1805. TRENT and Others versus HANNING ture, is but the giving that sum over and above the jointure, and it will not be the less an addition to it, if it be payable from a different fund. The legacies to the children are given in terms as general as possible, and Others. The principal ground on which it has been contended that the testator devised his lands for the payment of them is furnished by that part of the will which appoints certain persons to be trustees of inheritance, for the execution thereof; which expression, though it may furnish ground to conjecture that the testator meant that they should take his real estate, to enable them to execute his will, is, in my opinion, too uncertain to have such effect as was contended for on the behalf of the plaintiffs. The use of any expression made so inaccurately, as it cannot but be admitted this has been, without any circumstance to fix and mark its sense and meaning, and that by a person so ignorant of legal forms as the testator appears to have been, will not, I think, authorize the court to say that it must be understood with reference to his real estates. The word "inheritance" may have been supposed by him to be more generally applicable to things personal than it is, when properly used; or that the mode in which, things real and personal are transmitted to those who, as the representatives of their owners, are entitled to them on their deaths, was an acquisition by inheritance as much in the one case as in the other; or he might suppose that things personal would descend to an heir; or he might mean by the expression he has used to point out those whom he meant to succeed to the trusts of his will, on the deaths of the persons he had named and that in their heirs those funds should be vested, which, without charging his real estate, would be ap◄ plicable to satisfy the bequests to his wife and children. And I think it will be going much beyond any of the cases, which are to be found in our books, to hold that this will, in any way, affect the real estates of the tes tator. And I am, therefore, of opinion, that John Hanning, William Hanning, and Constantine Phipps did not 1805: TRENT versus HANNING take any estate or interest in the real estates of the said and Others John Trent, under and by virtue of his will, and that they had not, by virtue of his will, a power to make and Others any conveyance or appointment of any estate or inter est of or in such real estates. S. LAWRENCE. IN THE EXCHEQUER. LANE (Assignee of JONES, an insolvent Debtor) against CHANDLER.-May 27, 1805. Insolvent deb Issue on several Action of covenant by the assignee of an insolvent debtor, under Pleading. the 41 Geo. III. c. 70, on a covenant with the latter to pay tor. Stat. 41 him 120l. on the death of A. B. The defendant pleaded an Geo.3, c. 70. assignment thereof by way of mortgage for 611. to C. pre- facts. Bankvious to the assignment to the plaintiff, which mortgage be- ruptcy. same forfeited, and that C. gave notice thereof to the defendant. He also pleaded, that before the assignment, Jones be came indebted in 1001. and was a bankrupt, and that a com mission issued, and that the insolvent was found a bankrupt, and his effects were assigned, &c. Replication, that the sum due on the covenant exceeded the sum in the mortgage and to the plea of bankruptcy, the plaintiff, admitting the commission and the finding of the commissioners, and their assignment, traversed the residue of the plea. Held, upon general demurrer to the former plea, and special demurrer, for a multifarious traverse, to the latter, that the plaintiff might recover the surplus of the money due beyond the mortgage, and also, that the residue of the plea of bankruptcy made but one point of defence, and might well be put in issue together, LANK versus THIS was an action of covenant, brought by the plaintiff, as assignee under the statute 41 Geo. III. CHANDLER. c. 70, of one Jones, an insolvent debtor, on a deed dated the 26th of August, 1795; whereby the defen 1805. LANE versus dant covenanted, on the death of J. G. Baylis, to pay to Jones 120l. which, though the event had taken place, he had failed to do. To this the defendant CHANDLER. pleaded the following pleas, 1st, non est factum; 2d, an assignment by Jones to one New, dated the 23d of November, 1795, of the sum sued for, by way of mortgage, to secure the repayment to New, of 611. 10s. 6d. and interest, lent to Jones; which assignment was also stated to contain a power of attorney to New to sue in the name of Jones, and also a proviso for redemption upon payment to New of 611. 10s. 6d. on the 24th day of December, 1795. The plea then stated that the money was not paid on the day. Whereby all right and title of Jones in the 1201. became absolutely vested in New, of all which New afterwards, to wit, on the 20th April 1808, at, &c. gave the defendant notice. 