The Ohio Law Journal.

Columbus, O., March 10, 1883.

THE SUPREME COURT COMMISSION.

The bill for the appointment of a Supreme Court commission has passed the House and awaits the action of the Senate. The measure is opposed by the Democrats. The opposition is because of the fact that if the bill passes, a Republican governor will appoint the members of the commission, and will at all events place a majority of Republicans thereon. This would be such a disaster that its mere contemplation makes us shudder. But is it not about time that "Paarty," "Paarty," be forgotten for at least a minute, while some measure of reform and relief is candidly considered and framed into a law? The condition of the docket of the Supreme Court is now such as to amount to a practical denial of justice by reason of long delay in the consideration of cases. There are over a thousand of these cases-and how many litigants, who can teli? And the men or party standing for purely partisan purposes in the way of relief to these long suffering victims can certainly gain but little, either of present popularity and votes at the coming elections, or of charitable consideration at the hands of intelligent people now or in the future; not enough, certainly, to compensate them for the execration of the disappointed litigants. It is the duty of the legislature to provide for this commission without delay; and it is to be hoped that men of all parties will rise above mere party scheming, either for or against the measure, and inaugurate the first step in reform, by the prompt passage of the bill.

B.

RIGHTS OF STATES AS DEFINED BY THE SUPREME COURT OF THE UNITED STATES.

It will be remembered that in 1880 Louisiana repudiated certain of her bonds, and refused payment of the same. These bonds were largely held by eastern capitalists, who have been making great efforts to compel the dishonest state to pay her just obligations. The state being, of course, beyond the reach of individuals by legal process, it occurred to

the bondholders that if their bonds were sold to a sister state, this difficulty no longer existing, the state assignee could bring suit against the state repudiating, and compel payment. The assignment was therefore made of a portion of the bonds to New Hampshire, and a portion to New York, and these states brought suit on the bonds. The Supreme Court of the United States has just decided these cases.

In the decisions the court recites the acts of the Legislatures of New Hampshire and New York, providing for these suits, and also narrates the causes which led to the adoption constitutional amendment No. 11, declaring of that the judicial power of the United States shall not be construed to extend to any suit in law or equity presented against any one of the United States by the citizens of another state. The court says no one can look at the pleadings and testimony in these cases and not be satisfied they were in legal effect commenced and prosecuted by holders of the bonds and coupons, and that one state cannot create a controversy with another state within the meaning of the judicial clauses of the constitution by assuming the prosecution of debts owing to its citizens. The bills, therefore, were dismissed.

The decision is very unsatisfactory. The court must have gone behind the returns and taken for granted that the assignment to the state was simply a ruse de guerre; or the pleadings must have been very defective to show such state of affairs. In either case the question is just where it was when propounded. If the state had been the bona fide owner of the bonds, as was certainly the issue, feigned at least, the decision does not go to the merits of the controversy, but stops on the threshold, and, professing to see the little game, simply says, "It won't do;" only this and nothing more. It would be interesting to know whether a state can compel a sister state to pay her honest debts.

More light of the same dark kind is thrown upon this question by this same high tribunal in the case of Louisiana ex. rel. Jnb. Elliott et al, pl'ffs in error v. Jumel & Burke, def'ts in error, decided March 5, Waite, C. J., delivering the opinion of the court.

In 1874 the legislature of Louisiana passed

an act providing for the levying of a tax to create a fund for the payment of interest on the state debt. Under this law some $300,000 was collected. In 1880 the debt ordinance was passed, which was, in fact, the repudiation of the state debt, bonds, etc. This last case was an application for a writ of mandamus to compel the treasurer of state to apply the money collected under the act of 1874 to the payment of interest on the bonds repudiated in 1880. After reciting the acts of 1874, and the debt ordinance of January, 1880, of Louisiana, the court stated that about $300,000 are in the treasury of the state, collected under the act of 1874 to meet coupons falling due January, 1880, and that the state treasurer refuses to apply it to the payment of the coupons, and claims to hold it only for purposes mentioned by the terms of the new constitution. After narrating the act of 1874, the court say they have no doubt that it was the intention of Louisiana to enter into a formal contract under the act of 1874, but that there is no way in which the state, in its capacity as an organized political community, can be brought before any court of the state, or of the United States, to answer a suit in the name of the holders of the bonds and coupons to obtain judgment for their value.

