Opinion
June Term, 1859.
Where a party, having the money of a father in his hands for a fair and honest purpose, paid it to his son, fraudulently to assist him in absconding, the mere fact that, in a settlement of accounts between the father and the assistant, the former allowed the latter's bill for the money thus applied, does not amount to such a ratification as to subject the father.
To subject a party for a tort by force of the maxim omnis ratihabitio, c., it must appear that the act ratified, was of a nature to benefit the party sanctioning it.
CASE, tried before HEATH, J., at the last Term of Columbus Superior Court.
Kelly, for the plaintiff.
Graham, J. H. Bryan, and Strange, for the defendant.
The plaintiff declared in two counts, one at common law, and the other under the statute for removing a debtor.
It was in evidence that the plaintiff resided in the county of Robeson, and that D. W. Rogers, a son of the defendant, was also a resident in that county, and indebted to the plaintiff in the sum of $ _____, and that while so indebted, he went to Wilmington and was there arrested upon a charge of forgery; that the defendant, upon being informed that D. W. Rogers was confined in jail upon this charge, and also on several debts, the writs having been served while he was in jail, sent one Calvin J. Rogers to Wilmington to obtain his son's release from jail, and executed to him a power of attorney for the purpose, and directed him, if he succeeded in getting his son out of jail, to bring him to him; that when he started on this trip, the defendant furnished him with some money with which he was to settle the debts on which the said D. W. had been arrested; that he (the witness) accordingly went to Wilmington and compromised and settled the debts for which D. W. Rogers was in custody; that he did not see Daniel until he was out of jail; that they bought tickets at the depot at the Wilmington and Manchester Rail-road office for Whitesville, which is the station at which persons going to Lumberton, in Robeson county, leave the road; that while they were in the cars between Wilmington and Whitesville, he told Daniel what instructions he had received from his father in relation to his bringing him back, to which Daniel said he could not bear to see his father, and could not go back; that it was arranged between himself and Daniel that the latter should go to some point in South Carolina, and wait for his trunk, which the witness was to send; that, not having spent all the money that the defendant furnished to him, he let the said Daniel have the remainder, $125, as he said he only had $5; that Daniel at first had insisted on going back to Lumberton, but witness told him he had been advised by counsel in Wilmington that he had better not go to Lumberton; that at Whitesville the witness left the train and went on to Lumberton, leaving Daniel on board, intending to go beyond the limits of the State, and had not been seen or heard of in the State since that time. This witness further swore that when he returned to the defendant without his son, he complained that his instructions had not been followed, and seemed a good deal distressed; that in a settlement which he had with the defendant some time after the transaction spoken of, he had an item for the $125 which he had given to Daniel, which was allowed by the defendant without objection.
His Honor instructed the jury that if the defendant did nothing more than, in the settlement with Calvin J. Rogers, to pay or allow the said sum of $125, which Calvin had given to Daniel W. Rogers, then, if Calvin did aid and assist the debtor to leave the State with intent to defraud his creditors, the defendant was not liable for such acts of Calvin.
Plaintiff excepted to the charge. There was a verdict for the defendant. Judgment in his favor and appeal by the plaintiff.
When this case was before the Court at December Term, 1855, (see 3 Jones' Rep. 90,) the main question considered and decided was, whether the debtor could be regarded as having been removed from the county of Robeson, within the meaning of the statute. The suit was then against Calvin J. Rogers as well as the present defendant, but after the new trial, which was then granted, a nolle prosequi was entered as to Calvin J. Rogers, and he was used as a witness for the purpose of endeavoring to show the liability of the present defendant. The question now is, whether the facts stated by him, prove, or tend to prove, that the defendant, in any manner, aided or assisted the debtor (who was his son) to remove from the county of his residence and leave the State. Upon that question we concur with his Honor in the Court below, in thinking that they did not. Whatever aid and assistance was given to the debtor was by the witness alone, for it is manifest that what he did, was not within the scope of his instructions, as agent of the defendant, in procuring the release of his son from the jail in Wilmington. The only thing done by the defendant, which has the least semblance of aiding and assisting the debtor to flee from the State, was the allowance of the item of $125, charged by Calvin J. Rogers, for the money furnished by him to the debtor, out of the sum with which he had been entrusted by the defendant, to settle the debts for which the debtor was detained in prison. To make the defendant liable for this, would be stretching the maxim omnis ratihabitio retro trahitur et mandato equiparatur, beyond its legitimate effect. The extent of this maxim, when applied to torts, is thus stated by Lord COKE: "He that receiveth a trespasser, and 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 subseqent amounteth to a commandment; for in that, omnis ratihabitio retro trahitur et mandato equiparatur, 4 Inst. 317; Broom's Legal Maxims 383, (50 Law Lib. 241). In the present case, whatever wrong was done by Calvin J. Rogers, in assisting the debtor to leave the State, was not done for the use or benefit of the defendant, and his subsequent ratification, (if it can be so considered) of the payment of the money by Calvin to his son, cannot make him a tort-feasor by relation. The judgment of the Court below was right, and must be affirmed.
PER CURIAM, Judgment affirmed.