consummated. Any one, except a lunatic, imbecile, or child of tender years, may be an agent for another. It is said by an eminent author and jurist, that "it is by no means necessary for a person to be sui juris, or capable of acting in his or her own right in order to qualify himself or herself to act for others. Thus for example, monks, infants, femes covert, persons attainted, outlawed or excommunicated, villains and aliens, may be agents for others": Story's Agency, pars. 6, 7, 9. So, a slave, who is homo non civilis, a person who is but little above a mere brute in legal rights, may act as the agent of his owner or his hirer: Powell v. The State, 27 Ala. 51; Stanley v. Nelson, 28 Ala. 514. It was then, certainly not unlawful, or against the public policy of the nation for Kent, Payne & Co. to keep their cotton, and keep it safely, during the late rebellion. It is the undoubted law of agency, that a person may do through another what he could do himself in reference to his own business and his own property; because the agent is but the principal acting in another name. The thing done by the agent is, in law, done by the principal. This is axiomatic and fundamental. It needs no authorities to support it. Qui facit per alium, facit, per se: Broom's Max., marg.; 1 Pars. Con., 5th ed. p. 39, et seq.; Story's Agency, par. 440. And to this it may be added, that an agent dealing with the property of his principal, must confine his acts to the limit of his powers; otherwise, the principal will not be bound; 1 Pars. Cont. 41, 42, 5th ed.; Powell v. Henry, 27 Ala. 612; Potts v. McCoy, et al., 20 Ala. 578; Allen v. Ogden, 1 W. C. C. 174. And it is also the duty of one dealing with an agent to know what his powers are and the extent of his authority; Van Eppes v. Smith, 21 Ala. 317; Owings v. Hull, 9 Pet. 608. Then, the agency to receive the delivery of the cotton from Browder, in compliance with the order, was not illegal. If it went beyond that it was void. And those who dealt with Singleton were bound to know this as they were bound to know the law.

The judgment of the Court below is affirmed.

A PRINCIPAL MAY RATIFY AN AGENT'S ACTS BY ACCEPTING THE BENEFITS OF SUCH ACTS

DEMSEY V. CHAMBERS

154 Mass. 330 (1891) :

Tort, to recover for the breaking of a plate-glass window in plaintiff's building by the negligence of one McCullock. Judgment for plaintiff. Plaintiff ordered coal of defendant. McCullock, without authority, delivered the coal in behalf of the defendant, and in so doing carelessly

broke the window. Defendant, with full knowledge of McCullock's act, presented a bill for the coal to plaintiff and demanded payment.

HOLMES, J. This is an action of tort to recover damages for the breaking of a plate-glass window. The glass was broken by the negligence of one McCullock, while delivering some coal which had been ordered of the defendant by the plaintiff. It is found as a fact that McCullock was not the defendant's servant when he broke the window, but that the "delivery of the coal by McCullock was ratified by the defendant, and that such ratification made McCullock in law the agent and servant of the defendant in the delivery of the coal." On this finding, the court ruled, "that the defendant, by his ratification of the delivery of the coal by McCullock, became responsible for his negligence in the delivery of the coal." The defendant excepted to this ruling, and to nothing else. We must assume that the finding was warranted by the evidence, a majority of the court being of the opinion that the bill of exceptions does not purport to set forth all the evidence on which the finding was made. Therefore, the only question before us is as to the correctness of the ruling just stated.

If we were contriving a new code to-day, we might hesitate, to say that a man could make himself a party to a bare tort, in any case, merely by assenting to it after it had been committed. But we are not at liberty to refuse to carry out to its consequences any principle which we believe to have been part of the common law, simply because the grounds of policy on which it must be justified seem to us to be hard to find, and probably to have belonged to a different state of society.

It is hard to explain why a master is liable to the extent that he is for the negligent acts of one who at the time really is his servant, acting within the general scope of his employment. Probably master and servant are "fained to be all one person," by a fiction which is an echo of the patria potestas and of the English frankpledge. Byington v. Simpson, 134 Mass. 169, 170. Fitz. Abr. Corone, pl. 428. Possibly the doctrine of ratification is another aspect of the same tradition. The requirement that the act should be done in the name of the ratifying party looks that way. New England Dredging Co. v. Rockport Granite Co., 149 Mass. 381; Fuller and Trimwell's case, 2 Leon. 215, 216; Sext. Dec. 5, 12; De Reg. Jur., Reg. 9; D. 43, 26, 13; D. 43, 16, 1, paragraph 14, gloss. See also cases next cited.

