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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; 1st, As having been made to the bankrupt before his bankruptcy; and, 2ndly, As having been made to the plaintiffs as assignees.

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In an action brought by the assignees of a bankrupt, the plaintiff's 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 necessary 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. The plaintiffs, in their original writ, described themselves as assignees of A.', and also as assignees of B., there not being any joint commission against the two, and declared in several counts for goods sold and delivered by both the bankrupts, and also goods sold by each of the bankrupts. A verdict was found for the plaintiffs, and the damages were assessed severally on the separate counts. On a motion in arrest of judgment, the court were of opinion that the assignees might recover as much as the bankrupts themselves might jointly have recovered; therefore as the damages were assessed severally, they might enter up their judgment on the count for the joint-demand. Agreeably to this determination, where the plaintiff's sued as

f Rig v. Wilmer, Str. 697. adjudged
on demurrer to declaration.
g Fashion v. Dormet, 7 Vin. Abr. 140.
Tit. Creditor and Bankrupt, pl. 16.
h Skinner v. Rebow, T. 8 and 9 G. 2.
BR. MSS.

i Hancock v. Haywood, T. R. 433.

recognized by Lord Ellenborough, C. J. in De Cosson v. Vaughan, 10 East, 65.

k Streatfield v. Halliday, 3 T. R. 779. See Scott v. Franklin, 15 East, 428. Ray v. Davies, 8 Taunt. 134.

assignees of A. and B., and also as assignees of C., for a joint demand due to all the bankrupts, the declaration was bolden good on motion in arrest of judgment. Assignees under a joint commission against two partners, may recover 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 holden, 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.

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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 rext 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 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

1 Graham v. Mulcaster, 4 Bingh.115. m Stonehouse v. De Silva, 3 Camp. 399.

n Hogg and another v. Bridges and another, 8 Taunton, 200.

o Doe d. Coleman v. Britain, 2 B. and A. 93.

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, 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', 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 acquired 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

p Brown v. Bullen, Doug. 407. per
Kenyon, C. J. 6 T. R. 549. S. P.
q Webb v. Fox, 7 T. R. 391.

r Fowler v. Down, 1 Bos. and Pul. 44. s Kitchen v. Bartsch, 7 East's R. 53.

prevail where they come forward and assert it. The insol. vent 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. To an action on a promissory note, and for money lent, the defendant pleaded that the plaintiff was an uncertificated bankrupt, whose effects had been duly assigned by the commissioners under a general assignment, comprehending in terms the future as well as present personal property of the plaintiff, and that the assignees had required the defendant to pay to them the money claimed by the plaintiff. Replication, that the causes of action had accrued after the plaintiff became bankrupt, and that the defendant, at the time of the contract, treated with the plaintiff as a person capable of receiving credit in that behalf, and that the commissioners had not at any time since assigned to the assignees, or any other person, the promissory note or money mentioned to be lent. On demurrer, it was holden, that the replication was bad for the reasons before mentioned. 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, 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. 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

t Kitchen v. Bartsch, 7 East's R. 53.
u Chippendale v. Tomlinson, Co. B. L.
5th Edit. p. 431.

x In Kitchen v. Bartsch, 7 East's R. 62.

y Coles v. Barrow, 4 Taunt. 754.

bankruptcy, and to proceed on the commission; but if such 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." 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. Edmondson, 3 East's R. 22.

IX. Of the Pleadings.

By stat. 6 Geo. 4. c. 16. s. 126. Any bankrupt who shall, after his certificate shall have been allowed, be arrested, or have any 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 by any insolvent 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 general plea of bankruptcy, if pleaded in the Court of

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