The assignees cannot make themselves parties to the record in any intermediate stage of the proceedings', but it must be immediately after judgment, and before any other proceeding has taken place, though an interlocutory judgment is sufficient for this purpose. Hence where plaintiff after judgment against him and writ of error allowed, becomes a bankrupt, the assignees ought to go on with the writ of error in the bankrupt's name, the writ of error being a proceeding after the judgment; and if the assignees, instead of adopting this method, sue out a sci. fa. in their own names to compel an assignment of errors, the court will quash it.

If the assignees bring an action upon a contract made by the bankrupt before his bankruptcy, it is incumbent on them to sue as assignees, and so to state themselves in the declaration.

But where the contract is made by the bankrupt after his bankruptcy", and before he has obtained his certificate, as all his property is then vested in the assignees, he will be considered as their agent; and, in such case, it is not necessary that they should state themselves to be assignees in the declaration (39); in like manner as where an executor brings action on a contract made by himself respecting the goods of the testator, he need not name himself executor.

In actions of assumpsit brought by the assignees on contracts made with the bankrupt, there are two ways in which the promises may be laid in the declaration; 1st, As having been made to the bankrupt before his bankruptcy (40); and, 2dly, As having been made to the plaintiffs as assig

neesy.

t Kretchman v. Beyer, 1 T. R. 463. u Evans v. Mann, Cowp. 569.

x Rig v. Wilmer, Str. 697. adjudged on demurrer to declaration.

y Fashion v. Dormet, 7 Vin. Abr. 140. Tit. Creditor and Bankrupt, pl. 16.

66

(39) Nor is it necessary that the assignees should give evidence of the trading, act of bankruptcy, &c." Per Ashhurst, J. in Evans v. Mann, Cowp. 570.

(40) It is most usual in practice to state the promises to have been made to the bankrupt, and this form is best adapted to actions on promissory notes given to the bankrupt. Sometimes to declarations drawn in this form, where the fact requires it, counts are added for money had and received to the use of the assignees, and upon an account stated with the assignees, with promises to the assignees.

In an action brought by the assignees of a bankrupt, the plaintiff's declared on an account stated with the bankrupt, whereon the defendant was found in arrear £ , and being so in arrear, he promised to pay the plaintiffs as assignees. On the general issue pleaded, the evidence was, that the account was stated with the bankrupt, and the defendant promised to pay him, but there was not any evidence of a promise to the assignees. Lord Hardwicke, Č. J. was of opinion, that the declaration was supported by the evidence, and the plaintiff's had a verdict. On a motion for a new trial, the court concurred in opinion with the chief justice; Lee, J. observing, that he was not aware of any case, where, on a declaration framed in this manner, it had been holden necessary to prove an express promise to the assignees; because when the account was proved to be stated with the bankrupt, there was a sufficient consideration: a debt was created to the bankrupt which was transferred to the assignees by the statute; and this was evidence of a promise to the assignees so as to entitle them to this demand, standing in the place of the bankrupt.

The plaintiffs, in their original writ, described themselves as assignees of A., and also as assignees of B., there not being any joint commission against the two, and declared in several counts for goods sold and delivered by both the bankrupts, and also for goods sold by each of the bankrupts. A verdict was found for the plaintiffs, and the damages were assessed severally on the separate counts. On a motion in arrest of judgment, the court were of opinion that the assignees might recover as much as the bankrupts themselves might jointly have recovered; therefore as the damages were assessed severally, they might enter up their judgment on the count for the joint-demand (41).

Agreeably to this determination, where the plaintiffs sued b as assignees of A. and B., and also as assignees of C., for a joint demand due to all the bankrupts, the declaration was holden good on motion in arrest of judgment.

z Skinner v. Rebow, T. 8 & 9 G. 2. B R. MSS.

a Hancock v. Haywood, 3 T. R. 433. recognized by Lord Ellenborough,

C. J. in De Cosson v. Vaughan, 10
East, 65.

b Streatfield v. Halliday, 3 T. R. 779.
See Scott v. Franklin, 15 East, 428.

