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Adoption of a Wrong. In order to constitute one a wrongdoer by ratification, the original act must have been done in his interest, or been intended to further some purpose of his own. Lord COKE, on this subject, says: "He that agreeth to a trespass after it is done is no trespasser, unless the trespass was done to his use or for his benefit, and then his agreement subsequent amounteth to a commandment." Chief Justice TINDALL presents the same principle more fully, in the following language: "That an act for another by a person not assuming to act for himself but for such other person, though without any precedent authority whatever, becomes the act of the principal if subsequently ratified by him, is the known and well established rule of law. In that case the principal is bound by the act, whether it be for his detriment or his advantage, and whether it

not be a conspiracy, though they did not, as they might, disclose the matter thus known by them." RUFFIN, Ch. J., in Brannock . Bouldin, 4 Ired. 61. Any person present at the commission of a trespass, here an assault, encouraging or exciting the same, or who approves the same, is liable as principal; and proof that one is present without disapproving it, is evidence from which in connection with other circumstances a jury may infer assent. Mere presence as a spectator does not render one a participator. Hilmes v. Stroebel, 59 Wis. 74. See Rhinehart v. Whitehead, 64 Wis. 42. Blue v. Christ, 4 Ill. App. 351. Mere membership in an associa tion does not make one liable for a malicious prosecution instituted by the association. The member must be shown to have aided in it intentionally. Johnson v. Miller, 63 Ia. 529; 69 Ia. 562. Joint liability for false imprisonment only covers the time when all were participants. Bath. Metcalf, 14 N. E. Rep. 133 (Mass). To make one liable for false arrest by another, mere approval is not enough, he must have encouraged it in some way. Cooper v. Johnson, 81 Mo. 483. See, further,

as to liability of party for false imprisonment by officer or magistrate. Gelzenleuchter v. Niemeyer, 64 Wis 316; Fenelon v. Butts, 49 Wis. 342; Gibbs . Randlett, 58 N. H. 407; Ocean S. S. Co., v. Williams, 69 Ga. 251; and by his attorney; cases, infra, p. *132 n. 1. A conductor who per mits a passenger to travel on his train carrying goods known by the conductor to have been stolen, is not thereby liable to the owner. If he takes part of such goods as fare he is liable to that extent, Randlette v. Judkins, 77 Me, 114.

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1 4 Inst. 317. See Eastern Counties R. R. Co. v. Broom, 6 Exch. 314; Hull. Pickersgill, 1 B. & B. 282; Wilson . Tumman, 6 M. & Gr. 236; Harrison v. Mitchell, 13 La. Ann. 260; Collins. Waggoner, Breese, 26; Beveridge. Rawson, 51 Ill. 504; Allred v. Bray, 41 Mo. 484; Grund . Van Vleck, 69 Ill. 479; Vanderbilt . Turnpike Co., 2 N. Y. 479; Brainerd v. Dunning, 30 N. Y. 211. The gov ernment is liable for the illegal acts of its officers which it expressly adopts. Wiggins v. United States, 3 Ct. Claims, 412. See Buron v. Denman, 2 Exch. 167.

be *founded on a tort or a contract, to the same extent [*128] as by, and with all the consequences that follow from, the same act done by his previous authority. Such was precisely the distinction taken in the Year Book, 7 Hen. 4, fo. 35,-that if the bailiff took the heriot claiming property in himself, the subsequent agreement of the lord would not amount to a ratification of his authority, as bailiff at the time; but if he took it at the time as bailiff of the lord, the subsequent ratification by the lord made him bailiff at the time. The same distinction is also laid down by ANDERSON, Ch. J., in Godbolt's Reports, 109. 'If one have cause to distrain my goods, and a stranger, of his own wrong, without any warrant or authority given him by the other, takes my goods, not as servant or bailiff to the other, and I bring an action of trespass against him, can he excuse himself by saying that he did it as his bailiff or servant? Can he also father his misdemeanor upon another? He cannot; for once he was a trespasser and his intent was manifest."" The ratification should also be with full knowledge of the facts, or with the purpose of the party, without inquiry, to take the consequences upon himself. It is not conclusive that the party receives and appropriates a benefit from what is done, or that he employs counsel to defend the trespasser, or that he takes steps in the direction of a compromise. These are acts which any one may do for another as a matter of friendship or favor merely, and

1 Wilson v. Tumman, 6 M. & Gr.236, 242. See, also, Bird v. Brown, 4 Exch. 756, 798. It was held in Wilson v. Tumman that if a sheriff had made Limself liable as trespasser, the sub&quent ratification of his act by the plaintiff would not make him a trespasser also; the sheriff not being his agent, but the agent of the law. Following this decision are Tilt v. Jarvis, 7 U. C. C. P. 145; McLeod v. Fortune, 19 U C. Q B. 98. But see Marray. Lovejoy, 2 Cliff. 191, and 3 Wall, 1; Knight o. Nelson, 117 Mass.