They say, further, that these are suits by creditors at large of the class provided for by the act of 1874, to compel officers of the state to enforce the provisions of the act when the state has prohibited them from doing so, and when the court, if it requires an officer to proceed, cannot protect him with a judgment to which the state is a party. The persons sued are the executive officers of the state, and were proceeded against in their official capacity. The money in the treasury is the property of the state, and not in any legal sense the property of the bondholders. The relief asked will require the officers to act contrary to the supreme political power of the -state, whose creatures they are. The treasurer is no more a trustee of the moneys than he is of all other public moneys. He holds them, but only as agent of the state. After reciting numerous cases the court says that the remedy sought would require the court to assume all political power or the state, and that the

political power cannot be thus ousted of its jurisdiction, and the judiciary set in its place. When a state submits itself to the jurisdiction of the court, that jurisdiction may be used to give effect to what the state bas authorized to be done; and if the law permits coercion of public officers to enforce any judgment, such coercion may be employed; but courts, in cases where states cannot be sued, have no power to set up jurisdiction over officers to control them againt the political power of a state. The decree in the suit in equity and judgment in that for mandamus are affirmed.

Justice Field delivered a long and eloquent opinion in dissent from the conclusions of the court, in which dissent Justice Harlan expressed his assent. The court also on the same day, March 5, decided the case of Antoni v. Greenhow, the chief justice delivering the opinion, the effect of which is to settle and determine the long-standing issue of the state debt of Virginia. The court refers to the act of March, 1871, by which the general assembly of Virginia provided for issuing certain bonds and for interest coupons attached, which coupons were to be receivable for all taxes due the state. The court say that this was a contract, and that any act forbidding the receipt of the coupons for taxes is void; but also say that at the time the bonds were issued the writ of mandamus was a proper remedy to compel a collector to accept coupons for taxes. In January, 1882, the general assembly passed an act declaring that no collector should receive such coupons for taxes, but only for verification, and giving the party a remedy by suit for the amount of the coupon, he being required to pay his taxes in money. The court say that, as a general rule, the law directing the remedy entered into the contract, but that changes in the forms of action do not impair the contract if an adequate and efficacious remedy is left.

The court go into a long course of reasoning to prove that the creditor has as good a remedy as he had before, although the right to a mandamus had been taken away. They therefore affirm the judgment of the state court. They say, indeed, that the question is not presented whether, if the tax collector

refuses to take the coupon, and proceeds to the collection of the tax by force, he can be made personally responsible in damages for what he does. Upon this last point much may depend, but the force and text of the decision undoubtedly. tends to uphold the act of the readjuster legislature and to force creditors to fund under the Riddleberger bill. The statement of the court that an adequate remedy had been given to the Virginia bondholder is regarded as in conflict with well-known history. Justice Matthews placed his assent to the decision upon the doctrine that a state could not be sued, and that if it allowed a process in court against its officers where it was interested it had a right to withdraw such process when it pleased. Justice Gray concurred. Justices Field and Harlan delivered dissenting opinions.

While these decisions seem to be a somewhat abrupt departure from the long line of precedents following the Dartmouth College case, still it must be confessed that a strict interpretation of inter-state rights, and of the rights, as well, of impoverished communities and their relief from intolerable burdens, fully justify this departure. It seems strange, however, that these ultra doctrines should emanate from judges of the most pronounced Republican bias. B.

they can prepare, and be thoroughly convers ant with fine-spun theories of practice, they will be disappointed. From what we have learned of the last examination we conclude that out of the 4,500 lawyers in the state not one hundred could have "passed." We believe that the class rejected could take the same text books, the same opportunities for formulating legal puzzles, and so beset their examiners that a majority of them, even, would be "plucked." It is all right and proper that students should have a fairly thorough knowledge of the principles of the law, but it is unreasonable that scores of young men who have given years of hard study to their chosen profession and are as well, and often better, qualified to practice it than thousands who are in the profession, should be debarred for failure to answer questions which would not be propounded by a client in a hundred years' practice. The writer of this, having passed the ordeal, speaks from experience; and while casting no reflections upon the motives of the committee, believing them to be of the best, still cannot commend the present practice, which is either very unjust or very much. misunderstood. B.

JUDGE WHITE.

It is with regret that we learn of the serious illness of Judge White, Chief Justice of the

SION TO THE BAR.

There seems to be a general dissatisfaction regarding the examination of law students, as conducted for a year or more past, and more particularly within the past few months. The examination seems to be considered by the applicants as an examination, not for admission, but for exclusion. Whether this complaint is well founded or not we do not pretend to say, but that there is great irregularity and uncertainty in the matter there is no doubt. At one examination an entire class of two or three dozen will be admitted, and at another time out of a class of a dozen all but two are rejected.

An examination should not be an exercise in puzzles and conundrums, but a catechism in the rudiments of a legal education. If the committee expects a lot of students to answer legal problems, the most difficult which

pointed District Judge of the United States for this district. All members of the bar of the state, and especially of the district, will join with us in the hope that the judge may have a speedy recovery.

