By act of the general assembly of this state, ap proved January 20, 1855, the "Arkansas Midland Railroad Company" was incorporated, and authorized to construct a railroad from Helena to Little Rock, and any 66 incorporated town or city in the counties of Pulaski and Monroe" was authorized to subscribe to the capital stock of said company, upon a majority vote of the legal voters of such town or city, and to issue its bonds in payment of such subscription, "bearing interest at the rate of six per cent. per annum." The charter authorized the company to "make any lawful contract for uniting said road with any other road having the same terminus, or which may at any intermediate point approach the said railroad."

On the 8th day of March, 1869, there was filed in the office of the Secretary of State of this state, articles of association, under the general railroad incorporation law of this state, incorporating the "Little Rock and Helena Railroad Company." The purpose of this company was declared to be to construct a railroad from Little Rock to Helena. The general act for the incorporation of railroads, approved July 28, 1868, authorized any railroad company then or thereafter incorporated" to purchase and hold any connecting railroad, and operate the same, or to consolidate their companies and make one company, under the name of one or both, or any other name." Sec. 4969 Gant's Digest. On the 31st day of August, 1870, at a meeting of the Board of Directors of the Arkansas Midland Railroad Company, a resolution was adopted declaring "that the said company be, and the same is hereby, consolidated with the Helena and Little Rock Railroad Company, * * and that said consolidated company be hereafter known as the Arkansas Central Railway Company." At a meeting of the stockholders of the Arkansas Midland Railroad Company, September 21, 1870, it was unanimously resolved that the action of the board of directors of the company, in changing the name of the road from the Arkansas Midland Railroad Company to the Arkansas Central Railway Company be, and the same is hereby, ratified and confirmed. At a meeting of the directors of the Little Rock and Helena Railroad Company, held on the 20th of January, 1871, it was: "Resolved, by the president and directors of the Little Rock and Helena Railroad Company, that we hereby agree to consolidate with said company, under the name and style of the Arkansas Central Railway Company, and do hereby authorize and empower W. H. Rogers, the president of this company, to convey unto the Arkansas Central Railway Company all the rights and privileges, and immunities, that we have or may have had, or by any means may hereafter become entitled to under or by virtue of said organization, and after said conveyance is made this company shall utterly cease as a separate organization."

Mr. Taylor testifies that he was president of the Arkansas Midland Railroad Company at the time that corporation was consolidated with the Helena and Little Rock Railroad Company, and continued to be president of the consolidated company, under name of Arkansas Central Railway Company; that the latter company built and operated about

fifty miles of its road running from Helena to Clarendon; that the business of the Arkansas Central Railway Company was conducted exclusively under the charter of the Arkansas Midland Railroad Company; that the object and purposes of the Arkansas Midland Railroad Company, and Little Rock and Helena Railroad Company, and Arkansas Central Railway Company, were identical, viz.: the construction of a railroad from Helena to Little Rock, and that the proposed line of road of each of said corporations was the same.

The defenses are: 1. That the defendant was not authorized or empowered to issue its bonds, bearing interest at the rate of ten per cent., and that the bonds are therefore void. 2. Denies that there ever was such a corporation as the Little Rock and Helena Railroad Company. 3. Denies that the Arkansas Midland Railroad Company ever was legally consolidated with the Little Rock and Helena Railroad Company. 4. Denies that the Arkansas Central Railway Company was formed by the consolidation of the Arkansas Midland Railroad Company and the Little Rock and Helena Railroad Company, but alleges it was organized on the first day of May, 1871, as an independent corporation. 5. Denies that section 16 of the act incorporating the Arkansas Midland Railroad Company is applicable to the defendant city, which, it is alleged, “was not in existence at the date of the passage of said act, not having been founded until the year 1857, and not having been incorporated before February 8, 1859."

E. W. Kimball, for plaintiff; Wm. W. Smith, for defendant.

CALDWELL, J.

