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in this aspect, that the agent, supposing himself to been followed in numerous cases (see 3 Burr. 1921), possess the requisite power, has acted in the most but was narrowed down, so as to relieve the agent perfect good faith, for it is a rule which, under the from liability where the contracting party knew of equitable doctrines to which the courts more and the principal, or might have known of him, had he more incline, has almost attained the force of an taken the trouble to inquire, as by examining the axiom in law, that one who asserts that which he books of the agent containing the written contract. does not know to be true is equally at fault with one Baring v. Corrie, 2 B. & Ald. 137; see, also, Morrison who asserts what he knows to be untrue; so that, v. Currie, 4 Duer, 79. The general liability of the where a person, in the absence of his friend, accepts agent in this class of cases is fully recognized in New a bill drawn upon him, without authority to do so, York under the doctrines both of law and of equity and merely to save the friend from future trouble, his (Mills v. Hunt, 20 Wend. 431; Mc Comb v. Wright, 4 laudable motives will not relieve him from liability to Johns. Ch. 659); and while the subsequent discovery an innocent indorsee of the bill. Polhill v. Walter, of the principal operates to give the contracting party 3 B. & Ad. 114.
an additional security, it can in no way divest the Nor can an agent who has exceeded his authority, agent of a liability thus acquired. Rossiter v. Rosfrom a misconstruction of the same, set that up as siter, 8 Wend. 494. discharging himself from liability, it being a mistake It may be proper in this connection to note an of law, not available as a defense either at law or in apparent exception to the rules as just stated, but one equity. This rule, founded on already existing prin- which we cannot help thinking depends altogether ciples of the common law (and recently affirmed in upon the peculiar circumstances of the case in which England in Kilner v. Baxter, E. L. R., 2 C. P. 174), it was presented. In The Bank of Rochester v. Monwas recognized at a very early period in the history teath, 1 Denio, 402, the members of a copartnership of the jurisprudence of this State in the case of had agreed that all their business in the city of Albany Dusenbury v. Elis, 3 Johns. Cas. 70, where an should be carried on by their agent at that place in attorney, who, under a mistake as to the extent of his own name. An action being brought against the his powers, had signed a promissory note for his firm on several bills drawn upon the agent and accepted principal, was held liable as maker of the note. This by him, it was held that the partners were liable, and case has been followed by many others, prominent this upon the ground that the agent's name was the among which are Meech v. Smith, 7 Wend. 315, and partnership name for all the purposes of transacting Palmer v. Stephens, 1 Denio, 471, holding substantially the business of the firm at Albany; and the partners the same views, though in a late case in the court of could bind themselves by that name as well as by any appeals it was urged by Selden, J., that the liability other. This decision leads to the conclusion that the of the agent in such cases rested rather upon the agent had incurred no personal liability; yet, if under breach of an implied warranty of authority than the same state of facts the agent- instead of being, upon the instrument itself. White v. Madison, 26 N. as he was, a man of no financial credit whatever — Y. 117. This view seems unsatisfactory when ap- had possessed large pecuniary resources, it would plied to the case of negotiable paper, and, certainly, certainly seem most unjust that an innocent contractought not to be admitted as affecting injuriously the ing party should be barred from resort to him in the rights of indorsees in good faith.
