A collector of taxes is a public officer within the meaning of an embezzlement act. State v. Walton, 62 Me. 106.

"Decision of the collector," in the fourteenth section of the Act of Congress of June 30, 1864, which makes the same conclusive unless appealed from within thirty days, etc., is synonymous with ascertainment and liquidation of the duties by the proper officers of the customs," used in the same section. U. S. v. Cousinery, 7 Ben. (U. S.) 251.

Collections of Antiquities. (See also the title REVENUE LAWS.) In U. S. v. Terry, 41 Fed. Rep. 771, it was held that the provision of a tariff, exempting from duty collections of antiquities, does not extend to antiquities not gathered together in a collection. The court said: "The phrase 'cabinets of coins imports a distinct idea; so does the phrase

collections of antiquities.' The latter imports a collection of articles where both the antiqueness of the individual articles and the circumstance that they are assembled together into a collection unite to make them attractive or useful or valuable or otherwise desirable. We can easily understand why Congress might restrict the free list to such cabinets and to such collections. There is no particular reason why a wealthy individual here who wishes to buy a single pair of lace curtains, of remote antiquity, to hang in his front parlor, should be allowed to import them free; but there might be very good reasons why any one who imported articles that had been brought together to illustrate an art, or an era, or anything else, the assemblage of which into a collection made them of value educationally or otherwise, might be allowed to import them free, even though he imported them for sale. A collection of that kind, if judiciously made, might be more readily salable as a collection than the individual components out of which it is made. At any rate, whatever may have operated on the mind of Congress, or whatever may have been their intention, they do in fact use the words 'collection of antiquities.' I do not see that I can hold that that phrase correctly describes two rugs, or that it covers, as is claimed in this other case, half a dozen bedspreads and two lace curtains. Neither of these importations is a collection gotten together for any particular purpose." Collect on Delivery. See C. O. D., and references there given.

Volume VI.

I. DEFINITION.

1. Term Defined. Dale v. Hepburn, 11 Misc. Rep. (N. Y. C. Pl.) 286. 2. Where Attorney of Agency Collects but Fails to Remit. The defendants, who were engaged in operating a collection agency, received from the plaintiffs certain drafts for which a receipt was given as follows:

J. M. Bradstreet & Son, Improved Mercantile Agency. Pittsburg, June 2, 1865.

Received from Messrs. Everson, Preston, & Co., four duplicate acceptances for collection against Watt C. Bradford, Memphis, Tenn., amounting in all to $1,726.37.

"J. M. Bradstreet & Son."

These drafts the defendants sent to one Wood, their agent in Memphis, who collected the money, but becoming embarrassed, failed to pay over the proceeds. In an action by the creditors it was contended on behalf of the defendants that, notwithstanding the express receipt for collection," the latter did not undertake themselves to collect, but only to remit to a proper and responsible attorney; thus making themselves liable only for diligence in correspondence, and in giving the necessary information to the plaintiffs; or, in other words, that the attorney in Memphis was not their agent for the collection, but that of the plaintiffs; that their business was not the collection of claims due, but simply of furnishing to the business public a reliable statement of the financial condition of mercantile firms. It was held, however, that the defendants were liable, the court saying: "They have their selected agents in every part of the country. From the nature of such ramified institutions we must conclude that the public impression 6 C. of L.-14

will be that the agency invited customers on the very ground of its facilities for making distant collections. It must be presumed, from its business connections at remote points and its knowledge of the agents chosen, the agency intends to undertake the performance of the service which the individual customer is unable to perform for himself. There is good reason, therefore, to hold that such an agency is liable for collections made by its own agents when it undertakes the collection by the express terms of the receipt." Bradstreet v. Everson, 72 Pa. St. 124, 13 Am. Rep. 665.

Judgment Recovered for Claim but Not Satisfied. - The plaintiffs, merchants in Philadelphia, delivered to the defendants, a firm engaged in conducting a collection agency, three promissory notes, receiving from the latter a receipt as follows:

Philadelphia, Sept. 28, 1857. "Received of Messrs. Morgan & Stidfole the claim below described [setting forth the notes], to be forwarded by us for collection by suit or otherwise at our discretion.