ADMISSIONS TO THE BAR.

At the examination for admission to the bar, on Tuesday, Herman A. Kelley, of Kelly's Island, and Thomas H. Smith, of Cincinnati, were successful, and were sworn in as attorneys by the Supreme Court.

Articles Original and Selected.

THE AUTHORITY OF AUCTIONEERS. It has been said that association with horses has a tendency to undermine morality, and it is equally true that when a horse forms the subject of litigation some very odd law is laid down, and contentions still more odd are set

up. This is illustrated strongly in regard to the law of agency, which, when horses are concerned, is apt to assume an aspect quite different from that presented to less demoralizing subjects of litigation. There is authority for the proposition that the servant of a horse-dealer sent to sell a horse has authority virtute officii to warrant it, even although he has express directions from his master not to warrant it, and without evidence that in similar instances the master has ratified the servant's warranty. When, however, it was attempted to apply this rule to the servants of persons who were not dealers, the judges shrunk from the task, Brady v. Todd, 30 Law J. Rep. C. P. 223. It is difficult to see the reason of the distinction,unless it be that any stick is good enough to beat a horse dealer; while the ordinary citizen unlucky enough to be saddled with a horse which does not suit him may send an imaginative groom to market without being responsible for any sanguine estimate which may be given of the quadruped's qualities. There would be something substantial in the distinction if any proof had ever been given that horse-dealers habitually authorize their servants to warrant; but it may be confidently assumed that nothing of the sort can be proved against this wary race. The latest reported example of a contention, the only hope of which lay in the fact that there was a horse in the case, and, therefore, anything might be decided, is Payne v. Leconfield, reported in the December number of the Law Journal Reports.

In this action the horse-dealer failed, and to that extent the case maintains the ill luck of his class in courts of law; but, in this instance, it was he who was setting up an impossible case of agency. The horse-dealer, in this case, bought the horse, which was sold by auction on behalf of Lord Leconfield, the defendant. When it was brought out in the auctioneer's yard the horse was suffering from a discharge from the nostrils; but the auctioneer reassured the bidders that they need not be afraid, and that he should sell her only as having a cold. This evidence, if accepted by the jury, would, undoubtedly, have supported a verdict that the auctioneer warranted the horse; but the defendant's case was a denial that the auctioneer had any authority to warrant. In support of this contention it was proved that the auctioneer had sent a printed form which was partially filled up on the defendant's behalf. By this form, so filled up, the defendant was only committed to the statement that the horse was brown in color, was a mare, was aged and "had carried a hunt servant," while the spaces for such entries as "quiet in harness," "quiet to ride," "if veterinary surgeon's examination allowed," were

significantly left blank. The action was tried by Mr. Justice Bowen, but the jury were unable to agree; and, doubtless, scme sympathy was felt for the plaintiff, whose stable had been infected by the horse, which was, in fact, suffering from chronic glanders. The learned judge thereupon, in order to give the case a turn which might finally decide it, ordered judgment to be entered for the defendant, on the ground that there was no evidence of authority. Upon this a motion was made for a new trial, which was argued before Mr. Justice Grove and Mr. Justice Mathew. Mr. Justice Grove exhibited the usual reluctance of judges to say that there was no evidence of authority; but, as the case had not been decided by the jury, he was driven to consider the bare question, and he decided it in favor of the defendant. The only evidence, in fact, was that the alleged agent was an auctioneer, and had the horse for sale. There was no evidence of custom, and no authority in the English law books that there was such authority inherent in the character of an auctioneer. Mr. Justice Mathew took very much the same view, adding, what seems not a very solid reason, that the plaintiff must have known that no warranty was intended, because he only gave fifteen guineas for the horse. When we remember what the warranty suggested was-namely, that the horse was free from contagious disease the price given throws no light on the view taken of the transaction by the buyer. For a horse dealer to take a glandered horse into his stables would be something like ruin, although it was given him for nothing.

