authorizes the assignee to sell and dispose of the assigned property as he "may deem best, either for cash or on time, or for credit.' The court says:

The important question in this case is whether an assignment which empowers the assignee to sell and dispose of the assigned property as he may deem best, either for cash or on time or for credit, is fraudulent and void as to creditors. The district court held it was not, and submitted the question of fraud to a jury. But, after careful consideration, we under stand the law to be that such an instrument is fraudulent. It is a well-established principle that a debtor making an assignment can authorize no delay whatever, except such as is necessarily incident to the creation of the trust. This principle is thus stated by Gardiner, J., in Nicholson v. Leavitt, 6 N. Y. 510: "It has always been understood that, where an individ ual has incurred an obligation to pay money, the time of payment was an essential part of the contract; that when it arrived the law demanded an inmediate appropriation by the debtor of his property in discharge of his liability, and, if he failed, would itself, by its own process, compel a performance of the duty. The debtor, by the creation of a trust, may direct the application of his property, and may devolve the duty of making the appropriation upon a trustee. This the law permits, and such delay as may be necessary for that purpose. But the debtor cannot in this way avoid the obligation of immediate payment, or extend the period of credit, without the consent of the creditor. The attempt to do this, however plausible may be the pretense, is, in conscience and in law, a fraud, and nothing else." This language was ap proved of by the New York court of apppeals in Dunham v. Waterman, 17 N. Y. 9. The argument is advanced that this discretionary power vested in the assignee may result advantageously to the creditors, by avoiding a sacrifice of the goods included in the assignment. This is likewise answered by the rule that the debtor cannot, by an assignment, avoid the obliga. tion of immediate payment when the debt is due. He cannot, without his creditor's consent, extend the period of credit. Provisions, therefore, in an assign. ment, "by which it appears that the debtor, at the time of its execution, intended to prevent the im mediate application of his property to the payment of his debts, will make the instrument void as to such creditors as are hindered and delayed." McCleery v. Allen, 7 Neb. 21. It has been further laid down that, if an assignment containing a clause authorizing a sale on credit is valid, it follows that the debtor has a right to confer the power. But if the owner of the property has vested the discretion in his assignee, unless it is fraudulently exercised, "equity cannot interpolate a provision that the fund shall be disposed of, and the money realized according to the discretion of the chancellor." Nicholson v. Leavitt, supra.

It is earnestly contended by the respondent that by section 231, div. 5, Comp. St., the court is precluded from adjudging the assignment fraudulent because of the provisions on its face. This is equivalent to saying that a positive intent to defraud creditors must exist, in order to make the assignment illegal, and that the statute above cited makes the question of fraudulent intent a question of fact, and not of law. We find the very same statute was in force in New York when the several decisions in that State declaring assignments which authorized sales on credit to be invalid were rendered. 2 Rev. St. N. Y. p. 137, §

