paid him the proceeds, and having suffered afterward in an action at the suit of the true owner, they were to find themselves wrong-doers, and could not recover compensation from him who had induced them to do the wrong." See Betts v. Gibson, 2 A. & E. 57; Humphrey v. Pratt, 2 Dow. & Cl. 288; Pearson v. Skelton, 1 M. & W. 504; Fletcher v. Harcott, Hutt. 55.

Two recently reported decisions serve briefly to illustrate the rule and the exception. The first is the case of Atkins v. Johnson, 43 Vt. 78; and the second, Armstrong County v. Clarion County, 66 Penn. St. 218. In the first case the plaintiff was the publisher of a newspaper, and the action was on an agreement in writing whereby the defendant agreed that, if the plaintiff would publish in his newspaper an article entitled "A Jack at all Trades Exposed," he, the defendant, would defend and save harmless the plaintiff from all damage and harm that might accrue to the plaintiff in consequence of such publication. The article proved to be a libel, and the plaintiff was sued, and judgment recovered against him therefor, and paid. The court held, that the agreement could not be enforced, and remarked: "In this case these parties in the outset conspired to do a wrong to one of their neighbors by publishing a libel upon his character. The publication of a libel is an illegal act upon its face. This both parties are presumed to have known. The publication not only subjects the party publishing to a prosecution, by the person injured, for damages, but also to a public prosecution by indictment. In either case all that would be required of the prosecutor would be to prove the publication by the party charged. The law in such cases presumes malice and damage, and the prosecutor would be entitled to judgment unless the party charged could introduce something by way of defense that would have the effect to discharge him from legal liability. * * * In this case both these parties knew that they were arranging for and consummating an illegal act, one that subjects them to legal liability, hoping, to be sure, that they might defend it; but the plain- | tiff, fearing they might not be able to do so, sought to protect himself from the consequences by taking a contract of indemnity from the defendant. To say under such circumstances that those parties were not joint wrong-doers, within the full spirit of the general rule, would be an entire perversion of the plainest and simplest proposition. This being so, the law will not interfere to aid either." The cases bearing directly on the question at bar are in entire harmony with the above decision.

In Colburn v. Patmore, 4 Cr. M. & R. 73, the proprietor of a newspaper sued his editor for falsely, maliciously and negligently inserting a libel therein, without the knowledge, consent or authority of the plaintiff, "in consequence of which the plaintiff was convicted and fined for falsely and maliciously printing and publishing the said libel." The case was decided on a technical error in the pleadings; but the

question whether a newspaper proprietor, convicted and fined in consequence of the publication of a libel by his editor, without his knowledge or consent, could maintain an action for indemnity, was elaborately discussed at the bar, during the argument, and the court, in delivering judgment, expressed a strong opinion that he could not. "I am not aware," said Lord Lyndhurst, C. B., "of any case in which a man convicted of an act declared by law to be criminal, and punished for it accordingly, has been suffered to maintain an action against the party who participated with him in the offense, in order to procure indemnity for the damages occasioned by that conviction; but, after hearing the argument, I entertain little or no doubt that such an action could not be maintained."

This case extends the principle much farther than does the preceding cne, as the plaintiff was morally innocent, having no knowledge of the publication of the libel. But the law presumes him to be cognizant of the libel, and therefore liable for it. The proprietors of newspapers are said to furnish the single exception to the rule that a master shall not be criminally responsible for the acts of his servant done without his knowledge or authority. This exception is thought to be necessary for the protection of the public. But the presumption having accomplished that object, it would seem a hardship to continue it, so as to exempt the person morally guilty from punishment.