event of the insolvency of the copartnership; and 2. Where the principal is undisclosed. — In the case in such a case we think that this apparent exception of dealings by an agent in his own name, and with- would fail. out reference to his principal, there is a certain want 3. Where the agent acts for a foreign principal. — of fairness and candor toward the other contracting Where the principal resides in a foreign country, one party, which, independently of the agent's part in the who contracts with the agent cannot in general be contract itself, would seem to throw a liability upon supposed to have any accurate knowledge of the him. It is his duty to inform persons transacting financial standing of the principal, and on that account business with him of the subordinate position which a presumption arises that credit must have been given he holds: “He must say plainly," says Lord Ellen- to the agent himself, which presumption the agent borough, “I am the mere scribe, or he will be liable.” must rebut in order to escape liability. Paterson v. Leadbitter v. Farrow, 5 M. & S. 345. These prin- Gandasequi, 15 East, 62; Addison v. Gandasequi, 4 ciples became firmly settled in England by a series Taunt. 573. So it was held in the case of De Gaillou of cases toward the close of the last century, promi- v. L'Aigle, 1 Bos. and P. 8 and 356, where a husband nent among which was that of George v. Clagett, 7 who resided out of England had given his wife in Term R. 359, where it was held by Lord Kenyon, that London a power of attorney to transact his business, where an agent sold goods in his own name, and the pur- that she was personally liable on her contracts, and chaser knew nothing of the principal, on the agent's be- this, too, in spite of her coverture. And ratification coming bankrupt and the principal demanding the price by the principal in this case, as in all others, cannot of the goods from the purchaser, the latter might set off cut off the contracting party from any equities he a claim existing against the agent. This doctrine has I might have against the agent.
It seems to be the view that for the purpose just agent, and, accordingly, we find such execution noticed, the States of the Union are foreign to each limited by a variety of restrictions, as, for example, other. Taintor v. Prendergast, 3 Hill, 72.
that it must be by virtue of a power of as high author4. Where the agent voluntarily incurs liability.— An ity as the instrument is itself to possess, that the covagent may, unquestionably, by giving to the other enants in the instrument must purport to be those party the support of his personal credit, become of the principal by his agent, and that none of the not only secondarily liable, as guarantor, but in some necessary minor formalities shall be omitted. See cases primarily so. Jones v. Littledale, 6 Ad. & El. Combe's Case, 9 Coke, 75. If these conditions 486; Tanner v. Christian, 29 Eng. L. and Eq. 103; have been complied with, it is universally admitted White v. Skinner, 13 Johns. 307. Still, in the case that the principal is liable, and he alone; if they have of an agent of a known principal acting within the not, the rule is as widely accepted that the principal bounds of his authority, the evidence must be very is discharged and the agent is responsible. clear that personal credit was given to the agent But this very rigor of construction of which we rather than to the principal, since there is a pre- have spoken requires that, if the covenants are not sumption to the contrary, which must be rebutted by those of the principal — by reason of a defective the party who seeks to establish the agent's liability. execution or a lack of authority by the agent, or Nevertheless it seems to be the law in New York whatever the cause may be — yet the agent shall that, when an action is brought against a principal only be held upon them, when the language used or upon a contract made by his agent, he may set up as the mode of signing may reasonably be considered to a defense the fact that exclusive credit had been given have the effect of making him a party to the instruto the agent. Meeker v. Claghorn, 44 N. Y. 349. ment. Hopkins v. Mehaffy, 11 Serg. & R. 126;
5. Where there is no responsible principal. Where Stone v. Wood, 7 Cow. 453; White v. Skinner, 13 one representing an irresponsible person enters into Johns. 307. To go beyond this would be to trespass contracts as agent of that person, it is a just and upon the rule forbidding the introduction of parol equitable rule that such agent shall answer upon the evidence to vary a written contract; accordingly, in contract personally. A good illustration of this all cases not within the principle as just stated, the principle is found in the case of Turrell v. Collet, 1 remedy is to be found in an action of tort against the Esp. 320, where a father, to whom a business be- agent for damages sustained from his wrongful act. longed, had from old age become impaired in mind to Abbey v. Chase, 6 Cush. 56. such an extent that he was utterly incapable of at
2. Written agreements not under seal. Questions tending to his affairs. Here it was held, that his son, concerning the liability of an agent upon instruments who carried on the business for him, was, in reality, of this class are of extreme frequency, and the adjudiliable, and the proposition was laid down by Lord cated cases present a bewildering conflict of views. Kenyon, that it is upon the ostensible conductors of
Yet it is believed that the diversity of opinion arises business that contracting parties have a right to rely. rather upon the nature of the liability than upon the Similar questions have arisen in the case of infants fact of liability itself, and that the agent's responsiand lunatics, where substantially the same views have bility, in some form or another, is very generally obtained. See Thacher v. Dinsmore, 5 Mass. 299; recognized by the courts in the various instances Forster v. Fuller, 6 id. 58. On like grounds, where previously mentioned, such as lack of authority, undisparties entered into a contract in favor of a company closed principal, etc. The real point of discussion, not at the time incorporated, they were held person- however, is, whether the agent is so responsible, ex ally liable. Kelner v. Baxter, Eng. L. R., 2 C. P. 174. contractu, upon the instrument itself, or in an action
on the case for damages. SECTION II.
