Exch. of Pleas, 1841. July 10. A. agreed in writing with B. and C., on behalf of themselves and D., as partners in the business of type-founders, serve them, and faithfully to the survivor of them, for seven years, as their foreman, and not to engage in trade on his own account for that period without their consent; and B. and C. agreed to pay him wages after the rate of 31. 3s. weekly, so long as he should serve them faithfully:Held, that the right of action for a breach of this agreement, by the dismissal of A. from their service without reasonable cause, did not pass to the assignees of A. on his bankruptcy; the : BECKHAM V. DRAKE, KNIGHT and SURGEY. ASSUMPSIT. The declaration stated, that the defendants were united in co-partnership, and used and exercised the trade and business of type-founders, stereotype-founders, and letter-press printers; and that the said W. M. Knight and J. Surgey were the ostensible partners, and W. W. Drake was a secret partner in the said co-partnership that at the time of making the memorandum of agreement thereinafter mentioned, the plaintiff was in the employ of the defendants as their foreman, but without any permanent engagement, and the defendants were desirous of continuing their connexion together for seven years from the 20th of October, 1834; and thereupon, on the 23rd of October, 1834, the said W. M. Knight and J. Surgey, on behalf of themselves and the said W. W. Drake, as such partners as aforesaid, made and entered into a certain memorandum of agreement with the plaintiff, as follows: "Memorandum of an agreement made and entered into this 23rd day of October, A.D. 1834, between William Moxey Knight and John Surgey, of Bishop's Court, Old Bailey, in the city of London, type-founders, stereotypefounders, and letter-press printers, and co-partners, of the one part, and Daniel Beckham, of the same place, of the other part, as follows: Whereas the said D. Beckham hath been for some time in the employment of the said W. M. ployment of the Knight and J. Surgey, as their foreman, in carrying on their said trades of type-founders, &c.; and the said parties to these presents are mutually desirous of continuing their connexion together for the term of seven years from ing compound the date of these presents. Now these presents witness, personal incon- that the said D. Beckham, for the considerations herein contract relating to the em. personal skill and labour of the bankrupt, and the damages for the breach of it be ed partly of the venience to himself, and partly of the consequential loss to his personal estate. 1841. BECKHAM v. DRAKE. after mentioned, doth hereby covenant and agree to and Exch. of Plecs, with the said W. M. Knight and J. Surgey, and the survivor of them, in manner following, (that is to say), that he the said D. Beckham shall and will well and faithfully serve the said W. M. Knight and J. Surgey, and the survivor of them, for and during the term of seven years, to commence and be computed from the day of the date of these presents, as their foreman, in the management and carrying on of their said trades of type-founders, &c.; and shall and will, to the best of his power, promote and advance the success and prosperity of the said W. M. Knight and J. Surgey in their said trades; and also that he the said D. Beckham shall not nor will, during the said term of seven years, be engaged or concerned in the same or any other trade or business, either on his own account, or on account of, or for the benefit of, any other person whatsoever, other than the said W. M. Knight and J. Surgey, and the survivor of them, without the consent of the said W. M. Knight and J. Surgey, or one of them, in writing, first had and obtained for that purpose; and the said W. M. Knight and J. Surgey, for the considerations aforesaid, do hereby, for themselves and the survivor of them, covenant and agree to and with the said D. Beckham, that they the said W. M. Knight and J. Surgey, or the survivor of them, shall and will employ the said D. Beckham as their foreman, in carrying on, managing, and conducting the said trades of type-founders, &c., during the said term of seven years, if the said W. M. Knight and J. Surgey, or either of them, shall so long live, and the said D. Beckham shall well and faithfully observe and keep the covenants and agreements hereinbefore on his part contained; and that they, the said W. M. Knight and J. Surgey, or the survivor of them, shall and will pay to the said D. Beckham wages after the rate of 31. 