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were compelled to have recourse to Pothier on platione factum.” He also cited, with approval, the Obligations, and to the early maxims of the civil two cases, of which the following are verbatim law.

reports: The action was brought by sellers of wheat to Buller's case (Pasch. 29 Eliz. Com. Pleas, i Leon recover damages from the purchasers for breach of 50), was as follows: “ Edmund Buller brought a contract in failing to take delivery. The contract replevin against two, who make consusans as baywith the plaintiffs had been made by the defendant, lies to A. for rent arrear reserved upon a lease for Roberts, and the plaintiffs alleged that the defend- life, to which the plaintiff in bar of the consusans ant, Roberts, in making the contract, had acted as pleaded, that two strangers had right of entry in the agent for Keighley, Maxsted & Co. Roberts

place where, etc., and that the said two defendants exceeded the authority of Keighley, Maxsted & Co. by their commandment entered, etc., and took the as to price, and, in making the contract, never cattle of which the replevin is brought, damage communicated to the plaintiffs the fact that he was feasant, absque hoc, that they took them as baylies acting on behalf of any principal. He, neverthe- to the said A., and upon that traverse the defendless, made the contract in the hope of its subsequent ants did demur in law. Shuttleworth, Sergeant.ratification by Keighley, Maxsted & Co., which the traverse is not good, for by that means the hope was, in fact, realized.

intent of the party shall be put in issue, which no After reviewing the English authorities upon the jury can try, but only in case of recaption. (See subject, Lord Justice Smith, who dissented from 7 H. 4, 101.) By Gascoign.— If the bayly upon the the remainder of the court, came to the conclusion distress shows the cause and reason of it, he canthat such a contract could not be maintained. He not afterwards vary from it, but the other party pointed out that, according to the English authori- may trice (sic) him by traverse; but, if he distrain ties upon the subject, a contract made by an generally without showing cause, then is he at unauthorized agent can only be ratified when (a) it large to show what cause he will, and the other has been “ proposed” to have been made on behalf party shall answer to it? And it was said by the of another; (b) purported” to have been made court that when a bayly distrains, he ought, if he on behalf of another; (c) have been made on behalf be required, to show the cause of his distress: but, of another; (d) have been made in the name of if he be not required, then he is not tied to do it. another; or (e) have been made by an agent assum- ' In an anonymous case (1652 Mich, 28, 29; Eliz. ing to act on behalf of another every one of Godbolt, 109), the facts were these: which expressions,” said his lordship, “is wholly

In trespasse, the defendant did justifie as bailiffe inconsistent with an unauthorized agent keeping unto another. The plaintiffe replied that he took locked up in his own mind a mere undeclared inten- ' his cattell of his own wrong without that that he tion that another shall participate in the contract.” was his bailiffe. Anderson, Chiefe Justice.- If one

Lord Justice Collins, who adopted the contrary have cause to distraine my goods, and a stranger view, pointed out that to compel an agent to dis- of his own wrong, without any warrant or authorclose his principal when unauthorized and to allow ity given him by the other, take my goods not as him to conceal the fact that he is contracting on bailiffe, or servant to the other. And I bring an behalf of a principal when authorized to contract, action of trespasse against him; can he excuse himwould be to establish an anomaly for which there is self, by saying that he did it as my bailiffe or serno solid reason. As was pointed out by Baron vant? Can he so father his misdemeanour on Rolfe, in Bird v. Brown (4 Ex. 798): “If A. B., another? He cannot; for once he was a trespasser, unauthorized by me, makes a contract on my behalf and his intent was manifest. But, if one distraine with J. S., which I afterwards recognize and adopt, as bailiffe, although in truth he is not bailiffe; if there is no difficulty in dealing with it as having after he in whose right he doth it, doth assent to it, been originally made by my authority. J. S. entered he shall not be punished as a trespasser; for hat into the contract on the understanding that he was assent shall have relation unto the time of the disdealing with me, and when I afterwards agreed to tresse taken; and so is the book of 7 H. 4. And admit that such was the case, J. S. is precisely in all that was agreed by Periam. Shuttleworth.the condition in which he meant to be; or, if he did What if he distraine generally, and ad hoc non fuit not believe A. B. to be acting for me, his condition responsum. Rodes came to Anderson and said unto is not altered by my adoption of the agency, for him: If I having cause to distrain come to the land, he may sue A. B. as principal, at his option, and has and distraine, and another ask the cause why I do the same equities against me, if I sue, which he so? If I assign a cause not true or insufficient. would have had against A. B."