There is a desire on the one hand that the contract shall rather stand than fall, which has led to a very
great liberality, to say the least, of construction, for WRITTEN INSTRUMENTS.
the purpose of bringing in the agent as a party when The various instruments upon which an agent may the principal cannot be held. This view prevailed incur liability may be grouped into three general generally in the earlier English cases, prominent among classes: 1. Sealed instruments; 2. Written agree- which is that of Cass v. Rudele, in 1692, where the ments not under seal; and 3. Negotiable paper. court of chancery entertained a bill against an agent
1. Sealed instruments. — The importance attached who had entered into articles of agreement for the by the old common law to sealed instruments, arising, purchase of several houses in the island of Jamaica, as it did, from the solemnity attendant upon their and, after performing the contract in part, refused to execution, led to a great degree of rigor in constru- complete performance on the ground of having no ing them, and a jealous care that the requisite formal effects of the principal in his hands. A decree for ities should be complied with. It is obvious, that this specific performance of the contract was given, and watchfulness was in no case likely to be more stringent this, though the houses had, pending the suit, been than in the execution of sealed instruments by an destroyed by an earthquake. The decree was after
THE LIABILITY OF AN AGENT ON VARIOUS CLASSES OF
ward confirmed on appeal to the house of lords. row, 5 M. & S. 345; Hovey v. Magill, 2 Conn. 680; Cass v. Rudele, 2 Vern. 280. See, also, Appleton v. Pentz v. Stanton, 10 Wend. 271. On these grounds, Binks, 5 East, 148.
where a bill was drawn upon the agent of a corporaOf late years, however, the current of decisions tion personally, and accepted by him “For the comhas been opposed to this view, and it has but little pany, A. B., agent," it was held, that he was liable force in the English law at present. See Jenkins v. on the instrument, for, since he chose to accept a bill Hutchinson, 13 Q. B. 744; Lewis v. Nicholson, 12 Eng. drawn upon him thus absolutely, he must be considL. & Eq. 430. It has, however, until within a few ered to have done so unconditionally.
Mare v. years, been very uniformly followed in the State of Charles, 5 Ell. & Bl. 978; see, also, Stevens v. Hill, New York. White v. Skinner, 13 Johns. 307; Stone 5 Esp. 247. v. Wood, 7 Cow. 453; Palmer v. Stephens, 1 Denio, However, in case the instrument contains enough 471. But recently several cases in the supreme court upon its face to render it fairly doubtful whether the have seemed to militate quite strongly against it. principal or the agent is to be looked to, then the rule Walker v. Bank of New York, 13 Barb. 639; Sher- as to parol evidence is inapplicable, and the agent man v. N. Y. C. R. R. Co., 22 id. 239; Church of may discharge himself from liability by showing that St. Peter v. Varian, 28 id. 644.
the 'consideration passed to his principal, that excluThe other theory as to the agent's liability, and one sive credit was given to him, and like defenses. Kidwhich seems founded on much more logical principles son v. Dilworth, 5 Price, 564; Mott v. Hicks, 1 Cow than the preceding, is generally adopted at present in 513; Brockway v. Allen, 17 Wend. 40; Olcott v. Tioga. England and our own eastern States, and is quite R. R. Co., 27 N. Y. 546. similar to the rule mentioned in speaking of contracts II. But when an agent has become a party to a under seal, namely, that if the contract does not bind negotiable instrument, and it has been transferred by the principal we are to examine whether apt words indorsement to third persons, then, no matter what are used to bind the agent; if so, he is liable on the description of his agency he may have added to his contract; if not, the remedy is an action against him signature, he is still held personally liable, by reason on the case for wrongfully assuming authority to act of the principle on which the theory of negotiable as agent, the contract under this latter aspect being paper rests, that, when the note or bill has passed beconsidered as wholly void. Ballou v. Talbot, 16 Mass. fore maturity, and for value, into the hands of one 461; Ogden v. Raymond, 22 Conn. 385; Woodes v. who was a stranger to the original contract, all equiDennett, 9 N. H. 55.
