the contract (z). But a man who has been twice bankrupt, and has not paid 15s. in the pound under the second commission, cannot sue even though his assignees do not interfere, the 127th section of 6 Geo. IV. c. 16, vesting his future effects absolutely in his assignees (a).

Chippendale v. Tomlinson (b) was one of the first cases on this subject. It was an action on an attorney's bill. The defendant pleaded the bankruptcy of the plaintiff before the bill was incurred, and the defence was held insufficient, as it did not appear that the assignees had interfered and claimed the debt. The same doctrine has been acted upon in actions for the recovery of money due on a promissory note, payable to, and indorsed by, a bankrupt whilst uncertificated (c); and for the price or value of goods sold (d), or work done, and materials found (e) by him.

In Coles v. Barrow (f) it was held by Mr. Justice Heath and Mr. Justice Chambre, (against the opinions of Sir James Mansfield, C. J., and Mr. Baron Graham, and it seems that of Mr. Justice Lawrence,) that if the assignees of a bankrupt manufacturer employ him whilst uncertificated 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. The authority of this case may reasonably be doubted (g). It is difficult to perceive upon what ground the bankrupt can have any claim against

(2) Hayllar v. Sherwood, 2 Nev. & M. 401; and a debt barred by the certificate cannot be made the subject of a set-off.

(a) Young v. Rishworth, 3 Nev. & P. 585. But if a trader who has been twice bankrupt, and whose estate has not produced sufficient to pay his creditors under the second commission 158. in the pound, carry on business, and acquire property, which the assig nees under the second commission suffer to remain in the possession of such bankrupt, as reputed owner, and a third fiat issue against such trader, such fiat will not be void, it operating on such after-acquired property, and the same passing to the assignees under that fiat by virtue of the 6 Geo. 4, c. 16, s. 72; Butler v. Hobson, 5 Scott, 824.

(b) 4 Dougl. 318, S. C., in Cooke's

Bankrupt L. 406, 7th ed., and 7 East, 58, note (g); and see Eden, 2nd ed. 255. As to the rule in equity, see Everett v. Backhouse, 10 Ves. jun. 94; Ex parte Lees, 16 id. 474; Ex parte Storks, 3 V. & B. 105; Holt, N. P. C. 174, note. Trover lies by a bankrupt for after-acquired goods, if his assignees do not interfere; Webb v. Fox, 7 T. R. 391; see Fowler v. Down, 1 B. & P. 44.

(c) Drayton v. Dale, 3 D. & R. 534; 2 B. & C. 293, S. C.

(d) Cumming v. Roebuck, Holt, N. P. C. 172.

(e) Silk v. Osborne, 1 Esp. R. 140. (f) 4 Taunt. 754.

(g) And see per Best, J., in Nias v. Adamson, 3 B. & Ald. 232; and per Lord Alvanley, C. J., Hesse v. Stevenson, 3 B. & P. 577, 578.

his assignees; the principle being that all after-acquired property passes to them, if they claim it; and they certainly are not responsible (even on an express contract with the bankrupt), upon the doctrine of estoppel (h).

The plaintiff, a furniture broker and uncertificated bankrupt, was employed by the defendant to remove his goods; in the course of which business, the plaintiff 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 held by the Court of King's Bench, that the debt which thus accrued, was not a demand arising merely from the personal labour of the bankrupt, and was claimable by the assignees, and that a payment to them, even after writ, and before declaration, defeated the action (i).

Where, however, a right of action accruing before the bankruptcy, upon a contract made with the bankrupt before his bankruptcy, and to which the bankrupt at the time of his bankruptcy was beneficially entitled (k), is vested in his assignees, it seems that they cannot, by disclaiming or renouncing their right, enable the bankrupt to maintain an action upon the agreement in his own name (1); for the bankrupt act vests absolutely in the assignees all rights of this kind.

9. OF THE CONTRACTS OF INSOLVENT Debtors.

The benefit of the late act for the relief of insolvent debtors, 1 & 2 Vic. c. 110, s. 35, extends to all persons in actual custody within the walls of a prison (m) upon any process for or by reason of any debt, damages, costs, or money, or of any contempt for non-payment of money or costs, taxed or untaxed, either ordered to be paid, or to the payment of which the party would be liable in purging such contempt, or in any manner in consequence of such contempt.

(h) See per Cur. in Nias v. Adamson; and see 2 T. R. 169, 171; 4 T. R. 577, 8.