The earliest instances of liability by way of ratification in the English law, so far as we have noticed, were where a man retained property acquired through the wrongful act of another. Y. B. 30 Ed. L. 128 (Rolls ed.); 38 Lib. Ass. 223, pl. 9; s. c. 38 Ed. 111. 18, Engettement de Garde. See Plowd. 8 ad fin., 27, 31; Bract. fol. 158 b, 159 a, 171 b; 12 Ed. IV.

9 pl. 23. But in these cases the defendants' assent was treated as relating back to the original act, and at an early date the doctrine of elation was carried so far as to hold that, where a trespass would have been justified if it had been done by the authority by which it purported to have been done, a subsequent ratification might justify it also. Y. B. 7 Hen. IV, 34, pl. 1. This decision is qualified in Fitz. Abr. Bayllye, pl. 4, and doubted in Bro. Abr. Trespass, pl. 86; but it has been followed or approved so continuously, and in so many later cases, that it would be hard to deny that the common law was as there stated by Chief Justice Gascoigne. Godbolt, 109, 110, pl. 129; s. c. 2 Leon. 196, pl. 246; Hull v. Pickersgill, 1 Brod. & Bing. 282; Juskett v. Drummond, 10 B. & C. 153, 157; Buron v. Denman, 2 Exch. 167, 188; Secretary of State in Council of India v. Kamachee Boye Sahaba, 13 Moore, P. C. 22, 86; Cheetham v. Mayor of Manchester, L. R. 10 C. P. 249; Wiggins v. United States, 3 Ct. of Cl. 412.

If we assume that an alleged principal, by adopting an act which was unlawful when done, can make it lawful, it follows that he adopts it at his peril, and is liable if it should turn out that his previous command would not have justified the act. It never has been doubted that a man's subsequent agreement to a trespass done in his name and for his benefit amounts to a command, so far as to make him answerable. The ratihabitio mandato comparatur of the Roman lawyers, and the earlier cases (D. 46, 3, 12, paragraph 4; D. 43, 16, 1, paragraph 14; Y. B. 30 Ed. 1, 128) has been changed to the dogma aequiparatur ever since the days of Lord Coke. 4 Inst. 317. See Bro. Abr. Trespass, pl. 113; Co. Lit. 207 a; Wingate's Maxims, 124; Com. Dig. Trespass, C. 1; Eastern Counties Railway v. Broom, 6 Exch. 314, 326, 327; and cases hereafter cited.

Doubts have been expressed, which we need not consider, whether this doctrine should be applied to the case of a bare personal tort. Adams v. Freeman, 9 Johns. 117, 118; Anderson and Warberton, JJ., in Bishop v. Montague, Cro. Eliz. 824. If a man assaulted another in the street out of his own head, it would seem rather strong to say that, if he merely called himself my servant, and I afterwards assented, without more, our mere words would make me a party to the assault, although in such cases the canon law excommunicated the principal if the assault was upon a clerk. Sext. Dec. 5, 11, 23. Perhaps the application of the doctrine would be avoided on the ground that the facts did not show an act done for the defendant's benefit. Wilson v. Barker, 1 Nev. & Man. 409; s.c. 4 B. & Ad. 614, et seq.; Smith v. Lozo, 42 Mich. 6. As in other cases it has been on the ground that they did not amount to such a ratification as was necessary. Tucker v. Jerris, 75 Me. 184; Hude v. Cooper, 26 Vt. 552.

