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FROM JULY, 1872, TO JANUARY, 1873.

ALBANY:

WEED, PARSONS AND COMPANY.

1873.

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Entered, according to act of Congress, in the year eighteen hundred and seventy-three,

BY WEED, PARSONS AND COMPANY,

In the office of the Librarian of Congress, at Washington.

THE ALBANY LAW JOURNAL:

A WEEKLY RECORD OF THE LAW AND THE LAWYERS.

The Albany Law Journal.

ALBANY, JULY 6, 1872.

ON THE LIABILITY OF AN AGENT UPON A WRITTEN INSTRUMENT CONNECTED WITH THE SUBJECT OF HIS AGENCY.*

It is a popular fallacy, and an annoying one to him who is disposed to regard legal science from a logical point of view, that the common law is composed of a series of irregular precedents, laid down from time to time, according to the notions of this court or of that, contradictory of each other in an eminent degree, and destined to be overthrown whenever expediency shall require it a system unsymmetrical, illogical and unstable.

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But it is, after all, in the results of judicial inquiry which stand to-day as the rules of civil action, that the true value of the common law in its slow development is to be found; in so far as the principles advanced ages ago it may be, by judges of very different mental habits, and under an infinite variety of circumstances, unite to form a harmonious whole; in so far as the rules applied in the ruder ages of society serve to-day in the far more complex system of affairs, so far must one recognize, beyond the uncouth formality and the clumsy fictions of the older law, that law in its symmetry as a science, advancing by self-evolution as all science, slowly and irregularly, but none the less surely toward its ultimate perfection.

Nowhere, perhaps, are these principles more clearly apparent than in the broad subject under discussion - that of agency—not forming, it may be, in strict truth, a distinct department of the law, but rather a modifying element of all departments. The rules governing it are in a high degree those of good sense and natural justice; first applied very many years ago as they were to a simple state of society, shut up within itself, so to speak, by the international jealousy of the times, yet, by their intrinsic force as rules of positive law, they rest firmly to-day in the vast

* The following essay by John H. Inness, was awarded the $100 prize at the recent commencement of the Columbia College Law School.

complexity of commercial and financial affairs as the basis of the many and various rights and duties arising from delegated authority.

The relation of principal and agent, and its recognition by the law, is founded on the public good, as promoted by the facilitation of business transactions and the consequent ultimate increase of production, and it is to this policy that the rules of action, as laid down by the courts, are to conform. It is this policy which has led to the abandonment of the civil law doctrines in their harshness and illiberality, whereby contracts made through the instrumentality of an agent did not in general bind the principals to each other. 1 Dom. Civ. Law, B. I, title 15, § 3. Such laws are inconsistent with a spirit of trade and commerce. It is a far broader and more comprehensive view to hold every transaction of the agent as that of his principal, when such conclusion shall be just and reasonable toward all parties concerned.

Accordingly, the two great fundamental rules underlying this subject are never to be lost sight of in discussing it, that the principal must answer to third parties for all acts which he has authorized his agent to perform, and also for those which such parties had just reason to believe were authorized by him. But at these limits the protection of the agent ceases, and beyond them a counter policy arises to restrain the exercise of unwarrantable authority.

In discussing that branch of the general liability of an agent, which forms the subject of our essay - his liability on written instruments connected with the subject-matter of his agency-it will be proper to notice, first, the grounds of liability, and, second, the special cases in which that liability may arise.

SECTION I.

OF THE GROUNDS OF AN AGENT'S LIABILITY. 1. Where the agent has no authority, or where he has exceeded his authority. It is obvious that, in the case of a total lack of authority on the part of the agent, any contract made by him with an innocent party must be considered as being emphatically the contract of the agent himself, since there can be no resort to the supposed principal. And it cannot affect the case

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