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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 holdenf, 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 holdenh, 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 holden k, 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 commission and before notice of the bankruptcy; but the assignees cannot maintain trespass P; for officers and ministers of justice cannot be made trespassers by relation. In like manner the assignees may bring trover against the party suing 9, if proved a party to the conversion by giving bond to the sheriff, and receiving the money levied. Or if the party accompany the officer in levying the goods ", though the produce of the goods remain in the hands of the sheriff's broker. But assignees having once affirmed the acts of a person who wrongfully sold the property of bankrupt cannot afterwards maintain trover against such person. Where S. obtained bills of exchange from the defendant upon a fraudulent representation, that a security given by him to the defendant, (which was void,) was an ample security, and, on the next day, having resolved to stop payment, informed the defendant that he had repented of what he had done, and had sent express to stop the bills, and would return them, and three days afterwards committed an act of bankruptcy, after which he returned to the defendant all the bills, (except one which had been discounted,) and also two bank-notes, part of the proceeds of such discount, and the defendant delivered back the security, and afterwards a commission of bankruptcy issued against S., the assignees under which commission brought trover against the defendant for the bills and banknotes; held that the defendant was entitled to retain them t. Assignees may maintain trover for goods sold by a bankrupt after an act of bankruptcy, although they have demanded payment for them. The very taking of goods u from one who has no right to dispose of them is a conversion.
i Brandon v. Pate, 2 H. Bl. 368.
Bl. Rep. 65. Lazarus v. Waithman,
In what Manner the Assignees ought to sue.-In actions brought by the assignees, they may declare generally as assignees of the estate of A. a bankrupt, according to the form of the statute concerning bankrupts, without setting forth the act by which the trader became a bankrupt 4, or the proceedings under the commission y. A declaration on a scire facias?, by the assignees of a bankrupt, stating generally, that he became a bankrupt within the meaning of the statute, and that his goods and effects were duly assigned to the plaintiffs, is sufficient, without stating the trading, act of bankruptcy, &c. because a scire facias is an action. The assignees cannot make themselves parties to the record in any intermediate stage of the proceedings, but it must be immediately after judgment, and before any other proceeding has taken place, though an interlocutory judgment is sufficient for this purpose. Hence where plaintiff after judgment against him and writ of error allowed, becomes a bankrupt, the assignees ought to go on with the writ of error in the bankrupt's name, the writ of error being a proceeding after the judgment; and if the assignees, instead of adopting this method, sue out a sci. fa. in their own names to compel an assignment of errors, the court will quash it. If the assignees bring an action upon a contract made by the bankrupt before his bankruptcy, it is incumbent on them to sue as assignees, and so to state themselves in the declaration. But where the contract is made by the bankrupt after his bankruptcy b, and before he has obtained his certificate, as all his property is then vested in the assignees, he will be considered as their agent; and, in such case, it is not necessary that they should state themselves to be assignees in the declaration ; in like manner as where an executor brings an action on a contract made by himself respecting the goods of the testator, he need not name himself executor. In actions of assumpsit brought by the assignees on contracts made with the bankrupt, there are two ways in which the promises may be laid in the declaration ; lst, As having been made to the bankrupte before his bankruptcy; and, 2ndly, As having been made to the plaintiffs as assignees d. In an action brought by the assignees of a bankrupt®, the plaintiffs declared on an account stated with the bankrupt, whereon the defendant was found in arrear £ and being so in arrear, he promised to pay the plaintiffs as assignees. On the general issue pleaded, the evidence was, that the account was stated with the bankrupt, and the defendant promised to pay him, but there was not any evidence of a promise to the assignees. Lord Hardwicke, C. J. was of opinion, that the declaration was supported by the evidence, and the plaintiffs had a verdict. On a motion for a new trial, the court concurred in opinion with the chief justice: Lee, J. observing, that he was not aware of any case, where, on a declaration framed in this manner, it had been holden neces
o Potter v. Starkie, Exchr. M. T. 1807.
(See Report from Mr. Justice Williams's MS. note in Appendix.) cited 4 M. and S. 260. recognized in Price v. Helyar, 4 Bingh. 603. Balme v. Hutton, on error from Ex, in the
Exchequer Ch. 9 Bingh. 471. S. P. p Smith v. Milles, 1 T. R. 475. 9 Rush v. Baker, Bull. N. P. 41. Str.
96, and MSS. S. C. r Menham v. Edmonson, 1 Bos. and
s Brewer v. Sparrow, 7 B. and C. 310. t Gladstone v. Hadwen, 1 M. and S.
517. See farther Taylor v. Plumer,
3 M. and S. 562. u Hurst v. Gwennap, 2 Stark. N. P.C.
306. Lord Ellenborough, C. J. whose opinion was afterwards confirmed by
the court. x Pepys v. Low, Carth. 29. y Lawson v. Lamb, Lut. 274. z Winter v. Kretchman, 2 T. R. 45.
a Kretchman v. Beyer, 1 T. R. 463. d Fashion v. Dormet, 7 Vin. Abr. 140. b Evans v. Mann, Cowp. 569.
Tit. Creditor and Bankrupt, pl. 16. c Rig v. Wilmer, Str. 697. adjudged e Skinner v. Rebow, T. 8 and 9 G. 2. on demurrer to declaration.
B. R. MSS.
sary to prove an express promise to the assignees; because when the account was proved to be stated with the bankrupt, there was a sufficient consideration : a debt was created to the bankrupt which was transferred to the assignees by the statute; and this was evidence of a promise to the assignees so as to entitle them to this demand, standing in the place of the bankrupt. Assignees under a joint commission against two partners, may recover f in the same action debts due to the partners jointly and debts due to them separately; for being assignees of the two partners, they are assignees also of each. The assignees under a joint commission against A. and B. in suing on a separate contract entered into with A., may describe themselves generally as assignees of A. without noticing the name of B &. A. and B. were partners, A. committed an act of bankruptcy, and afterwards, but before the bankruptcy of B., the sheriff seized goods which had belonged to A. and B. under an execution against them: it was holden", that the assignees of A. and B. under a joint commission could not, suing as such, recover A.'s share of the property therein. A trader being seised of an estate for life with a power of appointment, remainder in default of appointment to himself in fee, after having committed an act of bankruptcy made an appointment in favour of J. S. it was holdenį, that all his interest having passed to his assignee under a bargain and sale executed by the commissioners, the appointment was void : and therefore that the assignee might maintain an ejectment.
Actions against Assignees.—By stat. 6 G. 4. c. 16. s. 44. “Every action brought against any person for any thing done in pursuance of this act shall be commenced within three calendar months next after the fact committed; and the defendant may plead the general issue and give this act and the special matter in evidence, and that the same was done by authority of this act; and if it shall appear so to have been done, or that such action was commenced after the time before limited for bringing the same, the jury shall find for the defendant: and if there be a verdict for the defendant, or if the plaintiff shall be nonsuited, or discontinue his action after appearance thereto, or if, upon demurrer, judgment shall be given against the plaintiff, the defendant shall recover double costs.” The true construction of the foregoing clause appears to be this: if the assignee does an act directed by the
f Graham v. Mulcaster, 4 Bingh. 115. h Hogg and another v. Bridges and g Stonehouse v. De Silva, 3 Campb. another, 8 Taunt. 200. 399.
i Doe d. Coleman v. Britain, 2 B. and