There remains but one further phase of the matter for consideration. What are the doctrines to be applied as between the principal and outsiders who were not directly involved in the transaction with the agent? Should the law, in favor of such outsiders, impute to the principal knowledge that his agent possesses, though the agent exceeded his authority and the principal's ratification was in ignorance of material facts? Such knowledge, as we have seen, is not imputed to the principal in favor of the third party who dealt with the agent; but such third party had no sufficient reason for supposing that the agent would inform his principal as to the facts, and he had an opportunity to protect himself. It is not necessarily so as to outsiders, who may not know or have the chance to know that the agent exceeded his instructions or even that an agent existed.

The question may arise in various ways. Suppose A, acting in the name of P, buys property of Z, A having knowledge that it had been obtained fraudulently from X. Later P, in ignorance of this defect, approves the deal, receives the property, and pays the price. Three questions may arise: 1. Can X recover the property or its value from P? 2. Can P repudiate the purchase and recover the price from Z? 3. Can P hold A responsible in damages? The answer to the first seems to be in the affirmative. P is not regarded as a bona fide purchaser as against X, the knowledge of A being for this purpose imputed to P. 30 But in this case the second and third questions must also be answered in the affirmative. The knowledge of A will not be imputed to P in favor of the agent and the third party. There has been no ratification. Were the first question to be answered in the negative, possibly the second and third should also be so answered: not because in such case the knowledge of A would be imputed to P, but because knowledge of the fact would then be immaterial to P. The decision that P is not a bona fide purchaser and did not get good title as against X is not at all the same as holding that P has ratified. It is not that P has ratified the contract of purchase, but that he will not now be allowed to retain the proceeds of such a contract as against an equally innocent prior lienor. It may be correct to say that in these cases the law imputes to the principal the knowledge of his

30. In the case of The Distilled Spirits, 11 Wall. 356, one B, acting as agent of H, bought liquors, B knowing that the liquors had been taken from a bonded warehouse by fraud. The court held that B's knowledge was to be imputed to H, that H was, therefore, not a bona fide purchaser, and that the liquors in H's possession were forfeited to the government. It is reasonable to suppose that B exceeded his authority in buying liquors to which good title could not be obtained, although this does not appear in the report. See also Russell v Peavy, 131 Ala. 563, apparently supporting the doctrine of the text.

agent, but it is not correct to say that there has been a ratification. It is fair to impute the knowledge to the principal in favor of the prior claimant, for it will not have the effect of holding the principal to the unauthorized and disadvantageous contract or transaction, though it may have the effect of causing him a loss if his vendor and his agent are irresponsible. The agent has been party to a fraud on another while acting in the course of his employment and for the principal's benefit, and in such case the general doctrines of agency should hold the principal irrespective of knowledge and irrespective of ratification. If the principal in such case insists on retaining the property after he learns of the lien or claim of the third party, he puts himself practically in the position of claiming the benefits and repudiating the burdens. This he is never allowed to do. It remains true, however, that the reason he is not a bona fide purchaser is that notice is imputed to him.

This doctrine should not be applied in favor of bona fide purchasers of goods that have been sold by an agent who had neither apparent ownership nor apparent authority to sell on the terms he made, where the principal has not himself acted so as to create an estoppel. The principal, even though in ignorance of the facts he received the proceeds, may repudiate the sale and reclaim the goods from the possessor, whoever he may be. In this case the fact of which the principal was ignorant is not the existence of a lien or trust or other equity in favor of another, but is the existence of an act or representation of the agent. Knowledge of such a fact is not to be imputed to the principal in any case. The innocent purchaser's title, in the absence of actual authority in the agent and in the absence of an estoppel against the principal because of his own conduct, depends upon ratification. There has been no ratification. The principal is as innocent as the purchaser and his claim is prior in point of time. The principal is not attempting to retain the benefits while repudiating the burdens, but is repudiating the whole transaction.