The defendant city could not subscribe to the capital stock of a railroad company, and issue its bonds in payment of such subscription, without it was authorized so to do by law. Authority for the defendant to subscribe to the capital stock of the Arkansas Midland Railroad Company, and issue its bonds in payment therefor, is found in section 16 and 15 of the charter of said company; and if the bonds in suit are void obligations, it is because they were issued under the authority of those sections,

It is a settled principle that where two or more railroad companies amalgamate or consolidate their respective roads under authority of law, the new or consolidated company succeeds to and possesses all the franchises, rights, privileges and immunities of the several companies of which it was formed. Zimmer v. State, 30 Ark. 677; Robertson v. City of Rockford, 21 Ill. 451; Nugent v. Supervisors, 19 Wall. 241 and 242. And that the right granted to a company by its charter to receive municipal subscriptions to its capital stock is a right and privilege that, upon its consolidation with another company, passes with its other rights and privileges to the consolidated company, has been expressly decided. County of Scotland v. Thomas, 94 U. S. 682; 5 Cent. L. J. 33, re-affirmed in County of Henry v. Nicolay, 95 U. S. 619.

If, therefore, the Arkansas Midland Railroad Company and the Little Rock and Helena Rail

road Company were legally consolidated under the name of the Arkansas Central Railway Company, the latter company succeeded to all the chartered rights of the Midland Company, and the defendant could rightfully subscribe to the capital stock of the consolidated company and issue its bonds in payment therefor.

Acting under the authority of section five, of the amended charter of the Arkansas Midland Railroad Company, and section 4969 of Gantt's Digest, proceedings were had by the last named company and the Little Rock and Helena Railroad Company to consolidate their respective companies under the name of the Arkansas Central Railway Company. These two roads had the same termini, and their object and purpose were identical, viz.: the construction of a railroad from Helena to Little Rock.

It is objected that the consolidation of these companies under the new name was not regular and legal; that the charter of the Arkansas Midland Railroad Company only authorized that company to consolidate with "any other road having the same terminus;" that this did not authorize consolidation with a road running parallel, and having the same termini; that the authority to consolidate, given by the general act for the incorporation of railroads, passed in 1868 (section 4969 of Gantt's Digest), is limited to "connecting railroads," and does not extend to parallel roads having the same termini. It is not disputed that the consolidation took place in fact, and that the new or consolidated company, under the name of the Arkansas Central Railway Company, assumed to exercise and possess, and did exercise in fact, all the functions and franchises of a railroad corporation under the charter of the Arkansas Midland Railroad Company; that it built and operated fifty miles of railroad, made contracts, received subscriptions to its capital stock, and exercised and performed every function pertaining to such corporation from the date of the consolidation. Its right to do so was never challenged by the state, nor questioned in any mode by any person. No director or stockholder of either of the two companies complained of the consolidation or change of name, but, on the contrary, appear to have ratified it.

If this was a suit to collect a stock subscription from a subscriber to one of the original companies, a different question might be presented. But the city of Clarenden subscribed to the capital stock of the consolidated company. The subscription was made in conformity to the authority given and the requirements contained in the charter of the Arkansas Midland Railroad Company. And the action of the city in subscribing for stock and issuing bonds must, under the evidence and pleadings, be referred to the authority given it so to do in the charter of the Arkansas Midland Railroad Company, which latter company had, by change of name or consolidation, or both, become the Arkansas Central Railway Company. By subscribing for stock and issuing its bonds, under these circumstances, to the consolidated company, the city is estopped, in a suit upon such bonds, to show

that the Arkansas Central Railway Company was not a corporation de jure, or that the proceedings to change the name of the Arkansas Midland Railroad Company, or to consolidate that company with the Little Rock and Helena Railroad Company, under the name of the Arkansas Central Railroad Company, were not in conformity to law.

In principle, this case can not be distinguished from the case of the County of Leavenworth v. Barnes, 94 U. S. 70. In that case it was objected that the bonds were issued to a company that had no legal existence in January, 1865, when the election was held, and on the first of July, 1865, when the bonds were issued. Answering this objection, the Supreme Court say: "This company was organized in 1860, under the name of the Missouri River Railroad Company, and on the 18th of April, 1866, it consolidated with another company, increasing its capital and changing its name to that of the Leavenworth and Missouri Pacific Railroad Company. We suppose this to have been authorized by the statutes of Kansas. Laws 1862, p. 768. We are certainly of the opinion that when the parties interested in the two companies are content; when the newly-named company has been in operation for ten years; when the county has received and held its stock until 1869; when the same was sold by the county, by authority of the legislature, it is not competent for such a contracting party to say that there was an irregularity in the organization of the company."

