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brought by or against his representatives after TY OF AN AGENT BY THE DEATH OF HIS

his death. All contract obligations which he PRINCIPAL.

has incurred are a valid charge upon his esAn able and learned judge, when urged by

tate. Why, then, should not a contract made a conservative associate to adhere to a long through an agent, acting under instructions established rule of law which he had demon

given by the deceased during his life-time, be strated to his own satisfaction to be errone

held binding? The authority under which the ous as applied to the case at bar, made the

act was done was duly given by one who had remark: "Error, hoary-headed, is error still."

the right to give it, and he has done nothing Though, as a rule, it must be admitted that at

to revoke that authority, nor could he revoke the present time there seems to be little incli

it without giving the parties interested due nation on the part of some of our courts to

notice. Why should his representatives, who uphold the doctrine of stare decisis, there are

are bound by his acts, be allowed to accomsome rules of law which have been handed

plish by the aid of his death, that which he down to us that derive their support, such as

never intended to do, and could not have done, it is, almost wholly from an artificial and tech

had he been so disposed ? The only reasons nical system of reasoning.

which can be given seem very unsatisfactory, Some common law rules are still in force of

when carefully considered with reference to which it may be fairly said that the only ex

their effect upon the business relations of mancuse for their existence is, that we were born

kind. The whole ground upon which the acts under them, and find it to be almost impossi

of an agent after the death, and before notice ble to outgrow them, though every valid reason

of the death of the principal, are held inoperfor their continuance, if such reason ever ex

ative and not binding, is that they are, in conisted, has wholly passed away. Though more

templation of law, made by a deceased person, rules of the nature of those mentioned are to

or one who can no longer act. While the rule be found in the law of procedure, and in the

referred to nominally holds the contract enlaw of real property, than in the law of con

tered into for the deceased after his death not tracts relating to personal property, or in the

binding, its real effect is to discharge the lialaw of torts, it is quite reasonable to suppose bility he assumed while living, when he held that we have not yet arrived at perfection in

out his agent as authorized to act as such until any branch of the law.

notice of revocation. Among the technical rules of law which we

A few illustrations will serve to show how have inherited from our ancestors, the doctrine

technical and artificial are the reasons which of the instantaneous revocation of the author

have been considered sufficient to justify the ity of an agent by the death of his principal,

rule that no valid act can be done by an agent seems to be one of the most unreasonable and

acting for a deceased person, though no notice mischievous.

of the death of the principal has reached the The theory of the common law, that an au

parties at the time of the transaction. thority, unless coupled with an interest in the thing concerning which the authority is to be Suppose A, who lives in Milwaukee, does exercised, dies with the party giving it, is

the following acts on the first day of May: founded in the technical reason that "6 dead 1. Executes his promissory note to B, due man can do no act." Of course, the propo- one year after date. sition that a dead man can do no act is indis- 2. Executes his last will and testament in putable; but the obnoxious feature of the law proper form, by the terms of which his propof instantaneous revocation of the agents' au- erty is left mainly to strangers, and his natthority by the death of the principal, is that ural heirs, though deserving, are left with but its effect is to deprive the living principal of a pittance. the right to arrange the management of his 3. Gives C and D, who are his agents at property interests after his death, or rather, to New York, each written authority to purchase allow his representatives to avoid the obliga- certain goods in his name. tions he assumed while living. Nearly all ac- On May 2nd he writes to C not to buy any tions which might have been brought by or goods. The next day, May 3d, A is acciagainst the deceased during his life, may be dentally killed.


Let us see how far the law respects his and to the business interests of men, that all wishes, and compels his representatives to ful- contracts made with an agent should depend fil the obligations he has incurred. Of course for their validity upon the probability that the his representatives must pay the note, though principal is living? or should the representagiven in his name, and therefore the promise tives of the deceased be governed in this as of a dead man. In this case the law implies in other matters affecting his property inan agreement on his part that his representa

terests, by the representations he has delibertives shall be bound by his contract, and gives ately made and the obligations he has voluneffect to that agreement.