458.

Lewis . Read, 13 M. & W. 834; Adams. Freeman, 9 Johns. 118; Dally. Young, 3 Ill. App. 39. The adoption must be clear and founded

on a clear knowledge of the tort committed. Here defendant was sued for false arrest in an action brought by another in his name. Tucker v. Jerris, 75 Me. 184.

Hyde v. Cooper, 26 Vt, 552; Lewis v. Read, 13 M. & W. 834. But, if a principal derives all the benefit derivable from his agent's tort and has the only interest in it, he is liable for the wrong. Dunn v. Hartford, etc. R. R. Co, 43 Conn, 434.

4 Buttrick . Lowell, 1 Allen, 172; Eastern Counties R. R. Co. v. Broom, 6 Exch. 314. See Woollen v. Wright, 1 H. & C. 554.

5 Roe v. Birkenhead, etc., Railway Co., 7 Exch. 36; S. C. 7 Eng. L. and Eq. 546.

without contemplating further responsibility than is involved in the acts themselves.

But while the mere expression of approval of a wrong, or gratification at its commission, would not of itself constitute a legal injury, by relation or otherwise, there may, perhaps, be an exception to this general rule in the case of a wrong [*129] which one *does in excess of authority while in the employ of another. The question what the master's authority will authorize and cover is primarily one between the parties to the contract of service; and we see no reason to question that the master may enlarge it retrospectively, so as to make it embrace any action which the servant has done in reliance upon or under pretence of it. And it is difficult to distinguish an approval of the act from an adoption, under the circumstances indicated.

Questions of ratification often arise between the party to a suit and the officer who serves his process. Whatever the officer is, by his process, commanded to do, is understood to be directed by the party himself, who causes the writ to be issued and delivered to the officer, that the exigency thereof may be complied with. Therefore, to the extent of the command, the party is responsi ble for what the officer shall do; but as the process would be a full protection if legal, it follows that there can be no liability of the party, because of obedience to the command of the process, unless the process itself was issued without authority. Supposing the process to be legal, there may still be liability on the part of the officer, if he shall overstep his authority, or shall take the goods of one person when commanded to take those of another, and in other like cases. But in these cases the party to the writ is neither morally nor technically responsible for the departure from the command of the writ, unless he advised or as. sisted the officer therein.' Mere neglect to interpose objection

1 Perkin v. Proctor, 2 Wils. 382; Parsons v. Lloyd, 3 Wils. 341; Barker v. Braham, 3 Wils. 377; Currey v. Pringle, 11 Johns. 444; McGuinty v. Herrick, 5 Wend. 240. See Wing v. Hussey, 71 Me. 185, on what constitutes participation in such case.

2 Wilson v. Tumman, 6 M. & G. 244; Whitmore v. Greene, 13 M. & W.

104; Walley v. M'Connell, 13 Q. B. 911; Averill v. Williams, 4 Denio, 295; Chapman . Douglass, 5 Daly, 244; Abbott v. Kimball, 19 Vt. 551. See Bissell v. Gold, 1 Wend. 210; Taylor v. Trask, 7 Cow. 249; Syndacker e. Brosse, 51 Ill. 375. By taking out an execution and delivering it to the offcer the party is responsible for the

is not sufficient, nor, it seems, is an expression of opinion that the officer's proceedings are warranted by law. But where a plaintiff and his attorney were aware of all the facts concerning the levy upon property not belonging to the defendant in the writ, approved of it, and on request refused to consent to its being released, they were held jointly liable with the officer as trespassers. Many cases go further than this, and hold the party *responsible where the officer has departed from [*130] the command of his writ, or from his instructions, if the party has afterwards approved what was done, and has taken, or is seeking to take, a benefit from it. Where, however, the plaintiff receives only such benefits as he would have been entitled to under a lawful service of the writ, he cannot, from this fact alone, be held to be a participant in the officer's trespasses.

