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for the release out of committee of a good one, England now has a trained bar analogous to the commonlaw bar; the parliamentary agents take the place of attorneys, and parliamentary counsel take the place of barristers. A division has been made between the treatment of public and private legislation, which recognizes the fundamental distinction between them, to the advantage of both public and private legislation. A private bill is either an exception from a public burden or it is a special privilege. Therefore in exercising this power the Legislature acts much more in a judicial than in a legislative character, and the legislature should therefore be armed with all the instruments given to the courts to ascertain the truth.

One other important fact was recognized by this ebange; that in the pressure of modern society for development the general body of the law cannot possibly keep pace with its ever varying features and necessities; no attempt therefore was made to restrict private legislation, but it was subjected to rule and form, submitted to scrutiny and surrounded by safe-guards, so that while on the one hand Parliament may meet the demands for legislation of a private and local character to vary the general law, it yet, on the other hand, to meet such exigencies, does no injustice to other private and local interests; and above all the general body of the law is not allowed to be torn to pieces at the demand and under the pressure of private interests.

We also have recognized the corruption and evils incident to our system of legislation, but have sought the remedy in a diffierent direction. Discovering that our method of dealing with demand for legislation has resulted in corruption, we determined to cut off the legislation which yields this crop of corruption. We took recourse to constitutional restriction upon special and private legislation in numerous cases which theretofore gave food to the lobby, and have said that such objects shall thereafter be accomplished by a change of the general law. This attempted remedy for an undoubted evil affords us no protection whatever, but on the contrary, within a few years after the adoption of such amendments, is is discovered that special legislation of the worst possible description lurks under the form of amendments to the general law, and instead of driving the enemy of pure legislation from the field we have driven the devil under a monk's cowl, not thereby lessening his mischievous activity, but rather enabling him still more adroitly to catch the unwary legislator. The demand for special legislation is a justifiable and a constant one; to attempt to repress it, as with every natural want, causes it to seek secret means for its gratification. The wise legislator regulates human activity, and makes no attempt at the repression of proper natural desires. Every such attempt must end in failure, and has so ended from the beginning of time.

In my own practice, since the inhibition of special legislation, in 1874, three instances of special laws under the guise of general laws were smuggled through the Legislature for the purpose of affecting litigation relating to private interests, and which changed the course of such litigations. Almost every New York lawyer in an active practice must recall like instances within the last decade. In several cases where the disguise was too flimsy the Court of Appeals recognized the attempted evasion, and declared the acts to be unconstitutional.

But many acts more skillfully disguised will pass the scrutiny of the courts unharmed, so that in many cases the general law has and will continue to be changed under the pressure of private interests, and no discovery will be made of the lurking intent of the Legislature, as a judicial inquiry into the origin of the

law and an examination of the history of its progress through the legislative halls is one which the policy of the law now forbids.

The constitutional restriction of the Legislature to pass special and local acts has not only failed to accomplish the purposes of the projectors of the reform, and produced a condition of affairs more dangerous than that which it was intended to cure, but it has also placed the general body of the law in great jeopardy by creating a strong incentive to destroy the general law to serve special interests. Under ordinary circumstances a special interest finding that the general law does not provide for the exigencies of its situation, will attempt to secure by special act such legislation as will meet its requirements and necessities. In this effort it now finds itself balked by the Constitution, and it bends its energies to change the general law to meet the special case. And what is there to hinder if it has political influence and money, and is willing and ready to use both unscrupulously, or what is there to protect the general body of the law from such desecration? It is nobody's business to stand guard over the law; we have no governmental or political organization that is charged with the daty of guardianship over the statute law as England has. We look in vain for any organism in the State to protect the general law from change or invasion at the dictate of private interests. It may be said that that is part of the duty of Congress and the State Legislature. True, but the duty of initiation and watchfulness is one that must be coupled, for their habitual exercise, with responsibility, and to charge a whole body, constantly dissolving into its constituent elements, with the duty of initiation and watchfulness, is practically to charge nobody with it. In all other constitutional forms of government the dominant party which is responsible for the ministry is, through the ministry, held responsible for the public legislation during the period while the party wields power. We have no National nor State ministry to hold responsible for public legislation. The United States Cabinet is composed of executive officers, and although in their annual reports the heads of departments may suggest to Congress such statutes as their experience may have taught them to be appropriate for their administration, yet they scarcely ever venture to draft the bill, and any active interposition to secure its passage would probably be regarded as an intrusion; at all events failure to secure proper legislation is not laid to the door of the Cabinet, and they are not held responsible by the people for mischievous public legislation. Congress is therefore left without leadership on these matters of great public importance. The only leadership 'that it has is of a political character to influence public opinion, and therefore the legislation which is prompted by such leaders is not done for its own sake, but to affect an ulterior object, and is sure to be carelessly done. The little attention that is paid to the language of legislation is somewhat indicated by the fact that there is not a single American work upon legislative expression. Although I am addressing lawyers who probably have extensive libraries, among which the Law Library Series, published in Philadelphia many years ago, surely has a place, I venture to say that few of you remember the little treatise on legislative expression, reprinted from the English work of Coode, which never yet found a venturesome American editor to apply it to our needs.

