not competent to a jury, when dealing with the acts of a third party, to act upon probabilities: "there being no original authority in H.," said the same learned judge, "to make the promise, it was a thing done out of the ordinary scope of his duty; and though there was a moral duty cast upon him to communicate to his employer the fact of his having made the promise, it was nothing more than a moral duty, and the rule 'Omnia præsumuntur ritè esse acta donec probetur in contrarium' is never applied to such a duty as that."

The rule requiring substantial proof of a ratification is, with good reason, applied to cases of trespass. By the common law, if a principal agree to a trespass after it is done, he is no trespasser "unless the trespass was done to his use or for his benefit" (d). Besides, it should not be forgotten in actions for false imprisonment, that courts of law will take care that people are not put in peril for making complaint when a crime has been committed (e). A plaintiff having been apprehended at the instance of the defendant's son, on a charge of obtaining money by false pretences, of which charge, after a remand, he was acquitted, brought an action for trespass and false imprisonment against the father. There was no proof that the son was authorized to make the charge; but there was evidence that after the remand the defendant, when told by his son that he had caused the plaintiff to be apprehended, said he would have nothing to do with it. The court held that there was no evidence of a ratification (f). "No man," said Willes, J., "ought, as a general rule, to be responsible for acts not his own."

It is generally laid down in text books that a small matter will be evidence of such assent as will support a plea of ratification (g). The cases cited in support of the statement con[65*] tain *nothing inconsistent with the above-quoted decisions,

(d) Co. Inst. iv. 317.

'See Cocley on Torts, 127, and cases cited; ante, p. 54, note.

(e) Per Pollock, C. B., in Grinham v. Willey, 4 H. & N. 496; and see the observations of Lord Cranworth and Alderson, B., in Gosden v. Elphick, 4 Ex. 445, 447.

(f) Moon v. Towers, 8 C. B., N. S. 611.

(g) Paley on Agency, 171; Chitty, Com. Law, iii. 199; Story on Agency, 253.

See Cairo & St. Louis R. R. Co. v. Mahoney, 82 Ill. 73.

for in all of them there was evidence which did not rest merely upon probability or conjecture (h).

One

There are two rules respecting ratification which may be noticed here. The first is, that if a principal ratifies and adopts the agent's acts, even for a moment, he is bound by them (). In other words, after ratification there is no locus pœnitentiæ. The second rule is, that there can be no ratification of a part only of a transaction. In other words, the law does not allow one part of a transaction to be affirined and the rest to be disallowed. cannot "blow hot and cold." Hence, to treat a party as one's agent in respect of one part of a transaction, is equivalent to a ratification of the whole transaction (). For instance, if a principal ratify a contract made by his agent, he incurs the same liabilities as if he had originally authorized it (k). An adoption of a contract, then, is an adoption in omnibus; hence, if the contract embodies an agreement that the defendant should set off a

(h) See Ward v. Evans, 6 Mod. 37; Thorald v. Smith, 11 Mod. 88; 2 Ld. Raym. 93.

(i) Smith v. Cadogan, 2 T. Rep. 189. 1 To the same point, see Beall v. January, 62 Mo. 434; Hazleton v. Batchelder, 44 N. H. 40; Clark v. Van Riemsdyk, 9 Cranch, 153; Brock v. Jones, 16 Tex. 461.

An infant can neither rescind his rescission of a contract, nor his ratification of a deed after reaching majority. Ewell's Lead. Cases, 97, 155.

(j) Wilson v. Poulter, 2 Str. 859; Hovil v. Pack, 7 East, 164; Small v. Attwood, 6 Cl. & F. 232.

To the same point, see Drennen v. Walker, 21 Ark. 539; Seago v. Martin, 6 Heisk. 308; Newall v. Hurlburt, 2 Vt. 351; Benedict v. Smith, 10 Paige, 126; Farmers' Loan & Trust Co. v. Walworth, 1 N. Y. 433; Elwell v. Chamberlin, 31 id. 611; Fowler v. N. Y. Gold Exchange, 67 id. 138; Widner v. Lane, 14 Mich. 124; Henderson v. Cummings, 44 Ill. 325; Krider v. Trustees of Weston College, 31 Iowa, 547; So. Exp. Co. v.

