as it has been expressed by some judges, 'a fair use' only be made of the publication, no wrong is done and no action can be brought." In Tinsley v. Lacy, 1 Hemm. & Mill. 747, the question arose whether it was fair use of a novel to print and publish a drama founded on it. In that case it was proved that a portion of the drama, including the most striking incidents and much of the actual language, had been taken bodily from the novel; and it was in evidence that the profit on the publication of the play had been almost inappreciable. Nevertheless a perpetual injunction was granted against the printing and publishing of the play without any preliminary inquiry as to damages. In giving judgment Lord Hatherley (then vice-chancellor) says: "Although it is open to any actor or declaimer to recite a poem or other work written by another as publicly as he pleases, it could scarcely be said that he would be at liberty on the occasion of his recitations or performance to distribute copies of the work for sale among the audience, nor could it be any excuse to say that the copies were intended merely to assist the audience, who desired, while listening to the recitation, to have a copy of the words in their hands." In Novello v. Sudlow, 12 C. B. (O. S.) 177, it was decided that the printing or multiplying copies of a piece of music not for sale, but for gratuitous distribution among the members of a musical society was a violation of the right of property vested in the owner of the copyright therein. This being so, I am unable to see that the multiplication of an indefinite number of copies of a play (which, if printed and published, would be an infringement of copyright) for the purpose of enabling that play to be publicly represented, can be otherwise than an infringement. It is said however that any one has a right to dramatize a novel—that is, not merely to conceive but to write dramas, and to do every thing necessary for that purpose including the making of a copy for the lord chamberlain. In my opinion this is a fallacious mode of stating the right. The statute confers on the author of a book and his assigns "the sole and exclusive liberty of printing or otherwise multiplying copies" of the book. By implication every person other than the author and his assigns is prohibited from printing or otherwise multiplying copies of the book. But this is the only restriction imposed on the public, and subject to it, every one is free to make use of the book as he pleases. So long therefore as he does not print, or otherwise multiply copies of the novel, any person may dramatize it, and may cause his drama to be publicly represented. But if, for the purpose of dramatization, he prints or otherwise multiplies copies of the book, he violates the rights of the author no less than if the copies were made for gratuitous distribution. The authorities appear to me to be consistent with this view. In the earlier cases-Coleman v. Wathen, 5 T. R. 245, and Murray v. Elliston, 5 Barn. & Ald. 657-the point raised in the present action could hardly have arisen, for they were decided at a time when the statutes in force conferred only an exclusive right of printing. It is unlikely that any copies (other than manuscripts) were used for the purpose of the representation of the plays which were the subject of these actions, and such manuscript copies would not have been infringements of the author's rights. The case most relied upon for the defendant was Reade v. Conquest, No. 1, 3 L. T. Rep. (N. S.) 888; 9 C. B. (N. S.) 755. It was decided on a demurrer to a count of the declaration which alleged that the defendant, without the consent of the plaintiff, dramatized the plaintiff's book, and publicly represented and performed. or caused to be represented and performed, as a drama the said book. The declaration does not allege that the defendant printed or otherwise multiplied copies of the book. In the course of the argu ment the defendant's counsel says (9 C. B. [N. S.] 764: "It is not suggested here that the defendant multiplied copies of the plaintiff's book. The complaint is that the defendant has dramatized the story and caused it to be represented at his theater." In giving judgment, Williams, J., says: "The right claimed by the plaintiff was twofold. First, he contended that his statutable right was infringed by the act of the defendant. It was held however in the case of Coleman v. Wathen, ubi sup., that representing a public dramatic piece of the plaintiff's upon the stage was not a publication within the meaning of 8 Aune, chapter 19,so as to subject the defendant to the penalty imposed by the statute, and the second section of 5 and 6 Victoria, chapter 45, defining copyright' to mean 'the sole and exclusive liberty of printing or otherwise multiplying