The States have not even executive cabinets, excepting such suggestions of a very slight texture which the governor in his annual message may make to the lawmakers, there is no initiative for public legislation in any State organism. The party in power is occupied with the important question of how to keep the other

party out of power. The suggestions for the public legislation generally come from without. The opposition to proposed general legislation also generally comes from without. A curious illustration of this is to be found in the recent history of code legislation in the State of New York. Several commissioners, of which Mr. Throop was at the head, were charged with the duty of revising the Code of Procedure. Now, I shall express no opinion how well or ill this duty was discharged. My business is done when I have drawn your attention to how theCode came to be enacted after the commissioners reported. Scarcely had the report been made when the bar awoke to the great changes that were impending in the law of procedure, and the many incongruities (probably necessarily) involved in so extensive a task. Sides were taken in bar associations for and against any change, and finally it was determined that if some important amendments could be incorporated it should be suffered to pass as a whole without strenuous opposition. Whatever sides the legislators took in this controversy was mainly of a personal character, and as instructed by the bar associations or the commissioners. At last the first seven chapters were passed. It was then discovered that the repealing clause threatened a general jail delivery, and that section had to be amended subsequently before the Code could be permitted to take effect.

Another instance of the slipshod manner in which the Legislature does its work is given by the so-called Municipal Code, which passed the Legislature of 1882. The commissioners appointed to adopt this Code reported a volume to reduce to order the laws which affected the city of New York. In reprinting it for the Legislature a page of the printed report was left out. Did a single legislator discover the omission? Not one. There was of course no third reading, as a whole of the bill, and it was passed and signed as a law with this omission. A subsequent Legislature was called upon to make good the omission. The responsibility of this law was left entirely with the gentlemen intrusted with this codification. The Legislature took their work on trust. If the bar association or some other body had taken the trouble to analyze it, suggested amendments or its rejection, there might have been a contest over its adoption. The governor is constantly compelled to use the veto power to throw back upon the hands of the Legislature bills which were passed in so slipshod a manner, although possibly meritorious in themselves, or great confusion would arise if they were permitted to become laws. There were three notable instances of this during the very last session of the New York Legislature.

Enough has been said to show my hearers that there is no such organization, either in the National or State law-making bodies, to prevent mischievous special laws from being passed under the guise of general laws, nor to prevent the whole body of our law from being torn to pieces at the instigation of individual self-aggrandizement, which our institutions tend so abnormally to develop. Hence all limitations on special legislation are particularly dangerous in this country, where there is no safeguard protecting the corpus juris from attack, particularly when the attack is of an insidious and disguised character, so as to evade the constitutional amendment inhibiting special legislation.

Upon lawyers as a class a very onerous burden is cast by this condition of affairs. In every department of human activity constant practice brings rest in labor. In time the processes which were laborious efforts of the mind become mechanical, and are done by what psychologists call unconscious cerebration. The artist, as his reputation increases and his remuneration enlarges, paints his pictures with increasing facility, and there comes to him, if frugal, not only monetary ease,

but increasing pleasure in his work, arising largely from decreasing painful efforts. The doctor, with increasing experience, diagnoses, and prescribes for familiar diseases by an acquired instinct. How different

it is with a lawyer in active practice? The constant changes in the law, aggravated by the limitation on special legislation, makes it impossible for him ever to feel safe in advising a client, even on the law of promissory notes, without first consulting the recent volume of statutes to see whether to meet a special case the Legislature has not been induced to obliterate all the old land marks.

