within the authority of the salesman assigned to wait upon the customer, and would be part of the transaction in which he is authorized to represent his employer.

PARTNERSHIP-LIST

OF CUSTOMERS AS AN ASSET.-A firm of insurance agents failed and a special commissioner was appointed to sell the assets. A controversy arose over the question whether a list of office expirations, i. e., a list of names of customers with the dates of the expirtion of their policies, was an asset. The lower court held that it was. The appellate court held that it was not. Whitney v. Whitney (Ky.,) 74 S. W. Rep. 194. In explanation of its decision the court said: "The office expirations directed to be sold by the special commissioner are no more or less than a list of the names of the customers of the firm of John Whitney & Co., who have insured property through the agency of the firm, with the date of expiration of the policy of each customer. It is not pretended that the firm, or any member thereof, has any beneficial interest or property right in the contracts of insurance held by these customers. They have no control over the policies, nor any right to demand that they shall be renewed at the date of their expiration; nor have they any power or authority to demand that the insurance company issuing the policies shall renew them at the date of expiration. These expirations, then, which the order of the court seeks to sell, amount to no more than information as to what the firm has done in the past. The court can neither guaranty or convey any right with regard to it. It can neither require the patrons to renew their policies, nor the insurance companies to accept the business, should the patrons desire to renew. All that the purchaser of this list of names and dates could possibly secure / would be the opportunity to solicit business from the old customers of the dissolved firm. We do not think that this list of names and dates amounts to an asset of the firm which is capable of sale. The court could not prevent either member of the firm from soliciting business from their former patrons. It seems to us that the members of the dissolved firm have equal right to possession of the list of expirations, as well as equal right and opportunity to solicit the patronage of their former customers. This is not the sale of the good will of the firm, but the sale, merely, of the information shown by the books. We have been cited to no case which upholds the principle that the list of names of a firm's customers may, upon dissolution, be sold as an asset. We have no doubt that the business agency, as a whole, including the good will of the firm, leasehold of the office, furniture and books, and, along with it, the information sought to be sold in the order complained of, constitutes an asset which may be sold and conveyed to a purchaser by the court; but to detach the list of names of the firm's customers with the dates of expiration of their respective policies, and sell it separately, would be the doing of a vain and useless thing."

CONTRACTS-PERSUADING ANOTHER TO BREAK HIS CONTRACT.-It is well known that it is very difficult to define the circumstances in which the procurement of a breach of contract is actionable, and the difficulty seems to be increased by the conflict of judicial opinion exhibited in the recent English case of Glamorgan Coal Co. (Limited) v. South Wales Miners' Federation (Times, 12th inst.) in which the court of appeal have, by a majority, reversed the decision of Bigham, J., 51 W. R. 59.

"Prima facie, no doubt," says the Solicitor's Journal in commenting on this decision, it is unlawful for C, who is a stranger to a contract between A. and B, to induce either party to commit a breach of the contract, and it is settled tha such conduct is actionable if C was acting maliciously. And what is to be understood as malice was defined by Brett, L. J., in Bowen v. Hall, 6 Q. B. D. 338: 'If the persuasion be used for the indirect purpose of injuring the plaintiff, or of benefiting the defendant at the expense of the plaintiff, it is a malicious act, which is in law and in fact a wrong act, and therefore a wrongful act, and therefore an actionable act if injury ensues from it.' But this definition clearly does not apply to the case where the defendant, in inciting to a breach of contract, has no ulterior hurt to the plaintiff or benefit to himself in view, but is actuated solely by a desire to give honest advice to the party who breaks the contract as to what is really for his advantage.