4. It was urged in the court of errors of that State, in 1833, in the case of Cunningham v. Freeborn, 11 Wend. 241, that the supposed determination of the question of fraudulent intent belonged to the jury, and not to the court. It was there held that in a court of equity the chancellor must determine the question upon all the facts in the case before him, whether upon complaint and answer or pleadings and proofs, and come to a conclusion such as a jury would be bound by the law to find. The court, by Nelson, J., there said: "It could never have been intended by this statute, nor could it be endured in principle or practice, that the verdict of the jury should be conclusive, if against law and evidence, or that the answer of a defendant, disclaiming a fraudulent intent, though it admits facts from which such intent is a necessary or legal inference, shall still be conclusive upon the point. The true doctrine on this subject, notwithstanding the statute, I apprehend, is that if there is any provision in the deed of assignment, or any fact admitted in the answer, which is per se fraudulent according to the law of the case, it is so, the denial of the fraudulent intent to the contrary notwithstanding; that fraud in fact is a question compounded of law and fact, which is to be found by the jury in a court of law, under proper direction duly observed by them, and may be by the chancellor in a court of equity; that any set of facts, or any intention, to be fraudulent, must be a violation of some principle of law, since the revised statutes as well as before; and, when the violation of the principle is admitted by the admission of the facts, the intent is the natural and necessary consequence, and the denial is senseless and idle. 'Where there is no law, there is no transgression;' and where the law exists, and the transgression is admitted, the intent follows as a legal inference. The admission of facts which are per se fraudulent in judgment of law is as much, and as conclusive upon the defendant, as if he had in express terms admitted a fraudulent intent in his answer; and in such a case any subsequent disclaimer of such intent will not avail him. It will not be entitled to credit; neither is his disclaimer after the admission of facts which are of themselves fraudulent against creditors; for the legal intent, from these facts, is stronger than the mere admission of it subsequently denied. There was a class of cases, familiar to the profession, by which the acts of parties were pronounced fraudulent and void in law, as against creditors, in the absence of any fraudulent intent, and under a concession by the courts that there was none. Reade v. Livingston, 3 Johns. Ch. 481; Seward v. Jackson, 8 Cow. 406; Jackson v. Peek, 4 Wend. 300. The doctrine of these cases was arraigned in this court in Seward v. Jackson, 8 Cow. 406, and all questions of fraud were supposed to be put upon the footing of a fraudulent intent by the decision in that case. The provision of the revised statutes making all questions of fraudulent intent a question of fact, and not of law, was no doubt intended to settle definitely, by enact ment, the above litigated question, and all others of a like nature. Such is the effect of the note of the revisers to this section." In Dunham v. Waterman, cited above, the reasoning of Judge Nelson is regarded as "clear and conclusive." "It follows," say the court, "from the reasoning of Mr. Justice Nelson, which I regard as unanswerable, that wherever an assignment contains provisions which are calculated per se to hinder, delay, or defraud creditors, although the fraud must be passed upon as a question of fact, it nevertheless becomes the duty of the court to set aside the finding, if in opposition to the plain infer

ence to be drawn from the face of the instrument. A party must in all cases be held to have intended that which is the necessary consequence of his acts."

We regard the argument of the foregoing opinions as thoroughly sound. The obvious practical tendency and operation of permitting failing debtors to give their assignees discretion to sell on credit is to abuse the confidence of creditors, and to hinder and delay those who have a right to their money, without any delay other than such as, of course, is "incidental and necessary to the existence of the trust, or the exercise of the power." Dunham v. Waterman, supra. If they (the creditors) wish the property sold on credit, they have a right to so determine; but the debtor or his trustee, of his selection, cannot take away that right. Barney v. Griffin, 2 N. Y. 365. The Supreme Court of Illinois, in Bowen v. Parkhurst, 24 III. 258, says there is reason in the view that the tendency and effect of such assignments is to hinder, delay, and defraud creditors. "The assignment," say the court, "withdraws all the debtor's property from the reach of legal process, and leaves it where the creditors cannot reach it in any other manner than by the exercise of the discretion of the assignees. The assignee has it in his power to place the creditors at defiance until he shall have converted the property into the means of payment at private sale on credit, on such terms as be in his judgment may deem best, and most for the interest of the parties concerned. This power to sell at private sale, on the most advantageous terms, involves a right to delay the sale as long as the assignee thinks proper. The sale may be made on any terms of credit he thinks best, and in this way the creditors may be indefinitely hindered and delayed. An insolv ent debtor ought not to have the power, under color of providing for his creditors, of placing his property beyond their reach, in the hands of trustees of his own selection, and take away the right of the creditors to have the property converted into money for their benefit, without delay. They alone should have the right to determine whether the property shall be sold on credit, and any conveyance which takes away this right ought not to be upheld; for it is a conveyance to hinder and delay creditors, and within the very teeth of the statute." See, also, Whipple v. Pope, 33 Ill. 334; Hutchinson v. Lord, 1 Wis. 286; and Gardner v. Bank, 95 Ill. 298. Burrill, Assignm. § 190, reviews the decisions of the various States upon the question under consideration. We have examined the many cases cited in that author's text; and our opinion is, that the New York, Illinois, and Wisconsin decisions stand upon the sounder basis, and that the insertion of a clause which permits the assignee to sell on credit, in its tendency and operation and effect, hinders and delays creditors, and that, as the assignor is in law deemed to have intended all the consequences which naturally flow from the provisions of the assignment made, the intent to hinder, delay, and defraud becomes a necessary legal inference from the provision itself. Burrill, Assignm. § 309.

