before Martin, C. J., Hargreave and Manning, JJ., was discharged. The court was unanimous in refusing to disturb the finding of the jury as to Wilkinson having authorized the proceedings; but on the question of the correctness of the ruling of Manning, J., as to the responsibility of the bank for his acts, which that learned judge and Hargreave, J., sustained, the chief justice dissented from his colleagues. One point argued in the court below was that the bank, being a corporation, could not in any case be liable to an action of this kind. The chief justice (the other judges taking the opposite view) held the law to be so, to use his own words, "on the plain ground that malice being a state of mind, cannot be attributed to a corporation which has no mind," and he relied on the judgment of Alderson, B., in Stevens v. The Midland Counties Railway Co. and Lander, 10 Ex. 352, which, as reported, no doubt supports this view. The learned counsel for the appellant acknowledged that, after recent decisions, he could not support this broad proposition, and confined his argument to the two questions above indicated. Upon the first of these questions their Lordships cannot say that there is not some evidence to support the finding of the jury; and that finding having been sustained by the judgment of the court below, they intimated to the learned counsel at the close of the argument for the appellants that they should not feel justified in sending the case to a new trial upon this point, if it stood alone. The point remaining for consideration, viz., the liability of the bank for the acts of Wilkinson, is of more general importance. The first question which arises on this point is whether the direction of the learned judge to the jury to the effect that it was to be inferred from Wilkinson's position that he had authority to direct the prosecution— thus practically withdrawing the question from the jurywas correct, and their Lordships think that upon the evidence given at the trial it was not. No proof was offered by the plaintiff of the position, duties, and powers of the acting manager; but the defendants examined him, and also the general manager, who gave evidence on the question of his authority. Before considering the effect of this evidence, it will be convenient to refer to the series of authorities cited at the bar. They all related to the liability of railroad companies for wrongful arrests by their servants. In each of the two earliest cases, The Eastern Counties Railway Co. v. Bloom, 6 Ex. 314, and Roe v. The Birkenhead, etc., Railway Company, 7 id. 36, the plaintiff, who had been arrested at a station for refusal to pay the fare demanded, brought an action for false imprisonment. In both the question arose as to the authority of the officers at the station to make the arrest, and in both it was held there was not sufficient evidence of such authority to go to the jury. The decision in the first of these cases, upon the insufficiency of the evidence for the consideration of the jury, is scarcely consistent with later authorities. In the last of them, Parke, B., thought there was no proof that the servant had ever received any general authority from this company to arrest any person who did not pay his fare, nor was there any evidence of any course of dealing to show that, as a servant of the company, he was authorized to make any arrest on their behalf." In the later cases a more particular inquiry was made into the character of the employment of the officer, whose acts were in question, and the nature of the duties intrusted to him. In Goff v. The Great Northern Railway Company, 3 El. & El. 672; 3 L. T. (N. S.) 850, the plaintiff had been arrested for travelling on the line without a proper ticket by an inspector of the company acting under the direction of the superintendent of the station. By the Railway Clauses Act (10 Vict., ch. 20), sec. 8, a penalty is imposed on any person travelling on a railway without having paid his fare, with intent to defraud, and power is given to all