In the case in question Bigham, J., regarded the interference of the defendants, the South Wales Miners' Federation, as of this nature, and gave judgment in their favor. The federation had induced the miners to stop work upon certain days in violation of the existing contracts with the plaintiffs. But there was no direct intention to injure the plaintiffs, and the federation believed that they were acting in the best interests of both parties. The definition, however, in Bowen v. Hall, which is easy of application, has been followed by other definitions of a different form, which have been considered both by Bigham, J., and the court of appeal, and in these the procuring of the breach of contract is said to be actionable unless there was sufficient justification for the interference. (See per Bowen, L. J., in the Mogul Case, 23 Q. B. D. 614; per Lord Macnaghten in Quinn v. Leathem [1901],A.C.510.) Of course it by no means follows that sufficient justification in the later cases is the same thing as 'without malice' in the earlier, and the judgments given in the present case show that we are by no means at the end of the controversy. It may be hoped, however, that the doctrine that honest advice does not, under such circumstances, import liability will ultimately prevail. In commenting on) this same case the Law Journal (London) has this to say: "There can be no doubt that the miners' federation, in inducing their members to break their contracts

with their employers by stopping work, were not actuated by any desire to injure the latter. Their object was to keep up the price of coal, and thereby to prevent a fall of wages. Was this sufficient justification for the action of the federation? Mr. Justice Bigham thought it was. Lord Justice Romer and Lord Justice Stirling held the contrary view, the result being that the learned judge's decision in favor of the federation has been overruled. The Lords Justices do not seem to have attempted the difficult task of dealing in general terms with the question of justification. They simply say that the absence of ill-will towards the employers, and the fact that the federation were honestly acting with the object of benefiting the miners, did not justify their action. It was suggested by Mr. Justice Darling in an earlier case that the justification for interference with another's rights must be an equal or superior right in oneself. Whether the court of appeal are prepared to go as far it is impossible to say. Lord Justice Vaughan Williams dissented from the opinion of the majority, on the ground that the federation were mere advisers, and did not in reality induce the miners to break their contracts. On the facts of the case, this conclusion does not seem to be a satisfactory one.'

TRIAL AND PROCEDURE MISCONDUCT OF JUDGE IN HOLDING CONFERENCES WITH EMPLOYEE OF ONE OF THE PARTIES TO A SUIT.— Probably the most noteworthy controversy as to what constitutes improper conduct of a trial judge, has arisen over the, to say the least, unseemly conduct of Judge Harney of Montana, in the celebrated litigation concerning the right of possession to the valuable "Minnie Healy" mine. The contestants were men of great wealth and powerful influence. Every pressure was, therefore, brought to bear on the trial judge, who had to pass upon the case. It was not to be wondered at, probably, that the pressure was too heavy for ordinary human nature. That is all that can be said in extenuation of Judge Harney's conduct if the court's records are correct. One of the contestants, with a knowledge of human nature, that bears evidence of a thorough appreciation and appropriation of the story of Sampson and Delilah, employed a woman, Mrs. Bracket, by name, to play the part of Delilah. That she played the part well is now current history. But how the Supreme Court of Montana would review the whole transaction, has been a very pertinent question hitherto, but is now answered and is very clearly expressed in the recent opinion of that court in the recent case of Finlen v. Heinze, 73 Pac. Rep. 123. We quote the entire opinion of the court on this interesting question:

"It is next contended that the district court erred in refusing the plaintiff a new trial. The notice of intention to move for a new trial, which furnishes the basis for all subsequent efforts to have the decision set aside, specifies the following, among other, grounds: (1) Irregularity in