(i) Crofton v. Poole, 1 B. & Ad. 568. (k) Winch v. Keeley, 1 Term R. 619. (1) Hillary v. Morris, 5 C. & P. 6. (m) By section 38 it is provided, that if, after any prisoner shall have obtained an order for hearing the matters of his petition, it shall appear to the satisfaction of the court by the oath of a physician, surgeon, or apothecary, and such other evidence as the court may require, that the prisoner

cannot continue to reside within the walls of the prison, without serious injury to his health; or that, for the sake of the health of the prisoners in general, it is necessary that the number thereof within the walls of any such prison should be reduced; the court may dispense with the actual custody of the prisoner within the walls. The court has also power, by the 38th section, to direct a prisoner to be discharged on his finding two sureties for his appearance at the time and place of hearing.

The prisoner is to petition for his discharge within fourteen days after the commencement of his imprisonment, or he may petition afterwards, if the court shall think reasonable to permit the same. The petition prays that the prisoner may be released from custody, and have future liberty of his person against the demands for which he is imprisoned, and against the demands of all other persons who are the creditors of the prisoner at the time of the presenting his petition (n).

By the 37th section it is enacted, that upon the filing of the petition the court shall order that all the real and personal estate and effects of such prisoner (o), both within this realm and abroad, (except the wearing-apparel, bedding, and other such necessaries of such person and his family, and the working tools and implements of such prisoner, not exceeding in the whole the value of twenty pounds,) and all the future estate (p),

(n) Section 35. As to the misde. scription of the prisoner, see Pascall v. Brown, 3 Stark. R. 54.

(0) The order passes to the assignee only what the insolvent was entitled to at law and in equity at the time of the making the vesting order, and not at the time of the imprisonment, provided there have been no fraud, Sims v. Simpson, 1 Bing. N. C. 306; 1 Scott, 177, S. C.; Gye v. Hitchcock, 4 Ad. & E. 84, contrà. On this ground a bill of sale of goods, as a security for money given in pur suance of a previous agreement, is good against assignees of an insolvent, if the agreement were valid as against them, though the bill of sale of itself was given voluntary, and would have been void as a fraudulent preference, Mogg v. Baker, 3 M. & W. 195; and where an insolvent had deposited with a creditor the title deeds of an estate as a security for a debt, it was held the assignee could not recover from the creditor the rent of the estate received by the latter after the discharge, the defendant being in equity entitled to the rents, Garry v. Sharratt, 10 B. & C. 717. But goods allowed to be in the order and disposition of a bankrupt, as reputed owner, by the consent of his assignee, are liable to be seized upon a subsequent insolvency by the assignee of the insolvent court, Butler v. Hobson, 4 Bing. N. C. 290; 6 Dowl. P. C. 409; 5 Scott, 798, S. C. The words of this section

include copyhold as well as any other description of property, Doe d. Brenan v. Glenfield, 1 Scott, 699; 1 Bing. N. C. 729; 1 Hodges, 78, S. C.; but an ecclesiastical benefice was held not to pass under the general terms of former insolvent acts, Arbuckle v. Cowtan, 3 B. & P. 321; Bishop v. Hatch, S Nev. & M. 498; 1 Ad. & E. 171; nor the half-pay of an officer in the army, Flarty v. Odlum, 3 T. R. 681, overruling Stewart v. Tucker, 2 Bla. 1137; nor the pension of a retired advocate-general in her majesty's admiralty office which had been granted on the recommendation of the privy council, Ex parte Battine, 4 B. & Ad. 690; nor the pensions of the widows of persons whose pay would not have passed had they been living. And now by sections 55 and 56, it is expressly provided that the power of the assignees shall not extend to the property and interests just mentioned; and see Hepper v. Marshall, 9 Moore, 710; 2 Bing. 372, S. C.

(p) Under the 1 Geo. 4, c. 119, future assets did not vest in the assignee, and therefore it was held that an insolvent who had sold goods subsequently to the hearing of his petition, might recover the price, although he was still detained in prison at the time of the sale by an order of the Insolvent Debtors' Court, Taylor v. Buchanan, 6 Dowl. & Ry. 491; 4 B. & C. 419, S. C.