officers and servants on behalf of the company to apprehend such persons. There was evidence that the superintendent was the person in supreme authority at the station, and the jury having found for the plaintiff, the court refused to set aside the verdict, on the ground that there was no evidence for their consideration. Blackburn, J., in delivering the judgment of the court, observes: "The court thought that, as from the nature of the case the question whether a particular passenger should be arrested or not must be made without delay, and as the case may not be of unfrequent occurrence, it was a reasonable inference that in the conduct of their business the company should have on the spot officers with authority to determine, without the delay attending on convening the directors, whether a person accused of this offense should be apprehended." And the court held there was evidence for the jury that the persons who apprehended the plaintiff had such authority, observing that it was difficult to see why the company paid the police if the inspector of their police was not to act for them to this extent. This case turns therefore on the considerations that the summary power of apprehension given for the protection of the company could not only be exercised (practically) on the spot, and instantly, and that the officers who acted were the fittest and indeed the only representatives of the company on the spot who could exercise it, and upon these considerations it was held that the jury might infer the necessary authority. In the later case of Edwards v. London and Northwestern Railway Company, L. R., 5 C. P. 445; 22 L. T. R. (N. S.) 656, it was held that there was no evidence of the officer who had made the arrest having such authority. There a foreman porter who had the superintendence of the station yard in the absence of the station-master, gave the plaintiff into custody on a charge of stealing timber which the foreman porter suspected to be the property of the company. The timber was in a van at the station. It did not appear that any timber was in the special charge of the foreman. The plaintiff was wellknown, and in fact a gateman in the service of the company. It was held that there was no evidence of implied authority arising from the foreman's position to give into custody persons whom he might suspect to have stolen the company's goods. The apprehension in this case was not in pursuance of any special duty intrusted to the servant, to enforce laws or by-laws. The court recognized the distinction that in the case of such a duty, authority might under certain circumstances be presumed, but held that the general authority sought to be inferred from the position of the foreman could not be so presumed. Other decisions adopt this distinction. In Moore v. Metropolitan Railway Company, L. R., 8 Q. B. 36; 25 L. T. R. (N. S.) 951, the facts of the case were held to bring it within the authority of Goff v. The Great Western Railway Company. The case of Poulton v. The Southwestern Railway Company, L. R., 2 Q. B. 534; 17 L. T. R. (N. S.) 11 was a peculiar one. The station-master had arrested the plaintiff for nonpayment, not of his own fare, but that of his horse; the law giving power to detain only for the former. Although it appeared that the station-master acted in the belief that the law authorized the arrest, and that he was protecting the interests of the company, it was held that his act was not within the scope of his authority, since it could not be inferred that the company had authorized him to do an act which under no circumstances could be lawful, and which they had no power to do themselves. A question in some respects similar arose in Allen v. The London and Southwestern Railway Company, L. R., 6 Q. B. 65; 23 L. T. R. (N. S.) 612. It is to be observed that although in both these cases the defendants happened to be railway companies, the questions involved in them might equally arise in the case of other masters. In the last it ap

peared that a clerk whose duty it was to issue tickets and put the money received in a till, which was kept under his charge, having given some money in change to the plaintiff, who objected to one of the coins, a dispute arose, and the plaintiff, it was alleged, put his hand into the till. The clerk thereupon seized the plaintiff and gave him into custody, and the next morning charged him before the magistrate with feloniously attempting to rob the till. Blackburn, J., who tried the cause, left it to the jury to say whether the clerk acted for his own ends and out of spite in consequence of the dispute, or whether he acted in furtherance, as he supposed, of the interests of his employers to protect their property. The jury found that the clerk was acting in defense of the company's property, and returned a verdict for the plaintiff. The court set this verdict aside and entered a nonsuit. It does not appear whether the clerk when he gave the plaintiff into custody believed or suspected that he had actually taken any money, though the finding of the jury affords an inference that he acted under that belief. The charge, however, was for the attempt only, and the decision assumed there had been no more than an attempt. Blackburn, J., put two cases, as supposed cases only, and his so putting them shows how little questions of this kind have been before the courts. He said he was disposed to think that if a servant in charge of money found another attempting to steal it, and could not prevent him otherwise than by taking him into custody, he might have an implied authority to arrest him, or if he had reason to believe that the money had been actually stolen, and he could get it back by taking the thief into custody, that also might be within the authority of the person in charge of it. The learned judge, however, declined to pronounce a decided opinion on these cases, and held that there was clearly no implied authority to give the plaintiff into custody for an attempt to steal which had failed. In none of the cases referred to did the question of the authority of a manager or agent intrusted with the general conduct of his master's business arise. They were all cases of particular agencies where the agents had been appointed to a special sphere of duty. The result of the decisions in all these cases is that the authority to arrest offenders was only implied where the duties which the officer was employed to discharge could not be efficiently performed for the benefit of his employer, unless he had the power to apprehend offenders promptly on the spot; though it was suggested that possibly a like authority might be implied in the supposed cases of a servant in charge of his master's property arresting a man who he had reason to believe was attempting to steal, or had actually stolen it. In the latter of these cases it is part of the supposition that the property might be got back by the arrest, but in such a case the time, place, and opportunity of consulting the employer before acting would be material circumstances to be considered in determining the question of authority. The liability of the bank in this case must rest either on the ground of some general authority in the acting manager to prosecute on behalf of the bank, or on a particular authority so to act in cases of emergency. The duties of a bank manager would usually be to conduct banking business on behalf of his employers, and when he is found so acting, what is done by him in the way of ordinary banking transactions may be presumed, until the contrary is shown, to be within the scope of his authority; and his employers would be liable for his mistakes, and under some circumstances, for his frauds, in the management of such business. Mackay v. The Commercial Bank of New Brunswick, L. R., 5 C. P. 394; 30 L. T. R. (N. S.) 180. But the arrest, and still less the prosecution of offenders, is not within the ordinary routine of banking business, and when the question of manager's authority in such a case arises, it is essential to inquire carefully

