ARGUED AND DETERMINED

IN THE

COURT OF KING'S BENCH

IN

MICHAELMAS TERM,

IN THE FIFTH YEAR OF THE REIGN OF GEORGE IV.

FLETCHER and others, Assignees of ROBERT SIMPSON,
a bankrupt v. T. POGSON and G. THOMAS, Bail of
HENRY FREEMAN YOUNG POGSON and CHARLOTTE
ISABELLA, his wife. (a)

tion stated

SCIRE facias against bail. The declaration recited a re- In proceedings cognizance entered into by defendants as bail in an action by scire facias against bail, brought by Robert Simpson, the bankrupt, against Pogson the declaraand wife; and a judgment for the plaintiff in that action, that "S. the which still remained unsatisfied, and then proceeded thus: plaintiff in the original action "And whereas the said Robert Simpson afterwards became became bankbankrupt, within the true intent and meaning of the several rupt "wherestatutes made and then in force concerning bankrupts, some mission of or one of them; whereupon a certain commission of bankrupt, under the great seal of the united kingdom of Great

(a) Pursuant to the king's warrant issued in Trinity Term, by virtue of the statute 3 G. 4. c. 102, three of the Judges of this Court sat at the Guildhall, Westminster, from the 8th until 17th July, inclusively, and on the 25th October all the Judges sat and continued sitting until the first day in this term.

upon a com

bankrupt was
duly awarded
against him;

and A. B. and
C. (plaintiffs
in the sci. fa.)
were duly
chosen as-

signeces of the
estate and ef-
fects of the

said S. under

the commission, and now on behalf of the said A. B. and C. as assignees as aforesaid, we have been informed," &c. :-Held, that this was a sufficient averment of the plaintiffs' title to sue as assignees, without alleging that an assignment of the bankrupt's effects had been actually made; but upon special demurrer, it seems that it would have been bad for uncertainty.

1824

FLETCHER

v.

POGSON.

Britain and Ireland, was duly awarded and issued against the said Robert Simpson, and now on behalf of the said E. F. R. B. and J. T., as assignees as aforesaid, in our said Court before us, we have been informed, &c." The declaration, after stating, that two writs of scire facias had been sued out against the bail, the returns to which were set out, concluded as follows: "And thereupon the said G. F. R. B. and J. T., assignees as aforesaid, pray that execution may be adjudged to them against the said T. Pogson and G. Thomas, of the damages aforesaid, according to the form and effect of the said recognizance." The defendants pleaded that there was no ca. sa. duly issued against the said H. F. Y. Pogson and his wife, upon the said judgment, and duly returned. The plaintiffs replied by setting out a ca. sa. and return thereto. Demurrer to the replication and joinder in demurrer.

The plaintiffs

Abraham in support of the demurrer. have not by their declaration shewn any title to sue as assignees. In the first place they do not shew when the commission issued, and in the second, they have not shewn that there had ever been any assignment to them of the bankrupt's estate, and consequently they have no right to sue as assignees. Being chosen as assignees, without a valid assignment by the commissioners, is insufficient to support their title.

Curwood, contrâ. The declaration avers that the plaintiffs were duly chosen assignees of the estate and effects of the bankrupt, and therefore the Court may intend not only that they were duly chosen, but that a valid assignment was made to them pursuant to the 5 Geo. 2. c. 30. s. 26. The statute directs that the commissioners shall assign the bankrupt's estate and effects to the assignees when they are chosen. It must be presumed, therefore, that the commissioners have performed their duty. [Bayley, J. If the declaration had averred that "they became and were as