OF THE REVOCATION OF THE AUTHORITY OF AN AGENT BY THE DEATH OF HIS PRINCIPAL.

An able and learned judge, when urged by a conservative associate to adhere to a longestablished rule of law which he had demonstrated to his own satisfaction to be erroneous as applied to the case at bar, made the remark: "Error, hoary-headed, is error still." Though, as a rule, it must be admitted that at the present time there seems to be little inclination on the part of some of our courts to uphold the doctrine of stare decisis, there are some rules of law which have been handed down to us that derive their support, such as it is, almost wholly from an artificial and technical system of reasoning.

Some common law rules are still in force of which it may be fairly said that the only excuse for their existence is, that we were born under them, and find it to be almost impossible to outgrow them, though every valid reason for their continuance, if such reason ever existed, has wholly passed away. Though more rules of the nature of those mentioned are to be found in the law of procedure, and in the law of real property, than in the law of contracts relating to personal property, or in the law of torts, it is quite reasonable to suppose that we have not yet arrived at perfection in any branch of the law.

Among the technical rules of law which we have inherited from our ancestors, the doctrine of the instantaneous revocation of the authority of an agent by the death of his principal, seems to be one of the most unreasonable and mischievous.

The theory of the common law, that an authority, unless coupled with an interest in the thing concerning which the authority is to be exercised, dies with the party giving it, is founded in the technical reason that " a dead man can do no act." Of course, the proposition that a dead man can do no act is indisputable; but the obnoxious feature of the law of instantaneous revocation of the agents' authority by the death of the principal, is that its effect is to deprive the living principal of the right to arrange the management of his property interests after his death, or rather, to allow his representatives to avoid the obligations he assumed while living. Nearly all actions which might have been brought by or against the deceased during his life, may be

tate.

brought by or against his representatives after his death. All contract obligations which he has incurred are a valid charge upon his esWhy, then, should not a contract made through an agent, acting under instructions given by the deceased during his life-time, be held binding? The authority under which the act was done was duly given by one who had the right to give it, and he has done nothing to revoke that authority, nor could he revoke it without giving the parties interested due notice. Why should his representatives, who are bound by his acts, be allowed to accomplish by the aid of his death, that which he never intended to do, and could not have done, had he been so disposed? The only reasons which can be given seem very unsatisfactory, when carefully considered with reference to their effect upon the business relations of mankind. The whole ground upon which the acts of an agent after the death, and before notice of the death of the principal, are held inoperative and not binding, is that they are, in contemplation of law, made by a deceased person, or one who can no longer act. While the rule referred to nominally holds the contract entered into for the deceased after his death not

binding, its real effect is to discharge the liability he assumed while living, when he held out his agent as authorized to act as such until notice of revocation.

A few illustrations will serve to show how technical and artificial are the reasons which have been considered sufficient to justify the rule that no valid act can be done by an agent acting for a deceased person, though no notice of the death of the principal has reached the parties at the time of the transaction.

Suppose A, who lives in Milwaukee, does the following acts on the first day of May: 1. Executes his promissory note to B, due one year after date.

2. Executes his last will and testament in proper form, by the terms of which his property is left mainly to strangers, and his natural heirs, though deserving, are left with but a pittance.

3. Gives C and D, who are his agents at New York, each written authority to purchase certain goods in his name.

On May 2nd he writes to C not to buy any goods. The next day, May 3d, A is accidentally killed.

Were it not for the fact that cases in which it is involved so seldom arise, there can be but little doubt that the doctrine of instantaneous revocation would have long since met the fate of many technical rules which have been swept away in the progress of legal reform. There is no more reason why it should be retained and recognized as a rule of law than there was for the continuance of the old common law rule, that all the rights and liabilities of joint contractors died with them; or, rather, passed to their co-creditors, or attached to their co-debtors, as the case might be. The rule is certainly in conflict with the spirit of all laws which hold the representatives of decedents bound by their acts in relation to their property interests. It is a rule, the disastrous effect of which no human foresight or diligence can avoid, and the only excuse for its existence consists in the artificial reason upon which it is founded. A far more reasonable rule was recognized by the civil law, for the acts of the agent, done in good faith and in ignorance of the death of his principal, were held valid and binding upon his heirs. 1 Domat, B. 1 tit. 15, § 4 Art. 7-8. The same rule obtains among the nations of continental Europe, the representatives of the principal being bound to ratify the acts of an agent, done in pursuance of the instructions of the latter and in ignorance of his death. 2 Pothier de Mandat, N. 106; Pothier on Obligations, N. 81, 449.

We have spoken of the rule of instantaneous revocation of the authority of an agent by the death of his principal, without referring to the cases in which it has been qualified, or its soundness questioned. There are, however, some decisions which go very far towards denying the soundness of the rule, and we deem them entitled to great weight, as the reasons upon which they rest are founded upon principles of natural justice and public policy, rather than upon mere technical arguments. See Cassidy v. McKenzie, 4 Watts & Serg. 282; Ish. v. Crane, 8 Ohio State, 520, and cases cited; Carriger v. Whittington, 26 Mo. 313. But it must be admitted that the greatest American jurists have taken an opposite view, -at least in those cases where the act was done in the name of the principal. Marshall, Kent and Story all agree as to the essential features of the rule. See Hunt v. Rousmanier's Adm'r. 8 Wheaton, 174; Kent's

Com., Vol. 2, page 646; Story on Agency, §

495.

No principle of law is more firmly established than that a revocation by the act of the principal can not take effect, so as to render the acts of the agent invalid, unless the fact of such revocation was known to the party to be affected thereby. Can any reason be given why a revocation by the operation of law should have a greater effect than an absolute revocation by the act of the principal? In one case the intention to revoke is clear, and the revocation is actually made by the principal, while in the other the revocation is the result of an unforseen occurrence, and exists without any express or implied exercise of the will of the principal. Is it any easier to explain how a valid act can be done by an agent whose authority is revoked by his principal, than it is to explain how a valid act can be done by an agent, whose authority is revoked by operation of law? Is that a sound and consistent rule of law which will not allow a principal to revoke the authority of his agent in such a way as to injuriously affect the interests of innocent parties, and yet will do the same act for him or his representatives-a rule which will do that for a man, which, on grounds of public policy, it prohibits him from doing for himself?

Nor can the doctrine of instantaneous revocation by death be defended even upon technical grounds. The technical reason urged in support of the rule, namely, that the act is that of a dead man is not technically true, for the act of the agent even though done in the name of the principal is never in fact the act of the principal, but is merely treated as such on grounds of public policy. Should the act of one person be treated as the act of another, on grounds of public policy, in cases where the interests of society or the public will be injured thereby? Should a rule which is based upon an assumption which is not technically true be upheld for merely technical reasons?

It may be well in this connection to inquire how far and in what instances the law regard the name in which an act is done as essential in determining its effect upon contract rights and liabilities in general. There was a time, indeed, when an agreement with a man was an agreement with him only, and choses in action 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 constantly 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 contract 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.

IN the Cleopatra's Needle Salvage Case, just decided by the English Court of Admiralty, it was held that the monolith 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 to 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.

1. EXECUTIONS-EXEMPTIONS-Waiver 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 him, 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 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 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 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."

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 Ill. 290, and in the case of People v. Palmer, 46 Ill. 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.

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 aud remanded.

NATURALIZATION LAWS - CHINESE "WHITE PERSON."

IN RE AH YUP.

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 citizen of the United States under the Revised Statutes as amended in 1875. Rev. Sts., sec. 2169. Amendment, p. 1435.

2. A MONGOLIAN IS 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 race. 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.