shall avail himself of such execution to the prejudice of other fair creditors, but shall be paid rateable with such creditors (24). This proviso limits the exception, and the exception applies only to cases falling within the first part of the section, viz. those of creditors having security. Per Lord Tenterden, C. J., 6 B. & C. 484, Wymer v. Kemble. In this case the goods of the debtor had been seized under a fi. fa. sued out upon a judgment of non sum informatus, and delivered to the creditor under a bill of sale by the sheriff; then a bankruptcy followed; and it was holden, that he had ceased to be a creditor, having been paid by means of the execution before the bankruptcy. So where after seizure and before bankruptcy, the debtor pays the money to the sheriff's officer, the debt is thereby extinguished, and although the money is in the hands of the sheriff at the time of the bankruptcy, and paid over to the execution creditor afterwards, the assignees cannot recover. Morland v. Pellatt, 8 B. & C. 722. But where the sheriff had made a seizure before act of bankruptcy, but the goods remained in his hands unsold at the time of the bankruptcy, it was holden, that the sheriff was not justified in paying over to the creditor money received by him as the proceeds of the sale, after the bankruptcy. Notley v. Buck, 8 B. & C. 160. See further on this subject, In re Washbourn, 8 B. & C. 444.

(24) The stat. 1 Will. IV. c. 7, s. 7, reciting the words printed in italics, and also, that by reason of such provision, plaintiffs had been and might be deterred from accepting a cognovit actionem, with stay of execution, whereby the expense of further proceedings in such action might have been and may be saved or diminished, for remedy thereof enacts, "that no judgment signed or execution issued after the passing of that act [11th March, 1831,] on a cognovit actionem after declaration filed, or delivered, or judgment by default, confession or nil dicit, according to the practice of the court in any action commenced adversely, and not by collusion for the purpose of fraudulent preference, shall be deemed within the foregoing provision." An execution sued out upon a final judgment, after judgment by nil dicit, falls within this proviso, which comprises all judgments by default, and cannot be restrained to judgments by default by the consent or the collusion of the parties; and the words "obtained by default, confession, or nil dicit," apply to a judgment obtained before, as well as after, the passing of the act. A plaintiff in execution upon a judgment by confession ceases to be a creditor, having security for his debt within the 108th section of statute 6 Geo. IV. c. 16, when the goods seized under that execution are sold, even though an act of bankruptcy be committed before the return of the writ.+

Cuming v. Welsford, 4 M. & P. 238. + Higgins v. M'Adam, 3 Y. & J. 1, re

cognizing Wymer v. Kemble.

VIII. Of Actions which may be brought by the Assignees of a Bankrupt, and in what Manner they ought to sue.

THE assignees of a bankrupt can recover such things only as the bankrupt had both a legal and equitable (n) right in.

pro

1. Money had and received.-An action for money had and received will lie against a creditor of the bankrupt (0), who, after the act of bankruptcy, takes out execution against the goods of the bankrupt, and receives from the sheriff the money arising from the sale of the goods; for the law supposes the creditor to have received the same for the use of the assignees in whom the perty of the goods is vested, and thence implies a promise to pay. So where a trader became a bankrupt by lying in prison two months (now 21 days) after an arrest (p); it was holden, that his assignees might maintain an action for money had and received against a person who, after the arrest, and before the expiration of the two months, having had notice that a commission would be sued out against the trader, sold his goods and paid him the produce. In cases of this kind, the assignees have an election to bring either trover or assumpsit. In trover they may recover the full value of the goods at the time they were taken, though the sale may not actually have produced more than half their worth: but in assumpsit, the assignees, considering the party selling the goods as their agent, are entitled to recover only what was produced by the sale of the goods (q). If the assignees bring assumpsit, they affirm the contract, and the defendant, if a creditor of the bankrupt, may set off his debt (r). But the assignees cannot affirm the act of the bankrupt as their agent in part, and avoid it as to the rest (s).

By the law of England (t), if not contradicted by the laws of the country where the property may be, the commissioners may dispose of the personal property of the bankrupt resident here, although such property be in a foreign country. Hence where the defendant being resident in England, and a creditor of the bankrupt in England, after the assignment of the bankrupt's estate, and with full knowledge thereof, attached and afterwards received, by a remittance, money due to the bankrupt in Rhode Island in North America; it was holden, that the assignees

(n) Per Parke, B., in Mogg v. Baker,

3 Mee. & Wels. 197.

(0) Kitchin v. Campbell, 3 Wils. 304 ;

2 Bl. Rep. 827.

(p) King v. Leith, 2 T. R. 141.