table defenses which may have existed as between the 3. Negotiable instruments. In the case of such in- parties to that contract are cut off. Each indorsee struments as promissory notes and bills of exchange, has a right to rely upon the credit of previous para new element is found, namely, their capacity of ties, and cannot be expected to go into inquiries as to passing into the hands of parties foreign to the original whether any particular one of them was acting for contract. Accordingly, when one acting as agent himself or for another when he signed or indorsed becomes a party to such paper, either as maker, the instrument. Polhill v. Walter, 3 Barn. & Ad. acceptor or indorser, we may consider his consequent 114; Dusenbury v. Elis, 3 Johns. Cas. 70. liability under two very different aspects which it assumes -- first, as between the original parties to the The foregoing sums up in a very general way some instrument, or as between the agent and an indorsee, of the leading principles governing the liability of an with notice of the existing state of facts; and secondly, agent to parties contracting with him.
Technical as as between the agent and indorsees, in good faith and any particular rule may appear, and harsh in its appliignorant of the fact of agency.
cation to individual cases, yet it cannot be doubted I. We have spoken of the agents becoming a party that the ultimate effect of all is to lend a powerful to the instrument; this, of course, will only be the element of security to dealings with agents, to induce case where there has been a faulty execution; for, greater method and regularity in business transwhere the agent B., acting within the scope of his actions, and to widen and strengthen commercial authority for his principal A., signs, or accepts, or
intercourse. indorses, as the case may be, under the form “A. by B.,” he makes the act that of the principal, and can- AMERICAN REPORTS AND REPORTERS. not be considered as being himself a party to the in
No. X. strument. But if an agent sign his own name to the
(Concluded.) note, and there is nothing upon the note to show the fact of agency, it is believed that he cannot relieve himself from liability even as against a party know- The supreme court of the Territory of Minnesota ing of the facts of the case, to say nothing of an en- was organized in June, 1849. In July, 1851, William tirely innocent person, since parol evidence cannot Hollinshead was appointed reporter by the court, and be admitted to destroy the effect of the instrument. reported cases decided at the July term, 1851. In Maber v. Massias, 2 W. Bl. 1072; Leadbitter v. Far- March, 1852, Isaac Atwater (afterward judge of the
supreme court of the State) was appointed reporter may report their own decisions or appoint a reporter, by the governor, and reported cases decided at the who shall hold his office at the pleasure of the court. July term, 1852. The reports of Mr. Hollinshead and But one solitary report has been evoked from the Mr. Atwater were published as an appendix to the decisions of this young but immense State, and that session laws of 1853, in pursuance of an order of the is published by James M. Woolworth, counselor at court, under the respective titles of “Hollinshead's law, and is called "1 Nebraska.” The historian of Reports” and “Atwater's Reports." In February, 1882 will probably have a larger number of Nebraska 1854, John B. Brisbin was appointed reporter, and reports to record. reported the cases decided at the January term, 1854.
