« ForrigeFortsett »
to wit, on the 1st day of November in the year of our 1803. Lord 1804, to wit, at London aforesaid, in the parish
IlITCHEN and ward aforesaid, the said William Sprout and Sa. " muel Davies as assignees, as aforesaid, required the said
Ernest George to pay to thein the said several sums of
dertakings in the said first, second, and sixth counts of the said declaration mentioned, were and each of them was made, and that the said several causes of action in the said first, second, and sixth counts specified, and each of them accrued to the said IVillium Hitchen, after he becaine a bankrupt, and after the issuing the said commission, and after the making the said assignment in the said last plea mentioned ; and that the said Eruest George, at the time when the said several and respective promissory notes, in the said first and second counts of the said declaration mentioned, were made and delivered by the said Ernest George to the said I'illiam Hitchèn, and also, at the time when the said suin of money in the said sixth count of the said declaration mentioned, was lent and advanced by the said William Hitchen to the said Ernest George, and at the time of the making the said several promises and undertakings in the said first, second, and sixth counts of the said declaration mentioned, treated with the said William Hitchen, as a person capable of receiving credit in those behalfs, 10 wit, at London aforesaid, in the parish and ward :aforesaid; and the said William Hitchen further says, that the said William Wicksted, John Hull, Charles Bate, Thomas Niron, and William Lowe, the said commissioners in the said fast plea mentioned, have not, nor have any four or three of them, at any time since the making or delivering of the said several and respective promissory notes, in the said first, and second counts of the said declaration mentioned, or either of them, or at any time since the said sum of money in the said sixth count of the said declaration mentioned,was lent and advanced by the said William Hitchen to the said Ernest George, or at any time since the said several causes of action in the said first, second, and sixth counts mentioned, or any of them, accrued, bargained, sold, assigned, or set over to the said William Sprout and Samuel Dacies, or either of them,
or to any person or persons whatsoever in trust for the benefit of the creditors of the said William Hitchen, or otherwise, the said several promissory notes, in the said first and second counts of the said declaration mentioned, or either of them, or the said sum of money, in the said sixth count of the said declaration inentioned, to be lent and advanced by the said "lilliam Hitchen to the said Ernest George, or any of the estate and effects of the said Ernest George which accrued or came to the said Wil. liam Hitchen, since the making the said assignment in the said last plea of the said Ernest George mentioned ; and this the said William kitchen is ready to verify : wherefore he prays judgment, and bis damages, &c.
To this replication the defendant demurred; the plaintif" joined in demurrer.
RICHARDSON, for the defendant, made two questions; first, whether a new assignment is necessary of personal property, acquired subsequently to the assignment, in order to vest it in the assignees; and secondly, whether the demand made by the assignees on the defendant, would bar the plaintiff's action ? Probably this question has remained hitherto undeçided, only because, whenever it has occurred in prac. tice a new assignment was actually made in order to remove all doubts. By the stat. 13 Eliz. c. 7, s. 11, “ if any person declared a pankrupt, shall, at any time purchase any lands, tenements, hereditaments, free or copy, offices, fees, goods, or chattels, or any land, tenements, hereditaments, free or copy, offices, fees, goods, or chattels shall descend, revert, or by any means come to such person before such bis debts due to his creditors shall be fully satisfied and paid, or otherwise agreed for, then the said lands,' &c. goods and chattels, shall, by virtue of the act, by the said commissioners to be appointed as aforesaid, be bargained, sold, extended, delivered and used for, and towards the payment of the said creditors in such like manner and form as other the lands, tenements,
hereditaments, free or copy, offices, fees, goods, and chattels of the said bankrupts, which they had when they were first declared to be bankrupts, should or might have been bargained, sold, disposed or used, by virtue of this act. Under this statute it was usual to assign the property in parcels to each particular creditor. But the 5 Geo. II. c. 30, s. 26, directs that particular assignees shall be chosen for the benefit of all the creditors, and then a general assignment became sufficient to pass all the future personal effects. On this point indeed Eyre, C. J. in Foroler v. Down,* suggests a doubt, and thinks that there would be good reason, for requiring a new assignment of personalty as well as reality ; but in Ex parte Proudfoot,t it was held clearly, that a second assignment was unnecessary as to the newly acquired personalty; although it was requisite as to the realty.” He then contended that the length of the practice upon the subject, was sufficient to establish the construction of the statutes, that no such new assignment was nécessary. And upon the second question, he cited Evans v. Mann, Tudway v. Bourne,|| La Roche v. Wakeman, Evans r. Browne, 1 Silk v. Osborn,** Webb v. Fox,tt Ashley v.Kele,t1 Hopkins v. Exer, and Chippendale v. Thomlins,|||from the general result of which,he contended, that although the bankrupt might bring an action for newly acquired property, under a contract with the defendunt, and until the assignees interposed and claimed their interest in it, the action was well maintained, yet the claim actually made by the assignees immediately
* i Bos. & Pull. 44.
+ i Atk. 252. Coup. 569. || 2 Burr. 716. & Peake's Ca. Ni. Pri. 140. fi Esp. Ca. 170. ** Ibid. .. ++ 7 Term Rep. 391. . 1 2 Strange, 1207.
$$ Buller, Ni. Pri, 153. !!!i Cooke's Bank. Laws, Ed. III. 513, c. 8, s. 21.
devested the right out of the bankrupt, and therefore that the plea, which stated a demand on the plaintiff by the assignees, was a sufficient bar to the action,
LittleDale, contrà, contended, that by the express words of the statute 19 Eliz. c. 7, s. 11, the assignees could not recover the debt of the defendant, without a new assignment. And by the statute 1 Jac. I. c. 15, s. 13, the commissioners are empowered to assign debts due, or to be due, to or for the benefit of the bankrupt; whence it appears, that upon the former statute it must have been then doubted, whether it applied to the recovery of debts. By the 5th of Anne, c. 22, the commissioners were directed to assign only to special assignees, which act was continued, and made perpetual by the stat. 5 Geo. II.c. 30. But these statutes only appoint the mode of the assignment. Supposing that the words of the statutes apply to future debts, and that they pass by the assignment, yet it does not appear from this plea, that the assignment contained words to pass the future debts. The distinction in practice between real and personal estate, may have arisen from some supposed analogy to the case of a will which passes after accrued personal, but not real property ; this, however, arises from the words of the statute of wills, which apply only to such estate as the testator bath at the time of the making. And admitting the inference from the cases above cited, he suggested that although the plea stated a demand to be made on the defendant by the assignées, yet it did not state the right in which they demanded it. All the cases being referred to in the arguinent for the defendant, he cited no others, but relied on the dictum of Eyre, C. J. in Fowler v, Down.
Lord ELLENBOROUGH, C. J. “ The inconveni, ence would be very great if assignments were to be made toties quoties, as the property accrues, and that
19. XXVII. N.S.