In Commissioners of Douglass County v. Bolles, 94 U. S. 104, the suit was upon bonds issued by the county to the St. Louis, Lawrence and Denver Railroad Company, and the court say: "Whether the St. Louis, Lawrence and Denver Railroad Company was lawfully a corporation capable of contracting with the defendants below, is a question that can not be raised in this case. * The company has built and operated a railroad from Lawrence to the Missouri state line, and has exercised the usual functions of a railroad corporation. It has been a corporation de facto, at least, if not de jure, from the date of its organization. Its corporate existence, therefore, and its ability to contract can not be called in question in a suit brought upon evidence of a debt given to it." And in a still later case the court say: "Where a shareholder of a corporation is called upon to respond to a liability as such, and where a party has contracted with a corporation, and is sued upon the contract, neither is permitted to deny the existence or the legal validity of such corporation. To hold otherwise would be contrary to the plainest principles of reason and of good faith, and involve a mockery of justice. Parties must take the consequences of the position they assume. They are estopped to deny the reality of the state of things which they have made appear to exist, and upon which others have been led to rely. Sound ethics require that the apparent, in its effects and consequences, should be as if it were real and the law properly so regards it." Casey v. Galli, 94 U. S. 680.

And the court cite in support of this doctrine, Eaton v. Aspinwall, 19 N. Y. 119, s. c. 6 Duer

(N. Y.), 176; Cooper v. Shaver, 41 Barb. (N. Y.), 151: Camp v. Burne, 41 Mo. 525; D. & N. Railroad Company v. Wilson, 22 Conn. 435; Ellis v. Schmock, 5 Bing. 521; McFarland v. Triton Ins. Co. 4 Denio, (N. Y.), 392; Rector v. Lovett. 1 Hall (N. Y.), 191; Topping v. Beckford, 4 Allen (Mass), 121; Dooley v. Walcott, Id. 407; Eppes v. Railroad Company, 35 Ala. 33; Hamtramack v. Bank of Edwardsville, 2 Mo. 169; Jones v. Cincinnati Type Foundry, 14 Ind, 88; Worcester, Med. Ins. v. Harding, 11 Cush. (Mass.), 285; Hughes v. Bank of Somerset, 5 Litt. (Ky), 47; Tar River Nav. Co. v. Neal, 3 Hawks (N. C), 520. And the following additional cases may be cited in support of this doctrine: Bigelow on Estoppel, 464, (2 Ed. 423 424) Zabriskie v. Cleveland, 23 How. 400; John v. Farmers', etc.. Bank, 2 Blackf. 367; Brookville G. T. Co., v. McCarthy, 8 Ind. 392; Ensey v. Cleveland. etc., R. R. Co., 10 Ind. 178; Anderson v. Newcastle R. R. Co. 12 Ind. 376; Palmer v. Lawrence, 3 Sandf. 161; Fisher v. Evansville & Crawfordsville R. R. Co. 7 Ind. 407;

The charter authorises the issue of bonds" bearing interest at the rate of six per cent. per annum;" there are no negative words; a higher rate is not in terms prohibited and no penalty is prescribed for issuing or receiving bonds drawing a higher rate. At the time bonds were issued, the constitution of 1868 was in force which declared "no law limiting the rate of interest for which individuals may contract in this state, shall ever be passed." And the act of July 13th, 1868, was also in force, which declared it should be lawful for parties to stipulate for any rate of interest for " money loaned, or in any manner.due and owing from any other person or corporation, to any other person or corporation in this state." Section 4278, Gantt's Digest.

The city and the railroad company seemed to have supposed this legislation had removed the restriction in the charter as to the rate of interest. Whether this is a sound view it is not necessary to determine, because the plaintiff having waived all claim for interest beyond six per cent., there are other satisfactory grounds upon which to rest the decision of the question. The power to issue the bonds is conceded; the rate of interest they should draw is a mere incident to the exercise of the power to issue, and not vital to the validity of the bonds otherwise lawfully issued. The city and the company might have agreed on a less rate than six per cent., and the insertion of a larger rate is at most a stipulation in excess of the power relating to a mere incident of the main power and contract, and the bonds are valid to the extent of the principal and lawful interest, and invalid as to the excess of interest only.