(4) Per Grose and Buller, Js., in King v. Leith, 2 T. R. 144, 145.

(r) Smith v. Hodson, 4 T. R. 211.

(s) Wilson v. Poulter, Str. 859; Brewer v. Sparrow, 7 B. & C. 313, per Bayley, J., S. P.

(t) Hunter v. Potts, 4 T. R. 182; Phillips v. Hunter, 2 H. Bl. 402.

might recover the same from the defendant, in an action for money had and received to their use. So where, after an act of bankruptcy committed (u), but before the assignment, a creditor of the bankrupt in England, and resident in England, with knowledge of the act of bankruptcy, made an affidavit of debt in England, by virtue of which he attached, and after the assignment received, money due to the bankrupt in one of the British plantations 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-off (x) 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 holden (y), 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 (2), 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 holden (a), that as by 6 Geo. IV. 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

(u) Sill v. Worswick, 1 H. Bl. 665. (x) Vernon v. Hankey, 2 T. R. 113. (y) Vernon v. Hanson, 2 T. R. 287.

(2) Parker v. Manning, 7 T. R. 537. (a) Kearsey v. Carstairs, 2 B. & Ad. 716.

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, under the 3 & 4 Will. IV. 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, for (b) money lost at play by the bankrupt before his bankruptcy, and the assignees of a bankrupt are allowed to sue both in the debet and detinet, because the whole property of the bankrupt is vested in them by law (c).

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 (d), 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 (e) 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 (f), 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. The reader should be reminded that by the statute 2 & 3 Vict. c. 29, ante, p. 234, all executions against the goods of a

(b). Brandon v. Pate, 2 H. Bl. 368. (c) Per Buller, J., in Winter v. Kretchman, 2 T. R. 46.

(d) Hancock v. Caffyn, 8 Bingh. 358.

(e) Wright v. Fairfield, 2 B. & Ad.

727.

(f) Porter v. Vorley, 9 Bingh. 93.

bankrupt bona fide levied before the date of the fiat, as well as contracts, dealings, and transactions bonâ fide made before that date, are put upon the same footing as payments made by, or to a bankrupt, were under the 6 Geo. IV. c. 16, s. 82, ante, p. 234, and are declared to be valid notwithstanding any prior act of bankruptcy, if levied or made without notice of any prior act of bankruptcy. In order, however, to bring a case within the provisions of the new act, it is essential that the transaction be a valid one (g). The following cases which occurred before the passing of the new act must therefore be considered with reference to its provisions; but as the new act differs from the 6 Geo. IV. c. 16, s. 81, only as to the time allowed for making executions, contracts, and dealings, valid, they are still retained.

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 within two months a commission issues, and afterwards the sheriff sells the goods, the assignees may maintain trover against the sheriff (h) (25); and so where the sheriff seizes, sells, and pays over the money before commission and before notice (i) of the bankruptcy; but the assignees cannot maintain trespass (k), for officers and ministers of justice. cannot be made trespassers by relation. In like manner the assignees may bring trover against the party suing (1), 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 (m), 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 (n) 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,

(g) Hall v. Wallace, Exc. H. T. 1841, ante, p. 234.

(h) Cooper v. Chitty, 1 Burr. 20, and 1 Bl. Rep. 65; Lazarus v. Waithman, 5 Moore, 313; Carlisle v. Garland, 7 Bingh. 298, affirmed on error in Exc. Ch. 10 Bingh. 452; 2 Cr. & M. 31; 4 Scott, 587, S. C.; affirmed on error in D. P. 4 Bingh. N. C. 7; 3 M. & W. 152; Dillon v. Langley, 2 B. & Ad. 131; in Dillon v. Langley, it did not appear that sheriff, at time of seizure, or when sale began, knew of the act of bankruptcy.

(i) Potter v. Starkie, Exchr. M. T. 1807. (See Report from Mr. Justice Williams's MS. note in 4 Scott, 718,) cited 4 M. & 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.

(k) Smith v. Milles, 1 T. R. 475.

(1) Rush v. Baker, Bull, N. P. 41; Str. 96, and MSS. S. C.

(m) Menham v. Edmonson, 1 Bos. & Pul. 369.

(n) Brewer v. Sparrow, 7 B. & C. 310.

(25) See stat. 1 & 2 Will. IV. c. 58 (Interpleader Act), enabling the sheriff to come in and protect himself against disputed claims to property.

VOL. I.

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