sanction arbitrary will, and to introduce into jurisprudence a cause of disorder and confusion. The law, rigorous though it be, contrary even to good sense, ought to live in the mind of the judge as an institution worthy of all his veneration: it is better a thousand times to sacrifice a private interest than a principle.

And let it not be thought that M. Troplong is opposed to this theory: it is also his, for I remember to have read somewhere in one of his works: "that it was time to renounce these false notions which equity suggests, which create disturbance in the law, and introduce the most lamentable mistakes."

In giving to the partial assignee a preference over his assignor, would not M. Troplong himself be a victim, and the first, of one of those mistakes which he fears for jurisprudence? I am convinced of it, and every one else will be too, if I show that he recognises elsewhere (in the number which precedes,) not expressly but impliedly—that the partial assignee is not preferred to his assignor, but participates with him. I see in effect in No. 366 of the same work, that if a privileged creditor has ceded his right to different assignees by successive titles, they participate among themselves, and cannot avail themselves of the date of their respective titles, to claim a preference of one over the others. Now, it is very evident that this theory can be true only in the system which admits participation between the assignor and his partial assignee. Thus, to continue the supposition before made, Primus after having sold half of his claim to Secundus, sells the other half to Tertius: shall this one participate with Secundus the first assignee? On the principle of M. Troplong, we must say not; for Primus being postponed to Secundus, was not able, by assigning the moiety of the claim which remained to him, to transfer to a third person a right of participation which he had not: nemo dat quod non habet. Secundus could not be deprived of a right of preference which he had over Primus, his assignor, by a contract to

which he was not a party. Tertius in buying the moiety of the claim which Primus had kept, received it such as it was, with the passive quality which holds it, in a rank inferior to that of the moiety which had been ceded the first; otherwise the assignor will have sold in reality a part of the right of Secundus, and he will come to exercise by a circuitous process, a right of participation which he had not himself.

In making then the second assignee come in pari passu with the first, M. Troplong impliedly acknowledges that the assignor has the right to participate with his assignee of part.

It can be said then to M. Troplong-do you maintain your first system? You must then abandon the second. Do you prefer the second? Acknowledge then the error of the first.

Here then it is we arrive, when, in place of supporting our decisions by the positive texts of the law, clear too as they can be, we allow ourselves to be drawn away from the law to follow the false lights of an imaginary equity.

162

JURISPRUDENCE.

DIGEST OF AMERICAN CASES.

[Containing selections from Howard's (Supreme Court of the United States) Reports, vol. 2; Watts & Sergeant's (Supreme Court of Pennsylvania) Reports, vol. 6; Howard's (High Court of Errors and Appeals of Mississippi) Reports, vols. 6 and 7; Smedes & Marshall's (High Court of Errors and Appeals of Mississippi) Reports, vols. 1 and 2; Freeman's (Supreme Court of Chancery of Mississippi) Reports, vol. 1; Smedes & Marshall's (Supreme Court of Chancery of Mississippi) Reports, vol. 1; B. Monroe's (Court of Appeals of Kentucky) Reports, vol. 4; Blackford's (Supreme Court of Indiana) Reports, vol. 5; Stanton's (Supreme Court of Ohio) Reports, vol. 12.]

ACTION. (In case of articles ordered by a public meeting.)

The members of a committee appointed by a political meeting to provide a free dinner for the party are personally liable for the bill. Eichbaum v. Irons, 6 Watts & Serg. 67. AGENT. (Liability of factor.) A factor who sells the goods of his principal, consigned to him for that purpose, and takes the notes of the vendce, which he has discounted for his own accommodation, thereby becomes responsible for the amount of the sales in the event of the insolvency of the purchaser. Myers v. Entriken, iv. 24.

2. A factor is liable for a loss arising from his neglect to keep his principal informed of matters material to his interests.

