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1797.

Mayor and
Burgt fles of
STAFFORD

BOLTON.

nothing. In the cafe of a mistake in the name or description of an existing perfon having a right to fue, it may be pleaded in abatement. But the case in Brooke, Misnomer 73. seems to put a corporation in the fame situation with a natural person as to pleas in abatement: where it is said in an action by a corporation or a natural body, misnomer of one or the other goes only to the writ; but to say that there is no such person in rerum naturâ, or no fuch body politic, this is in bar, for if he be milnamed, he may have a new writ by the right name; but if there be no such body politic or such person, then he cannot have an action. 22 Ed. 4. 34. Here there was a corporaticn cf nearly the fanie name, and I think therefore on authorities, that the nonfuit was wrong.

BULLER J. The argument of locality will not here decide the question; the name in the declaration imports locality, as the Plaintiffs ftate themselves to be the mayor and burgesses of the borough of Staff rd, only omitting the county of Stafford. This brings the case within the distinction laid down in King's Lynne; for there is a difference in omitting matter of substance, and more matter of addition. If the variance can he pleaded in abatement, it cannot in bar. To make it pleadable in bar, it must appear that there is no such corporation. The Year Books are decisive,

HEATH J. I am of the same opinion. In 22 Ed.4. 34. which was an aslize by the Master, and breihren of the fraternity of the Nine Orders of Angels in B., and the Defendant pleaded, that they were incorporated by the name of the Master and Brethren of the Fraternity of All Saints, and the Nine Orders of Angels in B.; the writ was abatel, which shews that a misnomer may be pleaded in abatement, where the Plaintif mifnames himself.

ROOKE J. I think we ought not to be more strict than they were in the days of the Year Bocks,

Rule abfolute.

May 26th. 7 T.R. 392 7 East, 56. 3 Boj. P:1.40.

FOWLER v. Down, 571. If an order for the delivery of THIS

This was an action of třover brought by an uncertificated goods in the

bankrupt. hands of a third

The Plaintiff had carried on business for some time, and in a perton be given to an uncert ti considerable way since his bankruptcy, and had advanced several cated baukrupt in payment of a debt accrued sub'equent to his bankruptcy, he may maintain trover for them,

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suins of money to one Davidfon, in part payment of which Davidfor gate an order for delivering to the Plaintiff fifty barrels of becf belonging to him, and then in the hands of the Defendant. The Defendant on demand refused to deliver up the beef fo affigned by Driefon to the Plaintiff, on which this action was brought; and the cause being tried before Eyre Ch.J. at Guiluhall at the Sittings in this term, a verdi&t was found for the Plaintiff' with liberty to the Defendant to move to set it aside and enter a nonfuit.

Shepherd Serjt. having previously obtained a rule nift for the abore purpose, was this day called upon by the Court to begin in fapport of it.

Shepherd. The inference to be drawn from Eucns v. Mann, Cowp. 569. and Martyn v. O'Hara, Cowp. 823. is, that property acquired by a bankrupt after the aflignment becomes the property of his aflignees : for in those cases there was no new assignment. In the first of them it was decided, that if a bankrupt fell goods previous to his bankruptcy, the affignees must fue the verdees as afignees: but where the goods are acquired and fold subsequent to the bankruptcy, they may lue in their own names. Though 13 Eliz. c. 7. 8.11. speaking of personal as well as real property coming to the bankrupt, at any time before payment of his debts, directs, that “they shall be bargained, fold, extended, delivered, “ and used for and towards the payment of the said creditors;" get the words “ bargained and fold,” can only apply to such property as does not usually pass without conveyance: and accordingly it is faid by Lord Hardwicke, i Alk. 253. ex parte Proudfoot, “ All the future personal estate is affected by the assignment, and “ every new acquisition will veft in the affignees; but as to future “ real estates, there must be a new bargain and sale.” The IJ.1.c. 15. f. 13. which is the next statute empowering commiffioneřs to affign, operates only on delis due to the bankrupt. The case of Chippendale v. Tomlinfuri, B.R. T. 25 G. 3. Cooke's Pankrupt Laws, 260, was an action for work and labour done. Plea, that the Plaintiff was a bankrupt. Replication, work dore after the commissioner's assignment for the necessary support of the Plaintiff and his family: rejoinder, no certificate: and demurrer thereupon. Lord Mansfield faid, “The aflignees 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 asiignees, as passing by the previous affignment. In orde» to support trover, there must

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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 person: and as to the former, the aflignees have a right paramount. Neither can he be said to have had special property, for there is no case of special property, but where there has once been possession, as in the cases of a carrier or a bailee. Suppose the afliguees were to fue us for the goods, could we plead a judgment recovered? The case of La Roche Bart. and Others v. IVakeman and Others, Peake's N. P.140. is against us. But that went upon the same principle as Ashleyv. Kell, 2 Str. 1207. where it was held that an uncertificated bankrupt had such a property in future effects, as enabled him to tranfact and fell to a bona fide purchaser: which principle was questioned within these few days in the King's Dench(a), when the Court seemed 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. Osborne, Espinali's N. P.R. 1 vol. 140. where the action was for work and labour and materials found, Lord Kenyon said that the work and labour and materials were so blended together, as to become one joint cause of action : evidently confining it to the mere case of personal labour. If any claim by the assignees were neceflary to prevent the bankrupt from maintaining his action, the distinction laid down between the produce of perfonal labour and other property would be nugatory: for the bankrupt might equally maintain an action in all cases, until a claim were made by the assignees.

