made. June 7, 1887. Bank of Batavia v. New York, L. E. & W. R. Co. Opinion by Finch, J. FERRIES NEW YORK CITY WHAT IS A FERRY.—(1) The city of New York, owning all the ferry franchises between the city and Staten

-EXCLUSIVE RIGHT

Island, is not bound to allow a ferry to be operated by a private enterprise between the city and the island, although the terminus in the city is seven-eighths of a mile distant from the terminus of the ferry authorized by the city; it not appearing that it is necessary for the accommodation of the public. (2) A line of boats adapted to carry travellers, with their horses, vehicles and other property, running from pier 18, Hudson river, New York city, to various points on the shore of Staten Island and the New Jersey coast, and returu, the round trip making about twenty-four miles, held, to constitute a ferry between New York city and Staten Island. The distance is not so great as to preclude the idea of a ferry, and the business does not lose that character because the boats stop at points on the New Jersey as well as the Staten Island shore. June 7, 1887. Mayor, etc., of New York v. New Jersey Steamboat Transp. Co. Opinion by Earl, J.

NEGOTIABLE INSTRUMENTS - ACCOMMODATION IN

DORSER-USURY-ESTOPPEL-APPEAL-PRESUMPTION -PLEADING.-(1) In an action by the indorsee of a note against an indorser it was admitted at the trial that defendant was an accommodation indorser, and that the note had its inception on its transfer to plaintiff, and there was evidence tending to show that plaintiff, when he took the note, had notice that it was accommodation paper. Held, that defendant was not estopped to set up a defense of usury, although he executed contemporaneously with the execution of the note and a mortgage given to secure it, a certificate and affidavit, upon which plaintiff testified that he relied, stating that the note was business paper, was given for full consideration, and was subject to no defense of "want of consideration, usury, or otherwise." (2) If an order of the General Term reversing the order of the Special Term does not show that the reversal was made on the facts, it will be presumed in the Court of Appeals, upon an appeal thereto, that the reversal was upon questions of law only, although the opinion in General Term shows the contrary; and if no error in law appears in the proceedings in Special Term, the order of the General Term will be reversed and that of the Special Term affirmed. (3) The usual rule for the construction of pleadings applies as well to an answer of usury as to any other defense, and lack of precision and certainty in the answer, by which the plaintiff could not have been misled in respect to the defense intended, or as to the circumstances relied upon to support it, will be disregarded. June 7, 1887. Lewis v. Barton. Opinion by Andrews, J.

PLEADING-BILL OF PARTICULARS-ADMISSION BY GIVING CREDIT.-A. sued B., his son-in-law, on a note and running account for board and other items. B. in his answer denied any indebtedness, and pleaded a counter-claim for board, goods sold and money advanced. Plaintiff filed a reply denying the allegations in the answer. The case was referred. Each party furnished the other with a bill of particulars, and these bills were admitted in evidence without objection. The referee reported that neither party was entitled to any thing for board, because of their relationship, no agreement to pay board being proven, but directed judgment for plaintiff for amount due on other items. Held, that under the pleading a credit allowed defendant for board in plaintiff's bill of particulars was not a conclusive admission that bound him, and that the report of the referee that nothing was legally due for board should be affirmed. It is ¡mpossible to harmonize such a liability with the de

