having in their possession or custody any money, goods, wares, merchandises, or effects, belonging to any bankrupt, shall be endangered by reason of the payment or delivery thereof to the bankrupt or his order; provided such person or company had not, at the time of such delivery or payment, notice that such bankrupt had committed an act of bankruptcy. And by s. 85. if any accredited agent of any body corporate or public company shall have had notice of any act of bankruptcy, such body corporate shall be hereby deemed to have had such notice. By s. 86. no purchase from any bankrupt bona fide, and for valuable consideration, where the purchaser had notice at the time of an act of bankruptcy by such bankrupt committed, shall be impeached by reason thereof, unless the commission against such bankrupt shall have been sued out within twelve calendar months after such act of bankruptcy. By s. 87. no title to any real or personal estate sold under any commission, or under any order in bankruptcy, shall be impeached by the bankrupt, or any person claiming under him, in respect of any defect in the suing out of the commission, or in any of the proceedings under the same, unless the bankrupt shall have commenced proceedings to supersede the said commission, and duly prosecuted the same within twelve calendar months from the issuing thereof. By s. 108. no creditor having security for his debt, or having made any attachment in London, or any other place, by virtue of any custom there used, of the goods of the bankrupt, shall receive upon such security or attachment more than a rateable part of such debt; except in respect of any execution or extent served and levied, by seizure upon, or any mortgage or lien upon, any part of the property of such bankrupt before the bankruptcy; provided that no creditor, though for a valuable consideration, who shall sue out execution upon any judgment obtained by default, confession, or nil dicit, shall avail himself of such execution to the prejudice of other fair creditors, but shall be paid rateable with such creditors (17). This proviso limits the exception, and the (17) The stat. 1 W. 4. c. 7. s. 7. reciting the words printed in italics, and also, that by reason of such provision, plaintiffs had been and might be deterred from accepting a cognovit actionem, with stay of execution, whereby the expense of further proceedings in such action might have been and may be saved or diminished, for remedy thereof enacts, "that no judgment signed or execution issued after the passing of that act [11th March, 1831,] on a cognovit actionem exception applies only to cases falling within the first part of the section, viz. those of creditors having security. Per Ld. Tenterden, C. J. 6 B. and C. 484. Wymer v. Kemble. In this case the goods of the debtor had been seized under a f. fa. sued out upon a judgment of non sum informatus, and delivered to the creditor under a bill of sale by the sheriff; then a bankruptcy followed, and it was holden that he had ceased to be a creditor, having been paid by means of the execution before the bankruptcy. So where after seizure and before bankruptcy, the debtor pays the money to the sheriff's officer, the debt is thereby extinguished, and although the money is in the hands of the sheriff at the time of the bankruptcy, and paid over to the execution creditor afterwards, the assignees cannot recover. Morland v. Pellatt, 8 B. & C. 722. But where the sheriff had made a seizure before act of bankruptcy, but the goods remained in his hands unsold at the time of the bankruptcy, it was holden, that the sheriff was not justified in paying over to the creditor money received by him as the proceeds of the sale, after the bankruptcy. Notley v. Buck, 8 B. and C. 160. See further on this subject in re Washbourn, 8 B. and C. 444. VII. Of Actions which may be brought by the Assignees of a Bankrupt, and in what Manner they ought to sue. 1. Money had and received.—An action for money had and received will lie against a creditor of the bankrupta, who, a Kitchin v. Campbell, 3 Wils. 304. 2 Bl. Rep. 827. after declaration filed, or delivered, or judgment by default, confession or nil dicit, according to the practice of the court in any action commenced adversely, and not by collusion for the purpose of fraudulent preference shall be deemed within the foregoing provision." An execution sued out upon a final judgment, after judgment by nil dicit, falls within this proviso, which comprises all judgments by default, and cannot be restrained to judgments by default by the consent or the collusion of the parties; and the words obtained by default, confession, or nil dicit," apply to a judgment obtained before, as well as after, the passing of the act. A plaintiff in execution upon a judgment by confession ceases to be a creditor, having security for his debt within the 108th section of statute 6 G. 4. c. 16. when the goods seized under that execution are sold, even though an act of bankruptcy be committed before the return of the writ. † * Cuming v. Welsford, 4 M. & P. 238. + Higgins v. M'Adam, 3 Y. & J. 1. recognizing Wymer v. Kemble. after the act of bankruptcy, takes out execution against the goods of the bankrupt, and receives from the sheriff the money arising from the sale of the goods; for the law supposes the creditor to have received the same for the use of the assignees in whom the property of the goods is vested, and thence implies a promise to pay. So where a trader became a bankrupt by lying in prison two months (now 21 days) after an arrest, it was holden, that his assignees might maintain an action for money had and received against a person who, after the arrest, and before the expiration of the two months, having had notice that a commission would be sued out against the trader, sold his goods and paid him the produce. In cases of this kind, the assignees have an election to bring either trover or assumpsit. In trover they may recover the full value of the goods at the time they were taken, though the sale may not actually have produced more than half their worth: but in assumpsit, the assignees considering the party selling the goods as their agent, are entitled to recover only what was produced by the sale of the goods. Per Grose and Buller, Js. in King v. Leith, 2 T. R. 144, 145. If the assignees bring assumpsit they affirm the contract, and the defendant, if a creditor of the bankrupt, may set off his debt, Smith v. Hodson, 4 T. R. 211. But the assignees cannot affirm