QUITCLAIM DEED-BONA FIDE PURCHASER -UNRECORDED DEED.-It is held by the Supreme Court of Nebraska, in Schott v. Dosh, 68 N. W. Rep. 346, that the holder of a quitclaim deed, properly recorded, who purchased in good faith, and without notice of a prior unrecorded conveyance, takes the title, in preference to the grantee under such unre

corded conveyance. Upon the law applicable to the case the court says:

The questions presented by the record are as follows: First. Does a quitclaim deed properly recorded, in favor of one who purchases in good faith, and without notice of a prior unrecorded conveyance, take precedence of such conveyance? Second. If so, does the evidence in this case sustain the finding of the trial court that Sherwood was such a bona fide purchaser, without notice? Third. If the first question should be answered in the negative, are subsequent grantees under deeds of warranty subject to outstanding equities because of a remote quitclaim deed in their claim of title? On the authority of Snowden v. Tyler, 21 Neb. 199, 31 N. W. Rep. 661, the case might probably be solved in favor of the defendant on the last question, regardless of the others. But, for several reasons, we shall consider the first two stated. One reason is that, while the first question has several times been brought to the attention of the court, the cases have always been complicated by facts which have rendered an authoritative decision impossible, and the dicta which have been expressed have not served to remove the generally prevailing doubt on this question of very apparent practical importance. The second reason is that in manyand, in fact, all the earlier-cases holding that the grantee under a quitclaim deed is not, in such case, entitled to protection, the reason given is that such a deed does not purport to convey the fee or even limit the estate, but merely to release any claim which the grantor may have. If this reason be well founded, then it seems illogical to hold that a remote grantee obtains any greater title than the immediate grantee, both claiming through a deed which purports to convey the same interest.

We shall direct our attention, therefore, to the first question, and in the first place to a consideration of the former expressions of this court. In Association v. Hass, 10 Neb. 581, 7 N. W. Rep. 329, it was said, "The effect of this quitclaim deed was only to pass the naked legal title, and changed no equities of the parties." A consideration of the case discloses that no interest whatever appeared of record or otherwise in the grantor, a deed whereby it was intended to convey an interest by mistake omitting the land in controversy from the description. The question was between the grantee under the quitclaim deed, and a mortgage from the same grantor. No protection was claimed under the recording acts, and the decision was wholly foreign thereto. We refer to the case only because it is cited in argument, and because it has been several times cited as supporting the doctrine that the grantee under a quitclaim deed is not protected. In Hoyt v. Schuyler, 19 Neb. 652, 28 N. W. Rep. 306, it was held that there was a record of the prior deed sufficient to impart notice. It was also stated that it neither was alleged in the petition, nor claimed in the brief, that the appellant was a bona fide purchaser. Therefore the further statement of the court was entirely obiter, that "the form of the conveyance repels the inference of a bona fide purchase," as was also the further statement that the plaintiff "merely took the interest of Carter, and as he had previously conveyed all his right, title, and interest in the lot, the grantee under the second deed took nothing." Nevertheless the court, evidently for the purpose of preventing these obiter dicta from being taken as announcing an absolute rule, added that "a party who claims title under a quitclaim deed from one who had formerly conveyed his title to another, and the effect of which

