defendant's ability (7), and it would appear to be judicious to declare specially on such a promise (m). In an action of assumpsit, on a bankrupt's promise to pay the plaintiff so much in the pound, if he would not prove his debt under the commission, Lord Kenyon held, that the plaintiff had abandoned and waived the agreement, and his right of action thereon, by petitioning the Chancellor against the allowance of the defendant's certificate; this being an act inconsistent with the contract (n).

In the King's Bench, a certificated bankrupt cannot be arrested on a subsequent promise by him to pay a debt incurred before his bankruptcy (0); but the rule appears to be otherwise in the Exchequer (p).

3. Of the Contract of an uncertificated Bankrupt.—A bankrupt is clearly responsible upon any agreement which he makes after his bankruptcy; although his assignees, if he be uncertificated, may, generally speaking, interpose and claim the benefit to be derived from the contract.

The assignees acquire all the property and rights which the bankrupt possessed, and was beneficially entitled to, at the time of his bankruptcy; they may even sue for the recovery of unliquidated damages occasioned before the bankruptcy, by the nonperformance of a contract with the bankrupt before his bankruptcy (q). But they do not take property which the bankrupt

(1) Brix v. Braham, 8 Moore, 264; 1 Chitty's Pleadings, 6th ed., 55; Besford v. Saunders, 2 Hen. Bla. Bla. 116, Lord Loughborough dissentiente; Fleming v. Hayne, 1 Stark. 370. As to such a promise, by an adult, to pay a debt barred by infancy, Penn v. Bennett, 4 Camp. 205; or a promise to pay a debt barred by the statute of limitations, "when of ability," Haydon v. Williams, 4 M. & P. 811; 7 Bing. 163, S. C.; Lechmere v. Fletcher, 1 C. & M. 623; Chit. jun. Pleading, 146.

(m) See id.; Penn v. Bennett, 4 Camp. 205; Fleming v. Hayne, 1 Stark. R. 371, per Ld. Ellenborough.

(n) Colls v. Lovell, 1 Esp. R. 282; Letchmere v. Fletcher, 1 C. & M. 623; 3 Tyrw. 450, S. C.

(0) Peers v. Gudderer, 1 B. & C. 116; 2 D. & R. 240, S. C.; and see Bailey v. Dillon, 2 Burr. 736; Wilson

v. Kemp, 3 M. & Selw. 595; Gould v. Williams, 4 Dowl. P. C. 91. But see Drew v. Jefferies, H. 26 Geo. 3, K. B. Tidd, 9th ed. 211; 8 Price, 531; semb. contra.

(p) Blackbourn v. Ogle, 8 Price, 526; Walker v. Rushbury, 9 id. 19; Trueman v. Fenton, Cowp. 549; Tidd, 9th ed. 211.

(q) Wright v. Fairfield, 2 B. & Ad. 727. They may maintain case to recover damages accruing to the estate by reason of the bankrupt's landlord (the defendant) having omitted to pay the ground landlord, whereby the bankrupt's goods were distrained, Hancock v. Caffyn, 8 Bing. 358. But an action may be brought in the name of the bankrupt for a debt which he has assigned before his bankruptcy, and of which assignment notice has been given to the debtor.

has equitably assigned before the bankruptcy (r). Nor do the assignees take under their appointment a chose in action which has been assigned by the bankrupt before his bankruptcy to a creditor, and notice whereof has been given to the debtor (s). And now by the statute 2 & 3 Vic. c. 29, it is enacted, that all contracts, dealings, and transactions by and with any bankrupt, really and bonâ fide made and entered into before the date and issuing of the fiat against him, shall be deemed to be valid, notwithstanding any prior act of bankruptcy by such bankrupt committed; provided the person or persons so dealing with such bankrupt had not at the time of such contract, dealing, or transaction, notice of any prior act of bankruptcy by him committed; but it is provided that such enactment shall not protect any payment by way of fraudulent preference (t). So that now not only payments and sales, but even a pledge of goods by a bankrupt after his bankruptcy, but before the issuing of the fiat, if made bona fide, would be protected, and the assignee would not be entitled to recover the goods, at least without tendering the price of them (u).

