[*864]

In an ordinary case, moreover, where such commissioners *in execution of their office enter into a contract for the performance of work, it seems clear that the person who contracts to do the work "is not to be considered as a servant, but a person carrying on an independent business, such as the commissioners were fully justified in employing to perform works which they could not execute for themselves, and who was known to all the world as performing them." And the person thus employed may himself, by virtue of an express statutory clause, be protected or absolved from liability to a suit whilst acting under the direction of the commissioners. And a shipowner is not responsible at common law3 for injuries occasioned by the unskilful navigation of his vessel whilst under the control of a pilot whom the owner was compelled to take on board, and in whose selection he had no voice."

:

2

It is clear, also, that a servant of the Crown, contracting in his official capacity, is not personally liable on the contracts so entered into in such cases, therefore, the rule of Respondeat superior does not apply, such exceptions to it resulting from motives of public policy; for no prudent person would accept a public situation at the hazard of exposing himself to a multiplicity of suits by parties thinking themselves aggrieved.5

*Lastly, the maxim Respondeat superior, does not apply [*865] in the case of the sovereign; for, as we have before seen, the sovereign is not liable for personal negligence; and, therefore, the principle, Qui facit per alium facit per se-which is applied to render the master answerable for the negligence of his servant, because this has arisen from his own negligence or imprudence in selecting or retaining a careless servant-is not applicable to the sovereign, in whom negligence or misconduct cannot be implied, and

1 Judgm., Allen v. Hayward, 7 Q. B. 975 (53 E. C. L. R.); citing Quarman v. Burnett, 6 M. & W. 499; Milligan v. Wedge, 12 A. & E. 737 (40 E. C. L. R.); and Rapson v. Cubitt, 9 M. & W. 710.

2 Ward v. Lee, 7 E. & B. 426; Newton v. Ellis, 5 E. & B. 115.

3 See also stat. 17 & 18 Vict. c. 104, s. 388; Gen. Steam Nav. Co. v. British and Colonial Steam Nav. Co., L. R. 4 Ex. 238; The Lion, L. R. 2 P. C. 525. ♦ The Halley, L. R. 2 P. C. 193, 201, 202.

See The Thetis, L. R. 2 A. & E. 365 (29 E. C. L. R.).

Per Dallas, C. J., Gidley v. Lord Palmerston, 3 B. & B. 286, 287; per Ashhurst, J., Macbeath v. Haldimand, 1 T. R. 181, 182.

* Ante, p. 52.

for which, if it occurs in fact, the law affords no remedy. Accordingly, in a modern case, already alluded to, it was observed by Lord Lyndhurst, that instances have occurred of damage occasioned by the negligent management of ships of war, in which it has been held, that, where an act is done by one of the crew without the participation of the commander, the latter is not responsible; but that, if the principle contended for in the case then before the Court were correct, the negligence of a seaman in the service of the Crown would, in such a case, render the Crown liable to make good the damage; a proposition which certainly could not be maintained.'

1 Viscount Canterbury v. A.-G., 1 Phill. 306; Feather v. Reg., 6 B. & S. 294 et seq.; Tobin v. Reg., 16 C. B. N. S. 310 (111 E. C. L. R.); Reg. v. Prince, L. R. 1 C. C. 150. See Hodgkinson v. Fernie, 2 C. B. N. S. 415 (89 E. C. L. R.).

It seems almost superfluous to observe, that the above remarks upon the maxim Respondeat superior, are to some considerable extent applicable in criminal law. On the one hand, a party employing an innocent agent is liable for an offence committed through this medium; on the other, if the agent had a guilty knowledge he will be responsible as well as his employer. See Bac. Max., reg. 16. Though "it is a rule of criminal law that a person cannot be criminally liable for acting as the agent of another without any knowledge that he was acting wrongly: per Crompton, J., Hearne v. Garton, 2 E. & E. 76 (105 E. C. L. R.).