copies of any subject to which the said word is herein applied,' seems to furnish a complete answer to the plaintiff's claim under the statute." That case therefore seems to me to have been decided on the ground that the plaintiff's statutory right of multiplying copies of his book was not infringed. In the present case I am of opinion that if the defendant had caused his play to be printed and published there would have been as substantial au infringement of the plaintiffs' right as occurred in Tinsley v. Lacy, ubi sup. For the reasons already given I think that what has been done, and is intended to be done by the defendant, constitutes an infringement of the plaintiffs' legal rights, no less than if the defendant had printed and published his play; and notwithstanding the smallness of the damage, I consider myself bound by the authority of Tinsley v. Lacy to grant a perpetual injunction to restrain the defendant from printing or otherwise multiplying copies of his play containing any passages copied, taken, or colorably altered from the plaintiffs' book, so as to infringe the plaintiffs' copyright in the novel or tale entitled " Little Lord Fauntleroy." The plaintiffs further insist on an order directing the delivery up for cancellation of the existing copies of the play, and they rely on the decision in Hole v. Bradbury, 41 L. T. Rep. (N. S.) 153; 12 Ch. Div. 886. In that case however as I understand the facts, the whole of the work complained of was an infringement of the plaintiffs' rights. In the present case however, upon an examination of the play, I have come to the conclusion that it may not be impossible for the defendant to sever the passages which he has extracted from the novel from the rest of his work, and if he desires it, I will give him an opportunity of doing so. He must however first state upon oath what copies of the work exist; secondly, extract from those copies which are in his possession or power, and deliver up to the plaintiffs for cancellation all passages copied, taken, or colorably imitated from the plaintiffs' book; thirdly, produce to the plaintiffs, if required by them, for examination the copies after the pirated passages have been extracted, and there must be liberty for the plaintiffs to apply for a further order if they are dissatisfied with the result. I introduce these last words purposely, because, as was pointed out in the course of the argument, there is a possible mode by which, without infringing the plaintiffs' copyright, the defendant may be able to make copies of the play. The costs of the action must be paid by the defendant. case, meaning the same as woman. Ala. Sup. Ct., May 29, 1888. Myers v. State. Opinion by Stone, C. J. DEFINITION - HAWKERS AND PEDDLERS LICENSE -" MANUFACTURE."—Admixture by boiling together drugs to form a nostrum is not a process of manufacture, exempting from the peddler's tax any persons selling goods of their own manufacture. The defendant carried on the business of selling medicines in this manner: He came to Winston, and renting a house, engaged in the manufacture of medicine called the "Herbs of Life." He bought from the resident druggists alcohol, chloroform, tincture of capsicum and other ingredients, and boiled them together, bottled the compound, and labelled it "Herbs of Life." He leased vacant lots in different parts of the town, and held open-air concerts, with music, dancing and minstrel performance. At intervals he would address the crowd, and extract teeth, while vendors of the medicine passed through the audience with the medicine in baskets, selling the same. We say that the term "goods," used for brevity, and comprehensive enough in its general meaning, does not embrace the preceding articles also, yet we think the mere admixture of the drugs constituting the "Herbs of Life," the attractive and delusive name given to it, is not a process of manufacturing within the meaning of the exception. The mere fact that the drugs were here mixed by the defendant could scarcely have been intended to place them beyond the contemplated taxation, while the same mixture doue by others would be subject to the tax. The distinction could hardly have been contemplated by the enacting General Assembly. The mixing of ingredients is not the conversion of them into a new article of which the process of manufacturing can be reasonably predicted. The process meant was such as a conversion of rags into paper, ginned cotton into yarn or cloth, wool into articles of farm or domestic use, and the like, so that a new article is formed; and this, by the industry of man aud the expenditure of labor, which, by its increased value from labor thus bestowed, it was intended by the exemption to foster and favor. Thus understood, the defendant cannot, by merely putting certain drugs together and boiling them, avail himself of the proviso and escape the tax. N. C. Sup. Ct., May 7, 1888. State v. Morrell. Opinion by Smith, C. J. 44 MACHINERY "-HAMMER.