of Success; and Louis W. Pratt, of In a prosecution for embezzlement of public moneys, Albany, N. Y., on Some of the Reasons why the Comevidence of similar acts of embezzlement is admissible mon-Law should not be codified. The valedictory for the purpose of showing a guilty knowledge and a was delivered by Henry L. Landon, of Troy, N. Y., criminal intent on the part of the accused. The court on the Lawyers and the Law. These exercises were should instruct the jury as to the purpose of such evi- of an unusually high order, evincing distinctive and dence, if so requested by the defense; but in the ab- shining merits. Those by Messrs Pratt and Landon sence of such a request, a failure to so instruct is not were as good as we ever heard on such an occasion. ground for a reversal. In the case at bar the avowed The address to the graduates, by Justice Judson S. object of the district attorney in introducing evidence | Landon, of Schenectady, N. Y., President pro tem. of of other acts of embezzlement of public moneys by the Union College, was an excellent production. Some of defendaut was simply to prove a guilty knowledge, its ideas were especially striking. Nothing could be and a criminal intent in the appropriation of the $700 better than "Lawyers excel not so much in the pracdescribed in the information, and there are numerous tice as in the perception of virtue." The candidates authorities holding tnat the evidence admitted is were presented by Horace E. Smith, the Dean, and the competent for that purpose. In Whart. Ev., § 46 et diplomas were conferred by Judge William L. Learned, seq., it is said that where the party's guilty knowledge of Albany, President of the board of trustees. The is involved acts of a similar nature are admissible. See following is a list of the graduating class : also Roscoe's Cr. Ev. 88, 89, 90. On an indictment for Frank M. Andrus, Roxbury; Rowley M. Barrus, receiving stolen goods evidence may be given of the Pike; Henry D. Bordan, Fort Wayne, Ind. ; Frederreceipt of soveral other stolen articles for the purpose ick E. Converse, Palmyra; Geo. F. Corts, Schodack; of proving guilty knowledge. State v. Goetz, 34 Mo. Charles E. Countryman, Albany; Loyal L. Davis, 85. So where a party is indicted for forgery and ut- Glens Falls; John F. Dorthy, Watkins; Zeb. A. Dyer, tering with a guilty knowledge a forged bill of ex- Albany; Herman C. Grupe, Schenectady; Arthur H. change, it was held that other forged bills found on the Harllee, Marion, S. C.; John Hoxie Hinkley, Bangor, prisoner might be shown in evidence. Spencer v. Me. ; Lewis E. C. Hinkley, Bangor, Me.; Frank B. Com., 2 Leigh, 751. On an indictment for an assault Hodges, Delphi; Bernard W. Hoye, Downsville; Horwith an intent to commit rape, previous assaults on ace Ketchum, Albany; Henry L. Landon, Troy; John the prosecutrix with similar intent are competent R. Langan, Albany; Horace W. Love, Rutland, Vt.; evidence. Williams v. State, 8 Humph. 585, So on George E. Lukens, Markleeville, Cal.; Job. P. Lyon, an indictment for administering sulphuric acid with Troy; John Madden, Rondout; Clement C. Martin, an attempt to kill horses, administering at different Albany; Frank L. Michael, Troy; George E. Morris, times for a like purpose, was admitted to be shown. Horseheads; John J. O'Neill, Albany; Spencer B. ParRex v. Mogg, 4 C. & P. 364. Where a person is indicted ker, Versailles; James P. Phillip, Catskill; Louis W. for maliciously shooting, Mr. Russell says that proof Pratt, Albany; Henry W. Proulty, Painesville, Ohio; may be given that the prisoner at another time inten- Solan A. Putnam, San Marcial, N. M.; Chas. M. Reed, tionally shot at the same person. On Crimes, vol. 2, Sinclairville; Ernest W. Rieck, Albany; Frank P. p. 777. “Evidence of another act of embezzlement by Schmitt, Jr., Chicago, Ill. ; Chas. L. Smith, Chamthe defendant during the same week in which that paign, Ill. ; Halbert D. Stevens, Malone; Thos. C. Sumcharged in the indictment was alleged to have been merhill, Pennsgrove, N. J.; Geo. Tiffany, Quaker committed was competent for the purpose of proving Street; Henry Trowbridge, Thomaston, Me.; Henry

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