His wishes as set tarily incurred? Unless we hold that they forth in the will are respected and enforced should be so bound, we must accept the theby the law, though they are the wishes of a ory that every one who deals with an agent dead man, a man who can no longer act, and should, after having by due diligence ascerthough they do great injustice to those who

tained the extent of his authority, be comshould rightfully enjoy his property.

pelled in a case of this kind to submit to the On May 3d, C and D receive A's letters, will or caprice of the representatives of the written May 1st, and each purchases goods principal, as to whether they will or will not according to his instructions, C purchasing adopt the result of his acts. immediately before, and D immediately after We think the rule of law under considerathe death of A. Each agent ships the goods tion is wholly at variance with the general bought oy him to Milwaukee, consigned to A. spirit of the law relating to revocation of auThe goods are subsequently destroyed on the thority of agents. In other cases the princiroad by the “ act of God.” The parties of pal is bound by the authorized acts of the whom the goods were purchased take steps to agent until the revocation of his authority has recover the purchase money of the represen- been brought to the notice of the party to be tatives of A. Now the authority of C to pur- affected thereby. Why, in justice, should not chase goods was in fact rescinded before they the same rule in regard to notice apply in this were bought, by the second letter of A. The

case, and why should not the representatives law, however, very properly protects those of the deceased be bound by his acts? who deal with an agent without notice that his By way of apology for the rule Mr. Justice authority has been revoked, and the fact that

Story says: “It may be doubted whether A had done all in his power to revoke the or- our law deserves such a reproach, at least to der he had previously made, and that such or- the full extent in which it is usually imputed der was absolutely rescinded, would not en- to it. Regularly, indeed, when the act to be able the representatives of A to avoid the lia- done must be done in the name of the prinbility he thus assumed. But in the case of D, cipal, and not in that of the agent, the auwhose authority A never attempted or intended thority is extinguished by the death of the printo revoke, the law holds that the vendor of the cipal, because it has then become incapable of goods cannot recover, simply because the

being so executed.

Where the act, party in whose name the contract was made, notwithstanding the death of the principal, was not living at that time.

In both cases,

can and may be done in the name of the agent, the act by virtue of which each agent was em- there seems to be a sound reason why his powered to buy, was the act of a living princi- death should not be deemed to be a positive pal. In the case of C the principal does all revocation under all circumstances.” Story in his power to prevent the agent from acting; on Agency, § 495. We can see no very in the case of D he desires the agent to act good reason for this distinction, for, accordand does nothing to prevent him. The law ing to the rule that the principal, being dead, interposes a technical rule which entirely de- can do no act, what reason is there for saying feats his intentions, and in effect places upon that he can do a valid act through an agent one of the innocent vendors the burden of who acts in his own name, but not through an paying a heavy insurancə on the life of A agent who acts in the name of his principal? without receiving any consideration therefor. In both cases it is in legal contemplation the So far as the utility of the rule is concerned, act of the principal, and not of the agent, if t presents this question:

the latter acts within the scope of his authorIs it conducive to the well-being of society, ity, and discloses the name of his principal. Were it not for the fact that cases in which it Com., Vol. 2, page 646 ; Story on Agency, $ is involved so seldom arise, there can be but 495. little doubt that the doctrine of instantaneous No principle of law is more firmly estabrevocation would have long since met the fate lished than that a revocation by the act of the of many technical rules which have been principal can not take effect, so as to render swept away in the progress of legal reform. the acts of the agent invalid, unless the fact There is no more reason why it should be re- of such revocation was known to the party to tained and recognized as a rule of law than be affected thereby. Can any reason be given there was for the continuance of the old com- why a revocation by the operation of law mon law rule, that all the rights and liabil- should have a greater effect than an absolute ities of joint contractors died with them; or, revocation by the act of the principal? In rather, passed to their co-creditors, or attached one case the intention to revoke is clear, and to their co-debtors, as the case might be. The the revocation is actually made by the princirule is certainly in conflict with the spirit of pal, while in the other the revocation is the reall laws which hold the representatives of de- sult of an unforseen occurrence, and exists cedents bound by their acts in relation to their without any express or implied exercise of the property interests. It is a rule, the disas- will of the principal. Is it any easier to extrous effect of which no human foresight or plain how a valid act can be done by an agent diligence can avoid, and the only excuse for whose authority is revoked by his principal, its existence consists in the artificial reason than it is to explain how a valid act can be upon which it is founded.