-A hammer used for driving spikes into cross-ties on a railroad is not "machinery," within the meaning of the Code of Alabama of 1886, section 2590, subdivision 1, providing that an employer is liable for injuries to an employee as if he were a stranger, when the injury is caused by any defect in the machinery used in the business of the master or employer. In construing words used in a statute, reference should be made to the subject of legislation; and if they have acquired a defined, popular signification when referable to such subject, the presumption is that they were used in such sense by the Legislature. A machine is a piece of mechanism which, whether simple or compound, acts by a combination of mechanical parts, which serve to create or apply power to produce motion, or to increase or regulate the effect. As used in the patent act, it has been defined to be "a concrete thing, consisting of parts, or of certain devices, or combination of devices." Burr v. Bury, 1 Wall. 531. Primarily, machinery means the works of a machine; the combination of the several parts to put it in motion. But we do not understand that the term was used in the statute in its primary sense; but, having a more enlarged signification, should be construed as so used, nothing appearing to show that it was intended to be used in its primary or restricted sense. Thus understood, the term "machinery" embraces all the parts and instruments intended to be and actually operated, from time to time, exclusively by force created and applied by mechanical apparatus or contrivance, though the initial force may be produced by the muscular strength of men or animals, or by water or steam, or other inanimate agency. Seavey v. Insurance Co., 111 Mass. 540. The carding, spinning and weaving machines, together with the instrumentality by which the prime motive power is created or applied, constitute the machinery of a cotton mill. When cars, though used at times, and at other times detached, are formed into a train, to which the propelling force is imparted by means of a locomotive, the entire train constitutes machinery connected with or used in the business. Ala. Sup. Ct., May 29, 1888. Georgia Pac. Ry. Co. v. Brooks. Opinion by Clop. ton, J. INSURANCE -ACCIDENT PROXIMATE CAUSE OF DEATH.-While one insured against accidents was driving upon a public street, his horse became frightened at an unsightly object, and ran away, without upsetting the carriage or coming in contact with any thing, and was at length brought under control; but the insured was apparently greatly endangered at the time, and suffered so severely, either from fright or strain caused by his physical exertion in restraining the horse, that he died within an hour afterward. Held, that the death ensued from bodily injuries effected through external, violent and accidental means. Certainly there was an accident. The definition of "accident," generally assented to, is an event happening without any human agency, or if happening through human agency, an event which, under the circumstances, is unusual, and not expected to the person to whom it happens. This definition exactly fits the facts here. Argument cannot be necessary to satisfy any oue that the injury happened by violent means. A well man suddenly meets a perilous emergency, which taxes all his physical and mental strength, and his death is caused thereby in an hour. The greater question is whether the death was caused by external means. We have no doubt it was. And really all the questions of the case may be resolved into the single inquiry as to what was the real cause producing death, and here a question of fact must, to some extent, be determined. The testimony is meager. Possibly the counsel for the plaintiffs relies on the preliminary proofs of loss as evidence in chief, which are fuller than the general testimony; but that is not allowable. Leaving the proofs of loss to serve only the proper purpose for which they could be introduced, all the evidence we have, more than the facts already stated, is that the insured became deathly sick, and after death a discoloration appeared on the surface of the body in the region of the heart. There is no pretense that the body bore any marks of contact with any thing inflicting injury, or that it came in contact with any physical object during the time of the accident. Our belief is, on the facts legitimately before us, that death was produced by a ruptured blood vessel about the heart, and that such rupture was caused by the extraordinary physical and mental exertion which the deceased put forth to save his children and himself