will be to deprive the first grantee of his title, must make a clear case of bona fides on his part before his title will be sustained." In Snowden v. Tyler, 21 Neb. 199, 31 N. W. Rep. 668, remote grantees under a deed of quitclaim were protected. It was claimed that the quitclaim deed passed no title, and that, therefore, none passed under deeds from the grantee therein. The court said: "The rule, no doubt, is that a person who purchases of another real estate, and receives a quitclaim deed only therefor, is bound to inquire and ascertain at his own peril what outstanding equities exist, if any, against the title. We are not prepared to hold, however, that a quitclaim deed where the grantor has already conveyed will not in any case convey titles. It is the policy of the law that titles to real estate shall become matters of certainty, as far as possible, and that one who acts in good faith in purchasing, and pays the value of the property, shall be protected in his pur chase." The court therefore put the protection of remote grantees, not upon the illogical ground that while a quitclaim deed purports to and does only pass the grantor's estate, the magic of a covenant of warranty in a subsequent deed will enlarge that estate beyond what the first deed purports to convey. But the conclusion was placed upon the logical ground that one who finds a complete chain of conveyances to his grantor, without apparent defects, and without notice of outstanding equities, and who pays value, will, under the recording acts, be protected. This logic applies as well to immediate grantees as to a remote grantee. In Lavender v. Holmes, 23 Neb. 345, 36 N. W. Rep. 521, the subject was again considered, many of the cases reviewed, and the conclusion reached that "while we concede it to be the general rule, as stated by the authors above cited, that a purchaser who acquires title by the quitclaim deed is not a bona fide purchaser, without notice of existing equities, yet we think it is sufficiently shown that there are exceptions to this rule, and that this case falls within the exception." This was not, however, a case involving a consideration of the recording acts. In Pleasants v. Blodgett, 32 Neb. 427, 49 N. W. Rep. 453, the language already quoted from Hoyt v. Scbuyler, supra, to the effect that a conveyance by quitclaim "repels the inference of a bona fide purchaser," was repeated but the holding of the court was that the grantee had actual notice of the adverse claim. This was also the doctrine of the court on the rehear ing of the same case. 69 Neb. 741, 58 N. W. Rep. 423. A case much relied on by the appellant is Bowman v. Griffith, 35 S. W. Rep. 140, but a careful examination of the case convinces us that it is entirely without application. It is true that one of two reasons given for not holding that an estoppel in pais existed against a grantor was that the grantee had accepted a quitclaim deed. But no question was involved of the construction of the recording act, and the reasons for enforc ing an estoppel in pais, which would produce an effect equivalent to a covenant for title, are quite different from those which control the construction of the recording act. The case was very complicated in its facts, and we cannot hope to state it more briefly than it is stated in the lucid language of the author of the opinion. Space does not permit that we should repeat this statement, to show the inapplicability of the case. Suffice it to say that the question there presented was whether one who had accepted a deed containing recitals showing that it was made to correct a former deed, purporting to convey land which had in fact been conveyed to another person, could set up title as against that other person, and contrary

to the terms of the deed which he had accepted. The foregoing review, we think, shows that, while the court has expressed itself to the effect that a quitclaim deed passes no more than the grantor's present interest, this expression has been used to state a general truth, and not as a construction of the recording act, and that, so far as concerns the rights of a grantee under a quitclaim deed by virtue of the recording act, the court, while intimating that the tender of a quitclaim deed puts a purchaser on inquiry, has nevertheless always intimated that on proof of bona fides he is entitled to protection, and in one case, at least, has afforded him protection.

