Freeman against Rosher
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1849 |
| Date | 01 January 1849 |
| Court | Court of the Queen's Bench |
English Reports Citation: 116 E.R. 1462
QUEEN'S BENCH
S. C. 18 L. J. Q. B. 340; 13 Jur. 881. Approved, Pidgeon v. Legge, 1857, 5 W. R. 650. Principle applied, Collett v. Foster, 1957, 2 H. & N. 361. Followed, O'Neill v. Bergin, 1876, Ir. R. 10 C. L. 452.
1462 FREEMAN V. BOSHER 13 Q. B.780. [780] freeman against kosher, 1849. After verdict for plaintiff, with leave reserved to move for a nonsuit or verdict for defendant, defendant died before a motion could be made. The rule nisi was afterwards obtained in his name. Held, that the rule might still be made absolute to enter the verdict for the defendant, it appearing that the executors authorized the motion; and that the judgment might be given on such verdict, under stat. 17 C. 2, c. 8, a. 1. A principal is not liable in trespass for the act of his agent unless he authorized it beforehand, or subsequently assented to it with knowledge of wbat had been done. Therefore, where, in an action of trespass against a landlord, it appeared that he gave a broker a warrant to distrain for rent, and the broker took away and sold a fixture, and paid the proceeds to the defendant, who received them without inquiry, but without knowledge that any thing irregular had been done, Held, that no such authority or assent appeared as would sustain the action. [S. C. 18 L. J. Q. B. 340; 13 Jur. 881. Approved, Pidgem v. Legge, 1857, 5 W. R. 650. Principle applied, Collett v. Foster, 1857, 2 H. & N. 361. Followed, O'Neill v. Bergin, 1876, Ir. R. 10 C. L. 452. Trespass for breaking and entering the plaintiff's dwelling house and yard, making a noise and disturbance, and staying and continuing, &c., prostrating and destroying divers buildings, &c. of plaintiff, to wit a workshop, a fowl-house, and a dust-place, and carrying away and converting the materials, &c. Pleas: 1. Not Guilty. Issue thereon. 2. As to breaking and entering, &c., and making a little uoiae, &c., and staying and continuing, &c. : that certain rent for the premises was in arrear from plaintiff to defendant, and defendant entered to distrain,. and took and impounded, &c., and removed the goods (not being replevied) after five days, and in so doing necessarily made a little noise, &c., and continued, &c.: verification. Replication. That plaintiff commenced his action and declared, not for the trespasses in the last plea mentioned, but for that defendant, at the times when, &c.,, on Another and different occasion, and for another and different purpose than the occasion and purpose in the last plea mentioned, broke and entered, &c., and made a, noise, &c.: and stayed, &c.: which trespasses newly assigned are other and different, &c.; verification. Plea to the new assignment: not guilty. Issue thereon. [781] On the trial, before Erie J., at the sittings in Middlesex after Michaelmas term, 1848, it appeared that the defendant had given a warrant to a broker to distrain, without any special instructions; and the broker, in distraining, had removed, among other things, a wooden shed, which was supported by brick walla, believing it to be legally removeable. It became a question, on the evidence, whether or not the shed was a fixture; and the learned Judge left this to the jury, explaining to them the law. It appeared that the broker had sold the materials of the shed, and paid over the proceeds to the defendant, who received them without knowledge of any suggested irregularity; nor did it appear that he had made any enquiry. The jury were of opinion, on the evidence, that the shed was a fixture; and a verdict was taken for the plaintiff upon the issues on not guilty, leave being reserved to move that a verdict might be entered for the defendant on two points, namely : that, the trespass in taking the fixture being merely aggravation of the trespass justified in the second plea, the plaintiff could not recover on the new assignment...
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...the tort committed by their agent is quite well established and this may be gleaned from the decision of Patteson J in Freeman v Rosher (1849) 13 QB 780 where he said at It is clear that a principal is not responsible for a trespass by an agent, unless he gave a prior authority or subsequen......