from injury. The physical strain and mental shock was more than he could bear. In this calculation of the facts, we have come easily to the conclusion that, as between these parties, physical and external causes effected the death. The misconduct of the horse, and inseparably connected therewith, the conduct of the man on the occasion, in his effort to avoid the threatened catastrophe, brought death. The defendants however do not agree to this version of the facts. They contend that death was produced purely by fright, and not by the aid of any physical means whatever, and that the means through comes within the terms of such a policy. Bacon v. Association, 44 Hun, 599. The latter case has been criticized upon the point whether the means in that instance were violent or not. In Insurance Co. v. Burroughs, 69 Penn. St. 43, the court says: "If the injury be accidental, and the result is death, what matters it whether the injury is caused by a blow from a pitchfork or a strain in handling it." In these cases it was held that the true cause of the death came from the outside-were external means. Upon principle, we think the same decision must be reached here. Me. Sup. Jud. Ct., March 8, 1888. McGlinchy v. Fidelity & Casualty Co. Opinion by Peters, C. J. FILLING UP BLANKS BY AGENT. Where an agent of an insurance company soliciting insurance, in describing the property insured, falsely, and without the knowledge of the insured, fills the blanks in the printed forms of application of the company, he is the agent of the company in taking such application, and not of the insured, although there is a stipulation on the face of such application that the description of the property is made by the owner, or by his authority. It must be conceded that plaintiff did not seek Beals for this work; did not even ask him to do it, and paid him nothing therefor; did not even suspect that at that time he was his agent, but did be which death was produced must be considered as internal only. But if it is to be admitted that death was caused through fright, even then we are just as strongly convinced that it was also caused by external means. Whether one thing or another shall be considered, the proximate cause depends upon the relation of the parties to the suit with each other, as well as upon other circumstances. If the death be laid to fright, it must be because fright produced bodily injury, and the means which produced fright were external. It is impossible to impute the death to fright without an explanation of the circumstances or situation which produced the fright. Suppose any person inquires of another what caused the death of a friend, and the answer be that he died from fright, would the question be more than half answered? Would not the inquirer immediately and instinctively ask the cause of the fright? In most conditions, and in almost every sense, fear is an effect of something merely. There must be some active cause behind it. In the present case it was no more than an agency through which the accident acted. It was a dependent and not independent factor in the series of operating forces. It was no more the real cause of the death than a hammer in the hands of a workman, who strikes a blow with it, is the cause of such blow. The efficient, true cause, dominating all other causes in the combina-lieve that he was an insurance agent, looking after the tion, was the misbehavior of the running horse. Subsequent occurrences were merely the instrumentalities through which the real cause spent its force. The act of the horse was the beginning; death was the end. The authorities are helpful to this view, though perhaps not exactly apropos or decisive. A person pushed into a river may be able to swim, and if in full possession of his faculties, able to save himself; but if, in the confusion and terror of the moment, he loses his self-command and is drowned, the person thrusting him in the water is liable for the consequences. Whart. Neg., § 94. A man with an axe chased a boy, who in his fright ran into a store against a barrel of wine, breaking the barrel. The man was held responsible for the loss of the wine. Vanderburg v. Truax, 4 Denio, 467. A person is liable civiliter for brandishing a gun for the purpose of scaring another (Beach v. Hancock, 27 N. H. 223); and is liable criminaliter for the same thing (Com. v. White, 110 Mass. 407). Where by a defendant's negligence his horse ran into another's sleigh and frightened his horses, causing them to run into the plaintiff's sleigh, it was held that the defendant was liable. McDonald v. Snelling, 14 Allen, 290. A woman, fearing she would be run over by an express wagon carelessly driven, jumped against the wall of a building, and injured her face. The act of the express company, by its agent, it