1806. TURNIR versus least, they have given their assent to the assignment; for what act of assent can be greater than the exercising the property over them, by exposing them to RICHARDSON and ROTHER- public sale?. An unsuccessful attempt to sell a term, too, is a prejudice to the interest of the reversioner, and no person who is to be considered as a mere stran, ger can have a right to try experiments of that sort." BAM. 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 in 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 hæreditas, 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 could 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, I should have thought that he would not have been liable. Here, the assignees being anxious to know whether the premises were 1806. TURNER versus RICHARDSON HAM. worth the while of the assignees to take them, they made an experiment to ascertain their value. In this case they are intitled to do so; for every thing that they can find to be of value they are bound to take and ROTHENfor the benefit of the bankrupt's creditors. They publish an advertisement to dispose of the term by public auction, and do not even denominate themselves as the proprietors. They mention nobody as being 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 had 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 it 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. XXXII. N. S. X x 1806. entered or did some decisive act of ownership; but TURNER they never actually entered into possession and I do not know how to say, that here is evidence of their and ROTHER being in possession taking that in the sense of the issue." versus RICHARDSON AM, 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 had 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. Fenwick 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." 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 can not put them in the situation of assignees with the burthen of an unbeneficial term. In this case 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 saying, that, by merely ordering the premises to be put 1806. TURNER versus RICHARDSON up to sale in this manner, they have taken upon themselves the assignment, because they have exercised an act of ownership upon them; we must go further and say that the employing a surveyor to look over the pre- and ROTHER mises will be an assent to the assignment, because that would be as much an act of ownership as this is." RULE DISCHARGED. HAM. HILARY TERM.† PERKS against SEVERN.-Feb. 7the "Justly indebted for goods sold and delivered," not stating by Practice. Affi whom, to whom, or for whose use, is insufficient for an affidavit davit to hold to hold to bail. ESPINASSE obtained a rule to shew cause, why the defendant should not be discharged out of custody upon filing common bail, for a defect in the affidavit to hold to bail, which stated that "the defendant was indebted to the plaintiff in 541. for goods sold and delivered; and as the acceptor of a bill of exchange:" without saying by whom delivered, to whom, or for whose use. ESPINASSE cited Mackenzie v. Mackenzie. The COURT held this bad as being too general. *With respect to the argument used concerning the duty upon the sale, 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 by an accidental mistake at the press, 1 Term Reports, 717. to bail. PERKS versus SEVERN. 1806. Practice. Bail. Stayofproceedings. Attachment. Sheriff. FLACK versus The KING against the SHERIFF of MIDDLESEX, in re Bail to the sheriff may set aside an attachment upon payment COMYN shewed cause against a rule obtained by SMITH to shew cause, why the proceedings upon BEECROFT. 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. * 7 T. Rep. 239. |