It thus appears that whether between principal and agent, principal and third party, or principal and outsiders, whether the principal is suing or being sued, a ratification is never to be based upon the doctrine of imputed notice, although in one case knowledge of extrinsic facts may be imputed to the principal even in the absence of any ratification. The doctrine of ratification and the doctrine of imputed notice have no connection. Ratification requires actual knowledge of all material facts, and there is no exception. Arthur L. Corbin.

NEW HAVEN, CONN.

A MAN AND HIS NAME.

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From the days of the Hebrews to the present day, the name has been regarded as a man's most characteristic possession and as that which differentiates him from all other persons and enables his fellowmen to know him. It might seem, at first sight, that a man's right to use it is indefeasable in all cases, and it is usually held that the very use of it shows an intent not to deceive. But even this peculiar possession cannot be used, so as to palm off one man's goods as those of another, and the possession of a name the same as or similar to that of another tradesman ✦ may impose a peculiar responsibility upon one to see that he does not deceive the public and commit a fraud upon his neighbor. The use of one's own name may be one of those accumulated resemblances which amount to dressing up goods." One man cannot have exclusive right to the use of his name, as against another person

1. Interesting magazine articles on the subject are found in 8 Alb. L. J. IOI and 8 Alb. L. J. 155, 24 Sol. J., 605, 627, 647, 660. Hembold v. Hembold. 53 How. Pr. 453.

2. Lewis v. Klapproth, 11 V. L. R. 214; Parsons v. Gillespie, 17 N. S. W. Rep. Eq. 227; Johnson v. Parr, Russ. Eq. Dec. 98.

3. Goodyear v. Goodyear, 45 Off. Gaz. 122 (Sup. Ct.).

4. An early case (1824) is Sykes v. Sykes, 3 B. & C. 541. See Christie v ̧ Christie, 42 L. J. Ch. 261, 544; Baker v. Baker, 78 Off. Gaz. 1427; Baker v. Baker, 87 Fed. 209; Allegrettiv. Allegretti, 177 Ill. 129; Canada Pub. Co. v. Gage, 11 Ont. A. R. 402 on app. 11 Can. S. C. R. 306; Garrett v. Garrett, 79 Off. Gaz. 1681; Croft v. Day, 7 Beav. 84.

5. Holloway v. Holloway, 13 Beav. 209; Taylor v. Taylor, 23 Eng. L. & Eq. R. 281.

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of the same name, unless the latter's use is calculated to deceive and some contract relation, or other estoppel, has deprived the latter of what would be otherwise his right. If the name is honestly used,' it may be hurtful to the trade of another which has begun earlier than the trade of the user of the name, and yet that hurt will be damnum absque injuria. The tradesman is "no more liable for the incidental damage he may do a rival in trade than he would be for injury to his neighbor's property, by the smoke issuing from his chimney." Without fraud or express agreement, any one may use his name as he will, for qui jure suo utitur nullum damnum facit. He must not, of course, resort to any artifice calculated to mislead as to the identity of the business, or article produced, 10 and thus work injury, beyond what results from the mere similarity of names. It has been held that the courts will not presume anything in favor of the person demanding relief from the competition of a man bearing the same name.11

"The manner of using the name is all that would be enjoined, not the simple use of it, for every man has the absolute right to use his own name in his business, even though he may thereby interfere with or injure the business of another person bearing the same name, provided he does not resort to any artifice, or contrivance, for the purpose of producing the impression that the establishments are identical, or do anything calculated to mislead."1 "Neither 18 authority nor reason are in support of the doctrine that the fair honest use of a name can be enjoined, when it is

6. Hegeman v. Hegeman, 8 Daly 1; Gilman v. Hunnewell, 122 Mass. 139; Wolfe v. Burke, 7 Lansing 151; Caswell v. Hazard, 121 N. Y. 481, 50 Hun 230; Landreth v. Landreth, 29 Off. Gaz. 1131; Scott v. Scott, 58 N. Y. Super, Ct. 380; Marshall v. Pinkham, 52 Wis. 572; De Long v. De Long, 39 N. Y. Supp. 903, 74 Off. Gaz. 809, 811; Chickering v. Chickering, 120 Fed. 69; Richmond v. Richmond, 52 Off. Gaz. 306.