Palmer, 48 Geo. 85; Menkens v. Watson, 27 Mo. 163; New Eng. Marine Ins. Co. v. De Wolf, 8 Pick. 63; Saveland v. Green, 40 Wis. 431; Babcock v. Deford, 14 Kan. 408.

A ratification by a party of an act done in his behalf by another in excess of authority, as where a person paid in behalf of another more than such other person had intended to authorize him to pay, if such ratification be made under a misapprehension of the full scope of the act, is voidable to the extent of the mistake, and the party can be relieved pro tanto. Miller v. Board of Education, 44 Cal. 166.

So, if the principal ratifies a sale, he will not be held to have ratified an unauthorized warranty of which he was ignorant at the time he is alleged to have ratified it. Smith v. Tracy, 36 N. Y. 79. See, also, Baldwin v. Burrows, 47 id. 199; Haseler v. Lemoyne, 5 C. B. (N. S.) 530.

(k) Wilson v. Tumman, 6 M. & Gr. 236; Smethurst v. Taylor, 12 M. & W. 554; Doe v. Goldwin, 2 Q. B. 143.

grant due to him from the agent, the principal must take the contract subject to this agreement (7).

In order to amount to a ratification after attaining full age, within 9 Geo. 4, c. 14, s. 5,1 Chief Justice Cockburn states the rule, that "there must be a recognition by the debtor after he has attained his majority of the debt as a debt binding upon him" (m). A recognition when of full age, and a promise to pay it "as a debt of honour" when of ability, is not such a ratification (n). By ratification is meant an admission that the party is liable and bound to pay the debt (0).

When a policy of marine insurance is made by one person on behalf of another without authority, it may be ratified after the loss of the thing insured by the party on whose behalf it is made, though he knew of the loss at the time of the ratification (p). The justice as well as the authority of this principle was insisted

upon by the Court of Appeal in a case decided in 1876, where [66*] Chief Justice Cockburn pointed out that, where an *agent

effects an insurance subject to ratification, the loss insured against is very likely to happen before ratification, and it must be taken that the insurance so effected involves that possibility of the contract (9).

A set-off cannot be maintained [under Lord Tenterden's act] of a debt contracted by the plaintiff during infancy, and not ratified by him in writing after full age (r).

The following cases are selected as illustrative of the nature of the evidence necessary to prove a ratification:

In Granby v. Allen (s), trover was brought to recover money paid by the plaintiff's wife for land conveyed to her by the defendant, and it was held by Holt, C. J., that the husband could recover

(1) Ramozetti v. Bowring, 7 C. B., N. S. 851, per Erle, C. J.

1 Statutes similar to Lord Tenterden's Act, supra, have been enacted in substance in Maine (Stat. 1845, c. 166; see Thurlow v. Gilmore, 40 Me. 378) and Kentucky (Rev. Stat. c. 22, sec. 1). See, generally, as to the doctrine of ratification at the common law and under the above statutes, Ewell's Lead. Cases on Disabilities, 173, 178-180.

money so laid out, unless he was either privy to the purchase or consented to it afterwards.

In Howard v. Baillie (t), it was held that if the agent of an executor accept a bill, and the executor admit that the bill accepted with his knowledge is for a just debt and ought to be paid, there is sufficient evidence of a ratification of the agent's act in accepting the bill.

In Haseler v. Lemoyne (u), A. was the general agent to manage B.'s property. He signed a warrant to distrain the goods of C., a tenant, for arrears of rent. After the goods had been distrained, B. said he should leave the matter in A.'s hands, and it was held that this amounted to a ratification of A.'s acts.

Benham v. Batty (x), was an action to recover a deposit. The defendant employed an agent to sell the lease of a certain house. The latter exceeded his authority, and took a deposit for the conveyance of a longer term than he was authorized to dispose of. The defendant refusing to complete this agreement, the plaintiff applied to the agent for a return of his deposit. Before he would do so he required an order from the defendant, and it was held that this order was evidence of a ratification of a previous general authority, so as to make the defendant liable for the deposit.

