in this aspect, that the agent, supposing himself to possess the requisite power, has acted in the most perfect good faith, for it is a rule which, under the equitable doctrines to which the courts more and more incline, has almost attained the force of an axiom in law, that one who asserts that which he does not know to be true is equally at fault with one who asserts what he knows to be untrue; so that, where a person, in the absence of his friend, accepts a bill drawn upon him, without authority to do so, and merely to save the friend from future trouble, his laudable motives will not relieve him from liability to an innocent indorsee of the bill. Polhill v. Walter, 3 B. & Ad. 114. Nor can an agent who has exceeded his authority, from a misconstruction of the same, set that up as discharging himself from liability, it being a mistake of law, not available as a defense either at law or in equity. This rule, founded on already existing principles of the common law (and recently affirmed in England in Kilner v. Baxter, E. L. R., 2 C. P. 174), was recognized at a very early period in the history of the jurisprudence of this State in the case of Dusenbury v. Ellis, 3 Johns. Cas. 70, where an attorney, who, under a mistake as to the extent of his powers, had signed a promissory note for his principal, was held liable as maker of the note. This case has been followed by many others, prominent among which are Meech v. Smith, 7 Wend. 315, and Palmer v. Stephens, 1 Denio, 471, holding substantially the same views, though in a late case in the court of appeals it was urged by Selden, J., that the liability of the agent in such cases rested rather upon the breach of an implied warranty of authority than upon the instrument itself. White v. Madison, 26 N. Y. 117. This view seems unsatisfactory when applied to the case of negotiable paper, and, certainly, ought not to be admitted as affecting injuriously the rights of indorsees in good faith. 2. Where the principal is undisclosed. - In the case of dealings by an agent in his own name, and without reference to his principal, there is a certain want of fairness and candor toward the other contracting party, which, independently of the agent's part in the contract itself, would seem to throw a liability upon him. It is his duty to inform persons transacting business with him of the subordinate position which he holds: "He must say plainly," says Lord Ellenborough, "I am the mere scribe, or he will be liable." Leadbitter v. Farrow, 5 M. & S. 345. These principles became firmly settled in England by a series of cases toward the close of the last century, prominent among which was that of George v. Clagett, 7 Term R. 359, where it was held by Lord Kenyon, that where an agent sold goods in his own name, and the purchaser knew nothing of the principal, on the agent's becoming bankrupt and the principal demanding the price of the goods from the purchaser, the latter might set off a claim existing against the agent. This doctrine has been followed in numerous cases (see 3 Burr. 1921), but was narrowed down, so as to relieve the agent from liability where the contracting party knew of the principal, or might have known of him, had he taken the trouble to inquire, as by examining the books of the agent containing the written contract. Baring v. Corrie, 2 B. & Ald. 137; see, also, Morrison v. Currie, 4 Duer, 79. The general liability of the agent in this class of cases is fully recognized in New York under the doctrines both of law and of equity (Mills v. Hunt, 20 Wend. 431; McComb v. Wright, 4 Johns. Ch. 659); and while the subsequent discovery of the principal operates to give the contracting party an additional security, it can in no way divest the agent of a liability thus acquired. Rossiter v. Rossiter, 8 Wend. 494. It may be proper in this connection to note an apparent exception to the rules as just stated, but one which we cannot help thinking depends altogether upon the peculiar circumstances of the case in which it was presented. In The Bank of Rochester v. Monteath, 1 Denio, 402, the members of a copartnership had agreed that all their business in the city of Albany should be carried on by their agent at that place in his own name. An action being brought against the firm on several bills drawn upon the agent and accepted by him, it was held that the partners were liable, and this upon the ground that the agent's name was the partnership name for all the purposes of transacting the business of the firm at Albany; and the partners could bind themselves by that name as well as by any other. This decision leads to the conclusion that the agent had incurred no personal liability; yet, if under the same state of facts the agent—instead of being, as he was, a man of no financial credit whatever— had possessed large pecuniary resources, it would certainly seem most unjust that an innocent contracting party should be barred from resort to him in the event of the insolvency of the copartnership; and in such a case we think that this apparent exception would fail. 3. Where the agent acts for a foreign principal. Where the principal resides in a foreign country, one who contracts with the agent cannot in general be supposed to have any accurate knowledge of the financial standing of the principal, and on that account a presumption arises that credit must have been given to the agent himself, which presumption the agent must rebut in order to escape liability. Paterson v. Gandasequi, 15 East, 62; Addison v. Gandasequi, 4 Taunt. 