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bankrupt: Wright v. Fairfield(a). In Raymond v. Fitch (b), Exch. of Pleas,

1841. it was held that an executor might sue for the breach of a covenant with the testator, not to fell or lop timber trees

BECKHAM excepted out of the demise, the breach having been committed in the testator's lifetime, and no part of the timber loppings appearing to have been removed by the defendant. In that case all the authorities on this subject were collected, and Lord Abinger, C. B., in delivering the judgment of the Court, says :-"The maxim, that actio personalis moritur cum personâ, is not applied in the old authorities to causes of action on contracts, but to those in tort, which are founded on malfeasance or misfeasance to the person or property of another, which latter are annexed to the person, and die with it, except where the remedy is given to the personal representatives by the statute law." On the same principle, those actions which do not pass to the assignees in bankruptcy are merely actions of tort to the person, in the natural sense of that word. The words of the act (6 Geo. 4, c. 16, s. 63), " all the present and future personal estate of the bankrupt,” are very ample, and are sufficient to include a chose in action, which, after the breach of the contract, the right to damages amounts to.

Stammers, in reply.-An assignee of a bankrupt does not stand in the same situation as an executor; for whatever may be the position of an executor as representing his testator, it is certain that the assignees of a bankrupt are only entitled to take such property as would be distributable among the creditors. Now, it would be giving the creditors a species of property to which they have never before been deemed to be entitled, if they could take any interest in the personal skill and labour of the bankrupt, or in any contract founded thereon. The distinction

(a) 2 B. & Adol. 727.

(6) 2 C., M. & R. 588.

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Exch. of Pleas, which has been contended for on the other side, between 1841.

contracts and torts, is not correct. If the assignees are BECKHAM

entitled to every cause of action arising from a contract, they would be entitled to the damages for a breach of promise of marriage, which clearly do not pass to them, although they arise from a cause of action ex contractu, for which the only remedy is in assumpsit. Again, it is said that the torts for which alone the bankrupt can maintain an action in his own name, are torts to the person

of the bankrupt, in the natural sense of the word; but that clearly is not so: if it were, how could the bankrupt maintain an action in his own name for slander, libel, or any of those injuries which affect his character or feelings? The true distinction is, that the assignees may maintain an action for the bankrupt's real property, and upon every contract relating to it, for the bankrupt's personal property, and upon every contract relating to it, and even upon any contract arising out of a subject of property, as in Wright v. Fairfield; but on the other hand, for any thing affecting the bankrupt's person, or any of its incidents, whether it be his body, his character, his feelings, or (as in this case) his personal skill and labour, the assignees cannot interfere. They are the assignees only of his property, not of his person, or any of its incidents. The laws of this country do not, like some ancient systems of law, absolutely deliver up the bankrupt to the mercy of his creditors; they consign to his assignees all his property, real and personal, but he is protected with the utmost jealousy from their interference in every thing that relates to his person or personal acquirements, his character, or his feelings. The true rule is that laid down in Cullen’s Bankrupt Laws, that, if the cause of action does not arise out of a subject of property, it will not pass to the assignees.

Cur. adv. vult.

The judgment of the Court was now delivered by

PARKE, B.—This is an action on a contract, whereby Exch. of Pleas,

1841. the defendants agreed to employ the plaintiff for seven years, as foreman in a business requiring his personal skill. BECKHAM The contract was broken by dismissing the plaintiff alto- DRAKE. gether; the plaintiff then became bankrupt, and the question is, whether the right of action for the breach of the contract passed to his assignees.

There is a clause in the agreement, that, in case either of the parties shall not observe the contract, he shall pay to the other £500 by way of liquidated damages; but there being many stipulations on each side, of different degrees of importance, it is admitted that the case cannot be distinguished from that of Kemble v. Farren (a), and consequently, the defence is not rested on the ground, that by the breach a sum certain became due to the bankrupt, which the assignees had a right to as being in the nature of a debt. The question then is, whether the right to sue for unliquidated damages for the bygone breach of such a contract, passes to the assignees?

