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ward confirmed on appeal to the house of lords. row, 5 M. & S. 345; Hovey v. Magill, 2 Conn. 680; Cass v. Rudele, 2 Vern. 280. See, also, Appleton v. Pentz v. Stanton, 10 Wend. 271. On these grounds, Binks, 5 East, 148.

where a bill was drawn upon the agent of a corporaOf late years, however, the current of decisions tion personally, and accepted by him “ For the comhas been opposed to this view, and it has but little pany, A. B., agent," it was held, that he was liable force in the English law at present. See Jenkins v. on the instrument, for, since he chose to accept a bill Hutchinson, 13 Q. B. 744; Lewis v. Nicholson, 12 Eng. drawn upon him thus absolutely, he must be considL. & Eq. 430. It has, however, until within a few ered to have done so unconditionally. Mare v. years, been very uniformly followed in the State of Charles, 5 Ell. & Bl. 978; see, also, Stevens v. Hill, New York. White v. Skinner, 13 Johns. 307; Stone 5 Esp. 247. v. Wood, 7 Cow. 453; Palmer v. Stephens, 1 Denio, However, in case the instrument contains enough 471. But recently several cases in the supreme court upon its face to render it fairly doubtful whether the have seemed to militate quite strongly against it. principal or the agent is to be looked to, then the rule Walker v. Bank of New York, 13 Barb. 639; Sher- as to parol evidence is inapplicable, and the agent man v. N. Y. C. R. R. Co., 22 id. 239; Church of may discharge himself from liability by showing that St. Peter v. Varian, 28 id. 644.

the consideration passed to his principal, that excluThe other theory as to the agent's liability, and one sive credit was given to him, and like defenses. Kidwhich seems founded on much more logical principles son v. Dilworth, 5 Price, 564; Mott v. Hicks, 1 Cow than the preceding, is generally adopted at present in 513; Brockway v. Allen, 17 Wend. 40; Olcott v. Tioga England and our own eastern States, and is quite R. R. Co., 27 N. Y. 546. similar to the rule mentioned in speaking of contracts II. But when an agent has become a party to a under seal, namely, that if the contract does not bind negotiable instrument, and it has been transferred by the principal we are to examine whether apt words indorsement to third persons, then, no matter what are used to bind the agent; if so, he is liable on the description of his agency he may have added to his contract; if not, the remedy is an action against him signature, he is still held personally liable, by reason on the case for wrongfully assuming authority to act of the principle on which the theory of negotiable as agent, the contract under this latter aspect being paper rests, that, when the note or bill has passed beconsidered as wholly void. Ballou v. Talbot, 16 Mass. fore maturity, and for value, into the hands of one 461; Ogden v. Raymond, 22 Conn. 385; Woodes v. who was a stranger to the original contract, all equiDennett, 9 N. H. 55.

table defenses which may have existed as between the 3. Negotiable instruments. - In the case of such in

parties to that contract are cut off. Each indorsee struments as promissory notes and bills of exchange, has a right to rely upon the credit of previous para new element is found, namely, their capacity of ties, and cannot be expected to go into inquiries as to passing into the hands of parties foreign to the original whether any particular one of them was acting for contract. Accordingly, when one acting as agent himself or for another when he signed or indorsed becomes a party to such paper, either as maker, the instrument. Polhill v. Walter, 3 Barn. & Ad. acceptor or indorser, we may consider his consequent 114; Dusenbury v. Ellis, 3 Johns. Cas. 70. liability under two very different aspects which it assumes — first, as between the original parties to the The foregoing sums up in a very general way some instrument, or as between the agent and an indorsee, of the leading principles governing the liability of an with notice of the existing state of facts; and secondly, agent to parties contracting with him.

Technical as as between the agent and indorsees, in good faith and any particular rule may appear, and harsh in its appliignorant of the fact of agency.

cation to individual cases, yet it cannot be doubted I. We have spoken of the agents becoming a party

that the ultimate effect of all is to lend a powerful to the instrument; this, of course, will only be the element of security to dealings with agents, to induce case where there has been a faulty execution; for, greater method and regularity in business transwhere the agent B., acting within the scope of his actions, and to widen and strengthen commercial authority for his principal A., signs, or accepts, or intercourse. indorses, as the case may be, under the form “ A. by B.,” he makes the act that of the principal, and can- AMERICAN REPORTS AND REPORTERS. not be considered as being himself a party to the in