the proceedings of the court, and irregularity in the proceedings of the adverse parties, whereby the plaintiff was prevented from having a fair trial.' The record contains a number of affidavits filed on behalf of the plaintiff in support of his motion. These contain recitals which, if true, demostrate that the district judge who tried this cause was completely lost to all sense of decency and propriety, and that he made of the occasion, while off the bench, a carnival of drunkenness and debauchery, in company with a female employee of the Montana Ore Purchasing Company, one of the defendants to the action. It is charged in these affidavits that, during the time this cause was on trial and undetermined, numerous written messages passed between Mrs. Brackett, the employee referred to, and Judge Harney; that on May 9, 1901, the so-called 'dearie' letter was written by Mrs. Brackett and delivered to Judge Harney. A copy of the letter is attached to and made a part of the affidavits. This letter, profuse in the expressions of the writer's affection for Judge Harney-a married man living with his family—would hardly be considered a proper court record, but for its direct allusion to this suit then being tried, and for the significance of the answer thereto, which, it is charged, was written by Judge Harney, addressed to Mrs. Brackett, and, at the judge's request, delivered to her. The opening statement of that letter is as follows: 'My Dear Mrs. Brackett: I have received your letter and will be glad to talk further with you on the subject therein mentioned. On account of pain in my ankle I did not sleep last night. I have been listening to arguments concerning the Minnie H. and they will probably consume all of to-morrow. I will see you to-morrow evening if you are at leisure. I have some matters that I must attend to this evening. I appreciate your solicitude and your feelings, which are reciprocated, as you know, and I beg you not to be uneasy.' When it is considered that the so-called 'dearie' letter contains an offer of financial assistance to Judge Harney, reminds him who his friends were before he was 'Judge' Harney, contains the statement that as to his future after he leaves the bench she is empowered to promise him certain things which will assure that most generously, and then refers to a statement which she says Judge Harney made to her respecting the evidence in this case, the full import of the answer is apparent. There is absolutely nothing in that so-called 'dearie' letter which could with any show of propriety be the proper subject of discussion between the judge trying a cause and an employee of one of the parties to the action, and yet the answer thereto is an open invitation to Mrs. Brackett to discuss further the subject-matter of her letter. Judge Harney did give countenance to the charges made against him to the extent of denying one or two of the specific matters alleged, but his affidavit is most remarkable for what it does not say. The affidavits filed on be

half of the plaintiff set forth, with great particularity of time and place, numerous instances of the judge's association and revelry with Mrs. Brackett in Butte and elsewhere during the time the cause was being tried and determined, and it does seem most remarkable that, having made an affidavit, Judge Harney should have signally -failed to deny the specific charges made against him, and notably failed to deny that he wrote the answer to the so-called 'dearie' letter. It may be that no wrong was done in this instance, but, if so, the record before this court for review is in a most unfortunate condition.

The cause was tried to the court sitting without a jury, the judge performing the dual office of court and jury, and having the determination of all questions involved, both of law and fact. If the cause had been tried to a jury, and a record was presented here containing like charges of irregularity by or on behalf of one of the parties in attempting to influence a single juror, it is hardly conceivable that this court would hesitate for a moment to set aside the verdict, if in favor of the offending party. Upon this subject the courts have been of one opinion. In Huckell v. McCoy (Kan.), 15 Pac. Rep. 870, where the attorney for one of the parties, in his closing remarks to the jury, made use of improper language, the verdict in favor of his client was set aside. In Vollrath v. Crow (Wash.), 37 Pac. Rep. 474, the plaintiff and one of the jurors were playing cards and drinking together in a saloon, and out walking together, and talking-though not about the case -during the time of its trial, and a verdict for the plaintiff was set aside, and with respect to the matter the court said: "Trials of causes should have the appearance of fairness, and it would tend greatly to bring judicial proceedings into disrepute if matters of this kind should be overlooked or tolerated. We fully agree with the contention of appellant that a verdict rendered by a jury, a portion of whom are found to have been promenading the street, conversing, playing at cards, and drinking with the successful litigant, has the appearance of anything but fairness; and let it be once understood that such things are permissible, and we will be treated to the spectacle of litigants vying with each other, in both private and public places, in attempts to win the good will and favor of the jury, and the administration of the law greatly scandalized thereby.' In Wright v. Eastlick (Cal.), 58 Pac. Rep. 87, one of the jurors attended a dance with a party to the action. The two drank together, and appeared intimate. A verdict for the offending party was set aside, the court saying: 'In the early 60's a district judge in this state, whose district embraced mining counties, was impeached on the ground, among others, that during the trial of a cause he left the bench and visited a saloon, and there drank and caroused with witnesses and the parties, or one of the parties.'