In Coleman v. Riches, 16 C. B. 118 (81 E. C. L. R.), Jervis, C. J., specifies various cases in which criminal responsibility will be entailed on a master for the acts of his servants in the ordinary course of their employment. "There are," moreover, 66 many acts of a servant for which, though criminal, the master is civilly responsible by action:" per Jervis, C. J., Dunkley v. Farris, 11 C. B. 458 (73 E. C. L. R.) ; Palmer v. Evans, 2 C. B. N. S. 151 (89 E. C. L. R.); Roberts, app., Preston, resp., 9 C. B. N. S. 208 (99 E. C. L. R.). Upon the above subject Lord Wensleydale thus observes:-"I take it to be a clear proposition of law, that if a man employs an agent for a perfectly legal purpose, and that agent does an illegal act, that act does not affect the principal unless a great deal more is shown: unless it is shown that the principal directed the agent so to act, or really meant he should so act, or afterwards ratified the illegal act, or that he appointed one to be his general agent to do both legal and illegal acts:" Cooper v. Slade, 6 II. L. Cas. 793; and see Parkes v. Prescott, L. R. 4 Ex. 169.

Also, in Wilson v. Rankin, 6 B. & S. 216, the Court of Queen's Bench thus remark:-"It is a well-established distinction, that while a man is civilly responsible for the acts of his agent when acting within the established limits of his authority, he will not be criminally responsible for such acts unless express authority be shown, or the authority is necessarily to be implied from the nature of the employment, as in the case of a bookseller held liable for

[*866]

*A subject sustaining a legal wrong at the hands of a minister of the crown, is not, however, without a remedy, for "as the sovereign cannot authorize wrong to be done, the authority of the Crown would afford no defence to an action brought for an illegal act committed by an officer of the crown."

Lastly, assuming that an act which would primâ facie be a trespass, is done by order of the government, the party who commits the trespass is clearly exempted from liability, and whether the injury "is an act of state without remedy, except by appeal to the justice of the state which inflicts it, or by application of the individual suffering to the government of his country to insist upon *compensation from the government of this-in either view, the wrong is no longer actionable."2

[*867]

OMNIS RATIHABITIO RETROTRAHITUR ET MANDATO PRIORI

EQUIPARATUR.

(Co. Litt. 207 a.)

A subsequent ratification has a retrospective effect, and is equivalent to a prior command.

It is a rule of very wide application, and one which we find repeatedly laid down in the Roman law, that ratihabitio mandato comparatur, where ratihabitio is defined to be "the act of assenting to what has been done by another in my name." "No maxim," remarks Mr. Justice Story, "is better settled in reason and law than the maxim, Omnis ratihabitio retrotrahitur et mandato priori æquiparatur,3 at all events, where it does not prejudice the rights the sale by his shopman of a libellous publication. Under ordinary circumstances the authority of the agent is limited to that which is lawful. If in seeking to carry out the purpose of his employment he oversteps the law, he outruns his authority, and his principal will not be bound by what he does." See also Reg. r. Stephens, L. R. 1 Q. B. 702.

1

Judgm., Feather v. Reg., 6 B. & S. 296 (118 E. C. L. R.).

2 Vide per Parke, B., Buron v. Denman, 2 Exch. 189; explained in Feather

v. Reg., 6 B. & S. 296 (118 E. C. L. R.).

3 D. 46. 3. 12, § 4; D. 50. 17. 60 ; D. 3. 5. 6, § 9 ; D. 43. 16. 1, ? 14.

+ Brisson. ad verb. "Ratihabitio."

5 Co. Litt. 207 a; 258 a; Wing. Max. 485. Many instances of the application of this maxim are given in 18 Vin. Abr., p. 156, tit. "Ratihabitio." See

of strangers. And the civil law does not, it is believed, differ from the common law on this subject."

It is, then, true as a general rule, of which instances have occurred in the preceding pages, and with respect to *which [*868] we shall merely make a few additional observations in this place, that a subsequent ratification and adoption of what has been already done has a retrospective effect, and is equivalent to a previous command. For instance, if the goods of A. are wrongfully taken and sold, the owner may either bring trover against the wrong-doer, or may elect to consider him as his agent, may adopt、 the sale, and maintain an action for the price.3 So, if a principal ratifies the purchase by his agent of a chattel which the vendor had no right to sell, the principal is guilty of a conversion, although at the time of the ratification he had no knowledge that the sale was unlawful. So, if the agent of a vendor misrepresent the subjectmatter of the sale to the vendee, it will be proper for the jury to infer from the vendor's subsequent conduct,-as, ex. gr., from his not having repudiated a warranty, when apprised of it,-that he was privy to, or impliedly assented to, the misrepresentation of the Ward v. Broomhead, 7 Exch. 726; Sievewright v. Archibald, 17 Q. B. 103 (79 E. C. L. R.); cited per Erle, C. J., Heyworth v. Knight, 17 C. B. N. S. 308 (112 E. C. L. R.). (See also Parton v. Crofts, 16 C. B. N. S. 11 (111 E. C. L. R.). Doe d. Gutteridge v. Sowerby, 7 C. B. N. S. 599, 626 (97 E. C. L. R.)).