No. X. strument. But if an agent sign his own name to the

(Concluded.) 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 know- The supreme court of the Territory of Minnesota ing of the facts of the case, to say nothing of an en- was organized in June, 1849. In July, 1851, William tirely innocent person, since parol evidence cannot Hollinshead was appointed reporter by the court, and be admitted to destroy the effect of the instrument. reported cases decided at the July term, 1851. In Maber v. Massias, 2 W. Bl. 1072; Leadbitter v. Far- | March, 1852, Isaac Atwater (afterward judge of the






supreme court of the State) was appointed reporter may report their own decisions or appoint a reporter, by the governor, and reported cases decided at the who shall hold his office at the pleasure of the court. July term, 1852. The reports of Mr. Hollinshead and But one solitary report has been evoked from the Mr. Atwater were published as an appendix to the decisions of this young but immense State, and that session laws of 1853, in pursuance of an order of the is published by James M. Woolworth, counselor at court, under the respective titles of “Hollinshead's law, and is called "1 Nebraska,” The historian of Reports” and “Atwater's Reports.” In February, 1882 will probably have a larger number of Nebraska 1854, John B. Brisbin was appointed reporter, and reports to record. reported the cases decided at the January term, 1854.

Michael E. Ames was appointed reporter in March, Idaho, too, has its “one” volume of reports, contain1856, and commenced the preparation of a volume of ing a few cases decided in the supreme court of the reports, but he resigned in October, 1857, and was territory in 1866–67, reported by John Cummins, who succeeded by Harvey Officer, who reported cases de- tells us, in his preface, that "the business of the sucided in January of 1856, '57 and '58, and, combining preme court” is “not accumulating with a great his own reports with those of his predecessors, com- deal of rapidity.” But, at the close of his preface, pleted a volume styled “1 Minnesota," containing the the reporter follows the example of the reporters of reports of all cases decided from the organization of many of the States whose reports may be numbered the territorial court until 1858, when Minnesota was by the score, but whose reporters will never cease (it raised to the rank of a State. On the organization seems) to publish works for which apologies are necesof the supreme court under the State constitution, it sary. He says: “Confident that their utility and became the duty of the judges to appoint a reporter

value in the honest administration of our laws will of its decisions, and Mr. Officer was thereupon con- greatly outweigh the errors and imperfections they tinued as reporter, and prepared eight additional may contain, I tender these reports to an indulgent volumes (2-9 Minn.), containing cases decided from profession." the organization of the State supreme court until 1864. Wm. A. Spencer succeeded Mr. Officer as State

The rise of the greatest of the Pacific States in reporter, and has already produced six volumes (10-15 population and power has scarcely surpassed the Minn.), containing cases decided in 1864–70.

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 devel

decided in 1850–51. The reporter, in his preface, surture of the State, passed in March, 1865, it was

opment of law in California, and the organization of provided as follows:

the State government and the courts, and gives the $ 1. It shall be the duty of the judges of the supreme

history of his volume of reports thus: “A statute of court of this State, to render written decisions in all cases to them submitted, except when cases on appeal

the State authorized the supreme court to appoint a are discussed on ex parte motion.

reporter, and it appointed Edward Norton, Esq. He $ 2. It shall be the duty of the judges of the supreme had, as early as May, 1851, advanced far in the prepacourt to prepare for publication, by giving the title of ration of a volume of reports, but his manuscript was the cause, a syllabus of the points decided, a brief

destroyed in the fire of May 4, 1851 (San Francisco). statement of the facts bearing on the points decided

He then resigned his office, and the undersigned, by (when the same are not sufficiently stated in the opinion), the names of the counsel and a reference to such the advice of his associates on the bench, assumed the authorities as are cited and have a special bearing on task of reporting the decisions." the case. It shall also be the duty of such judges to On the completion of Judge Bennett's Reports, H. make an index to each case as decided.”

P. Hepburn was appointed reporter and produced In pursuance of this statute the judges procured the

three volumes (2–4 Cal.), containing cases decided in pnblication of the first volume of the “Nevada State

1852–54. “Five" California was reported by Wm. Reports," which contains cases decided in the year Gouverneur Morris and contained cases decided in 1865, and bears the name of J. F. Lewis, the chief 1855. Then follow Booraem's Reports, by H. Toler justice of the court. The subsequent volumes of the Booraem, three volumes (6-8 Cal.), containing cases Nevada State Reports have been prepared for publica- decided in 1856-57; Lee's Reports, by Harvey Lee, tion by Alfred Helm, clerk of the court, under the four volumes (9–12 Cal.), containing cases decided in direction and supervision of the judges, and assisted 1858–59; Harmon's Reports, by John B. Harmon, by Theodore H. Hittell. The last volume (6 Nev.) | three voluzes (13–15 Cal.), containing cases decided contains cases decided in 1870–71.

