were, by its charter, in general terms, exempted from taxation; it was held, that this exemption only extended to such real estate as was held for the purposes of the corporation, and did not include other lands or property. See also, State v. Mansfield, 3 Zab. 512; Burrows on Taxation, 130-136; Trustees of Good Shepherd v. Boston, 120 Mass. 212; Detroit v. Mayor, 3 Mich. 172. Indeed, such must necessarily be the case.

The statute under which the plaintiff holds its charter, as already cited, gives it capacity "to acquire, hold, enjoy, dispose of and convey all property, real or personal, they may acquire by purchase, donation or otherwise, for the purpose of carrying out the intention of such society or association, but they shall not acquire or hold property for any other purpose."

While we do not intend to suggest a doubt of the right of this corporation to accept this munificent donation of Mr. Case, the property being an entirety and suitable for its purpose, yet we think it clear, that as to so much of this building and grounds, not necessary for its use, which is rented out, should not be exempted from its equal share of taxation.

It may be said, that the entire building may become necessary for the objects of the association. When this shall become the case, and the entire building or any additional parts are so used, the parts thus withdrawn from renting, cease to be leased or otherwise used with a view to profit, and fall within the exemption.

The fact that the building is so constructed that the parts leased or otherwise used with a view to profit cannot be separated from the residue by definite lines, is no obstacle to a valuation of such parts for purposes of taxation, having due reference to the taxable value of the entire property.

Remanded for further proceedings in accordance with this decision.

[This case will appear in 36 Ohio St.]

SUPREME COURT OF OHIO.

CYRUS S. KOONS,

v.

THE STATE OF OHIO.

1. The genuineness of a writing was in controversy in a cause, and an expert, called as a witness, stated, in connection with his opinion, which opinion was material upon the matters so in controversy, certain facts upon which the opinion was founded, and the court afterward excluded from the consideration of the jury such facts, but refused to exclude the opinion. Held, that this was

error.

2. On the trial of a party charged with uttering and publishing a check as true and genuine, an expert was called for the State, who had seen the alleged forged check several months previously, and to whom a genuine signature of the accused was shown on such trial. Held, that the State being unable to produce such check, the presence of such check on the trial was not indispensable to the competency of the witness to testify to the fact that the check and signature were in the same handwriting.

3. Where, on the trial of one charged with uttering a forged check, signed “John B. Brown," an expert in handwriting who had seen the check several months prevlously, but had never seen the accused write, and was not acquainted with his handwriting, was called as witness, and a genuine signature of the accused, "C. S.

Koons," was exhibited to him, which furnished the only knowledge he had of the handwriting of the accused, Held, that before the witness should be allowed to give his opinion to the jury as to whether the check and signature were written by the same person, it ought to appear to the court, from an examination of the witness, that the signature of the accused constituted a sufficient basis upon which the witness could form an opinion__whether the check was in the handwriting of the accused.

Error to the Court of Common Pleas of Athens County. At the June term, 1880, of the Court of Common Pleas of Athens County, the grand jury returned into court an indictment, which they found against Cyrus S. Koons, charging him, in the first count, with having forged a check in the preceding March, and in the second count, with uttering and publishing, as true and genuine, a check, knowing the same to have been forged, the latter offense also being alleged to have been committed in the preceding March. The defendant pleaded not guilty, and, at the same term, was placed on trial. The verdict was that Koons was not guilty as charged in the first count, but that he was guilty as charged in the second count of the indictment. A motion for a new trial having been overruled, Koons was sentenced to the penitentiary for the term of five years.

The forged check as set forth in the indictment was in these words and figures:

"ATHENS, OHIO, March 15, 1880. "Bank of Athens, pay to J. B. Ellis or bearer. five hundred and forty dollars.

JOHN B. BROWN."