Nothing herein said shall be construed as intimating an opinion by this court that any one of

the defendants had actual knowledge of what Mrs. Brackett was doing, but her principal was a corporation, which acts only through individuals, and the rule is uniform that irregularities on the part of an agent, employee, relative, or interested friend, will be imputed to the principal. In Thompson on Trials, § 2560, it is said: "The rule is applied with almost equal stringency whether such attempts proceed from the prevailing party himself, from his friends, or from officious third persons.' In Bradbury v. Comy, 62 Me. 223, 16 Am. Rep. 449, it was charged that the son of the defendant had taken some of the jurors and showed them the property in controversy. A verdict for the defendant was set aside therefor. In Paliner v. Utah Northern Ry. Co. (Idaho), 13 Pac. Rep. 425, the father of one of the plaintiffs, and the grandfather of another, during the time the cause was being tried, visited and patronized a saloon owned by one of the jurors, and, though in his affidavit he said that he had been patronizing the same saloon for the past six years, a verdict for the plaintiffs was set aside therefor. The court said: 'We are unable to say what effect this liberal and conspicuous patronage during the trial may have had upon the mind of the juror whose bar he was patronizing. It is not necessary for us to find that it had effect upon the verdict, in order to sustain this assignment of error as to irregularities of an adverse party. It is enough to find that it was calculated to do so. It is perhaps impossible for the juror himself to appreciate what influence this patronage may have had upon his mind.' In Burke v. McDonald (Idaho), 29 Pac. Rep. 98, the superintendent of the defendant furnished some refreshments to and drank with the jurors, and a verdict for his principal was set aside therefor. In McDaniels v. McDaniels, 40 Vt. 364, a friend of the prevailing party had talked with a juror about the case, and the verdict was set aside. In Nesmith v. Insurance Co., 8 Abb. Prac. 141, a third party attacked the credibility of a witness for the defendant in the presence of jurors, and a verdict for the plaintiff was set aside. In Knight v. Freeport, 13 Mass. 218, a son-in-law of one of the parties talked to a juror, and told him that the case was one of great consequence to him, and the verdict was set aside.

Whatever may be said as to the authorship of the so-called 'dearie' letter, the fact still remains that Judge Harney had the opportunity to deny in no uncertain terms his authorship of the answer thereto, and failed to do so; and so long as the record stands here containing so many specific charges which are undenied, and notably the authorship of that answer, we decline to accept, as conclusive upon this court, the statement of the district judge that he determined the cause upon the law and the evidence, uninfluenced by any other consideration whatever. In Peck v. Pierce (Conn.), 28 Atl. Rep. 524, the judge trying the cause read certain entries of account which had not been offered

in evidence, but which bore directly upon the point in controversy, and, notwithstanding he made the statement that he did not consider them in arriving at his decision, and that they did not influence him at all, the court set aside the decision, and said: 'Now, there can be no sort of doubt that the trial judge intended to, and did, so far as it is possible for any one to do such a thing, dismiss these entries from his mind, and did not consider them in arriving at his decision, and that he was fully persuaded that he had succeeded in the attempt. This court, however, has, in cases like this, with a good degree of uniformity, refused to accept such statements as conclusive, on the ground that "the operations of the human mind are so subtle, and the influences which affect it so difficult to be appreciated, that it is utterly improbable, not to say impossible," for the party making them to know whether the evidence influenced him or not; holding that all such statements can mean is that the maker of them was unconscious of the influence. Judge Harney's allidavit is, in effect, that in all proceedings pertaining to the case he was entirely uninfluenced by any one, that he determined the cause upon the law and the evidence, that he had no knowledge that any one was attempting to influence him in his action, and that during the time he was considering the case he was not disabled or incapacitated by the use of intoxicating liquors. If Judge Harney did not write the answer to that so-called 'dearie' letter, he could have said so in few words and in positive terms; if he did write it, that fact alone would come too near demonstrating that Mrs. Brackett had exerted an undue influence over him with respect to the cause, or at least cast too grave a suspicion upon the integrity of the proceedings to permit the result to stand. A corrupt attempt to influence a verdict of a jury or decision of a court is always a ground for a new trial, without reference to the merits of the case, and whether successful or not. The law is so sensitive upon this subject that affidavits, not explained away, casting suspicion of such misconduct on the prevailing party, will avoid the judgment. Thompson on Trials, § 2560; Huston v. Vail, 51 Ind. 299. Litigants have a right to expect that no discussion of the cause will be had out of court with the judge or jury trying the same.