Not content however with the quack medicine of restricting special legislation, and thus rapidly destroying our general body of the law, there is another restriction now advertised by political charlatans warranted to cure all the evils of bad legislation, which is somewhat less mischievous but more absurd than the one which we have already adopted. That is the suggestion for biennial instead of annual legislative meetings. Dr. Sangrado to the life "When the body is sick, the blood is sick. Take from the patient half his sick blood, and he is but half as sick as he was". Our Legislatures do more harm than good when they meet; cut their years of meeting to one-half, and, presto! but half the mischief.

That legislation is the highest function of man's activity, and when rightly exercised its most beneficent manifestation is a fact which all this course of reasoning leaves out of sight. A manufacturer who finds himself running behind hand, because his processes are out of date, will not prevent his competitors from turning out better blankets than he does, or keep himself out of bankruptcy by running at half time. He must tear out his antiquated machinery, discharge his incompetent workmen, and improve his methods of manufacture.

To allow two years to intervene between sessions of the Legislature in busy communities like our own, wherein the powers for evil are almost as busy as the powers for good, is to offer an additional inducement to every plotter against the Commonwealth or its people to perfect its plans, under the existing lax laws, to circumvent the legislation of the day,and if he succeed in so doing that, for two years at least he will not be interfered with. It is well to bear in mind that for thirty years our Legislatures have been run by the corporate powers in their own way; that the legislation of the past generation has been whatever the strong nets and long purses of our builders up of corporate wealth chose to have it. We are just now awakening to the fact that competition is not the solution for the things that will not compete, but combine; and that the State owes to the community an intelligent supervision of the artificial organisms which it has created so that these artificial organisms, endowed with huge maws and everlasting life, do not devour the natural flesh and blood organisms which create and constitute the State. To strike out what has been inserted in the statute books for special and sinister purposes, and to put our legislation on a level with our achievements in machinery, in agriculture and in commerce would require a continuous session of several years.

To cut in half the time of the session of our Legisla ture as a cure for bad legislation is not only to prove ourselves ignorant of the cure for our evils, but also to ignore the causes of the evils as well. Insufficient time for investigation, inadequate machinery for investigation as preliminary to legis ation, absence of notice to parties to be affected by proposed legislation, hurry, absence of method and of publicity, absence of deliberation, are among the main causes of bad legislation. Now, how do you cure this by biennial Legislatures, with the consequent doubling at the least of the pres

sure upon the Legislature when it does meet? Reducing the time for deliberation increases the hurry, and necessarily dispenses with the little method that is still observable. It is true that the dread of the meeting of the law-makers comes upon the community only biennially instead of annually. Large interests would be adversely affected but once in two years, instead of every year, but if that reason should govern in the introduction of this proposed reform, it does not go far enough; why not put off the dreadful visitation for a decade or a generation!

This proposed remedy is contrary to the tendencies of modern civilization; it is the abdication of a function, not its specialization and development; it is the merest refuge of imbecility, a confession that we are bankrupted in thought on this subject, that instead of being able to turn out better laws by selecting better legislators and improving their methods, our invention offers no other cure than to close the gates of our legislative mills every other year, in the vain hope that in the alternate year they may produce better wares. In the domain of social affairs recourse to false measures works the same kind of mischief to the body politic that recourse to quack medicines does to the physical body. They treat symptoms and allay the outward manifestations of the internal disease; the disappearance of the symptoms of the disease creates a fatal confidence that the disease itself has ceased its ravages, until the patient is too far gone for genuine therapeutic treatment. There is no other remedy for the evils of our legislation, and the harm they call forth than first to recall our prohibition of special legislation, and the abandonment of the idea of biennial Legislatures, as twin progenies of Dr. Sangrado's brain, and then earnestly set to work to secure the adoption of a series of constitutional amendments which shall prescribe-

1st. A division of local and special laws from general laws, treating the former as private petitions, to be tried before enactment, and attach to the preserva. tion and amendment of the latter the safeguard of party responsibility.

2d. To carry out this latter purpose, either institute cabinet or ministerial responsibility, or raise a permanent board of revision as a bar to further mischievous innovation to subserve private interests.

3d. A requirement that all bills which create or extend corporate powers, or which change municipal or local laws other than by general law, granting any special privilege, or which involve the exercise of the right of eminent domain, shall be filed in a proper public office sixty days before the beginning of the session, and that in all cases notice by publication must be given of such filing, and personal notice before the beginning of the session to all property owners whose fee or easements are proposed to be taken in invitum.

