Sidebilder
PDF
ePub

to wit, on the 1st day of November in the year of our nas. Lord 1804, to wit, at London aforesaid, in the parish

[ocr errors]

and ward aforesaid, the said William Sprout and Sa- ccr,„, mud Da-cits as assignees, as aforesaid, required the said Ernest George to pay to them the said several sums of money in the said declaration mentioned, and therein supposed to be due and owing from the said Ernest George to the said William Hitchen, by reason of which said premises and by virtue of the said indenture, and by force of the said statutes, the said Wil/iam Sprout and Samuel Davies as such assignees as aforesaid, afterwards, to wit, on the day and year last aforesaid, to wit, at London aforesaid, in the parish and ward nforeBaid, became and were entitled to the several sums of money and causes of action in the said declaration mentioned, if any such there are; and tliis the said Ernest George is ready to verify; wherefore, &c.

The plaintiff", in his replication, entered a noli prosequi on the fourth, fifth, seventh, and eighth counts, and after joining issue upon the plea of general issue to the rest, replied as to the special pica, that the said several promissory notes, in the said first, and second counts of the said declaration mentioned, were, and each of them was made and delivered by the said Ernest George to the said William Ilitchen, alter the said William Ilitchen became a bankrupt, and after the issuing of the said commission, and after the making of the said assignment, in the said last plea of the said Ernest George mentioned, and that 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, after the said William Hitchen became a bankrupt, and alter the issuing of the said commission, and after the making of the said assignment in the said last pica, mentioned, aud that the said several promises and uu

1805. dcrtakings in the said first, second, and sixth counts of

I1CB>JI the said declaration inentioned, were and each of tliein

vtrsiu was made, and that the said several causes of action |n

Ijiisck. tjje sajcj ^rg^ secon^( anf| gixtij counts specified, and

each of them accrued to the said William llitchen, after he became 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 Ernest 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 William llitchen, and also, at the time when the said sum of money in the said sixth count of the said declaratiou mentioned, was lent and advanced by the said William llitchen 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 llitchen, as a person capable of receiving credit in those betmlfs, to wit, at London aforesaid-, in the parish and ward aforesaid; and the said Williamllitchen further says, that the said William Wirksted, John Hull, Charles Bate, Thomas Nixon, and William Lone, the said commissioners in the said last plea mentioned, have not, nor have any four or three of them, at any lime 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 Hitchemo the said ErneslGeorgc, or at any time since the said several causes of action in the said first, se-? cond, and sixth counts mentioned, or any of them, accrued, bargained, sold, assigned, or set over to the said William Sprout and bamuel Davies, or either of them,

or lo any person or persons whatsoever in trust for the beneiit of the creditors or" the said William Jlitchen, 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 mentioned, to be lent and advanced by the sa\<i WilliarnHitchen to the said Ernest George, or any of the estate and effects of the said Ernest George which accrued or came to the said William Hitchen, since the making the said assignment in t„be said last plea of the .said Ernest George mentioned; and this the said William liitchen'is ready to verify: wherefore he prays judgment, and his damages ,&c.

To this replication the defendant demurred: the plaintiffJoined in demurrer.

Richarqson, for the defendant, made two questions; first, whether a oew 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 assignee* on the defendant, would bar the plaintiff's action? Probably this question has remained hitherto unde-» c.ided, only because, whenever it has occurred in practice 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 bankrupt, 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 his debts due to his creditors shall be fully satisfied and paid, or otherwise agreed for, then the said lands, 8tc. 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 suah /ike manner and form as other the lands, tenement*, 1805. hereditaments, free or copy, offices, fees, goods, and ■ITCB„ chattels of the said bankrupts, which they had when reran they were lirst declared to be bankrupts, should or Abmcs. mjghj i,ave 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. iG, 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 Fowler v. Dozen,* 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,f 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 necessary. And upon the second question, he cited Evans v. Mann,X Tudway v. Bourne,\\ La Roche v. Waktman, Evans y. Browne,^ Silk v. Osbom** Webb v. Foxrff Ashley x.Kele,%% Hopkins v.En cr, and Chippendale v. Thom/ins,|[|jfrom the general resultof which,hecontended,that although the bankruptmight bring an action for newly acquired property, under a contractwith the defendant, 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

* 1 Bos. if Pull. 44. i 1 Atk. 252.

J Coup. 569. || 2 Burr. 716. h Peake's Ca.

ffi. PrL 140. % 1 Esp. Ca. 170. ** Ibid.

. ++7 Term Rep. 391. %% t Strange, 1207.

SS Puller, Ni.Pri. 153. ID 1 Cooke's Bank. Lave,

fd. III. 513, c. 8, s.Ql.

[graphic]

devested tlie 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, contra, contended, that by the express Words of the statute IS 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 debt* 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 5 th 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 assignmeut. 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 hath at the time of the making. And admitting the inference from the cases above cited4 he suggested that although the plea stated a demand to be made on the defendant by the assignees, yet it did not state the right in which they demanded it. All the cases being referred to in the argument for the defendant, he cited no others, but relied on the dictum •f Eyre, C. J. in Fowler \,*Down.

Lord Elienborougii, C. J. * The inconvenience would be very great if assignments were to be made toties quoties, as the property accrues, and thqt 'HO.XJfVJI. N.S. K

« ForrigeFortsett »