selling the house for that sum should include in the sale certain bankstock which he was not authorized to sell, and of which he had not possession, the principal, by the mere receipt and retention of the sum which he had authorized to be taken for the house, and in ignorance of the fact that the bank-stock was part of the consideration running to the purchaser, would be bound to deliver the stock. I cannot yield assent to such doctrine. The purchaser had, in the case supposed, no right to trust the agent with respect to the bank-stock. He had not the possession of it, and was not clothed with any authority with respect to it. The purchaser was bound to inquire into the authority of the agent in such case. The reception and retention of the exact sum authorized to be taken for the house, in ignorance of the act of the agent with respect to the bank-stock, is no ratification. Otherwise the principal is bound for every unauthorized act of the agent, and the purchaser may trust the agent, who can exhibit no authority. Such a principle would be ruinous. Upon maturity of the dividend, suit was at once brought against the company. Until the trial the plaintiff is not shown to have knowledge of the facts upon which the claim of the purchasers to the dividend is based. They had not communicated them to him. He could not have learned them from the agent, for he denied the representations and agreement. This was no acquiescence, working ratification of the unauthorized act of Benjamin. The cases relied upon by the defendant are of the class, either of recognized agency or of acts adopted by the principal as done for him, where a right obtained by the agent is sought to be enforced, or where the principal receives the avails of a contract either authorized or adopted by him. The liability of the principal for the fraud of his agent is bottomed upon the principle that, by adopting the contract made by the agent, and receiving the avails, the principal assumes responsibility for the means adopted to effect the contract; but, as well observed in Baldwin v. Burrows, supra, where the cases are ably reviewed, and the lines of distinction are sharply defined, "this reponsibility for instrumentalities does not extend to collateral contracts made by the agent in excess of his actual or ostensible authority, and not known to the principal at the time of receiving the proceeds, though such collateral contract may have been the means by which the agent was enabled to effect the authorized contract, and the principal retain the proceeds thereof after knowledge of the fact." The present case is not within the class of cases relied upon. The collateral contract for the transfer of the dividend was in excess of any authority, actual or ostensible. The proceeds of the authorized sale of the stock were received in ignorance of the fraud perpetrated by the agent. The amount of such proceeds was the exact amount authorized to be received for the stock. The plaintiff, by retaining the proceeds, adopted and ratified what he had authorized. Such action cannot be tortured into ratification of unauthorized acts. Smith v. Tracy, 36 N. Y. 79; Condit v. Baldwin, 21 N. Y. 219. Judgment for plaintiff. GRESHAM, J., concurs. ANDREWS BROS. Co. v. YOUNGSTOWN COKE Co., Limited. (Circuit Court, W. D. Pennsylvania. July 25, 1889.) 1. LIMITED PARTNERSHIPS-CONTRACTS-STATUTE OF FRAUDS-EQUITY. A contract of sale by a limited partnership association of the state of Penn. sylvania, organized under the act of June 2, 1874, which will impose a liability exceeding $500 for non-performance, cannot be enforced against the association, either in a court of law or equity, unless in writing, and signed by at least two managers of the association. 2. SAME-REFORMATION-MISTAKE. One dealing with such an association is bound to take notice of the statutory requirements for the valid execution of contracts; and if he makes a contract with an agent of the association, which is reduced to writing, and signed by only one manager, he cannot, on the ground of mistake, maintain a bill in equity against the association for the reformation of the instrument by compelling its execution by two managers. In Equity. Suit by the Andrews Bros. Company against the Youngstown Coke Company, Limited, to reform a certain written instrument, for specific performance thereof by defendant, and general relief. S. Schoyer, Jr., for complainant. ACHESON, J. The defendant is a limited partnership association of the state of Pennsylvania, organized under and subject to the provisions of the act of assembly of June 2, 1874. The fifth section of the act provides that "no liability for an amount exceeding five hundred dollars, except against the person incurring it, shall bind the said association, unless reduced to writing, and signed by at least two managers." This clause of the act was considered by the supreme court of Pennsylvania in Melting Co. v. Reese, 118 Pa. St. 355, 12 Atl. Rep. 362, and it was there adjudged that a contract for a sale by such an association, which will impose on it a liability for non-performance exceeding $500, cannot be enforced unless in writing, and signed by at least two managers of the association. The bill here sets forth that Frederick C. Keighley, the defendant's general manager, acting in its behalf, agreed with the plaintiff corporation that the defendant should furnish the plaintiff the coke necessary to run