Cases elsewhere are conflicting. In some States it is held that a quitclaim deed conclusively charges the grantee with notice of outstanding equities, including prior unrecorded conveyances. Smith's Heirs v. Branch Bank at Mobile, 21 Ala. 125; Leland v. Isenbeck, 1 Idaho, 469; McAdow v. Black, 6 Mont. 601; Snow v. Lake's Admr., 20 Fla. 656. To these may be added some others, but they require comment. Woodfolk v. Blount, 3 Hayw. (Tenn.) 146, frequently cited as sustaining that view, really leaves the question undecided. In Bragg v. Paulk, 42 Me. 502, the conveyance was a mortgage to secure a past debt, and the court held that this did not constitute a purchase for a valuable consideration. Marshall v. Roberts, 18 Minn. 405 (Gil. 365), was based on the construction of a peculiar statute; and Oregon, having adopted the same statute (Baker v. Woodward, 12 Or. 3, 6 Pac. Rep. 173), follows the Minnesota case in its construction. The effect of the Minnesota decision was, however, to induce the legislature to amend the statute, and since the amendment the Minnesota court has held that a quitclaim deed stands on the same footing as any other conveyance. Strong v. Lynn, 38 Minn. 315, 37 N. W. Rep. 448. In South Dakota the author of the principal opinion announces the rule that a quitclaim deed charges a purchaser with notice. But Judge Corson dissented on this point, and Judge Kellam only concurred on the ground that there was act ual notice. The court was composed of but three judges. Parker v. Randolph (S. D.), 59 N. W. Rep. 722. In Michigan the court was once evenly divided on the question; Chief Justice Cooley and Judge Sherwood holding that the quitclaim deed afforded protection, and Judges Campbell and Champlin holding that it did not. De Veaux v. Fosbender, 57 Mich. 579, 24 N. W. Rep. 790. Recently, however, a unanimous court has adopted the view of Judges Campbell and Champlin. Peters v. Cartier, 80 Mich. 123,45 N. W. Rep. 73. Texas, after much vacillation, and without any careful discussion of the authorities elsewhere, has adopted a similar view, but restricted it closely to a technical release, as distinguished from a deed of bargain and sale without covenants. Richardson v. Levi, 67 Tex. 359, 3 S. W. Rep. 444. Nearly all the recent cases adopting the view which we have been discussing cite the case of Johnson v. Williams, 37 Kan. 179, 14 Pac. Rep. 537. This case cited most of the authorities then existing, and held that one who claims under a quitclaim deed is not a bona fide purchaser, with respect to outstanding equities shown by the records, or which are discoverable by the exercise of reasonable diligence, on making proper examination and inquiries. It is admitted that a pur chaser under a quitclaim deed may be a bona fide purchaser with reference to a prior unrecorded deed of which he has no notice. On the other hand, the following cases hold-and, we think, with better reason-that there is no distinction as to the form of conveyance; that in this country, and in modern times,

deed of quitclaim is not merely a release, but operates to pass the grantor's title, even to one who could not at common law accept a release; that the recording acts draw no distinction; that under them the question is not under what form of conveyance one claims, but whether one is a bona fide purchaser; and that, therefore, the holder of a quitclaim deed is entitled to the same protection as one under a deed of bargain and sale, or containing covenants of warranty. Moelle v. Sherwood, 148 U. S. 21, 13 Sup. Ct. Rep. 426; Wilhelm v. Wilken (N. Y. App.), 44 N. E. Rep. 82; Graff v. Middleton, 43 Cal. 331; Bradbury v. Davis, 5 Colo. 265; Brown v. Oil Co., 97 Ill. 214; Chapman v. Sims, 53 Miss. 154; Willingham v. Hardin, 75 Mo. 429; Cutler v. James, 64 Wis. 173, 24 N. W. Rep. 874. In several of the States the cases cited overrule earlier cases holding the contrary view. The tendency of the decisions is uniformly in favor of the quitclaim deed, except in Iowa, where it was formerly held that the holder thereof was protected, and it is now held that he is not. Pettingill v. Devin, 35 Iowa, 344; Steele v. Bank, 79 Iowa, 339, 44 N. W. Rep. 564.