the act of the bankrupt as their agent in part, and avoid it as to the rest, Wilson v. Poulter, Str. 859. Brewer v. Sparrow, 7 B. & C. 313. per Bayley, J., S. P. By the law of England, if not contradicted by the laws of the country where the property may be, the commissioners may dispose of the personal property of the bankrupt resident here, although such property be in a foreign country. Hence where the defendant being resident in England, and a creditor of the bankrupt in England, after the assignment of the bankrupt's estate, and with full knowledge thereof, attached and afterwards received, by a remittance, money due to the bankrupt in Rhode Island in North America; it was holden, that the assignees might recover the same from the defendant, in an action for money had and received to their use. So where after an act of bankruptcy committed d, but before the assignment, a creditor of the bankrupt in England, and resident in England, with knowledge of the act of bankruptcy, made an affidavit of debt in England, by virtue of which he attached, and after the assignment received, money due to the bankrupt in one of the British planta b King v. Leith, 2 T. R. 141. c Hunter v. Potts, 4 T. R. 182. Phillips v. Hunter, 2 H. Bl. 402. d Sill v. Worswick, 1 H. Bl. 665. tions in America; it was holden, that the assignees might recover the same in an action for money had and received. A. after an act of bankruptcy committed by B., received the amount of a draft drawn by B. on his banker, in favour of A. for a bona fide debt. The plaintiffs, as assignees of B., brought an action against the banker for a larger sum of money belonging to the bankrupt, in which action the banker attempted to set off the before-mentioned sum, which he had paid to A.: but it appearing that the banker had paid the money to A. with full knowledge of the bankruptcy, the set-offe was disallowed. The plaintiffs then brought an action for money had and received against A. to recover the amount of the draft, but it was holden f, that the action would not lie; for, although the plaintiffs had at first an election whether they would bring the action against the banker, or A., yet having in the former action, against the banker, insisted that the money had not been paid on their account, and that it was void, they could not in the present action be permitted to contradict it, and insist that the payment was made on their account. Covenant. In covenant for rent on an indenture & brought by the assignees of the lessor (a bankrupt), the lessee cannot plead that the lessor nil habuit in tenementis: for the assignees succeed to all the rights of the bankrupt, and consequently may claim the benefit of that estoppel, which would have operated between the lessor and lessee. By indorsement of lease, reciting, that the lessee had purchased certain fixtures on the premises on condition of their being repurchased, it was agreed between the lessor and lessee, and the lessor covenanted, that on the expiration or other sooner determination of the term, he (the lessor) would take the fixtures at such price as they should be appraised at by two competent persons, one to be named by each side: the lessee became bankrupt, and his assignee declined the lease (which was delivered up), but required the fixtures to be repurchased; and brought covenant against the lessor for not appointing an appraiser: it was holden 1, that as by 6 G. 4. c. 16. s. 75. the bankrupt on delivering up the lease was discharged from all the covenants on his part, performance of the covenant in question could not be enforced by the assignee of the bankrupt against the lessor. For the remedies given to assignees for the recovery of rents by debt or distress, and of enforcing the observance of all covenants and agreements in respect of lands of which the commissioner has the power of disposition, e Vernon v. Hankey, 2 T. R. 113. f Vernon v. Hanson, 2 T. R. 287. g Parker v. Manning, 7 T. R. 537. Kearsey v. Carstairs, 2 B. & Ad. 716. under the 3 & 4 W. 4. c. 74. See the 67th section of that statute. Debt. The assignees of a bankrupt may bring an action of debt on the stat. 9 Ann. c. 14. against the winner fori money lost at play by the bankrupt before his bankruptcy. Tort.-Defendant, a leaseholder for a long term, put N. in possession under an agreement to grant a lease when N. should have paid a sum of money for the furniture, which he was to do by instalments in three years, in the mean time paying rent at certain days to defendant, subject to distress for non-payment. Defendant received rent from N., but omitted to pay the superior landlord, who distrained on N. for arrears due from defendant, N. having become bankrupt; it was holdenk, that the damage incurred by the distress was a cause of action on which his assignees might sue; for though a right of action for an injury to the person does not pass to assignees, yet an injury to bankrupt's personal property does. It appears to have been the intention of the legislature to give assignees all the remedies in respect of the property which they were entitled to under the former acts, and that they should have power (as they had under those acts) to sue upon contracts made with the bankrupt, and for injuries affecting his property, though not for mere personal wrongs, and such causes of action as would abate by his death. Hence assignees may maintain an action for unliquidated damages which have accrued before the bankruptcy by non-performance of a contract. So where B. before his bankruptcy hired a carriage of M. and let it to defendant, who sent it back to B. damaged, and C. repaired it with the assent of B. and after B.'s bankruptcy proved the amount of the repairs under B.'s commission; it was holden m, that B.'s assignees had a right of action against the defendant; but as it did not appear that B.'s estate had paid or was ever likely to pay any dividend, they were entitled to nominal damages only. Trover.—If after an act of bankruptcy, but before commission, a person sue out execution against the goods of the bankrupt, under which the sheriff makes a seizure, and then a commission issues, and afterwards the sheriff sells the goods, the assignees may maintain trover against the sheriff"; and so where the sheriff seizes, sells, and pays over the money before i Brandon v. Pate, 2 H. Bl. 368. Bl. Rep. 65. Lazarus v. Waithman, 5 B. M. 313. Carlisle v. Garland, 7 Bingh. 298. affirmed on error in Exch. Ch. 10 Bingh. 452. Dillon v. Langley, 2 B. & Ad. 151. |