gress of the trial. Confessedly it may be signed after judgment, as of a date before, and be effective, though the date of the signature in such a case is false. Why should giving to the signature its true date destroy it? The reason why it is required that a bill shall be presented for signature during the term, (except in extraordinary cases, when delay is allowed by the judge), is that the facts appearing and rulings made at the trial may be fresh in his memory. Are they any more fresh in his memory when he antedates the bill, or orders it to be filed as of the date of the trial, than when he gives to the signature and filing their true date? We can not doubt that in a multitude of cases bills of exception have been signed after judgment, and filed without any order that the signature and filing be entered nunc pro tune, but when the true time of the signature appeared, and have been treated as sufficient, whenever they have shown that the exceptions were taken during the trial. And, we think, it would be a surprise to the profession, and work great wrong to suitors, were we to hold such bills invalid. In Neece v. Heely, 23 Ill. 416, exceptions were duly taken at the trial. The record showed that the bill of exceptions was signed three days afterwards, but during the term. It was held that the bill was good, and that the record need not explain the delay. So it was ruled in Illinois R. Co. v. Palmer, 24 Ill. 416, that if the bill of exceptions clearly shows that exceptions were taken at the proper time, it is immaterial that it was not signed till some days after the trial, and that it spoke in the present tense. In Dean v. Gridley, 10 Wend. 254, Savage, C. J., declared that it was not required the bill should be so drawn as to appear to have been signed upon the trial, whether it was so or not. He was speaking of the Supreme Court of Errors. See Hollowell v. Hollowell, 1 Monroe, 130; Hughes v. Robertson, Id. 215.

A third objection to the appeal in Hunnicut v. Peyton, supra, was that the defendants waived their exceptions by suing out the writ of error before the signature of the judge was obtained, this being the rule as stated in Tidd's Practice, 863, citing Dillon v. Parker, 11 Price. 100. But the Supreme Court, after showing that Dillon v. Parker did not sustain the text of Tidd, said: "But if that is the rule in the English courts, it is not imperative even there. Where the presentation to the judge has been delayed from the default of the defendant in error, or for other sufficient reasons, the court of errors will allow the bill of exceptions, when signed, to be tacked to the record as of the time when the record was removed. Taylor v. Williams, 2 B. & Ad. 846; Id. 6 Bing. 512. The case is reported also in 4 M. & P. 257, where the facts are fully stated. On a trial of a case before Chief Justice Tindal, on the 23d of December, a bill of exceptions was tendered, the substance of which was reduced to writing and given to the officer of the court before the termination of the cause, but it was not then signed and sealed. There was a verdict for the plaintiff. The defendant sued out a writ of error in the King's Bench. Subsequently, on the 11th of February following, the bill of exceptions in an amended form was settled by the counsel for the parties, and a copy was sent to the plaintiff's attorney that he might accede to its terms or suggest alterations before it was sealed by the chief justice. At the same time. the defendant served a rule to transcribe the record for return with the writ of error. The bill not having been returned, the court granted an order for its return. It was

argued against the rule (and Dillon v. Parker, was cited in support of the argument) that the bill was waived, and that by the writ of error and the rule to transcribe, the record had been removed into the King's Bench. But the court, all the judges concurring, retained the order upon the attorney, holding that the chief justice might seal the bill. It is not, therefore, by any means settled, even in England, that suing out a writ of error is a waiver of unsigned bills of exceptions. We know of no decision in this country that asserts or gives any countenance to such a rule, or any reason that justifies it, unless it be one in New York, to which we shall refer. True, a writ of error here, as in England, is supposed to remove the record of the court to which it is directed into the superior tribunal. But this is a mere fiction. In neither country is the record itself actually sent up. A transcript only is sent. In England, at common law, a writ of error operated as a supersedeas and stayed all action of the inferior court, and thence it was regarded as removing the record and ousting the jurisdiction of that court. The law there has been changed. And here, the writ is of itself no supersedeas. If there be no bail for a supersedeas, a writ does not stay the action of the trial court. An execution may be issued and executed though a writ of error is pending. Much more, it would seem, must the court to which the writ is sent have power, during the term in which the case is tried, to put its records and proceedings in form to return them in obedience to the writ. If that can not be done, great hardship and injustice would in many cases be the result. As we have said, bills of exceptions can not always be formally prepared until a considerable time after verdict and judg ment. in They may require, full statement all at the trial. Papers necessary to be incorporated may be mislaid or withheld by the opposite party; the charges of the judge, to which exception has been taken, may not have been filed, or sickness may have interfered. Meanwhile, judgment on the verdict may have been entered, and unless the party can protect himself by a writ of error, an execution may follow. For these reasons, the universal practice is to give reasonable time to make up the bills of exception and obtain the signature. This is not altering the record; it is completing it. It is not exercising jurisdiction over the case. It is merely putting into form the record statement of what was done before the writ of error was sent down. In Brown v. Bissell, 1 Dougl. 1 Mich. 273, where a bill of execution returned with a writ of error appeared to have been signed after the writ was sued out, it was held to be, at most, whether at common law or under the statute, a mere irreguWillarity, which was waived by a joinder in error. beck v. Wayne, 8 How. Pr. 433.''

of almost

some cases, a that occurred

A question in regard to interest on legacies, which does not seem to have often arisen, was determined by the Supreme Court of Missouri in the late case of State v. Adams, where it was held that there having been a contest over a will, interest would be afterwards allowed on a legacy given by it, from the day the proceedings to contest were ended, and not from a year after the testator's decease, as under the general rule. While the suit contesting the will was undetermined," said the court, the executrix could not carry into effect the provisions of the will, and could not, therefore, be in default to the legatees. Interest should have been allowed only from the time

the suit to contest the will was dismissed, and not from the date of the first annual settlement." The only other case we believe in the books in which the point is noticed is Vandergrift's Appeal, 80 Pa. St. 116.

The Albany Law Journal notes from an Austrian legal paper the following decision on the subject of Rewards: A's servant had embezzled 37,000 florins and had fled. A went to the director of police at Prague and formally declared before him that he would give ten per cent. of the sum found with his servant on his arrest. The police authorities published this offer of reward in the newspapers. A few days thereafter, B delivered A's servant into the hands of the police. 17,372 florins were found on his person. A refusing to pay B ten per cent. of this sum, B brought suit for 1,737 florins. The trial court nonsuited him, it appearing that the servant had voluntarily come to B and given himself up to him, and that then B had merely accompanied the servant to the police station. B appealed, and the Bohemian Supreme Court, and on A's further appeal, the Imperial Appellate Court, both decided that B was entitled to the reward. They held that A was only interested in the success consequent upon his offer of reward; the manner and mode of effecting it must be immaterial to him. He has no right to scrutinize the action of B, his intent or meritoriousness. Because the servant was arrested, and a part of the money restored to A, he must pay the promised reward to the person who brought this about. Without B, the servant might have changed his mind, concealed himself and wasted the money. For examples of different phases of the subjects of Finders and Rewards, and the law thereof, see 3 Cent. L, J. 379; 4 Id. 384; 5 Id. 22, 417; 7 Id. 204; 8 Id. 23; 9 Id. 478.

NOTES.

-Sir Alexander James Edmund Cockburn, Chief Justice of England, who died suddenly on the 21st ult., was born in 1802; became a Q. C. in 1841; attorney-general in 1851; Chief Justice of the Common Pleas in 1856, and Chief Justice of England in 1859. His greatest professional triumph was his prosecution of the prisoner Palmer; though perhaps his greatest notoriety came from his charge in the Tichborne trial, which was a masterly production, and would have enhanced his reputation had his position in the case been that of advocate instead of judge. His great speech in the Palmer case is quoted from at length and analysed by Mr. Harris in his "Hints on Advocacy." The New York Tribune's correspondent writing of the effect of his death in England, says: "Nobody disputes the brilliancy and variety of Cockburn's talents, but the bar never recognized him as a great lawyer, and a powerful sect of society always denied him admission. Right Hon. Sir George Jessel, Master of the Rolls, perhaps the ablest lawyer of this generation, in pronouncing the formal panegyric in court, conspicuously omitted to praise his judicial qualifications. Several judges during the week complained severely of the indiscriminate laudation of the press, criticising Cockburn's absence of

sound learning, his excesssive love of display and eagerness to preside at sensational cases. Society remembers against Cockburn some early scandals and the life-long irregularity of his domestic relations; nevertheless, it is true that he was exceedingly welcome in many influential circles, and will be long remembered for his shining conversational gifts." Chief Justice Cockburn was best known in this country from his connection with the Alabama Arbitration at which he was the British member of the commission, He did not agree with his colleagues, and declined to sign the award made in favor of the United States, his dissenting opinion being long and elaborate. He concurred in holding Great Britain liable in the case of the Alabama, though differing from the grounds on which the decision of the tribunal was founded. With respect to the Florida and Shenandoah, he declared that he could not too strongly express his dissent from the decisions arrived at. The course of

Sir Alexander Cockburn at the conference was afterward strongly criticised by the Hon. Caleb Cushing, one of the counsel for the United States, in a volume printed in 1876, entitled "The Treaty of Washington." Mr. Cushing declared that neither Sir Alexander's "original constitution of mind, nor the studies, pursuits, or habits of his life, had fitted him for calm, impartial, judicial examination of great questions of public law;" and he is further charged generally with "petulant irritability and unjudicial partisanship of action."

-Chief Justice Coleridge of the Court of Common Pleas succeeds Cockburn as Lord Chief Justice of England.—Judge Jackson of the Georgia Supreme Court has been appointed Chief Justice of the State, vice Bleckley resigned.-A call is published to the bar of this State to meet by representatives at Kansas City on the 28th inst., to consider the question of the crowded state of the Supreme Court docket, and to devise means for its relief. The address is as follows: "In view of the hopelessly embarrassed condition of the docket of the Supreme Court, and the universally recognized necessity of some relief to the court, and in view of the probability of some action by the legislature at its approaching session, it is believed that the lawyers of the State should come together to consider this matter and devise some well-considered plan which may be submitted to the General Assembly when it assembles at Jefferson City in January. To this end a convention of lawyers is called to meet at Kansas City, on Tuesday, the 28th day of December, 1880, at 10 A. M., at such place as may be provid ed, to consider and mature such plan as will insure its adoption and bring the desired relief both to the court and the litigants before it. Each and every bar of the State is requested to select and send to this convention one or more of its members, and the clerk of the circuit court of each county is requested to call a meeting of the bar of his county for that purpose." -It is said that to him who goes to law nine things are requisite. In the first place, a good deal of money; 2d, a good deal of patience; 3d, a good cause; 4th, a good attorney; 5th, good counsel; 6th, good evidence; 7th, a good jury; 8th, a good judge; and 9th, good luck.- -A debating society discussed the question: "Is it wrong to cheat a lawyer?" After full discussion and mature deliberation, the decision was, "not wrong, but too difficult to pay for the trouble."—In Dotson v. State, 62 Ala. 141, it is held that one who carries concealed on his person all the separate pieces of a pistol, capable of being readily and effectively put together, is guilty of carrying concealed weapons.

-

ST. LOUIS, DECEMBER 10, 1880.

SALES BY COMMISSION AGENTS.

The contention raised before the English Master of the Rolls in the recently reported case of Kirkman v. Peel,1 is one of considerable importance to consignors and consignees, as well as to commission agents who trade independently of their agency. The action in that case was brought by an English consignor against his consignees in India, to recover damages from and money received by the latter in respect of goods consigned to them by the plaintiff. The defendants were in the habit of receiving goods generally, and also of trading on their own account in and between India and England. An order had been made by the Master of the Rolls directing the official referce to take an account of the dealings and transactions between the plaintiff and the defendants as his agents in respect of goods intrusted by the plaintiff to the defendants since the 1st Nov. 1875, for sale on his behalf. The official referee, in pursuance of that order, directed an account of the application by the defendants of the proceeds realized by sale of the plaintiff's goods in India, including an account of the purchase with such proceeds of any produce, and of the amounts realized by sale of the produce so purchased. Was the direction of the official referee sustainable? The defendants objected to it on the ground that it was neither authorized by the terms of the reference, nor was it a direction which the plaintiff was entitled to under the circumstances against the defendants as his agents.

There is no doubt of the general rule that all profits directly or indirectly made by an agent in the course of his employment, without the sanction of the principal, belong exclusively to the principal. Thus, in Barber v. Dennis, where the widow of a waterman had taken an apprentice, as she was entitled to do by usage, the apprentice was impressed and put on board a ship of war; there he

143 L. T. R. (N. S.) 171. 26 Mod. 69.

Vol. 11-No. 24.

defendant's possession. The court held that the widow was entitled to maintain trover against the defendant to recover the tickets on the ground that whatever the apprentice earned belonged to her.

3

In Thompson v. Havelock, the master of a ship brought an action to recover from the ship-owner money paid to the latter by a third person for service performed by the captain in the course of his employment. Lord Ellenborough ruled that the money belonged to the defendant, remarking that a servant who has engaged to devote the whole of his time. and attention to his employer's concerns, is not entitled to hire out his services.

The later case of Morrison v. Thompson,4 was an action by the purchaser of a steamship to recover from the broker, who was employed to purchase the ship as cheaply as possible, the sum of 2251. received by him from the broker of the vendor by way of commission. The plaintiff recovered judgment at the trial, and was allowed to retain it by the Queen's Bench. The rule stated by Chief Justice Cockburn was that, "whilst an agent is bound to account to his principal or employer for all profits made by him in the course of his employment or service, and is compelled to account in equity, there is at the same time a legal duty clearly incumbent upon him, whenever any profits so made have reached his hands, and there is no account in regard to them remaining to be taken and adjusted between him and his employer, to pay over the amount as money absolutely belonging to his employer.

Re Hallett's Estate5 was quoted as having a bearing upon the points raised in Kirkham v. Peel. It is difficult, however, to see in what way that decision applied, for it dealt with such questions as those raised in Clayton's Case, and ex parte Dale. The main question in Re Hallett's estate was, whether an insolvent solicitor stood in such a fiduciary relation to a client, that the latter had a right to follow the proceeds of certain bonds which had been intrusted by the client to the

3 1 Camp 527.

4 L. R. 9 Q. B. 480.

5 42 L. T. Rep. (N. S.) 421.

6 1 Mer. 572.

7 40 L. T. Rep. (N. S.) 712.

solicitor for safe custody, but which he had sold, paying the proceeds into his own current account. The Master of the Rolls in that case certainly said that there is no distinction between a rightful and a wrongful disposition of property by persons in a fiduciary position so far as regards the right of the beneficial owner to follow the proceeds. "Has it ever been suggested," asked his lordship, "until very recently, that there is any distinction between an express trustee, or an agent or a bailee, or a collector of rents, or anybody else in a fiduciary position?" It will be observed that these remarks apply to the right to follow the proceeds of money or the like improperly dealt with.

Of course, if an agent invests his principal's money without authority, or the proceeds of goods belonging to his principal, the principal will be entitled to the proceeds with all accretions. It would seem, however, that to entitle the principal to recover the profit or accretion, it must be shown that it was made by the agent during the continuance of his agency, and in violation of his authority. This rule will perhaps furnish the ratio decidendi of Kirkham v. Peel. In that case it was urged on the one hand that defendants were merely commission agents, and not bailees or trustees; on the other it was contended that, as the defendants had been trading with the plaintiff's goods and money, any profits made by them should be paid to the plaintiffs. The evidence showed that the real contract between the parties was that the consignors treated the consignees as creditors for advances and interest, and debtors for the amounts received and interest. Upon this point the case turned; for, as the Master of the Rolls pointed out, his observations in the last-quoted case had nothing to do with the relation between the parties here, where the defendants were commission agents; but were confined to the case of a bailee, who ordinarily sells single articles, and whose duty it is to remit the necessary proceeds to his principal. If the principle contended for by the plaintiffs in this case became established as law, it would work in a very injurious manner to trade; nevertheless, if the contract between the parties had been that the defendants should barter consignments for goods, then it might be well argued that consignors

were entitled to the goods given in exchange, or their proceeds and fruit.

CLEARING-HOUSE ASSOCIATIONS.

The object of Clearing-House Associations is to facilitate the work of the banks of large cities in collecting their negotiable paper. Formerly it was the custom with the banks to send their messengers to the respective banks and gather in the checks and drafts drawn against them for the day. In large cities where there were numerous banks, it was found a difficult work, often consuming half a day, and attended more or less with some risk. This was especially so in London; and over a quarter of a century ago, a system of clearings was established there among the private banks, which is in operation now. Instead of sending their messengers to different banks to collect their paper, they established a sort of a clearing house by means of which the "balances" due credit banks could be ascertained in the course of a few minutes. The work of half a day was thus reduced to less than a half an hour, and the advantage of such a system was generally recognized. It was soon adopted in New York, and subsequently in other cities, with some modifications.

As the subject is not universally understood, even among lawyers, it is proposed to state briefly the workings of the clearing house in the western cities, where this system has been adopted. We do not know of any particular case in which a knowledge of the workings of the clearing house has been required, but it seems to us that it will become an important feature of the law in connection with the varied and extraordinary operations performed by negotiable paper. What position does the clearing house hold with reference to creditors of a bank which has a credit balance that day in its favor? Or of an insolvent bank to which the clearing house is indebted, or the creditors of its assignee? Questions of this sort may arise, when the knowledge may be necessary. The system as we understand it is this:

Each bank, which is a member of the association, is represented by a clerk who records on a prepared slip all the checks or drafts drawn on other banks of the city, and taken in or accepted at this particular bank during the day, and which they have either cashed or placed to the credit of depositors. These amounts are then transferred to another slip, on one side of which are printed the names of all the associated banks, and opposite to each of these is written the aggregate amount of all the checks accepted against it. This is the "credit sheet." The total of all these aggregate amounts being accurately ascertained and written at the bottom of this tabular statement is the sum which is to be placed to the credit of the bank at the clearing house. Each bank has its own "credits" made known for the day. It is then necessary to ascertain the "debits," or the aggregate amount which each one of its associates holds against it in the drafts and checks drawn

on it, and which have been accepted in like manner by the other banks.

At an appointed hour of the day, generally two o'clock, the clearing-house messengers assemble in their rooms at the clearing house, each one bearing the packages containing separately the drafts and checks which his bank has accepted against the other banks, the amounts in the aggregate sums of which correspond exactly with those on his credit sheet above mentioned. His first duty is to distribute at the various desks at which each bank belonging to the association is represented, the packages containing all the checks and drafts drawn against the respective banks, so that each bank in this way receives all of the paper drawn on it that day up to a certain time. The clerks then make out the total of the checks and drafts drawn on their banks upon a printed form called a "debit slip," and after deducting the "debits" from the "credits," present the "balance" to the manager together with the "debit" and "credit" slips. The balance which is on one of these slips shows whether the bank is a debtor or creditor of the clearing house that day, according as the "credits" exceed or fall below the "debits," or according as the paper drawn in its favor exceeds in amount or falls below the paper drawn against it. The manager takes these slips and enters the various balances upon a record book prepared for the purpose, those of the creditor banks being transferred to the credit side of the book, and those of the debtor banks being transferred to the debtor side. The whole balance is then adjusted by bringing over the "debits" to pay the "credits." The "debits” are the amounts the debtor banks owe the clearing house. The "credits" are the amounts the clearing house owes other banks. These must be exactly equal; so that in order to make an adjustment, the manager has simply to take the "debits" and bring them over to the credit side, and in this way pay off the creditor banks. He then draws his checks on debtor banks to pay off the creditor banks. The manager's duty is virtually to do in toto, what each messenger clerk does for the individual bank he represents. The clerk ascertains the balance, debit or credit of his bank for that day up to that time. The manager ascertains the balance of all the banks for that day up to that time.

Errors occurring in any of the work of the clerks are sometimes reported; sometimes rectified by the manager. The fact that the debit side and credit side do not balance, shows the existence of an error somewhere. If it is not reported, it is ascertained afterwards by going over the respective "credit" and "debit" slips, and comparing them. This is sometimes a tiresome task, especially when many banks are represented in the association. The first step to avoid errors, is to see that the balances are correctly entered; then that the deductions of the "debit" from the "credit" amount in the respective slips are correctly made; then compare the total amount of the "credit" slips with the same total amount as set down on the "debit" slips to be deducted

from those balances, and then compare the separate amounts of each bank on both slips; and if the error is still not found, see whether the additions on all of the slips are correctly made. For the purpose of facilitating the work and preventing the recurrence of errors, a penalty is usually imposed on those banks making errors, in case they are not reported before found by the manager.

In case of failure of any bank after two o'clock, if that is the hour appointed for ascertaining the balances of the various banks, or by or before four o'clock, when the checks of the manager are delivered to the messengers, if the failing bank has a "credit" balance, the manager must pay that failing bank just as usual, by a check drawn on any of the solvent debtor banks, after which the clearing house is relieved of all liability in the matter. If the failing bank has a “debit" balance, the manager should check against it just as usual; and if not paid and the check is returned to the clearing house, the committee of management of the clearing house should be summoned, and directed to get from said failing bank all of the checks sent through the clearing house on that day, as represented by the "debit slip" of that bank, which checks must not be cancelled or mutilated by said failing bank. These checks are then returned by the manager to the several banks, and an equal amount of money or memoranda checks demanded (memoranda checks having the preference). These latter checks or the cash is deposited in bank, and then the manager checks them out to pay his previous checks, which were not paid by the failing bank. He then draws a check for the remainder (which will just equal the amount of checks sent to the clearing house by the failing bank that day), in favor of said failing bank, and obtains a receipt from the failing bank for the check so paid to it, explaining for what it is given. This system, which it is understood originated in Cincinnati in 1866, has been adopted by the banks, or many of the principal ones, of St. Louis, Louisville, Chicago and Columbus. In New York another system prevails, which is generally regarded as more cumbersome, and is certainly attended with greater risk, as the actual balances in cash are brought to the clearing house. It might not be necessary to count out the money, as it is arranged in packages with the respective amounts written thereon; but it would seem that that might be necessary, when the manager has ascertained the amounts due the creditor banks, and prepares to pay them off. In the other cities which have adopted the new system, no cash is handled whatever, and in this-the simplicity of the system-its superiority consists.