its furnace-about 10 cars per day-from July 10, 1888, to January 1, 1890, at the rate of 95 cents per ton, upon the basis of then existing wages, the price to rise or fall in proportion as wages might advance or decline, and that the agreement was reduced to writing, and was duly executed by the plaintiff, and was signed in behalf of the defendant by H. O. Bonnell, the treasurer, and one of the managers of the defendant company; but that the plaintiff is advised by counsel that the said agreement, in the form in which it stands, cannot be enforced at law against the defendant; and the bill prays, in substance, that the said written instrument may be reformed so that it shall be and appear to be executed by at least two of the defendant's managers, to the end that it may be legally enforceable against the defendv.39F.no.6-23 ant, and that the defendant be decreed to specifically perform the contract, and for general relief. It is admitted that the liability for non-performance which would be imposed on the defendant exceeds $500. Confessedly, then, there is here no contract which legally binds the defendant. But if there is no such valid contract at law, upon what principle can the plaintiff be granted the equitable relief here sought? Undoubtedly the above quoted statutory provision is as binding on a court of equity as on a court of law. Litchfield v. Ballou, 114 U. S. 190, 5 Sup. Ct. Rep. 820. Certainly the general rule is that courts of equity cannot dispense with regulations prescribed by a statute, or supply any circumstance for the want of which the statute has declared the instrument void. 1 Story, Eq. Jur. §§ 96, 177. If there be any exceptions to the rule, clearly this case is not one. Here was neither fraud nor accident, and, if there was mistake, it was on the part of the plaintiff only, and was, too, a mistake merely as to the legal effect of the instrument signed by Bonnell; but such mistake is no ground for the reformation of a written instrument. Adams, Eq. *171; Cooper v. Insurance Co., 50 Pa. St. 299; Snell v. Insurance Co., 98 U. S. 85. Besides, strangers dealing with a limited partnership organized under the act of June 2, 1874, are bound by the limitations imposed upon the powers of the individual members. Melting Co. v. Reese, supra. The plaintiff was bound to take notice of the legislative restriction expressed in the fifth section of the act. Id.; Pearce v. Railroad Co., 21 How. 443 If the requirements of the statute of frauds are not complied with, a contract falling within its scope, so long as it remains in fieri, cannot be enforced, either at law or in equity. Adams, Eq. *86. Now, under the facts of this case there can be no pretense that there was such part performance as would perfect the contract in equity. Williams v. Morris, 95 U. S. 457. To a bill in equity to reform an instrument in writing, if the proposed reformation involves the specific enforcement of an oral agreement within the statute of frauds, or the term sought to be added will so modify the instrument as to make it operate to convey an interest or secure a right which can only be conveyed or secured through an instrument in writing, and for which no writing has ever existed, the statute is a sufficient answer, unless the defendant is estopped to plead it. Glass v. Hulbert, 102 Mass. 24. But no ground of estoppel appears here. Enough has been said to show that the plaintiff is not entitled to equitable relief. I may add, however, that it appears from the evidence that the contract which Keighley agreed to was not only improvident, as respects the defendant, and, in the length of time it had to run, unusual, but it had not been authorized by the defendant's board of managers. The instrument which Bonnell signed had not been submitted to any other member of the board, and he signed it under the belief that it expired on July 1, 1889, and also upon the supposition that its terms. had been approved by Mr. McCurdy, another manager, which was a mistake. Let a decree be drawn dismissing the plaintiff's bill, with costs. UNITED STATES v. TERRY et al. (District Court, N. D. California. May 24, 1889.) 1. INDICTMENT AND INFORMATION-PLEA IN ABATEMENT-DEMURRER. Where a plea in abatement to an indictment alleges facts contrary to the record, or which could be proven only by the testimony of the grand jurors disclosing their proceedings or impeaching their findings, a demurrer to the plea cannot be regarded as admitting the truth of such allegations, but will be considered as an objection or exception to the filing or allowance of the plea. 2. SAME-IMPEACHING RECORD BY PLEA. Such allegations cannot properly be inquired into by plea in abatement, but the inquiry must be addressed to the discretion of the court, by suggestion or motion, and it will be allowed only in rare and extraordinary cases, where the matters, if true, work a manifest and substantial injury to the defendant. 8. SAME-CONDUCT OF GRAND JURY-OMISSION TO READ INDICTMENT. The fact that after a large number of witnesses had been examined by the grand jury, and the district attorney had been instructed to prepare indictments against defendants, the jury dispensed with the reading of the indictments, and returned them into court without knowing their exact contents, because of the statement made to them by the attorney that it would take three hours to read them, and that the supreme court justice wanted to leave, and wanted the indictments found before he left, affords no ground for setting aside the indictments. 