3. Of the Contract of an uncertificated Bankrupt.

A bankrupt is clearly responsible upon any agreement which he makes after his bankruptcy; although his assignees, if he be uncertificated, may, generally speaking, interpose and claim the benefit to be derived from the contract.

The assignees acquire all the property and rights which the bankrupt possessed at the time of his bankruptcy; they may even sue for the recovery of unliquidated damages occasioned before the bankruptcy, by the non-performance of a contract with the bankrupt before his bankruptcy (t). They are also entitled to the property which the bankrupt may acquire after the bankruptcy, and before he obtains his certificate. Consequently the assignees are entitled to the benefit of any contract which the bankrupt may have made, at any time before he has obtained his certificate. And this right of the assignees obtains, although the defendant was aware of the bankruptcy, and dealt or treated with the bankrupt as a person capable of receiving credit (u). And where the assignees of an uncertificated bankrupt, by agreement, for a valuable consideration paid to them by a third person, had left the bankrupt's furniture, &c., in his possession, and afterwards, notwithstanding such agreement, seized the same; it was held in trespass by the bankrupt, that they were justified in so doing, as the bankrupt, being uncertificated, could not be entitled to retain any property against his assignees (x). Upon the same principle, where the house of the plaintiff, an uncertificated bankrupt, was broken open, and effects acquired by him subsequently to his bankruptcy were taken by the defendants, who had become his creditors since the bankruptcy, and did not know who were the assignees under the bankruptcy, and the bankrupt having sued the defendants in trespass, they obtained, (after a rule for plea,) a surrender of the assignee's interest in the effects seized; it was held, that this was a ratification of the seizure, and that the plaintiff could not recover (y).

(t) Wright v. Fairfield, 2 B. & Ad. 727. They may maintain case to reeover damages accruing to the estate by reason of the bankrupt's landlord, (the defendant,) having omitted to pay the ground landlord, whereby the bankrupt's goods were distrained. Hancock v. Caffyn, 8 Bing. 358.

(u) Kitchen v. Bartsch, 7 East, 53. In this case the bankrupt sued on a note made to him, and for money lent

by him, after his bankruptcy. As to pleading the plaintiff's bankruptcy where he sues for a debt due to him before the bankruptcy, see Kinnear v. Tarrant, 15 East, 622; Biggs v. Cox, 4 B. & C. 920; 7 D. & R. 409, S. C.; 3 Chitty Pl. 5th ed. 918.

(x) Nias v. Adamson, 3 B. & Ald.

225.

(y) Hull v. Pickergill, 1 B & B. 282; 3 Moore, 612, S. C. In Clark

But the right of the assignees, in regard to contracts made, and property acquired by the bankrupt after his bankruptcy, and whilst he is uncertificated, is not absolute. It is a power or right to be exercised by themselves only, at their option; and until they elect to exercise it, the bankrupt is quodam modo the owner of the after acquired property, and legally entitled to sue upon contracts made by him after his bankruptcy; although he had not obtained his certificate.

This principle appears to be now clearly settled; and the rule is, that an uncertificated bankrupt may sue on an agreement made by him after his bankruptcy, although he has not obtained his certificate, unless the assignees interpose and claim the benefit of the contract.

Chippendale v. Tomlinson (z) was one of the first cases on this subject. It was an action on an attorney's bill. The defendant pleaded the bankruptcy of the plaintiff before the bill was incurred, and the defence was held insufficient, as it did not appear that the assignees had interfered and claimed the debt. The same doctrine has been acted upon in actions for the recovery of money due on a promissory note, payable to, and indorsed by, a bankrupt whilst uncertificated (a); and for the price or value of goods sold (b); or work done, and materials found (c) by him.