If, in the exercise of its undoubted powers, a corporation makes a contract, some stipulation of which is in excess of its powers, this does not avoid the whole contract, if, after rejecting such stipulation, there remains a good execution of the powers granted. Johnson v. County of Starke, 24 Ill, pp. 91, 92; United States v. Bradley, 10 Pet. 343; Quincy v. Warfield. 25 Ill. 317. In the last case cited under authority to issue bonds bearing eight per cent. interest, bonds stipulating for twelve per

cent. were issued, and it was held they were valid and bore interest at the statutory rate.

If tested by the rule applicable to laws regulating the rate of interest (which as usury laws are based on public policy, is a view too favorable to the defendant), the same result is reached. "Where a statute prescribes a rate of interest, and simply forbids the taking of more, and more is contracted for, the contract is good for what might be lawfully taken, and void only as to the excess." Farmers', etc., Nat. Bank v. Dearing, 91 U. S. 35; and see to the same effect Darby v. Boatman's Sav. Inst. 1 Dillon, 149, and cases cited; Burnhisel v. Firman, 22 Wall. 170. The case of Bank of the United States v. Owens, 2 Peters, 557, and what is said by the court in Tiffany v. Boatmans' Institution, 18 Wall. 375, 384, bas not been overlooked. In reference to them it may be remarked that what is there said on the point is difficult to reconcile with what is said by the court in the later cases of Burnhisel v. Firman, supra, and Farmers' and Mech. Bank v. Dearing, supra.

In the last-named cases the question was fairly raised by the record, and proper to be decided. In the last case (Bank v. Dearing) the rule is stated with force and perspicuity, and supported by citations that show it to have been a deliberate opinion; and as this is the latest utterance of that court on the question, it must be regarded by this court as an authoritative exposition of the law, and it certainly is in harmony with the general, “though not quite uniform doctrine of the authorities." Dillon, J., in Darby v. Boatman's Sav. Inst., supra.

There seems to have been filed in the office of the Secretary of State on the 5th of May, 1871, articles of association incorporating a railroad company to be known as the "Arkansas Central Railway Company." The articles of association of that road were not filed until after the consolidation of the Little Rock and Helena Railroad Company, and the Arkansas Midland Railroad Company, under the name of the Arkansas Central Railway Company. Under the provisions of section 4942 of Gantt's Digest, the articles of association of that road were a nullity, and it is not shown that it exercised, or attempted to exercise, a simple corporate function. But it is enough to say that the pleadings and proofs show that the defendant subscribed to the capital stock of the Arkansas Central Railway Company, formed by the consolidation of the Little Rock and Helena Railroad Company and the Arkansas Midland Railroad Company, and that the bonds were issued to the company thus formed.

The authority to subscribe is given “to any incorporated town or city." This language embraces towns and cities then or thereafter incorporated. All that is required is that they shall be "incorporated" at the time the subscription is made. The construction of the branch to Pine Bluff was authorized by section 5 of the charter.

The plaintiff is entitled to judgment for sixtenths of the face value of the coupons, and interest on the same at 6 per cent. from the date of the maturity of the same.

ACTION ARISING EX TURPI CAUSA-CONSTRUCTIVE ASSAULT.

HEGARTY v. SHINE.

Irish High Court of Justice, Queen's Bench Division, June, 1878,

IN AN ACTION for assaulting, and infecting the plaintiff with venereal disease, it appeared that the plaintiff had consented to sexual intercourse with the defendant, in ignorance of the fact, concealed by the defendant, that he was affected with the disease: Held (MAY, C. J., dis.), that the action was not sustainable for a constructive assault, as the injury com plained of was directly consequent on a willful act of immorality, and no cause of action arising ex turpi causa can be maintained. R. v. Bennett, 4 F. & F. 1005, commented on, and not followed.

Action for breach of promise of marriage; and for assaulting, and infecting the plaintiff with venereal disease. Traverses of the promise and of the assault. The circumstances are sufficiently explained in the judgments delivered.

Heron, Q. C. (with him Ronan), for the plaintiff, cited R. v. Bennett, 4 F. & F. 1005; R. v. Sinclair, 13 C. C. C. 28; R. v. Saunders, 8 C. & P. 265.