7. Higgins v. Higgins, 144 N. Y. 462.

8. Brown v. Meyer, (Sup. Ct.) 55 Off. Gaz. 287.

9. Knoedler v. Glaenzer, 47 Fed. 465, 55 Fed. 895.

10. Wolmershausen v. Wolmershausen, (1892) W. N. 87; Newman v. Newman, cited in 9 Ch. D. 560; Peck v. Peck, 113 Fed. 291; Chivers v. Chivers, 17 R. P. C. 420; Royal Co. v. Royal, 122 Fed. 337; Russia Cement Co. v. Le Page, 44 Off. Gaz. 823, 51 Fed. 941.

11. Cutter v. Gudebrod, 55 N. Y. Supp. 298. See Dewar v. Dewar, 17 R. P. C. 341 (Scotch). See Hazleton v. Hazleton, 137 Ill. 231, 142 Ill. 494.

12. Meneeley v. Meneeley, 1 Hun 367, 62 N. Y. 427; England v. N. Y. Pub. Co., 8 Daly 375; Employer's Corp. v. Employer's Co., 24 Abb. N. C. 368. Allegretti v. Keller, 85 Fed. 643; Rogers v. Simpson, 54 Conn. 527. 13. Rogers v. Rogers, 53 Conn. 121.

used in the ordinary course of business, in the way and manner in which other manufacturers of similar goods are accustomed to use their own name in the preparation for sale or sale of goods." "Equity will direct how a man should use his name, in his purpose to denote his individuality. He will not be allowed to so use his name as to work an injury to another, having the same name, nor to perpetrate a fraud upon the public." 14 Let us take up the cases in which the tradesman has been allowed to use his own name in spite of the fact that a rival had the same name. One Burgess 15 was allowed in England to sell "Burgess' Essence of Anchovies," which name was rightfully used by the plaintiff, but not to say "late of 107 Strand," which was the plaintiff's address, by whom the defendant had formerly been employed as a clerk. "Dewar's Whisky" was allowed to be sold as such,16 especially since the defendant also used the distinctive word "Scotsman" with his own. So an English chemist, named Swift, secured a statement from the court that he might rightly make Swift's Specific. J. Milbourn, a former partner in the firm of J. Milbourn & Co., was permitted, after dissolution of the firm, to open business next door to the old shop under his own name. John Turton had been a steel manufacturer, took his sons into partnership, under the firm style of John Turton & Sons, and was not restrained, though sued by Thomas Turton & Sons, who had been in the same business for many years. 1o Richter was employed by the plaintiff for eight years to conduct concerts, and then made a contract with another manager, who advertised Richter Concerts. 20 The court refused to protect the plaintiff, as there was no proof that the term had become disassociated from Richter. S. Chivers & Son, who made Chivers' Jelly,21 had no remedy against S. Chivers & Co., who made Cardiff Jelly at the town of that name. The fact that the plaintiff was the only manufacturer of that name, prior

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14. Baker v. Baker, 78 Off. Gaz. 1421; Melachrino v. Melachrino, 4 R. P. C. 215; Stuart v. Stuart, 85 Fed. 778, 91 Fed. 243.

15. Burgess v. Burgess, 17 Eng. L. & Eq. 257. 16. Dewar v. Dewar, 17 R. P. C. 341 (Scotch).

17. Swift Re, 8 R. P. C. 352.

18. Bond v. Milbourn, 20 W. R. 197.

19. Turton v. Turton, 42 Ch. D. 128. So a man named Lazenby was allowed to use his name in partnership title; Lazenby v. White, 41 L. J. Ch. 354.

20. Franke v. Chappell, 57 L. T. N. S. 141.

21. Chivers v. Chivers, 17 R. P. C. 420.