A question precisely similar to that in Atkins v. Johnson was presented in Shackell v. Rosier, 29 Com. L. 438. The plaintiff Shackell was the publisher of a newspaper, and, at the request of the defendant, published for the latter an article libelous on its face, but which he was assured was true. The party aggrieved brought an action against the plaintiff for the libel, and the defendant promised the plaintiff that if he would defend the suit he would indemnify him for all costs and damages. A recovery was had in that suit, and then Shackell sued for the indemnity. Park, J., said: "It would be productive of great evil if the courts were to encourage such an engagement as this, and thereby hold out inducements to the propagation of illegal and unfounded charges." Vaughn, J., said: "In this case, the court itself would become accessory to the publication of libels if it was to enforce such a contract as the present."

So in Arnold v. Clifford, 2 Sumner, 238, it was held, that a promise to indemnify the publisher of a libel is void. "No one," said Judge Story, "ever imagined that a promise to pay for the poisoning of another was capable of being enforced in a court of justice."

In the case of Armstrong County v. Clarion County, before referred to, a traveler was injured, while passing over a bridge, by its breaking down. The bridge was maintainable jointly by two counties, one of which was sued for negligence leading to the injury, a recovery had, and the judgment paid. An action was thereupon brought by that county to recover

contribution from the other, and the court held, that contribution should be made. It appeared in the case that the commissioners of both counties, not long before the accident, had made a joint examination of the bridge, and ordered some slight repairs to be done, which order was carried out. The court said: "The parties, plaintiff and defendant, are two municipal corporations, jointly bound to keep this bridge in repair. These bodies can act only by their legally constituted agents, their commissioners, who examine the structure, and order repair, which is done. They erred in judgment, and both were liable for the consequences of that error, and one having paid the whole of the damages is entitled to contribution from the other."

This case clearly falls within the exception, as in the language of Taunton, J., in Betts v. Gibbons, 2 A. & E. 57: "The matter was indifferent in itself, and turned upon circumstances whether the act be wrong or not." Story thus states the principle: "But the rule is to be understood according to its true sense and meaning, which is, where the tort is a known, meditated wrong, and not where the party is acting under the supposition of the entire innocence and propriety of the act, and the tort is merely one by construction or inference of law. In the latter case, although not in the former, there may be, and properly is, a contribution allowed by law for such payments and expenses between constructive wrongdoers, whether partners or not." We are of the opinion, that the general rule may be thus expressed.. Between actual wrong-doers there can be no contribution, but between constructive wrong-doers there may be. Thus, where one stage coach proprietor was sued, and a recovery had, for the negligence of a driver, it was held, that he could recover contribution from a joint proprietor on proving that he was not present and had no knowledge of the alleged negligence. Pearson v. Skelton, 1 Mees. & Wels. 504; Wooley v. Batte, 2 C. & P. 417. The court, in those cases, held, that the rule, no contribution between joint tortfeasors, does not apply to a case where the party seeking contribution was a tortfeasor only by inference of law; but is confined to cases where it must be presumed that the party knew he was committing an unlawful act. So, in a like case in Pennsylvania (Horbach v. Elder, 18 Penn. St. 33), where five persons were engaged in running a line of stages along a road, for designated parts of which coaches, horses and drivers were to be furnished by each at his own proper expense and with exclusive control, passengers were injured through the carelessness of the driver, damages therefor were recovered against two of the five co-owners, and an action against the others for contribution was sustained.

upon the request and under the authority of that party, does acts that are legal in themselves, but which prove in the end to be in violation of the rights of the other party, and he, in consequence, is made liable in damages. In such case the law will imply promise of indemnity in the absence of a direct agreement. Such are the cases of Betts v. Gibbons, 2 A. & E. 57; Humphrey v. Prall, 2 Dow. & Cl. 288; Dixon v. Fawcus, 2 B. Hil. T. 1861; Burgess v. Hills, 26 Beav. 244.

RATIFICATION OF FORGERY.