in 1859–60; Bagley & Harmon’s Reports, by David

Z. Bagley, official reporter, four volumes (16-19 Cal.), The laws of Nebraska relative to reports and re- containing cases decided in 1860–62; Hillyer's Reporters are neither explicit nor arbitrary. The judges ports, by Curtis J. Hillyer, three volumes (20-22


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Cal.), containing cases decided in 1862–63; Tuttle's fact we can very well understand our contemporaries'
Reports, by Charles A. Tuttle, ten volumes (23–32 | suggestion, for a "fellow feeling makes him wondrous
Cal.), containing cases decided in 1863–67, and Hale's kind.” With editors “as schoolmasters of the bar,"
Reports, by J. E. Hale, five volumes (33–37 Cal.), con- we should reasonably expect to reach a capacity for
taining cases decided in 1867–69. In 1870 the legis- libel, slander, and “ all uncharitableness," never before
lature repealed all former laws relative to the reporter reached by any bar in the world.
and enacted among other things that " $ 3. It shall be
the duty of the reporter of the supreme court to pre- The Stokes trial has demonstrated, if any demon-
pare, in an exact and accurate manner, a report of all stration was necessary, the utter futility of the act
such cases decided by said court as he may be direct- of the last session relating to challenges of jurors in
ed to report by the court. Each report shall include criminal cases (ch. 475), at least in so far as that act
the title of the case, a synopsis of the points decided, sought to make intelligent reading men competent to
a clear and brief statement of the facts, so far as may act on a jury. That act provides that the formation
be necessary to present distinctly the points decided or expression of an opinion, etc., shall not be a suffi-
when such statement is not given in the opinion of cient ground of challenge for principal cause “pro-
the court, the points made and authorities cited by vided,” etc., leaving the law as to challenge for favor
counsel, so far as the same are passed upon in the precisely as it stood before. So that a man who has
opinion of the court, with the names of the counsel formed or expressed an opinion or impression may
and the opinions of the court, subject to the supervis- be challenged for favor, and set aside by the triers as
ion and correction of the judges.” Under these ex- readily as ever. Nor do we discover that a statute
plicit regulations Tod Robinson was appointed can be made that will obviate the existing objections,
reporter and published one volume (38 Cal.), contain-

if they are objections, for while a challenge for prining cases decided ia 1869. Mr. Robinson was suc- cipal cause is to be decided by the judge strictly ceeded by R. Aug. Thompson, who has reported two according to the law, a challenge for favor is to be volumes (39, 40 Cal.), containing cases decided in decided by the triers, and, if they see fit to disregard 1870–71.

a rule of law or a statute, there is no revising their

The reports of this State are neither numerous nor
voluminous. They consist of two volumes, reported The action of Judge McCunn's counsel in with-
by J. G. Wilson, clerk of the supreme court. The drawing from his defense seems, on its face, somewhat
first volume contains cases decided in the supreme extraordinary, but whether it was the result of a con-
court of the Territory, from 1853 to 1859, at which viction that the case was hopeless from lack of merit,
time Oregon became a State, and cases decided in the or from the temper of the senate, opinions differ. The
supreme court of the State, from 1859 to 1862. The counsel, who are certainly honorable men, and worthy
second volume contains cases decided in the supreme of credit, publicly declare their belief in the judge's
court of the State, from 1862 to 1869.

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 There is a little volume of reports called the of the utmost limit of his duty to his client when he “Washington Territory Reports,” and “published by declares a belief as to his client's innocence, contrary authority," containing cases determined in the su

to his personal convictions. With this in mind, we preme court of the Territory, from its organization in

can but accept the reasons for the withdrawal assigned 1854 to 1864. It was published at Olympia, and in the communication, which we print elsewhere. with such dignified, patriotic and classic names as This action had the desirable effect of cutting short an

Washington” and “Olympia” upon its title page, it investigation which bade fair to drag its slow lengths
is a pity that its authorship remains in umbris.