Runningion Serjt. for the Plaintiff. In answer to the arguments on the other side I shall only advert to the cases on the subject. In Chippendalev. Tomlinson an uncertificated bankrupt was held intitled to recover for work and labour done. In Silkv.Ofborne, which was an action for work and labour and materials found, Lord Kenyon faid, “ that however the question might be between the

bankrupt and his assignees, it did not lie in the mouth of third

persons to set up the Plaintiff's bankruptcy as a defence.” In Evans v. Brown, Espinasse's N. P. R. vol.1. p. 170. the same principle was extended to the case 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

FOWLER

Down.

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maintain one for the money fo earned by his manual labour,

1797 which he might have lent to a third person. This would go

the whole length of the present case, except as to the form of action. But it has been fince expressly 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.

EYRE Ch. J. What shall be done between the bankrupt and 7 E.12,60. the aflignees or creditors is one thing, and what between him and is Łaf, 628 a stranger is another. This narrow ground, that the bankrupt has a right against every body but the allignees, which is maintained by authorities, is fufficient to support the verdict. It is not true, that in cafes of fpecial property the party must once have had possession in order to maintain trover; for a factor to Fhom goods have been consigned, and who has never received them, may maintain fuch an action. But this is not a case of special property, it is a stronger cafe; it is entire property, though defcafible, or to speak more correctly, liable to be divelted. It is not competent to a third person to dispute the bankrupt's title to recover, who, fuppofing his creditors had no claims upon him, Fould be intitled to his action, because whether they have such ciains or not is nothing to the stranger. I confess the theory of the case inclines me to go further. The bankrupt laws principally and most directly relate to that estate which the bankrupt had at the time of the aflignment; there are provisions for taking the account and ascertaining the citate of the bankrupt at the time of the assignment; I recollect no fich provision for the future effects; nor was it necessary, for where future effe&ts are spoken of, they are supposed to be specific effects to be specifically con-veyed by subsequent aflignment, as was done in the case of Tudway v. Bourn, 2 Burr. 716. It is true, that unless the bankrupt's efiate is sufficient to pay twenty shillings in the pound, the creditor will be intitled to a satisfaction for his debt out of effects acquired subsequent to the first allignment. But it cannot therefore be said that the property is not his own until such aslignment, or that it is not his own because he is uncertificated. The operation of a certificate is simply to discharge the bankrupt from the old debts. A certificate is not like a pardon; it is not necessary to make him a new man. In my apprehension it could not be enough for a creditor or an assignee to say that he is uncertificated; even to intitle them to an allignment of future effects under the statute, they must few that they have debts un

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paid; à fortiori a stranger ought not to take advantage of his being uncertificated, which affords but a presumption 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) stands on the footing of the 13 Eliz. c. 7.; by which, if the effects at the time of the bankruptcy are insufficient to satisfy the creditors, his future effects are made liable to be assigned. That is but in the nature of an execution and is reasonable, and the Court will give effect to the demands of the aflignees or creditors, as long as any debts are due, in the mode pointed out by the statute, but I think not otherwise. The hardship and inconvenience, nay, the injustice, as it seems to me, of this difabling doctrine, is enough to condemn it.

Buller, J. This is clearly a case of property acquired subsequent to the bankruptcy. Evans v. Mann and Martyn v. O'Hara were questions between the bankrupts and the assignees; 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 allign to a bona fide purchaser. But the aflignees may claim, and if they do, they ihall succeed. So in La Roche v. Wakeman, Lord Kenyon said, “ If the aflignees take any steps to disaffirm the title, they may “ do fo; but if they do not, the bankrupt being the oftenfibie “owner, may convey a title, and it is not competent to third per“ fons to object.” Allowing that the assignees might demand the money, still it would be no bar to this action. Why? because a third person has treated with the bankrupt as capable of recsiving credit. All the authorities

All the authorities go this length. Heath J. The 13 Eliz. c.7.8. 11. directs that the future property of a bankrupt shall be “bargained, fold, extended, deli“ vered, and used for and towards the payment of the creditors.” The antient practice was, for the commissioners to assign specific parts of the bankrupt's property to each particular creditor: and the 5 G. 2. is the first statute which directs the choice of aflignees for the benefit of all the creditors. When it became the practice to make over all the property to the assignees, the general assignment was held fufficient to pass the future effects. But the question here is not whether the bankrupt can sell, but whether a stranger having purchased of him can dispute his title. He has a defeasible property, which none but the affignees can defeat. He is like an alien who may purchase lands and maintain an action for them,

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