1 Per Story, J., delivering judgment, Fleckner v. United States Bank, 8 Wheaton (U. S.) R. 363. As to a ratification of a promise by an infant under stat. 9 Geo. 4, c. 14, s. 5; see Mawson v. Blane, 10 Exch. 206; Rowe v. Hopwood, L. R. 4 Q. B. 1.

2 The operation of the maxim as to ratihabitio with reference to the law of principal and agent, is considered at length in Story on Agency, 7th ed., PP. 283 et seq.

See Mitcheson v. Nicol, 7 Exch. 929; Simpson v. Egginton, 10 Exch. 845 (which forcibly illustrates the maxim, supra, and in connection with which, see per Maule, J., Tassell v. Cooper, 9 C. B. 532 (67 E. C. L. R.); Kemp v. Balls, Id. 607); Earl of Mountcashell v. Barber, 14 C. B. 53 (78 E. C. L. R.); Maclae v. Sutherland, 3 E. & B. 1 (77 E. C. L. R.); Fagan v. Harrison, 8 C. B. 388 (65 E. C. L. R.); Fitzmaurice v. Bayley, 9 H. L. Cas. 78.

3 Ante, p. 296; Smith v. Hodson, 4 T. R. 211; Rodgers v. Maw, 15 M. & W. 448; England v. Marsden, L. R. 1 C. P. 529. See Saunderson v. Griffiths, 5 B. & C. 909 (11 E. C. L. R.); Underhill v. Wilson, 6 Bing. 697 (19 E. C. L. R.); Kynaston v. Crouch, 14 M. & W. 266.

4 Hilbery v. Hatton, 2 H. & C. 822.

agent. Again, the title of an administrator relates back to the time of the death of the intestate, so as to entitle the personal representative to sue for the price of goods sold by one who intended to act as agent for the person, whoever he might *happen [*869] to be, who legally represented the intestate's estate,—the sale having been ratified by the plaintiff after he became administrator; for, when one means or professes to act as agent for another, a subsequent ratification by that other is equivalent to a prior command; and it is no objection, that the intended principal was unknown at the time to the person who intended to be the agent. H., the managing owner of a ship, directed an insurancebroker to effect an insurance on the entire ship, upon an adventure in which all the part-owners were jointly interested; the amount of the entire premium was carried to the ship's account in H.'s books, which were open to the inspection of all the part-owners, who saw the account, and never objected to it. It did not, however, appear that the insurance-broker knew the names of all the part-owners, or whether or not they had given authority to H. to insure. It was observed that the maxim as to ratihabitio well applied to such a case; and it was held, that the jury were warranted in inferring a joint authority to insure, and that the part-owners were jointly liable for the premium to the insurance-broker, although he had debited H. alone, and divided with him the profits of commission, upon effecting the insurance. It is, indeed, true that "no one can sue upon a contract, unless it has been made by him, or has been made by an agent professing to act for him, and whose act has been ratified by him;" and although persons who could not be named or ascertained at the time when a policy of insurance was [*870] effected, are allowed to come in and take the benefit of the insurance, yet they must be persons who were contemplated when the policy was made.1

Again-"if an arbitrator omits to enlarge the time limited for 1 Wright v. Crookes, 1 Scott N. R. 685.

* Foster v. Bates, 12 M. & W. 226; Hull v. Pickersgill, 1 B. & B. 282 (5 E. C. L. R.); cited per Parke, B., Heslop v. Baker, 8 Exch. 417. See also Tharpe v. Stallwood, 6 Scott N. R. 715; Campanari v. Woodburn, 15 C. B. 400 (80 E. C. L. R.); Crosthwaite v. Gardner, 18 Q. B. 640 (83 E. C. L. R.).

Robinson v. Gleadow, 2 Bing. N. C. 156, 161 (29 E. C. L. R.). See Prince v. Clark, 1 B. & C. 186 (8 E. C. L. R.); Clarke v. Perrier, 2 Freem. 48. 4 Watson v. Swann, 11 C. B. N. S. 756, 769 (103 E. C. L. R.).