statute. An avowant is in the nature of a Plaintiff, and Vaughan Serjt. now shewed cause. It is quite sufficient, if it does not appear on the record that the testator had a rent for which his executor could not distrain. Turner v. Lee only decides, that the executors of the grantee of a rent-charge cannot distrain, not that the precise title of the testator must in all cases appear upon record. But what is there on this record to shew, that the testator was not seised of such a rent as would entitle his executor to distrain? The case of Meriton v. Gilbee (c), lately decided, entirely governs the present. Hullock, in reply, insisted on the principle, that a party acting under a statutable authority ought to bring himself within the terms of it, and urged, that in avowries under the statute of 8 Anne (d), (by which 8 Cro. Car. 471. 709. 2d ed. 8: c) 2 B. Moore, 48. 1819. MARTIN V. BURTON. 1 a lessor 1819. MARTIN V. BURTON. a lessor is enabled to distrain for arrears six calendar months after the expiration of the lease, provided the landlord's title and the tenant's possession continue,) the party always shews his case to fall within the statute. If he were not concluded by the late decision in Meriton v. Gilbee, he could argue with effect. DALLAS C.J. The point in question was decided in that case, and the Court sees no reason to alter its opinion. RICHARDSON J. This is an application to enter up a judgment non obstante veredicto; such an application cannot be entertained, unless it appears upon record that the party making cognisance has no title. The rest of the Court concurring, they Discharged the rule. June 22. the Plaintiff, an uncertifi HULL v. PICKERSGILL and Others. The house of TRESPASS for breaking and entering Plaintiff's dwelling-house, making a disturbance there, forcing his locks, and carrying away his goods. Pleas, first, not guilty. Second, that the several supposed trespasses were done by the authority of an act of parlia cated bankrupt, was broken open, and effects acquired by him subsequently to his bankruptcy taken by the Defendants, who had become his creditors since the bankruptcy, and did not know who were the assignees under the bankruptcy. The bankrupt having sued the Defendants in trespass, they obtained, after a rule for plea, a surrender of the assignees' interest in the effects seized: Held, that this was a ratification of the seizure, and that the Plaintiff could not recover. ment, 1819. HULL V. ment, made in the 13th year of Elizabeth (a), intituled, "An act touching orders for bankrupts." Third, that the supposed trespasses were done by virtue of an act of parliament made in the first year of James (b), in- PICKERSGILL. tituled, "An Act for the better relief of the creditors against such as shall become bankrupts." Replication to the second and third pleas, de injuria. On the trial before Dallas C. J., at the Middlesex sittings after Easter term last, it appeared, that the Plaintiff, an uncertificated bankrupt, convened in February last, the creditors to whom he had become indebted since his bankruptcy, and proposed to pay them five shillings in the pound, if they would release him from all demands, and forbear to enquire into the reason of his difficulties. Upon their hesitating to accede to this proposal, the Plaintiff told them he was an uncertificated bankrupt, and that if they would not take the 5s. in the pound, they would have nothing. Thereupon the Defendant Pickersgill, a creditor to the amount of 600%., arrested the Plaintiff, entered his house, and, with the assistance of the other Defendants, seized the goods for the general benefit of those interested. The creditors under the commission of bankruptcy issued against the Plaintiff, being informed of what had passed, and that an action had, in consequence, been commenced against the Defendants, empowered the assignees to surrender to the Defendants all the interest which the assignees had under the commission, in the goods in question. This surrender was made on the 4th of May, after a rule for a plea had been given. The order for the surrender was given on the 14th of April, and application on the subject was made to the solicitors of the assignees, before the present action was commenced. The jury found a verdict for the Defendants. Vaughan Serjt., on a former day, had obtained a rule (a) c. 7. (b) c. 15. VOL. I. U nisi 1819. HULL V. nisi to set aside this verdict, and enter a verdict for the Plaintiff, on the ground, that an uncertificated bankrupt, who acquired property after his bankruptcy, had a sufPICKERSGILL. ficient title in it to maintain trespass against all the 'world but his assignees; that the subsequent assent of the assignees, to the trespass in this case, came too late, after an action had been commenced; that, at all events, such ratification could only be made in actions of contract, as appeared by Lucena v. Crawford (a), and that the assignees themselves were only entitled to break the bankrupt's locks by virtue of the statute of 21 Jac. 1. (b), which did not apply to strangers. The bankrupt has Lens Serjt. now shewed cause. no property, even as against strangers, unless the assignees have given some evidence that they recognize his possession; but here there is no evidence whatever of their recognition, or assent. The Defendants, there fore, are relieved from shewing that there has been any ratification from the assignees in this case, it not having been proved that the Plaintiff had any title to bring the action; and in all the cases where the bankrupt has been protected, there has been an assent on the part of his assignees (c). But, at all events, here, is a full and distinct ratification by the assignees of all that has been done by the Defendants, so that the entry must be considered to have been made by the Defendants on the part of the assignees, who had an undisputed right to enter and take away property entirely their own. The statute of 21 Jac. 1. has no application whatever to the present case, and was not introductory of any new law, but passed, merely to remove doubts which had existed as to the powers of the assignees and commissioners. (a) 3 B. & P. 75. 2 N.R. 269. (c) Webb v. Fox. 7 T. R. 391. Fowler v. Down, 1 B. & P. 44. The The doctrine of ratification was applied to torts, long before it was applied to contracts, in the case of Lucena v. Crawford. Vaughan, in support of the rule. The legal effect of. the statutes of bankruptcy is not such as to put the uncertificated bankrupt, when contending with strangers, to the necessity of shewing, that he has the assent of the assignees to his possession of property. As against them, he has no property without their assent, but he has a sufficient title to maintain trespass against the rest of the world. Then, again, the assignees have no right to the bankrupt's future effects, unless his first property be insufficient. With respect to the doctrine of ratification, that may have some weight, where the thing ratified is done for the benefit of the ratifier, but if not, his subsequent agreement cannot purge the original wrong. In Lucena v. Crawford, the insurance was made for the Crown, and therefore availed for the benefit of the Crown afterwards. [Park J. The Dutch commissioners, in that case, had no notion they were insuring for the Crown.] If the Defendants had said, at the time, that they entered on the part of the assignees, it would have been no answer, after a subsequent ratification, to have said, that they had no communication with the assignees. But the fact was quite otherwise, and the seizure was never made for their benefit. If the Defendants had brought an action for being turned out of the house, could not the Plaintiff have pleaded his possession, and molliter manus imposuit? A defence always goes to the time of plea pleaded, and how can this, which arrives after the time for pleading, be any justification, when it is considered, that the entry was not made for the assignees. There is no authority directly in point; but, in Silk v. Osborne (a), it is laid 1819. HULL V. PICKERSGILL |