But the language generally used by judges and text-writers, and such decisions as we have been able to find, is broad enough to cover a case like the present when the ratification is established. Perley v. Georgetown, 7 Gray, 464; Bishop v. Montague, Cro. Eliz. 824; Saunderson v. Baker, 2 Bl. 832; s.c. 3 Wils. 309; Barker v. Braham, 2 Bl. 866, 868; s.c. 3 Wils. 368; Badkin v. Powell, Cowper, 476, 479; Wilson v. Tumman, 6 Man. & G. 236, 242; Lewis v. Read, 13 M. & W. 834; Buron v. Denman, 2 Exch. 167, 188; Bird v. Brown, 4 Exch. 786, 799; Eastern Counties Railway v. Broom, 6 Exch. 314, 326, 327; Rowe v. Birkenhead, Lancashire & Cheshire Junction Railway, 7 Exch. 36, 41; Ancona v. Marks, 7 H. &. N. 686, 695; Condit v. Baldwin, 21 N. Y. 219, 225; Exum v. Brister, 35 Miss. 391; Galveston, Harrisburg, & San Antonio Railway v. Donahoe, 56 Texas, 162; Murray v. Lovejoy, 2 Cliff. 191, 195; see Lovejoy v. Murray, 3 Wall. 1, 9; Story on Agency, paragraphs 455, 456.

The question remains whether the ratification is established, as we understand the bill of exceptions, McCullock took on himself to deliver the defendant's coal for his benefit and as his servant, and the defendant afterwards assented to McCullock's assumption. The ratification was not directed specifically to McCullock's trespass, and that act was not for the defendant's benefit if taken by itself, but it was so connected with 'McCullock's employment that the defendant would have been liable as master if McCullock really had been his servant when delivering the coal. We have found hardly anything in the books dealing with the precise case, but we are of the opinion that consistency with the whole course of authority requires us to hold that the defendant's ratification of the employment established the relation of master and servant from the beginning, with all its incidents, including the anomalous liability for his negligent acts. See Coomes v. Houghton, 102 Mass. 211, 213, 214; Cooley, Torts, 128, 129; the ratification goes to the relation and established it ab initio. The relation existing, the master is answerable for torts which he has not ratified specifically, just as he is for those which he has not commanded, and as he may be for those which he has expressly forbidden. In Gibson's case, Lane, 90, it was agreed that, if strangers as servants to Gibson, but without his precedent appointment, had seized goods by color of his office, and afterwards had misused the goods, and Gibson ratified the seizure, he thereby became a trespasser ab initio, although not privy to the misusing which made him so. And this proposition is stated as law in Com. Dig. Trespass, C. 1; Elder v. Bemis, 2 Met. 599, 605. In Coomes v. Houghton, 102 Mass. 211, the alleged servant did not profess to act as servant to the defendant, and the decision was that a subsequent payment for his work by the defendant

would not make him one. For these reasons, in the opinion of a majority of the court, the exceptions must be overruled.

Exceptions overruled.

LEGAL EFFECTS OF RATIFICATION

GRANT V. BEARD

50 N. H. 129 (1870)

A father directs plaintiff to make repairs on two wagons which he said belonged to his sons. Later the sons ratified the act of the father and paid a part of the bill.

Among other things the jury were further instructed that, if they found that the defendants did not authorize their father to make the contract as their agent, but afterwards assented to what had been done, their assent would not make them liable in this action unless they owned the wagons at the time they were repaired, or received some benefit from the repairs. To this last instruction the plaintiff excepted.

The plaintiff requested the following. instruction: "If the jury find that the father procured the credit as the agent, either actual or assumed, of the defendants, and the credit was really given to them, then the subsequent ratification by the defendants will bind them, even though they may not have received the benefit of the credit."

The instruction was not given, and the plaintiff excepted. Verdict for the defendants.

Motion to set aside the verdict.

FOSTER, J. The ratification, upon full knowledge of all the circumstances of the case, of an act done by cne who assumes to be an agent, is equivalent to a prior authority. By such ratification the party will be bound as fully, to all intents and purposes, as if he had originally given express authority or direction concerning the act.

A parol contract may be ratified by an express parol recognition of the act, or by conduct implying acquiescence, or by silence when the party, in good faith, ought to speak. And so the principal may be estopped to deny the agent's original authority. Story on Agency, § 239;, Metcalf on Contracts, 112; Hatch v. Taylor, 10 N. H. 538; Despatch Line v. Bellamy Manf. Co., 12 H. H. 232; Davis v. School District, 44 N. H. 399; Warren v. Wentworth, 45 N. H. 564; Forsyth v. Day, 46 Me. 194; Ohio & Mississippi R. Co. v. Middleton, 20 Ill. 629.

Such ratification relates back to and incorporates the original contract or transaction, so that, as between the parties, their rights and interests are to be considered as arising at the time of the original act,