Jean v. Spurrier

Alvey, J., delivered the opinion of the Court. This was an action of replevin instituted by the appellee against the appellant, and the latter having avowed the taking of the goods for rent in arrear, and given in evidence the distress proceeding, the only question raised by the. exception of the appellant is as to the validity of the distress, which was decided by the Court below to be illegal and void. The record presents no question as to the sufficiency of the pleading, nor as to any variance between the pleadings and proof. To the distress proceeding there are three objections taken by the appellee: 1st.

That it was not made under a proper warrant from the appellant; 2d. That it was made for a larger amount of rent than was really due at the time, and was therefore void; and 3d. That the affidavit was defective in not stating the amount of rent claimed to be due, in dollars and cents, as required by the Code, Article 53, section 8. 1. The first objection taken is founded upon the fact that the warrant to Robinson, the constable, was not signed by the appellant, as landlord, but was signed by Disney, the justice of the peace before whom the affidavit to the account of rent was made.

It is clearly shown, however, that the distress was made for and in the name of the appellant, as landlord, and the warrant itself directed the distress to be made to satisfy rent due the appellant, as per account, which was made ¹¹³ out in the name of, and sworn to by, the appellant. There was no mistake, therefore, in whose behalf the distress was made. It is clearly shown, moreover, that the appellant recognized, and in all respects treated, the distress as having been made by his authority, and as his act. The Code, Article 53, section 8, recognizes, in express terms, the right of the landlord to employ an agent to make the distress; and if Disney, who signed the warrant, was in fact the agent of the appellant, the warrant was sufficient authority to the constable, although not signed, in terms, as agent or for the landlord by name.

The mere omission of the proper designation of the right character in which the party acted, does not vitiate the warrant and render the distress void, as seems to be supposed by the appellee. The statute does not require the warrant to be signed by the landlord himself, nor is there any particular form prescribed in which it shall be signed by the agent. It was, therefore, a simple question whether Disney was authorized and acted as the agent of the landlord in signing the warrant. His appending the “J. P. to his name is not inconsistent with the fact that he may have been acting as agent.

Those letters may have been placed there from force of habit in signing his name officially, or from fancy, or some notion that an official designation imparted to the warrant some peculiar force and effect. He clearly had no authority, in his character of justice of the peace, to issue the warrant, and it is but fair to him to suppose that he did not issue it without some direction and authority, and although he may have attempted to give to it the import of an official act, that attempt was simply without effect of any kind. But suppose there was an absence of any precedent authority to either Disney or Robinson to make the distress; seeing that it was made in the name and behalf of the appellant, his subsequent ratification and adoption of it would be all sufficient, provided the statutory forms were complied with. Such ratification would be effectual, not only as between the ¹¹⁴ appellant and the party assuming to act as agent, but as between the appellant and third persons; and such ratification, the distress being in the name of the appellant, would relate back to the time of the inception of the transaction, and have a complete retroactive efficacy; or, as the maxim expresses it, omnis rcitihabitio retrotrahitur.

Story’s Ag., secs. 244, 245. Such, said Lord Chief Justice Tindall, in Wilson vs. Tumman, 6 Man. & Grang., 236, “was the precise distinction taken in the Year-Book, 7 Hen., 4,fo. 35 — that if the bailiff took the heriot, claiming property in it himself, the subsequent agreement of the lord would .not amount to a ratification of his authority, as bailiff at the time; but if he took it at the time, as bailiff of the lord, the subsequent ratification by the lord made him bailiff at the time.” And in an anonymous case in Godbolt’s Reports, 109, Anderson, C. J., said, “ If one distrain as bailiff) although in truth he is not bailiff, if, after, he in whose right he doth it, doth assent to it, he shall not be punished as a trespasser, for that assent shall have relation unto the time of the distress taken.” It was upon the