Wilson and Another v Tumman and Fretson
| Jurisdiction | England & Wales |
| Judgment Date | 15 June 1843 |
| Date | 15 June 1843 |
| Court | Court of Common Pleas |
English Reports Citation: 134 E.R. 879
IN THE COURT OF COMMON PLEAS
S. C. 6 Scott, N. R. 894; 1 D. & L. 513; 12 L. J. C. P. 306. Applied, Ancona v. Marks, 1862, 7 H. & N. 695. See Brook v. Hook, 1871, L. R. 6 Ex. 96. Applied, Morris v. Salberg, 1889, 22 Q. B. D. 620. Discussed, Keighley v. Durant, [1901] A. C. 246; Connor v. Butler, [1902] 2 Ir. R. 576. Adopted, O'Keeffe v. Walsh, [1903] 2 Ir. R. 712.
[236] wilson and another v. tumman and feetson. June 15, 1843. [S. C. 6 Scott, N. R 894; 1 D. & L. 513; 12 L. J. C. P. 306. Applied, Ancona v. Marks, 1862, 7 H. & N. 695. See Brook v. Hook, 1871, L. E. 6 Ex. 96. Applied, Morris v. Salberg, 1889, 22 Q. B. D. 620. Discussed, Keighley v. Durant, [1901] A. C. 246; Connor v. Butler, [1902] 2 Ir. E. 576. Adopted, O'Kee/e v. Walsh, [1903] 2 Ir. B. 712.] Where A. does an act as agent for B., without any communication with C., C. cannot, by afterwards adopting that act, make A. his agent, and thereby incur any liability, or take any benefit, under the act of A. Trespass, de bonis asportatis. Plea, by each defendant separately, not guilty. At the trial before Parke B., at the last assizes for the county of York, the following facts appeared. In November 1842, the plaintiffs took possession of the goods in question, under a deed of assignment from Jeremiah New, to whom the goods had previously belonged, and in whose house they still were. On the 3d of December 1842, these goods were seized and taken away under some process directed to the sheriff in respect of a debt due from New to Tumman. Neither of the defendants authorized this seizure before, or at the time, it was made. Both the defendants were, on the same day, served with notice that the plaintiffs claimed the goods. On the 3d of December, the defendant Fretson, who was Tumman's attorney, gave a notice in writing to Mrs. Fearn,-to whose house the goods had been removed the day before,-in which he said, ' I am coming about the goods which were seised," and desired her not to part with the goods to any person except Tumman. On the 5th of December Fretson sent her a written indemnity for retaining them. On the 19th of January 1843, notice was given to the defendants that an action would be brought against them and the sheriff and his officers for the seizure. The person who served Tumman with the notice asked if he had any claim on the goods ; to which he answered " Yes, I have ; and a just claim, I consider." Upon this evidence the learned judge directed the jury, that as the order given by Fretson had not [237] been acted upon by any refusal on the part of Mrs Fearn to 880 WILSON V. TUMMAN 6 MAN. & G. 238. deliver the goods to the plaintiffs, the only question for their consideration was, whether the seizure on the 3d of December was made by order of the defendants or either of them. That an order to seize the goods was in this case necessary, to charge the defendants with the trespass ; that although the subsequent assent and ratification by B. of an act done by A., professing to act for and on account of B. is sufficient to make that act the act of B., by relation, here, the sheriff's officers acted as ministers of the law, without any intention to act as agents of the party suing out the process; that as to Fretson, the question of ratification did not arise, inasmuch as the seizure could not be for his benefit. The learned judge therefore asked the jury to find, whether the defendants, or either of them, gave any previous authority for making the seizure, and whether the defendant Tumman had authorized or had merely given a subsequent assent to a seizure. The jury found that neither of the defendants had originally authorized the seizure, but that Tumman had subsequently sanctioned and authorized such seizure. The learned judge directed the verdict to be entered for both of the defendants, reserving leave to the plaintiffs to move to enter a verdict for 21. 16s. against Tumman, if the court should be of...
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