A

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. 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 (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. The assignees of a bankrupt may maintain an action in their own names only for a chose in action belonging to the wife of the bankrupt, e. g. a promissory note given to her dum sola; and in such action the defendant cannot set off a debt due to him from the bankrupt (ƒ).

By stat. 5 & 6 Vict. c. 122, s. 31, if any person adjudged bankrupt after the commencement of this act shall at the time of his bankruptcy be a member of a firm, it shall be lawful for the court authorized to act in the prosecution of the fiat against such bankrupt to authorize the assignee, upon his application, to commence or prosecute any action at law or suit in equity in the name of such assignee and of the remaining partners against any debtor of the partnership; and such judgment, decree, or order, may be obtained therein as if such action or suit had been instituted with the consent of such partner: and if such partner shall execute any release of the debt or demand for which such action or suit is instituted, such release shall be void; provided that every such partner shall have notice given him of such application, and be at liberty to show cause against it, and if no benefit is claimed by him by virtue of the said proceedings shall be indemnified against the payment of any costs in respect of such action or suit in such manner as such court upon his application shall direct; and that it shall be lawful for such court, upon the application of such partner, to direct that he may receive so much of the proceeds of such action or suit as such court shall direct.

Actions against Assignees. By stat. 6 Geo. IV. c. 16, s. 44, Every action brought against any person for any thing done in

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

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

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

A. 93; and see Badham v. Mee, 7 Bingh. 695; Jones v. Winwood, 3 M. & W. 653; Hole v.Escott, 2 Keen, 444; 4 M. & Cr. 187. (f) Yates v. Sherrington, 11 M. & W.

42.

pursuance of this act (27) 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 (g); 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 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 Chan(g) Brown v. Bullen, Doug. 407, per Kenyon, C. J., 6 T. R. 549, S. P.

(27) As to what shall be said to be in pursuance of an act, see Smith v. Shaw, 10 B. & C. 277, post, tit. "Imprisonment," and Wallace v. Smith, 5 East. 122, ante, 97, n. ; Sellick v. Smith, 2 C. & P. 284; Gaby v. Wilts and Berks Canal Company, 3 M. & S. 580; Theobald v. Crichmore, 1 B. & A. 227.

cellor, 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 (h), and may maintain trover for them against strangers. So if an order for the delivery of goods (i), 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 (k), 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 Ï & 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. 193. An uncertificated bankrupt may maintain an action for work and labour done after his bankruptcy (1). 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 (m), 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 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 (n), 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

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

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

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

(m) In Kitchen v. Bartsch, 7 East, 62. (n) Crofton v. Poole, 1 B. & Ad. 568.

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 (0).

By stat. 6 Geo. IV. c. 16, s. 13, "The petitioning creditor, before commission granted, shall make an affidavit before a master in chancery (p) 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. But now, by stat. 5 & 6 Vict. c. 122, s. 3, in every case of a petition for the issue of a fiat in bankruptcy, it shall be lawful for the Lord Chancellor to dispense if he shall think fit with the bond now required to be given to him by the petitioning creditor conditioned for proving his debt, and for proving the party to have committed an act of bankruptcy at the time of issuing such fiat, and for proceeding upon such fiat; and in such case it shall be lawful to issue the fiat without any such bond having been given.

In an action for maliciously suing out a commission of bankrupt, it must be averred and proved (q) 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. 5 & 6 Vict. c. 122, s. 37 (r), every bankrupt who shall have duly surrendered, and in all things conformed himself to the laws in force at the time of issuing the fiat in bankruptcy against him, shall be discharged from all debts due by him when he became bankrupt, and from all claims and demands made proveable under

(0) Coles v. Barrow, 4 Taunt. 754.

(p) It is no longer necessary that the oath should be made before a master in chancery. See 5 & 6 Vict. c. 122, s. 67.

(9) 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. 288.

(r) This section is similar to sect. 121 of stat. 6 Geo. IV. c. 16.

the fiat, in case he shall obtain a certificate of such conformity so signed and allowed, and subject to such provisions as hereinafter mentioned; and no certificate of such conformity by any such bankrupt shall release or discharge such bankrupt from such debts, claims, or demands, unless such certificate shall be obtained allowed and confirmed according to such provisions: provided always, that no such certificate shall release or discharge any person who was partner with such bankrupt at the time of his bankruptcy, or was then jointly bound, or had made any joint contract with such bankrupt; and provided also, that nothing herein contained shall affect the validity of any certificate allowed by the Lord Chancellor or Court of Review previous to the commencement of this act.

By this section a bankrupt is discharged, not merely from the debt, but from all remedies for its recovery, in the case of a debt proveable under the commission (s). A landlord distrained for rent the goods of A., on his tenant's premises; the tenant afterwards became bankrupt, and obtained his certificate: it was holden, that the certificate did not operate as a release of the rent, and that therefore the landlord had a right in replevin at the suit of A. to avow for a return of the goods (t).

Before the recent stat. 5 & 6 Vict. c. 122, s. 39, it was required that the certificate should be signed by a certain proportion of the creditors of the bankrupt; but it is no longer requisite that any of the creditors should sign, the granting of the certificate being vested, by sect. 39, in the discretion of the commissioners, who may either refuse it altogether, or annex such conditions thereto as the justice of the case may require.

By stat. 5 & 6 Vict. c. 122, s. 42 (u), any bankrupt who shall after such certificate shall have been confirmed be arrested or have any action brought against him for any debt, claim, or demand, proveable under the fiat against such bankrupt, shall be discharged upon entering an appearance, 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 such bankrupt's certificate, and the confirmation thereof, shall be sufficient evidence of the trading bankruptcy fiat, and other proceedings precedent to the obtaining such certificate; and if any such bankrupt shall be taken in execution or detained in prison for such debt, claim, or demand, where judgment has been obtained before the confirmation of his certificate, it shall be lawful for any judge of the court wherein judgment has been so obtained, on such bankrupt's producing his certificate, to order any officer who shall have such bankrupt in custody by virtue of such execution, to discharge such bankrupt without exacting any fee.

(8) Davis v. Shapley, 1 B. & Ad. 54; Barrow v. Poile, 1 B. & Ad. 629.

(t) Newton v. Scott, 9 M. & W. 434,

affirmed on error, 10 M. & W. 471.

(u) This section is similar to the 126th sect. of stat. 6 Geo. IV. c. 16.