On the trial several bills of exception were taken. In one of these it is stated that the State called James D. Brown as a witness, who testified that he was a banker, skilled in the comparison and examination of handwritings; that he was then cashier and manager of the Bank of Athens; that he was present in the bank on March 31, 1880, when Koons presented the above mentioned check for payment; that he was familiar with the genuine signature of John B. Brown, and that, in his opinion, the signature on said check was not the genuine signature of John B. Brown. The check was handed back to Koons and the witness had not seen it since: The check was not produced in court. The witness further stated that he had no knowledge or acquaintance with the handwriting in the alleged forged check,and that he never saw the defendant write, nor was he familiar with his handwriting. Thereupon a promissory note in the fo lowing words and figures was shown to the witness: "$43.59. June 20, 1874. "One day after date I promise to pay Patterson & Curfman, or bearer, the sum of forty-three dollars and 59 cts. with eight per cent., for value received.

C. S. KOONS."

The defendant admitted that the signature "C. S. Koons" was written by him, and the prosecuting attorney admitted that the filling up of said note was not written by said Koons. The witness said he had never seen said signature of said Koons, nor any other signature of his until that day. The prosecuting attorney then said to the witness: "Look at the signature C. S. Koons,' in this note, and say if the handwriting of the check signed John B. Brown, and presented to you March 31, was the same as this signature." The defendant objected to the question, the court overruled the objection, and the witness answered: "The signature to this note, 'C. S. Koons,' has a similarity to the handwriting of the check." The defendant moved the court to rule out the answer, but the court refused to do so, and permitted the same to go to the jury. And the defendant excepted to

the ruling of the court both in permitting the question to be answered and in refusing to rule out the answer. The prosecuting attorney further asked the witness: "State whether or not, in your opinion, the signature to the note, and handwriting and signature to the check are in the same handwriting ?" To this question the defendant objected, but the court overruled the objection and the defendant excepted. The witness answered: "I should think they probably were." And the witness further said. "My remembrance of the check, and my examination of certain other papers brought to me by Mr. Wolf since the check was presented, makes me think so." The defendant objecting, the court ruled out the following: "My remembrance of the check, and my examination of certain other papers brought to me by Mr. Wolf since the check was presented, makes me think so." The defendant objected to the ruling out of those words unless the whole answer of the witness should be ruled out. but the court overruled the objection and the defendant excepted.

Further, to maintain the issue the State called R. H. Stewart, who testified that he was an expert in the examination of handwriting, and was a clerk in the Bank of Athens when the alleged forged check was presented, and examined it; that he did not recognize the handwriting, but was sure the signature, John B. Brown, was not genuine ; that he had never seen the defendant write, nor had he seen the signature of C. S. Koons until then, nor had he seen the alleged forged check since March 31. And thereupon the above-mentioned note to Patterson & Curfman was shown to the witness, and, against the objection of the defendant, the court permitted the witness to state that there was a similarity between the handwriting in said check, and the signaine "C· S. Koons," to the note; and, over like objection of the defendant, the witness was allowed to state that in his opinion the forged check and the signature "C. S. Koons, were probably in the same handwriting." The defendant asked the court to rule out and exclude said testimony of Stewart, but the court refused, and permitted the same to go to the jury, and the defendant excepted.

In the motion for a new trial, which was overruled, the admission of the testimony of Brown and Stewart were assigned as ground for the motion, and it was further assigned as ground for such new trial, in the same motion, and the truth of which was shown, that the sheriff of the county and his deputy had given evidence material for the State on the trial of the cause, and that during the deliberations of the jury, in the room where they were considering of their verdict, the sheriff was present a considerable portion, and the deputy the remaining portion of the time. It appeared that the room was a hall, sixty by eighty feet, but it does not appear whether the sheriff or his deputy heard the deliberations of the jury, nor does it appear that the jury were under any restraint in their deliberations, by reason of the presence of those witnesses. On motion, leave was given to file, in this court, a petition in error to reverse the aforesaid judgment. Grosvenor & Jones, for plaintig in error. Emmet Thompson, prosecuting attorney, for the State.