A far more reas- done by an agent, whose authority is revoked onable rule was recognized by the civil law, by operation of law? Is that a sound and for the acts of the agent, done in good faith consistent rule of law which will not allow a and in ignorance of the death of his principal, principal to revoke the authority of his agent were held valid and binding upon his heirs. in such

a way as to injuriously affect 1 Domat, B. 1 tit. 15, 8 4 Art. 7-8. The the interests of innocent parties, and yet same rule obtains among the nations of con- will do the same act for him or his representatinental Europe, the representatives of the tives—a rule which will do that for a man, principal being bound to ratify the acts of an which, on grounds of public policy, it proagent, done in pursuance of the instructions hibits him from doing for himself? of the latter and in ignorance of his death. Nor can the doctrine of instantaneous rev2 Pothier de Mandat, N. 106; Pothier on Ob- ocation by death be defended even upon techligations, N. 81, 449.

nical grounds. The technical reason urged in We have spoken of the rule of instantane- support of the rule, namely, that the act is ous revocation of the authority of an agent by that of a dead man is not technically true, for the death of his principal, without referring to the act of the agent even though done in the cases in which it has been 'qualified, or its the name of the principal is never in fact the soundness questioned. There are, however, act of the principal, but is merely treated as some decisions which go very far towards deny-such on grounds of public policy. Should the ing the soundness of the rule, and we deem act of one person be treated as the act them entitled to great weight, as the reasons up- of another, on grounds of public policy, in on which they rest are founded upon principles cases where the interests of society or the of natural justice and public policy, rather public will be injured thereby? Should a rule than upon mere technical arguments. See which is based upon an assumption which is Cassidy v. McKenzie, 4 Watts & Serg. 282 ; not technically true be upheld for merely Ish. v. Crane, 8 Ohio State, 520, and cases technical reasons ? cited; Carriger v. Whittington, 26 Mo. 313. It may be well in this connection to inquire But it must be admitted that the greatest how far and in what instances the law regard American jurists have taken an opposite view, the name in which an act is done as essential

- at least in those cases where the act was in determining its effect upon contract rights done in the name of the principal. Marshall, and liabilities in general. There was a time, Kent and Story all agree as to the essential indeed, when an agreement with a man was an features of the rule. See Hunt v. Rous- agreement with him only, and choses in action manier's Adm'r. 8 Wheaton, 174; Kent's could not be assigned so as to give the as





signee any rights whatever. After a time, the rule became so modified that although the assignee had nominally no right of action, he was allowed to bring an action in the name of the assignor. The name of the contracting party was still used, and we see here an example of the practice so frequently met with in the history of common law, namely, that of clinging to the form of a rule after its spirit had departed.

We have now, in many of the states, outgrown even the shadow of the rule, for the law enables any one who has acquired the rights of the obligee to bring an action in his own name. We see instances without number where contracts exert a binding force on persons not named in them. Valid contracts are made in a firm name long after the parties who originally constituted the firm are dead, and while there are no individuals in the firm of the same names. Agreements are stantly being enforced by persons whose names do not appear in them, against persons whose names do not appear in them— persons to whom and by whom no such agreements were ever made. This occurs in every case where the assignee of a chose in action proceeds against the representative of the obligor for the enforcement of a right. Then, if the fact of the creation of the obligation or liability, and not the name in which it was incurred, is of the essence of the right, is it reasonable to regard the name in which the intention and agreement of a deceased person was carried into effect as a matter of such importance as to determine the validity of the transaction?