The pretended or alleged ratification of a forgery so seldom occurs that the adjudications upon the precise point are exceedingly limited. It is a principle quite well settled that an act unauthorized at the time of its performance, but assumed to be in the name of, and for another, may be subsequently ratified by such other without a new consideration. See Wilson v. Tumman, 6 M. & S. 236. Tindal, C. J., in this case, says the rule is "well settled" that an "act done for another by a person not assuming to act for himself, but for such other person, though without any precedent authority whatever, becomes the act of the principal, if subsequently ratified by him." But, although the cases are numerous and decisive as to this point, they are not so as to the case of a ratification of the act of one not assuming to act for, but personating another. The acceptance of a forged bill of exchange has often been decided to be binding upon the acceptor, not, however, from the force of the doctrine of ratification, but upon the theory of estoppel, and from the sanctity of negotiable paper and that respect for the rights of third persons which the law is always ready to enforce. See Bank of the United States v. Bank of Georgia, 10 Wheat. 333; Mather v. Lord Maidstone, 18 C. B. 273; Leach v. Buchanan, 4 Esp. 226; Cooper v. Le Blanc, 2 Strange, 1051; Beeman v. Duck, 11 Mees. & W. 251; Hall v. Fuller, 5 Barn. & C. 750; Stout v. Benoist, 39 Mo. 277; Dodge v. National Exchange Bank, 20 Ohio St. 234; Van Duzer v. Howe, 21 N. Y. 531. An alteration in the amount is held to be an exception to the rule that an acceptance of a forged draft or bill of exchange is binding. See Worrall v. Sheen, 39 Penn. St. 388; Bruce v. Bruce, 5 Taunt. 495; Goddard v. Merchants' Bank, 4 N. Y. 147; Bank of Commerce v. Union Bank, 3 id. 230; Hall v. Fuller, 5 Barn. & C. 750; Wilkinson v. Johnson, 3 id. 428; Young v. Grote, 4 Bing. 253; Graham v. Gillespie, Ross' L. Cas. Bills & Notes, 195; Pagan v. Wylie, id. 194.

defendant and J. The plaintiff had received the note from J. on the day of its date, and before it was due he had an interview with defendant and showed him the note. The defendant denied that the signature was his and said it must be a forgery of J's; upon which the plaintiff said he would cominence criminal proceedings against J. The defendant, in order to prevent this, said he would hold himself responsible on the note, and gave the following memorandum: "I hold myself responsible for a bill dated November 7, 1869, for £20, bearing my signature and J's, of Mr. Brooke, Richard Hook." Held, by the majority of the court (Kelley, C. B., Channell and Pigott, BB.,) Martin, B., dissenting, that the memorandum was not a binding ratification, and that it was no estoppel precluding defendant from showing at the trial that the signature was a forgery. In Williams v. Bagley, L. R., 1 H. L. 200, the house of lords seems to have decided a similar question. In this case a father made a mortgage to secure the amount of bills forged by his son, which were then given up to him, and it was held, that the transaction was one in substance, made with a view of stifling the prosecution and was invalid. It will be observed that in the cases of Brooke v. Hook and Williams v. Bagley, the court of exchequer and the house of lords impliedly decide, that a ratification of a forgery without a new consideration is a legal impossibility, and expressly decide that the ratification of a forgery, on consideration that the forger may not be prosecuted, is equally illegal and invalid.

In Wilkinson v. Storey (1839), 1 Jeff & Syme, 509, (court of Q. B. and Exq. Ch. of Ireland), the defendant's name appeared as acceptor upon a bill of exchange drawn by W. C., who held it as banker to the plaintiffs (indorsees of the bill), wrote to ask the defendant if it was his acceptance; the defendant's clerk stated in answer that it was not, but ten days afterward the defendant wrote to C. as follows: "Sir-In March last I purchased a parcel of linens from Mr. W. (the drawer), on which he had an accommodation bill until all the goods were delivered, and as he was to take up that bill himself, it did not appear in the bill book; my clerk was not aware of the circumstances when he replied to your note during my absence. Mr. W. called here yesterday while I was in Tandragee; he had drawn for the £214, 16s you mention due the 17th inst., and for which he states he has sufficient funds to meet at maturity. He requests me to write this to you in order to remove any doubt you may have respecting it." On a subsequent application by C. to the defendant in person, the latter said the acceptance was not in "his handwriting." The bill was kept by C. until it became due, nine days after, when, on its being dishonored, the plaintiff's attorney applied to the defendant, who said he would not pay the bill, as it was a forgery. Held, that the question whether upon the true construction of the letter, taken in connection with the subsequent