The only future estate expressly

right, title, interest and trust of such prisoner in or to any real and personal estate and effects within this realm or abroad, which such prisoner may purchase, or which may revert, descend, be devised or bequeathed, or come to him before he shall become entitled to his final discharge in pursuance of this act, according to the adjudication made in that behalf; or in case such prisoner shall obtain his full discharge from custody without any adjudication being made by the said Court, then before such prisoner shall be so fully discharged from custody, and all debts due or growing due to such prisoner, or to be due (q) to him or her before such discharge as aforesaid, shall be vested in the provisional assignee for the time being of the estates and effects of insolvent debtors in England, and such order shall be entered of record in the same court, and such notice thereof shall be published as the said court shall direct; and such order, when so made, shall, without any conveyance or assignment, vest all the real and personal estate and effects of such prisoner, and all such future real and personal estate and effects as aforesaid, of every nature and kind whatsoever, and all such debts as aforesaid, in the said provisional assignee; and the same shall be made subject to a proviso, that in case the petition of any such prisoner shall be dismissed by the said court, such vesting order, made in pursuance of such petition, shall from and after such dismission be null and void to all intents and purposes; and the same shall be made subject to a further proviso, that in case any such vesting order as aforesaid shall become null and void by the dismission of the prisoner's petition, all the acts theretofore done by the said provisional assignee, or any person or persons acting under his authority, according to the provisions of this act, shall be good and valid, and no action or suit shall be commenced against such provisional assignee, nor against any person duly acting under his authority, except to recover any property, estate, money, or effects of such prisoner detained after an order made by the said court for the delivery thereof, and demand made thereupon; and the same shall be made subject to a further pro

vested in the assignee is such as shall come to the insolvent before he is entitled to his final discharge. Where a person has twice taken the benefit of the insolvent act, a chose in action to which he became entitled between his first and second insolvencies passes to the assignees under the second insolvency, Curtis v. Sheffield, 8 Sim. 176.

(9) Under the 7 Geo. 4, c. 57, s. 30, it was held that a debt due to the insolvent passed to the provisional assignee, though it had been assigned to a third party before the insolvent's imprisonment, if notice of such assignment had not been given to the debtor before such imprisonment, Buck v. Lee, 1 Ad. & E. 804.

viso, that when such vesting order shall have been made on the petition of a creditor as aforesaid, it shall be lawful for the said court, if it shall seem just and right, but not without proof made to the satisfaction of the said court of the consent of the petitioning creditor, to make order declaring such vesting order to be null and void, and the same shall thereupon be null and void to all intents and purposes.

The court may, at any time after the making of the vesting order, and before or after the discharge, appoint an assignee, in whom the property shall vest, (in the place of the provisional assignee,) for the benefit of the creditors (r).

Within fourteen days after the making of the order vesting the insolvent's estates and effects in the provisional assignee, or within such further time as the court shall think reasonable, the prisoner is to deliver in a schedule, stating his debts and claims, and property, which schedule is to be filed in the court (s).

(r) 1 & 2 Vict. c. 110, s. 65.

(s) 1 & 2 Vict. c. 110, s. 69, enacts, that every prisoner whose estate shall, by an order to be made under this act, be vested in the provisional assignee of the said court for the relief of insolvent debtors (whether upon his own petition or on the petition of any such creditor as aforesaid,) shall, within the space of fourteen days next after such order shall have been made, or next after notice in writing of such order having been made shall have been given to him, in case such order shall not have been made on his own petition, or within such further time as the said court shall think reasonable, deliver in to the said court a schedule containing a full and fair description of such prisoner, as to his name or names, trade or trades, profession or professions, together with the last usual place of abode of such prisoner, and the place or places where he has resided during the time when his debts were contracted; and also a full and true description of all debts due or growing due from such prisoner at the time of making such order, and of all and every person and persons to whom such prisoner shall be indebted, or who to his knowledge or belief shall claim to be his creditors, together with the nature and amount of such debts and claims respectively, distinguishing such as shall be admitted from such as shall be disputed

by such prisoner; and also a full, true, and perfect account of all the estate and effects of such prisoner, real and personal, in possession, reversion, remainder, or expectancy; and also of all places of benefit or advantage held by such prisoner, whether the emoluments of the same arise from fixed salaries or from fees, or otherwise; and also of all pensions or allowances of the said prisoner in possession or reversion, or held by any other person or persons for or on behalf of the said prisoner, or of and from which the said prisoner derives or may derive any manner of benefit or advantage; and also of all rights and powers of any nature and kind whatsoever which such prisoner, or any other person or persons in trust for such prisoner, or for his use, benefit, or advantage in any manner whatsover, shall be seised or possessed of, or interested in, or entitled unto, or which such prisoner, or any other person or persons in trust for him, or for his benefit, shall have any power to dispose of, charge, or exercise for the benefit or advantage of such prisoner; together with a full, true, and perfect account of all the debts at the time of making such order due or growing due to such prisoner, or to any person or persons in trust for him, or for his benefit or advantage, either solely or jointly with any other person or persons, and the