In the case of other contrac: liabilities into which a party enters, the law implies an agreement on his part that his representatives shall be bound thereby, and we can see no good reason why an exception should Le made in the case of the agreement, express or implied, on the part of the principal, that his agent shall have authority to act for him until notice of the revocation of such authority.

H. H. C.

Supreme Court of Ilinois, September Term, 1877.

[Filed January 21, 1878.] Hon. JOHN SCHOLFIELD, Chief Justice.


Associate Justices.
John M. SCOTT,

ALFRED M. CRAIG, 1. EXECUTIONS–EXEMPTIONS - WAIVE OF.-It is the duty of an officer holding an execution, before levying on the personal property of the defendant in the execution, to notify bim, if practicable, of his having such execution in his hands; and if, after receiving such notice, the defendant in the execution neglects or refuses to make a selection of property allowed him by statute, the officer may levy on any of his property not specifically exempt from execution and sell the same regardless of any subsequent claim made by the defendant to such property.

2. CASE IN JUDGMENT.- Held, that the following instruction stated a correct principle of law, and was improperly refused: “If the jury be ieve from the evidence that the officer told the plaintiff on an evening that he had the execution, and informed him of the contents of it, and that the following day he would meet the plaintiff at his house and then make a levy, and that he might in the meantime find out his rights, and see what he would do; and that on the next day the officer went to Deyoe's house, and that Deyoe was purposely absent; then, in that case, the officer would be entitled to levy upon any of the property of the defendant not specifically exempt, and in case the facts are proven by the testimony to be as above supposed, Deyoe would not be entitled to make a selection afterwards."

Appeal from the Circuit Court of Marshall County,

CRAIG, J., delivered the opinion of the court:

This was an action of trespass, brought against appellant, sheriff of Marshall county, to recover double the value of certain property levied upon and sold by him in satisfaction of a certain execution which came into his hands for collection, issued upon a judgment rendered against appellee. Several grounds of reversal have been urged by appellant, but we do not deem it necessary to consider all of them. The second, however, discloses one palpable error, for which the judgment will have to be reversed.

The defendant, appellant here, requested the court to give the following instruction, which was refused, and an exception taken to the decision:

". If the jury believe from the evidence that the officer told the plaintiff on an evening that he had the execution, and informed him of the contents of it, and that on the following day he would meet the plaintiff at his house, and then make a levy, and that he might in the meantime find out his rights and see what he wanted to do; and that on the next day the officer went to Deyoe's house, and that Deyoe was purposely absent; then, in that case, the officer would be entitled to levy upon auy

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In the Cleopatra's Needle Salvage Case, just decided by the English Court of Admiralty, it was held that the mon olith was clearly a marketable article of property, but its great antiquity added much greater value to it, and that it would be as absurb to contend that it was worth no more than so much old stone as lo estimate the value of one of Michael Angelo's pietures by that of the canvas on which the work was painted. Its value was assessed at $125,000, and the salvors allowed $10,000.

The instructions of appellee, it is claimed, ignore the fact that the defendant had notice of the execution and opportunity to make a selection of property before a levy. It will not, however, be necessary to consider these instructions and review them here; in so far as they conflict with the law as settled in the cases cited, and the views here expressed in regard to the appellant's refused instruction, they are incorrect and cannot be sustained, and on another trial, should one be had, the instructions can be made to conform to the law applicable to the facts as proven.

For the error indicated the judgment will be reversed and the cause remanded.

Reversed and remanded.




of the property of the defendant not specifically exempt, and in case the facts are proven by the testimony to be as above supposed, Deyoe would not be entitled to make a selection afterwards.?'