573. So it was held in the case of De Gaillou v. L'Aigle, 1 Bos. and P. 8 and 356, where a husband who resided out of England had given his wife in London a power of attorney to transact his business, that she was personally liable on her contracts, and this, too, in spite of her coverture. And ratification by the principal in this case, as in all others, cannot cut off the contracting party from any equities he might have against the agent. It seems to be the view that for the purpose just noticed, the States of the Union are foreign to each other. Taintor v. Prendergast, 3 Hill, 72. agent, and, accordingly, we find such execution limited by a variety of restrictions, as, for example, that it must be by virtue of a power of as high author enants in the instrument must purport to be those of the principal by his agent, and that none of the necessary minor formalities shall be omitted. See Combe's Case, 9 Coke, 75. If these conditions have been complied with, it is universally admitted that the principal is liable, and he alone; if they have not, the rule is as widely accepted that the principal is discharged and the agent is responsible. 4. Where the agent voluntarily incurs liability.—Anity as the instrument is itself to possess, that the covagent may, unquestionably, by giving to the other party the support of his personal credit, become not only secondarily liable, as guarantor, but in some cases primarily so. Jones v. Littledale, 6 Ad. & El. 486; Tanner v. Christian, 29 Eng. L. and Eq. 103; White v. Skinner, 13 Johns. 307. Still, in the case of an agent of a known principal acting within the bounds of his authority, the evidence must be very clear that personal credit was given to the agent rather than to the principal, since there is a presumption to the contrary, which must be rebutted by the party who seeks to establish the agent's liability. Nevertheless it seems to be the law in New York that, when an action is brought against a principal upon a contract made by his agent, he may set up as a defense the fact that exclusive credit had been given to the agent. Meeker v. Claghorn, 44 N. Y. 349. - 5. Where there is no responsible principal. - Where one representing an irresponsible person enters into contracts as agent of that person, it is a just and equitable rule that such agent shall answer upon the contract personally. A good illustration of this principle is found in the case of Turrell v. Collet, 1 Esp. 320, where a father, to whom a business belonged, had from old age become impaired in mind to such an extent that he was utterly incapable of attending to his affairs. Here it was held, that his son, who carried on the business for him, was, in reality, liable, and the proposition was laid down by Lord Kenyon, that it is upon the ostensible conductors of business that contracting parties have a right to rely. Similar questions have arisen in the case of infants and lunatics, where substantially the same views have cbtained. See Thacher v. Dinsmore, 5 Mass. 299; Forster v. Fuller, 6 id. 58. On like grounds, where parties entered into a contract in favor of a company not at the time incorporated, they were held personally liable. Kelner v. Baxter, Eng. L. R., 2 C. P. 174. SECTION II. THE LIABILITY OF AN AGENT ON VARIOUS CLASSES OF The various instruments upon which an agent may incur liability may be grouped into three general classes: 1. Sealed instruments; 2. Written agreements not under seal; and 3. Negotiable paper. 1. Sealed instruments. The importance attached by the old common law to sealed instruments, arising, as it did, from the solemnity attendant upon their execution, led to a great degree of rigor in construing them, and a jealous care that the requisite formalities should be complied with. It is obvious, that this watchfulness was in no case likely to be more stringent than in the execution of sealed instruments by an But this very rigor of construction of which we have spoken requires that, if the covenants are not those of the principal-by reason of a defective execution or a lack of authority by the agent, or whatever the cause may be-yet the agent shall only be held upon them, when the language used or the mode of signing may reasonably be considered to have the effect of making him a party to the instrument. Hopkins v. Mehaffy, 11 Serg. & R. 126; Stone v. Wood, 7 Cow. 453; White v. Skinner, 13 Johns. 307. To go beyond this would be to trespass upon the rule forbidding the introduction of parol evidence to vary a written contract; accordingly, in all oases not within the principle as just stated, the remedy is to be found in an action of tort against the agent for damages sustained from his wrongful act. Abbey v. Chase, 6 Cush. 56. upon 2. Written agreements not under seal. - Questions concerning the liability of an agent upon instruments of this class are of extreme frequency, and the adjudicated cases present a bewildering conflict of views. Yet it is believed that the diversity of opinion arises rather upon the nature of the liability than the fact of liability itself, and that the agent's responsibility, in some form or another, is very generally recognized by the courts in the various instances previously mentioned, such as lack of authority, undisclosed principal, etc. The real point of discussion, however, is, whether the agent is so responsible, ex contractu, upon the instrument itself, or in an action on the case for damages. 