Evidence is not admissible on the part of a factor, in a suit by the principal against him founded on the factor's negligence, to show that it is not usual for factors to transmit to their principals moneys received by them as long as any part of the consignment remained unsold, or if sold, as long as any part of the moneys remained unpaid, though the honesty of the agent is not disputed and there is no ground to believe the moneys might thereby be lost.

A factor is bound to remit to his principal the moneys received from sales of a consignment, unless there be an agreement or custom of trade, and if the latter be himself the factor of a princi

pal abroad, he is bound to call on his factor in this country to transmit moneys received when he is informed of it, and if the money is lost by neglect to do so, he is answerable. Brown v. Arrott, ib. 402.

3. (Without hire, when liable.) An agent having undertaken

gratuitously to collect a note and book-account, surrendered them to the debtor, from whom he took a new note to himself for their amount; held, that this was an extinguishment of the original debt, and the agent was liable for its amount to his principal. Opie v. Serrill, ib. 264.

4. (When liable for damage to the principal, resulting from his bad faith.) If one is applied to as agent to investigate the title of another to a lot which he has an interest in purchasing, and he undertakes the duty, he cannot use the information thus acquired to the injury of his principal. He is bound to disclose to him any material information obtained concerning the title, and if he conceals it and buys himself, it is a fraud; and he cannot hold the property without reimbursing to the principal any loss he may sustain by failing in the purchase. Reid v. Stanley, ib. 369. 5. (When the agent exceeds his authority.) If an agent, in filling up a blank note, exceeds his authority, and the third person receives the note with a knowledge that the authority was limited, and has been transcended, the note will not be void in toto, but only for the excess beyond the sum which was authorized.

The act of an agent who exceeds his authority, is binding upon his principal to the extent of his authority, but is void for the residue. Johnson v. Blasdale, 1 Smedes & Marshall 17. 6. (Deed by agent in his own rame.) A deed to land made by an agent authorized to sell and convey the same, but made in the name of the agent for his principals, is not a legal deed. To make a conveyance binding, which is executed by an attorney or agent, the contract must be made and signed in the name of the principal.

A contract or conveyance made in the name of an agent or attorney, and signed by him as for his principal, is not the contract of the principal, and is binding merely upon the attorney. Holmes v. Carman et al., 1 Freeman 403.

7. (Cannot controvert title of principal.) If one take possession

of land as agent, the relation of landlord and tenant is thereby established, and the law applicable to landlord and tenant governs the relation, and while the possession is held the title of the principal cannot be controverted by the agent. Farrow v. Edmundson, 4 B. Monroe 605. AMENDMENT. (When amendment in verdict may be made.— The propriety thereof not examinable in court of error.) The court below, on motion, arrested a judgment for the plaintiff, after verdict, but without entering also that he took nothing by his writ.

The declaration contained two counts; in the first, the plaintiff sued as administrator; and in the second, in his own personal right. A general verdict was given, and the judgment arrested on account of the misjoinder of counts.

Afterwards, and before a writ of error was brought, a motion was made by the plaintiff to set aside the order arresting the judgment, and for leave to enter a nolle prosequi upon the second

count.

An affidavit was filed by the plaintiff's counsel, stating that the only evidence offered on the trial was given on the part of the plaintiff, and that the defendant offered no evidence whatever. The nature of the evidence was also stated, and the facts stated in the affidavit were not controverted.

The court below set aside the order arresting the judgment, a year after it was made, and allowed the verdict to be amended by entering the same nunc pro tunc, on the first count only.

In this there was no error.

All that is required is that the court should amend the verdict within a reasonable time; and this may be done upon the judge's notes of the evidence given at the trial or upon any other clear and satisfactory evidence. The practice is a salutary one and in furtherance of justice.

After all, the question of amendment was a question of discretion in the court below, upon its own review of the facts. This court has no right or authority, upon a writ of error, to examine the question; it belonged appropriately and exclusively to the court below. Murphy v. Stewart, 2 Howard (S. C.) 263. ASSIGNMENT. (Liability of assignor of a chose in action.) The assignee of an unfounded claim, or falsely represented contract,