The largest part of the property sold consisted of corn, which appellee claimed under that clause of the statute exempting sixty dollars' worth of property suitable to the condition or occupation in life of the debtor, and to be selected by him.

It was then an important inquiry, whether before the levy, appellee had been notified by the sheriff of the execution, and had an opportunity to turn out property in satisfaction thereof, and set up his claim to such property as he desired to select as exempt under the statute. And it was the undoubted right of appellant to have the law applicable to the facts given to the jury. Did the refused instruction declare a correct principle of law under the facts established before the jury? A brief reference to the authorities bearing upon the question, we think, will show the instruction was in substance correct, and should have been given.

The testimony is clear that appellee had property subject to the execution, and it is averred in the declaration that he offered to turn out property to the officer when he claimed the corn levied upon as exempt. In Cook v. Scott, 1 Gilm. 333, where the question was as to the duty of an officer holding an execution and the rights and duties of the defendant in execution, the court held as a general rule, it was the duty of an officer holding an execution in his hands before he proceeds to take or seize any of the personal property of the defendant in the execution, by a levy thereon, to notify such defendant if practicable, of his having such execution in his hands, and then the defendant has the right to select such property as he desires to retain under the statute, surrendering to the officer all his other property not thus selected or specifically exempt, for the satisfaction of the execution. The court also held, if a defendant, after notice from an officer having an execution against him, neglect or refuse to make a selection of property allowed him by statute, the officer may proceed to levy upon any of his property not specifically exempt from execution, and sell the same regardless of any subsequent claim of the defendant to such property. In Bingham v. Maxcy, 15 III. 290, and in the case of People v. Palmer, 46 III. 398, the same principle was announced, and the doctrine of Cook v. Scott was fully approved. As we understand the refused instruction, it announces the law as held in the cases cited and nothing more. If, as the instruction declares, the defendant in execution was notified by the officer that he held the execution, and that he would at a certain time and place, levy the same upon property, this gave the defendant in execution ample opportunity to make a selection of the property he desired to claim under that clause of the statute exempting sixty dollars' worth of property from levy, and if he neglected and failed to make his selection as declared in the cases cited, he lost the right to come in on a day subsequent to the levy and make a selection of the property he desired to claim.

United States Circuit Court, District of California. Before the Hon. LORENZO SAWYER, Circuit Judge.

1. NATURALIZATION-CHINESE.-A native of China of the Mongolian race is not entitled to become a citi. zen of the United States under the Revised Statutes as amended in 1875. Rev. Sts., sec. 2169. Amendment, p. 1435.

2. A MONGOLIAN 18 NOT a “white person," within the meaning of the term, as used in the naturalization laws of the United States.

B. S. Brooks, for petitioner; S. Haydenfeldt Jr., amicus curiae.

SAWYER, Circuit Judge.

Ah Yup, a native and citizen of the empire of China, of the Mongolian race, presented a petition in writing, praying that he be permitted to make proof of the facts alleged, and, upon satisfactory proof being made, and his taking the oath required in such cases, that he be admitted as a citizen of the United States.

The petition stated all the qualifications required by the statute to entitle the petitioner to be naturalized, provided the statute authorizes the naturalization of a native of China, of the Molgolian

The petitioner was represented by B. S. Brooks, a counselor of this court. This being the first application made by a native Chinaman for naturalization, the members of the bar were requested by the court to make such suggestions as amici curiae as occurred to them upon either side of the question; whereupon S. Haydenfeldt Jr., argued the case very fully in opposition to the application. Suggestions were also made by other members of the bar present. The only question is, whether the statute authorizes the naturalization of a native of China of the Mongolian race.

In all the acts of congress regulating the naturalization of aliens, from that of April 14, 1802, down to the Revised Statutes, the language has been “ that any alien, being a free white person, may be admitted to become a citizen," etc. After the adoption of the thirteenth and fourteenth amendments to the national constitution, the form


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