nials of the answer and reply, and therefore I think the bill of particulars must be construed to contain only a conditional or contingent admission framed to operate in a possible emergency. As no item could be proved on the trial, ordinarily, unless embraced in the bill, it became necessary to name in that every charge which upon any theory at the trial might become admissible; and so the plaintiff, while resisting the defendant's claim upon a ground equally fatal to his own, might guard against the possible failure of that resistance by pleading and itemizing his own charge for board as in excess of the defendant's, and the credit given is in connection with the charge made, and upon the theory that both charge and credit may by possibility prove to be a legal liability. The admission fairly requires to be treated as a concession of the fact that board had been furnished, but does not waive the right claimed by the denial on each side of contesting a resultant liability flowing from the fact admitted. It is as if the plaintiff had said: Board was furnished so much by me, and so much by my adversary; but I deny that either, for a reason which affects both, is a legal charge; yet if mine is allowed, it amounts to so much, and I will prove it at that, while my adversary's is the less sum, which in that event I admit." If this was hypothetical pleading, or the theories were in one view inconsistent, it is further to be observed that no objection was made upon the trial in any manner raising the question. The trial went from its beginning to its end, upon an assumption that the question of legal liability for board was an open one on each side; and if defendant held the contrary, he should have objected to the evidence offered to defeat his claim and relied upon the alleged admission. The attention of the referee would then have been called to it, and he could have ruled upon it, and possibly the plaintiff might then have sought leave to ameud, and obtained permission to strike out the credit as made under a mistake as to its effect and construction. A bill of particulars, like a pleading, may be amended. Melvin v. Wood, 42 N. Y. 533. And when the amendment sought is to strike out what is unessential to the bill, and a needless addition, leaving the plaintiff's side of the account unchanged, it would seem quite possible to permit it. It is not the office of a bill of particulars to furnish a defendant with facts whereon to found an affirmative defense in his behalf. Drake v. Thayer, 5 Rob. (N. Y.) 694. A plaintiff is not bound to furnish a statement of payments or offsets which he has voluntarily credited. Ryckman v. Haight, 15 Johns. 222; Williams v.Shaw, 4 Abb. Pr. 209. Where he has done so in such manner as by mistake to have periled his right, or made ambiguous hls meaning, an amendment allowed would not be an unwarranted discretion. But in this case the defendant went to judgment without once relying upon the alleged admission, or drawing attention to it. He sees the evidence which defeats it offered and given in silence; and not until the decision is made, when opportunity for amendment is gone, does he raise the point. We think that is too late, and furnishes no just ground for a reversal of the conclusion reached. June 7, 1887. Case v. Pharis. Opinion by Finch, J. SALE-ACCEPTANCE-WARRANTY.-The fact that a purchaser of goods manufactured on his order, while refusing to pay for them on the ground that they did not correspond with his order, refused to give them up before taking advice as to his rights in the premises, does not as a matter of law show an acceptance of the goods under the contract so as to render him liable for the contract price. The defendant is entitled to have the jury determine-First, whether his refusal to return the goods was absolute, or merely a tentative proceeding; and second, whether his contract did not entitle him to retain the goods, although

not conforming to the agreement, and claim damages for breach of warranty. June 7, 1887. Norton v. Dreyfuss. Opinion per Curiam.

WATER AND WATER-COURSES-DIVERSION OF SPRING -DAMAGES- TRIAL — OBJECTION — LIMITATION.—(1) The diversion of the water of a spring from its natural ohannel, whereby plaintiff's intestate was deprived of

its use for his tauuery, held, a ligal injury, for which he was entitled to compensation in damages. (2) For the diversion of the waters of a spring the measure of damages is the diminished rental value of the tannery premises for the purposes of that business during the period of diversion, and it is no objection to granting such damages that the plaintiff did not demand them in his complaint, or that he mistook the precise damages to which he was entitled. (3) The burden of proving in such action that the plaintiff's intestate neglected to take measures to supply himself with water for use in his tannery from other sources, and by such neglect increased his damages, is upon the defendant. (4) The objection that plaintiff is confined to a recovery of the exact damages specified in his bill of particulars should be raised when he offers evidence on the question of damages, and the court is not bound to entertain it on motion for nonsuit. (5) An action to recover damages for the wrongful diversion of the waters of a spring which supplied plaintiff's tannery, being one for a continuing injury, is not barred by the six years' limitation, except as to the damages accrued more than six years prior to the commencement of the action, and the further extension allowed executors and administrators. Arnold v. Hudson R. R. Co., 55 N. Y. 661; Waggoner v. Jermaine, 3 Denio, 306; Uline v. New York Cent. & H. R. R. Co., 101 N. Y. 98; Bare v. Hoffman, 79 Penn. St. 71: Thayer v. Brooks, 17 Ohio, 489. May 3, 1887. Colrick v. Swinburne. Opinion by Andrews, J.

UNITED STATES SUPREME COURT ABSTRACT.