OKEY, J.

Whatever uncertainty there was in the law of England as to the proof of handwriting by comparison, was removed by the statute 17 and 18 Vict. c. 125, s. 27; 28 Vict. c. 18, s. 8. The only question there is as to the proper construction of those statutes. They provide, in substance, that comparison of a disputed handwriting with

any writing proved to the satisfaction of the judge to be genuine, is permitted to be made by witnesses, and such writings and the evidence of witnesses respecting the same may be submitted to any court and jury, as evidence of the genuineness or otherwise of the writing in dis pute. In this State, independently of statute, it has been settled that standards of comparison may be used by experts called as witnesses upon the trial of an issue as to the genuineness of a signature, yet the standard of comparison, when not already a paper in the case, or admitted to be genuine, must be clearly proved by persons who testify directly to its having been written by the party. Bragg . Colwell, 19 Ohio St. 407; Pavey v. Pavey, 30 Ohio St. 600. Evidence of this character is received with caution, and there is a very general disposition in the courts to regard such testimony, as a general rule, of a weak and unsatisfactory character. Still the admissibility of such evidence is for the court, its weight for the jury. Nevertheless, to render it admissible it is quite clear that all the facts upon which the expert forms his opinion should be before the court and jury, to the end that they should determine, as far as they may be aole to do so, whether the opinion given is well founded, and so that the opposing counsel may have an opportunity to crossexamine as to such facts. Here, after the witness Brown had been inquired of, whether the signature to a certain note and the writing in the check alleged to have been forged were in the same handwriting, and he had ananswered, "I should think they probably were," and had added, in answer to the same question, "My remembrance of the check and my examination of certain other papers brought to me by Mr. Wolf since the check was presented makes me think so;" the court excluded the latter part of the answer, which was the predicate of his opinion, but refused to exclude the first portion of the answer, in which he states his conclusion. We are all of opinion that in so holding, the court below erred. The court and jury were, as I have said, entitled to consider the grounds of the opinion, and the defendant's counsel clearly had a right to cross-examine the witness as to such ground of belief.

In so holding, however, we do not hold the witness was precluded from giving an opinion, on the ground that the check was not produced at the trial. Where the counsel for the State have endeavored to obtain the alleged forged instrument, and failed, its absence can have no other effect on the trial than to render a conviction more difficult.

The court also erred in admitting the testimony of Stewart. That witness testified that he was an expert in the examination of handwriting and had examined the alleged forged check when it was presented at the bank; that he did not recognize the handwriting, but was sure that the signature to it was not that of John B. Brown; that he had never seen the defendant write, nor had he seen the signature of C. S. Koons until now, nor had he seen the alleged forged check since March 31. The note to Patterson & Curfman, mentioned in the statement of the case, was then shown to the witness, and he was permitted to state that the forged check and the signature to the note "were probably in the same handwriting." Now, in the opinion of a majority of the court, the witness had not qualified to express the opinion so given. It inust appear, before such opinion is called for, that the witness has formed, or is then able to form, an opinion upon the matter in question. No such qualification appears anywhere in this record, and in the absence of it we hold that the opinion given was improperly received.

In view of the fact that the judgment must be reversed, and the cause remanded for a new trial, for the reasons stated, it is unnecessary to determine whether the act of the sheriff and his deputy, who had testified in the cause on behalf of the State, in remaining in the room where the jury was deliberating, affords of itself ground for reversal. But we all unite in condemning such acts. The jury should be left free to consider the case and find their verdict unrestrained by the presence of any person, and especially the presence of those who testified as witnesses in the cause, and upon whose testimony the jury might desire to comment.

Judgment reversed.

[This case will appear in 36 O. S.]

SUPREME COURT OF OHIO.

THE LAKE SHORE & MICHIGAN SOUTHern RailWAY COMPANY.