into his position and duties. These may, and in practice do, vary considerably. In the case of a chief or general manager, invested with general supervision and power of control, such an authority in certain cases affecting the property of the bank might be presumed from his position to belong to him, at least in the absence of the directors. The same presumption might arise in the instance of a manager conducting the business of a branch bank at a distance from the head office and the board of directors. But whatever may be the case in instances of this kind, their Lordships think that such a presumption cannot properly be made from the evidence given at the trial as to the position held by Mr. Wilkinson. It appears that the board of directors held their meetings at the bank office, and the general manager, Mr. Smith, also sat there; and the clear inference from the evidence (if believed) is that the acting manager was subordinate to the general manager, and that the latter was, as he presumably would be, subject to the superior authority of the directors. Supposing this to be so (and if the facts were disputed, the opinion of the jury should have been taken upon them), their Lordships think it cannot be presumed, from his position alone, that the acting manager had general authority to prosecute on behalf of the bank, and therefore that evidence was required to show that such a power was within the scope of the duties and class of acts he was authorized to perform. The plaintiff offered no evidence whatever on this point; and the testimony of the two managers directly negatives the possession of such a power by the acting manager. Their statements at the most raise the question whether Wilkinson had authority so to act in cases of emergency, where immediate action is required, and the opportunity of arresting the offender might be lost if reference was made to the general manager or the directors. Granting that these statements afford some proof of such an authority, the further question would arise whether there is evidence that an emergency in fact occurred. An authority to be exercised only in cases of emergency, and derived from the exigency of the occasion, is evidently a limited one, and before it can arise a state of facts must exist which shows that such exigency is present, or from which it might reasonably be supposed to be present. If a general authority is proved, it is enough to show, commonly, that the agent was acting in what he did on behalf of his principal. But in the case of such a limited authority as that referred to, the question whether the emergency existed, or might reasonably have been supposed to exist, arises for decision; and that question raises issues beyond the mere fact that the agent acted on behalf of and in the supposed interest of the principal; were it otherwise, the special authority would be equivalent to a general one. What then was the situation when these unwarrantable proceedings took place? It cannot possibly be considered that it raised a case of emergency requiring immediate action by criminal proceedings against a person in the plaintiff's position, or afforded reasonable ground for supposing that such a case had arisen. There was no necessity for immediate action, nor was immediate action in fact taken. The plaintiff was not at once taken into custody, but an information was laid before a magistrate, and when he very properly refused a warrant to apprehend him, the summons complained of was taken out when there could evidently be no urgency either to obtain or serve it. It was obviously an attempt of the notaries and solicitors to recover the bill by means which were thought by them to be more effectual for the purpose than civil proceedings would be. Their Lordships therefore think, upon facts which appear upon the evidence to be beyond dispute, that there was no necessity or apparent necessity for immediate action from which authority in the acting

manager to instruct the solicitors (if he really did instruct them) to take these proceedings on behalf of the bank could be inferred. It is to be observed also that the bill in question was not under Wilkinson's special charge. He says "the matter was not in his department. It was a branch business; the general manager takes that." There being then no evidence of any emergency, the case in their Lordships' view is brought to the issue that the bank would not be liable for the acts of Wilkinson unless it could be established that he had some general authority to institute criminal proceedings. They have already said that they think such an authority cannot be inferred from his position alone as it appears upon the evidence, and that the direction of the learned judge was wrong. The verdict therefore cannot stand. In case the action should be again tried, the jury should be told, if the evidence on the point should be to the same effect as on the first trial, that the facts do not present a case of emergency, or apparent emergency, from which authority could be derived, and consequently that the bank would not be liable for the act in question unless it is proved, or can be inferred from the evidence, that general authority to prosecute offenders for stealing the bank's property connected with the business at Sydney, without consulting the general manager or the board of directors, was within the scope of Wilkinson's employment and duties, and the powers intrusted to him in relation thereto. The question whether Wilkinson in fact authorized the solicitors to prosecute the plaintiff will of course be open on the second trial. In the result their Lordships will humbly advise Her Majesty to reverse the judgment of the Supreme Court discharging the rule, and to direct that the rule be made absolute for a new trial. The respondent must pay the costs of this appeal.

NEW YORK COURT OF APPEALS ABSTRACT.