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 the purpose of bringing in the agent as a party when the principal cannot be held. This view prevailed generally in the earlier English cases, prominent among which is that of Cass v. Rudele, in 1692, where the court of chancery entertained a bill against an agent who had entered into articles of agreement for the purchase of several houses in the island of Jamaica, and, after performing the contract in part, refused to complete performance on the ground of having no effects of the principal in his hands. A decree for specific performance of the contract was given, and this, though the houses had, pending the suit, been destroyed by an earthquake. The decree was after ward confirmed on appeal to the house of lords. Cass v. Rudele, 2 Vern. 280. See, also, Appleton v. Binks, 5 East, 148. 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. I. We have spoken of the agents becoming a party to the instrument; this, of course, will only be the case where there has been a faulty execution; for, where the agent B., acting within the scope of his authority for his principal A., signs, or accepts, or indorses, as the case may be, under the form "A. by B.," he makes the act that of the principal, and cannot be considered as being himself a party to the instrument. But if an agent sign his own name to the 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 knowing of the facts of the case, to say nothing of an entirely innocent person, since parol evidence cannot be admitted to destroy the effect of the instrument. Maber v. Massias, 2 W. Bl. 1072; Leadbitter v. Far row, 5 M. & S. 345; Hovey v. Magill, 2 Conn. 680; Pentz v. Stanton, 10 Wend. 271. On these grounds, where a bill was drawn upon the agent of a corporation personally, and accepted by him "For the company, A. B., agent," it was held, that he was liable on the instrument, for, since he chose to accept a bill drawn upon him thus absolutely, he must be considered to have done so unconditionally. Mare V. Charles, 5 Ell. & Bl. 978; see, also, Stevens v. Hill, 5 Esp. 247. 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. AMERICAN REPORTS AND REPORTERS. No. X. (Concluded.) MINNESOTA. The supreme court of the Territory of Minnesota was organized in June, 1849. In July, 1851, William Hollinshead was appointed reporter by the court, and reported cases decided at the July term, 1851. In March, 1852, Isaac Atwater (afterward judge of the 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. NEVADA. Nevada was admitted into the Union of States in 1864, and the first regular term of its supreme court was held in January, 1865. By an act of the legislature of the State, passed in March, 1865, it was provided as follows: § 1. It shall be the duty of the judges of the supreme court of this State, to render written decisions in all 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." 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. NEBRASKA. The laws of Nebraska relative to reports and reporters are neither explicit nor arbitrary. The judges 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. IDAHO. 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." CALIFORNIA. 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 California," was reported by Nathaniel Bennett, one of the judges of the supreme court, and contained cases decided in 1850-51. The reporter, in his preface, furnishes the profession with a clear view of the development of law in California, and the organization of the State government and the courts, and gives the history of his volume of reports thus: "A statute of 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." 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 Reports, by Charles A. Tuttle, ten volumes (23-32 Cal.), containing cases decided in 1863-67, and Hale's Reports, by J. E. Hale, five volumes (33–37 Cal.), containing cases decided in 1867-69. In 1870 the legislature repealed all former laws relative to the reporter and enacted among other things that "§ 3. It shall be the duty of the reporter of the supreme court to prepare, in an exact and accurate manner, a report of all such cases decided by said court as he may be directed to report by the court. Each report shall include the title of the case, a synopsis of the points decided, a clear and brief statement of the facts, so far as may be necessary to present distinctly the points decided when such statement is not given in the opinion of the court, the points made and authorities cited by counsel, so far as the same are passed upon in the opinion of the court, with the names of the counsel and the opinions of the court, subject to the supervision and correction of the judges." Under these explicit regulations Tod Robinson was appointed reporter and published one volume (38 Cal.), containing cases decided in 1869. Mr. Robinson was succeeded by R. Aug. Thompson, who has reported two volumes (39, 40 Cal.), containing cases decided in 1870-71. 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 fact we can very well understand our contemporaries' suggestion, for a "fellow feeling makes him wondrous kind." With editors "as schoolmasters of the bar," we should reasonably expect to reach a capacity for libel, slander, and "all uncharitableness," never before reached by any bar in the world. 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 |