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statute, but does it erroneously, he is protected; but if he does the act as the result of his ownership of that which was the bankrupt's property, and not by the direction of the statute, that is not done in pursuance of the statute, and he is responsible for it." Per Bayley, J. delivering judgment of the court in Edge v. Parker, 8 B. and C. 701. recognizing Carruthers v. Payne, 5 Bingh. 270. Formerly when a dividend was declared, it was considered that a right of action against the assignees accrued to every creditor for his proportion k, and it was holden that assumpsit might be maintained against the assignees of a bankrupt by a creditor for his share of a dividend, under an order of the commissioners; and in such action the proceedings before the commissioners were conclusive evidence of the debt, and the assignees could not set off a debt due from the plaintiff
, for the sum proved must be taken to be the balance due; but now by stat. 6 G. 4. c. 16. s. 111. no action for any dividend shall be brought by any creditor who has proved under the commission, against the assignees of the estate of such bankrupt, for the amount of any
dividend declared by the commissioners; but in cases of refusal by the assignees to pay such dividend, the creditor entitled to the same may petition the Lord Chancellor, who may order payment thereof, with interest for the time that such dividend shall have been withheld, and the costs of the application.
VIII. Of Actions by the Bankrupt.
An uncertificated bankrupt has a special property in goods acquired by himself after his bankruptcy', and may maintain trover for them against strangers. So if an order for the delivery of goods m, belonging to A. but in the possession of B. be given by A. to an uncertificated bankrupt, in payment of a debt due from A. to the bankrupt after his bankruptcy, and B. refuses to deliver the goods, the bankrupt may maintain trover against him. In cases of this kind, however, the bankrupt can recover only where the assignees do not interfere », for the general assignment of personal property by the commissioners in the first instance passes all the future ac
k Brown v. Bullen, Doug. 407. per
Kenyon, C. J. 6 T. R. 549. S. P. 1 Webb v. Fox, 71, R. 391. m Fowler v. Down, 1 Bos. and Pul. 44.
n Kitchen v. Bartsch, 7 East. 53. See
Hayllar v. Sherwood, 2 Nev. & M. 401.
quired as well as present personal property, and a second assignment of personal property coming to the bankrupt is not necessary : consequently the superior title of the assignees must prevail where they come forward and assert it. By the 1 and 2 W. 4. c. 56. s. 25. the present and future personal estate of bankrupt vests in the assignees by virtue of their appointment without deed. See ante, p. 184. The insolvent debtor's act, 1 G. 4. c. 119. is different, for by the assignment under that act at the time of the petition the assignee takes such property only as the insolvent had at the time of the petition. Hepper v. Marshal, 2 Bingh. 372. An uncertificated bankrupt may maintain an action for work and labour done after his bankruptcy": So for work and labour, and materials found, incident and necessary to the labour, Silk v. Osborne, 1 Esp. N. P. C. 140. So for money lent and advanced, as it will be presumed that the money may have been earned by his labour. Evans v. Brown, 1 Esp. N. P. C. 170. Lord Ellenborough, C. J. speaking of Chippendale v. Tomlinson, and the cases which have been decided on its authority, said P, that the hardship of the case might perhaps have warped the opinion of the judges, when the evil might have been better remedied by statute, but now there was an inveterate practice of above twenty years in support of that series of cases. But where plaintiff, a furniture-broker and uncertificated bankrupt, was employed by defendant to remove his goods, in the course of which business he employed several men and vans, supplied packing-cases, repaired furniture, and provided materials for this purpose and other articles to a trifling amount; it was holden 4, that the debt which thereby accrued to plaintiff was not a debt in respect of personal labour merely, and that the assignees had a right to intervene and claim it. If the assignees of a bankrupt manufacturer employ him in carrying on the manufacture for the benefit of the estate, and pay him money from time to time, this is evidence of such a contract between him and his assignees as will enable him to recover from them a reasonable compensation for his work and labour".
By stat. 6 Geo. 4. c. 16. s. 13. “The petitioning creditor, before commission granted, shall make an affidavit before a master in chancery of the truth of his debt, and give bond to the chancellor in the penalty of 2001., to be conditioned for proving his debt, and the party to have committed an act of bankruptcy, and to proceed on the commission; but if such
o Chippendale v. Tomlinson, Co. B.L.
5th Edit. p. 431. p In Kitchen v. Bartsch, 7 East, 62.
q Crofton v. Poole, 1 B. & Ad. 568. r Coles v. Barrow, 4 Taunt. 754.
debt be not due, or no proof of an act of bankruptcy, and it shall also
appear that such commission was taken out fraudulently or maliciously; the chancellor may, upon petition, examine into the same, and order satisfaction to be made for the damages; and for the better recovery thereof, assign such bond to the parties petitioning, who may sue for the same in his name.” See stat. 1 and 2 W. 4. c. 56. s. 12. The assignment of the bond by the chancellor is conclusive evidence of the fraud or malice in an action on the bond; and it is not necessary to state in the declaration that the commission was fraudulently or maliciously sued out. See further on this point, Smithey v. Edmonson, 3 East's R. 22.
IX. Of the Pleadings.
By stat. 6 Geo. 4. c. 16 s. 121. Every bankrupt who shall have duly surrendered, and in all things conformed himself, shall be discharged from all debts due by him when he became bankrupt, and from all claims and demands proveable under the commission, in case he shall obtain a certificate. By this section the bankrupt is discharged not merely from the debt, but from all remedies for its recovery, in the case of a debt proveable under the commission.