V.

PETER LAVALLEY.

1. In an action brought by an employee of a railroad company against it, to recover for injury sustained while in the discharge of his duty, the negligence charged was the moving of a car under which the plaintiff was working, without notice or warning. The proof showed that the negligence in not giving notice or warning of the moving of the car was attributable to the foreman under whose control the plaintiff was working and not to those engaged in moving the car.

Held, that the case was not one of a failure of proof under section 133 of the Code, but, at most, of variance under sections 131 and 132.

2. It is the duty of a railroad company to make such regulations or provisions for the safety of its employees as will afford them reasonable protection against the dangers incident to the performance of their respective duties.

3. A foreman was put in charge of a set of hands, whose business it was to repair freight cars while standing on the track, in the yard of the company in which trains were accustomed to be made up; it was also the duty of the foreman to participate with the hands in doing the work. While the foreman and a hand were engaged in repairing a car, and the latter was at work under the car by the order of the foreman, he was injured by the striking of the car on which he was working by another car moving on the same track. Held:

1. That the hand was the subordinate of the foreman, in respect to the work in which he was engaged at the time he was injured.

2. That it was the duty of the foreman, in putting the hand to work under the car, to use reasonable care to protect him, while thus engaged, from the danger arising from the switching of cars and the making up of trains on the same track; and for an injury resulting from the want of such care, the company is liable.

Error to the District Court of Lucas County.

The cause of action against the defendant below, as alleged by the plaintiff below in his petition, is in substance this:

That the plaintiff, an employee of the defendant, in the performance of his duty and in the pursuance of the order of his superiors in such service, was under a car making certain repairs; that it was the duty of defendant, by its agents, to prevent a starting or moving of said car and otherwise to protect plaintiff from danger while so working under said car; and that defendant negligently and wrongfully, by its agents and servants, without any notice or warning to plaintiff, put and continued said car in motion, whereby plaintiff received the injuries complained of.

The answer in substance denies each of these allegations.

The facts of the case, as shown by the testimony set

out, in the bill of exceptions, are, in substance, as follows:

Lavalley had been employed for nearly three years as a repairer, on the track, of crippled freight cars, at the stock yards of the Lake Shore & Michigan Southern Railway Company, on the east side of the Maumee river, and about three weeks before he was hurt was transferred to the freight yards at the Air Line Junction, on the west side of the river, to do the same kind of work there. This work consisted of an examination of all freight cars on their arrival, and to repair those he found needing such repairs as could be made on the tracks in the yard. The repair gang consisted of Fox, the foreman, Lavalley and Clark, repairers, and two other men called oilers. It was customary for these men, including Fox, to go out separately and examine the cars in the trains on their arrival. If they found a car needing such repairs as they could make alone, they repaired it; but if they could not make the repairs alone any two of them would go and do the work together. Engines and train men were at work about these yards at all times, engaged in switching cars and making up trains; and in the prosecution of their work it was also customary for these repair men, when alone, and they had to be under a car, to look out for themselves that the car would not be moved; but when two were together it was expected that the one not under the car would watch for the other, and this would be the case whether Fox and one of his men, or two of the men, worked together. At this time the only means the men engaged in switching about the yards had of knowing that a car repairer was at work in any particular locality was by these men telling them when and where they were going to repair a car.

Afterwards signal flags were used to designate cars that were being repaired.