The question has been so much discussed that any extended inquiry into the reasons would not be novel. Those given in support of the rule denying quitclaim deed protection are two in number. The first we have already alluded to. Such a deed does not purport to convey any definite estate, but merely the grantor's interest. This reason refers back to the obsolete doctrine of common law releases. In modern law it is not supposed, in any case, that a grantor is conveying more than he owns. Our statute provides that every conveyance shall pass all the grantor's interest, unless a contrary intent can be reasonably inferred from the terms used. Comp. St. ch. 73, § 50. There is nothing, therefore, in the fact that a grantor only purports to convey his interest, which should charge a purchaser with notice of a prior unrecorded conveyance. The other reason given is that the fact that the grantor declines to warrant the title is enough to arouse suspicion. This may or may not be true, according to circumstances. So far as the reason has any force generally, it seems to be fairly met by the suggestion of Mr. Rawle, in his work on Covenants for Title, that the fact that a personal covenant is required is itself a circumstance casting suspicion upon the title conveyed. A conveyance by quitclaim is by no means uncommon in modern times, when there are no outstanding equities; and it is certainly a conceivable case that a man may be willing to accept such a conveyance for the very reason that he is confident that he obtains a perfect title, which would render covenants of no service. Aside from the foregoing reasons for denying a quitclaim deed protection, the cases holding that doctrines nearly all depend for their support upon certain dicta in the Supreme Court of the United States-notably, the case of May v. LeClaire, 11 Wall. 217. Judge Brewer, in the district court for this district, in the absence of a direct adjudication by this court, felt constrained to follow these dicta in Hastings v. Nissen, 31 Fed. Rep. 597. But in Sherwood v. Moelle, 36 Fed. Rep. 478, a case precisely like that before us, and involving some of the same conveyances, he resolved it in favor of Sherwood; intimating a doubt as to the general application of the old rule, but basing his decision on the ground that Snowden v. Tyler, supra, protected a remote grantee. This case went to the Supreme Court of the United States (148 U. S. 21, 13 Sup. Ct. Rep. 426), and was there affirmed. Judge Brewer concurring, on the broad ground that the receipt of a quitclaim deed does not prevent a party from becoming a

bona fide holder, and that the previous dicta of the court were not sound in principle.

Section 45, ch. 73, Comp. St., defines a "purchaser" as embracing "every person to whom any real estate or interest therein, shall be conveyed for a valuable consideration." The term "deed" is defined in section 46 as embracing every instrument in writing by which any real estate, or interest therein, is created, aliened, mortgaged, or assigned, or by which the title to any real estate may be affected, in law or in equity, except last wills and leases for one year, or for a less time. The recording act (Comp. St. ch. 73, § 16), provides that deeds shall take effect and be in force from and after the time of delivering the same to the register of deeds for record, and not before, as to all creditors and subsequent purchasers in good faith without notice; and such deeds, mortgages, or other instruments shall be adjudged void as to all such creditors, and subsequent purchasers without notice, whose deeds, mortgages, and other instruments shall be first recorded. In view of the definitions given of "deed" and "purchaser," we cannot hold that section 16 does not apply to the grantee under a quitclaim deed, without a judicial amendment of the plain language of the statute.

THE APPOINTMENT OF PROXIES AND REVOCATION OF THEIR POWERS.

A "proxy" is one who is appointed to exercise some right or privilege appertaining to the appointee; usually the right to vote at stockholders' meetings, and the like. The expression comes to us from the civil law, and is said to be a contraction of the word "procuracy," denoting the profession of the "proctor" or "procurator;" an officer of the civil law courts corresponding to "attorney" in those of the common law. The word "proxy" also describes the instrument or power under which the appointee acts. At

1 Century Dict. Black's Law Dict. The proxy need not be in any special form, nor executed with any particular formality; but the stockholder should furnish such written evidence as will reasonably assure the inspectors of election that the agent is voting by authority of his principal. In re St. Lawrence Steamboat Co., 44 N. J. L. 529. Inspectors of election have no right to inquire into the genuineness of a proxy regular on its face; nor to require the stockholder or proxy to swear that the stock is not hypothecated. In re Cecil, 36 How. Pr. (N. Y.) 477. Where the proxy is unlimited the holder may do all that the stockholder could do if personally present. Forsyth v. Brown, 13 Pa. Co. Ct. Rep. (Pa.) 576. Alien stockholders cannot vote by proxy, where, by the charter, the right so to vote is given to citizens only. In re Barker, 6 Wend. (N. Y.) 509. Where the right to vote by proxy is secured by statute, a by-law providing that a proxy should not be voted except by a stockholder, is void. People's Bank v. Superior Court, 104 Cal. 649. But see Harben v. Phillips, L. R. 23 Ch. Div. 14, where the legality of such a by-law seems to have been conceded, or at least, not disputed. A contract not to