By s. 126. Any bankrupt who shall, after his certificate shall have been allowed, be arrested, or have an action brought against him for any debt, claim, or demand, hereby made proveable under the commission, shall be discharged upon common bail; and may plead in general that the cause of action accrued before he became bankrupt, and may give this act and the special matter in evidence; and the certificate and the allowance thereof shall be sufficient evidence of the trading, bankruptcy, commission, and other proceedings precedent to the obtaining such certificate.
By s. 127. If any person who shall have been so discharged by such certificate, or who shall have compounded with his creditors, or who shall have been discharged (12) by an insol
a Davis v. Shapley, 1 B. & Ad. 54. Barrow v. Poile, 1 B. & Ad. 629.
(12) This section is retrospective, and is not confined to discharge by bankruptcy, composition, or insolvency, after the passing of this act. Elston v. Braddick, 2 Cr. & M. 435. 4 Tyr. 122.
vent act, shall become bankrupt, and have obtained such certificate, unless his estate shall produce (after all charges,) sufficient to pay every creditor under the commission fifteen shillings in the pound, such certificate shall only protect his person from arrest and imprisonment; but his future estate and effects, (except his tools of trade and necessary household furniture, and the wearing apparel of himself, his wife, and children,) shall vest in the assignees under the said commission, who shall be entitled to seize the same in like manner as they might have seized property of which such bankrupt was possessed at the issuing the commission.
The foregoing 127th section does not entitle a creditor to proceed against the bankrupt after a second certificate for a debt which he might have proved under the commission; and if the creditor brings an action for such debt, the certificateb will be a bar. Debt on bond—Plea, bankruptcy; The defendant had since the date of the bond been discharged under an insolvent act, but the bond had not been inserted in the schedule; a commission of bankrupt had afterwards issued against him under which he obtained his certificate before the day on which the stat. 6 G. 4. c. 16. received the royal assent, but his estate had not produced 158. in the pound. The court was of opinion', that there were not any words in the 127th section by which the right of a creditor, situated as the plaintiff was, to sue the bankrupt and recover a judgment, and have execution against his effects, was specifically and expressly taken away, or the effects of a bankrupt, situated as the defendant was, were specifically and expressly vested in his assignees; and consequently the certificate was no bar. They added, that these grounds of their judgment left the case of Robertson v. Score, wholly untouched.
It is sufficient for the defendant to pursue the words of the statute, and to aver that the cause of action accrued before he became a bankrupt, without averring that the defendant had conformed, according to the bankrupt statuted, or that the defendant became a bankrupt before the commencement of the suite. By a certificate obtained under a joint commission, separate as well as joint debts are discharged. In like manner by a certificate obtained under a separate commission, joint
b Robertson v. Score, 3 B. & Ad. 338. edit. p. 518. in which Paris v. Sal
recognized in Elston v. Braddick, keld, 2 Wils, 139, was over-ruled. Ex. Feb. 21st, 1834, 2 Mont. & Ayr. e Tower v. Cameron, 6 East, 413. 436 n. and ante p. 238.
Howard v. Poole, Str. 995. Dav. 431. c See Carew v. Edwards, 4 B. & Ad. S. C. Wickes v. Strahan, Str. 1157. 351.
S. P. Horsey's case, 3 P. Wms. 25. d Willan v. Giordani, Co. B. L 5th
debts as well as separate debts are dischargede. Formerly, indeed, doubts were entertained whether a certificate under a separate commission, against one partner, would not discharge the other partner; and, therefore, it was held necessary to provide against such discharge by stat. 10 Ann. c. 15. That statute is now repealed; but by stat. 6 Geo. 4. c. 15. 121. no certificate shall release or discharge any person who was partner with the bankrupt, at the time of his bankruptcy, or who was then jointly bound, or had made any joint contract with the bankrupt. This general plea of bankruptcy may be supported by evidence of a certificate allowed after bill filed, and before plea pleadedh; the cause of action having accrued before the bankruptcy; but the certificate cannot be given in evidence under the general issue, for the debt still exists, and as the certificate only operates as a special discharge from it under the statute, the defendant must avail himself of this discharge in the manner prescribed by the statutei. Where the bankrupt is sued for a cause of action accruing before his bankruptcy, and pending the suit and before trial obtains his certificate, he must pleadk it, puis darrein continuance; and if he neglects to do so, and judgment is obtained against him, he will not be permitted to plead his certificate to an action on such judgment. See new rule as to plea puis darrein continuance, ante, p. 138.
The certificate will operate as a dischargel of such debts only as are due at the time when the act of bankruptcy is committed ; and the foregoing remark as to the time when the certificate was obtained must be attended to. But if an action be commenced against a bankrupt after the bankruptcy, for a debt due before the bankruptcy, and a verdict found for the plaintiff, and afterwards the bankrupt obtains his certificate: the costs of such action, as well as the original debt, are proveable under the commission. Willet v. Pringle, 2 Bos. and Pul. N. R. 190. The costs bear relation to the original debt; hence where plaintiff before the bankruptcy of the defendant sued him for a debt, and went on with the suit after such bankruptcy, and had judgment, and defendant obtained his certificate, and afterwards brought a writ of error, which was non-prossed, and costs of non-pros in error awarded against him; it was holden, that the certificate discharged the defendant from these costs, Scott v. Ambrose, 3 M. and S. 326. Debts proveable under the
g Exp. Yale, 3 P. Wms. 24 n.
k Todd v. Maxfield, 6 B. and C. 105.