Exham, Q. C., O'Riordan, contra.
MAY, C. J.:

In this case the plaintiff, Honoria Hegarty, brought an action against the defendant, Daniel Shine. The summons and plaint contained four counts. The first two were grounded upon an alleged breach of promise of marriage. The third and fourth alleged that the defendant had assaulted and beat the plaintiff, and infected her with venereal disease. The defenses were by way of traversing the alleged promise, and denial of the acts complained of. The cause was tried before Mr. Justice Barry, at the after-sittings in Michaelmas, 1877. At the trial the plaintiff was unable to sustain in evidence the first count, and her case was rested upon the count charging the assault. The evidence established that the defendant had had sexual intercourse with the plaintiff, who was a servant girl, at different times in the years 1874 and 1875, but there was no evidence that the plaintiff had had intercourse with other men. The plaintiff became pregnant in the autumn of 1875, and was delivered of a child in May, 1876. The defendant had remitted money to plaintiff from time to time, before and after the time of her confinement. appeared by medical evidence that at the time of the birth of the child the plaintiff was suffering from two kinds of venereal disease, with which also her child was infected, and that the health of the plaintiff and her child were permanently injured. The plaintiff deposed that she was not aware of the nature of her illness till after the birth of her child.

It

At the trial, counsel for the defendant called upon the judge to direct a verdict for the defendant, as no assault had been proved. The plaintiff's counsel, on the other hand, contended, on the

authority of two criminal cases decided in England --Regina v. Bennett, 4 F. & F. 1005, and Regina v. Sinclair, 13 Cox C. C. 28-that there was a case fit for the consideration of the jury upon the counts alleging an assault. The judge acceded to this view, and instructed the jury to the following effect: That an assault implied an act committed upon a person against his or her will, and that, as a general rule, when the person consented to the act there was no assault; but that, if the consent was obtained by the fraud of the party committing the act, such fraud vitiated the consent, and the act became, in view of the law, an assault; and that, therefore, if the defendant, knowing that he had veneral disease, and that the probable and natural effect of his having connection with the plaintiff would be to communicate to her such complaint, fraudulently concealed from her his condition in order to induce, and did thereby induce her to have connexion with him, and if but for that fraud she would not have consented to have such connexion, and if he had with her the connexion so procured, and thereby communicated to her such venereal disease, he had committed an assault, and one for which the jury might, on the evidence, give substantial damages. Counsel for defendant, by way of objection to this charge, again requested the judge to direct a verdict for the defendant, on the ground that the legal doctrine laid down in the cases relied on was not applicable to a civil action, nor to a case of a plaintiff of mature years. The jury found a verdict for the plaintiff with £450 damages. Counsel for the defendant obtained a conditional order that the verdict be set aside, on the ground 1, of misdirection, 2, that the verdict was against the weight of evidence, and 3, that the damages were excessive. On the two latter grounds I should not be disposed to disturb the verdict, as I think there was evidence upon which the jury were warranted in finding as they did, and there is no doubt the plaintiff sustained serious injury. The question principally argued before us was whether, under the circumstances, an action of assault was maintainable.

In the case of Regina v. Bennett, 4 F. & F. 1005, the prisoner was indicted for an indecent assault. Judge Willes, who presided at the trial, used the following language. [The Lord Chief Justice read the judgment referred to.] Where a man had connection with a married woman by getting into her bed at night and virtually pretending to be her husband, it was held that he was not guilty of rape, as the woman consented, but he was convicted of an assault, on the ground that it was a fraud upon her, Regina v. Saunders, 8 C. & P. 265; and Regina ▼. Wilson, Id. 286, is to the same effect.

The question seems to be whether the legal principles on which these cases of criminal law are founded are applicable to a civil action. The deflnitions of an assault appear to be the same, whether the proceedings be in a criminal court, with a view to punishment, or before a civil tribunal, with a view to the recovery of damages. An assault implies the absence of consent on the part of the complainant, and to an action of assault a plea of leave and license was a bad plea as amount