While the application of the rule here laid down may result in great injustice in isolated cases, the wholesomeness of the doctrine cannot be questioned. The judgment in this case will be set aside, not as a punishment for the defendants, but that no unlawful interference with the dignified and orderly course of judicial proceedings may be given countenance in the jurisprudence of this state. No judgment of a court of justice so tainted with corruption as the record leaves this should stand, and its cancellation in this instance will be the evidence of the determination of this court to pursue to the utmost its constitutional and lawful authority, to the end

that public confidence in our judicial system may not be lessened, and that the fountain of justice may be kept pure.

THE LIABILITY OF A BANK ON A CERTIFIED CHECK.

There is a distinction between the certification and the acceptance of a check by a bank, a distinction that the courts commonly have failed to observe, owing, perhaps, to the similarity of the rights and liabilities of the parties in the two cases. An acceptance, in the absence of a statute providing differently, may be oral or written, express or implied;1 a certification always is written, and, besides, the check itself must bear the evidence of its certification." It has been held that, under the statute of frauds, a verbal acceptance is valid and enforcable only when the drawee has funds of the drawer in his hands, so that by paying the check the bank is paying its own debt.3 As we later shall see, the rule is somewhat different in the case of a certification.

The ordinary relation of banker and depositor does not impose upon the bank the duty to certify or to accept, either for the depositor or for the payee and his transferees, the checks drawn upon it.1 The obligation arising from the relation is only to pay upon presentation, so long as the drawer has funds not otherwise appropriated, sufficient to pay his check. Certifying a check has the effect to make a new contract, as between the bank and the holder of the check," and to modify materially the previous contract between the bank and the drawer of the check.

5

1 Pope v. The Bank of Albion, 59 Barb. 226; 1 Morse, Banks & Banking (4th Ed.), secs. 406, 407.

2 Bouvier's Law Dict., p. 301, tit. Certified Check. 3 Walton v. Mandeville, 56 Iowa, 597, 9 N. W. Rep. 913; Leach v. Hill, 106 Iowa, 171, 76 N. W. Rep. 667. 4 Morse, Banks & Banking (4th Ed.), sec. 404; Myers v. Union Nat. Bank, 27 Ill. App. 254; Lynch v. First Nat. Bank, 107 N. Y. 179, 1 Am. St. Rep. 803. 5 Dana v. Third Nat. Bank, 95 Mass. 445; Coates v. Preston, 105 Ill. 470.

6 Anderson v. Gill, 79 Md. 312, 47 Am. St. Rep. 402; Minot v. Russ, 156 Mass. 458, 32 Am. St. Rep. 472.

7 Bank v. Hughes, 17 Wend. 94; Lilly v. Commissioners, 69 N. Car. 300; Muth v. St. Louis Trust Co.,

would seem, therefore, upon principle, that the giving of a check by the depositor can create no rights in favor of the holder of the check against the bank, unless there has been an acceptance or a certification by the bank, -some act upon its part which fixes its liability to the one presenting it for payment. 8 In some jurisdictions, however, the giving of the check is held to effect an assignment of the drawer's funds on deposit, to the extent of the amount of the check, and to create a right of action in favor of the holder against the bank, even before the bank has signified, by an appropriate means, its willingness so to become liable upon the check.9

Certification has the effect to create an immediate liability of the bank to the holder, if certified for him, or if delivered to him after certification for the drawer, giving to the holder, by virtue of his certification, the rights of any other simple contract creditor of the bank.10 But it has no effect beyond this, and does not operate to create a trust relationship between the bank and the holder of the check, nor is the bank bound to set apart from its other funds a particular sum for the payment of the checks that it certifies. 11

As certifying a check imposes a contractual duty upon the bank, the check must be certified by one having authority, express or implied, from the bank to bind it in that regard. The officers commonly held to have the inherent power to certify checks are the president,12 the cashier,' 13 and the teller ;14

88 Mo. App. 596; Wright v. McCarty, 92 Ill. App. 120; Newmark, Bank Deposits, sec. 10.

8 Harrison v. Wright, 100 Ind. 515; O'Connor v. Bank, 124 N. Y. 331, 26 N. E. Rep. 816; Creveling v. Bloomsbury Nat. Bank, 46 N. J. L. 455.

