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33
A WEEKLY RECORD
A WEEKLY RECO

OF THE

LAW AND THE LAWYERS.

CONDUCTED BY
ISAAC GRANT THOMPIEN VOR AB

VOL. VI.

FROM JULY, 1872, TO JANUARY, 1873.

ALBANY:
WEED, PARSONS AND COMPANY.

1873.

BOS

6 SEPI

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

BY WEED, PARSONS AND COMPANY,
In the office of the Librarian of Congress, at Washington.

3535

THE ALBANY LAW JOURNAL:

A WEEKLY RECORD OF THE LAW AND THE LAWYERS.

complexity of commercial and financial affairs as the The Albany Law Journal.

basis of the many and various rights and duties aris

ing from delegated authority. ALBANY, JULY 6, 1872.

The relation of principal and agent, and its recog

nition by the law, is founded on the public good, as ON THE LIABILITY OF AN AGENT UPON A

promoted by the facilitation of business transactions WRITTEN INSTRUMENT CONNECTED

and the consequent ultimate increase of production, WITH THE SUBJECT OF HIS AGENCY.*

and it is to this policy that the rules of action, as laid It is a popular fallacy, and an annoying one to him down by the courts, are to conform. It is this policy who is disposed to regard legal science from a logical which has led to the abandonment of the civil law point of view, that the common law is composed of a doctrines in their harshness and illiberality, whereby series of irregular precedents, laid down from time to contracts made through the instrumentality of an time, according to the notions of this court or of that, agent did not in geceral bind the principals to each contradictory of each other in an eminent degree, and other. 1 Dom. Civ. Law, B. I, title 15, $ 3. Such destined to be overthrown whenever expediency shall laws are inconsistent with a spirit of trade and comrequire it - a system unsymmetrical, illogical and un- | merce. It is a far broader and more comprehensive stable.

view to hold every transaction of the agent as that But it is, after all, in the results of judicial inquiry of his principal, when such conclusion shall be just which stand to-day as the rules of civil action, that the and reasonable toward all parties concerned. true value of the common law in its slow development Accordingly, the two great fundamental rules underis to be found; in so far as the principles advanced lying this subject are never to be lost sight of in ages ago it may be, by judges of very different mental discussing it, that the principal must answer to third habits, ani under an infinite variety of circumstances, parties for all acts which he has authorized his agent unite to form a harmonious whole; in so far as the to perform, and also for those which such parties had rules applied in the ruder ages of society serve to-day just reason to believe were authorized by him. But in the far more complex system of affairs, so far must at these limits the protection of the agent ceases, and one recognize, beyond the uncouth formality and the beyond them a counter policy arises to restrain the clumsy fictions of the older law, that law in its sym exercise of unwarrantable authority. metry as a science, advancing by self-evolution as all In discussing that branch of the general liability of science, slowly and irregularly, but none the less an agent, which forms the subject of our essay — his surely toward its ultimate perfection.

liability on written instruments connected with the Nowhere, perhaps, are these principles more clearly subject matter of his agency – it will be proper to apparent than in the broad subject under discussion notice, first, the grounds of liability, and, second, the

- that of agency - not forming, it may be, in strict special cases in which that liability may arise.
truth, a distinct department of the law, but rather a
modifying element of all departments. The rules

SECTION I. governing it are in a high degree those of good sense

OF THE GROUNDS OF AN AGENT'S LIABILITY. and natural justice; first applied very many years ago as they were to a simple state of society, shut up

1. Where the agent has no authority, or where he has within itself, so to speak, by the international jealousy

| exceeded his authority. It is obvious that, in the case of the times, yet, by their intrinsic force as rules of

of a total lack of authority on the part of the agent, positive law, they rest firmly to-day in the vast

any contract made by him with an innocent party

must be considered as being emphatically the contract * The following essay by John H. Inness, was awarded the of the agent himself, since there can be no resort to

| the supposed principal. And it cannot affect the case

$100 prize at the recent commencement of the Columbia College Law School,

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