3s. of lawful money weekly. And it is hereby mutually agreed and declared by and between the said parties hereto, that in case either of the Erch. of Pleas, said parties shall not well and truly observe, perform, and 1841. BECKHAM v. DRAKE. keep the covenants and agreements herein on their respective parts contained, that then and in such case the party so failing or making default shall and will pay to the other of them £500, by way or in the nature of specific damages. In witness," &c. The declaration then averred performance of the agree ment by the plaintiff during the time he remained in the service of the defendants, and that the plaintiff was ready and willing to have continued in the service of the defendants, and to have performed the agreement, but that the defendants, before the expiration of the seven years, without reasonable or sufficient cause, dismissed and discharged him from their service, &c. The defendant Knight allowed judgment to go by default. The two other defendants severally pleaded: first, non assumpsit; secondly, the bankruptcy of the plaintiff. To the latter plea the plaintiff demurred generally, on the ground that the contract set out in the declaration being a contract for the personal labour of the plaintiff, his cause of action did not pass to the assignees. The defendants' points were, that the breach of contract complained of, having occurred before the bankruptcy of the plaintiff, the damages resulting therefrom formed part of the personal estate of the bankrupt at the time of his bankruptcy, and therefore passed to his assignees. The case was argued on the 25th June, by Stammers for the plaintiff. The principles upon which this demurrer is to be supported are laid down in the case of Chippendale v. Tomlinson (a), where Lord Mansfield said, "The only question is, whether the assignees of a bankrupt are entitled to the profits arising from his personal labour. The assignees cannot let out the bankrupt. They cannot (a) Cooke's Bankrupt Laws, 260. 1841. BECKHAM v. DRAKE. contract for his labour." Similar expressions are used by Exch. of Pleas, Lord Kenyon in Silk v. Osborne (a). He said, "the assignees could not hire out the bankrupt to make a profit of his labour for their benefit; but that for such demands he should maintain an action in his own name." It would therefore seem to follow, that if the assignees could not have sued for the wages in this case, supposing the contract to have been fulfilled, they cannot have an interest in the damages which are given in lieu of the wages, upon a breach of the contract. Another ground upon which the plaintiff is entitled to judgment, is put in Cullen's Bankrupt Laws, p. 177, where he says, "But a right of action for slander is not assignable, on account, it is said, of its uncertainty; but another reason may be added, namely, that it does not arise out of a subject of property, but is only a right to a satisfaction for a mere personal injury, which in its own nature cannot pass to a representative." So here, the cause of action does not arise out of a subject of property, but is merely a right to recover damages for the wrongful dismissal of the plaintiff from his employment the £500 mentioned in the contract, being only in the nature of a penalty, within the principle of the case of Kemble v. Farren (b). But a more general ground upon which this demurrer may be supported is, that the cause of action is personal to the bankrupt, and therefore did not pass to his assignees. This principle was recognised by this Court in the recent case of Howard v. Crowther (c), in which it was held that a right of action for seduction does not pass to the master's assignees on his bankruptcy; and it has also been recognised in cases of libel and slander, which are injuries to the character of the bankrupt, in an action for an assault, which is an injury to his person, and in actions for criminal conversation and breach of promises of marriage, (a) 1 Esp. 140. (b) 6 Bing. 141. (c) Ante, 601. 1841. BECKHAM 17. DRAKE. Exch. of Pleas, in which the injury is, in part or in whole, to the feelings of the bankrupt. Other cases are mentioned in Chamberlain v. Williamson (a). And in this case the cause of action is as much personal to the bankrupt as in any of those above cited, this being an injury in respect of the bankrupt's personal skill and labour. In Siboni v. Kirkman (b), Parke, B., appears to extend the same principle to executors: He says, "Executors are responsible on all the contracts of the testator broken in his lifetime, and there is only one exception with regard to their liability after his death; that is this, that they are not liable in those cases where personal skill or taste is required." Similar expressions are used by Patteson, J., in Wentworth v. Cock (c). E. V. Williams, contrà. The true test of decision in this case is, whether the right of action would pass to an executor, and it is submitted that it clearly would. Hancock v. Caffyn is in point (d). There the defendant, the lessee of premises, underlet them to N., and put him in possession under an agreement to grant N. a lease, when he should have paid a sum of £1200 by certain instalments during three years, in the meantime paying rent to the defendant on certain days, with a power of distress on non-payment. The defendant received rent from N., but omitted to pay the superior landlord, who thereupon distrained on N. for the arrears; and N. having become bankrupt, it was held, that the damage incurred by the distress was an injury to his personal property, and gave a right of action to his assignees. It may be stated as a general principle, that every action which is founded upon a contract with the bankrupt passes to his assignees. They can maintain an action for unliquidated damages which accrued before the bankruptcy, by non-performance of a contract with the (a) 2 M. & Selw. 408. (c) 10 Ad. & Ell. 42; 2 Per. & D.251. (d) 8 Bing. 358; 1 M. & Scott, 521. |