The defendant was a public officer at the time he received the pledge, which is the subject of the action, and was at the same time in the discharge of the duties of such office. There was, however, no act of congress, no authority of any department, or functionary of the government, which authorized the defendant to demand and receive such pledge. As between the pledgor and the defendant, there was no consideration for the pledge, and consequently no lawful right to retain it from the true owners.
A. authorizes B. to employ for him a clerk, at a given •salary, for the term of three years, • B. makes the contract precisely as directed, except that he demands and receives of the employee the deposit in his (B.’s) hands, of a sum of money to secure the performance of the contract, on the part of the clerk. In the case supposed, the agent has no manner *364of interest in the contract. He has not exacted the pledge for his own benefit, nor has it been given to him with any reference to the acquisition of any interest in it by him. Without the assent of A., the principal, B. has no right to detain the thing pledged. The taking of it was wholly unauthorized, and can be made valid only through the adoption of it by the principal. If an action should be brought by the pledgor, before ratification by the principal, I can discover no possible defense the agent could make to it. When an agent assumes to act in behalf of another, so that the one with whom he deals knows of the agency, he is charged with the duty of ascertaining the nature and extent of the powers conferred upon the agent, and if he is correctly informed, and yet consents to conditions which the agent has no right to impose, he is in the attitude of consenting to the performance of the unauthorized act, knowing that it can be made valid only by the ratification of the principal. Is there not in such a case an implied agreement that before the act done shall be repudiated, a reasonable time shall be allowed to the agent to procure the ratification of the act by the principal ? If within such reasonable time there is an adoption by the principal, either expressly or impliedly, it relates back to the time of doing the unauthorized act, and relieves the agent from personal liability. But in every case where an agent acts without authority, he becomes liable personally to the one .with whom he deals, upon the contract, if there is one, or for the damages resulting from the unauthorized act, and no act of the principal can relieve the agent from this liability. (Rossiter v. Rossiter, 8 Wend. 494. Palmer v. Stephens, 1 Denio, 471.) So that in the case-supposed, the deposit being unauthorized, the agent, when sued for it, must establish a right in himself at the time it was received, or he can not retain it. This principle can work no hardship to either principal, or the agent. Hot to the principal, because he neither asked nor expected the *365deposit, an$ withdrawing it does him no injury; not to the agent, because he knew he had no authority from the principal to receive it, and he did not expect any personal benefit from it; so that if he is compelled to surrender it, he is in no way injuriously affected. In the case before us, the defendant knew he had no authority to demand the pledge, and the pledgor is presumed to know that there was no act of congress authorizing the defendant to demand it, but he could not know whether or not the war department or the Provost Marshal General, might not have instructed the defendant to require it, or reject the men offered to be mustered in. He yielded therefore to a condition imposed on him, without color of authority, and in ignorance of the want of authority, if it could have been conferred by any department of the government other than the congress.
The act of congress which creates the office of provost marshal was passed in 1863, and is chapter 75 of the laws of that year. By sections 5 and 26, it is provided that the district provost marshals shall be under the direction and subject to the orders of the Provost Marshal General, and it .is made his duty, with the approval of the Secretary of War, to make rules and regulations for the government of his subordinates, to communicate to them all orders of the President in reférence to calling out the national forces. By the 7th section of said act, it is made the duty of the provost marshals to arrest deserters, and send them to the nearest military commander or post, to arrest and confine spies, and obey all lawful orders or regulations of the Provost Marshal General, and such as may be prescribed by law concerning the enrollment and calling into service the national forces. The said act further provides for a board of enrollment in each district, whose duty it is to enroll every able bodied man in their district, who is liable to military duty.
Those liable to duty are to be divided into classes, and the President, when additional troops are required, is author*366ized to assign to each district the number of ¿men it is required to furnish, and a draft is then made for the number called for’. Those drafted may furnish substitutes, and bounties were offered to the' volunteers then in service if they would re-enlist. The only conditions which the enrolling board, of which the district provost ■ marshal is the president, can demand compliance with, are: 1st. That the drafted man or volunteer is of the required age; and 2d. Able bodied. There is no power vested in any officer or department of the government, to demand of the recruit, or of any one in his behalf, compliance with any other condition. And if other conditions could be imposed, the effect must be to lessen the number of men who would otherwise be enlisted, to the great detriment of the public service. It seems to me, therefore, that in the absence of legislative authority, no one was authorized to impose conditions upon the volunteers, not specifically imposed by congress, and that this want of authority is presumed to have been known to the depositor, as well as to the defendant, as every man is presumed to know what the law of the land is. If, under these circumstances, there was no one who had the power to ratify the act of the defendant, (as I shall attempt hereafter to show,) unless it was congress itself, it would follow that had there been an agreement to wait until the defendant1 could inform his superiors at Washington, and until they should either- expressly or impliedly ratify the act, it would not have availed the defendant ; because, 1st. It does not appear that the attention of congress was called to the case; and, 2d. If it was,, and they had ratified it, it would not relieve the defendant from his liability to the depositor.
