directed to find him guilty. After a long absence from court they returned and deliberately pronounced a verdict of "Not guilty." "Upon this," says the reporter, the lord chief-justice remonstrated with them in threatening tones, saying: "Remember yourselves better. Have you considered substantially the whole evidence as it was declared and recited? The matter doth touch the queen's highness and yourselves also; take good heed what you do." When he had finished, Whetson, the foreman, said: "My lord, we have found him not guilty, agreeably to our consciences, and so say we all." But the jury suffered grievously for their honesty. The court committed all twelve to prison; four were soon discharged, on humbly admitting that they had done wrong; but of the remaining eight, the Star Chamber adjudged that three of them should be fined £2,000 each, and the other five £200 each. So much for impartiality in the sixteenth cen tury.

Throckmorton's jury had, however, "broken the ice," and others were not slow in following their example; and for more than one hundred years after, battles were being continually fought between judge and jury, with ever-varying results. In poor Mrs. Lisle's case, the judge (Jeffreys) gained the day; on William Penn's trial, the jury stood firm and triumphed; but the most glorious example of their success was shown upon the trial of the seven bishops in 1688, from which period we may date the decline of the arbitrary authority which the judges had before exercised.

The difficulties which the juries experienced some few hundred years ago, in making up their minds as to the proper verdict to be returned, seems to have been caused in a great measure by the manner in which counsel prevented by their speeches the clear facts of the case from being seen. That this was so, even as early as 1560, appears from a little work, published in that year, called A Guide to Jurymen, from which we select the following quaint anecdote:

At a certain trial, after the state of the cause was set forth in the declaration, the counsel beginning to speak, the foreman of the jury calls to the judge, and tells him he had an humble suit to his lordship. 'Well,' says the judge, 'what is it?' 'My lord,' says he, 'it is, that now the state of the cause hath been set forth, we may proceed immediately to the examination of witnesses, so as to give our verdict whilst we remember what is material, and that we may spare the labour of these gentlemen, the counsel on both sides, who, I see, are prepared to speak largely; for, truly, my lord, if they shall fall to work as they use to do, our understanding will be so confounded by their long discourse and many niceties, as we shall not be able so rightly to judge thereof as now we shall.' This was his humble motion; but the judge, having formerly been a pleader, laughed at the honest. man, and so did all the court, except some plain

people that had so little understanding as to think there was some reason in it."

A great deal is said now-a-days, and with truth, of the ignorance of juries, but the average jury man of the olden time was hardly better, if as good, and many anecdotes are recorded of their stupidity, of which we give a sample: A jury at Cardigan found a man guilty of arson, with £20 damages. Another set of "clod-hoppers," trying a man for murder, and being much confused by the judge telling them that upon the same indictment, if not satisfied as to the capital crime having been committed, they could find the prisoner guilty of manslaughter, just as they could on an indictment for child-murder find a woman guilty of concealing the birth, after deliberating for a long while, found the man guilty of concealing the birth of the deceased!

Another instance occurred in the western circuit, England: A man was indicted for burglary; the proofs were so clear against him, he having been caught in the fact, that it was presumed no defense would be attempted. His counsel, however, made a long, flaming speech, and protested that he believed the man to be innocent. The judge told the jury that it was unnecessary for him to sum up, as they could have but one opinion. After conferring a moment, they turned round and deliberately pronounced a verdict of "Not guilty," to the amazement of every one in court. Of course the prisoner was, without further question on the case, discharged. One of the counsel present met one of the jury afterward, and inquired the reasons which influenced them in giving so curious a verdict, and met with the following reply: "Well, sir, we be most of us P - men, and though the Lunnon judge said he thought the prisoner were guilty, our recorder (who was the man's counsel) said he thought he warn't, and we like to stick up for our recorder!"

CONTRIBUTION BETWEEN WRONG-DOERS.

It has been very thoroughly settled ever since the terse opinion of Lord Kenyon in Merryweather v. Nixon, 8 T. R. 186, that there could be no contribution between joint tortfeasors, but exceptions were suggested in the very same breath with the rule, for that learned judge said, "that this decision would not affect cases of indemnity, where one man employed another to do acts not unlawful in themselves, for the purpose of asserting a right."

And Best, C. J., in Adamson v. Jervis, 4 Bing. 72, said that from reason, justice and sound policy, the rule that wrong-doers cannot have contribution against each other is confined to cases where the person seeking redress must be presumed to have known that he was doing an unlawful act and that learned judge adds, "auctioneers, brokers, factors and agents do not take regular indemnities. These would be indeed surprised, if, having sold goods for a man and

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 pub-❘ lisher 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 indict

ment.

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 plaintiff, 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 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.

The most common exception to the general rule is in that class of cases where questions arise between different parties as to the ownership of property, and a third person, supposing one party to be in the right,

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.

But the validity of a simple promise without a new consideration to ratify a forgery is quite a different question from either of those above referred to. In Brooke v. Hook, Exch., 24 L. T. 34 (ante, vol. 3, p. 255), the validity of such a promise was denied. That case was an action on a joint and several promissory note purporting to bear the signature of the

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 commence 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 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.