On the day Lavalley was injured, Fox directed Lavalley to pick out a bolt and go with him to repair a car he had found there needing a bolt which would require two men to put in. Fox also picked up another bolt and went. with Lavalley to a crippled box freight car. The two worked together in taking out a broken bolt and replacing a new bolt through the floor and in the draw part of the car. While Fox was under the car screwing on the nut he directed Lavalley to take the other bolt and go to another box car, which he pointed out near by, and commence the work of driving out a similar broken bolt and putting in the new one. Lavalley did so, and went under the car for the purpose of driving the old bolt 6ut through the sill and floor of the car. Fox then came over and jumped into this car to assist in completing the work, but not finding the new bolt to be put bacl:, asked Lavalley to hand it to him. Lavalley came out from under the car, picked up the new bolt, took off the nut, handed the bolt to Fox, and then returned to his plac under the car to screw on the nut after Fox had driven the new bolt down. While Fox was driving the bolt down and Lavalley was putting on the nut, a pony engine, engaged in making up a train, set some cars in motion on this track in such a manner as to cause this car to be moved about half its length, and thereby inflict upon Lavalley the injury complained of.

Neither Fox nor any of his men had any control over the men engaged in making up trains; nor was there any negligence chargeable to the latter in respect to causing the injury in question.

The trial resulted in a verdict and judgment for the plaintiff below.

On error, the judgment was affirmed by the district court; and the present proceeding in error is prosecuted

We insist that the allegation of the claim, to which the proof was directed, being unproven, not in some particular or particulars only, but in its general scope and meaning, it is not to be deemed a case of variance within sections 5294 and 5295 of the revised statutes, but a failure of proof. Section 5296 of revised statutes (1⁄2 133, also 131 and 132 of code; S. & C. 989). Dean v. Yates, 22 Ohio St. 388, par. 2 page 396; also, Hill v. Supervisor, &c., 10 Ohio St. 621, and Thatcher v. Heisey, 21 Ohio St. 668.

It is a rule of law now well established in Ohio, that where one servant of a railway company is injured in consequence of the neglect of another servant, between, whom, for the time being, no relation of subordinate and superior, in connection with the particular act of negligence complained of exists, the injured party has no right of action against the company. Little Miami R. R. Co. v. Stevens, 20 Ohio, 415; C. C. & C. R. R. Co. v. Keary, 3 Ohio St. 201; Mad River & L. E. R. R. Co. v. Barber, 5 Ohio St. 541; Whaalan v. Mad River & L. E. R. R. Co., 8 Ohio St. 249; Manville v. C. & T. R. R. Co., 11 Ohio St. 417; Pittsburg, F. W. & C. R'y Co. v. Devinney, 17 Ohio St. 197.

And the question in this issue is whether there existed, at the time this injury was received, such a relation of subordinate and superior between the laborer, Lavalley, and the foroman, Fox, as would render the company liable to Lavalley for the consequences of the asserted negligence of Fox in not keeping a more strict lookout, and warning Lavalley in time of the approaching danger.

In this case the testimony shows that Fox was the superior of Lavalley in all matters connected with the order and manner in which the work upon the car should be conducted, but in the matter of keeping watch aud lookout for danger that no relation of superior and subordinate existed. Lavalley did not depend upon Fox to look out because he was the foreman, but simply because he was his fellow-laborer in the prosecution of the work about which they were both engaged. It was not the duty of Fox to keep this lookout because he was the foreinan, but simply because of that duty which one fellow-laborer owes to another. It is unquestioned but that it would have been just as much the duty of Lavalley to have kept watch while Fox was under the car as for Fox to have done so while Lavalley was there. This was a reciprocal duty the one owed to the other as co-laborers, and not because of any superior relation of the one over the other.

Lee & Brown, for defendant in error:

The negligence of Fox produced the injury. Shearman & Redfield on Negligence, 10; 8 Bosw. 345; 2 E. D. Smith, 413.

The superior cannot, at one and the same time, be the superior and the common fellow-servant. Railroad v. Stevens, 20 Ohio, 415; Railroad v. Devinney, 17 Ohio St. 210; Berea Stone Co. v. Kraft, 31 Ohio St. 293; Railway Co. v. Lewis, 33 Ohio St. 200; 53 N. Y. 549.

WHITE, J.