A public agent, although he contracts in his own name, is not liable on contracts made by him for the government, while he acts within the scope of his authority, unless he agrees to become personally responsible. (Paley’s Agency, 376, and notes. Story on Agency, § 302, &c.) But if such agent *367exceeds his authority, or acts without it, he is personally liable, as is the agent of a private person under the like circumstances, (Story’s Agency, § 307. Elliott v. Swartout, 10 Peters, 138. Bond v. Hoyt, 13 id. 263.) If a ratification of the act of the defendant could be of service to him, it remains to inquire who was authorized to ratify it, and whether it has been ratified by the department or officer of the government legally authorized to ratify and adopt the act of the defendant. I shall not repeat the reasons which induced me to believe that neither the war department nor the Provost Marshal General had
power to authorize the requirement of a deposit by or on behalf of a. drafted man, or volunteers, or those who desired to have substitutes mustered into the service. It was held in The State v. The City of Buffalo, (2 Hill, 434,) that the unauthorized act of a public agent may be ratified, with the same force- and effect as the like act of a private agent. In that case the keeper of the state arsenal at Buffalo had loaned to the city arms belonging to the state, and had taken back a bond from the city, conditioned for the return of such arms when called for. The loan was wholly unauthorized; yet the court held that it was such an act as might be adopted and ratified, and that the bringing of the suit was evidence of such adoption. It was said by the learned judge, in declaring the opinion of the court, that there was no officer authorized to loan the arms, 'but that as the loan was made by a person who was not a" public officer, but a mere private agent of the commissary general, the act might be ratified and the bond sustained. As to what officer or department of the government was competent to ratify the act, no opinion was expressed.
In Delafield v. The State of Illinois, (26 Wend. 192,) the. state sued to recover back bonds issued, by it, and which had been sold by. the agents of the state, in violation of the act of the legislature authorizing the sale. The plaintiff in error, who was the defendant in the court below, sought to protect his title *368by a ratification of the act of the commissioners who made the sale, by the governor and some other of the state officers, but the Court of Errors held that the officers named had not the power to ratify the act—that the legislature alone could do it. The argument of the court is that the power of the commissioners is set forth in the act authorizing the sale of the bonds, and every person dealing with them must be presumed to know the nature and extent of their powers, and they deal with such agents at the hazard of there being a want of authority-to bind the principal, or a departure from it, and the act of the agent is void for the excess, as are the unauthorized acts of private agents; and as the authority in that case was conferred by the' legislature, the act of the agent could only he ratified by it, and hence there could be no ratification by the state officers.
In a case between the same parties, (2 Hill, 159,) the same principles were applied, and in that case it was suggested that the test of the right to ratify the unauthorized act of a public agent is whether the defendant or officers by whom the ratification is claimed could have conferred on the agent the power to do the act in question. Applying this test, it was clear in that case that the state officers could not ratify the sale.
Applying the same test to this case, it is equally clear that no officer or department of the government, except congress, could have authorized the defendant to exact the deposit. ITeither could either or any of them ratify it when done. As no foundation is laid in the evidence on which to rest a claim of ratification by congress, I shall not stop and consider it, especially as, if a ratification could be established, it would not shield the defendant from liability in this suit.
I can not agree with the appellant’s counsel that the deposit was void as taken “ colore officii,” or as being against “public policy.” Heither can I agree with the learned judge who tried the case that if the act was unauthorized by law *369tlie parties were therefore “in pari delicto,” and the plaintiff can not for that reason recover.' This principle only applies when the act done is prohibited bylaw, oris “malum in se.” (Chitty on Cont. 658-9.) There are exceptions to the rule, even in these cases, but it is unnecessary to refer to .them, hi either can I agree with the learned judge that the agreement is executed, and for that reason the plaintiff can not recover, what his assignor may have delivered to the defendant under the illegal contract. The agreement was executory, and could not be said to be executed until the right of redemption is foreclosed. As well might the pawn broker insist that he could hold the pawn, upon the ground of the contract being executed. In both cases the property is left in pursuance of a contract which is in one sense executed, when the pawn or pledge is delivered, on terms agreed upon between the parties, but it is not executed in the only sense in which the term is used in the law when the party is estopped from asserting a claim to the property pawned or pledged.
[Onondaga General Term, January 2, 1867.I am of opinion that the pledge was wholly without consideration, and that the plaintiff may recover the property pledged, and the judgment , should therefore be reversed and a new trial ordered; costs to abide the event.
Bacon, Mullin and Foster, Justices.]