may have induced the practice which has prevailed, and the construction upon the statute which has been uniform except in the single instance of a legatee, where a new assignment was made ex abundanti cautela, Tudway v. Bourn. The plea imports that the demand was made by the assignees in their right, as assignees. The defendant is bound to pay to the assignees; he may not be able to pay immediately, but he is still liable, and may hereafter be compelled to pay to them. It is said in two of the cases in which a bankrupt has been allowed to recover, that until the assignees interfere, he has the right to the money, but that the assignees may claim it, and if they do claim it, and take any steps to dispute his title, they become entitled in his place; if they do not, then the bankrupt, being the ostensible owner, may convey a title. Now have they not in this case claimed, and has not something been done to dispute his title? Lord Kenyon does not limit his proposition to the sale of a ship, which was the point in the case before him, or to making the claim at any particular time. As to the party having treated with the bankrupt as one capable of making a contract, a man is not bound to make such a contract good, where the party with whom he treats has no title. If indeed this were a case to be decided now for the first time, there would have been a good deal of solid argument, that an after-assignment of personal property newly accrued is necessary. But there has been an uniform series of coustruction from the time of passing this statute, There may even have been earlier decisions than that of ex parte Proudfoot, that the assignment passes not only the immediate property, but the future effects also. The words of the statute apply certainly to * 2 Burr, 718, 1805. HITCHEN versus BARTSCH. personal as well as real property, and do somewhat militate against the practice which has been set up under the provisions of the stat. 13 Eliz. c. 7. s. 11. But it would be too much to say now, from the literal construction of an act of parliament, that the uniform decisions upon it are erroneous. And this uniform construction is confirmed by the stat. 1 Jac. I. c. 15, s. 13, by which the assignment of debts due and to become due is to be made by one deed of assignment, Whether this has been applied to all the property, as well as to the debts to become due, I know not; but it would be dangerous at such a distant period to recur to the literal construction of the statute. There is no case, except Tudway v. Bourn, in which there has been a special assignment, and that was in the case of a legatee. In the case of Jacobson v. Williams, Lord Harcourt, as to the objection, that the assignment was made before any right to the legacy vested in the wife, said, it was not so much to be regarded, because the commissioners might supply it by making a new assignment, On the grounds stated in Fowler v. Down, which were mentioned by the very learned person who made the observations in that case upon the stat. 13 Eliz. c. 7, whether supposing a bankrupt uncertificated incapable of acquiring property beneficially to himself, he can recover for the use of the assignees, that has been determined in a multiplicity of cases, as in Thompson v. Chippendale. Upon the first of these cases, it might have been more convenient to have remedied the defect by an act of parliament, than to have come to that decision. It was said there, that if the assignees did not interfere, the bankrupt might recover in his own right. Lord Mansfield said, that otherwise he would be starving; and perhaps the hardship of the case warped a little the decision. After 30 years acquiescence, we will not disturb it; but here, the assignees have claimed the 1805. HITCHEN versus BARTSCH. money as due to them; which differs the case from all which have been decided upon that principle." GROSE, J. "I am of the same opinion on both points. After the decision of so able a judge as Lord Hardwicke, in the case of Proudfoot, it would be removing landmarks to doubt whether a second assignment would be necessary." LAWRENCE, J. "I am of the same opinion upon both points. It would be too late now to enter into the construction of the statute 13 Eliz. c. 7, s. 11, The bankrupt is only entitled to recover in case the assignees have not interfered, and no case of interference can be more, clearly stated than it is here. If they had not insisted upon the payment, but had relinquished their demand after making it, the plaintiff might have replied to it,and shewn that the interference was not such as to bar the right of the plaintiff. LE BLANC, J. "On the second point, in all cases where the bankrupt has been permitted to recover, and where there have been rules for the assignees to give security for costs, the courts have always admitted the authority of the assignees to claim the money. These are very strong authorities. If these actions are brought by the assignees in the name of the bankrupt, the assignees are made to give security for the costs. But the courts have said that where the assignees do not claim, they will not turn the plaintiff round by setting up such a claim, where it does not exist. That is the same as saying, that if the assignees do claim it we will permit them to take it." JUDGMENT for the DEFENDANT, ELIZ. TRENT, Widow, and Others, against JoHN HANNING and Others.-18th Dec. 1805. 1805. tee of inherit A testator having an estate settled on himself for life, re. Devise. Trusmainder in trust to secure 500l. a-year to his wife in lieu ance. Estate of dower; remainder to trustees for 200 years, for the by implication, better securing of the annuity; remainder tɔ himself in fee; gives 2001. per unnum to his wife in addition to her jointure, his just debts being previously paid; and appoints three persons 66 as trustees of inheritance for the execution hereof;" held, dissentiente, LAWRENCE, J. "that the trustees take an estate in fee in remainder, subject to the term of 200 years." THE following case has been sent by the right honourable the Lord Chancellor for the opinion of. the judges of the court of King's Bench, John Trent, being seised in fee of certain planta, tions, and premises in the island of Barbadoes, in contemplation of a marriage between him and Eliza Phipps, which soon afterwards took effect, by indentures of lease and release, bearing date the 29th and 30th days of October, 1792, bargained, sold, aliened, released, and confirmed the said plantations and premises lo Samuel Estwick, to hold to the said Samuel Estwick, his heirs and assigns, to the use of the said John Trent, till the marriage, remainder to the use of the said John Trent and his assigns for life without impeachment of waste, with remainder in trust to secure an annuity of 5001. a year for her life to the said Eliza Phipps, in lieu of dower, with remainder to trustees for 200 years, for better securingthe payment of the said annuity; with remainder to the said John Trent in fee. The said John Trent on the 5th day of August, in the year 1790, made his last will and testament in writing (duly executed and attested, so as to pass real estates,) in the words following (that is to say); "I John Trent do hereby give unto my wife 2001. per annum during her natural life, in addition to her jointure, my just debts being TEENT and Others Versus HANNING and Others. 1805. TRENT previously paid; and I do give unto my two younger children 6000l. each, to be paid when they severally come and Others to the age of 21; and I do appoint John Hanning, William Hanning, and Constantine Phipps, as trustees and Others. of inheritance for the execution hereof." The said versus HANNING John Trent afterwards died without revoking or altering his said will, leaving his widow, the two younger children mentioned in his will, and a child born afterwards, to whom he gave 6000l. by a codicil,him surviving. The said Constantine Phipps survived the said John Trent, and is since dead. The questions for the opinion of the court are, whether the said John Hanning, William Hanning, and Constantine Phipps, took any and what estate or interest in the real estates of the said John Trent; or, whether they bad by virtue of such will a power to make any conveyance or appointment of any and what estatę or interest of or in such real estates; and if they had, whether such power survives to the said John Hanning and William Hanning? This case was argued in Easter term, 1805, PEAKE, for the plaintiff. "The intention of the testator, was to make provision for the payment of his debts, and for his widow, and his youngest children, the eldest son being provided for; and he intended to do this out of his estate in fee, for he executes his will so as to pass lands; he charges 2001. per annum, for his widow in lieu of her jointure, charged on lands, whereby he contemplates the same security, and he appoints three persons trustees of inheritance, for the execution of the pusposes of that will. This word inheritance can only apply to land, and not to personalty, and must further import a descendible interest in land, and he must thereby intend to devise the inheritance to the trustees and their heirs, till the trusts of the will are fully completed. And if the purposes of the will require a fee to be vested in them, they will take |