They are also entitled to the property which the bankrupt may acquire after the bankruptcy, and before he obtains his certificate. Consequently, the assignees are entitled to the benefit of any contract which the bankrupt may have made at any time be

(r) Tibbits v. George, 5 Ad. & E. 107; Burn v. Carvalho, 1 Ad. & E. 383; in error from the King's Bench, see 4 B. & Ad. 382. In that case A., who resided at Liverpool, was in the habit of making consignments of goods to B., his agent in South America, for sale; on the faith of and against which consignments A. drew bills proportioned to their amount, to be paid by the agent out of the proceeds; and the bills were negociated by the indorsements of C., A.'s correspondent in London. Some of the bills so indorsed were refused acceptance by the agent. C., on receiving information that they had been so dishonoured, requested that A. would order his agent in case he did not pay his, A.'s drafts, immediately to hand over to C.'s agent such property as he had of A.'s, of an equivalent value to the bills that should not be paid by him. A. agreed to do so, but became bankrupt before his order to transfer the goods reached South America. It was held that the bargain between A. and C. did not

operate as a legal or equitable assignment of the property in A.'s goods held by B., his agent, but that they remained the property of A. at the time of his bankruptcy, and passed to his assignees. If a cestui que trust become bankrupt, his assignees do not acquire any other rights than such cestui que trust had, and therefore an action must be brought in the name of the trustee, Britten v. Perrott, 2 C. & M. 601.

(s) Buck v. Lee, 1 Ad. & E. 809; Dean v. James, id.; 1 N. & M. 392, S. C.; Tibbits v. George, 5 Ad. & E. 107; Winch v. Keeley, 1 Term R. 619; and the action must be brought in the name of the bankrupt; and should the debtor plead his bankruptcy, the assignment and notice may be replied, id.

(4) 2 & 3 Vic. c. 29.

(u) Id.; and see Hill v. Farnell, 9 B. & C. 45; Wright v. Fearnley, 6 Scott, 113; 5 N. C. 89; 2 Jurist, 968, S. C; 7 Dowl. P. C. 129, S. C., and cases there cited.

fore he has obtained his certificate. And this right of the assignees obtains, although the defendant was not aware of the bankruptcy, and dealt or treated with the bankrupt as a person capable of receiving credit (v). And where the assignees of an uncertificated bankrupt by agreement, for a valuable consideration paid to them by a third person, had left the bankrupt's furniture, &c., in his possession, and afterwards, notwithstanding such agreement, seized the same; it was held in trespass by the bankrupt, that they were justified in so doing, as the bankrupt being uncertificated, could not be entitled to retain any property against his assignees (x). Upon the same principle, where the house of the plaintiff, an uncertificated bankrupt, was broken open, and effects acquired by him subsequently to his bankruptcy were taken by the defendants, who had become his creditors since the bankruptcy, and did not know who were the assignees under the bankruptcy, and the bankrupt having sued the defendants in trespass, they obtained (after a rule for plea) a surrender of the assignee's interest in the effects seized; it was held that this was a ratification of the seizure, and that the plaintiff could not recover (y).

But the right of the assignees in regard to contracts made, and property acquired by the bankrupt after his bankruptcy, and whilst he is uncertificated, is not absolute. It is a power or right to be exercised by themselves only, at their option; and until they elect to exercise it the bankrupt is quodam modo the owner of the after-acquired property, and legally entitled to sue upon contracts made by him after his bankruptcy, although he had not obtained his certificate.

This principle appears to be now clearly settled; and the rule is, that an uncertificated bankrupt may sue on an agreement made by him after his bankruptcy, although he has not obtained his certificate, unless the assignees interpose and claim the benefit of

(v) Kitchen v. Bartsch, 7 East, 53. In this case the bankrupt sued on a note made to him, and for money lent by him, after his bankruptcy. As to pleading the plaintiff's bankruptcy where he sues for a debt due to him before the bankruptcy, see Kinnear v. Tarrant, 15 East, 622; Biggs v. Cor, 4 B. & C. 920; 7 D. & R. 409, S. C.; Chit. jun., Pl. 250; Dean v. James, 1 Ad. & E. 809; 1 N. & M. 392, S. C. (x) Nias v. Adamson, 3 B. & Ald.

225.

(y) Hull v. Pickersgill, 1 B. & B. 282; 3 Moore, 612, S. C. In Clark v. Calvert, 3 Moore, 96; 8 Taunt. 742, S. C., it was held, that where the assignees have not interfered, and taken to land of which the bankrupt was yearly tenant, he may sue for a trespass committed even before his bankruptcy. But cannot unless he be in actual possession of the premises, Topham v. Dent, 4 M. & Payne, 264; 6 Bing. 515, S. C.

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 15s. in the pound, carry on business, and acquire property, which the assignees 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 ().

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.