was held, caused the injury. Coulter v. Express Co., 56 N. Y. 585. See Page v. Bucksport, 64 Me. 51, and cases there cited. It will be observed that in these cases-and there are many others that fall within the same classification-the results are predicated upon the idea that, where an accident arises from the fright of a person, the injury flowing from it is imputable to causes producing fright. Then there are cases more directly touching the question as to whether the injuries in the case at bar were produced by external means or not. It has been held that an insane man who takes his own life dies from an injury produced by external, accidental and violent Insurance Co. v. Crandall, 120 U. S. 527. Same result follows when death ensues from accidental drowning. Trew v. Insurance Co., 6 Hurl. & N. 845; Winspear v. Insurance Co., 6 Q. B. Div. 42. Accidentally inhaling coal gas, causing death, entitles a recovery upon a policy like the present. Paul v. Insurance Co., 45 Hun, 313. A death from blood poisoning, produced by virus communicated to the hand by a fly, means. interests of the company whose advantages he was advocating to plaintiff. He was canvassing for business for the defendant; had made several trips to plaintiff's house, before he saw him, to insure it; and, against plaintiff's preference, finally induced him to insure in this company. He was supplied with its blanks, and was employed and paid by it. This application was practically the work of Beals, though the stipulation on the face thereof provides that the answers and statements were made by plaintiff or his authority; thus attempting to make the agent of the company the agent of the assured. The ordinary instructions of companies to their agents, and their dealings with them, is too well known for us to shut our eyes to the manner in which their work is carried on. This is but a form of words to attempt to create on paper an agency which in fact never existed. It is an attempt of the company, not to restrict the powers of its own agent, but an effort to do away with that relation altogether by mere words, and to make him, in the same manner, the agent of the assured, when in fact such relation never existed. Insurance Co. v. Myers, 55 Miss. 479. We do not believe the entire nature and order of this well-established relation can be so completely subverted by this ingenious device of words. The real fact, as it existed, cannot be hidden in this manner. Much less can it be destroyed, and something that did not in reality exist be placed in its stead. The substance is superior to the mere drapery of words with which one party wishes bring into existence and clothe an unreal authority. Sullivan v. Insurance Co., 34 Kans. 170; Kausal v.Insurance Ass'n, 31 Minn. 17; Insurance Co. v. Wilkinson, 13 Wall. 222; Insurance Co. v. Harmer, 2 Ohio St. 452; Sprague v. Insurance Co., 69 N. Y. 128; Boetcher v. Insurance Co., 47 Iowa, 253; Gans v. Insurance Co., 43 Wis. 108; Iron Works v. Insurance Co., 25 Conn. 465: Clark v. Insurance Co., 40 N. H. 333; 2 Wood Ins., §§ 385, 388; May Ins., § 140. We believe, under the evidence, that he was simply an agent, or solicitor, as he is called, with power only to take and forward applications. Yet the company cannot relieve itself of all liability for his acts for that reason. The company did make him their solicitor, and it must be presumed that he was given full power to take applications, and give such information to the company as he might obtain either from the applicant or from other sources. For this purpose, at least, he was the agent of the com Ill. 560; Howland v. City of Chicago, 108 id. 500; Braun v. Same, 110 id. 186; Distilling Co. v. Same, 112 id. 19; Dennehy v. Same, 120 id. 627. In the above cases license fees in quite large amounts, and manifestly, in part at least, for revenue, were sustained. And the force of those decisions in their application to the present case is not avoided by the fact that there was given there express power to tax, license and power to license, and not under the power to tax. Ill. Sup. Ct., March 28, 1888. Kinsley v. City of Chicago. Opinion by Sheldon, J. pany, with full power; and if he wrote down false statements after he had been truthfully informed by the applicant, and after a personal inspection of the premises, the assured should not suffer for his misrepresentations. We will concede that the defendant believed that the statements in the application were correctly set forth in the application, and if the company had known the actual facts they would not have issued the policy, and that it was deceived by the ap-regulate, as the license fees were sustained under the plication; but this will not relieve the company because the deception was practiced upon it by its own agent, and not