circumstances the defendant had adopted the acceptance, was entirely for the jury. This case was not well considered, and the opinion (by Burton, J.) occupies but four lines. One reason for the decision may be inferred from a reply to a question by Judge Burton to Gilmore, counsel for plaintiff, asking "how it appeared that the condition of the plaintiffs as holders of the bill had been altered by the letter,” to which counsel replied: "they were lulled into security by this letter, addressed to the bankers (who are to be considered as the plaintiff's agents), and withheld from making further inquiries or proceedings against the drawer."

The American decisions in point are equally few with the English decisions. In McHugh v. The County of Schuylkill, 67 Penn. St. 391, it appeared that the plaintiff's name was signed, without his knowledge, by his daughter, as a surety upon a bond, the principal using the daughter as the innocent instrument in effecting his object. The judge, at the trial, instructed the jury that if the plaintiff subsequently approved and acquiesced in this void act the bond was binding on him. But the supreme court, on appeal, held, that a forgery was incapable of ratification, and that it required a new consideration to render a confirmation valid. But the contrary doctrine was held in Howard v. Duncan, ante, vol. 3, pp. 331 and 385, decided in the supreme court of the State of New York. In that case the plaintiff sued as indorsee of a note purporting to be signed by defendants as joint makers, and given by Spencer Duncan, the defendant. Defendant Duncan averred that his name had been forged, but evidence was given that he had ratified the signature by an unwritten promise, without new consideration, and had promised to be bound thereby. The court, at general term, declared that it could not 'perceive any reason why a person whose name has been forged may not adopt and affirm the signature as his own act, and thereby subject himself to whatever civil liability may follow from it." This case was not carried to the court of appeals, that we are aware

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of, and, consequently, we have no decision from the court of last resort in New York upon the precise point involved.

Whatever may be said of the moral attitude of one who promises to ratify, confirm and hold binding an instrument bearing his forged signature, but who afterward refuses to keep his promise, it seems to be the policy, principle and practice of the courts generally to hold such a promise, being without a new consideration, utterly void. Especially is this the case where the right of third persons do not intervene, or where the ratification, so called, is to save a guilty person from criminal prosecution.

In the English house of commons the bill of Mr. Bass, for the abolishment of imprisonment for debt, has been defeated by a large majority.

CURRENT TOPICS.

The fascinations and allurements of the most fashionable and thronged watering place in America may not be the most conducive to sober, close and assiduous mental toil in the department of jurisprudence; the atmosphere of such a place may not be favorable to the severe and critical trial of a great cause; the libraries and repositories of such a place may consist more of novels, philosophical treatises on art, and poems, than of works on jurisprudence, reports of adjudged cases and records of important documents; the heat of the summer, even in such a place, may not be favorable to the full, free and vigorous exercise of the mental functions of either court or counsel in the hearing and conduct of a great cause; but it is to be hoped that the counsel and the judges in the case of the impeached Judge Barnard, who meet next Wednesday at Saratoga to try the accused for mal and corrupt conduct, while in the office of judge of the supreme court, may be not as other men, may be able to resist all seductive fascinations and overcome all unfavorable influences, of temperature, of place, of environment, and remember how the stalwart and unconquerable soldiers of Hannibal, weakened by the voluptuousness which the citizens of Cannæ induced them to participate in, lost a great battle and were never afterward able to take Rome.