yet when an action is brought against me, I may In the course of his judgment Lord Justice Collins : avow or justifie, and assigne any other cause. quoted a number of authorities to show that the , Anderson.-- That is another case; but in the prinquestion is one of intention with which the agent cipal case clearly the taking is not good; to which entered into the contract. Thus, in Dig. 3, 5, 11, the Rodes agreed. following passage is found: Ratihabitio constituet With regard to the contrary contention, namely, tuum negotium quod tuum non erat sed tua contem- ' that the agent must disclose the fact that he is act

case.

ing on behalf of some principal, it is, to say the least, that parties of whom he is not cognizant at the remarkable that in all the cases cited by Lord Jus- time will relieve him of its liabilities. The act must stice Smith, none of the judges have stated, in so I be ' done for another (the italics are Sir W. Anson's) many words, that an express disclosure is necessary. by a person not assuming to act for himself but for They have, no doubt, used words such as “pur- such other person' This does not prevent ratificaport," “profess," assume to act” and the like, tion in the case of a broker who makes contracts, as but is it not consistent with all these expressions agent, expecting that customers with whom he is in that an unauthorized agent need not disclose his the habit of dealing will take them off his hands. prospective principal, unless invited or requested Thus, in contract of marine insurance, persons who to do so by the party with whom he is contracting. are not named or ascertained at the time the policy

It is true that the recent case of Matheson v. Kill is effected are allowed to come in and take the burn (1 Sm. L. C. 349, not reported elsewhere), is benefit of the insurance. But then they must be against the view adopted by the court in the present persons who were contemplated at the time the

There a person intending to buy on behalf policy was made." of another, but without authority for him, and with ! In Addison on Contracts, 9th ed., p. 305, the law, out avowing that he was acting for another, bought as deduced by the author from Watson v. Swann (11 goods in his own name. Lord Cairns and Lord C. B. N. S. 756), is thus laid down: “To entitle a Justice Brett were of opinion that a contract so person to enforce a contract, it must be shown that made was incapable of ratification by the person for he himself made it; or that it was made on his behalf whom the buyer intended to buy, as the latter did by an agent authorized to act for him at the time, not assume to buy on behalf of another. Chief or whose act has been subsequently ratified and Justice Cockburn was of a different opinion, holding adopted by him; and the person for whom the agent that, if the buyer really intended to act on behalf of proiesses to act must be capable of being ascertained another, the fact of his not having avowed his inten- i at the time." tion could not prevent a ratification by the undis- In Chitty on Contracts, 13th ed., pp. 264-265, the closed principal, wlio, had he given prior author-author says: It is, indeed, an established rule that ity, would have been liable, whether the agent did an act done for another by a person not assuming or did not disclose the fact that he was an agent. to act for himself, but for such other person, though The point, however, was not decided, the court without any precedent authority whatever, becomes holding that the facts did not show that the buyer the act of the principal if subsequently ratified by really did intend to buy on behalf of another. him: (Wilson v. Tumman, ubi sup.)

But In view of this interesting conflict of judicial , where the party making the contract had no authorauthority it may be useful to refer to opinions ity to contract for the third person, and did not expressed by some leading writers on the law of profess (the italics are the author's) at the time, to contract. In so far as their opinions are contrary i act for him, it seems that the subsequent assent of to the decision of the court in the present case, it such third party to be bound as principal, has no it worthy of remark that their reasoning is founded operation (Fenn v. Harrison, Vere v. Ashby).” upon English case law, and is not derived, like the

In Leake on Contracts, 3d ed., p. 391, the author judgment of Lord Justice Collins, from an elaborate cites the following doctrine as capable of being deconsideration of the civil law and the earlier duced from the case of Wilson v. Tumman (6 M. & authorities generally.