In Coles v. Barrow (d), it was held by Mr. Justice Heath, and Mr. Justice Chambre, (against the opinions of Sir James Mansfield, C. J., and Mr. Baron Graham, and, it seems, that of Mr. Justice Lawrence,) that if the assignees of a bankrupt manufacturer employ him whilst uncertificated, in carrying on the manufacture for the benefit of the estate, and pay him money from time to time, this is evidence of such a contract between him and his assignees as will enable him to recover from them a

v. Calvert, 3 Moore, 96; 8 Taunt. 742, S. C., it was held, that where the assignees have not interfered, and taken to land of which the bankrupt was yearly tenant, he may sue for a trespass committed even before his bankruptcy.

(2) 4 Dougl. 318, S. C., in Cooke's Bankrupt, L. 406, 7th ed., and 7 East, 58, note (g); and see Eden, 2nd ed. 255. As to the rule in equity, see Everett v. Backhouse, 10 Ves. jun.94; ex parte Lees, 16, id., 474; ex parte

Storks, 3 V. & B. 105; Holt N. P. R. 174, note. Trover lies by a bankrupt for after acquired goods, if his assignees do not interfere. Webb v. Fox, 7 T. R. 391; see Fowler v. Down, 1 B. & P. 44.

(a) Drayton v. Dale, 3 D & R. 534; 2 B. & C. 293, S. C.

(b) Cumming v. Roebuck, Holt, N. P. C. 172.

(c) Silk v. Osborne, 1 Esp. R. 140. (d) 4 Taunt. 754.

reasonable compensation for his work and labour. The authority of this case may reasonably be doubted (e). It is difficult to perceive upon what ground the bankrupt can have any claim against his assignees; the principle being that all after acquired property passes to them, if they claim it; and they certainly are not responsible, (even on an express contract with the bankrupt,) upon the doctrine of estoppel (ƒ).

The plaintiff, a furniture broker and uncertificated bankrupt, was employed by the defendant to remove his goods; in the course of which business, the plaintiff employed several men and vans, supplied packing cases, repaired furniture, and provided materials for this purpose, and other articles to a trifling amount. It was held by the Court of King's Bench, that the debt which thus accrued, was not a demand arising merely from the personal labour of the bankrupt, and was claimable by the assignees; and that a payment to them, even after writ, and before declaration, defeated the action (g).

Where, however, a right of action accruing before the bankruptcy, upon a contract made with the bankrupt before his bankruptcy, is vested in his assignees, it seems that they cannot, by disclaiming or renouncing their right, enable the bankrupt to maintain an action upon the agreement in his own name (h); for the Bankrupt Act vests absolutely in the assignees, all rights of this kind.

9thly. OF THE CONTRACTS OF INSOLVENT DEBTORS. The benefit of the Insolvent Debtors' Act, 7 G. 4, c. 57, extends (i) to all persons in actual custody within the walls of a prison (k), upon any process, for or by reason of any debt, damage,

(e) And see per Best, J., in Nias v. Adamson, 3 B. & Ald. 232; and per Lord Alvanley, C. J., Hesse v. Stevenson, 3 B. & P. 577, 8.

(f) See per Cur. in Nias v. Adamson; and see 2 T. R. 169, 171; 4 T. R. 577, 8.

(g) Crofton v. Poole, 1 B. & Ad.

568.

(h) Hillary v. Morris, 5 C. & P. 6. (i) See section 10. The act is continued and amended by 1 W. 4, c.38.

(k) By section 12, it is provided, that if, after any prisoner shall have obtained an order for hearing the mat

ters of his petition, it shall appear to the satisfaction of the Court by the oath of a physician, surgeon, or apothecary, and such other evidence as the Court may require, that the prisoner cannot continue to reside within the walls of the prison, without serious injury to his health; or that, for the sake of the health of the prisoners in general, it is necessary that the number thereof within the walls of any such prison, should be reduced; the Court may dispense with the actual custody of the prisoner within the walls.

M

costs, or money, or of any contempt for non-payment of money, or costs, taxed or untaxed, either ordered to be paid, or to the payment of which the party would be liable in purging such contempt, or in any manner in consequence of such contempt.

