1797. Mayor and Burgeffes of ย. BOLTON. May 26th. 7 T.R. 392 7 Eaft, 56. 3 Boj 571 Pul.40. nothing. In the case of a mistake in the name or description of BULLER J. The argument of locality will not here decide the queftion; the name in the declaration imports locality, as the Plaintiffs flate themfelves to be the mayor and burgeffes of the borough of Staff.rd, only omitting the county of Stafford. This brings the cafe within the diftin&tion laid down in King's Lynne; for there is a difference in omitting matter of fubftance, and mere matter of addition. If the variance can be pleaded in abatement, it cannot in bar. To make it pleadable in bar, it must appear that there is no fuch corporation. The Year Books are decifive, HEATH J. I am of the fame opinion.. In 22 Ed.4. 34. which was an affize by the Mafter, and brethren of the fraternity of the Nine Orders of Angels in B., and the Defendant pleaded, that they were incorporated by the name of the Mafler and Brethren of the Fraternity of All Saints, and the Nine Orders of Angels in B.; the writ was abated, which fhews that a mifnomer may be pleaded in abatement, where the Plaintiff mifnames himfelf. ROOKE J. I think we ought not to be more ftrict than they were in the days of the Year Books, FOWLER v. Down, Rule abfolute. If an order for the delivery of THI HIS was an action of trover brought by an uncertificated goods in the hands of a third person be given to an uncert fi. cated bankrupt bankrupt. The Plaintiff had carried on bufinefs for fome time, and in a confiderable way fince his bankruptcy, and had advanced feveral in payment of a debt accrued subsequent to his bankruptcy, he may maintain trover for them. fums fuins of money to one Davidson, in part payment of which David- Shepherd Serjt. having previously obtained a rule nifi for the above purpose, was this day called upon by the Court to begin in fupport of it. Shepherd. The inference to be drawn from Evens v. Mann, Corp. 569. and Martyn v. O'Hara, Corp. 823. is, that property acquired by a bankrupt after the affignment becomes the property of his affignees: for in thofe cafes there was no new affignment. In the firft of them it was decided, that if a bankrupt fell goods previous to his bankruptcy, the affignees muft fue the vendees as afignces: but where the goods are acquired and fold fubfequent to the bankruptcy, they may fue in their own names. Though 13 Eliz. c. 7. f. 11. fpcaking of perfonal as well as real property coming to the bankrupt, at any time before payment of his debts, directs, that “they fhall be bargained, fold, extended, delivered, "and ufed for and towards the payment cf the faid creditors;" yet the words" bargained and fold," can only apply to fuch property as does not ufually pafs without conveyance: and accordingly it is faid by Lord Hardwicke, 1 Alk. 253. ex parte Proudfoot, "All the future perfonal eftate is affected by the affignment, and "every new acquifition will veft in the affignees; but as to future "real estates, there must be a new bargain and fale." The IJ. 1. c. 15. f. 13. which is the next ftatute empowering commiffioners to affign, operates only on debts due to the bankrupt. The cafe of Chippendale v. Tomlinfon, B.R. T. 25 G. 3. Cooke's Bankrupt Laws, 260. was an action for work and labour done. Plea, that the Plaintiff was a bankrupt. Replication, work done after the commiffioner's affignment for the neceffary fupport of the Plaintiff and his family: rejoinder, no certificate: and demurrer thereupon. Lord Mansfield faid, "The affignees cannot let " out the bankrupt and contract for his labour." But there, if the bankrupt had recovered and reduced the damages into property, that property would have belonged to the affignees, as paffing by the previous affignment. In order to fupport trover, there must be 1797. FOWLER V. Down. be right of property and right of poffeffion: as to the latter, the Plaintiff never can have had it, for the goods have always been in the hands of a third perfon: and as to the former, the affignees have a right paramount. Neither can he be faid to have had fpecial property, for there is no cafe of fpecial property, but where there has once been poffeffion, as in the cafes of a carrier or a bailee. Suppofe the affignees were to fue us for the goods, could we plead a judgment recovered? The cafe of La Roche Bart. and Others v. Wakeman and Others, Peake's N. P. 140. is against us. But that went upon the fame principle as Afhleyv. Kell, 2 Str. 1207. where it was held that an uncertificated bankrupt had fuch a property in future effects, as enabled him to tranfact and fell to a bona fide purchafer: which principle was queftioned within these few days in the King's Bench (a), when the Court feemed to doubt whether an uncertificated bankrupt could give a title or maintain an action for any thing but the earnings of his labour. So in Silk v. Oborne, Efpinaffe's N. P. R. 1 vol. 140. where the action was for work and labour and materials found, Lord Kenyon faid that the work and labour and materials were fo blended together, as to become one joint caufe of action: evidently confining it to the mere cafe of perfonal labour. If any claini by the affignees were neceflary to prevent the bankrupt from maintaining his action, the diftinction laid down between the produce of perfonal labour and other property would be nugatory: for the bankrupt might equally maintain an action in all cafes, until a claim were made by the affignees. 