1

The proposed changes in the jury system of England are worthy of a successful enactment there, and, some of them, of an adoption here. One of the most important changes is the reduction in all cases, civil and criminal, except in trials for murder, of the number of jurors from twelve to seven, of whom two shall be special and five common jurors. Unanimity in the verdict is still to be required which is not so good as the majority rule, although this difficulty is diminished with the diminution of the number. There are a number of special juries provided for in the new ill, which proceeds, doubtless, from a growing desire, on the part of the profession, to have before them a more intelligent and specially prepared set of men than is ordinarily drawn from the promiscuous crowd. The jury, de ventre inspiciendo, is properly enough abolished, as it is a well-known fact that medical persons alone are qualified to ascertain the fact of pregnancy. The age of exemption is sixtyfive; members of the profession are exempt, but clergymen are not. If the jury is to be continued, as we suppose it must, let it be conformed, as nearly as possible, to the bench.

A curious, and at the same time, eminently benevolent rule of law was laid down recently in the court of queen's bench, England, which illustrates the subserviency to the public interest in which the railways of that country are held by the law in contrast to the antithetical condition of things in this country, where the public interests are held in subserviency

by the railway companies. In the case in which the rule referred to was laid down, it appeared that there had been a railroad accident at Horsley-Fields Junction in December, 1870, at which several persons were injured, three of whom were taken to the next inn by the servants of the company and there lodged at the request of such servants or agents. The injured persons remained three weeks and their bill was £100, for which the landlady brought action against the railway company. The company contended that their officers had no authority to pledge their credit; but the lord chief justice decided, that it was a case of agency from necessity, and, the other judges concurring, judgment was granted the plaintiff for the amount of the bill. Now the settlement of such a rule of liability in any country would conduce to the most humane and generous treatment of persons injured in railway accidents; for it seems that, in this recent case, the question of the liability of the company for the injuries received by its passengers did not arise, and the sole question involved was the duty of a railway company, under such circumstances, to provide a proper place of safety for persons whom they have undertaken to convey over their road, but whom they have, negligently or unavoidably (it matters not which), injured and failed to carry through.

The Stokes trial is progressing rapidly, and a verdict will probably be reached early in the coming week. The main theory of the defense is, that the killing of Fisk was in self-defense - the usual defense of insanity being, of course, interposed, but kept partially in the background as a reserve. Stokes himself swears that Fisk first drew a revolver, and the woman Mansfield is brought in to fortify the statement, and probably to work upon the sympathies of the jury, which, after the manner of juries, will probably be strongly swayed by so much female loveliness. The objections to the law allowing the accused to testify in his own behalf are very forcibly illustrated in this trial. A man shoots another in the absence of witnesses, and then comes upon the stand and swears that the shooting was in self-defense. We are very careful in some civil actions to close the mouth of the living where a party interested is dead, but in criminal matters we are not so careful. Even the best of rules work badly sometimes, but this case suggests to us that it is barely possible that we have not the best rule on this subject after all.

NOTES OF CASES.

It is so seldom that an attorney's name is stricken from the roll for dishonorable conduct that adjudications relative to the grounds of expulsion or suspension from the bar are rare. In Dickens' Case, 67 Penn. St. 169 (to appear in 5 Am. Rep.), it was held, that participation by an attorney in making pretended

