ST. LOUIS, MARCH 18, 1881.

CURRENT TOPICS.

We learn from the public prints that a movement is on foot in Chicago in the interests of Mr. E. S. Isham, with a view of securing his nomination to the vacancy upon the Federal Supreme bench. Mr. Isham is, or was, the law partner of Mr. Lincoln, who has just been appointed Secretary of War. We adhere, however, to our former opinion, and think that this nomination should be given to some man who is eminent as a jurist, and whose training and experience peculiarly fit him for the duties of such an exalted position. The bar of the West and Southwest should interest themselves in this matter, without reference to party lines, and make an effort to secure the nomination of such a man as Mr. Justice Cooley, of Michigan, or Mr. Justice Cooper, of Tennessee. nothing of the politics of either of these gentlemen, and conceive that such matters should be considered as foreign to the selection of the proper man for the place, as they are inappropriate for discussion in this JOUR

NAL.

We know

Just as we go to press we learn that the President has sent in the name of Mr. Stanley Matthews, of Ohio, to the Senate for this appointment. The Senate, it will be remembered, failed to confirm this nomination when recently made by Mr. Hayes. Their action in the present instance will be watched with much interest by the bar and the country.

We call attention to the article on the "Liability of an Acceptor in Blank," which we reprint this week from the Solicitors' Journal. For the purpose of increasing its practical value to our readers, we have added to the authorities referred to in the notes, some of the important American cases upon the subject discussed. This is a plan which we propose to follow from time to time in reprinting articles from foreign publications, which in their original source are not likely to reach the Vol. 12-No. 11.

Many such articles we find to be carefully written and logically reasoned out, lacking only the American citations to render them of great practical value to the American lawyer.

In our note to Judge Elliott's opinion in the case of Rossum v. Sinker (12 Cent. L. J. 202), recently determined in the Supreme Court of Indiana, we stated that the case would have been of far more practical value to the profession, had the authorities, upon which the court's ruling was based, been cited and discussed in the opinion. This is a proposition, the justness of which we think is perfectly apparent upon its face. But we did not intend it as an adverse criticism of the course pursued by the judge in the prepaaration of the opinion; for it was apparent from a statement contained therein, that the want of the citations of appropriate authorities was due to the fact that, although the cases referred to by counsel had been examined, still the opinion had been written at a place where the books were not accessible. We consider, too, that we testified our appreciation of the importance of the subject-matter of the case and of the excellence of the opinion itself by our publication of it. Some of the members of the Indiana bar seem to have misunderstood our position in the matter, and we have received several explanatory letters on the subject, one of which contains a memorandum of the authorities examined by Judge Elliott before the decision was rendered. As this mem orandum contains several cases not cited in our note, we reproduce it here for the benefit of those of our readers who may be interested in this subject: 1. The heirs of a deceased partner, where the title was in him, will be treated as trustees for the surviving partner. Huston v. Neil, 41 Ind. 501; Merrett v. Dickey, 38 Mich. 41; Moran v. Palmer, 13 Mich. 367; Burnside v. Merrick, 4 Met. (Mass.) 562; Parsons on Partnership, 372, 373, 374, s. pp. ; Delmonico v. Guillaume, 2 San. Ch. 366; Little v. Suedecor, 52 Ala. 167; Offutt v. Scott, 21 Am. L. Reg. 575; Hewitt v. Rankin, 41 Iowa, 35; Drewry v. Montgomery, 28 Ark. 256; Whitney v. Catton, 53 Miss. 689; Ludlow v. Cooper, 4 Ohio St.,

1. 2. The widow of a deceased partner is only entitled to dower in partnership property after payment of firm debts. Cobble v. Tomlinson, 50 Ind. 550; Huston v. Neil, 41 Ind. 504; Robertshaw v. Hanway, 52 Miss. 713; Galbraith v. Gledge, 16 B. Mon. 631; Willett v. Brown, 65 Mo. 138. 3. The rights of the surviving partner in property of the late firm. Sage v. Wooden, 66 N. Y. 578; Barry v. Briggs, 22 Mich. 201; Wilson v. Nicholson, 61 Ind. 244; Morrison v. Kramer, 58 Ib. 38. 4. Rights of surviving partner in real estate. Parsons on Partnership, 441 s. p.; Huston v. Neil, 41 Ind. 504; Kistner v. Sindlinger, 33 Ib. 114; Cobble v. Tomlinson, 50 lb. 450; Roberts v. McCarty, 9 Ib. 16; Merrett v. Dickey, 38 Mich. 45; Offutt v. Scott, 21 Am. L. Reg. 575; Ludlow v.Cooper, 4 Ohio St. 1. 5. The surviving partner has the power to sell the real estate to pay partnership debts, and the courts will require the heirs to convey to the purchaser. Dupy v. Leavenworth, 17 Cal. 262; Andrews v. Brown, 21 Ala. 437; Kleine v. Shanks, 3 Cent. L. J. 799; Delmonico v. Guillaume, 2 San. Ch. 366.

EVIDENCE OF CONSPIRACIES.

Where it is sought to establish by proof, a combination by two or more persons to effect an unlawful purpose, the evidence which is usually admissible, may be divided into two classes: 1. That which is purely circumstantial in its nature; and 2. That which is partly circumstantial and partly direct.

I. Circumstantial evidence of conspiracies, whether in civil or criminal proceedings, is furnished by the circumstances of the case, the position of the parties, the conduct of the alleged conspirators, their behavior toward each other, and toward third parties who have been similarly victimized by them. In such cases, as in all others where the gist of the averment sought to be proved is the intent of the parties, the evidence to be relied upon must, in the nature of things, be to a great extent circumstantial. The rulings of the courts generally on this subject, have been very liberal as to the admission of collateral circumstances, tending to show the animus of the parties in the transaction. Although common design on

their part is the root of the charge, yet it is not necessary to prove that the defendants came together, and actually agreed in terms, to have the common design, to pursue it by common means, and so, to carry it into execution; because in many cases of the most clearly established conspiracies, there are no means of proving any such thing.1 Thus in an action against A, B and C, for a conspiracy to defraud such merchants and traders as they should be able to impose upon, by representing A, who was a bankrupt, as a man of large property, and safely to be trusted, evidence was held admissible to show that the defendants had made such representations to other persons than the plaintiff, in consequence of which, such persons, without the request of the defendants, had recommended A to the plaintiff, and thereby the plaintiff was induced to give him credit. It will be observed, however, that the charge sought to be established in this case, is a conspiracy to defraud "such merchants and traders as they might be able to impose upon." Under an allegation less broad and general, it is questionable whether such evidence would have been held admissible. Thus, in the case of an indictment to defraud one Marsh of his goods and chattels, it was held that the allegation was not sustained by evidence that the defendants conspired to defraud the public generally, or any individual whom they might meet and be able to defraud.3

Where the case was a prosecution for a conspiracy to defraud a railroad company by the use of blank passes which had been lost or stolen, it was held competent to establish a fraudulent intent, by proving a possession of passes of the same kind and description over another road, which had been stolen at the same time, from the same person. In an action of trover against one of three parties, to recover for goods fraudulently purchased from the plaintiff on credit, it was held competent, in order to prove a conspiracy to defraud, to show that the three had been guilty of a like fraud, about the

1 Regina v. Murphy, 8 C. & P. 297. See, also, Commonwealth v. Ridgway, 2 Ashm. 249; United States v. Cole, 5 McLean, 513.

2 Gardner v. Preston, 2 Day, 203. See also, McCabe v. Burns, 66 Pa. St. 386.

3 Commonwealth v. Harley, 7 Met. 506. See, also, Commonwealth v. Kellogg, 7 Cush. 473.

4 Bloomer v. State, 48 Md. 529.

same time, upon a third party.5 The object of such evidence is to show the animus of the parties in the transaction. Said DEWEY, J., in Commonwealth v. Eastman,6 which was an indictment for a conspiracy to cheat and defraud, by purchasing coffee, upon a credit fraudulently obtained, and in which, evidence was sought to be introduced showing other purchases of goods than those charged in the indictment, made previously by the defendants, under similar circumstances with the transactions charged in the indictment, not only as showing the nature and extent of the business of the defendants, but also as bearing upon the bona fides of the particular transaction: "This species of evidence would not be admissible for the purpose of showing that the defendants had also committed other like offenses; but simply as an indication of their intention in making the purchases set out in the indictment. It is analogous to the proof of the scienter, in indictments for passing counterfeit money, by showing that the defendants passed other counterfeit money to other persons about the same time. Such evidence is always open to the objection, that it requires the defendant to explain other transactions than those charged in the indictment; but when offered for the limited purpose above stated that of showing a criminal intent in the doing of the act charged in the indictment -it has always been held admissible."7 But, of course, unless the evidence offered does have the tendency to prove such an animus, it would not be admissible. Thus, when it was charged that the defendants combined to prosecute an innocent person, and after testimony on that point had been offered, and the State offered to prove that the defendants had combined to bring suits against other persons with whom the said innocent person had no connection, it appeared that the evidence offered was, that they prosecuted others for good cause, in a legal manner and with success; the court held that such proof was inadmissible, that it could only create prejudice. The prosecution of guilty persons is not proof of a conspiracy to prosecute the innocent.8

5 Lucky v. Roberts, 25 Conn. 486. And see, Thompson v. Rose, 16 Conn. 71.

61 Cush. 189.

7 Rex v. Roberts, 1 Camp. 399.

& State v. Walker, 32 Me. 196.

Be

II. The second class of evidence to establish conspiracies, including that which is partly circumstantial and partly direct, embraces all those cases in which it is sought to establish the conspiracy and fix its consequences upon one or more of the conspirators by the testimony of co-conspirators, or by evidence of their acts, statements or admissions. In the case of the American Fur Co. v. United States, it was held that the acts and declarations of one of the co-conspirators are admissible in evidence against all alike. fore such evidence will be received, however, the fact of the conspiracy must be established by competent evidence. "The doctrine of the law is, that a confederacy having been established, certain evidence otherwise inadmissible may be received to show the supposed fraud. The confederacy is presupposed, and must be fixed at some time, and it must be made out by other evidence than that which shows the fraud. The same acts which, if proven, go to show that the combination, can not be taken at the same time to show the fraud; for this proof of fraud is admitted only because the confederacy is first assumed to be shown. This doctrine applies mainly, if not entirely, to proof coming from a supposed confederate."10 Nice questions have arisen as to what evidence shall be considered as sufficiently establishing the fact of the conspiracy to justify the court in admitting evidence of the acts and declarations of co-conspirators. In Massachusetts it has been held, that it is not necessary that the fact of the unlawful combination should be proven to the satisfaction of the court, on the ground that such a ruling would require the court to invade the province of the jury and pass upon the credibility of witnesses. It is enough if the conspiracy has been shown by the a single competent witness.11 tablished by the South Carolina tically to the same effect. In State v. Simons, 12 the court (per FOSTER, J.) said: "It

92 Pet. 258.

testimony of The rule es

court is prac

10WOODWARD, J., in Wiggins v. Leonard, 9 Iowa, 197. See, to the same effect, State v. Soper, 16 Me. 293; Aldrich v. Warren, 16 Me. 465; Jones v. State, 64 Ind. 473; United States v. Babcock, 3 Dill. 581; People v. Saunders, 25 Mich. 119.

11 Commonwealth v. Crowninshield, 10 Pick. 497 See, also, Commonwealth v. Waterman, 122 Mass. 59; Commonwealth v. Scott, 123 Mass. 222

12 4 Strobh. 470.

is not questioned that, when evidence has been given which warrants the jury to consider whether the prisoner was engaged in the alleged conspiracy, and had combined with others for the same illegal purpose, any act done or declaration made by one of the party in pursuance and promotion of the common object, are evidence against the rest."13

The rule is already stated that the acts and declaration of co-conspirators, in furtherance of the common design, are admissible evidence against one or all of them. But unless such acts and declarations are done or made in furtherance of the common design, they are not admissible, as where they transpire at a period subsequent to the cessation of the conspiracy, whether by consummation or abandonment. From that time such declarations or acts are evidence only against the person making or doing them. 14

THE LIABILITY OF AN ACCEPTOR IN BLANK.

The point decided in the case of the London and South-Western Bank v. Wentworth,1 is one of considerable importance, though the decision appears to follow pretty plainly from previous decisions. The decision was that, when a bill is accepted in blank for the purpose of being negotiated, and is afterwards filled in with the name and signature of a person as drawer and indorser, the acceptor can not, as against a bona fide indorsee for value, adduce evidence to show that either the drawing or indorsement is forgery.2 It was argued that, although one

a

13 See, also. Rex v. Stone, 6 Term, 527; Hardy's Case, 24 Howell's State Trials, 437. For an interesting illustration of what evidence of the combination is considered insufficient to render acts and declarations of a co-conspirator admissible, see Williamson's Case, 4 Gratt. 547. The facts of the case are so long and intricate as to make it impracticable to discuss it here.

14State v. Dean, 13 Ind. 63; People v. Gorham, 16 Hun, 93; State v. Arnold, 48 Iowa, 566, United States v. Douglass, 2 Blatch. 207; Lyon v. State, 22 Ga. 399; Edwards v. State, 27 Ark. 473; Draper v. State, 22 Tex. 400; State v. McNamara, 3 Nev. 70; Wharton's Crim. Ev., § 703.

1 28 W. R. 516; s, C., 10 Cent. L. J. 416.

2 The American cases directly in point of this principle are rare. In Moiese v. Knapp, 30 Ga. 942, however, where there was no allegation of forgery, in the drawing or acceptance of the bill, but merely that it

who accepts in blank gives authority to write a fictitious name as drawer, he gives no authority to give the bill currency in the name of a real person as drawer for a fraudulent purpose, nor to forge the signature of a real person, either as drawer or indorser. The evidence, it was urged, might show that the signatures of the drawing or indorsement were imitations of a real person's writing and forgeries, or it might show that the drawing was genuine, and the indorsement a forgery. Some one might have picked up the bill in the street and forged the indorsement. It does not seem to us that these arguments will hold water, but they certainly suggest some interesting considerations with regard to the law of negotiable instruments.

It is not quite so easy as, at first sight, it might be thought, to express the principle upon which the class of cases were decided, to which the case we are discussing belongs. We do not think the judgment gives altogether satisfactory expression to it, though the considerations involved are very fully discussed. In ordinary cases, when the acceptance is subsequent to the drawing, the acceptance admits the drawing. The accept

contained a blank for the name of the drawer, at the time of the acceptance, the court upheld the validity of such paper in general. In VanDuzer v. Howe, 21 N. Y. 531, the doctrine of the liability of an acceptor in blank to a bona fide holder, was extended to the case of a party who intrusted his paper to another who filled the blank with a sum exceeding that which had been fixed as a limit by the acceptor. A similar doctrine prevailed in Waldron v. Young, 9 Heisk. 777, which was the case of a note which had been signed by the surety and delivered to the maker, to raise money, leaving the time of payment blank. It was held that a material violation by the maker, of a restriction which had been laid upon him by the surety as to filling the blank, did not invalidate the note in the hands of an innocent holder who had advanced money upon it in good faith, and without Knowledge of the restrictions. See, also, Frazier v. Gains, 58 Tenn. 92; Goodman v. Simonds, 20 How 361; Bank v. Neal, 22 How. 111. Knowledge, however, on the part of the holder that the person deliv ering the note to him has exceeded his authority in filling the blanks, will deprive him of the right to be considered a bona fide holder. Thus, where a promissory note, perfect in all its parts except that the date was left blank, is signed by the maker as princi. pal and surety, and intrusted by the latter to the former for delivery to the payee, such principal has an implied authority to fill the blank by inserting the true date of execution; but he has no right to insert a date prior to the true one; nor can the payee, if he receive the note with knowledge of these facts, be considered a bona fide holder. Emmons v. Meeker, 55 Ind. 321; see, also, Johnson v. Blasdale, 1 Sm. & M. 17.

ance, however, does not necessarily admit the indorsement. For instance, if a bill is drawn payable to the order of the payee, and accepted, the acceptance does not admit the indorsement. If such indorsement be forged, even a bona fide holder can not make a good title to the bill, and so can not recover upon it. The acceptor's position would appear to be that he never undertook to pay, except to the person ordered by the payee, and it turns out that there is no such person, because the payee never made any order. The question is, wherein does this case differ from that where the acceptance is in blank and a forged indorsement is filled in afterwards? In summarizing the cases where the acceptor has signed his name upon a blank piece of stamped paper, or on a paper upon which a drawing in blank has been written, the judgment in the case we are discussing says, that the acceptor is liable to a bona fide holder "for value without notice, if the name of a stranger or a fictitious name be inserted as drawer, and that the reason is not because the acceptor gave any authority for this or that name to be inserted-for in truth he gave no such authority-but because in favor of commerce it is essential to uphold the negotiability of bills of exchange. The decision in the case itself is, that there is no distinction for this purpose between the insertion of a fictitious name, and the forgery of the name of a real person, the grounds given being that the party giving the blank acceptance has, by his act, enabled currency to be given to the bill and money to be obtained upon it, and that in the interests of commerce the bona fide holder ought to be protected. The notion that any question of authority is involved, is rather deprecated.

We believe that the judgment really proceeds on the true principle; but it does not seem to us anywhere to formulate any ratio decidendi very accurately. It may be that the term "authority" ought really to be confined to cases where there is actual authority; but it is often used more loosely, as in cases where a person by his conduct or previous course of dealing, has entitled another to presume the existence of an authority as against him, though no actual authority was given. It may be that it is not a question of authority; but it does seem to us, on consideration, that

the class of decisions we are discussing may turn, to some extent, on inferences as to intention which may justly be drawn from the act of the party giving the blank acceptance as against himself, and that, using words in their strict signification, the decision can not depend solely on the grounds that the person giving the blank acceptance has enabled the fraud to be committed, and that the law favors the negotiability of bills of exchange. In the case where the bill of exchange is accepted in due course, but the indorsement is forged, the acceptor has, by accepting, conferred on the bill an outward appearance of validity, upon the faith of which the bona fide holder has acted. It may be said that the bona fide holder should inquire and satisfy himself as to the genuineness of the indorsement; but so, in the case of the blank acceptance to which an indorsement is forged, the bona fide holder might have inquired. The favor the law shows to the negotiability of bills of exchange, does not go to the length of holding that the acceptor is bound to pay the bona fide holder upon every bill that appears on the face of the instrument to be regular, and to be regularly drawn and indorsed. Though the instrument be negotiable, it is subject to defects of title, by which a bona fide holder may suffer without any real negligence on his part. The formula required, which, to our mind, the judgment in the case we are discussing does not, with exactitude, develop, is precisely that which may distinguish the case of a forged indorsement of a bill accepted in blank from that of a forged indorsement of an ordinary bill.

An important distinction is pointed out in the judgment between the two cases-viz., that where the bill is accepted payable to the order of a real person, that person has a title to the bill, which remains in him, notwithstanding the forged indorsement, and until he has indorsed the bill. It would be obviously monstrous that the acceptor should be bound to pay two persons on the same bill. In the case of the bill accepted in blank, and then indorsed in a fictitious name, or by a forged indorsement, there is no real person who is entitled to indorse and recover upon the bill. It is, therefore, really quite immaterial to the acceptor what name is filled in. He has, perhaps, been cheated out of the proceeds of his