Deardorff and Others v. Foresman. (that is for the same reason that forbids an agent of the seller himself to become the buyer,) an agent of the seller cannot become an agent of the buyer in the same transaction." And again: § 9 "Yet we are to understand that they cannot, at the same time, take upon themselves incompatible duties and characters. * A memorandum made and signed by a seller, at the request of the purchaser, will not bind.” See 3 Parsons on Cont. p. 11; Smith's Mer. Law 149; Wright v. Dannah, 2 Camp. 203; Farebrother v. Simmons, 5 B. & A. 333; Rayner v. Linthorne, 2 C. & P. 124; Cooper v. Smith, 15 East. 108. In The Utica Ins. Co. v. Toledo Ins. Co. 17 Barb. 132, it is said: "The general principle that a party cannot act for himself in the same transaction in which he undertakes to act for another is well settled, and the validity of a contract in which he acts, and to which he is a party as agent for a third person, and also in his own behalf, does not depend upon the question whether he makes an advantage by the transaction. The character of agent for one party to a contract, and that of principal upon the other part, are incompatible." Ex parte Bennett, 10 Vesey 381; Florence v. Adams, 2 Robinson 556; Beal v. McKinnan, 6 Louis 407; Bentley v. Columbia Ins. Co., 19 Barb. 595. * * The law, indeed, makes the principal, for a special purpose, i. e., the delivery of the instrument, the agent of his sureties. Their delivery of the instrument to the principal, after placing their names upon it, authorizes the principal to make the delivery to the obligee, for such is the channel through which the paper would properly pass in reaching the obligee. And the delivery of the instrument to be by him at once transferred to the obligee, is a delivery entirely consistent with the interests and inclination of the principal, and for such a purpose the delivery is proper. The original contract is between the principal on the bond and the obligee. The compliance with the contract is the delivery of the bond by the principal obligor to the obligee, duly executed by himself and his VOL. XXIV.-32. Deardorff and Others v. Foresman. sureties. The contract between the principal on the bond and his sureties is that they will enable him to comply with his original contract. For this purpose they sign and deliver to him the instrument, that in the fulfillment of his original contract he may deliver it to the obligee. Now is it not clear, that as the general purpose of the delivery by the sureties to the principal is that he may make a delivery to the obligee, no conditions imposed upon such delivery will bind the obligee unless they are known to him? In the case of Pickering v. Busk, 15 East. 38, Lord ELLENBOROUGH, C. J., states the law thus: "Strangers can only look to the acts of the parties, and to the external indicia of property, and not to the private communications which may pass between a principal and his broker; and if a person authorize another to assume the apparent right of disposing of property in the ordinary course of trade, it must be presumed that the apparent authority is the real authority. I cannot subscribe to the doctrine that a broker's engagements are necessarily, and in all cases, limited to his actual authority, the reality of which is afterward to be tried by the fact. It is clear that he may bind his principal within the limits of the authority with which he has been apparently clothed by the principal in respect to the subject matter; and there would be no safety in mercantile transactions if he could not. If the principal send his commodity to a place where it is the ordinary business of the person to whom it is confided to sell, it must be intended that the commodity was sent thither for the purpose of sale. If the owner of a horse send it to a repository of sale, can it be implied that he sent it thither for any other purpose than that of sale? Or if one send goods to an auction room, can it be supposed that he sent them thither merely for safe custody?" And where the surety signs and delivers the bond to the principal, from whom it would naturally pass to the obligee, are we to suppose that such delivery to the principal was merely for safe custody? The rule laid down in the case cited is, "that where the commodity is sent in such a way and to Deardorff and Others v. Foresman. such a place, as to exhibit an apparent purpose of sale, the principal will be bound, and the purchaser safe." BAYLEY, J. If the servant of a horse dealer, with express directions not to warrant, do warrant, the master is bound; because the servant, having a general authority to sell, is in a condition to warrant, and the master has not notified to the world that the general authority is circumscribed." And is not the surety upon a bond, who delivers it to his principal in apparent proper condition to be delivered by him to the obligee, and with the general authority to make such delivery, but circumscribed by a condition, unknown to the obligee, bound by the delivery which the principal may make in disregard of the condition? The rule is stated by a learned author thus: "An agent's authority is that which is given by the declared terms of his appointment, notwithstanding secret instructions; or that with which he is clothed by the character in which he is held out to the world, although not within the words of his commission. Whatever is done under an authority thus manifested, is actually within the authority, and the principal is bound for that reason; for he is bound equally by the authority which he actually gives, and by that which, by his own acts, he appears. to give. * * The appearance of the authority is one thing,. and for that the principal is responsible." 1 Pars. on Cont. 44.. The surety places the instrument, perfect upon its face, in the hands of the proper person to pass it to the obligee, and the law justly holds that the apparent authority with which the surety has clothed him shall be regarded as the real authority, and as the condition imposed upon the delivery was unknown to the obligee, therefore, the benefit of such condition shall not avail the surety. Thus, in our opinion, should the rule be established upon principle; and as it appears by the examination we have made, that the authorities relied upon to sustain a contrary rule are, in the main, irrelevant, and are in turn quoted to support the cited decisions which are really in point, we are inclined, after a review of all the cases, to regard the real weight of well considered decisions as sustaining McGinnis v. The State. the rule which to us seems to rest also upon a correct principle. So far as the decision of the case of Pepper v. The State, supra, rests upon the construction of the statute, and upon the fact of forgery, we are not called upon to review it. The action of the court below upon the demurrer was correct. The judgment in this case is affirmed, with one-eighth of 1 per cent. damages, and costs. H. W. Chase and J. A. Wilstach, for appellants. John Pettit, for appellee. NOTE. The counsel for appellant cited Pepper v. The State, 22 Ind. 399; Awde v. Dixon, 6 Exc. 869; Leaf v. Gibbs, 4 C. & P. 466; Johnson v. Baker, 4 B. & A. 440; The State v. Bodly, 7 Blk. 355. Appellee cited Millett v. Parker, 2 Met. (Ky.) 608; 1 Bouv. Inst. 345; 2 id. 396. MCGINNIS v. THE STATE. CRIMINAL LAW.-COPY OF WRITING.-The court cannot compel the defen- FELONY.-COMMON PLEAS.-On the trial of an information for grand Held, that this court will take official notice that the Circuit Court could not have been in session between the commission of the offense and the trial. McGinnis v. The State. APPEAL from the Vanderburgh Common Pleas. ELLIOTT, C. J.-This was a prosecution instituted in the Court of Common Pleas of Vanderburgh County, at the May term, 1865, against Peter McGinnis, for grand larceny, in stealing, among other articles, one United States treasury note, of the denomination and value of $10, the personal property of Andrew J. Harvey. The information alleged that the defendant was confined in the county jail, on a charge of having committed said larceny, and that he had not been indicted therefor by the grand jury of the county. The crime is alleged to have been committed on the 4th day of May, 1865, and the information was filed on the 5th day of the same month. The defendant was tried by a jury, convicted, and sentenced to pay a fine of $1, and to be imprisoned in the state prison for the term of two years. A motion for a new trial was overruled, and judgment rendered on the verdict of the jury. The errors assigned are: 1. That the court erred in admitting parol evidence of the contents of the United States treasury note alleged to have been stolen, no foundation having been laid for such proof, and no notice served on the defendant to produce the note. 2. That the court erred in overruling the defendant's motion for a new trial. The evidence is all in the record. It is shown by a bill of exceptions that, on the trial of the cause, Andrew J. Harvey, the alleged owner of the property described in the information, was sworn and examined as a witness for the State, and having testified that he and the defendant slept together on the night of the 4th of May, and that he missed his money (which was in bank notes,) and his pocket book in the morning, was asked by the district attorney "to describe the contents of the notes which he had missed," to which the defendant objected, on the grounds that "no foundation had been laid on which the State could offer such evidence, and because the State had served no notice on the defendant to produce the United States treasury |