Under the 6 Geo. 4, c. 16, s. 63,"all the present and future personal estate of the bankrupt, and all debts due to him," are assigned and rendered recoverable by the assignees; and under these terms are comprised not merely personal chattels and debts, properly so called, but all rights of action for injuries to personal chattels, and for breaches of contract relative to the personal estate of the bankrupt, whereby that estate is prevented from coming to the hands of the assignees, or diminished in value. In such cases, if the wrongs had not been committed, or if the contract had been performed, the bankrupt's personal estate would have been larger: Hancock v. Caffyn (6). The terms of the section include also every beneficial contract, executory or part executed, which the assignees could perform, and thereby add to the personal estate: Gibson v.

(a) 6 Bing. 141.

(6) 8 Bing. 358; 1 M. & Scott, 521.

Exch. of Pleas, Carruthers (a). This contract is not one of that descrip1841.

tion. On the other hand, the right of action for damages, BECKHAM for torts committed towards the bankrupt's person or re

putation, clearly does not pass to the assignees; nor for trespasses quare clausum fregit, and to things fixed to the freehold: Clarke v. Calvert (6); nor for trespasses per quod servitium amisit (c); nor would a right of action for the breach of all contracts pass. There are some for which an executor could not sue, as for breach of promise of marriage to a female, without special damage to the personal estate : Chamberlain v. Williamson (d); nor would it seem that he could sue for breach of contracts relating to the person of the deceased, as for negligently carrying him by a coach or vessel, or negligently conducting his cure, whereby his person was injured, or negligently conducting a suit, whereby he was imprisoned. And the rights of an executor are not so limited as those of an assignee; he stands in the place of the testator, by the common law, and represents him as to all his contracts and personal rights, whether they are available as assets for the payment of his debts, or not; for his liability to pay debts is the consequence, not the object of his appointment: but an assignee is appointed by statute for the purpose of distribution amongst creditors, and takes only those beneficial matters (to use the language of Lord Tenterden, in Wright v. Fairfield (e), which may be applied. There would be no difficulty in saying, therefore, that actions for breaches of such contracts as relate to the person simply would not pass to the assignees. But suppose the result of a breach of contracts relating to the person to be a damage, not to the person only, but also to the personal estate; as, for instance, if, in the case of negligent carriage or cure, there were consequential damage, that the plaintiff had expended

DRAXE.

p. 601.

(a) Ante, 321.
(6) 8 Taunt. 742 ; 3 Moore, 96.
(c) Howard v. Crowther, ante,

(d) 2 M. & Sel. 408.
(e) 2 B. & Adol. 727.

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his money, or had lost the profits of a business, or the wages Exch, of Pleas,

1841. of labour, for a time; or suppose a joint contract to carry

BECKHAM both the person and the goods, and both were injured, the executor probably might sue for a breach of such contract, and recover damages to the extent of the injury to the personal estate; and there is no other who could sue: but could the assignee of a bankrupt sue in any of these cases ? Could the right of action on the contract be divided into two on the bankruptcy, and the bankrupt sue for one part, and the assignee for another? It might, perhaps, where the contract itself originally related to both; but could it where the contract relates to the person only, and the consequence of a breach of it is an injury to the personal estate as well as to the person? No case has yet gone so far as to hold that any right of action on such a contract passes to the assignees, by reason of consequential damages to the estate; and it cannot be lost altogether; and the sounder principle seems to us to be, that the bankrupt should sue upon it, as it relates to the person of the bankrupt (the damages, when recovered, if recovered before the certificate, of course belonging to the assignees, as after-acquired personal estate); and that the assignees can only sue for the breach of such contracts as in their nature relate to personal estate, or to some subject of property which does not pass to the assignees.

In that view of the case, the present action would not pass: it relates to the person ; it is for the employment of the personal skill and labour of the bankrupt, and the damage for the breach of it would be compounded partly of the personal inconvenience to himself, and partly of the consequential loss to his personal estate, by reason of his not being able to earn so much in another employment. We think that the plaintiff is entitled, notwithstanding his bankruptcy, to sue on such a contract as this, and that our judgment on this demurrer must be for the plaintiff.

Judgment for the plaintiff.

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