"(Signed)

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receipt given by them for the claim. Morgan v. Tener, 83 Pa. St. 305.

Renewal by Substitution of Securities. — A promissory note, in which blanks had been left for the date, amount, time the note had to run, and the name of the payee, was delivered by the owners to a collection agency, with the understanding that the makers should be allowed to sign such note, in renewal of an old one of the same tenor. The collection agency delivered this note to its attorney, who permitted the maker, in filling in the blanks, to insert certain conditions neither contemplated by the owners nor contained in the old note; the plaintiffs declined to accept this renewal. It was held that they were not bound to do so, and that the collection agency was liable for the unauthorized acts of its attorney. Weyerhauser v. Dun, 100 N. Y. 150.

1. Stipulation in Receipt Limiting Liability. The defendants, proprietors of a collection agency, received from the plaintiffs for collection a claim in the form of an account against certain debtors. This claim the defendants forwarded to an attorney residing in the same county in which the debtors lived. The whole amount of the claim was collected by the attorney, but no account rendered by him either to the defendants or plaintiffs. On the delivery of the account to the defendants, they gave the plaintiffs a receipt to the effect that the account was to be transmitted by mail for collection or adjustment to an attorney, at the risk and on the account of the plaintiffs; the proceeds to be paid over or accounted for to the plaintiffs when received by the defendants from the attorney. At the same time a receipt was signed by the plaintiffs in the books of the defendants stating the amount of the account, and that the claim was to be transmitted by mail to an attorney, at the risk and for the account of the plaintiffs. It was insisted on the part of the plaintiffs that as the defendants held themselves out to the world as a collecting agency, when they received the account of the plaintiffs they undertook either to collect it themselves, or to remit the same to some suitable attorney in that part of the country where the debtors lived to make the collection, and that they became responsible for the negligence or misconduct of the attorney whom they employed for that purpose; but the court, by Cole, J., said: "It well may be that such would be the responsibility of the defendants, were it not for the restrictive clause in the receipts. · But that clause, if any effect is given to it. clearly limits that liability; for it provides that the account is to be transmitted to an attorney for collection at the risk of the plaintiffs. Such being the case, we think the defendants are not liable for the act or default of the attorney employed by them, unless in the selection of such attorney they were guilty of gross negligence; for it seems to us it was competent

contract.

*

* *

for the parties, by express contract, to limit the liability which the law would otherwise impose upon the defendants for the acts of the attorney employed by them to make the collection. We are not aware of any principle of law or public policy which condemns such a Notwithstanding the clause in the receipts, it is sought to render the defendants responsible for the loss of the money collected by the attorney; in other words, virtually to make the defendants guarantors of the fidelity and integrity of such attorney, although there is not a particle of proof which tends to show that they were guilty of gross negligence in selecting him." Sanger v. Dun, 47 Wis. 615, 32 Am. Rep. 789. See also Bradstreet v. Everson, 72 Pa. St. 124, 13 Am. Rep. 665.

2. Attorney Employed by Agency Is Its Agent, Where Not the Creditor's. an account of indebtedness was delivered to a collection agency with instructions to it to do its utmost to collect it, the claim was sent by the agency to an attorney at the place of residence of the debtor. The debtor had committed several acts of bankruptcy, and the attorney, who was aware of the insolvency of the debtor, persuaded the latter to confess judgment. The money, when collected, was remitted by the attorney to the collection agency, but never received from it by the creditors. Proceedings in bankruptcy were immediately instituted against the debtor by the creditors, and a decree obtained. It was held that an attorney, employed not by the creditors, but by a collection agency which undertakes the collection of the debt, is the agent of the collection agency and not the agent of the creditors, and consequently the knowledge of such attorney of the insolvency of the debtor would not charge the creditors with knowledge of the insolvency so as to render them liable to the assignee in bankruptcy for the money collected by them upon the judgment previously obtained. Hoover v. Wise, 91 U. S. 308.