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 A daily contemporary asks: "Would it not be well

manner prescribed in the eleventh section of article six for journalists to advocate the enactment of a law for

of the constitution. the protection of witnesses, and in the meanwhile applaud, as schoolmasters of the bar, those who hold The senate, on Tuesday last, voted unanimously to lawyers responsible outside of the court-house for remove Judge McCunn from office, and so we are, at what they have said within it?” A witness who least for the time being, rid of another of the few tells his story in a straightforward, truthful way judges who, wittingly or unwittingly, have brought never needs any “protection.” It is only that class reproach upon our judiciary. If his counsel have that of witnesses who intends to tell the truth only as a faith in him and his cause that they profess in their last resort that needs protection, and in view of this I letter, they will speedily bring the question before the


court of appeals, but we apprehend that the ex-judge The centennial celebration of the laying of the is even beyond the aid of that court. The senate is corner stone of the court-house at Johnstown, N. Y., now hearing the charges against Judge Prindle, who, was celebrated with appropriate ceremonies on Wedif a tithe of the contemptible little tricks and frauds nesday of last week (26th ultimo). The old town and piccadillos sworn to are true, ought to be ousted was thronged with visitors, and the old court-house and debarred from ever again holding even the slightest was decorated with the flags of England and Amerplace of public trust -yea, even that of pound-master. ica. A portrait of Sir William Johnson was hung

within the structure of which he was the founder, 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

NOTES OF CASES. stupid from one point of view, since justice could be quite as well administered by any of the judges in his

Cases of damages by fire communicated from loco

motives continue to occur; and the courts are conshirt sleeves, but all of which makes our administration of law pure, and makes it, what, according to stantly called upon to adjudicate nice questions of Bentham, is of more importance, seem pure; makes

law relating to negligence and damages in such cases.

See ante, vol. 5, pp. 309, 341 and 412. In Rolke v. our judges entirely independent, and makes the office so highly valued, that the best men in the profession 537

, it was decided that where a fire has been set by

The Chicago and Northwestern Railway Co., 26 Wis. are willing to take it."

a gravel train, which has a large number of men on If any thing should be kept secure and free from board who know about the fire, they cannot all go liability to destruction or deterioration it is the away, leaving the fire to spread and destroy the records of legal documents — wills, deeds, judgments, property of others without being guilty of negligence etc. — upon the preservation of which depends the as to the injured parties. Judge Cole, in delivering ascertainment of the title to all real estate. And it is the opinion of the court in this case, said: “It apnot to be wondered at that Judge Pinkney and others pears that the train in question was a gravel train, of Baltimore are troubled about the safety of the engaged in the repair of the road-bed and had “chancery records” of the circuit court, which have about twenty-eight men the train. And been removed from the court-house, where they were even if it had been prudent and necessary to deposited in a fire-proof room, to an old masonic hall the train itself to move off to the proper station as lately purchased by the city for court purposes. soon as it was unloaded, in order to avoid collision These records are described to be “of the greatest with other trains, what difficulty was there in leaving value" — “of nearly twenty years' accumulation”- behind a sufficient number of men to put out the deposited in a “building old, or a mere tinder-box, fire? It was a dry time in the summer, when a fire greatly exposed to the dangers of conflagration.” kindled upon the track of the road would very likely The judge remonstrated against their removal to this spread to the adjoining premises. Men of ordinary insecure depository, and has since directed a memo- care would, under such circumstances, use proper rial to the common council of the city, protesting diligence to prevent the fire from communicating to against allowing them to remain there.

But the com- the property of others.” But the judge very properly mon council have heeded not thus far. The chancery observed that his reasoning had reference very much records of the city of Baltimore are not the only to the character or kind of train, and that, in the case legal records which are unsafely deposited. But, of a passenger train, or even an ordinary freight excperientia solum docet.

train, it might be hazardous and imprudent to stop




the train and put out a fire thus kindled, or leave be- | McMillan v. Boyles, id. 107; Rock v. Wallace, id. 593; hind any one for that purpose.

Smith v. Henry County, 15 id. 385; Ten Eyck v. Mayor In this case it will be noticed that the fire was set of Keokuk, id. 486; Chamberlain v. City of Burlingby the engine of the gravel train and was so known ton, 19 id. 395; McClure v. Owen, 26 id. 144; Hanson to be set by the employees of the company on the v. Vernon, 27 id. 28.) “It overrules Hanson v. Vernon, train; but we do not see that this fact rendered it any which holds unconstitutional a law, as I have shown, the more the duty of the employees on such a train in no respect different from the one in question. to get off and put out the fire than if they had dis

It cannot and will not satisfy the legal mind covered it already set on the company's track by (in of the country that it is of greater authority than the all probability) some preceding engine. Negligence adjudications it overrules.” This is unfortunate for in managing a locomotive and in preventing serious the dignity and weight of the decisions of the supreme consequences arising therefrom may reside not only court of Iowa, and reminds us very forcibly of the in the identical agents or employees who have such judicial coup de etat in the supreme court of the locomotive in immediate charge, but also in other United States in the celebrated legal tender case. We agents or employees who may witness the con- had hoped that the current of decisions which had sequences of fire communicated by such locomotive.

set in against the constitutionality of municipal aid The “ agents of the company" in such a case are not for railways would not be retarded or broken, and simply one set or class of agents, they are all the agents that the supreme court of Iowa would remain firm in of the company.