IDAHO. Michael E. Ames was appointed reporter in March, Idaho, too, has its "one" volume of reports, contain1856, and commenced the preparation of a volume of ing a few cases decided in the supreme court of the reports, but he resigned in October, 1857, and was territory in 1866–67, reported by John Cummins, who succeeded by Harvey Officer, who reported cases de tells us, in his preface, that “the business of the sucided in January of 1856, '57 and '58, and, combining preme court" is “not accumulating with a great his own reports with those of his predecessors, com- deal of rapidity.” But, at the close of his preface, pleted a volume styled “1 Minnesota," containing the the reporter follows the example of the reporters of reports of all cases decided from the organization of many of the States whose reports may be numbered the territorial court until 1858, when Minnesota was by the score, but whose reporters will never cease (it raised to the rank of a State. On the organization seems) to publish works for which apologies are necesof the supreme court under the State constitution, it sary. He says: “ Confident that their utility and became the duty of the judges to appoint a reporter value in the honest administration of our laws will of its decisions, and Mr. Officer was thereupon con- greatly outweigh the errors and imperfections they tinued as reporter, and prepared eight additional may contain, I tender these reports to an indulgent volumes (2-9 Minn.), containing cases decided from profession." the organization of the State supreme court until 1864. Wm. A. Spencer succeeded Mr. Officer as State
The rise of the greatest of the Pacific States in reporter, and has already produced six volumes (10-15 population and power has scarcely surpassed the Minn.), containing cases decided in 1864–70.
rise of its litigation in extent, and its adjudications in
authority. The first volume of reports, styled “1 CalNevada was admitted into the Union of States in
ifornia," was reported by Nathaniel Bennett, one of 1864, and the first regular term of its supreme court
the judges of the supreme court, and contained cases
decided in 1850–51. The reporter, in his preface, furwas held in January, 1865. By an act of the legislature of the State, passed in March, 1865, it was
nishes the profession with a clear view of the develprovided as follows:
opment of law in California, and the organization of
the State government and the courts, and gives the $ 1. It shall be the duty of the judges of the supreme court of this State, to render written decisions in all
history of his volume of reports thus: “A statute of cases to them submitted, except when cases on appeal
the State authorized the supreme court to appoint a are discussed on ex parte motion.
reporter, and it appointed Edward Norton, Esq. He $2. It shall be the duty of the judges of the supreme had, as early as May, 1851, advanced far in the prepacourt to prepare for publication, by giving the title of
ration of a volume of reports, but his manuscript was the cause, a syllabus of the points decided, a brief
destroyed in the fire of May 4, 1851 (San Francisco). statement of the facts bearing on the points decided (when the same are not sufficiently stated in the opin
He then resigned his office, and the undersigned, by ion), the names of the counsel and a reference to such
the advice of his associates on the bench, assumed the authorities as are cited and have a special bearing on task of reporting the decisions." the case. It shall also be the duty of such judges to On the completion of Judge Bennett's Reports, H. make an index to each case as decided."
P. Hepburn was appointed reporter and produced In pursuance of this statute the judges procured the
three volumes (2–4 Cal.), containing cases decided in pnblication of the first volume of the “Nevada State
1852–54. “Five" California was reported by Wm. Reports,” which contains cases decided in the year Gouverneur Morris and contained cases decided in 1865, and bears the name of J. F. Lewis, the chief
1855. Then follow Booraem's Reports, by H. Toler justice of the court. The subsequent volumes of the Booraem, three volumes (6-8 Cal.), containing cases Nevada State Reports have been prepared for publica- decided in 1856–57; Lee's Reports, by Harvey Lee, tion by Alfred Helm, clerk of the court, under the four volumes (9-12 Cal.), containing cases decided in direction and supervision of the judges, and assisted
1858–59; Harmon's Reports, by John B. Harmon, by Theodore H. Hittell. The last volume (6 Nev.) three volumes (13–15 Cal.), containing cases decided contains cases decided in 1870–71.