ing to the general issue: Christopherson v. Bare, 11 Q. B. 473. But supposing that in the present case the summons and plaint had stated that the defendant laid hands on the plaintiff, invaded her person, infecting her with disease, and the defendant had pleaded leave and license of the plaintiff, which leave and license was traversed, upon that issue the case would, I think, have come before the jury precisely as it has done upon the issue whether the defendant assaulted the plaintiff'; and it appears to me that the doctrine as laid down by Judge Willes and other judges in England that consent procured by fraudulent concealment is void in point of law, is applicable to an action like the present before a civil tribunal. It is not difficult to suggest cases of a less unpleasant character than that immediately before the court. If a patient submits to the performance of an operation by a surgeon, he can not treat that as an assault, nor complain of injurious consequences. But supposing that the operator used in the operation a poisoned instrument, knowing the injurious results that would follow, could not the person injured sustain an action of assault, as for a trespass committed on the person without his consent? Could he not establish that to such an operation involving such consequences, he did not consent, though he did permit an operation of a different character? In the cases of Regina v. Bennett, Regina v. Saunders, and Regina v. Williams, it appears to me that the same judges who held that the prisoners were guilty of assaults, would equally have held that the persons assaulted might have maintained civil actions for damages arising out of the same transaction. I do not think that the circumstance that the plaintiff had been seduced or debauched by the defendant, and had on previous occasions consented to his embraces, makes any material distinction, the jury having virtually found that on the particular occasion in question she would not have consented had the defendant disclosed his state of health.

Nor do I think that the maxim ex turpi causa non oritur actio is applicable to the present case. That principle, I think, governs cases of contract. A promise cannot be supported-on the contrary, is vitiated by an immoral consideration; nor can a contract be enforced, if its object be to promote and encourage immorality or illegality. But the present case is founded on tort. The defendant has done an act injurious to the plaintiff, and done so willfully and intentionally. Upon the "uthority of the cases I have referred to, I think it must be held that this wrong was done to her without her consent. It does not occur to me that the court, if it held the defendant liable in damages to the plaintiff in this case, would be sanctioning immorality. It seems to me, on the other hand, that the imputation of injustice would rest upon a decision holding that a defendant who has inflicted a life-long injury upon his victim-by depriving her of her bodily health— should escape with impunity, because he had previously deprived her of her chastity, and obtained possession of her person.

FITZGERALD, J.:

The action was for breach of promise of mar

riage and for an assault. The learned judge, at the trial, held that the evidence was not sufficient to sustain the alleged promise to marry, and the plaintiff's counsel acquiesced in his ruling. The question before us now is, whether the action lies for an alleged constructive assault. The evidence was very voluminous, but for obvious reasons I state its results as concisely as possible. In 1874 the plaintiff was seduced by the defendant, and during the remainder of that year habitual sexual intercourse took place between them, which was continued down to November, 1875. The defendant swore that he gave the plaintiff money on each occasion save the first. In November, 1875, it was ascertained that the plaintiff was pregnant, and she left Listowel, her former place of residence, and went to reside in Cork, where, in May, 1876, her child was born. Some time after the birth of the child, the medical attendant of the plaintiff discovered that both the mother and child were affected with syphilis. The evidence was sufficient to establish that the disease had been communicated to the plaintiff by the defendant in the course of the concubinage, and probably some time shortly prior to November, 1875, as a letter from the defendant to the plaintiff, given in evidence on the part of the plaintiff, indicates that the defendant considered that there had been something wrong with him. On this evidence, the plaintiff's counsel contended that the suppression by the defendant from the plaintiff of the fact that he was affected with disease, vitiated her consent to the particular act of intercourse in which disease had been communicated to her, which, therefore, must be taken to have been without her consent, and amounted to an actionable assault; and he relied on the case of Regina v. Bennett, 4 F. & F. 1005, in which Willes, J., held that an indictment for an indecent assault was maintainable where the prisoner concealed from the woman that he was diseased, and communicated the disease to her, on the ground that an assault came within the rule that fraud vitiates consent. The learned judge, for the purposes of the trial, yielded to the authority of Regina v. Bennett, and submitted certain questions to the jury, with a direction in substance as follows: "That if the consent was obtained by the fraud of the party committing the act, the fraud vitiated the consent, and the act became in view of the law an assault; and that, therefore, if the defendant, knowing that he had venereal disease, and that the probable and natural effect of his having connexion with the plaintiff would be to communicate to her the venereal disease, fraudulently concealed from her his condition in order to induce, and did thereby induce her to consent to have a connexion with him, and if, but for that fraud, she would not have consented, and if he had connexion with her, and thereby communicated to her venereal disease, he had committed an assault, and one for which they might give substantial damages." On that instruction in law, the jury found in fact that the defendant knew that he had disease, and had communicated it to the plaintiff, who did not know that he was so affected; and on those findings the verdict was entered for the plaintiff.