381 Territory v. Stears, 2 Mont., 326. .423, 426 Terry v. Mulvaney, 8 Or., 520.

590, 593

.643, 650

It

It will be proper to add a few illustrations to those given at the closeof the preceding article. The common law rule is well settled that, where an act done by an assumed agent is of such a kind that the law requires the agent's authority to be conferred in some particular manner, as by a writing, or by a sealed instrument, the act, when done without antecedent authority can, in general, only be ratified by the same sort of proceeding or in the same kind of mode as would be necessary, by the law, to confer a previous authority. Thus, whenever antecedent authority to do a certain act can only be conferred by a writing or a deed, such act, if unauthorized, can only be ratified by a writing or by an instrument under seal. This general common law rule is subject to one most important limitation. It applies only in those cases where the ratification would operate as an assent by the assumed principal; that is, where the ratification was either expressed by words, or was implied. from such acts as indicate assent merely without anything more. does not apply where the ratification operates by way of estoppel, where the assumed principal not merely indicates his assent, but does something which estops him from denying the authority of his assumed agent. This might happen when the ratification is implied from the principal's receiving and retaining the proceeds and benefits of the assumed agent's act after full knowledge of all the facts. The civil code leaves it very doubtful whether this latter most just and righteous rule of the common law is not abrogated. The whole subject of ratification is dealt with in five short sections. The first of these is a striking illustration of the concise mode of expression described in the preceding article, and reads as follows: "A ratification can be made only in the manner that would have been necessary to confer an original authority for the act ratified, or where an oral authorization would suffice, by accepting or retaining the benefit of the act with notice thereof."

'See editor's note, 1 Am. Lead. Cas. pp. 717-721.

2Civil Code, §§ 2,310-2,314

Ibed, §2,310. This whole section is certainly most careless in its mode of expression. Read strictly according to its grammatical construction, it says, "that where an oral author-

The sections of the code defining fraud, furnish another illustration of the uncertainty, ambiguity, and imperfection resulting from this extreme conciseness and brevity of statement, this attempt to condense several different, although related, doctrines within the limits of a single formula or proposition. Fraud is regarded from different points of view by law and by equity. In law, an actual intent to deceive, a knowledge of the falsity-the scienter-is an indispensable element of the conception. There is no constructive fraud" at law. In equity such actual intent to deceive and knowledge of the falsity are not always essential. Acting upon the principle of good faith, courts of equity have determined several independent species of either actual or constructive fraud, which would not be fraud at law.' Actual fraud both at law and in equity consists either in representations or in concealments. It is settled in equity as well as in law, that the intentional concealment of even a material fact known to a party, is not fraud, unless there was some duty, arising either out of his prior relations or from the circumstances of the transaction itself, resting upon said party to disclose. Mere concealment, with nothing else, is not fraud. The civil code draws no distinction between fraud at law and in equity; it is utterly silent upon and such distinction. Its language is universal, and ignores the existence of any difference between law and equity. In the title on contracts, in the chapter upon " Consent," it declares that fraud is either actual or constructive. It then defines "actual fraud," by a very abstract and concise mode of expression, in a section containing five subdivisions, and describing five distinct species of fraud.'

ization would suffice, a ratification can only be made by accepting or retaining the benefit of the act, after notice thereof; "--since the word only, by a strict grammatical construction, necessarily limits the second clause of the section, as well as the first. No such absurd conclusion, however, can for a moment be permitted by the courts. They would certainly hold that the second clause simply means that when an oral authorization would suffice, one of the modes of ratification may be by accepting or retaining the benefit of the act, after notice thereof." Of course, when an oral authority would suffice, the ratification may be by express verbal language, or by express written language, or by acts other than accepting or retaining the benefit of the act, according to the circumstances; and it cannot be possible that the legislature meant to change this common law rule. The first clause of the section may have abrogated the other branch of the common law doctrine concerning ratification by estoppel, mentioned in the text. There was no good reason for this alteration; on the coutrary, the plainest considerations of justice require that the entire common law doctrine should be retained. The section at least shows that a strictly literal interpretation of the civil code is not always possible.

4 Without attempting any description of these various species, I may be permittel to refer to my work on equity where they are fully described: see 2 Pomeroy on Eq., $3874, 875, 884 (it law), 855-888 (forms of actual fraud in equity); 922, 923 (nature and kinds of constructive frand in equity).

Without discussing this proposition I refer to 2 Pomeroy on Eq., §§901, 902 and cases cited.

Civil code, §1,571.

Ib., $1,572. I cannot refrain from making a few observations upon this section, although it is not my main purpose to criticise the actual rules of the code. In the first place, it may be noticed that the section wholly omits the most common every day form of fraud at law, namely, "the statement, as a fact, of that which is not true, by one who at the time knows it to be false." It is only by inference, that this most frequent form of legal fraud, which is constantly coming before the courts, can be embraced within the language of the first subdivision. In the second place, the third subdivision, if taken literally, must work a complete