4 SAME-PRESENCE OF DISTRICT ATTORNEY IN JURY ROOM. In the United States district court, the mere fact that the district attorney was present during the expression of opinion of the grand jury upon the charge in the indictment, and during their voting thereon, is at most an irregularity, which, in the absence of averment of injury or prejudice to defendant, is a matter of form, and not of substance. 5. SAME REFUSAL TO SUPBOENA WITNESSES FOR ACCUSED. In the United States district court, the mere refusal of the district attorney to summon witnesses for the accused at the request of the grand jury fur nishes no ground for setting aside the indictment. Indictments against D. S. Terry for an assault with a deadly weapon; attempting to obstruct justice; obstructing United States marshal; and displaying deadly weapon in a threatening manner. Also against Sarah A. Terry for attempting to obstruct justice and obstructing United States marshal. On demurrer to plea in abatement. HOFFMAN, J. The first four articles of the plea were abandoned at the hearing. It is urged in support of the remaining articles that the matters therein set up show, if true, that the indictment was not legally found by the grand jury, and that the suit must therefore abate. It is further urged that the demurrer admits, for the purpose of this argument, the truth of the matters so alleged. The district attorney contends-First, that the plea alleges matters contrary to the record, and, therefore, that the truth of those matters cannot be inquired into; and, second, that the inquiry can from its own nature be made only by taking the testimony of the grand jurors, who by law and the terms of their oaths are forbidden to disclose their proceedings or to impeach their finding. It would seem that the more regular course would have been to object to the allowance of the plea. The court would have ruled it out as a formal plea in abatement, for a plea of that character is bad so far as it contradicts the record. At common law the regular answer would be that the indictment was duly returned by a grand jury prout patet per recordum, and this must be tried by an inspection of the record itself. Countess of Rutland's Case, 6 Coke, 53; 3 Bl. Comm. 331; 1 Bish. Crim. Proc. § 885, and cases cited; State v. Hamlin, 47 Conn. 116; Com. v. Smith, 9 Mass. 110. So, also, if the allegations of the plea cannot be proved except by the testimony of the grand jurors themselves. State v. Hamlin, ubi supra. The demurrer, therefore, in this case can only be allowed to operate as an objection or exception to the filing or allowance of the plea. It cannot be taken as an admission of the truth of the allegations pleaded. No such admission was intended by the district attorney, nor had he authority to make it. These observations may seem to savor of technicality. They will be found, however, to be not without importance to the final decision of the questions argued at the hearing. Assuming, however, that the plea in the case is open to exception as a formal plea in abatement, it does not follow that the defendant is without remedy. Thus, for example, where it is alleged that there has been improper conduct on the part of officers employed in the designating, summoning, and returning of the grand jury, the defendant, who may have been prejudiced thereby, may bring the matter before the court by suggestions or motion or affidavit, even where no right of challenge to the array is allowed by law. But this motion is addressed to the discretion of the court, and the court, having general power to preserve the pure administration of justice, will freely exercise its sound discretion for the purpose of serving that end. Per NELSON, J., U. S. v. Reed, 2 Blatchf. 449. To the attainment of this great object for which courts are established, general rules or doctrines must in some cases give way; but exceptions to their application must be admitted with extreme caution, and on the clearest ground of their necessity, to secure substantial, and not merely technical, rights. Thus it is the policy of the law that the preliminary inquiry by a grand jury as to the guilt or innocence of the accused party should be secretly conducted; and in furtherance of this object the juror is sworn to secrecy; and yet, in cases of alleged perjury, or to impeach or contradict a witness in a criminal, or, perhaps, in a civil, case, the grand juror may disclose the testimony given before the jury. So, again, the general rule that the admissibility and sufficiency of the evidence on which an indictment has been found cannot be inquired into, is unquestionable. Yet if, for example, it should appear from the indorsement on the back of the indictment that only one witness was examined, and it should be shown that he was a convicted felon and, therefore, incompetent to be a witness in any case, I presume that the indictment would be quashed. It has also been held that in extreme cases, "when the court can see that the finding of a grand jury is based upon such utterly insufficient evidence or such palpably incompetent evidence as to indicate that the indictment resulted from prejudice, or was found in willful disregard of the rights of the accused," it will interfere and quash the indictment. U. S. v. Farrington, 5 Fed. Rep. 343. On the other hand, many au |