SECTION IV.

Of Actions by the Assignees.

Ir has been already observed, that assignees have the same remedies by action for the recovery of debts due to the bankrupt, and for all civil injuries with respect to property which has passed to them under the bankruptcy, as the bankrupt himself would have had, if no fiat had been sued out against him (a). It may here be added, that in matters in which no right accrues to the assignees by virtue of the bankruptcy, they can maintain no action which the bankrupt himself might not have maintained. Thus, A., B., and C. were partners, and C. and D. were partners in a distinct partnership. C. being indebted to the firm of A., B., & C., fraudulently indorsed to that firm bills, the property of C. and D., in the name of C. and D., in part discharge of his debt; he likewise, in further discharge of the debt, paid money out of the funds of C. and D. to the firm of A., B., & C. The firm of A., B., & C. was dissolved, and C. and D. became bankrupt. It was held, that, as the principals could not, so neither could the assignees of C. and D. maintain an action against A. and B., either of trover for the bills, or of assumpsit for the money misapplied (b).

But, in matters in which a right accrues to the assignees by virtue of the bankruptcy, they may maintain an action, though the bankrupt himself could not; as, for instance, in respect of goods of the bankrupt seized in execution after an act of bankruptcy. Thus, subject to the limitations contained in the 108th section of the statute, if a creditor levy an execution upon goods. in his debtor's possession after the debtor has committed an act of bankruptcy, and receive the produce of it from the sheriff, the debtor's assignees may recover the amount in an action for money had and received (c). And again, if any of the bankrupt's goods be taken in execution after the act of bankruptcy, and before they are seized under the commission and sold, the

(a) Ante, p. 579.

(b) Jones v. Yates, 9 Barn. & Cres. 532; 4 Man. & Ryl. 613.

(c) Kitchen v. Campbell, 3 Wils. 304.

assignees may recover the value of them in an action of trover against the sheriff (a).

II. In actions by assignees, all of them who are living must join as plaintiffs (b). Otherwise, in actions ex contractu, the plaintiffs will be nonsuited (c), or the defendant may take advantage of the defect by plea in abatement, or (if the error appear on the face of the record) by demurrer, motion in arrest of judgment, or writ of error (d); but in actions ex delicto, the defendant can avail himself of the defect by plea in abatement only (e).

III. 1. In an action by assignees in that character, they must, in most cases, state themselves to be such in the beginning of the declaration (ƒ).

The assignees under a joint fiat may sue for money had and received to the use of each partner (g); for if, as Lord Ellenborough said, joint assignees could not recover the separate debts of one or more partners, there would be an end of enforcing such demands (h). But assignees under a joint fiat, when suing for a separate demand, are not obliged to describe themselves as assignees of all the bankrupts. It is sufficient if they describe themselves as assignees of that bankrupt for whose separate demands they sue (i). And in one case, Park, J., observed, that if assignees under a joint fiat declare for the

separate property of one partner, they must declare as the assignees of that one (a).

Where the fiats are separate, and the same persons are appointed assignees under each, they may declare for a joint demand due to all or any number of the bankrupts, describing themselves as assignees of those bankrupts. For instance, where there was a firm of three partners, two of whom were in partnership with two others, and the four became bankrupts, and a joint commission being issued against them, a separate commission was afterwards awarded against the third partner in the firm of the three, under both which commissions the plaintiffs were elected assignees, it was held, that inasmuch as the entire rights of the three vested in them, they might declare as their assignees (b). So, a declaration by persons "assignees of the estate &c. of A. and B., and also assignees of the estate &c. of C.," for a joint debt due to A., B., and C., was held good on motion in arrest of judgment (c).

In the preceding case the objection arose after verdict; and Lord Kenyon, considering that the objection could only be made on the record, observed that there was nothing upon the record to shew that the plaintiffs did not claim under a joint commission against all the bankrupts, or under a separate commission against each, in either of which cases the action might well be maintained. Mr. Justice Buller, however, considered the objection untenable, whether two commissions appeared on the record or not.