G. 236): “ The principle of ratification only applies Sir William Auson (Contracts [8th ed.), p. 405) where the agent has professed to contract for the states the rules which govern ratification thus: “ The person who afterwards ratifies." Dealing with agent must contract as agent for a principal who is Launderson v. Griffith (5 B. & C. 909), he says: in contemplation, and who must also be in exist- ! “Where the agent in a written agreement professed ence at the time, for such things as the principal to contract on behalf of a married woman, it was can and lawfully may do.” After quoting a pass- held that the husband could not by a subsequent age from Wilson v. Tumman (6. 11. & G. 236), he ratification acquire any right under it, because he continues: “ (a) the agent must contract as agent. was not named as the party for whom the agent He must not incur a liability on his own account 'acted.” and then assign it to someone else under color of In Broom's Legal Maxims, 6th ed., p. 824, the ratification. If he has a principal and contracts in author writes: “ It is indeed true that no one can his own name, he cannot divest himself of the lia- sue upon a contract unless it has been made by him, bility to have the contract enforced against him by or has been made by an agent professing to act for the party with whom he dealt, who is entitled, under him, and whose act has been ratified by him;" and, such circumstances to the alternative liability of the although persons who could not be named or asceragent and principal

(b) The agent must tained at the time when a policy of insurance was act for a principal who is in contemplation (Hamlin effected, are allowed to come in and take the benefit v. Sears, 82 N. Y. 327; Western Put. House v. of the insurance, yet they must be persons who were District Tp. of Rock, 84 Iowa, 101). He must not i contemplated when the policy was made.” make a contract, as agent, with a vague expectation And the learned authors of Smith's Leading

*

were

Cases, ioth ed., at p. 347, theniselves sanction the Thomas Lee, on the 29th of August, 1843, made following statement of the law: “ Where a person, if a proposal to the National Loan Fund Life Assurpresent at the time, could lawfully command any ance Company for the purchase of an annuity of act to be done, any other person, though either £21 128. Iod. for his life, payable yearly on the wholly without authority, or exceeding the limits twenty-ninth August, the first payment to be of his authority, would be justified in doing that made on the twenty-ninth of August in the followact, provided he did it in the name, or a one acting ing year, and that he should pay the sum of £350 by the authority, of the person entitled (whether to as the consideration of that annuity, and on the his advantage or not), and obtained his subsequent same day he made a proposal to the said society ratification."

for the purchase of a deferred annuity of £30 for

his life to commence on his attaining the age of BETES NOIRES OF THE LAW.

sixty years, which would be on the 30th of June,

1864, the first payment to be on the 30th of June, THE MAN WHO IS MAD.

1865, reserving to him the option of receiving in

lieu of such annuity the sum of £293 5s., payable W E ARE not proposing to consider the law of in:mediately or the deferred sum of £377 5s, to be

lunacy in general in our present chapter, but paid to his representatives after his death. The merely to consider the lunatic as a litigant.

proposals were assented to and accepted by the The lunatic as a litigant is one of the worst society, and the terms of the agreements bêtes noires known to the law.

embodied in two policies of insurancê, bearing As the lunatic is the most horrible and formidable date, respectively, the 29th of August, 1843. The of all enemies in a physical struggle, because of sums agreed upon of £350 and £5 6s. 2d. were then the fearsomeness of his unnatural strength and the paid by the deceased, who subsequently died intescruelty of his purpose, so in a struggle at law, is a

tate in 1844. No memorial of these annuities had lunatic obtains a hearing, as though he were sane,

ever been enrolled in the High Court of Chancery. he is the most unpleasant black beast imaginable. At the time of the making of these proposals and of