4th. Oblige the petitioners in every case of an improvement, the creation of which involves legislative sanction to deposit a percentage of the amount of the cost as evidence of good faith, and so as to prevent speculations in public franchises.

5th. The establishment of a schedule of legislative fees to be paid to the comptroller, and to be subject to the joint drafts of the presiding officers of the legislative bodies to pay the expenses for the consideration and trial of private and local bills, and to that end the committees are authorized to employ experts and counsel as aids to inform them. This sum should be sufficiently large to deter frivolous applications to the Legislature, and to enable the Legislature to secure ability of the highest order.

6th. The enactment of a simple code of legislative procedure for private and local bills to secure a fair trial, examination of witnesses and argument of counsel before these committees, and to allow committees

to call in as aid, but not to vote on final determination, experts who are not members of the Legislature, to sit with them.

7th. The creation of a legislative bill of costs to indemnify successful and punish unsuccessful litigants before legislative committees.

8th. An absolute prohibition of all local and private legislation (except under circumstances of great public exigency, which can easily be provided for) which has not passed through the ordeal of this improved method of legislative procedure.

9th. A complete remodelling of the organization of committees and the rules of the Legislature to conform them to the new system of orderly trial of bills instead of the prevailing irresponsible and haphazard method.

Many of these suggestions may be embodied in laws instead of being incorporated in the Constitution.

Enough should go into the Constitution to make the change imperative. It is not to be expected that ail the smaller details of a statute should be imbedded in the Constitution, but experience has taught us however that constitutional directions to the Legislature may be of too general and vague a character to enforce obedience.

Since 1848 the Constitution of the State of New York contained a provision that the Legislature shall restrict the powers of municipalities to create indebtedness, but until recently it has failed to do so. The constitutional amendment of 1874 required the Legislature to pass a general street railway bill. It failed to do so from 1874 so 1884, and many other instances may be cited to the same effect.

When we shall have introduced into our law-making bodies something like scientific procedure we shall then have done much to abolish that noxious and corrupting element known as the lobby.

When every measure involving private interests must stand a fair trial, the same change will probably take place in the United States that has already taken place in that country whence we derive our laws. The adoption of the standing orders substituted for the lobby agent the parliamentary bar, as honorable a body of men in our profession as is to be found at the common law bar or in the equity courts. Preferment to the bench is not so frequent an honor to the silk gowns of St. Stephens as to those of our brethren of the Supreme Court of Judicature, but the emoluments of the parliamentary bar are somewhat higher. Much of course remains to be done by the destruction of party machinery, and liberating constituencies so as to raise the personnel of the law-makers. I do not share the popular conviction of the wide-spread corruption of Legislatures; it is the inability of the average legislator to know the truth, which gives to the corrupt few their great opportunity.

The great remedies for the evils of our institutions are publicity and investigation of a judicial nature. The test of merit, to my mind, of the recommendations that I have made this evening lies in the fact that they secure both these elements. And as the first creative act was the Divine ordination, "Let there be light," so through all time more and more light is the first condition of progress in every department of human activity.



KOHN V. KOEHLER. Lotteries which are the subject of condemnation under the Constitution and laws of this State are schemes, where money is paid for the chance of receiving money in return.

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Benno Loewy, for appellant.

Leo Goldmark, for respondent.

MILLER, J. The plaintiff claims to recover in this action double the amount paid by him for a bond, issued by the authority of the government of Austria, which he purchased of the defendant, and which it is alleged purported on its face to be a share or interest in and to a certain illegal lottery, and a certificate of the said share or interest therein, describing the same. The complaint alleges that the action accrued against the defendant under and by virtue of a violation of the provisions of section 32 of article 4 of title 8 of part 1, chapter 20 of the R. S. (2 R. S., 6 ed., 923), which declares as follows: "Any person who shall purchase any share, interest, ticket, certificate of any share or interest, or part of a ticket, or any paper or instrument purporting to be a ticket, or share, or interest in any ticket, or purporting to be a certificate of any share or interest in any ticket, or in any portion of any illegal lottery, may sue for and recover double the sum of money, and double the value of any goods or things in action which he may have paid or delivered in consideration of such purchase, with double costs of suit."

The bond in question provides for the payment of the sum of one hundred gulden by the Austrian government, in accordance with the conditions indorsed on the back of the same, together with one-fifth part of any such sum as may be allotted to the prize number of the bond, which sum must amount to at least one hundred and twenty gulden, with interest as provided.

