« PreviousContinue »
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."1 Chief Justice TINDALL pre sents 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 subse quently 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 as to liability of party for false imnot, as they might, disclose the mat- prisonment by officer or magistrate. ter thus known by them." RUFFIN, Gelzenleuchter o. Niemeyer, 64 Wis. Ch. J., in Brannock 0. Bouldin, 4 316; Fenelon o. Butts, 49 Wis. 342; Ired. 61. Any person present at the Gibbs 0. Randlett, 58 N. H, 407; commission of a trespass, here an Ocean S. S. Co., 0. Williains, 69 Ga. assault, encouraging or exciting the 251; and by his attorney; cases, infra, same, or who approves the same, is p. *132 n. 1. A conductor who per liable as principal; and proof that one mits a passenger to travel on his train is present without disapproving it, is carrying goods known by the conducevidence from which in connection tor to have been stolen, is not thereby with other circumstances a jury liable to the owner. If he takes part may infer assent. Mere presence as a of such goods as fare he is liable to spectator does not render one a parti. that extent, Randlette 0. Judkins, cipator. Hilmes o. Stroebel, 59 Wis. 77 Me, 114, 74. See Rhinehart v. Whitehead, 64 4 Inst. 317. See Eastern Counties Wis. 42. Blue v. Christ, 4 Ill. App. R. R. Co. 0. Broom, 6 Exch. 314; 351. Mere membership in an associa- Hull o. Pickersgill, 1 B. & B. 282: tion does not make one liable for a Wilson o. Tumman, 6 M. & Gr. 236; malicious prosecution instituted by Harrison o. Mitchell, 13 La. Ann. 260; the association. The member must Collins . Waggoner, Breese, 26; be shown to have aided in it inten- Beveridge o. Rawson, 51 III. 504; Alltionally. Johnson 0. Miller, 63 Ia. red o. Bray, 41 Mo. 484; Grund e. 529; 69 Ia. 562. Joint liability for Van Vleck, 69 Ill. 479; Vanderbilt e. false imprisonment only covers the Turnpike Co., 2 N. Y. 479; Brainerd time when all were participants. 0. Dunning, 30 N. Y. 211. The govBath o. Metcalf, 14 N. E. Rep. 133 ernment is liable for the illegal acts (Mass). To make one liable for false of its officers which it expressly arrest by another, mere approval is adopts. Wiggins o. United States, 3 not enough, he must have encour- Ct. Claims, 412. See Buron o. Denaged it in some way. Cooper o.
man, 2 Exch. 167. Johnson, 81 Mo. 483. See, further,
be *founded on a tort or a contract, to the same extent [*123] as by, and with all the consequences that follow from, the same act done by his previons anthority. 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 amonnt 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 misdeineanor 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
· Wilson o. Tumman, 6 M. & Gr.236, on a clear knowledge of the tort com242. See, also, Bird o. Brown, 4 Exch. mitted. Here defendant was sued 756, 798. It was held in Wilson 0. for false arrest in an action brought Tumman that if a sheriff bad made by another in his name. Tucker 0. Limself liable as trespasser, the sub- Jerris, 75 Me. 184, & quent ratification of his act by the 3 Hyde o. Cooper, 26 Vt, 552; Lewis plaintiff would not make him a tres- 0. Read, 13 M. & W. 834. But, if a L'asser also; the sheriff not being principal derives all the benefit dehis agent, but the agent of the law. rivable from his agent's tort and has Following this decision are Tilt o. the only interest in it, he is liable for Jarvis, 7 U. C. C. P. 145; McLeod o. the wrong. Dunn o. Hartford, etc. Fortune, 19 U C. Q. B. 98. But see R. R. CO, 43 Conn, 434. Murray e. Lovejoy, 2 Cliff. 191, and 3 4 Buttrick 0. Lowell, 1 Allen, 172; Wall, 1; Knight o. Nelson, 117 Mass. Eastern Counties R. R. Co. o. Broom, 458.
6 Exch. 314. See Woollen o. Wright, 'Lewis . Read, 13 M. & W. 834; 1 H. & C. 554. Adams 0. Freeman, 9 Johns. 118;
s Roe o. Birkenhead, etc., Railway Dally e. Young, 3 Ill. App. 39. The Co., 7 Exch. 36; 8. C. 7 Eng. L. and adoption must be clear and founded
withont 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 em
ploy 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 circunstances 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 canses 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 responsible 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 anthority. 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 de parture from the command of the writ, unless he advised or as. sisted the officer therein.' Mere neglect to interpose objection
1 Perkin o. Proctor, 2 Wils. 382; Par. Bons v. Lloyd, 3 Wils. 341: Barker o. Braham, 3 Wits. 377; Currey o. Pringle, 11 Johns. 444; McGuiniy o. Herrick, 5 Wend. 240. See Wing v. Hussey, 71 Me. 185, on what consti. tutes participation in such case.
2 Wilson 0. Tumman, 6 M. & G. 244; Whitmore o. Greene, 13 M. & W.
104; Walley 0. M'Connell, 13 Q. B. 911; Averillo. Williams, 4 Denio, 295; Chapman o. Douglass, 5 Daly, 244; Abbott o. Kimball, 19 Vt. 551.