The First ground of error relied on is that there was a failure of proof on the part of the plaintiff, under section 133 of the code, and not a variance between the allegations in the petition and the proof, as defined by sections 131 and 132. We regard the case as raising a question of variance merely, within the meaning of the last two sections.

The petition charged that the plaintiff, by the order of

his superior, was under a car making repairs; that it was the duty of the defendant, by its agents, to prevent the moving of the car, and otherwise to protect the plaintiff from danger while so working under said car; and that the defendant negligently and wrongfully, by its agents, without any notice to the plaintiff, put the car in motion, whereby the plaintiff was injured.

The negligence charged consisted in the failure to notify the plaintiff of the approaching danger, and in the moving of the car without such notice. Both are alleged to have been operative in causing the injury. It is not definitely stated on what servant the duty rested of giving the plaintiff notice; but, if the purposes of the defense required this to be more specifically stated, application should have been made to the court to compel the plaintiff to make the petition definite and certain in this respect. As the case is presented, we think it comes within the principle laid down on the subject of variance, in Huffman v. Gordon, 15 Ohio St. 212, 216.

The next ground of error is that the relation of superior and subordinate existing between the foreman, Fox, and the plaintiff below, Lavalley, was not such as would make the company liable for the negligence of Fox in causing the injury in question.

The claim on behalf of the company is that Fox was the superior of Lavalley in all matters connected with the order and manner in which the work upon the cars should be conducted, but in the matter of keeping watch and lookout for danger that no relation of superior and subordinate existed; that in this respect they were merely fellow-servants engaged in a common service, neither having any control or authority over the other. We do not concur in this view. It was the duty of the company to make such provision or regulations for the safety of its employees as would afford them reasonable protection from the dangers incident to the performance of their respective duties.

In the present case Lavalley, the plaintiff below, was one of a set of hands whose business it was to repair freight cars while standing on the track. The place in which the repairing was required to be done was in the freight yard of the company, in which the freight trains were accustomed to be made up, and where there was a constant switching of cars from one track to another. The services, therefore, required of these hands were peculiarly dangerous; and it was the duty of the company to make reasonable regulations or provisions to protect them from the dangers to which they were exposed from moving trains and cars, while engaged in the discharge of their duties.

The hands, under the regulations of the company, were put in the charge of Fox, who, in directing their operations, was the representative of the company. No other provision or regulation seems to have been made for their government or protection. By setting Lavalley to work under the car, where, by the exercise of reasonable care, he could not discover an approaching train or car in time to save himself from injury, it was the duty of Fox to see that reasonable, precautions were taken to guard him against such danger; and for the injury resulting from such neglect the company is liable. He might have watched, himself, or, if his services were required in the car, he might have required one of the other hands to watch; but he did neither, nor did he adopt any other precautions.

It is said by counsel that if the company is liable to Lavalley, it would likewise have been liable to Fox, if he had been injured under like circumstances. Such con

clusion is not warranted. Fox had authority to direct what precautions should be taken to guard against danger. He could have required one of the hands to watch while he was engaged in the work. Lavalley had no such authority. If Fox had chosen to expose himself to the danger, and had neglected to exercise the authority with which he was invested to protect himself from injury, the fault would have been his own. Judgment affirmed.

SUPREME COURT OF PENNSYLVANIA.

COMMONWEALTH MUTUAL FIRE INSURANCE ComPANY, DEFENDANT BELOW,

VS.

FRANK HUNtzinger, for USE.

JUNE, 20, 1881.

The difference between a representation and a warranty is well defined. For an injury resulting from the former the remedy is an action on the case for the deceit; for an injury by a breach of warranty the action is on the contract.

Mere mutual knowledge by the assured and the agent of the insurer of the falsity of a fact warranted, is inadequate to induce a reformation of the policy so as to make it conform with the truth.