But where separate proceedings are had against several partners, and different persons are appointed assignees under them, although they must all join in an action to recover a joint demand, yet they cannot sue as joint assignees, but must state their several and respective interests in the declaration : and an error in this respect will be a ground of nonsuit. In Ray v. Davies (d), the plaintiffs A., B., and C. brought an action of trover, as assignees of the estate and effects of D., E., and F. At the trial, it appeared that three separate commissions had been issued against the bankrupts, who were partners at the

(a) Hogg v. Bridges, 8 Taunt. 202. They "may and ought" to declare as the assignees of that one. 1 Chit. Pl. 17.

(b) Scott v. Franklin, 15 East,

428.

(c) Streatfield v. Halliday, 3 T. R.

782.

(d) 8 Taunt. 134; 2 Moore, 3.

time of the bankruptcy. The first commission was against Z. and E., trading under the firm of Z. & Co.; the second against D., E., and F., trading under the firm of D. & Co., and the third was against F. alone. It further appeared, that A. and B. were assignees under the first commission, C. sole assignee under the second, and C. also sole assignee under the third. Burrough, J., before whom the cause was tried, considered the action not maintainable, and directed a nonsuit, on the ground that the action, being brought by the plaintiffs as assignees generally of A., B., and C., the declaration should have stated with precision what interest the plaintiffs actually had. They were assignees under different commissions of the separate property of the bankrupts, and were not, jointly or severally, the assignees of the estate and effects of the bankrupts, as stated in the declaration. The Court of Common Pleas held the non

suit to be right.

III. 2. It has been held that the same persons, assignees under separate commissions, cannot declare in the same declaration for separate demands due to each bankrupt; nor for joint demands, and also separate demands. In Hancock v. Haywood (a), the plaintiffs, in their original writ, described themselves as assignees of the estate and effects of L., and also assignees of E., there being no joint commission against the two; and declared for goods sold and delivered by both the bankrupts, and also for goods sold by each of the bankrupts, and for money paid, and money had and received by the defendant to the use of each of the bankrupts, and also for money had and received to the use of the assignees, on separate counts. A verdict had been found for the plaintiffs, and damages assessed on the several counts respectively. But the Court of King's Bench were clearly of opinion, that the different rights could not be joined in the same action, but that the plaintiffs might enter up judgment on such of the counts as were for the joint debts due to both the bankrupts.

On the other hand, it has been held that assignees, under a joint commission, may declare in the same declaration for joint and separate demands. Thus, in Graham v. Mulcaster (b), the plaintiffs, in the first, second, third, and fourth counts of their

(a) 3 T. R. 433.

(b) 4 Bing. 115; 12 Moore, 327.

declaration in assumpsit, declared, as assignees of A. and B., for debts due to A. and B. from the defendant, before their bankruptcy; and, in the fifth count, they declared for debts due to them as assignees of B. before A. became a bankrupt. On demurrer, the declaration was held to be good. Best, C. J." It has been objected, that these separate causes of action ought not to have been joined in the same declaration; I think there is no validity in the objection. Under a commission of bankrupt against partners, the joint and separate property of the partners is transferred to the same assignees, who are empowered, also, to recover and distribute the separate as well as the joint debts of the partners; but with the distribution we have nothing to do in a Court of law; therefore, if a debt be due to A., and another to B., the assignees of A. and B. may recover both in one action. If it were otherwise, great and unnecessary expense and inconvenience would be entailed upon the commission."

III. 3. Where two partners become bankrupt at different times, and, between the times of their respective bankruptcies, monies of the partnership are paid, or goods of the partnership taken in execution, it has been decided that their joint assignees cannot maintain an action for the whole or any part of the amount, describing themselves as assignees of the bankrupts.

Thus, where A. and B., partners, became bankrupt, and, between the times of the acts of bankruptcy committed by each, a clerk of the house paid to one of the creditors a sum of money due to him on the balance of his account with the partnership, it was held that the assignees, under a joint commission against A. and B., could not recover these sums in an action in which they declared for money had and received to the use of A. and B. before they became bankrupts, and for money had and received to their own use, as assignees of A. and B., after the bankruptcy of A. and B. (a). So, where A. and B. were partners, and A. committed an act of bankruptcy, and afterwards, but before the bankruptcy of B., the sheriff seized the goods which had belonged to A. and B., under an execution against them, the Court of Common Pleas held that the assignees of

(a) Smith v. Goddard, 3 Bos. & Pull. 465.