sale, and by doing this and taking the order on which an attachment is based he is held to have ratified the act of the officer in levying an attachment on the property. Peterson v. Foli, 67 Ia. 402. For levy by his direction under a judgment jurisdictionally void, the plaintiff is liable jointly with the officer. Shaw v. Rowland, 32 Kan. 154. If upon a void judgment an execution regular on its face is issued, the plaintiff is liable for the proceeds which come to his hands from a sale but not as for a conversion where the officer's action made the levy invalid but the plaintiff was not connected with the irregularity. Gunz . Heffner, 33 Minn. 215. If a plaintiff directs service on specific property he is liable if the officer is a trespasser; otherwise if the process is simply given to the officer and he decides on the property to be seized. Corner v. Mackintosh, 48 Md. 374. For the omission of the officer to serve properly a valid writ or to allow the selection of an exemption, though in the presence of the plaintiff, the latter is not liable. Michels v. Stork, 44 Mich. 2. A sheriff wrongfully took money from the person of a

prisoner and creditors severally issued attachments against the money. The officers and creditors were held not jointly liable in tort. Dahms v. Sears, 13 Oreg. 47.

'Hyde v. Cooper, 26 Vt. 552.

Cook v. Hopper, 23 Mich. 511. A party who orders the sheriff to refuse sufficient bail and keep defendant in custody is liable. Gibbs v. Randlett, 58 N. H. 407.

See Tompkins v. Haile, 3 Wend. 406; Root v. Chandler, 10 Wend. 111; Allen v. Crary, 10 Wend. 349; Davis v. Newkirk, 5 Denio, 94; Ball v. Loomis, 29 N. Y. 412; Leach v. Francis, 41 Vt. 670; Stroud v. Humble, 2 La. Ann. 930; Bonnel v. Dunn, 28 N. J. 153; Knight v. Nelson, 117 Mass. 458; Wetzell v. Waters, 18 Mo. 396; Nelson v. Cook, 17 Ill. 443; Syndacker Brosse, 51 Ill. 357; Beveridge v. Rawson, 51 Ill. 504; Deal v. Bogue, 20 Penn. St. 228. Where party and officer pleaded jointly admitting taking, held jointly liable, as by the plea the party adopted the officer's course. Taylor v. Ryan, 15 Neb, 573.

4 Hyde v. Cooper, 26 Vt. 552. The case was one in which an officer had

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*One method of ratification as between the party to the suit and the officer is by the former giving to the latter a bond of indemnity, or other security, against the consequences of his action.1

proceeded to sell property on execution without sufficient notice. The plaintiff in the execution was sued in trespass as a participant in the wrong. It appeared that before the sale he had expressed the opinion that the notice was sufficient, and also that he received the money on execution. REDFIELD, Ch. J., "As a general rule, perhaps, where the mistake is one of fact, and such as makes the officer a trespasser, and the party knowing all the facts, consents to take the avails of a sale, or where he counseled the very act, which creates the liability of the officer, he is implicated to the same extent as the officer. But when the party does not direct or control the course of the of. ficer, but requires him to proceed at his peril, and the officer makes a mistake of law in judging of his official duty, whereby he becomes a trespasser, even by relation, the party is not affected by it, even when he receives money, which is the result of such irregularity, although he was aware of the course pursued by the officer. He is not liable unless he consents to the officer's course, or subsequently adopts it. And if he does that, he cannot maintain an action against the officer for doing the act, and the consequence would be that, if receiving the avails of a sale on execution were to be regarded in all cases as amounting to a ratification of the conduct of the officer, in the sale, it must preclude the creditor from all suits against the officer on that account: which has never been so regarded. The party may always take money, which the officer informs him he has legally collected,

without assuming the responsibility of indorsing the perfect legality of the entire detail of the officer's official conduct in the matter.

"For if the officer is compelled to refund to the debtor, on account of his irregularity of procedure, that will not affect the right of the creditor to retain the money. He is still entitled to retain the money against the officer. And the party cannot claim the money of the creditor, without thereby affirming the sale. So that the creditor's accepting the amount of money, for which the property is sold, is no more a ratifi cation of the conduct of the officer than if he took the money of the offcer on any other liability. The mon ey is the officer's, whether he was a trespasser or not, and he is, at all events, liable to the creditor. If the sale was irregular, that is his loss, and he must still pay the creditor; and accepting the money is but tak ing pay for the officer's liability to the creditor for his default in the sale if it was irregular. So that, in any view of the case, there is no ground of implicating the defendant."

The case of Lewis v. Read, 13 M. & W. 834, lays down the same docrine. That was a case in which bai liffs distrained goods not belonging to the tenant and not on the demised premises. These were sold and the landlord received the proceeds. Held, not to make him liable unless he ratified the act of the bailiffs with know edge of the irregularity, or chose, without inquiry, to adopt their acts and take upon himself all risks.

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