in 1859–60; Bagley & Harmon's Reports, by David
Z. Bagley, official reporter, four volumes (16-19 Cal.), The laws of Nebraska relative toʻreports and re- containing cases decided in 1860–62; Hillyer's Reporters are neither explicit nor arbitrary. The judges ports, by Curtis J. Hillyer, three volumes (20-22
Cal.), containing cases decided in 1862–63; Tuttle's fact we can very well understand our contemporaries' Reports, by Charles A. Tuttle, ten volumes (23–32 suggestion, for a "fellow feeling makes him wondrous Cal.), containing cases decided in 1863–67, and Hale's kind.” With editors “as schoolmasters of the bar,” Reports, by J. E. Hale, five volumes (33–37 Cal.), con- we should reasonably expect to reach a capacity for taining cases decided in 1867–69. In 1870 the legis- libel, slander, and "all uncharitableness,” never before lature repealed all former laws relative to the reporter reached by any bar in the world. and enacted among other things that "$ 3. It shall be the duty of the reporter of the supreme court to pre- The Stokes trial has demonstrated, if any demonpare, in an exact and accurate manner, a report of all stration was necessary, the utter futility of the act such cases decided by said court as he may be direct of the last session relating to challenges of jurors in ed to report by the court. Each report shall include criminal cases (ch. 475), at least in so far as that act the title of the case, a synopsis of the points decided, sought to make intelligent reading men competent to a clear and brief statement of the facts, so far as may act on a jury. That act provides that the formation be necessary to present distinctly the points decided
or expression of an opinion, etc., shall not be a suffiwhen such statement is not given in the opinion of cient ground of challenge for principal cause "prothe court, the points made and authorities cited by vided,” etc., leaving the law as to challenge for favor counsel, so far as the same are passed upon in the precisely as it stood before. So that a man who has opinion of the court, with the names of the counsel formed or expressed an opinion or impression may and the opinions of the court, subject to the supervis- be challenged for favor, and set aside by the triers as ion and correction of the judges.” Under these ex- readily as ever. Nor do we discover that a statute plicit regulations Tod Robinson was appointed can be made that will obviate the existing objections, reporter and published one volume (38 Cal.), contain- if they are objections, for while a challenge for prining cases decided in 1869, Mr. Robinson was suc- cipal cause is to be decided by the judge strictly
eeded by R. Aug. Thompson, who has reported two according to the law, a challenge for favor is to be volumes (39, 40 Cal.), containing cases decided in decided by the triers, and, if they see fit to disregard 1870-71.
a rule of law or a statute, there is no revising their
decision. The reports of this State are neither numerous nor voluminous. They consist of two volumes, reported The action of Judge McCunn's counsel in withby J. G. Wilson, clerk of the supreme court. The drawing from his defense seems, on its face, somewhat first volume contains cases decided in the supreme extraordinary, but whether it was the result of a concourt of the Territory, from 1853 to 1859, at which viction that the case was hopeless from lack of merit, time Oregon became a State, and cases decided in the or from the temper of the senate, opinions differ. The supreme court of the State, from 1859 to 1862. The counsel, who are certainly honorable men, and worthy second volume contains cases decided in the supreme of credit, publicly declare their belief in the judge's court of the State, from 1862 to 1869.
innocence of intentional wrong, and base their action on the assumption that a fair trial was not to be had.
It is well understood that a counsel is stepping outside There is a little volume of reports called the of the utmost limit of his duty to his client when he "Washington Territory Reports," and "published by declares a belief as to his client's innocence, contrary authority,” containing cases determined in the su- to his personal convictions. With this in mind, we preme court of the Territory, from its organization in can but accept the reasons for the withdrawal assigned 1854 to 1864. It was published at Olympia, and in the communication, which we print elsewhere. with such dignified, patriotic and classic names as This action had the desirable effect of cutting short an “Washington” and “Olympia” upon its title page, it investigation which bade fair to drag its slow lengths is a pity that its authorship remains in umbris.
along for weeks. The objection of the counsel to the jurisdiction of the senate, as we have before explained,
was based on the theory that the governor had not CURRENT TOPICS.
recommended the removal of Judge McCunn in the A daily contemporary asks: "Would it not be well
manner prescribed in the eleventh section of article six for journalists to advocate the enactment of a law for of the constitution. the protection of witnesses, and in the meanwhile applaud, as schoolmasters of the bar, those who hold
The senate, on Tuesday last, voted unanimously to lawyers responsible outside of the court-house for remove Judge McCunn from office, and so we are, at what they have said within it?” A witness who least for the time being, rid of another of the few tells his story in a straightforward, truthful way judges who, wittingly or unwittingly, have brought never needs any “protection.” It is only that class reproach upon our judiciary. If his counsel have that of witnesses who intends to tell the truth only as a faith in him and his cause that they profess in their last resort that needs protection, and in view of this letter, they will speedily bring the question before the