ASSAULT AND PATTERY STRUGGLE FOR POSSESS'ON OF RAILROAD — DAMAGES.- (1) Plaintiff, in an action to recover damages for injuries to his person, was the employee of a railroad company in actual and peaceable possession of a line of railroad. The defendant railroad company, with an armed body of men, attempted to drive away the agents and servants of the former company, and in the attempt plaintiff received his injuries. Plaintiff had armed to protect himself and the property of which he and his coemployees were in possession. Held, that the defendant railroad company was liable, without reference to the question of legal title or right of possession. It was a demonstration of force and violence, that disturbed the peace of the entire country along the line of the railway, and involved the safety and lives of many human beings. It is a plain case, on the proof, of a corporation taking the law into its own hands, and by force and the commission of a breach of the peace, determining the question of the right to the possession of a public highway established primarily for the convenience of the people. The courts of the territory were open for the redress of any wrongs that had been, or were being committed against the defendant by the other company. If an appeal to the law, for the determination of the dispute as to the right of possession, would have involved some delay, that was no reason for the employment of force, least of all, for the use of violent means under circumstances imperiling the peace of the community and the lives of citizens. To such delays all, whether individuals or corporations, must submit, whatever may be the tem

porary inconvenience resulting therefrom. We need scarcely suggest that this duty, in a particular sense, rests upon corporations, which keep in their employment large bodies of men, whose support depends upon their ready obedience of the orders of their superior officers, and who being organized for the accomplishment of illegal purposes, may endanger the public peace, as well as the personal safety and the property of others beside those immediately concerned in their movements. (2) A corporation is liable for all torts committed by its servants and agents, by authority of the corporation, express or implied. In the court held that a railroad corporation was responPhiladelphia, W. & B. R. Co. v. Quigley, 21 How. 207, sible for the publication by them of a libel. The court, upon a full review of the authorities, held it to be the result of the cases "that for acts done by the agents of a corporation, either in contractu or in delicto, in the course of its business and of their employment, the corporation is responsible as an individual is responsible under similar ciscumstances." In State v. Morris & E. R. Co., 23 N. J. Law, 369, it was well said that, "if a corporation has itself no bands with which to strike, it may employ the hands of others; and it authorities, that a corporation is liable civiliter for all is now perfectly well settled, contrary to the ancient torts committed by its servants or agents by authority of the corporation, express or implied. * * * The result of the modern cases is that a corporation is liable civiliter for torts committed by its servants or agents precisely as a natural person; and that it is liable as a natural person for the acts of its agents done by its authority, express or implied, though there be neither a written appointment under seal, nor a vote of their corporation constituting the agency or authorizing the act." See also Salt Lake City v. Hollister 118 U. S. 256, 260; New Jersey Steam-boat Co. v. Brackett, 7 Sup. Ct. Rep'r, 1039 (present term); National Bank v. Graham, 100 U. S. 699, 702. (3) One who while in the employ of a railroad company in peaceable possession of a line of railroad is injured by the agents of another company, who are the governing officers of the company, in the latter's attempt to gain possession of the road, may recover punitive damages from the latter company, if the said agents acted with bad intent, and in pursuance of an unlawful purpose to forcibly take possession of the road, and in doing so caused the injury complained of. The right of the jury in some cases to award exemplary or punitive damages is no longer an open question in this court. In Day v. Woodworth, 13 How. 371, which was an action of trespass for tearing down and de. stroying a mill-dam, this court said that in all actions of trespass, and all actions on the case for torts, "a jury may inflict what are called exemplary, punitive, or vindictive damages upon a defendant, having in view the enormity of his offense rather than the measure of compensation to the plaintiff;" and that such exemplary damages were allowable "in actions of trespass where the injury has been wanton or malicious, or gross or outrageous." The general rule was recognized and enforced in Philadelphia, W. & B. R. Co. v. Quigley, which as we have seen was an action to recover damages against a corporation for libel; in the latter case the court observing that the malice spoken of in the rule announced in Day v. Woodworth was not merely the doing of an unlawful or injurious act, but the act complained of must have been conceived "in the spirit of mischief, or of criminal indifference to civil obligations.' See also Milwaukee, etc., R. Co. v. Arms, 91 U. S. 492; Missouri Pac. Ry. Co. v. Humes, 115 id. 512, 521; Barry v. Edmunds, 116 id. 550, 562, 563. The doctrine of punitive damages should certainly apply to a case like this, where a corporation, by its controlling officers, wantonly disturbed

the peace of the community, and by the use of violent means endangered the lives of citizens in order to maintain rights for the vindication of which, if they❘ existed, an appeal should have been made to the judicial tribunals of the country. May 27, 1882. Denver & R. G. Ry. Co. v. Harris. Opinion by Harlan, J. ASSIGNMENT FOR CREDITORS MORTGAGE-RETENTION OF POSSESSION PREFERENCES- PAYMENT OF