66 Runnington Serjt. for the Plaintiff. In anfwer to the arguments on the other fide I fhall only advert to the cafes on the fubject. In Chippendalev. Tomlinfon an uncertificated bankrupt was held intitled to recover for work and labour done. In Silk v. Ofborne, which was an action for work and labour and materials found, Lord Kenyon faid, "that however the queftion might be between the bankrupt and his affignees, it did not lie in the mouth of third perfons to fet up the Plaintiff's bankruptcy as a defence.” In Evans v. Brown, Efpinaffe's N. P. R. vol.1. p. 170. the fame principle was extended to the cafe of money lent and advanced, where it was held that the loan being fubfequent to the bankruptcy, the money might have been earned by the bankrupt after his bankruptcy; and that if the law allowed him to maintain an action to recover what was due to him for labour, he was equally intitled to (a) See Webb v. Ward and Another, 7 T.R. 296. maintain maintain one for the money fo earned by his manual labour, which he might have lent to a third perfon. This would go the whole length of the prefent cafe, except as to the form of action. But it has been fince exprefsly decided, that trover will lie by an uncertificated bankrupt, and that a defence of this nature does not lie in the mouth of a stranger. La Roche Bart. and Others v. Wakeman and Another. 1797. FOWLER Down. EYRE Ch. J. What fhall be done between the bankrupt and 7 Eaft, 60. the affignees or creditors is one thing, and what between him and 15 Euft, 628. a ftranger is another. This narrow ground, that the bankrupt has a right against every body but the affignees, which is maintained by authorities, is fufficient to fupport the verdict. It is not true, that in cafes of fpecial property the party must once have had poffeffion in order to maintain trover; for a factor to whom goods have been configned, and who has never received them, may maintain fuch an action. But this is not a cafe of fpecial property, it is a ftronger cafe; it is entire property, though defeafible, or to fpeak more correctly, liable to be divefted. It is not competent to a third perfon to difpute the bankrupt's title to recover, who, fuppofing his creditors had no claims upon him, would be intitled to his action, becaufe whether they have fuch clainis or not is nothing to the ftranger. I confefs the theory of the cafe inclines me to go further. The bankrupt laws principally and most directly relate to that eftate which the bankrupt had at the time of the affignment; there are provifions for taking the account and afcertaining the cftate of the bankrupt at the time of the affignment; I recollect no fuch provifion for the future effects; nor was it neceffary, for where future effects are spoken of, they are supposed to be specific effects to be specifically conveyed by fubfequent affignment, as was done in the cafe of Tudxay v. Bourn, 2 Burr. 716. It is true, that unless the bankrupt's eftate is fufficient to pay twenty fhillings in the pound, the creditor will be intitled to a fatisfaction for his debt out of effects acquired fubfequent to the firft affignment. But it cannot therefore be faid that the property is not his own until fuch affignment, or that it is not his own because he is uncertificated. The operation of a certificate is fimply to difcharge the bankrupt from the old debts. A certificate is not like a pardon; it is not neceffary to make him a new man. In my apprehension it could not be enough for a creditor or an affignee to say that he is uncertificated; even to intitle them to an affignment of future effects under the ftatute, they muft fhew that they have debts un 1797. FOWLER บ. DowN. Eaft, 56. paid; à fortiori a ftranger ought not to take advantage of his being uncertificated, which affords but a prefumption at moft that there are debts unpaid. The bankrupt who has not obtained his certificate (which is all that is meant by the word uncertificated) ftands on the footing of the 13 Eliz. c. 7.; by which, if the effects at the time of the bankruptcy are infufficient to fatisfy the creditors, his future effects are made liable to be affigned. That is but in the nature of an execution and is reasonable, and the Court will give effect to the demands of the affignees or creditors, as long as any debts are due, in the mode pointed out by the ftatute, but I think not otherwife. The hardship and inconvenience, nay, the injuftice, as it feems to me, of this dif abling doctrine, is enough to condemn it. BULLER, J. This is clearly a cafe of property acquired subfequent to the bankruptcy. Evans v. Mann and Martyn v. O'Hara were queftions between the bankrupts and the affignees; all the other cafes agree very well with Ashley v. Kell. There the Court thought that the bankrupt had a property in goods acquired after the bankruptcy, and might affign to a bona fide purchafer. But the affignees may claim, and if they do, they fhall fucceed. So in La Roche v. Wakeman, Lord Kenyon faid, "If the affignees take any steps to difaffirm the title, they may "do fo; but if they do not, the bankrupt being the oftenfible "owner, may convey a title, and it is not competent to third per"fons to object." Allowing that the affignees might demand the money, ftill it would be no bar to this action. Why? because a third person has treated with the bankrupt as capable of receiving credit. All the authorities go this length. HEATH J. The 13 Eliz. c. 7. S. 11. directs that the future property of a bankrupt fhall be "bargained, fold, extended, deli"vered, and used for and towards the payment of the creditors." The antient practice was, for the commiffioners to affign fpecific parts of the bankrupt's property to each particular creditor: and the 5 G. 2. is the firft ftatute which directs the choice of affignees for the benefit of all the creditors. When it became the practice to make over all the property to the affignees, the general affignment was held fufficient to pafs the future effects. But the queftion here is not whether the bankrupt can fell, but whether a ftranger having purchased of him can difpute his title. He has a defenfible property, which none but the affignees can defeat. He is like an alien who may purchase lands and maintain an action for them, 1 unlefs |