Common Pleas.—Anderson v. Broad, and others.

the contract in evidence, and then proved, by the contractor, that he completed the contract as far as the owner would permit him, and they showed further, though in a very loose way, that there was an amount due him, equal to the plaintiff's claim. The defendants then offered to show that they had paid the contractor $350 before the liep was put on, and that after he received this payment, being more than was due by the terms of the contract, he abandoned the contract, which the justice refused to allow them to do, and gave judgment for the plaintiff. Upon the authority of the case above cited, as well as that of Doughty v. Devlin, decided at the May Term of 1853, this was a complete defence, and the judgment must therefore be reversed.

WOODRUFF, J.-Whether where the owner commences the proceedings by requiring the claimant to foreclose, the mere fact that the term of credit for money actually earned by the contractor has not expired, will defeat the proceedings so as to destroy the lien.-Quere.

Court of Common Pleas.

[March General Term, 1854.]

Before INGRAHAM, First Judge, and DALY, Judge.

ANDERSON V. BROAD, and others.

Where an agent employs another person to sell a note for him, and such person effecting a sale makes statements to the purchaser as to the character of the note, and the sale is subsequently ratified by the principal by receiving the proceeds, such statement may be given in evidence as part of the transaction attending the sale.

Whether declarations made by a sub-agent under such circumstances are to have the effect of an estoppel, in the same manner as if made by the principal.-Quære.

The facts appear in the opinion

for Plaintiff.

for Defendants.

INGRAHAM, First Judge.-This action was brought to recover the amount of a promissory note to which the defence was usury. The note was made to raise money on, and placed in the hands of Inglee, a broker, to be sold; Inglee handed the note to Devoe to sell. He sold it to Swords for less than its face, at three per cent. per month discount.

Upon the trial, Devoe was examined as a witness and he testified to the conversations between him and Swords at the time of sale, on a

Common Pleas.-Anderson v. Broad, and others.

cross-examination by the plaintiff. The plaintiff then called Swords as a witness and examined him as to the representations made by Devoe to him at the time of selling the note, to which the defendant objected. The object of this examination was to show from the declarations of Devoe that he represented the note to be a business note.

Had these representations been made by Inglee, there could be no doubt that they were properly admitted. He was the agent of the defendants to sell the note. He had authority to make the best of it. He was told by Morgan that it was a good note and after he had sold it to the plaintiff, and made such representations, they would have bound the defendants, as made within the scope of his, or the authority which the agent possessed in making the sale. The only difficulty arises from the fact, that Devoe, who made the representation, was not the immediate agent of the defendants, but was employed by Inglee for that purpose. Ordinarily an agent, unless so authorized, cannot delegate his authority, but where it appears that the agency does not, in the performance of it, require any exercise of judgment or discretion on the part of the agent, but may be discharged by the employers of the agent as well as by himself, the strictness of the rule may be relieved, and where the sub-agent has followed the instructions given to the agent, the principal should not be allowed to deny the agency after adopting the same by the receipt of the proceeds.

I think also the evidence was admissible, as part of the transaction attending the sale of the note. The defendants had proved, by Devoe, the sale of the note to Swords and the amount for which it was sold. The plaintiff had a right to call out the whole of the conversation at the time the sale was effected. This formed a part of it and preceded the portion which Devoe had previously testified to.

If it was not proper to use it as testimony making out an estoppel, still the evidence should have been received and the effect of it limited by a proper instruction to the jury. Although there may be some doubt as to the effect that should be given to representations made by sub-agents, still I think they could not have been excluded after the defendants had proven a part of the conversation at which they were made.

The judgment should be affirmed.

Duer's Report.

DUER'S REPORTS.

REPORTS OF CASES, Argued and Determined in the Superior Court of the City of New York. By JoHN DUER, L.L. D., one of the Justices of the Court. Vol. I., pp. 757. New York, 1854.

We have, when residing elsewhere, had occasion to doubt whether the character of this Court and the value of its decision are well understood by the profession beyond this immediate vicinity. The Court has been regarded as a mere local tribunal of limited jurisdiction. Its jurisdiction, until the amalgamation of legal and equitable proceedings in this State, was, doubtless, so far limited as to affect the value of its decision for Chancery lawyers. Such limitation no longer exists; and with the exception of a few special matters, the jurisdiction of the Court, as to causes of action, is general. To obtain jurisdiction of persons, they must reside or be personally served in the city of New York, and so far its jurisdiction is yet limited. But it should be borne in mind that the population of New York is hardly less than 600,000 souls, a number exceeding the several population of half the States of the Union; and the aggregate of the property subject to its adjudications sustains even a larger ratio to that affected by the highest courts of the several States. Besides these facts, the commercial activity of this city and the innumerable contracts made here by parties and affecting property elsewhere, increases litigation beyond all comparison with State courts. This is obvious from the fact of there being more practicing lawyers in the city of New York than in any entire State of the Union, if we except four or five. The Reports of the Superior Court are remarkable for the number of cases upon the subjects of contracts, personal relations and commercial law, in all their variety and bearings. The variety, ability and even novelty of some of these discussions cannot fail to be noticed by any one who examines a volume of decisions of the Superior Court. At the time we write, the Court, besides its calendar of appealed cases, its special motions often involving complicated facts and difficult points af law, to be tried without juries, has a jury calendar of more than twenty-five hundred cases, in the trial of which with juries, four of the six judges, of which the full bench is composed, are now daily employed-each for all practical purposes acting independently of the others.

From all the rulings at nisi prius, or made by a single judge upon any issue of law, appeals are taken to the General Term of the same Court. From the General Term an appeal lies direct to the Court of Appeals. And though only three of the six judges usually sit in General Term, it is understood that important cases are not often finally decided until after conference and free expression of opinions, when all the judges are present. The ease with which these conferences are brought about, and the fact that none of the judges ever preside so far from their brethren as to be compelled to act on a difficult matter without full opportunity for consultation, have doubtless

Duer's Report.

contributed greatly to the very unusual harmony and uniform consistency of the adjudications of this Court.

But there are other reasons for the very high estimation in which the decisions of the Superior Court have long been held in this State. Since the origin of this court, in 1828, there have been selected, for its Judges, an unusual proportion of men of more than common ability and professional learning. In this particular, it has, perhaps, been more fortunate than any other court in the State. When organized in 1828, Josiah Ogden Hoffman, one of the most distinguished lawyers in New York, Samuel Jones, once Chancellor of the State, and whose rare ability and ample learning were but a few months since, when he expired at the age of nearly eighty years, the admiration of the whole bar, and Thomas J. Oakley, already, though then quite young, distinguished as Attorney General of the State, were appointed as the first Judges. Judge Jones remained on the bench of this court until 1847, a period of nineteen consecutive years, which is a long judicial tenure in these progressive times. But the tenure of Judge Oakley, now and for many years the Chief Justice, is still more remarkable. He has sat as Judge without interruption in the same court more than a quarter of a century; a period approximating very near to the longest judicial terms known under the English law. And, if we may judge from his present popularity (since no man not popular can now long hold a judicial office) and from the impartiality, dignity and vigor with which he still presides, he is likely to sit on with undiminished honor and ability until his term will have reached the period of those of Mansfield and Kent.

The time honored Court of Chancery has fallen, forms of procedure older than our national history have been swept away, the Constitution of the State has been remodelled-a new mode of electing Judges has been substituted, and a novel system of practice has been devised, and brought into something like harmony; and yet through all these judicial revolutions, enough to fill up the judicial history of two centuries with any other people, the same Judge sits unshaken on the same bench, firmly administering the same principles of justice as before, and directing clear and unperturbed the steady current of judicial wisdom. Aside from all personal consideration, these facts are of public interest, as showing that there exists amidst all our revolutionary and progressive tendencies a feeling that novelty and wisdom are not identical, and some evidence that notwithstanding all our changes, the fundamental rights and relations of persons and property are substantially undisturbed.

We have said that this court has been fortunate in possessing some Judges of more than common learning. There was the lamented Judge, Lewis H. Sandford, formerly Vice-Chancellor, and the well known author of several volumes of Law and Equity Reports.

This country has produced but few so able and learned Judges. The venerable and accomplished Judge Duer is known as the one of the distinguished revisers of the New York Statutes, and as the learned

Duer's Report.

author of an elaborate, though uncompleted, work on Insurance. Judge Hoffman of this court, was also a Vice-Chancellor before the abolition of the Courts of Equity, and is the well-known author of several treatises, among which is one on Receivers, a work on Chancery Practice in three volumes, a recent work on the authority and Franchises of the city of New York, and some others we believe of not so legal a character. It was not our purpose, however, to do more than to state some of the reasons which have contributed to give the Superior Court of the city of New York a position for learning, ability and consistency not inferior in professional estimation to any court in the Siate, not even excepting the Court of Appeals.

The cases in the present volume are reported by Judge Duer. The five preceding volumes of the reports of this court embracing all of the decisions except the two volumes of Hall that have ever been reported, were reported by the late Judge Sandford whom Judge Duer has succeeded.

The volume before us, contains a report of the most important cases, decided in the years 1852 and 1853. The marginal notes are clear and sufficiently full. Abridged statements of the arguments of counsel, the authorities cited, and the full opinions of the Judges fol

low.

The volume contains several cases of general interest to the practicing lawyer; among which are decisions on the subject of bailments, statute of frauds, seaworthiness, carriers, duress, insurance, specific articles, consideration, bank checks, &c.; but by far the most important discussions in this volume are those which arose upon the injunctions restraining the Corporate authorities of the city of New York from carrying into execution certain contracts relative to laying rails in the public streets of the city. These injunctions were violated by the Common Council and proceedings for contempt of court were instituted against the aldermen. The courts vindicated their authority, and some of the aldermen were fined and imprisoned for the contempt. The general power of courts to grant injunctions, and the right and authority of Municipal Corporations, in respect to the public property managed by them, were very learnedly and ably discussed in those cases. These subjects have probably never before been so thoroughly examined. The discussions reported in this volume alone fill nearly one hundred and fifty pages, and they cannot fail to give it a general and permanent interest and value. The opinion of Judge Bosworth, in one of these cases (that of the People vs. Compton and others) for compactness, precision, strength and inanly independence is worthy of the highest commendation, and in these particulars it bears close analogy to the admired opinions of a distinguished baron of the English Court of Exchequer.

This volume, as do all the previous volumes since Mr. Justice Duer came upon the bench, contains ample evidence of his industry and abundant learning. His opinions continually remind the reader of those of Judge Story, to whom in his attainments and the style of his judicial writings, Judge Duer certainly bears considerable resemblance.