The defendants, residents of New York, placed in the hands of a collection agency in that city a claim against a debtor in Nebraska. The agency forwarded this claim to its attorney at the place of the debtor's residence, and the latter having confessed judgment, a portion was collected upon the execution, and forwarded to New York to the agency, but none of the money so received was ever paid over to the creditors. It developed upon the trial that the debtor had been induced by the attorney to confess judgment, being insolvent at the time, and that such insolvency was known to the attorney. It was held, in an action against the creditor by the debtor's assignee in bankruptcy, that the attorney was the agent of the collection agency, not of the creditor, and that the latter could not be charged with knowledge of the insolvency of

his debtor, and had never authorized or ratified any act violative of the bankruptcy. Hoover 7. Greenbaum, 61 (N. Y.) 305.

1. Action for Professional Services - Liability of Agency. The defendant placed a draft for collection in the hands of Hubbell & Co., a concern constituting a collection agency, which concern retained the plaintiff as their attorney. It appeared from the evidence that the plaintiff's correspondence and business transactions in the affair had been exclusively confined to Hubbell & Co., and at no time had the plaintiff had any understanding with the defendant as to his compensation. It was held that the collection agency had acted in the capacity of principal in employing the plaintiff, and not as the agent of the defendant, and that no recovery for professional services could be had of the latter. Dale v. Hepburn, 11 Misc. Rep. (N. Y. C. Pl.) 286.

2. Weyerhauser v. Dun, 100 N. Y. 150.

3. Claim Compromised by Attorney Contrary to Instructions. The plaintiff had in his possession a judgment against a certain firm in Indiana, which, owing to the insolvency of the judgment debtors, was uncollectible. This claim was placed by the plaintiff in the hands of the defendants, a collection agency, he agreeing to pay them fifteen per cent of the amount of such collection, the defendants to employ their own attorney, and the plaintiff to have no further expense. The claim was sent to an attorney, who effected a compromise with the debtors by receiving the full amount without interest, which sum he sent to the defendants, less agreed charges. The defendants forwarded this amount to the plaintiff, who received and retained the money, but notified the defendants that he would hold them liable for the interest. It was held that a collection agency is liable for the unauthorized act of its attorney, nevertheless no recovery could be had without actual proof of damage resulting from such act. Talcott v. Cowdry, 17 Misc. Rep. (N. Y. Supreme Ct.) 333.

4. What Is Included. Carey v. Bright, 58 Pa. St. 85, in which case it was held that the loose movables about a colliery would not pass upon the sale of the colliery. Sharswood, J., said: "Neither was there any error in declining to affirm the seventeenth point, that the sale by Kirk, Baum, Ogle Clark, and Gross,

to the defendants below, of all their interest in the shaft and slope collieries,' included all the movable property belonging to and used at these places in the mining of coal; and that the word colliery is a collective compound including many things, and is not limited to the lease and fixtures of a tunnel, drift, shaft, slope, or vein from which the coal is mined.' According to the most approved lexicographers, to whose works courts must resort for the meaning of words which have no settled legal construction, a colliery is a place where coals are dug.' Johnson, Webster, ad verbum. No question appears to have been raised as to whether the articles in dispute were or were not fixtures. It is probable that many things about a colliery, although not actually affixed to the freehold, may come within that category, like the rolls of an ironmill, or the machinery of a manufactory, whether fast or loose, which is necessary to constitute it, and without which it would not be a mill or manufactory at all. Voorhis v. Freeman, 2 W. & S. (Pa.) 116. But the mere loose movables about such an establishment, in the absence of any usage or general understanding, would no more pass than would the tools of a mechanic by the sale of his shop."

"Colliery is, however, a word sufficiently wide to include all contiguous and connected veins and seams of coal which are worked as one concern, without regard to the closes and pieces of ground under which they are carried. See Hodgson v. Field, 7 East 620. Indeed, it is apparently wide enough to include the engines and machinery in the contiguous and connected veins,' as well as those veins themselves. Webster, in defining colliery, refers tocoalery,' and he defines 'coalery' as a coal mine, coal pit, or place where coals are dug, with the engines and machinery used in discharging the water and raising the coal." MacSwinney on Mines, p. 25.

