Page:The Green Bag (1889–1914), Volume 18.pdf/116

 The Green Bag PUBLISHED MONTHLY AT $4.00 PER ANNUM. SINGLE NUMBERS 50 CENTS. Communications in regard to the contents of the Magazine should be addressed to the Editor, S. R. WRIGHTINGTON, 31 State Street, Boston, Mass. The Editor will be glad to receive contributions of articles of moderate length upon subjects of interest 1o the profession; also anything in the way of legal antiquities, facetiae, and anecdotes.

CURRENT LEGAL LITERATURE TAis department is designed to call attention to the articles in all the leading legal periodicals of the preceding month and to new law boots sent us for review.

AGENCY (Estoppel). The controversy be tween Walter Wheeler Cook and John S. Ewart over " Agency by Estoppel," previ ously summarized on pp. 312, 370, of V. xvii of the GREEN BAG, is continued in an article by Mr. Cook in the January Columbia Law Review (V. vi, p. 34). He insists that Mr. Ewart did not fairly quote him, and that it is not merely a question of words whether we say that a principal may be bound by the execu tory contract made by the agent outside his actual authority because a contract is actually made with the principal within the apparent -authority, or that the principal is estopped to deny that there was actual authority. He insists that agency may exist as an external relationship with reference to third persons when the internal relationship does not exist as between the principal and the agent, and that the cases make no difference between mere violation of instructions by an agent within his apparent authority and cases where lie has no real authority under the circum stances, but only apparent authority. AGENCY (Torts). The confusion in the •decisions relating to " Liability for the Un authorized Torts of Agents " is discussed by William R. Vance, in the January Michigan Law Re-ciew (V. iv, p. 199). The cases in which the difficulty has arisen have been the fraudulent issue of documents of title by agents; and owing to the fact that these acts involve usually a contract as well as a repre sentation, some courts have been misled into applying as the test of liability the rules re lating to contracts- rather than the ordinary rule most commonly appearing in cases of

master and servant, that the principal is liable for all torts of an agent committed while acting in the scope of his employment, whether the particular act was authorized by the prin cipal or was done for the principal's benefit or not. He submits that the same rule in torts and in contracts should be applied to the acts of an agent as to the acts of a servant, or as he puts it, when the agent is acting tortiously he is acting as a servant and not as an agent. He meets the difficulty arising from the fact that the third party dealing with the agent has ordinarily an alternative action of con tract in case of the issue of spurious docu ments of title, on the ground of estoppel; not that the principal is estopped by the agent's conduct to deny the authority of the agent, but that the representations of the agent are the representations of the principal and that thereby the principal is himself estopped to deny that a contract has been made. Upon his theory the New York doctrine would be sustained, though upon different reasoning, and the doctrine of England and of the Su preme Court would be changed to accord with desires of business men. BIOGRAPHY (Asher). "The Late Dean of Faculty." a brief sketch of Alexander Asher, K.C., by Alexander Ure, December Jimdical Review (V. xvii, p. 323). BIOGRAPHY (Lincoln). The story of "Lincoln the Lawyer," by Frederick Trevor Hill, in the December, January, and February numbers of the Century Magazine (V. Ixxi) is a careful study of the early life of Lincoln and its bearing upon his legal career, showing the influences that molded his character and