common law no such thing was known as the right to exercise an elective or voting privilege by proxy.2 It is true that the members of the House of Lords were permitted to vote by proxy, but that was a custom which had its origin in grants from the crown. Hence it has been frequently held that a proxy must be rejected unless statutory authority to vote in that way can be shown; such authority being conferred by a general enabling law, or by special legislation, such as charters and acts of incorporation. Consistently with this doctrine it has been held that a by-law of a corporation authorizing a vote by proxy is invalid unless sanctioned by the charter or other statutory enactment. But the weight of authority seems to establish the contention that the delegation of power to make by-laws not inconsistent with the statutes of the State, implies the power to make a by-law that stockholders may vote by proxy. And an exception to the rule that stock cannot be voted by proxy unless allowed by charter or by-law, exists where the stock is held jointly by executors, trustees, and other fiduciaries, ex necessitate rei; that being the only way in which such stock can be voted."

In one sense of the word every agent is a proxy for his principal; but it is evident that agents and proxies do not stand upon precisely the same footing in law, in as much as the right to appoint an agent exists at common law withvote by proxy is unlawful. Fisher v. Bush, 35 Hun (N. Y.), 641.

2 Ang. & Ames. on Corp. (11th Ed.) § 128; Com. v. Bringhurst, 103 Pa. St. 134, 49 Am. Rep. 119; Craig v. First Presby. Church, 88 Pa. St. 42; Brown v. Commonwealth, 3 Grant's Cas. (Pa.) 209; People v. Traddill, 18 Hun (N. Y.), 427; Phillips v. Wickham, 1 Paige, Ch. (N. Y.) 590; Taylor v. Griswold, 14 N. J. L. 222.

3 6 Seld. 1476; "Proxies in Parliament," 4 Law Rev. (Eng.) 253; Phillips v. Wickham, 1 Paige, Ch. (N. Y.) 590, 598.

4 Taylor v. Griswold, 14 N. J. L. 229 (1834), and cases cited; ante, note 2.

5 Taylor v. Griswold, 14 N. J. L. 229 (1834).

6 People v. Crossley, 69 Ill. 195 (1873). "Such a bylaw contravenes no express rule of law, and is not contrary to public policy. It is of no consequence

out restriction, while the right to appoint a proxy depends entirely upon statutory permission. The reasons for this difference are clear. The appointment of an agent involves no delegation of powers or privileges which the appointee holds himself only as agent; if it were otherwise the appointment would be invalid, since an agent cannot appoint an agent (Delegatus non potest delegare). But one who appoints a proxy empowers him to discharge a duty with which the appointee is himself intrusted by others. Stockholders in a joint enterprise each repose a confidence in the prudence, sagacity, and honesty of the others, and each has an interest in the individual and personal exercise of these qualifications by the others in furtherance of the common enterprise through the medium of the voting privilege. The right to vote, whether as a member of a political or corporate body, is a species of trust or confidence; and therefore the right to delegate this power to a stranger by means of a "proxy" in corporate bodies, has been justly made the subject of legislative control. Even where the right of appointment has been given by statute, the courts have in some cases interfered and declared the appointment invalid on grounds of public policy." Proxies are either general, that is unlimited; or special and limited." It is plain that the public can have no interest in a proxy of the latter kind, in which the appointee has power only to do a particular thing in a particular way, since he is a mere instrument by which the will of the appointee is performed. A general or unlimited proxy, on the other hand, turns over the discretionary powers of the appointer to the appointee, and introduces a foreign element into the corporate body. Even this is not contrary to public policy, it seems, when executed for a purpose lawful and beneficial in itself; as where stockholders combine and place their stock in the hands of trustees for the purpose of

voting such shores at elections for directors