by the plaintiff. Donnelly v. Insurance Co., 70 Iowa, 693; Insurance Co. v. McKee, 94 Ill. 494; Insurance Co. v. Eddy, 55 id. 213. We are of the opinion that after the defendant had received the premium of the plaintiff, and issued him a policy, it was estopped from denying the truth of the statement filled in by its own agent in the application of plaintiff. The knowledge that Beals possessed was, for the purposes of this action, the knowledge of the company. He was acting as their agent, and it was his especial duty to ascertain the actual facts about the risk, as the company made him their agent for that purpose. The application was good enough to secure the premium for the company; and where there was no fraud, nor intention to deceive defendant, on the part of plaintiff, it ought to be held sufficient, ordinarily, to recover the losses plaintiff has sustained. After the company has received the benefits of the contract, it ought not to be permitted to escape liability by questioning the statements of its own agent, and setting up his fraud as a defense against a party who has been truthful and honest. Insurance Co. v. West, 76 Va. 575; Higgins v. Insurance Co., 74 N. Y. 6; Eggleston v. Insurance Co., 65 Iowa, 308; Insurance Co. v. Hogan, 80 Ill. 35; Sherman v. Insurance Co., 39 Wis. 104; Patten v. Insurance Co., 40 N. H.. 375; Breckinridge v. Insurance Co., 87 Mo. 62; Simmons v. Insurance Co., 8 W. Va. 474; Insurance Co. v. Mahone, 56 Miss. 180; Thomas v. Insurance Co., 20 Mo. App. 150; Insurance Co. v. Robinson, 98 Ill. 324; Insurance Co. v. Lewis, 48 Tex. 622; Ber. Dig. Ins. 440, et seq.; May Ins., § 143; 1 Wood Ins., § 143. Kans. Sup. Ct., May 4, 1888. Continental Ins. Co. of New York v. Pierce. Opinion by Holt, C. MUNICIPAL CORPORATIONS REGULATING SALES OF MEATS POWER TO LICENSE.-Where the charter of a city specially confers on it the power to regulate the sale of meat, and provides generally for its making all regulations which may be necessary for the promotion of health and the suppression of disease in the city, ordinances requiring licenses from meat vendors are authorized, and the city may fix such license at so high a rate as to become a source of revenue. It is insisted that if the power to regulate confers the power to require a license, then the license fee cannot be fixed at such a sum as will result in producing a revenue for the city-that to sauction such a result there must be expressly given the power to tax. Cooley Tax. (1st ed.) 408, in speaking of grants of power to license, remarks: "Where the grant is not made for revenue, but for regulation merely, a much narrower construction is to be applied. A fee for the license may still be exacted, but it must be such a fee only as will legitimately assist in the regulation; and it should not exceed the necessary or probable expense of issuing the license, and of inspecting and regulating the business which it covers. If the State intends to give broader authority, it is a reasonable inference that it will do so in unequivocal terms." Under the narrow rule of construction thus laid down, we would not regard the amount of the license fee in this case as obnoxious to objection. But this court has always applied a more liberal rule of construction in reference to license fees. Ferry Co. v. East St. Louis, 102 NEGOTIABLE INSTRUMENTS - EXECUTION - RATIFICATION OF FORGERY.-In an action on a note against a surety, where the issue is as to the genuineness of the signature, and where the pleadings and evidence do not point to the crime of forgery on the part of any particular person, but tend to show that if the signature was not genuine, it was made by one who sup. posed he had authority, and that the note was subsequently ratified by the surety, the facts do not call for an application of the doctrine of ratification of forged instruments. It does not appear that the promise of the appellant induced the plaintiff to change his position in any manner, or that in reliance thereon he surrendered any right or benefit whatever. There is therefore no element of estoppel in the case as presented in the pleading or instruction of the court. The appellant contends that a person whose name has been forged to a note cannot ratify or adopt the criminal act so as to become bound, unless facts have intervened which create an estoppel, and preclude him from setting up as a defense that his signature is not genuine. There appears to be an irreconcilable conflict in the decisions of the courts of last resort on this 157, the Supreme Judicial Court of Massachusetts, folquestion. Thus, in Wellington v. Jackson, 121 Mass. lowing its earlier decisions, held that one whose signature has been forged to a promissory note, who, yet ing to be bound by it, acknowledged the signature, with knowledge of all the circumstances, and intendand thus assumed the notes as his own, was bound to the same extent as if the note had been signed by him originally, without regard to whether or not his acknowledgment amounted to an estoppel in pais. Bank v. Crafts, 4 Allen, 447; Bartlett v. Tucker, 104 Mass. 336-441. To the same effect is Hefner v. Vandolah, 62 Ill. 483; S. C., 14 Am. Rep. 106; Fitzpatrick v. Commissioners, 7 Humph. 