(41) If the verdict had been entered generally, the judgment must have been arrested; because the court were clearly of opinion that the counts for the separate demands were improperly joined.

The assignees under a joint commission against A. and B. in suing on a separate contract entered into with A., may describe themselves generally as assignees of A., without noticing the name of B..

Actions against Assignees.-Formerly when a dividend was declared, it was considered that a right of action against the assignees accrued to every creditor for his proportion", and it was holden that assumpsit might be maintained against the assignees of a bankrupt by a creditor for his share of a dividend, under an order of the commissioners (42); and in such action the proceedings before the commissioners were conclusive evidence of the debt (43), and the assignees could not set off a debt due from the plaintiff, for the sum proved must be taken to be the balance due; but now, by stat. 49. G. 3. c. 121. s. 12. no action shall be brought by any creditor who has proved any debt under any commission of bankrupt, against the assignees of the estate of such bankrupt, for the amount of any dividend declared by the commissioners: but in cases of refusal by the assignees to pay such dividend, the creditor entitled to the same may petition the Ld. Chancellor, Ld. Keeper, or Lords Commissioners for the custody of the Great Seal, who, on hearing such petition, may not only order the payment of such dividend, but also in all cases in which it shall appear that the justice of the case shall require it, may order payment of interest for the time that such dividend shall have been withheld, and of the costs of the application.

A certificated bankrupt cannot maintain assumpsit against his assignees for his allowance under stat. 5 G. 2. c. 30. s. 7. (his estate having paid 10s. in the pound) if it appear that his certificate was not allowed before payment of the dividends.

c Stonehouse v. De Silva, 3 Campb. d Brown v. Bullen, Doug. 407. per 399. Kenyon, C. J. 6 T. R. 549. S. P. e Groome v. Potts, 6 T. R. 548.

(42) After a debt is liquidated before the commissioners, it cannot be litigated, but by an application to the great seal. Per Cur. Doug. 409.

(43) The only way to question the proof of the debt the commissioners is by petition to the chancellor. Mansfield, C. J. Doug. 408.

taken by Per Lord

VII. Of Actions by the Bankrupt.

AN uncertificated bankrupt has a special property in goods acquired by himself after his bankruptcy, and may maintain trover for them against strangers.

So if an order for the delivery of goods, belonging to A., but in the possession of B., be given by A. to an uncertificated bankrupt, in payment of a debt due from A. to the bankrupt after his bankruptcy, and B. refuses to deliver the goods, the bankrupt may maintain trover against him (44).

In cases of this kind, however, the bankrupt can recover only where the assignees do not interfere, for the general assignment of personal property by the commissioners in the first instance passes all the future acquired as well as present personal property, and a second assignment of personal property coming to the bankrupt is not necessary; consequently the superior title of the assignees must prevail where they come forward, and assert it.

To an action on a promissory note, and for money lent, the defendant pleaded that the plaintiff was an uncertificated bankrupt, whose effects had been duly assigned by the commissioners under a general assignment, comprehending in terms the future as well as present personal property of the plaintiff, and that the assignees had required the defendant. to pay to them the money claimed by the plaintiff. Replication, that the causes of action had accrued after the plaintiff became bankrupt, and that the defendant, at the time of the contract, treated with the plaintiff as a person capable of receiving credit in that behalf, and that the commissioners had not at any time since assigned to the assignees, or any other person, the promissory note or money mentioned to be lent. On demurrer, it was holden, that the replication was bad for the reasons before mentioned.

f Webb v. Fox, 7 T. R. 391. h Kitchen v. Bartsch, 7 East's R. 53. g Fowler v. Down, 1 Bos. & Pul. 44. i Ib.

(44) These cases proceeded on this ground, that an uncertificated bankrupt has a special property in the goods in his possession subsequent to the bankruptcy; but notwithstanding these decisions, to assumpsit by several partners, the defendant may plead in bar the bankruptcy of one of them. Eckhardt and others v. