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ward confirmed on appeal to the house of lords. Cass v. Rudele, 2 Vern. 280. See, also, Appleton v. Binks, 5 East, 148.
row, 5 M. & S. 345; Hovey v. Magill, 2 Conn. 680;
Of late years, however, the current of decisions has been opposed to this view, and it has but little force in the English law at present. See Jenkins v. Hutchinson, 13 Q. B. 744; Lewis v. Nicholson, 12 Eng. L. & Eq. 430. It has, however, until within a few years, been very uniformly followed in the State of New York. White v. Skinner, 13 Johns. 307; Stone v. Wood, 7 Cow. 453; Palmer v. Stephens, 1 Denio, 471. But recently several cases in the supreme court have seemed to militate quite strongly against it. Walker v. Bank of New York, 13 Barb. 639; Sherman v. N. Y. C. R. R. Co., 22 id. 239; Church of St. Peter v. Varian, 28 id. 644.
The other theory as to the agent's liability, and one which seems founded on much more logical principles than the preceding, is generally adopted at present in England and our own eastern States, and is quite similar to the rule mentioned in speaking of contracts under seal, namely, that if the contract does not bind the principal we are to examine whether apt words are used to bind the agent; if so, he is liable on the contract; if not, the remedy is an action against him on the case for wrongfully assuming authority to act as agent, the contract under this latter aspect being considered as wholly void. Ballou v. Talbot, 16 Mass. 461; Ogden v. Raymond, 22 Conn. 385; Woodes v. Dennett, 9 N. H. 55.
3. Negotiable instruments. In the case of such instruments as promissory notes and bills of exchange, a new element is found, namely, their capacity of passing into the hands of parties foreign to the original contract. Accordingly, when one acting as agent becomes a party to such paper, either as maker, acceptor or indorser, we may consider his consequent liability under two very different aspects which it assumes first, as between the original parties to the instrument, or as between the agent and an indorsee, with notice of the existing state of facts; and secondly, as between the agent and indorsees, in good faith and ignorant of the fact of agency.
AMERICAN REPORTS AND REPORTERS.
I. We have spoken of the agents becoming a party
However, in case the instrument contains enough upon its face to render it fairly doubtful whether the principal or the agent is to be looked to, then the rule as to parol evidence is inapplicable, and the agent may discharge himself from liability by showing that the consideration passed to his principal, that exclusive credit was given to him, and like defenses. Kidson v. Dilworth, 5 Price, 564; Mott v. Hicks, 1 Cow 513; Brockway v. Allen, 17 Wend. 40; Olcott v. Tioga R. R. Co., 27 N. Y. 546.
II. But when an agent has become a party to a negotiable instrument, and it has been transferred by indorsement to third persons, then, no matter what description of his agency he may have added to his signature, he is still held personally liable, by reason of the principle on which the theory of negotiable paper rests, that, when the note or bill has passed before maturity, and for value, into the hands of one who was a stranger to the original contract, all equitable defenses which may have existed as between the parties to that contract are cut off. Each indorsee has a right to rely upon the credit of previous parties, and cannot be expected to go into inquiries as to whether any particular one of them, was acting for himself or for another when he signed or indorsed the instrument. Polhill v. Walter, 3 Barn. & Ad. 114; Dusenbury v. Ellis, 3 Johns. Cas. 70.
The foregoing sums up in a very general way some of the leading principles governing the liability of an agent to parties contracting with him. Technical as any particular rule may appear, and harsh in its application to individual cases, yet it cannot be doubted that the ultimate effect of all is to lend a powerful element of security to dealings with agents, to induce greater method and regularity in business transactions, and to widen and strengthen commercial intercourse.
supreme court of the State) was appointed reporter by the governor, and reported cases decided at the July term, 1852. The reports of Mr. Hollinshead and Mr. Atwater were published as an appendix to the session laws of 1853, in pursuance of an order of the court, under the respective titles of "Hollinshead's Reports" and "Atwater's Reports." In February, 1854, John B. Brisbin was appointed reporter, and reported the cases decided at the January term, 1854.
Michael E. Ames was appointed reporter in March, 1856, and commenced the preparation of a volume of reports, but he resigned in October, 1857, and was succeeded by Harvey Officer, who reported cases decided in January of 1856, '57 and '58, and, combining his own reports with those of his predecessors, completed a volume styled "1 Minnesota," containing the reports of all cases decided from the organization of the territorial court until 1858, when Minnesota was raised to the rank of a State. On the organization of the supreme court under the State constitution, it became the duty of the judges to appoint a reporter of its decisions, and Mr. Officer was thereupon continued as reporter, and prepared eight additional volumes (2-9 Minn.), containing cases decided from the organization of the State supreme court until 1864. Wm. A. Spencer succeeded Mr. Officer as State reporter, and has already produced six volumes (10-15 Minn.), containing cases decided in 1864-70.
In pursuance of this statute the judges procured the publication of the first volume of the "Nevada State Reports," which contains cases decided in the year 1865, and bears the name of J. F. Lewis, the chief justice of the court. The subsequent volumes of the Nevada State Reports have been prepared for publication by Alfred Helm, clerk of the court, under the direction and supervision of the judges, and assisted by Theodore H. Hittell. The last volume (6 Nev.)
contains cases decided in 1870-71.
may report their own decisions or appoint a reporter, who shall hold his office at the pleasure of the court. But one solitary report has been evoked from the decisions of this young but immense State, and that is published by James M. Woolworth, counselor at law, and is called "1 Nebraska." The historian of 1882 will probably have a larger number of Nebraska reports to record.
The rise of the greatest of the Pacific States in population and power has scarcely surpassed the 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 was held in January, 1865. By an act of the legisla-nishes the profession with a clear view of the develdecided in 1850-51. The reporter, in his preface, fur
ture of the State, passed in March, 1865, it was provided 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 are discussed on ex parte motion.
§ 2. It shall be the duty of the judges of the supreme court to prepare for publication, by giving the title of the cause, a syllabus of the points decided, a brief statement of the facts bearing on the points decided (when the same are not sufficiently stated in the opinion), the names of the counsel and a reference to such authorities as are cited and have a special bearing on the case. It shall also be the duty of such judges to make an index to each case as decided."
the State authorized the supreme court to appoint a reporter, and it appointed Edward Norton, Esq. He had, as early as May, 1851, advanced far in the preparation of a volume of reports, but his manuscript was destroyed in the fire of May 4, 1851 (San Francisco). He then resigned his office, and the undersigned, by the advice of his associates on the bench, assumed the task of reporting the decisions."
The laws of Nebraska relative to reports and reporters are neither explicit nor arbitrary. The judges
Idaho, too, has its "one" volume of reports, containing a few cases decided in the supreme court of the territory in 1866-67, reported by John Cummins, who tells us, in his preface, that "the business of the supreme court" is "not accumulating with a great deal of rapidity." But, at the close of his preface, the reporter follows the example of the reporters of many of the States whose reports may be numbered by the score, but whose reporters will never cease (it seems) to publish works for which apologies are necessary. He says: "Confident that their utility and value in the honest administration of our laws will greatly outweigh the errors and imperfections they may contain, I tender these reports to an indulgent profession."
On the completion of Judge Bennett's Reports, H. P. Hepburn was appointed reporter and produced three volumes (2-4 Cal.), containing cases decided in 1852-54. "Five" California was reported by Wm. Gouverneur Morris and contained cases decided in 1855. Then follow Booraem's Reports, by H. Toler Booraem, three volumes (6-8 Cal.), containing cases decided in 1856-57; Lee's Reports, by Harvey Lee, four volumes (9–12 Cal.), containing cases decided in 1858-59; Harmon's Reports, by John B. Harmon, three volumes (13-15 Cal.), containing cases decided in 1859-60; Bagley & Harmon's Reports, by David Z. Bagley, official reporter, four volumes (16-19 Cal.), containing cases decided in 1860-62; Hillyer's Reports, 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'
suggestion, for a "fellow feeling makes him wondrous
Reports, by Charles A. Tuttle, ten volumes (23–32 |
The reports of this State are neither numerous nor voluminous. They consist of two volumes, reported by J. G. Wilson, clerk of the supreme court. The first volume contains cases decided in the supreme court of the Territory, from 1853 to 1859, at which time Oregon became a State, and cases decided in the supreme court of the State, from 1859 to 1862. The second volume contains cases decided in the supreme court of the State, from 1862 to 1869.
There is a little volume of reports called the "Washington Territory Reports," and "published by authority," containing cases determined in the su preme court of the Territory, from its organization in 1854 to 1864. It was published at Olympia, and with such dignified, patriotic and classic names as Washington" and "Olympia" upon its title page, it is a pity that its authorship remains in umbris.
A daily contemporary asks: "Would it not be well for journalists to advocate the enactment of a law for the protection of witnesses, and in the meanwhile applaud, as schoolmasters of the bar, those who hold lawyers responsible outside of the court-house for what they have said within it?" A witness who tells his story in a straightforward, truthful way never needs any "protection." It is only that class of witnesses who intends to tell the truth only as a last resort that needs protection, and in view of this
The Stokes trial has demonstrated, if any demonstration was necessary, the utter futility of the act of the last session relating to challenges of jurors in criminal cases (ch. 475), at least in so far as that act sought to make intelligent reading men competent to act on a jury. That act provides that the formation or expression of an opinion, etc., shall not be a sufficient ground of challenge for principal cause "provided," etc., leaving the law as to challenge for favor precisely as it stood before. So that a man who has formed or expressed an opinion or impression may be challenged for favor, and set aside by the triers as readily as ever. Nor do we discover that a statute can be made that will obviate the existing objections, if they are objections, for while a challenge for principal cause is to be decided by the judge strictly according to the law, a challenge for favor is to be decided by the triers, and, if they see fit to disregard a rule of law or a statute, there is no revising their decision.
The action of Judge McCunn's counsel in withdrawing from his defense seems, on its face, somewhat extraordinary, but whether it was the result of a conviction that the case was hopeless from lack of merit, or from the temper of the senate, opinions differ. The counsel, who are certainly honorable men, and worthy of credit, publicly declare their belief in the judge's 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 of the utmost limit of his duty to his client when he declares a belief as to his client's innocence, contrary to his personal convictions. With this in mind, we can but accept the reasons for the withdrawal assigned in the communication, which we print elsewhere. This action had the desirable effect of cutting short an investigation which bade fair to drag its slow lengths 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 recommended the removal of Judge McCunn in the manner prescribed in the eleventh section of article six of the constitution.
The senate, on Tuesday last, voted unanimously to remove Judge McCunn from office, and so we are, at least for the time being, rid of another of the few judges who, wittingly or unwittingly, have brought reproach upon our judiciary. If his counsel have that faith in him and his cause that they profess in their letter, they will speedily bring the question before the
court of appeals, but we apprehend that the ex-judge is even beyond the aid of that court. The senate is now hearing the charges against Judge Prindle, who, if a tithe of the contemptible little tricks and frauds and piccadillos sworn to are true, ought to be ousted and debarred from ever again holding even the slightest place of public trust - - yea, even that of pound-master.
The Law Magazine and Review, in commenting and leaning against the grand stand was a coat of upon the grave difficulties which the State of New arms, formerly belonging to Sir William, with its York is having with its judges, very wisely and lion, its unicorn and its Dieu et mon droit. The laconically says: "The only remedy which our Amer-pleasure of the festival was marred by the incessant ican brethren can adopt is to pay their judges better, rain, but the programme, for the most part, was well and let them hold office for life. So long as it is far carried out. The orator of the occasion was ex-Gov. more profitable in every way to be a dealer in second Horatio Seymour, who delivered an oration replete hand clothes, or to keep a second-rate tradesman's with historical allusions, and breathing a spirit of shop than to be a judge, so long will complaints of reverence for the old monuments which may be said, corruption be heard. In this benighted and used up from their associations, to belong to the people. country, we pay our superior judges a minimum of With him we "trust that this celebration will be fol£5,000 a year, give our lord chancellor £10,000, let lowed by others in New York, held with a view to them all have considerable patronage and power; the erection of monuments or to bringing out the clothe them with big wigs and wonderful gowns, the local histories which shall keep fresh in the mind of former at least ugly and uncomfortable; give them our people those events in the past which have titles of honor; and, when they go on circuit, sur- shaped its destinies." round them with the state of a king, with trumpeters, halbertmen, assize service, sheriff's carriage, and all sorts of paraphernalia, all of which is eminently stupid from one point of view, since justice could be quite as well administered by any of the judges in his shirt sleeves, but all of which makes our administration of law pure, and makes it, what, according to Bentham, is of more importance, seem pure; makes our judges entirely independent, and makes the office so highly valued, that the best men in the profession are willing to take it."
If any thing should be kept secure and free from liability to destruction or deterioration it is the records of legal documents — wills, deeds, judgments, etc. upon the preservation of which depends the ascertainment of the title to all real estate. And it is not to be wondered at that Judge Pinkney and others of Baltimore are troubled about the safety of the "chancery records" of the circuit court, which have been removed from the court-house, where they were deposited in a fire-proof room, to an old masonic hall lately purchased by the city for court purposes. These records are described to be "of the greatest value" "of nearly twenty years' accumulation"deposited in a "building old, or a mere tinder-box, greatly exposed to the dangers of conflagration." The judge remonstrated against their removal to this insecure depository, and has since directed a memorial to the common council, of the city, protesting against allowing them to remain there. But the common council have heeded not thus far. The chancery records of the city of Baltimore are not the only legal records which are unsafely deposited. But, experientia solum docet.
The centennial celebration of the laying of the corner stone of the court-house at Johnstown, N. Y., was celebrated with appropriate ceremonies on Wednesday of last week (26th ultimo). The old town was thronged with visitors, and the old court-house was decorated with the flags of England and America. A portrait of Sir William Johnson was hung within the structure of which he was the founder,
NOTES OF CASES.
Cases of damages by fire communicated from locomotives continue to occur; and the courts are constantly called upon to adjudicate nice questions of law relating to negligence and damages in such cases. See ante, vol. 5, pp. 309, 341 and 412. In Rolke v. 537, it was decided that where a fire has been set by The Chicago and Northwestern Railway Co., 26 Wis. a gravel train, which has a large number of men on board who know about the fire, they cannot all go away, leaving the fire to spread and destroy the property of others without being guilty of negligence as to the injured parties. Judge Cole, in delivering the opinion of the court in this case, said: "It appears that the train in question was a gravel train, engaged in the repair of the road-bed and had about twenty-eight men on the train. And even if it had been prudent and necessary to the train itself to move off to the proper station as soon as it was unloaded, in order to avoid collision with other trains, what difficulty was there in leaving behind a sufficient number of men to put out the fire? It was a dry time in the summer, when a fire kindled upon the track of the road would very likely spread to the adjoining premises. Men of ordinary care would, under such circumstances, use proper diligence to prevent the fire from communicating to the property of others." But the judge very properly observed that his reasoning had reference very much to the character or kind of train, and that, in the case of a passenger train, or even an ordinary freight train, it might be hazardous and imprudent to stop
the train and put out a fire thus kindled, or leave behind any one for that purpose.
In this case it will be noticed that the fire was set by the engine of the gravel train and was so known to be set by the employees of the company on the train; but we do not see that this fact rendered it any the more the duty of the employees on such a train to get off and put out the fire than if they had discovered it already set on the company's track by (in all probability) some preceding engine. Negligence in managing a locomotive and in preventing serious consequences arising therefrom may reside not only in the identical agents or employees who have such locomotive in immediate charge, but also in other agents or employees who may witness the consequences of fire communicated by such locomotive. The "agents of the company" in such a case are not simply one set or class of agents, they are all the agents of the company. And if a passenger or freight train should, in passing, set fire to any dry grass or weeds, etc., upon the side of the track, and the employees of such train should not know it, or, knowing it, they should find it impossible or imprudent to stop the train and put it out, or leave some one to put it out, it would be clearly the duty of the employees on a gravel train, like the one in Rolke v. Railway Co., following, and discovering the fire already communi-| cated, to take efficient measures to put it out, it being a dry time, and the fire being likely to spread to adjoining property.
The validity of county and city railroad bonds, and the constitutionality of taxation in aid of railroads, has been frequently the subject of judicial consideration within a few years, there being a disposition to contest the soundness of the former well-nigh universal rule that such bonds are valid and such taxation constitutional. See ante, vol. 4, p. 329. The supreme court of Wisconsin, in Whiting v. The Sheboygan and Fond du Lac Railway Co., 3 Am. Rep. 30 (25 Wis. 167), and the supreme court of Michigan, in The People v. The Town of Salem, 4 Am. Rep. 400 (20 Mich. 452), have decided that an act of the legislature authorizing municipal aid to railroads, by taxation, is unconstitutional. It was also understood that such was the position of the supreme court of Iowa, as announced in Hanson v. Vernon, 1 Am. Rep. 215 (27 Iowa, 28), but this case was practically overruled in Stewart v. Supervisors of Polk County, 1 Am. Rep. 238 (30 Iowa, 9), wherein the constitutionality of an act of the legislature authorizing municipal aid, by taxation, to railroads, was distinctly declared. In this latter case Beck, J., delivered an elaborate and able dissenting opinion, in which he took occasion to say: "In my opinion the decision of the majority of this court in this case will fail to settle the important question involved. It is in the face of eight prior decisions of this court." (The State ex rel. v. The County of Wapello, 13 Iowa, 389; Myers v. County of Johnson, 14 id. 47;
McMillan v. Boyles, id. 107; Rock v. Wallace, id. 593; Smith v. Henry County, 15 id. 385; Ten Eyck v. Mayor of Keokuk, id. 486; Chamberlain v. City of Burlington, 19 id. 395; McClure v. Owen, 26 id. 144; Hanson v. Vernon, 27 id. 28.) "It overrules Hanson v. Vernon, which holds unconstitutional a law, as I have shown, in no respect different from the one in question.
* It cannot and will not satisfy the legal mind of the country that it is of greater authority than the adjudications it overrules." This is unfortunate for the dignity and weight of the decisions of the supreme court of Iowa, and reminds us very forcibly of the judicial coup de etat in the supreme court of the United States in the celebrated legal tender case. We had hoped that the current of decisions which had set in against the constitutionality of municipal aid for railways would not be retarded or broken, and that the supreme court of Iowa would remain firm in its attachment to principle. There is, however, a great weight of authority in favor of the latest position of the Iowa supreme court. See Sharpless v. The Mayor, etc., 21 Penn. St. 147; Commonwealth v. Perkins, 43 id. 410; People v. Mitchell, 35 N. Y. 551; Clarke v. The City of Rochester, 28 id. 605; Slack v. City of Maysville, 13 B. Mon. 1; Maddox v. Graham, 2 Metc. (Ky.) 56; Nicoll v. Mayor, etc., 9 Humph. (Tenn.) 252; Goddin v. Cramp, 8 Leigh (Va.) 120; City of Bridgeport v. Housatonic R. R. Co., 15 Conn. 475; Society for Savings v. New London, 29 id. 174; Shoemaker v. Goshen, 14 Ohio St. 569; Butler v. Dunham, 27 Ill. 474; Gibbons v. Mobile, 36 Ala. 410; Robinson v. Bidwell, 22 Cal. 379; The City of Aurora v. West, 22 Ind. 88; Augusta Bank v. Augusta, 49 Me. 407; Clarke v. Janesville, 10 id. 130; Caldwell v. Justices of Burke, 4 Jones' Eq. (N. C.) 323; Powers v. The Inf. Ct. Dougherty Co., 23 Ga. 65; St. Jo. & C. R. R. Co. v. Buchanan Co., 39 Mo. 485; Strickland v. Miss. R. R. Co., 27 Miss. 209, 224; Cotton v. Com. of Leon Co., 5 Fla. 610; Police Jury v. Succession of McDonough, 8 La. 341; San Antonio v. Jones, 28 Tex. 19; Gillman v. Sheboygan, 2 Black, 510; Thompson v. Lee County, 3 Wall. 327.
LONDON, June 14. Although I proposed not to touch for you as yet awhile the Alabama claims, I cannot well resist the opportunity just offered, of adding to my last week's illustrations of legal ignorance, the most complete example that could be desired or devised. In fact the
species of law involved in it, although the highest and
thus least known, is yet assumed to be quite familiar to even the newspapers and politicians. The leading speakers were the Law lords and ministers of England,
and the occasion was a vote of censure on the cabinet in power for their unskillful conduct of the Washington treaty in general and in particular, to coerce them to declare the Consequential damages to be excluded from the jurisdiction of the Geneva arbitration.
There was thus a concentration of the topmost legal