LOANS. (1) An insolvent debtor, just before he made and recorded his general assignment, executed and recorded a mortgage of certain real estate included in the assignment, in which he secured sureties on his note. Until default, the debtor was to remain in possession of the real estate conveyed. Held, that the assignment was not rendered invalid by the reservation of the possession of the land mortgaged to the debtor. (2) In Mississippi a general assignment by an insolvent debtor is not invalid because it contains preferences. (3) The fact that during the period immediately preceding the assignment which the insolvent debtor knew was impending, and for which he was getting ready, he paid money to his wife in settlement of a bona fide loan which she had made him, does not impair the subsequent assignment. But as counsel well observes, if that payment were fraudulent, it would not vitiate a subsequent assignment. A fraudulent disposition of property does not of itself impair a subsequent general assignment. The assignee may sue for its recovery, and if successful, it will be for the benefit of the creditors precisely as if it had been included in the assignment. Wilson v. Berg, 88 Penn. St. 167; Reinhard v. Bank of Kentucky, 6 B. Mon. 252. (4) The insolvent debtor kept a store, from which it was customary for his residence to draw its supplies. His wife was one of his clerks, and she was privileged to take money from the cash drawer in the course of business. Held, that the continuance of these things during the time immediately preceding the assignment did not operate to invalidate it. May 27, 1887. Estes v. Gunter. Opinion by Field, J.

NEGLIGENCE

CARRIER JOINT ENTERPRISE.Four steam-boats, owned by four separate transportation companies, were placed by their owners, or were permitted by their owners to be placed, before the public as being engaged in the same trade, and as constituting together the "Kountz Line," with a common agent called the "Kountz Line" corporation, which was invested with unlimited authority in their general management, and in respect to rates of transportation. No contracts were made for transportation in the respective corporate names of the transportation companies, but the Kountz Line corporation, as their common agent, was empowered or permitted to do business for them, using in the agent's discretion, when making contracts, either the name of the Kountz Line or the names of the respective boats of the line. Held, that the several transportation companies, having held themselves out as united in a joint enterprise, were jointly liable for the default or negligence of those placed in charge of any of the boats, and that the fact that the transportation companies owned no property in common, and that each was entitled to receive the net earnings of its own boat was immaterial. It is not claimed that the four transportation companies, organized in 1872, can be held jointly liable for the loss of the produce and merchandise shipped on the Yeager by reason of their being in fact partners, having a right to participate in the profits of the business conducted by and in the name of the "Kountz Line." They did not share, or agree to share the profits, or to divide the losses of that business as a unit. On the other hand, it is not disputed that according to wellsettled principles of law, a person not a partner or joint trader may, under some circumstances, be held

liable as if he were, in fact, a partner or joint trader. "Where the parties are not in reality partners," says Story, “but are held out to the world as such in transactions affecting third persons," they will be held to be partners as to such persons. Story Partn. $64. And in Gow on Partnership, 4, it is laid down as an undeniable proposition that " persons appearing ostensibly as joint traders are to be recognized and treated as partners, whatever may be the nature of the agreement under which they act, or whatever motive or inducement may prompt them to such an exhibition." And so it was adjudged in Waugh v. Carver, 2 H. Bl. 235-246, where it was said by Lord Chief Justice Eyre, that if one will lend his name as a partner he becomes, as against all the world, a partner, "not upon the ground of the real transaction between them, but upon principles of general policy, to prevent the frauds to which creditors would be liable." We do not mean to say that such liability exists in every case where the person sought to be charged holds himself out as a partner or joint trader with others. The qualifications of the general rule are recognized in Thompson v. First Nat. Bank of Toledo, 111 U. S. 529, where it was held, upon full consideration, that "a person who is not in fact a partner, who has no interest in the business of the partnership. and does not share in its profits, and is sought to be charged for its debts because of having held himself out, or permitted himself to be held out as a partner, cannot be made liable upon contracts of the partnership except with those who have contracted with the partnership upon the faith of such partnership." At the same time the court observed that there may be cases in which the holding out has been so public aud so long continued as to justify the inference, as matter of fact, that one dealing with the partnership knew it and relied upon it, without direct testimony to that effect. As there is no evidence of any direct representation by these transportation companies, or any of them, to the shipper of the cargo in question, as to their relations in business with each other, or as to their relations respectively with the Kountz Line corporation, or the Kountz Line, the inquiry in this case must be whether they so conducted themselves, with reference to the general public, as to induce a shipper, acting with reasonable caution, to believe that they had formed a combination in the nature of a partnership, or were engaged as joint traders under the name of the Kountz Line. In our judgment, this question must be answered in the affirmative. It could not, we think, be otherwise answered, consistently with the inferences which the facts reasonably justify. May 23, 1887. Sun Mut. Ins. Co. of New Orleans v. Kountz Line. Opinion by Harlan, J.