As though he were sane!” Why should he be the assenting thereto, and acceptance thereof, and heard, as though he were sane?

of the granting of the said annuities, and of the The answer is simple: “ Every person of the age payment of the said sums by Thomas Lee, the intesof discretion is in presumption of law of sane tate, he was a lunatic and of usound mind, so as memory, unless the contrary is proved, and this to be incompetent to manage his affairs; but of this holds as well in civil cases as in criminal” (Elmer the society had not at that time any knowledge. on Lunacy, p. 1; Hawkin's Pleas of the Crown, The purchases of the annuities by Thomas Lee were p. 33; Hassard v. Smith, 6 Ir. Rep. Eq. 429). transactions in the ordinary course of the affairs

Hence it comes about that -- just from want of of human life, and the granting of the annuities to proof to the contrary the man who is mad is him in the manner and upon the terms before menpresumed to be sane, and, if sane, able, not only tioned were fair transactions and transactions of to walk about and do business like any other free good faith on the part of the society and in the man, but also to exercise the rights of citizenship ordinary course of their business; and at the time by going to law. He may sue and be sued like any of making the proposals, and at the time they were other individual, and courts of law are practically assented to and accepted by the society, and of the obliged to waste hours in listening to the gibbering granting of the annuities, and of the payment of rubbish of the man who is mad.

the two sums by him, he appeared to the society The Lunacy Act of 1890 (53 Vict. c. 5) contains to be of sound, though he was then, in fact, of such everytlıing that is necessary, if it is desired to rebut unsound mind, as aforesaid. The society first had the presumption of sanity and to prove the man notice of the unsoundness of mind of the grantee who is mad to be mad.

by letter, dated the 23d of September, 1843, from his A creditor of the alleged lunatic may present a solicitors. No commission of lunacy had ever been petition in lunacy (Ex parte Ogle, 15 Ves. 112). issued against the grantee. The society had never

If the petition succeeds, the lunatic will, of course, made any payments in respect of the annuities in no longer have the management of his own affairs. question, but had always been ready and willing to

But, clearly, it is not because I have some small pay any sum which might have become due under quarrel or dispute with one who turns out to be a them, and had never attempted to avoid the agreelunatic that I can take upon myself the burden of ments. The plaintiffs' points were that the said proving that the man is mad. No one, perhaps, has Thomas Lee, being of unsound mind, could not ever taken any steps in the matter, and I, like every- make a valid contract of the nature set forth in body else, must, therefore, presume in the mean- | the verdict; and, secondly, that the supposed conwhile that he is sane.

tracts were void by statute for want of enrollment. This is well illustrated by the important case of And, therefore, that the plaintiffs were entitled to Voulton v. Camroux (4 Ex. 17). The facts in that recover back the sims of money so paid. The case were agreed as follows (see 2 Ex. at p. 487): plaintiffs failed on both points in the Court of

Exchequer, and the Exchequer chamber refused to proved to be insane, just as he must be presumed to interfere.

be innocent till he is proved to be guilty. The question,” said Mr. Justice Pattison in the But, as the guilty must not be allowed to escape latter court, “is broadly raised whether the mere punishment, but his guilt must be brought home fact of unsoundness of mind, which was not appar- to him, so must the madness of the man who is mad ent, is sufficient to vacate a fair contract executed be brought home to him. And this duty rests by the grantee, by payment of the consideration upon them who have the best means for knowing money, and intended bona fide to be executed by the of the madness of the man who is mad. — Ernest A. grantor, by payment of the annuity," and this ques- Jelf, Barrister-at-Law, in Law Times. tion he answered in the negative.

The man who is mad has full rights of citizenship till, by some process or other, he has been DOUBLE LIABILITY FOR PERSONAL INproved mad.

JURY WHERE DEATH RESULTS. Hence arise several undesirable results.