224. There are other cases which, while seeming to lend support to the doctrine that a forged signature may be ratified, nevertheless turn upon the proposition that the holder of the note had in some way acted in reliance upon the promise or admission of the person whose name appeared on the note, or that the latter had received or participated in the consideration for which the note had been given, and was therefore estopped to deny the genuineness of his signature. Still other decisions depend upon principles which distinguish them from cases involv ing the doctrine of ratification or adoption of forged instruments purely. Bank v. Keene, 55 Me. 103; Forsyth v. Day, 46 id. 176; Corser v. Paul, 41 N. H. 24; Woodruff v. Munroe, 33 Md. 146; Bank v. Middlebrook, 33 Conn. 95; Livings v. Wiler, 32 Ill. 387; Bank v. Warreu, 15 N. Y. 577; Crout v. De Wolf, 1 R. I. 393; McKenzie v. Linen Co., 6 App. Cas. 82; Forsythe v. Bonta, 5 Bush, 548. It is a well-established rule of law that if one not assuming to act for himself does an act for or in the name of another, upon an assumption of authority to act as the agent of the latter, even though without any precedent authority whatever, if the person in whose name the act was performed subsequently ratifies or adopts what has been so done, the ratification relates back and supplies original authority to do the act. In such a case the principal is bound subject which seem to be well settled. Judge Story says: "Where upon the face of the instrument the agent sigus his own name only, without referring to any principal, then he will be personally bound, although he is known to be or avowedly acts as agent." Story Prom. Notes, § 68. But "if it can, upon the whole instrument, be collected that the true object and to the same extent as if the act had been done in the first instance by his previous authority; and this is so whether the act be detrimental to the principal or to his advantage, or whether it be founded in tort or contract. The reason is that there was an open assumption to act as the agent of the party who subsequently adopted the act. The agency having been knowingly ratified, the ratification becomes equiva-intent of it are to bind the principal, and not to bind the lent to original authority. Wilson v. Tumman, 6 Man. & G. 234; Smith v. Tramel, 68 Jowa, 488; 27 N. W. Rep. 471. So if a contract be voidable on account of fraud practiced on one party, or if, for any reason, it might be avoided, yet if the party having the right to avoid the contract, being fully informed, deliberately confirms or ratifies it, even though this be done without a new consideration, and after acts have been done which would have released the person affected, the party thus ratifying is thereby precluded from obtaining the relief he otherwise might have had. Williams v. Boyd, 75 Ind. 286. The ratification or adoption of a forged instrument, or of a contract which is prohibited by law, or made in violation of a criminal statute, involves altogether different principles. One who commits the crime of forgery by signing the name of another to a promissory note does not assume to act as the agent of the person whose name is forged. Upon principle, there would seem to be no room to apply the doctrine of ratification or adoption of the act in such a case. Where the act done constitutes a crime, and is committed without any pretense of authority, it is difficult to understand how one who is in a sense the victim of the criminal act may adopt or ratify it, so as to become bound by a contract to which he is to all intents and purposes a stranger and which, as to him, was conceived in a crime, and is totally without consideration. As has been well said, it is impossible, in such a case, to attribute any motive to the ratifying party but that of concealing the crime, and suppressing the prosecution; "for why should a man pay money without consideration when he himself had been wronged, unless constrained by desire to shield the guilty party?" The distinction made in many well-considered cases seems to be this: Where the act of signing constitutes the orime of forgery, while the person whose name has been forged may be estopped by his admissions, upon which others may have changed their relations, from pleading the truth of the matter, to their detriment, the act from which the crime springs