PLEADING AND

SALE BREACH OF WARRANTY PROOF -SCIENTER EVIDENCE. (1) Where, in an action to recover damages for the sale to one of county bonds purporting to be genuine and valid, but which turned out to be worthless, the plaintiff in his complaint makes out a case of tort for the breach of an express warranty in the sale of the bonds, he is entitled to recover if he establishes the breach of warranty, without proving a scienter, though the complaint contains every allegation essential to support an action for deceit. (2) Where, in an action for a breach of an express warranty in the sale of county bonds, as to their genuineness, the evidence tends to show that the defendant expressly affirmed the regularity and validity of the bonds, the question of warranty should go to the jury. The bill of exceptions states that the evidence, in behalf of the plaintiff, tended to show, that although the defendant knew or had reason to suspect, when the bonds were sold, that they were not genuine and valid, he "expressly affirmed their regularity and

validity." These words may not necessarily import an express warranty. But no particular phraseology or form of words is necessary to create a warranty of that character. As was held by the Court of Appeals of Maryland in Osgood v. Lewis, 2 Har. & G. 495, 518, "an affirmation of the quality or condition of the thing sold (not uttered as matter of opinion or belief), made by the seller at the time of the sale, for the purpose of assuring the buyer of the truth of the facts affirmed, and inducing him to make the purchase, if so received and relied on by the purchaser, is an express warranty. And in case of oral contracts, on the existence of these necessary ingredients to such a warranty, it is the province of the jury to decide, upon considering all the circumstances attending the transaction." To the same effect are Henshaw v. Robins, 9 Metc. 83, 88; Oneida, etc., v. Lawrence, 4 Cow. 442; Cook v. Moseley, 13 Wend. 278; Chapman v. Murch, 19 Johns. 290; Hawkins v. Berry, 5 Gil. 36; McGregor v. Penn, 9 Yerg. 76, 77; Otts v. Alderson, 10 Sm. & M. 476. In Schuchardt v. Allens, 1 Wall. 359, 368, which was an action on the case for a false warranty on the sale of certain goods (the declaration also containing a count for deceit), the court said that it was now well settled, both in English and American jurisprudence, that either case or assumpsit would lie for a false warranty, and that, "whether the declaration be in assumpsit or tort, it need not aver a scienter; and if the averment be made, it need not be proved." It was also said that, "if the declaration be in tort, counts for deceit may be added to the special counts, and a recovery may be had for the false warranty or for the deceit, according to the proof. Either will sustain the action." See also Dushane v. Benedict, 120 U. S. 636. In 1 Chit. Pl. 137, the author says that case or assumpsit may be supported for a false warranty on the sale of goods, and that, in an action upon the case in tort for a breach of a warranty of goods, the scienter need not be laid in the declaration, nor if charged, could it be proved." In Lassiter v. Ward, 11 Ired. 444, Ruffin, C. J., citing Stuart v. Wilkins, 1 Doug. 18, and Williamson v. Allison, 2 East, 446, said: "It was accordingly there held that the declaration might be in tort, without alleging a scienter, and if it be alleged in addition to the warranty, that it need not be proved. The doctrine of the case is, that when there is a warranty, that is the gist of the action, and that it is only when there is no warranty that a scienter need be alleged or proved. It is nearly a half century since the decision, and during that period the point has been considered at rest, and many actions have been brought in tort as well as ex contractu on false warranties." And so in House v. Fort, 4 Blackf. 293, 294, it was said that "the breach of an express warranty is of itself a valid ground of action, whether the suit be founded on tort or on contract; and that in the action on tort, the forms of the declaration are that the defendant falsely and fraudulently warranted, etc., but the words falsely and fraudulently, in such cases, are considered as only matters of form." But as to the scienter the court said "that is not necessary to be laid, when there is a warranty, though the action be in tort; or if the scienter be laid, in such a case there is no necessity of proving it." See also Hillman v. Wilcox, 30 Me. 170; Osgood v. Lewis, 2 Har. & G. 495, 520; Trice v. Cockran, 8 Grat. 450; Gresham v. Postan, 2 Car. & P. 540. May 27, 1887. Shippen v. Bowen. Opinion by Harlan, J.