3d, That before the assignment of Jones's effects to the plaintiff, Jones, being a trader, became indebted in 100l. to one W. Hobbins, and became a bankrupt, and on the 7th of April, 1798, a commission of bankrupt issued against Jones, and he was thereupon found a bankrupt; and the commissioners, on the 27th of April, 1798, assigned his effects by deed, for the benefit of his creditors, to certain assignees, whereby such assignees became and were entitled to the residue of the money, and the cause of action in the declaration men◄ tioned; 4th, a plea of set off, REPLICATION, that at the commencement of the suit, there was and is due to the plaintiff, assignee as aforesaid, upon the covenant of the defendant, for the residue of the said 1201. and interest, a large suin of money, to wit, 1001. which exceeds the said sum of 611. 10s. 6d. in the said indenture in the second plea mentioned. To the third plea, the plaintiff replied, admitting the issuing of the commission of bankrupt, and that the commissioners found Jones a bankrupt, and that the assignment was made of his effects, but nevertheless traversing the residue of the facts mentioned in that plea, and concluding to the country. On the plea of set off, the plaintiff took issue, and the defendant demurred generally to the replication to the second plea, and to the replication to the plea of bankruptcy, the 3d plea, the defendant demurred, assigning for cause, that the replication endeavoured to join and put in issue various distinct matters of fact which ought not to be joined and put in issue together. The plaintiff thereupon joined in the demurrer. In Trinity term, 1804, JERVIS, for the defendant, in support of the demurrer, made two questions; first, whether the plaintiff, who is the assignee of an insolvent debtor under the stat. 41 Geo. III. c. 70, is entitled to recover, from a debtor of the insolvent a sum of money, which was assigned by the insolvent, before his insolvency, to a third person for a valuable consideration? And secondly, a question of form, whether the replication to the third plea is not multifarious, by reason of its at tempting to put in issue various distinct matters of fact, each of which might be made the subject of a distinct traverse?" In support of the first objection, it is not necessary to contend that a chose en action, as this debt is, can be assigned, so as to entitle the assignee to maintain the action in his own name: but the ques tion here is, whether this assignment would have entitled the assignee to recover the debt in the name of the assignor; or whether it did not constitute the assignor a trustee for the assignee, so as to prevent any interest from passing to the plaintiff as assignee under the insolvent act. Courts of equity have always held such assignments to be good, and that notwithstanding the assig 1805. LANE versus CHANDLER. 1805. LANE versus nor afterwards became a bankrupt. Unwin v. Oliver, and ex parte Byas.† Courts of law have also taken notice of trusts in many instances, as in Bottimley v. CHANDLER. Brook, and Rudge v. Birch." He relied, however, principally on the case of Winch v. Keeley,|| as being precisely in point. There it was held that the assignor of a chose en action who is become a bankrupt may sue the debtor for the benefit of the assignee. Now here the title of the plaintiff is similar to the title of the assignees of a bankrupt; and on the construction of the stat. 1 Jac. I. c. 15, s. 13, it has been held, that such things as a bankrupt holds as a trustee do not pass under his commission. Here is an assignment of the whole debt, with a condition for making the same void, which has not been performed, and therefore the assignment is now absolute, and there is a power of attorney to the assignee to sue in the name of the assignor, which is not revocable, being a power coupled with an interest. It must also be an assignment of the whole and not of a part only; otherwise it would tend to a multiplicity of actions." WALTON, contrà. "As to the first question; the assignment of a chose en action cannot be pleaded or taken notice of at law, and the plea of the assignment to New is an insufficient bar. This case is dif ferent from that of Winch v. Keeley, because here the assignment is to secure a less sum than the debt from the defendant amounted to, and it is so confessed on the pleadings. Therefore there is an equitable as well as a legal right in the money vested in the insolvent, and consequently in his assignee; whereas the ground of the decision in Winch v. Keeley is, that the bank * Cited by Lord Mansfield, in 1 Burr. 481. † 1 Atk. 124, C. B. M. 22 G. III. Cited in Winch v. Keeley, 1 T. Rep. ¶ Ib. 622. | Ib. 621. § Co. Litt. 214, 4, 621. |