Fitzmaurice v. Bayley (y) is an instance of a ratification without inquiry. An agent exceeded his authority in agreeing for *the purchase of certain buildings. A dispute having [67*] arisen, the plaintiff wrote, respecting the agent's authority, "I left everything to him" (the agent), "desiring him to do the best he could. What he has done for me I know not; but of course I must support him in all he has done for me, except incivility." This was held to be a full ratification of the agent's agreement.

In Hawley v. Sentance (z),1 an agent for the purchase of goods on credit paid for certain goods out of his own money. This fact was known to the principal, who directed the agent to clear the goods at the Custon House. In the usual course of business this would be done after payment of the price by the agent for the principal.

(t) 2 H. Bl. 618.

(u) 5 C. B., N. S. 530; 28 L. J., C. P. 103.

(x) 12 L. T. Rep., N. S. 266.

(y) 6 El. & Bl. 868; 26 L. J., Q. B. 114. (2) 7 L. T. Rep., N. S. 745; 11 W. R.

311.

See post, p. 357.

This direction was held to be a ratification of the previous payment by the agent, so as to enable him to sue the principal for the price as money paid to his use, at his request.

An unauthorized order to sell given by one joint owner is ratified by the other joint owners joining in a power of attorney enabling their agents to convey their respective shares (a).

Previous to the passing of the Judicature Acts, a ratification might also be implied from the form of action adopted for the enforcing of one's rights (b).

In conclusion, it may be laid down as a rule that a ratification may be inferred from acquiescence. But this acquiescence may (a) Keay v. Fenwick, 1 C. P. Div. agent, who, without proper authority, 745.

(b) See Smith v. Hodson, 4 T. R. 211, and Ferguson v. Carrington, 9 B. & C.

59

1 See Drennen v. Walker, 21 Ark. 539 (where heirs seeking a partition among themselves of lands entered by another in their name, were held to ratify the act of location as being made by their agent); Wilmot v. Richardson, 4 Abb. App., Dec. 614; Meyer v. Morgan, 51 Miss. 21; Gracy v. Potts, 4 J. Baxter. 395, and the cases cited below. See, however, Carew v. Lillienthall, 50 Ala. 44; Peters v. Ballistier, 3 Pick. 495 (where bringing assumpsit, and subsequently discontinuing that action and bringing trover, was held not to be a ratification, though it would have been otherwise had the action of assumpsit not been discontinued); Woodward v. Suydam, 11 Ohio, 363; Bank of Owensboro v. Western Bank, 13 Bush, 526.

The authority of an agent to make a demand is at least prima facie established by the act of the principal bringing a suit founded upon that demand; and the demand is sufficient, unless the authority of the agent be drawn in question by the party sought to be charged, at the time it is made. Ham v. Boody, 20 N. H. 411; Payne v. Smith, 12 id. 34. An action by the owner of goods, to recover their price and value from his

has consigned them for sale on commission and received advances upon them, is prima facie evidence of a ratification of the consignment. Frank v. Jenkins, 22 Ohio St. 597. See, also, Kyser v. Wells, 60 Ind. 261.

Where a principal, with full knowledge of a fraud perpetrated by his agent in the disposition of property purchased with his money, elects to prosecute to judgment for the money so misappropriated, he affirms the acts of his agent, and cannot afterwards pursue the property which he had elected to treat as that of his agent. Bank of Beloit v. Beal, 34 N. Y. 473.

Where a lender received a security providing for the payment of the precise amount loaned by him, with lawful interest, the fact that his agent, without his authority, knowledge or participation, has extorted from the borrower a sum of money upon the false pretense that a portion thereof was a bonus for his principal, does not taint the security with usury; and the fact that an action upon the security is cominenced by the principal, after knowledge upon his part of the exaction of the agent, is not a ratification thereof. The security coming to him unaffected by usury, he has the right to enforce it. Estevez v. Purdy, 66 N. Y. 446. See Farwell v. Meyer, 35 Ill. 40.