having resolved to stop payment, informed the defendant that he had repented of what he had done, and had sent express to stop the bills, and would return them, and three days afterwards committed an act of bankruptcy, after which he returned to the defendant all the bills, (except one which had been discounted,) and also two bank-notes, part of the proceeds of such discount, and the defendant delivered back the security, and afterwards a commission of bankruptcy issued against S., the assignees under which commission brought trover against the defendant for the bills and bank-notes; held, that the defendant was entitled to retain them (o). Assignees may maintain trover for goods sold by a bankrupt after an act of bankruptcy, although they have demanded payment for them. The very taking of goods (p) from one who has no right to dispose of them is a conversion.

In what manner the Assignees ought to sue.-All the assignees who are living must join in the action (q). In actions brought by the assignees, they may declare generally as assignees of the estate of A. a bankrupt, according to the form of the statute, concerning bankrupts, without setting forth the act by which the trader became a bankrupt (r), or the proceedings under the commission (s). So a declaration on a scire facias (t), by the assignees of a bankrupt, stating generally, that he became a bankrupt within the meaning of the statute, and that his goods and effects were duly assigned to the plaintiffs, is sufficient, without stating the trading, act of bankruptcy, &c., because a scire facias is an action. The assignees cannot make themselves parties to the record in any intermediate stage of the proceedings (u), but it must be immediately after judgment, and before any other proceeding has taken place, though an interlocutory judgment is sufficient for this purpose. Hence where plaintiff, after judgment against him and writ of error allowed, becomes a bankrupt, the assignees ought to go on with the writ of error in the bankrupt's name, the writ of error being a proceeding after the judgment; and if the assignees, instead of adopting this method, sue out a sci. fa. in their own names to compel an assignment of errors, the court will quash it. If the assignees bring an action upon a contract made by the bankrupt before his bankruptcy, it is incumbent on them to sue as assignees, and so to state themselves in the declaration. But where the contract is made by the bankrupt after his bankruptcy (x), and before he has obtained his certificate, as all his property is then vested in the assignees, he will be considered as their agent; and,

(0) Gladstone v. Hadwen, 1 M. & S. 517. See further Taylor v. Plumer, 3 M.

& S. 562.

(p) Hurst v. Gwennap, 2 Stark. N. P. C. 306. Lord Ellenborough, C. J., whose opinion was afterwards confirmed by the court.

(q) Snelgrove v. Hunt, 2 Stark. N. P. C. 424, Abbott, C. J.

(r) Pepys v. Low, Carth. 29.
(s) Lawson v. Lamb, Lut. 274.
(t) Winter v. Kretchman, 2 T. R. 45.
(u) Kretchman v. Beyer, 1 T. R. 463.
(x) Evans v. Mann, Cowp. 569.

in such case, it is not necessary that they should state themselves to be assignees in the 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 (y) before his bankruptcy; and, 2ndly, As having been made to the plaintiffs as assignees (z). In an action brought by the assignees of a bankrupt (a), the plaintiffs 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. Assignees under a joint commission against two partners, may recover (b) 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. (c). 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 (d), 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

(y) Rig v. Wilmer, Str. 697, adjudged on demurrer to declaration.

(z) Fashion v. Dormet, 7 Vin. Abr. 140, tit. Creditor and Bankrupt, pl. 16. (a) Skinner v. Rebow, T. 8 & 9 Geo. II. B. R. MSS.

(b) Graham v. Mulcaster, 4 Bingh. 115.

(c) Stonehouse v. De Silva, 3 Campb. 399.

(d) Hogg and another v. Bridges and another, 8 Taunt. 200.

having committed an act of bankruptcy made an appointment in favour of J. S.; it was holden (e), 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.

Actions against Assignees.-By stat. 6 Geo. IV. 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 next 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 responsible for it." Per Bayley, J., delivering judgment of the court in Edge v. Parker, 8 B. & C. 701, recognizing Carruthers v. Payne, 5 Bingh. 270. See also Worth v. Budd, 2 B. & Ad. 177, where it was holden, that assignees are not entitled to double costs under the latter part of this section, and there is not any distinction between the case of a general assignee and an official assignee. The official assignee is not, therefore, entitled to notice of action by the alleged bankrupt for seizing his goods under the fiat; for the right he exercises in seizing the goods is a right belonging to him by virtue of his property in them, and not of any special power given to him by the Bankrupt Acts; Knight v. Turquand, 2 M. & W. 101. Formerly, when a dividend was declared, it was considered that a right of action against the assignees accrued to every creditor for his proportion (f); 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 Geo. IV. 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

(e) Doe d. Coleman v. Britain, 2 B. & A. 93.

(f) Brown v. Bullen, Doug. 407, per Kenyon, C.J., 6 T. R. 549, S. P.

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.

IX. Of Actions by the Bankrupt.

AN uncertificated bankrupt has a special property in goods acquired by himself after his bankruptcy (g), and may maintain trover for them against strangers. So if an order for the delivery of goods (h), 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 (i), 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 prevail where they come forward and assert it. By the 1 & 2 Will. IV. 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. 185. An uncertificated bankrupt may maintain an action for work and labour done after his bankruptcy (k). 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 (1), 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 furniturebroker and uncertificated bankrupt, was employed by defendant to remove his goods, in the course of which business he employed

(g) Webb v. Fox, 7 T. R. 391.

(h) Fowler v. Down, 1 Bos. & Pul. 44. (i) Kitchen v. Bartsch, 7 East, 53. See Hayllar v. Sherwood, 2 Nev. & M. 401.

(k) Chippendale v. Tomlinson, Co. B.L. 5th edit. p. 431.

(1) In Kitchen v. Bartsch, 7 East, 62.

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 (m), 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 (n).

By stat. 6 Geo. IV. 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 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 & 2 Will. IV. 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, 22. In an action for maliciously suing out a commission of bankrupt, it must be averred and proved (o) that the commission was superseded (or that the fiat was annulled) before the commencement of the action; and if this fact be not proved, the plaintiff ought to be nonsuited; though it be not averred in the declaration, and though the defendant has omitted to demur.

X. Of the Pleadings.

By stat. 6 Geo. IV. 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

(m) Crofton v. Poole, 1 B. & Ad. 568. (n) Coles v. Barrow, 4 Taunt. 754. (0) Whitworth v. Hall, 2 B. & Ad. 695, recognized in Mellor v. Baddeley, 2 Cr.

& M. 678. The chancellor's order to annul a fiat has now the effect of a supersedeas. See post, p. 266.