cannot, upon consideration of public policy, be ratified without a new consideration to support it. Shisler v. Vandike, 92 Penn. St. 447; McHugh v. County of Schuylkill, 67 id. 391; Workman v. Wright, 33 Ohio St. 405; 31 Am. Rep. 546, and note; Owsley v. Philips, 78 Ky. 517; Brooke v. Hook, 24 Law T. 34; 3 Alb. Law J. 255; 2 Dan. Neg. Inst., §§ 1351-1353; 2 Rand. Com. Paper, § 629. In case of a known or conceded forgery, we are unable to discover any principle upon which a subsequent promise by the person whose name was forged can be held binding, in the absence of an estoppel in pais, or without a new consideration for the promise. Workman v. Wright, supra; Owsley v. Philips, supra. Ind. Sup. Ct., April 11, 1888. Henry v. Heeb. Opinion by Mitchell, C. J. — PARTIES-DESCRIPTIO PERSONÆ.-A promissory note which says "We promise to pay," without further naming the maker, and which is signed "A. Hassett, President," binds him personally; the word "President" being merely descriptio persona. In view of the large number of adjudicated cases, it is sometimes difficult to determine whether a note or bill of exchange drawn by an agent, but for the use and benefit of his principal, binds the agent personally or not. There are however some general rules upon the agent, courts of justice will adopt that construction of it, however informally it may be expressed." Id., § 69. Prof. Parsons says: “If an agent makes a note in his own name, and add to his signature the word 'Agent,' but there is nothing on the note to indicate who is principal, the agent will be personally liable, just as if the word 'Agent' were not added." 1 Pars. Notes & B. 95. And "one who puts his name on negotiable paper will be liable personally, as we have seen, al though he acts as agent, unless he says so, and says also who his principal is; that is, unless he uses some expression equivalent, to use Lord Ellenborough's language, to, I am the mere scribe.' For if the construction may fairly be that while he acts officially, or at the request of others, yet what he does is still his own act, it will be so interpreted." Id. 102. And see also Sayre v. Nichols, 5 Cal. 487; Stackpole v. Arnold, 11 Mass. 27; Williams v. Robbins, 16 Gray, 77; Manufacturing Co. v. Fairbanks, 98 Mass. 101; Sturdivant v. Hull, 59 Me. 172; Pentz v. Stanton, 10 Wend. 271; Powers v. Briggs, 79 Ill. 493. The cases cited by appellant are not in conflict with the rules above stated. In Bank v. Colby, 64 Cal. 352, the note was signed by “G. A. Colby, Prest. Pac. Peat Canal Co, D. K. Tripp, Sec. pro tem." It was indorsed by Colby and four others. The action was against Colby and Tripp as makers, and the other defendants as indorsers. The court said: "Read as a whole, we think it apparent from its face that it is the note of the company indorsed by the individuals." In Beau v. Mining Co., 66 Cal. 451, the note was signed "Pioneer Mining Company, John E. Mason, Supt." The plaintiff sought to hold Mason personally responsible on the note, but the court considered him not bound. The court said: "The signature is not John E. Mason, Superintendent of the Pioneer Mining Company:' the last portion of which in the absence of any words in the body of the note indicating an intention that it should be an obligation of the company, might, it is claimed, be held to be merely descriptio personœ. But there the words 'Pioneer Mining Company' precede the name 'John E. Mason.'" In Bank v. Bank, 5 Wheat. 326, the question was whether a certain act done by the cashier of a bank was done in his official or individual capacity. The action was based upon a check, and the court said: "But the fact that this appeared on its face to be a private check is by no means to be conceded. On the contrary, the appearance of the corporate name of the institution on the face of the paper at once leads to the belief that it is a corporate, and not an individual, transaction; to which must be added the circumstance that the cashier is the drawer, and the teller the payee; and the form of ordinary checks deviated from by the substitution of to order, or to bearer. The evidence therefore on the face of the bill predominates in favor of its being a bank transaction." In Carpenter v. Farnsworth, 106 Mass. 561, the action was on a check, having the words "Etna Mills" printed in the margin, and signed, "J. D. Farnsworth, Treasurer." The court said "that this check manifests upon its fact that the writing is the act of the principal, though done by the hand of an agent; or in other words, that it is the check of the Etna Mills, executed by Farnsworth as their treasurer and in their behalf." The other cases cited do not need special notice. In the light of the rules of law above announced the ques tion then is, did the defendant, by signing the note as |