Lester v. Given, 8 Bush. 357; Union Nat. Bank v. Oceana Co. Bank, 80 Ill. 212; Fogarties v. State Bank, 12 Mich. 518; Newmark, Bank Deposits, sec. 211.

10 Washington First Nat. Bank v. Whitman, 94 U. S. 345; Seventh Nat. Bank v. Cook, 73 Pa. St. 483; First Nat. Bank v. Leach, 52 N. Y. 350, 11 Am. Rep. 708; French v. Irwin, 4 Baxt. 401, 27 Am. Rep. 769; 5 Am. & Eng. Ency. of Law (2d Ed.), p. 1055.

11 People v. St. Nicholas Bank, 77 Hun, 159, 28 N. Y. Supp. 407, 58 N. Y. St. Rep. 843.

12 Claflin v. Farmers,' etc., Bank, 25 N. Y. 293; Wild v. Passamaquoddy Bank, 3 Mason, 506.

13 Clark Nat. Bank v. Bank of Albion, 52 Barb. 592; Atlantic Bank v. Merchants' Bank, 10 Gray, 532; Merchants' Bank v. State Bank, 10 Wall. 648, 19 L. Ed. 1008: Sheriff v. Webb, 110 U. S. 7, 28 L. Ed. 49, 3 Sup. Ct. Rep. 428.

14 Farmers' Bank v. Butchers', etc., Bank, 16 N. Y. 125; Irving Bank v. Wetherald, 36 N. Y. 336.

though as to the last there are cases that announce a different rule. 15 Without specific authority so to bind the bank upon a certification, any other officer may bind it in favor of a bona fide holder, where the bank, by a course of dealing, has held such officer out as one having the authority that he assumes to exercise.16 But the officers of a bank have no implied authority to certify their own checks; 17 nor have they such authority to certify the check of one, who, at the time the check is presented for certification, has not on deposit funds sufficient to pay the check presented. 18 It is upon this ground that a post dated check, certified before the arrival of the date of payment, creates no binding obligation in favor of the holder, for it bears upon its face the evidence of the certifying officer's having exceeded his well known authority by the implication of the law. 19.

But while, as between the bank and the officers mentioned, the latter have no authority to bind the bank by certifying the check of a depositor who has not sufficient funds, yet, as the bank is charged with knowledge of its depositors' accounts, and the certifying officer is acting apparently within the scope of his authority, the bank cannot, as against a bona fide holder, dispute the fact that there are sufficient funds.20 And this is true where the check has been certified by the proper officer of the bank for the mere accommodation of a depositor without funds, and upon his promise that it should never be presented for payment. 21 Where a bank fails to discover its mistake in certifying a check for an amount greater than the depositor's account, and pays the same, it has been held that the payment of the check is a finality, and that the excessive amount so paid cannot

15 Mussey v. Eagle Bank, 9 Met. (Mass.) 306; Muth v. St. Louis Trust Co., 88 Mo. App. 596, and on second appeal, see 67 S. W. Rep. 978.

16 Hill v. Nation Trust Co., 108 Pa. St. 1, 56 Am. Rep. 189; Muth v. St. Louis Trust Co., 88 Mo. App. 596, supra; 5 Am. & Eng. Ency, of Law (2d Ed.), p. 1052; 1 Morse, Banks & Banking, sec. 413. But see Mussey v. Eagle Bank, supra.

17 West St. Louis Savings Bank v. Shawnee Co. Bank, 95 U. S. 557.

18 Pope v. Bank of Albion, 57 N. Y. 126.

19 Clarke Nat. Bank v. Bank of Albion, 52 Barb. 592.

20 Cooke v. State Nat. Bank of Boston, 52 N. Y. 96, 114-115; Zane, Banks & Banking, 165, 166.

21 Farmers,' etc., Bank v. Butchers,' etc., Bank, 16 N. Y. 125.