Charles Dickens, describing the Court of Chancery in Bleak House, said: “I tried to listen, and

THE

HE opinions of the Supreme Court of Georgia looked about me; but there seemed to be no reality in Southern Bell Telephone and Telegraph Co. in the whole scene, except poor little Miss Flite, v. Cassin (August, 1900, 36 S. E. 881), are worthy the mad woman, standing on a bench and nodding of careful reading, as they contain very elaborate at it.” This is not the place to discuss the cause of discussions of the question of double liability on Miss Flite's madness and the whole series of ques- the part of a person guilty of a wrongful act causing tions suggested by her name; but we would remark personal injury, to another, where the death of the this: "Miss Flite, the mad woman," as "the most injured person results. It was held by a majority real” part of the scene, still survives in the law of the court that an action for the homicide of a courts on many a day. And why? Because the husband or father, alleged to have been occasioned law presumes such an one to be sane. Judges are by a physical injury, is not maintainable when it still obliged, by reason of this inevitable presump- appears that he, while in life, voluntarily settled tion, to give audience to the man who is mad. with the wrongdoer therefor, and discharged the The man who is mad wastes the judge's time and latter from all liability for the damages resulting his adversary's money, and wears away his life in a therefrom. The merits of the case before the useless struggle for he knows not what.

Georgia court seemed particularly to call for the And, alas! the man who is mad, but who is pre

decision which was made. It appeared that one sumed not to be so, does much more than waste George Cassin had been injured by the plaintiff in valuable time and money. The lunatic as a litigant error in the year 1892. “He instituted suit, and, is best known as litigating his defense in the crimi- while the action was pending, the company paid nal courts. We are not concerned to-day with the him $2,500, taking a receipt stating that it was 'in question as to what ought to constitute a good full settlement of my action against said company defense. The law, as is well known, asks whether now pending in the City Court of Atlanta, and also a man understood the nature and quality of his in full settlement of all and any claim for damages act; and medical men ask whether, even if he did on my part arising out of the injury received by understand these, there were not yet some uncon

me on or about May 6, 1892. More than five years ti ollable impulse which should form his excuse.

after the injury Cassin died, and his widow thereWe are interested for the moment rather in the upon brought suit against the company for his prevention than in the punishment of the crime.

homicide, alleging that his death was caused by the What is everybody's business is but too apt to be injury negligently inflicted by the company. She, nobody's business. In the town of Wisbech not too, died, and the sut was then continued in the long since a man murdered his mother. The son name of the children. The evidence, as to the cause had been known as “ Cracky Billy" for sometime of the death of Cassin, was conflicting, one physician before. On the evening of the night when the testifying that it was due to apoplexy, superinduced murder was done he seemed unusually strange, and by Cassin's habit of body, and great mental disinclined to violence; a neighbor, seeing this, sat tress, caused by domestic afflictions. Another phyup till a certain hour of night with mother and sician testified that it was caused by the blow from son, fearing some catastrophe; then he went to bed the fall of the telephone cable. The company and did nothing else. Screams of murder were offered in evidence the receipt given by Cassin in heard in the night; the neighbors persuaded them- settlement of the damages." selves that it was cats, turned on their sides and It is very well established by the decision in the went to sleep again. Then the son strangled his present case, as well as by a large number of authorimother.

ties cited, that a legislature has power to create a We believe the English lunacy law to be a good double liability, so that a right of action, as at law and a strong law.

common law, may exist in favor of the person A man must be presumed to be sane till he is I actually injured, and a cause of action may also

as

to

was

cannot recover.