See Bissell o. Gold, 1 Wend. 210; Taylor 0. Trask, 7 Cow. 249; Syndacker e. Brosse, 51 III. 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 opon 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 prisoner and creditors severally issued order on which an attachment is attachments against the money. The based be is held to have ratified the officers and creditors were held not act of the officer in levying an attach: jointly liable in tort. Dahms o. Sears, ment on the property. Peterson o. 13 Oreg. 47. Foli
, 67 la. 402. For levy by his *Hyde o. Cooper, 26 Vt. 552. direction under a judgment jurisdic- % Cook v. Hopper, 23 Mich. 511. A tionally void, the plaintiff is liable party who orders the sheriff to refuse jointly with the officer. Shaw 0. sufficient bail and keep defendant in Rowland, 32 Kan. 154. If upon a custody is liable. Gibbs o. Randlett, void judgment an execution regular 58 N. H. 407. on its face is issued, the plaintiff is * See Tompkins o. Haile, 3 Wend. liable for the proceeds which come to 406; Root o. Chandler, 10 Wend. 111; his hands from a sale but not as for a Allen o. Crary, 10 Wend. 349; Davis conversion where the officer's action 0. Newkirk, 5 Denio, 94; Ball 0. made the levy invalid but the plain- Loomis, 29 N. Y. 412; Leach o. Frantiff was not connected with the irreg. cis, 41 Vt. 670; Stroud v. Humble, 2 ularity. Guoz o. Heffner, 33 Minn. La. Ann. 930; Bonnel o. Dunn, 28 N. 215. If a plaintiff directs service on J. 153; Knight o. Nelson, 117 Mass. specific property he is liable if the 458; Wetzell o, Waters, 18 Mo. 396; oficer is a trespasser; otherwise if the Nelson 0. Cook, 17 Ill. 443; Synprocess is simply given to the officer dacker o Brosse, 51 Ill. 357; Beverand he decides on the property to be idge o. Rawson, 51 Ill. 504; Deal 0, seized. Corner o. Mackintosh, 48 Md. Bogue, 20 Penn. St. 228.
Where par 374. For the omission of the officer ty and officer pleaded jointly admitto serve properly a valid writ or to ting taking, held jointly liable, as by allow the selection of an exemption, the plea the party adopted the ofthough in the presence of the plain. ficer's course. Taylor 0. Ryan, 15 tiff, the latter is not liable. Michels o. Neb, 573. Stork, 44 Mich. 2. A sheriff wrong.
4 Hyde o. Cooper, 26 Vt. 552. The fully took money from the person of a case was one in which an officer had
[*131] *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."
proceeded to sell property on execu- without assuming the responsibility tion without sufficient notice. The of indorsing the perfect legality of plaintiff in the execution was sued in the entire detail of the officer's official trespass as a participant in the wrong. conduct in the matter. It appeared that before the sale he “For if the officer is compelled to had expressed the opinion that the refund to the debtor, on account of notice was sufficient, and also that his irregularity of procedure, that he received the money on execution. will not affect the right of the credREDFIELD, Ch. J., “As a general itor to retain the money. He is still rule, perhaps, where the mistake is entitled to retain the money against one of fact, and such as makes the the officer. And the party cannot officer a trespasser, and the party claim the money of the creditor, knowing all the facts, consents to without thereby affirming the sale. take the avails of a sale, or where he So that the creditor's accepting the counseled the very act, which creates amount of money for which the the liability of the officer, he is im- property is sold, is no more & ratifi plicated to the same extent as the offi- cation of the conduct of the officer cer. But when the party does not than if he took the money of the offidirect or control the course of the of. cer on any other liability. The mosficer, but requires him to proceed at ey is the officer's, whether he was a his peril, and the officer makes a mis- trespasser or not, and he is, at all take of law in judging of his official events, liable to the creditor. If the duty, whereby he becomes a tres. sale was irregular, that is his loss, passer, even by relation, the party is and he must still pay the creditor; not affected by it, even when he re- and accepting the money is but tasceives money, which is the result of ing pay for the officer's liability to such irregularity, although he was the creditor for his default in the sale aware of the course pursued by the if it was irregular. So that, in any officer. He is not liable unless he view of the case, there is no ground consents to the officer's course, or of implicating the defendant," subsequently adopts it. And if he The case of Lewis o. Read, 13 M. does that he cannot maintain an & W. 834, lays down the same docaction against the officer for doing rine. That was a case in which bai. the act, and the consequence would liffs distrained goods not belonging to be that, if receiving the avails of a the tenant and not on the demised sale on execution were to be regarded premises. These were sold and the in all cases as amounting to a ratifi. landlord received the proceeds. Held, cation of the conduct of the officer, not to make him liable unless he rati. in the sale, it must preclude the cred. fied the act of the bailiffs with knows itor from all suits against the oflicer edge of the irregularity, or chose, on that account: which has never without inquiry, to adopt their acts been so regarded. The party may al. and take upon himself all risks. ways take money, which the officer Murray o. Lovejoy, 2 Cliff. 191, informs him he has legally collected, and 3 Wal. 1; Herring v. Hoppock,