ABSTRACTS OF VARIOUS RECENT DECISIONS.

MUNICIPAL CORPORATIONS-DEFECTIVE STREETSLIABILITY.-Although it is the duty of incorporated

towns and cities to keep their streets in repair, yet if no statute, expressly or by implication, makes them liable to a private action by an injured party for damages sustained by reason of a failure to discharge the duty, they are not liable. Upon this question the authorities are not agreed, and differ as to where the weight of authority lies. But while they differ in this respect, they are almost unanimous in holding that an action cannot be maintained against counties or parishes, unless authorized by statute, for damages sustained through their neglect to keep their bridges and highways in repair, although the duty of doing so is clearly enjoined upon them by law, and they have authority to collect taxes or make adequate assessments for that purpose. It was so held by this court in Granger v. Pulaski Co., 26 Ark. 37. The reason of

this rule is that they are a part of the State government, and their functions are wholly of a public nature, and their creation a matter of public convenience and governmental necessity. The reason for the application being the same it is difficult to understand why this rule does not apply and should not be enforced as to incorporated towns and cities in respect to streets; for like counties, they are a part of the machinery of the State, and are its auxiliaries in the important business of municipal rule and internal administration, and their functions are almost wholly of a public nature. Like counties, their functions, rights and privileges are under the control of the Legislature, and may be changed, modified or repealed, as a general rule, as the exigencies of the public service or the public welfare demand. Like counties, they can sustain no right or privilege, or their existence, upon any thing like a contract between them and the State, because there is not, and cannot be, any reciprocity of stipulation, and their objects and duties are wholly incompatible with every thing of the nature of a compact. The duty of keeping in repair the public highways in their respective limits is imposed on both for the benefit of the public, without any consideration or emolument received by either. Before the incorporation of the town or city, the county was charged with the duty of keeping its highways in repair. When the town or city becomes incorporated, that duty is transferred to the town or city-from one governmental agency to another. The object, purpose, reason and character of the duty are the same in both cases. This being true, there can be no reason why the town or city shall be any more liable to a private action for neglect to perform this duty than the county previously was, unless the statute transferring the duty clearly manifests an intention in the Legislature to impose this liability.

Young v. City CounWe think the streets

cil of Charleston, 20 S. C., 119. of a town or city, like all other roads, are public highways; that the duty of keeping them in repair is a duty to the public, not to private individuals; and that no civil action arises from an injury resulting from a neglect to keep them in repair. In the absence of a statute, there is no difference between the liability of an incorporated town or city and a county in such cases. Such distinction would be contrary to every principle of fairness, reason and justice. We are sustained in our view by the following, among other, authorities: Hill v. Boston, 122 Mass. 357; Detroit v. Blakeby, 21 Mich. 106; Young v. Charleston, 20 S. C. 116; Navasota v. Pearce, 46 Tex. 525; Pray v. Jersey City, 32 N. J. L. 394; Winbigler v. Los Angeles, 45 Cal. 36; Oliver v. Worcester, 102 Mass. 499; Mower v. Leicester, 9 id. 250; Mitchell v. Rockland, 52 Me. 123: Hyde v. Jamaica, 27 Vt. 443; Detroit v. Putnam, 45 Mich. 265; French v. City of Boston, 129 Mass. 592. In the first four cases named the question is so fully and ably discussed, and the English and American authorities so fully and satisfactorily reviewed, that it would