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1806. least, they have given their assent to the assignment; ToiiKiB for what act of assentcan be greater than the exercis%ertus ing the property over them, by exposing them to jjffiKt*.**." public sale ?. An unsuccessful attempt to sella term, ***• too, is a prejudice to the interest of the reversioner, and no person who is to be considered as a mere stranger can have aright to try experiments of that sort."

Lord Ellenborough, C. J. "This is an action by the landlord against the assignees of a bankrupt, charging them with a breach of covenant, to which as assignees they would be liable, in the non-payment of rent, and the non-repair of the premises. In this action, it is necessary to allege, that the assignees were ia possession in the usual manner, and on all of these allegations distinct issues are taken. First, that there is no assignment; 2dly, that they did not enter into the premises, and 3dly, that they were not possessed of the premises, for the residue of the term. As to the entry into and the possession of the premises, there is no evidence in proof that there was any actual entry, and the question is whether these premises under the circumstances can be considered as having come to the defendant by assignment. It has been long ago settled that assignees need not take what is called damnosa hareditas, and may have their election to take it or not; but after they have taken they cannot reject it. So in the case of Broome v. Robinson, it was merely decided that after a man had most artfully taken possession for a time to see if he coujd. let the premises to advantage, he should not be permitted to give them up; for there, it wanted the consent of the other party, for him to be allowed to make that experinmet; but, if there had been an agreement between the landlord and him, 1 should have thought that he would not have been liable. Here, the assignees being anxious to know whether the premises were

worth the while of the assignees to take them, they 18O6. made an experiment to ascertain their value. In this Tteheb case they are in titled to do so; for every thine; that „ "nuI

L n 1 101 1 111 RlCHiUDSOM

they can find to be of value they are bound to take and Kothsh

for the benefit of the bankrupt's creditors. They pub- "A*"

lish an advertisement to dispose of the term by public

auction, and do not even denominate themselves as the

proprietors. They mention nobody as beinn; proprietors

but say they will sell the term, or that the term

is to be sold. And so it would have been to be sold,

if there had been any bidder. Their only object was to

produce a bidding,and if the bidder bad come afterwards

to call upon them to make good the sale, they would,

at that instant, have taken the term upon themselves to

sell. They left rt in suspense, till the moment when a

purchaser came forward, whether they would sell; but,

no purchaser coming forward, there was no actual

sale. In fact this is no more than an experiment to

try the value, which, in some shape or other, they are

bound in duty to the creditors to make."

Grose, J. of the same opinion. "The question is, as his lordship has stated it, whether the premises came to the hands of the defendants by assignment; Whether they are possessed as assignees, and that is the issue. What is the evidence? The defendants are in a difficult and delicate situation, for if it turned out to be of no value, . and they entered, they would be liable to be sued as assignees. They, therefore, cause the things to be advertised for sales, without stating that they have any interest in them, for the purpose of ascertaining the value. As far as concerned them and the world, they were of no value at all, and therefore they did not enter into possession. The most that can be made of it would be to leave it to the jury, whether in fact they were in possession, but that would only have been in case they

NO. XXX11, N. S. X X

A

1806. entered or did some decisive act of ownership; but Turner they never actually entered into possession and I do versm not know novv ^0 8av t|)£lt i,eie ls evidence of their

RICHARDSON ,

•ndRoiBEB- being in possession taking that in the sense of the issue."

Lawrence, J. of the same opinion. "There must be some assent on the part of the assignees in order for the issue to be found in favour of the plaintiff'. And it is said that this advertisement is strong evidence of that assent, because they hold out to the world, that they are the owners of the estate. But the words of the advertisement do not bring us to that conclusion; they hold out only, that they can become the sellers; ,but it does not thereby necessarily follow that they bad then done that which is necessary to enable them to convey a title, It was necessary for that purpose that they should enter, but it does not follow that they had done so. Fenwiclc said he advised them to do this that they might not be charged with any thing, in case the premises should not turn out to be of any value."

Le Blanc, J. u The defendants stood in a difficult situation. The property was on lease to undertenants and they entered upon no part of the premises, nor did they, nor the superior landlord receive the rents. When the law says, that the assignees shall take upon themselves,in trust for the creditors, all the property of the bankrupt which is beneficial, the same law must •vest them with every authority to find out whether it is beneficial or not; and, where the assignees have done nothing more than is necessary for that purpose, it cannot put them in the situation of assignees with the burthen of an unbeneficial term. In thiscase they appear to have done that which is the best for the creditors, and the best method of ascertaining whether it will be a beneficial term or not. if we go the length of 6aying, that, by merely ordering the premises to be put

i

Up to sale in this manner, they have taken upon them- 1806.

selves the assignment, because they have exercised an TunNER act of ownership upon them ; we must go further and vmut say that the employing a surveyor to look over the pre- aiidTtoTM!TM raises will be an assent to the assignment, because that "AM* would be as much an act of ownership as this is."

Rule Discharge^1* t

Hilary Term, f !■•■'•«

Perks against Severn.Feb. 7th*

"Justly indebted/or goods sold and delivered," not stating ly PracMct. AfiR•shrnn, to whom, or for uhose use, is insufficient for an affidavit ^J^'0 bM to hold to bail.

j^SPINASSE oblained a rule to shew Cause, why the vj££

defendant should not be discharged out of custody S»vt*n. upon filing common bail, for a defectin the affidavit to hold tobail, which stated that "the defendant was indebted to the plaintiff in 54l. for goods sold and delivered 5 and as the acceptor of a bill of exchange:" Without saying by whom delivered, to whom, or for whose use.

Espikasse cited Mackenzie v. Mackenzie.$
Wigley, shewed cause.

The Coukt held this bad as being too general.

Rule Absolute.

* With respect to the argument used concerning the duty Upon the sail;, and the mode of avoiding it, it was observed that in case of a bankrupt's property there was no duty to government.

+ N.B. The two following cases were omitted last term bv an accidental mistake at the press,

J 1 Term Reports, 717- ,

1306.

The Kino against the Sheriff of Mj»DtESEx,t'n re
Flack against Beecroft.Feb. 7th.

STMo "roc'ed- to tariff may set aside an attachment upon payment ings. Attach- of costs, and putting in bail without swearing to merits, or nieiit. Sbenff. ffere JJ( no co//w/0( if n oe sworn that it is made an

the part of the bail to the sheriff.

£J0MYIJ shewed cause against a rule obtained by Smith to shew cause, why the proceedings upon Buooit. the attachment against the sheriff should not be set aside, upon payment of costs the bail having justified.

He stated, that there was a defect in the affidavit, it being made by the clerk to the attorney for the defendant, who swore only, that the application was made on the part of the bail to the sheriff; without either swearing to merits or, that there was no collusion. And he contended, that the application could only be made either by the sheriff or by the defendant himself. In the one case, it must be sworn that there is no collusion between the sheriff and the defendant: in the other, that he has merits. And he cited the King v. the Sheriff of Surrey.*

Smith, in support of the rule. " The application on the part of the bail to the sheriff is the same as if on the part of the sheriff, for it is only for their benefit that it can ever become necessary for him to stay the proceedings on the attachment. And, in the case of an application to stay proceedings on the bail-bond, which is a case perfectly similar in principle and in the object to which it is directed, namely, the relief of the bail to the sheriff, it is not necessary for the bail to swear to merits.

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