The prisoner is to petition for his discharge within fourteen days after the commencement of his imprisonment, or he may petition afterwards, if the Court shall think reasonable to permit the same. The petition prays that the prisoner may be released from custody, and have future liberty of his person against the demands for which he is imprisoned, and against the demands of all other persons who are the creditors of the prisoner at the time of the presenting his petition (1).

By the 11th section it is required that the prisoner shall, at the time of subscribing the petition, execute an assignment to the provisional assignee of the Court, of all the estate, right, title, interest, and trust of such prisoner, in his real and personal estate and effects (m), (except the wearing apparel, bedding, and other such necessaries of such person and his family, and his working tools and implements, not exceeding in the whole the value of 201.), and of all future (n) estate, right, title, interest, and trust of such prisoner, in or to any real and personal estate and effects which such prisoner may purchase, or which may revert, descend, be devised or bequeathed or come to him, before he shall become entitled to his or her final discharge, according to the adjudication made in that behalf; or in case such prisoner shall obtain his discharge from custody without adjudication being made in the matter of his petition, then before such prisoner shall be out of custody, and of all debts due or growing due to such prisoner, or to be due to him (0) before his discharge; which assignment shall vest all the estate and effects of the prisoner, and all such future estate and effects, and all such debts, in the provisional assignee ; and the same shall be made subject to a proviso, that in case the

(1) Section 10. As to the misdescription of the prisoner, see Pascall v. Brown, 3 Stark. R. 51.

(m) The assignment passes to the assignee only what the insolvent was entitled to at law and in equity; and where an insolvent had deposited with a creditor the title deeds of an estate as a security for a debt, it was held the assignee could not recover from

the creditor, the rent of the estate received by the latter after the discharge: the defendant being in equity entitled to the rents. Garry v. Sharratt, 10 B. & C. 717.

(n) See decision on the former act, Hepper v. Marshal, 9 Moore, 710; 2 Bing. 372, S. C.

(2) See post, 166.

petition of the prisoner shall be dismissed, such assignment shall, after such dismission, be void.

The Court may, at any time after the filing of the petition, and before or after the discharge, appoint an assignee, being one of the creditors, in whom the property shall vest, (in the place of the provisional assignee,) for the benefit of the creditors (p).

Within fourteen days after the petition, or within such further time as the Court shall think reasonable, the prisoner is to deliver in a schedule, stating his debts and claims, and property (q).

"And whereas it may sometimes happen that a debt of, or claim upon, or balance due from, such prisoner, may be specified in his schedule, at an amount which is not exactly the actual amount thereof, without any culpable negligence or fraud, or evil intention on his part; be it enacted, that in such case the prisoner shall be entitled to the benefit of this act; and the ereditor shall be entitled to the benefit of all the provisions made for creditors by this act; in respect of the actual amount of such debt, claim, or balance, and neither more nor less than the same, to all intents and purposes, such error in the said schedule notwithstanding (r).”

The 42nd section enacts that the Court shall cause notice of the filing of the petition and schedule, and of the time and place appointed for hearing the matters thereof, to be given by such means as the Court shall direct, to the detaining creditor, or his attorney or agent, and to the other creditors named in the schedule and resident within the united kingdom, and whose debts shall amount to the sum of 57., and to be inserted in the London Gazette; and also, if the Court shall think fit, in the Edinburgh and Dublin Gazette, or either of them, and also in such other newspaper or newspapers as the Court shall direct.

At the final hearing, upon the prisoner swearing to the truth of his petition and schedule, and executing the prescribed warrant of attorney, the Court may adjudge that the prisoner shall be discharged from custody, and entitled to the benefit of the act, at a named time, as to the debts due, or claimed to be due, when

(p) 7 G. 4, c. 57, s. 19.

(q) Id., sect. 40. See sect. 46. (r) Id., sect. 63. See Reeves v. Lambert, 4 B. & C. 214; Lewis v. Mason, 4 C. & P. 322; post, 165.

Misdescription of the prisoner, Pascall v. Brown, 3 Stark. R. 54. As to his mentioning the holder of a bill, see Pugh v. Hookham, 5 C. & P. 376.