Under the rules and regulations indorsed on the bond relating to the drawing and redemption of the bonds of which the one in question constituted a part, provision is made for the drawing of the bonds by a division into series, and the drawing of a certain number of series tickets to be deposited in a wheel to await the drawing of the prize numbers. At a time named, a drawing is to be had from the series numbers, and provision is also made for the drawing of the prize num bers deposited in another and separate wheel, and the last named drawing desiguates the numbers which are entitled to prizes, which prizes vary from six hundred gulden to three hundred thousand gulden. Under the terms of the loan for which the bonds were issued, the holder is entitled to receive his principal and interest and a premium of twenty per cent, and what is termed a prize, if by the drawing provided for he becomes entitled to the same. The bonds referred to, were issued by the Austrian government for the purpose of obtaining a loan of money, and the holders or owners receive the same upon payment of the amount of principal therein named. The evident object and purpose of the government in issuing the bonds was to obtain money for its own use and benefit.

According to the true interpretation of the instrument the government, upon receiving the money, promises to pay the principal, interest and premium named, and in addition any sum which may be drawn by the holder of the bond, in accordance with the rules and regulations indorsed upon the same. This additional sum depends upon a contingency which is to be decided by lot or chance. Independent of this the amount and the terms are fixed by the conditions of

the bond.

The substance of the transaction relates to a loan of money to the government and the provision made for its payment. This is the main object and purpose for which authority was given to issue the bonds, and they were disposed of evidently having this in view. The provision by which, upon a certain contingency, the holder of the bond might receive an additional sum, was no doubt an inducement held out for the purpose of obtaining money on the same, but it did not constitute the main feature and the substance of the transaction between the government and the purchaser of the bond. It was a mere appendage and an incident to its main purpose, by means of which the holder might by chance receive a larger sum than the principal, interest and premium which the bond itself provided for. In loaning money upon these bonds the holder thereof ran no risk of loss, and he took the chance, which might arise in case it should be determined by lot that his bond was entitled to a larger sum than the principal, interest and premium which he was sure to get in any event. While this latter privilege depended upon chance it cannot, we think, be held, upon any sound theory, that it converted the bonds into lottery tickets and imparted to the loan, which was made thereon, the character, object and accompaniments of a mere lottery scheme. The purchase and sale of bonds, stocks and other securities are often matters of chance as to the value of the securities. Prices in these fluctuate; sometimes they may be bought at par, and sometimes they command a premium. A purchaser at par takes the chances of a rise in the value or of a reduced valuation if he purchases at any price. Here the purchaser ran the risk of a deterioration beyond the price named, and took the chance of a rise, if by lot the bond which he held became entitled to it. In both cases the value is a matter of chance, and in neither can it be said, because it depends upon chance, that this chance constitutes a lottery.

The same remarks will apply to other securities which have a valuation which depends upon constant changes in the market. In may instances the value of securities of corporations may depend upon some chance which is annexed to the terms provided for the issue of the same. A proposition is made for the sale of bonds by some corporate body, and subscriptions made therein. The series of bonds and the times when payable are to be determined by chance, and their value may depend upon the time they bave to run. It cannot well be said that a subscriber who takes the chance of drawing by lot a bond for a long term, which commands a higher price than one for a shorter period, purchases a lottery ticket, and that the corporation that issued it is engaged in a lottery enterprise. This rule might well apply to the drawing of a series of bonds from a wheel, and to the drawing of an additional amount by lot by any of the holders of that series. It cannot, we think, be said that a loan made with a view of obtaining money to carry on the government of a nation, and which contains a provision by which the amount can be increased as to a portion of it upon a contingency named therein constitutes a lottery scheme, and is in violation of the Constitution and laws of this State prohibiting lotteries, and of the statutes cited.

In Hull v. Ruggles, 56 N. Y. 427, a lottery is defined as follows: "Where a pecuniary consideration is paid, and it is determined by lot or chance, according to some scheme held out to the public, what and how much he who pays the money is to have for it, that is a lottery." A similar definition is given of a lottery in section 323 of the Penal Code.