In fact, the only shred of authority producible by the plaintiff was that of Story. Two passages were cited from this learned writer, who is speaking, not of horses, but of agents, and who, therefore, is entirely free from the bias inherent in horse cases. He says, Story on Agency, Sec. 85, "A literal adherence to the common course of business may sometimes, under peculiar circumstances, defeat the very objects of the agency; and new and unexpected emergencies and necessities of such a critical nature may arise, as, if one may use the expression, will expand the authority beyond its ordinary limits, and justify even a deviation from its ordinary limitations and import." These are vague words, which the plaintiff's counsel adapted to their needs with ingenuity. It was said that the object of the agency in question was to sell the horse; that the horse would not have been sold unless the auctioneer had warranted it free from contagious disease; and, therefore, he had a sort of authority from necessity to warrant it. This theory might be indefinitely extended. Suppose an agent has a dozen things to sell, and he finds that he is obliged,

in order to catch a particular purchaser, to make a particular representation in each case; he thus inight make a dozen warranties when he had not authority to make one. What Story meant we do not presume to say; but he can hardly have intended his words to allow a seller's agent authority to make any representation if he finds the goods do not go off unassisted. The other passage relied on is much more specific. Story says, Story on Agency, Sec. 107, "The verbal declarations of an auctioneer at the sale, at least where they do not contradict the written particulars of the sale, are admissible against the principal, and binding on him, as an incident to his authority to sell;" adding in a note-" whether an auctioneer has, virtute officii, a right to warrant the goods, does not seem to be perfectly clear upon the authorities." The note is not of great importance. If Story be right as to representations, the application of the rule to warranties follows. The difference between warranties and representations is a difference in the character of the communication made by the agent to the purchaser, and does not affect the authority of the agent. If the agent has authority to bind the principal by representations, it is reasonable that he should have authority to bind him by a warranty, although, if the matter depended on express authority, power to make representations is, of course, a different thing from power to warrant. The dictum of Story must now be considered overruled; and it is not easy to see on what grounds it was based. The purchaser has always a right of action against the agent who makes a warranty in excess of his instructions. There is no reason why the law should favor buyers at auctions rather than sellers. Both equally benefit from the institution, and it is enough for the law to keep an even hand between them. There appears to be no sufficient reason why the rule of law that a man is bound by his own contract, but not by the contract of another unless he gave authority, should be extended in favor of purchasers in cases in which auctioneers are the agents of sellers.-Law Journal.

Reported Cases.

FANNING V. KRAPFL.

(Towa Supreme Court. Jan. 17, 1883.) PUBLICATION-Order of initials in name.—In an action for the foreclosure of a mechanic's lien notice was given by publication, and the name published as the name of one of the defendants was "P. T. B. Hopkins," the true order of the initials of her Christian name being "T. P. B. Hopkins." Held, that this was a substantial defect, and that the decree of foreclosure passed was void for want of jurisdiction.

Appeal from Dubuque circuit court.

Action to remove a cloud from the plaintiff's alleged title to certain real estate in Du

buque county. The petition in substance avers, that in October, 1872, one Wm. H. Hue de Bourch was the owner of the land in question, and being such owner he conveyed the same to W. R. I. Hopkins; that the conveyance was made to him by a deed in which it was provided that the conveyance was made "in trust for the use and benefit of T. Phelia Boyd Hopkins, the daughter of the grantor, and her children, exclusively hereby expressly restricting from the effect and operation of the sale and conveyance all right and power on the part of said daughter and her children to sell, convey, and alienate in any form their said life estate in the premises aforesaid without the consent of the trustee herein before named, and then only for the purpose of reinvesting the same by said trustee;" that afterwards, in September, 1879, the said W. R. I. Hopkins, by way of reinvestment and exchange of lands, sold and conveyed the land in question to the plaintiff; that the defendant Krapfl claims to hold the premises by virtue of a paramount title, to-wit, by a sheriff's deed executed in pursuance of an execution sale made in May, 1879; that the sale was made in pursuance of a decree of foreclosure of an alleged mechanic's lien for lumber furnished for the impovement of the premises by contract with the said T. Phelia Boyd Hopkins; that while the decree and sheriff's deed were regular upon their face, they were insufficient in fact to bind the property because the court failed to acquire jurisdiction by reason of a want of notice to the said T. Phelia Boyd Hopkins; that the only notice served was by publication, and was insufficient because not addressed to the said T. Phelia Boyd Hopkins; that the notice served was addressed as follows: "To John C. Hopkins, P. T. B. Hopkins, his wife, W. R. I. Hopkins, trustee and Geo. M. Staples." He asks, therefore, that the sheriff's deed be declared void, and the cloud cast by it upon his title be removed. The defendant demurred to the petition, and the court sustained the demurrer. The plaintiff electing to stand upon his petition, the court rendered judgment against him for costs.

ADAMS, J.

Where, in an action for the foreclosure of a mechanic's lien, notice is given by publication, and the name published as the name of the defendant differs substantially from his true name, the notice would not, we think be sufficient to give the court jurisdiction. Whether the notice is sufficient which omits the Christian name or names, and contains only the initial letter or letters, we need not determine. The practice of omitting the Christian name or names in a published notice is certainly subject to grave objections, and by no means to be commended. But, for the