And if a passenger or freight train its attachment to principle. There is, however, a should, in passing, set fire to any dry grass or weeds, great weight of authority in favor of the latest posietc., upon the side of the track, and the employees of tion of the Iowa supreme court.

See Sharpless v. such train should not know it, or, knowing it, they | The Mayor, etc., 21 Penn. St. 147; Commonwealth v. should find it impossible or imprudent to stop the Perkins, 43 id. 410; People v. Mitchell, 35 N. Y. 551; train and put it out, or leave some one to put it out, Clarke v. The City of Rochester, 28 id. 605; Slack v. it would be clearly the duty of the employees on a City of Maysville, 13 B. Mon. 1; Maddox v. Graham, gravel train, like the one in Rolke v. Railway Co., 2 Metc. (Ky.) 56; Nicoll v. Mayor, etc., 9 Humph. following, and discovering the fire already communi- (Tenn.) 252; Goddin v. Cramp, 8 Leigh (Va.) 120; cated, to take efficient measures to put it out, it being City of Bridgeport v. Housatonic R. R. Co., 15 Conn. a dry time, and the fire being likely to spread to ad- | 475; Society for Savings v. New London, 29 id. 174; joining property.

Shoemaker v. Goshen, 14 Ohio St. 569; Butler v. Dun

ham, 27 III. 474; Gibbons v. Mobile, 36 Ala. 410; RobThe validity of county and city railroad bonds, and

inson v. Bidwell, 22 Cal. 379; The City of Aurora v. the constitutionality of taxation in aid of railroads,

West, 22 Ind. 88; Augusta Bank v. Augusta, 49 Me. has been frequently the subject of judicial considera

407; Clarke v. Janesville, 10 id. 130; Caldwell v. Justion within a few years, there being a disposition to

tices of Burke, 4 Jones' Eq. (N. C.) 323; Powers v. contest the soundness of the former well-nigh uni

The Inf. Ct. Dougherty Co., 23 Ga. 65; St. Jo. & C. versal rule that such bonds are valid and such taxation

R. R. Co. v. Buchanan Co., 39 Mo. 485; Strickland constitutional. See ante, vol. 4, p. 329. The supreme

v. Miss. R. R. Co., 27 Miss. 209, 224; Cotton v. Com. court of Wisconsin, in Whiting v. The Sheboygan and of Leon Co., 5 Fla. 610; Police Jury v. Succession of Fond du Luc Railway Co., 3 Am. Rep. 30 (25 Wis

. McDonough, 8 La. 341; San Antonio v. Jones, 28 Tex. 167), and the supreme court of Michigan, in The 19; Gillman v. Sheboygan, 2 Black, 510; Thompson People v. The Town of Salem, 4 Am. Rep. 400 (20

v. Lee County, 3 Wall. 327. 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

EUROPEAN CORRESPONDENCE. was the position of the supreme court of Iowa, as

LONDON, June 14. announced in Hanson v. Vernon, 1 Am. Rep. 215 (27 Although I proposed not to touch for you as yet Iowa, 28), but this case was practically overruled in awhile the Alabama claims, I cannot well resist the Stewart v. Supervisors of Polk County, 1 Am. Rep. opportunity just offered, of adding to my last week's

illustrations of legal ignorance, the most complete ex238 (30 Iowa, 9), wherein the constitutionality of an

ample that could be desired or devised. In fact the act of the legislature authorizing municipal aid, by species of law involved in it, although the highest and taxation, to railroads, was distinctly declared. In this

thus least known, is yet assumed to be quite familiar latter case Beck, J., delivered an elaborate and able dis

to even the newspapers and politicians. The leading senting opinion, in which he took occasion to say: “In speakers were the Law lords and ministers of England, my opinion the decision of the majority of this court

and the occasion was a vote of censure on the cabinet in this case will fail to settle the important question

in power for their unskillful conduct of the Washing

ton treaty in general and in particular, to coerce them involved. It is in the face of eight prior decisions of

to declare the Consequential damages to be excluded this court.” (The State ex rel. v. The County of Wapello, from the jurisdiction of the Geneva arbitration. 13 Iowa, 389; Myers v. County of Johnson, 14 id. 47; There was thus a concentration of the topmost legal

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