Lotteries which are the subject of condemnation under the Constitution and laws of this State are schemes where money is paid for the chance of receiving money

in return. As a general rule the money thus paid in case a prize is not drawn is lost, and no return had for the same. The purchaser may draw a prize or may draw a blank, and he thus hazards what he has paid upon the chances incident to a drawing by lot. The evils attending a system of lotteries, and against which the laws of this State are aimed, consist in the risk which people are willing to take in hazarding their money with a chance of losing the same without any benefit or advantage whatsoever, and with but a remote prospect of gain. This was a species of gambling which inflicted serious injury upon certain classes of the community, which prompted the prohibition of lotteries in the Constitution of this State and the enactment of severe laws against their operation. A government bond of the character of the one which is the subject of this action does not come within the mischief intended to be remedied or within the scope and purpose of the enactments against lotteries. Such an instrument is not named, nor is it within the purview of the statute or the intention of the law-makers. These bonds have been issued by several of the governments of other countries, and in no sense can they be regarded as being within the inhibition of the statutes of this State which were intended to suppress lotteries and to prevent citizens from indulging in this species of gambling.

The bond in question was an evidence of debt, and a public security of a foreign government exposed for sale, the same as other securities upon which money is loaned, and its sale did not violate the provisions of the statute already cited. It was not raffled for or distributed by lot or chance, and it cannot be said that the purchase of the same by the plaintiff was within the provisions of section 22 of 1 R. S. 665. Nor was the issue of the bond or its sale a gift enterprise within the provisions of the Penal Code already cited.

We think that the General Term erred in reversing the judgment entered upon the referee's report, and its order should be reversed, and the judgment entered upon the referee's report.

All concur, except Finch, J., dissenting.


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On January 23, 1878, the plaintiff, as party of the first part, made an agreement in writing with James Gibson, John Wirtz, and Peter Fox, as parties of the second part, by which the latter were appointed agents for the former to sell, within certain designated territory, during the season of 1877, the reapers and mowers manufactured by the plaintiff. In consideration of such appointment, the parties of the second part agreed to sell the reapers and mowers within the designated territory, and to account for the proceeds of the sales to the plaintiff. The contract bore date January 11, 1878. After the signatures of Gibson, Wirtz and Fox, the following contract of guarantee was appended:

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For value received we hereby guarantee the fulfillment of the contract on the part of James Gibson, John Wirtz, and Peter Fox, and hereby join them in each and every obligation therein contained."

This guarantee also bore date January 11, 1878, and was signed by Pirmin Koepfer, Jacob Steffes and Peter Brucker. The contract and guarantee were negotiated by one Matteson, a special agent of the plaintiff for that purpose, but who had no power to close or conclude the same. After the execution and delivery of

the contract and guarantee, and between that time and September 1, 1878, the plaintiff delivered to Gibson, Wirtz and Fox reapers, mowers, etc., of the value of $7,379.10, and of that sum they failed to account for or pay over to the plaintiff $4,664.49 although demanded of them by the plaintiff, and on September 15, 1878, the plaintiff gave notice thereof to Koepfer and Brucker, Steffes having previously died, and demauded payment from them of the sum so due the plaintiff, which they refused to pay. The demand of the complaint was for judgment against Koepfer and Brucker for $4,664.49, with interest from December 4, 1879.

Koepfer made no defense. Brucker filed an answer, in which he alleged, by way of defense, that he signed the guarantee, and so far as he was connected therewith, delivered the same upon the day of the week commonly called Sunday. Upon the issue raised on this answer, the case was tried by the court, which made special findings of fact substantially as follows:

The plaintiff was a manufacturing corporation of the State of Pennsylvania, with its home office in that State, and having a branch or general agency in the city of Chicago, in the State of Illinois. During and after the month of January, 1878, Messrs. Hoag & Conklin, of Waterloo, in the State of Wisconsin, were the agents of the plaintiff for that State for the purpose of making sales of the manufactures of the plaintiff therein, through sub-agents, to be appointed in the following manner: Hoag & Conklin were to canvass the State of Wisconsin for the purpose of selecting good and responsible men to become agents, and were to fill out in duplicate the plaintiff's printed form of contract, and cause the same to be signed by the agents selected, and by their sureties, and immediately thereafter to forward such duplicates to the plaintiff at its western branch, at Chicago, for its approval and signature. Hoag & Conklin had no power or authority to sign or close any such contract on behalf of the plaintiff.

From January 10th until January 25, 1878, and thereafter, one M. V. Matteson was an employee and agent of Hoag & Conklin, for the purpose of carrying out the said contract on their part, and had and exercised no other or greater or different powers in that regard than Hoag & Conklin.

Hoag & Conklin were to be paid by the plaintiff, by certain commissions upon the amount of machinery sold, and Matteson was to be paid by Hoag & Conklin,

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