arise in favor of the widow, next of kin or other as a bar, upon considerations of a public policy persons designated. In some of the States the com- encouraging compromises, which would be rendered mon-law action is made survivable by statute, so difficult, if not impossible, under the view conthat, after the death of the victim of a personal tended for by defendants in error. The contention injury, concurrent actions may be maintained, of the defendants in error means that, if a settlerespectively, in favor of the personal representa- njent takes place, the defendant may be called upon tives of the deceased and of the widow or next of to pay a second time in case of death. It means kin. The legislative power to sanction such double double damages. It means that the statute is to be liability is recognized in New York in Littlewood treated as penal, and not compensatory. It means v. llayor, etc., of New York (89 N. Y. 24). In that we are to lay at the door of our statute the the prevailing opinion in the Georgia case the reproach which was so often and so justly uttered question seems to be left doubtiul whether a double against the statutes of some of the other States, remedy would not exist if the deceased had not

which it said that it was actually actually released all claim during his lifetime. Two cheaper to kill than to hurt.' With us, hereafter, members of the court, in a dissenting opinion. it would mean the same thing, because for the death express the views that the fact “that a husband of the husband there would only be one recovery. or father who, in consequence of the negligence of For his injury and subsequent death there could be a telephone company, received personal injuries two recoveries. We have seen that statutes identifrom which he died, had, while in life, received cal with ours, in substance, having the same object from the company full compensation for the tort in view, and intended to give the same rights, have to himself, does not defeat the statutory right of all, or very nearly all, been construed to mean that the widow or children to bring an action against wliere the husband was injured, and subsequently the company for the homicide.”

settled for the injury, and thereaiter died from the The judicial discussion of the question makes it effect of the injury, there could be no recovery by evident that the real question to be decided in cases his wife for his death. She stands in his shoes. of this kind is the actual intention of the legisla- She recovers, if he could have recovered. She fails, ture. In Littlewood v. Mayor, etc. (supra) Judge if, for any reason, he would have failed. If he Rapallo very ably, and, as we think, conclusively, i consented to the injury, she cannot recover. If he argued that it was not the intention of the legisla- ratifies the injury by accepting compensation, she ture of New York in passing chapter 450, Laws of

If, by ordinary care, he could have 1847, to impose a double liability, but simply to avoided the injury, she cannot recover. If he give a right of action where a party having a good obtains judgment against the defendant, she cannot cause of action for a personal injury was prevented, recover. What would have estopped him estops by death resulting from such injury, from enforcing her. Not only would it be a hardship to require his right or omitted in his lifetime so to do. When

a defendant to pay double damages, but there are we consider that if the principle of double liability questions of public policy which cry out against be recognized, actions may be brought, as in the such a construction – a public policy so pronounced Georgia case above referred to, a number of years that it would require every reasonable doubt to be after the death of the injured person, and the great resolved in its favor. If the defendant is to pay opportunities for fraud and vexatious litigation the injured man full damages, and subsequently is thereby opened, we think the strong tendency of to pay the full value of his life, it becomes manithe courts to presume against double liability is fest that settlements are impossible. It would operclearly in the interest of justice. The following i ate to deprive the injured party of the power of language, from the prevailing opinion of the settling his claim or realizing anything from it in Supreme Court of Georgia, in Southern Bell Tele- his liietime. It would naturally, if not inevitably, phone and Telegraph Co. v. Cassin (supra), may be prevent settlements and procrastinate litigation until cited as offering strong reasons for entertaining it could be determined whether death would ensue such presumption:

from the injury. There could be little inducement “ The substantial grounds on which the courts to settle without suit, because whatever might be must hold that the husband's settlement bars the paid to the injured party would neither bar nor wife are based upon the fact that the wife's right | diminish the claim of his widow or children, should in the life of the husband is subordinate to what death ensue. The statute should not be strained he himself has done with his life; that, as his negli- to bring about such a result, nor should it be gence is imputable to her, so his ratification and reached, unless required by the plain language of condonation of the wrong done him estop her; that the enactment' (Littlewood v. Mayor, etc., 89 N. Y. his acceptance of payment ratifies the act, and 24, 42 Am. Rep. 276, 277)."— New York Law admits that he has been made whole of his injury; Journal. that thereafter the defendant can say he has not harmed the husband, but that payment, like pardon, relates back to the original act, and makes it as In the entire United States, 722 out of every milthough it had not been. The settlement operates lion of inhabitants are convicts.

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