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In Springside Coal Min. Co. v. Grogan, 53 Ill. App. 65, it is said: Lexicographers define a mine to be a pit or excavation in the earth, from which ores or mineral substances are taken by digging. A colliery is defined by the same lexicographers to be a mine, pit, or place where coals are dug, with the machinery used in discharging and raising the coal." Same - Seams of Coal. — In Hodgson v. Field,

7 East 620, referred to in MacSwinney on Mines, Lord Ellenborough said: The deed speaks of an intended colliery. It seems that the object of the grant was to drain the water from such intended colliery, the local extent and limits of which intended colliery we have no means of defining; but judging from the nature of such works, there seems no reason to give them any other or narrower limit than the boundaries of the continued property of the grantee, under which the intended colliery might be prosecuted by him, without regard to the closes and pieces of ground under which it might be carried, and who might of course be expected to follow the coal through all the contiguous and connected veins and seams of coal which belonged to him." It was held, accordingly, that the grant of the right to maintain sough pits for the intended colliery authorized the use of the pits so long as coal was dug from any part of the colliery, whether under the tract where the deed mentioned that the mine was to be opened, or not.

1. Carey v. Houston, etc., R. Co., 52 Fed. Rep. 675.

Jurisdiction Obtained by Collusion. In Industrial, etc., Co. v. Electrical Supply Co., 16 U. S. App. 213, it was held that an order of a Circuit Court, continuing an injunction, must be reversed on the ground that the jurisdiction of the Circuit Court had been obtained by collusion. The court said: That the complainant was culpable in lending the use of his name to promote Tillotson's fraud upon the jurisdiction of the court, with knowledge of his purpose, and was responsible for the negligence -to use no stronger term of its assistant manager in making oath to the amount of materials used in the construction of the railroad, is undeniable. But this may, perhaps, be palliated in some degree by the fact that it was done under the advice of its attorney, who, it was known, however, was acting in Tillotson's interest. The agreement, nevertheless, was to obtain an object forbidden by law, and therefore fills the definition of collusion, which, as is said in Jessop v. Jessop, 2 Sw. & Tr. 302, may be by keeping back evidence of what would be a good answer, or by agreeing to set up a false case.'" See also the title JURISDICTION. And see ENCYC. OF PL. AND PR., title FRIENDLY SUIT. Judgment. (See also the title JUDGMENTS and DECREES.) In Baldwin v. New York, 30 How.

Pr. (N. Y. Supreme Ct.) 300, it is said: "It by no means follows, that on an application of this kind the court is at liberty to interfere with the judgment in every case where it would be reversed upon appeal, although the error was ever so manifest. There must have been collusion in obtaining the judgment, or it must have been founded in fraud. Collusion is defined by Webster as follows: 1. In law, a deceitful agreement or compact between two or more persons, for the one party to bring an action against the other for some evil purpose, as to defraud a third person of his right; a secret understanding between two parties, who plead or proceed fraudulently against each other, to the prejudice of a third person. 2. In general, a secret agreement and cooperation for a fraudulent purpose.' In

Burrill's Law Dictionary the word has substantially the same definition. Bouvier in his Law Dictionary defines the word as follows: 'Collusion, fraud. An agreement between two or more persons to defraud a person of his rights by the forms of law, or to obtain an object forbidden by law; as, for example, where the husband and wife collude to obtain a divorce for a cause not authorized by law. It is nearly allied to covin.' Second. Collusion and fraud of every kind vitiate all acts which are infected with them.' See also the definition of collusion in Tomlin's Law Dictionary, which is to the same effect as the foregoing."

2. Broughton v. Haywood, 61 N. Car. 383.

Color is defined to be guise, appearance, pretense. McElhaney v. Gilleland, 30 Ala. 187.

The term color means semblance, show, pretense, appearance; and implies, in the language of the law, that the thing to which it is applied has not the real character imputed to it. Chicago, etc., R. Co. v. Allfree, 64 Iowa 503.

Color of Right. In Price v. Guinane, 16 Ont. Rep. 267, Armour, C. J., said: "I take the meaning of colour of right,' as used in the Act, to be such semblance or appearance of right as shows that the right is really in dispute, for there may be colour of right where there is no right. Wright . Mattison, 18 How. (U. S.) 50.' In that case the learned judge refused to follow Gilbert v. Doyle, 24 U. C. C. P. 60.