Knowledge by the underwriter, or by him and the assured, of the breach of a warranty, at the time it is made, does not relieve the assured from the consequences of the breach, and is no basis for reforming the policy, though equity will reform it in case of a mutual mistake of facts. Warranties in insurance policies differ from those in relation to the sale of personal chattels.

Knowledge that the answer was untrue might relievo against a false or imperfect representation, but not against a warranty. That which is a warranty in a policy of insurance by its terms, cannot be shown by parol evidence to have been inserted by mistake.

A contract based upon guaranties of facts which do not exist cannot be enforced by the party making the guaranty.

If an agent of an insurance company, intending to write an answer to his question as made by the applicant, write something else, and the paper is signed, both believing the answer correctly written, there is a mutual mistake and the policy may be reformed. Where the answer is written as made, there is no mutual mistake, and no relief for him who warranted it, unless the agent deceived him into the making.

Error to the Court of Common Pleas of Lancaster County.

TRUNKEY, J.

The application and policy evidence the contract between the parties, and it is stipulated that "this application shall form a part of this policy of insurance, and all the statements herein shall constitute warranties on the part of the insured." One of the statements is, that the amount insured on the property is $1,500 in Pennsylvania Mutual of Columbia. In fact the amount of insurance was $2,000. To avoid the consequences of a breach of his warranty, Huntzinger called James W. Ziebach, who testified that he was agent for the company, defendant, and also for the Pennsylvania Mutual of Columbia; that the defendant did not furnish him blank policies to write and issue; that he received the application, sent it to the company, and if it accepted the risk, the policy was forwarded to him and he delivered it to the insured. When he took this application he read the question: "What amount is there insured on the property, in what company and in whose whose

name?" Huntzinger said "he had $1,500 or $2,000 insurance in the Pennsylvania Mutual, he didn't know which. He thought it was $1,500; I said we ought to know for sure. He said, my policy is at the house. He didn't have it in the store and he was not sure about it. He was under the impression it was $1,500 and put it down $1,500. I said, we would put it down $1,500 because I thought it was that. And he signed the application."

was

It is clear beyond question that the plaintiff intended to make the statement as written when he signed the paper and he knew just what he was doing. There was no mistake or fraud by the agent in writing one thing when the answer was another. The oral and written testimony entirely accord. Each kind shows that Huntzinger stated the amount of insurance was $1,500, and that the true amount was $2,000. The plaintiff must have known that the policy was not issued by the agent, but by the company, after its acceptance of the risk. There is not the slightest evidence that he was induced to sign the application by the agent's deceit. If honest, neither remembered the amount of insurance, but the policy was in the applicant's house. It a fraud was perpetrated, it participated in by both the agent and insured, for they agreed upon the same thing. However, under the charge of the court, it may be taken as settled by the verdict that the plaintiff committed no fraud, but on the contrary acted in good faith when he warranted a statement which he did not know to be true and could have ascertained it was false by looking at his policy. The court charged that if Huntzinger and Ziebach had forgotten "the exact amount insured prior in the Pennsylvania Mutual Company, then the mistake was mutual-both dealt under mutual mistake in respect to that matter of fact -it will not vitiate in itself this policy in the absence of fraud; and the defendant has no defense in this suit, but the proof of fraud." If this ruling be correct, nothing can be of less value than the warranty of a representation; the representation would be just as good without its warranty.

The distinction between a representation and a warranty is too broad and well defined to require remark. quire remark. For an injury arising from a false representation, the remedy is on the case for the deceit, bad faith lying at its foundation; for an injury by a breach of warranty, the action is upon the contract, and it is immaterial whether the defendant did or did not believe the fact he warranted. Precisely the same principles apply in making a defense on the ground of the plaintiff's false representation, or breach of warranty, as would in sustaining an action on such grounds. Here no question was raised as to false representation of Huntzinger which involved fraud or bad faith on his part. The testimony adduced by himself plainly revealed his broken warranty, and the chief question was as to the effect of that upon his claim under the policy. It is not material whether the agent