ACTION-CONTRACT-CONSPIRACY TO OBTAIN MONEY BY FORGERY.-The complaint charged that the plain tiff lent money to the defendants on the security of certain pretended bonds, which turned out to be forged, and claimed judgment for the amount so lent. The answers denied the complaint, and the answer of Mrs. Gleason set up coverture. There was no allegation of bad faith or conspiracy. The evidence showed that the bonds were passed off on plaintiff by defendant Rolston, and, it is claimed, showed the complicity of the other defendants in the forgery. Held, that it was a question of fact whether Rolston acted as agent of the others in receiving the money. His receipt as their agent would bind them. But mere complicity in the forgery would not render them liable ex contractu for the money thus lent. In such an action the receipt of the money directly or indirectly must be shown. The complicity is not the cause of action, but only evidence tending to establish an interest in the proceeds. Therefore, a charge, that those who took a guilty part in the forgery were liable for the money obtained through its means by the defendant Rolston, was erroneous. The right to a civil remedy is not merged in the crime, but must be made out. Such an action could not be maintained without showing that the defendants received some part of the money personally or by an agent whose agency was proved. As to Mrs. Gleason, she could only be made liable by showing a contract by her in her separate business or for the benefit of her separate estate, or for which she had charged her separate estate. The facts tending to show her connection with the conspiracy do not show any such contract by her by virtue of which she received any of the money. The fact that the witness Pettis had been convicted of a felony in Massachusetts did not render him incompetent Judgment re

versed and new trial granted. The National Trust Company of the City of New York v. Gleason. Opinion by Rapallo, J.

[Decided May 27, 1879.]

VIRES -STATUTORY CON

CORPORATION - ULTRA STRUCTION.-Action upon promissory notes. Defense, that the notes were discounted by plaintiff in violation of its corporate powers, and that the time of payment had been extended. Demurrer. The plaintiff has "power to grant, bargain, sell, buy, or receive all kinds of property, real, personal or mixed, or to hold the same in trust or otherwise; * ** to receive upon storage, deposit, or otherwise, merchandise, bullion, specie, plate, bonds, promissory notes," etc.; * **** "and to advance moneys, securities and credits upon any property, real or personal," etc. Laws of 1870, 1621. Held, that this did not empower the plaintiff to obtain title to the notes by discounting them. The language was intended to embrace actual sales instead of loans or discounts. The words or otherwise," were not intended to confer banking powers, but to authorize a holding of the property otherwise than as a trust. The plaintiff was forbidden to discount notes by the Revised Statutes (1 Edm. ed. 559, § 4), which prohibits all corporations except those expressly incorporated for banking purposes from so doing, and also by 1 Revised Statutes (Edm. ed.) 661, §§ 3, 5. Utica Ins. Co. v. Scott, 19 Johns. 1; The People v. Utica Ins. Co., 15 id. 356; N. Y. Firemen's Ins. Co. v. Ely, 2 Cow. 678; N. Y. L. Ins. Co. v. Beebe, 3 Seld. 364; Talmage v. Pell, id. 328; Utica Ins. Co. v. Kip, 8 Cow. 20; Oneida Bank v. Ontario Bank, 21 N. Y. 490; Utica Ins. Co. v. Scott, 8 Cow. 709; The People v. Brewster, 4 Wend. 498; Palmer v. Lawrence, 3 Sandf. (S. C.) 161; The State of Indiana v. Woram, 6 Hill, 37; The Steam Navigation Co. v. Weed, 17 Barb. 378, distinguished. The case does not come within that class of decisions where one having received the benefit of a contract is not allowed to repudiate it because the other had no power to make it. Such cases rest upon the principle that the contract was an innocent or lawful one, and differ from one illegal and expressly prohibited. In the latter cases the court will not enforce, set aside, or relieve from their effects. Nellis v. Clark, 4 Hill, 424. The other answer held good for the reasons given by the General Term. Order affirmed. The New York State Loan and Trust Co. v. Helmer. Opinion by Miller, J. [Decided April 15, 1879.]

CRIMINAL LAW-BAIL-STATUTORY CONSTRUCTION. -The defendant in error had been indicted in Chautauqua county at the oyer for a bailable offense, and the indictment had been sent to the Sessions for trial. He was arrested on a warrant in New York, and bailed by a justice of the Supreme Court of the first district, before whom he was brought on habeas corpus, at a time when the Chautauqua Sessions was not sitting. 2 R. S. 728, § 56. Held, that the power was legally exercised. The statute does not restrict the power to justices in the county where the prisoner is indicted. There is nothing in ch. 320, § 62, Laws of 1830, conflicting with this view. That section provides that, in case of arrest in another county after indictment, the same proceedings shall be had as on an indorsed warrant before indictment, as provided in 2 R. S. 707, §§ 7-11, which are, to take the prisoner before a justice of the peace of the county where the arrest is made, etc. This does not override § 56, supra, but was meant to designate the officers to whom a warrant could issue, and to assimilate the proceeding by them on a warrant after indictment to those on a warrant before indictment, but not to limit or repeal general provisions for letting to bail. It does not furnish any ground of resistance to the writ of habeas corpus. It would be no excuse for a refusal to obey the writ, that the officer to whom it was di