gifts as a means of giving notoriety to an exhibition or show, innocent in itself, is not sufficient ground to authorize his name to be stricken from the roll. With this point in the Case of Dickens we can find no fault; for although such conduct (as Judge Agnew, who delivered the opinion of the court, says) may "lose a member of the bar the favor and countenance of the high-minded men of the profession," yet it "cannot of itself give jurisdiction to the court to take judicial cognizance of it and expel him from office. To admit such a power would expose the members of the bar to the whims, caprice, peculiar views and prejudices of the judges. The office of an attorney is too important to him, to those dependent on his efforts, and to the public, to be thus at the mercy of any one." But although Dickens escaped expulsion on this charge, he was not so fortunate upon another, viz.: that he had conspired to get an opposing attorney drunk in order to gain an advantage in a cause about to come on. This the court held to be sufficient ground for striking Dickens' name from the roll. The judge, upon this part of the case, eloquently and forcibly said: "This was a wicked act, as well as one which struck directly at the due administration of justice. In its effect and criminal purpose it differs none from tampering with a juror, corrupting a witness or bribing a judge. It strikes directly at the interests of the opposite party, with as great force as if he lost his cause from the misconduct of juror, witness or judge. The man who can do this thing is unfit to practice in a court where justice is administered, and should be expelled from its bar, or at least should be suspended from the practice until he has shown, by sincere amendment, that his offense is thoroughly purged. The office of an attorney at law is a highly honorable one, as well as one of great importance to society. The necessities of men, in a state of high civilization, require the profession of the law as a distinct calling; one to be exercised by men trained to it by a long course of study, and qualified by skill and learning to understand, protect and assert the rights of others, who, by reason of the state of society, or their own inability, cannot act for themselves. As property increases and new forms of it are developed, new institutions are created for its management; and as the business of society multiplies, interweaves and expands, and wealth and luxury follow in the train of commerce and the arts, the relations of men become more and more complicated, and render the profession of the lawyer indispensable and important. Integrity, as well as skill and learning, is essential to the charac. ter of the profession, and it becomes the duty of the bench, as well as of the bar itself, to preserve that character in its highest state, as a means of usefulness, and of answering the true end of a profession so honorable and at the same time so needful. Notwithstanding the prejudices of some, the ignorance of others, and even the discredit occasionally brought upon the office by unworthy members, we are glad to

know that the bar is filled with many worthy men, and that a trust and confidence almost unlimited is justly reposed in it by the public."

For his offense, Dickens was, therefore, expelled from the bar, with leave to make application to the judges of the court for re-admission after six years. We have also to record two other recent cases of expulsion from the bar, happily not in this country, but (if such things needs be) in England. In the matter of John Bennett Ayre, an attorney, 16 S. J. & R. 633, a rule was moved to the queen's bench to strike the attorney off the roll, on the charge that he had personated an articled clerk, at a recent examination of the incorporated law society, for the admission of such clerks. The object of this examination was to obtain fitting persons to occupy a position of very high responsibility. Lush, J., in delivering the opinion of the court, after commenting upon the high character of the attorney, the nature of the offense, and the efforts of counsel to save him from expulsion, gives vent to the following expressions of regret: "It is with great pain-with the greatest pain - that we have come to the conclusion that this gentleman cannot be permitted to remain upon the rolls." And the learned judge adds his consolation and inspires hope in the about-to-be-" stricken" one in the following language: "It does not follow that he will be perpetual y excluded. We do not say that he may not apply for re-admission, or that, after a period of future good behavior, the court will not re-instate him, but at present we feel that we have no option but to order that he be struck off the rolls." Not so mild in their judgment were the court in the matter of William Pope, an attorney, 16 S. J. & R. 633, to strike whom from the roll a rule was moved to the court of common pleas. The charge made against Pope was, that he had "allowed an unqualified person named Martin (who was, in fact, a corn chandler), to carry on the business in his name, in London, for a period of two years, and take the profits, paying him a percentage upon them, while the attorney himself was residing in a different part of England." There is an act of parliament against such a course, and the penalty prescribed is that the attorney or solicitor, so permitting an unqualified person to use his name or act as his agent in his business, shall be struck from the rolls, and forever disabled from practicing as an attorney in the future, and the act further imposes a penalty of imprisonment for one year upon the person so acting without qualification. The court said that "these provisions were enacted for the benefit of the public, and to secure them from being preyed upon by ignorant and unprincipled persons." The attorney was therefore struck off the rolls, and the court regretted "it was not in their power to inflict a punishment of imprisonment upon Martin." The American public are not so well protected from "ignorant" and "unprincipled" persons, yet the absence of such a statute is not seriously felt here.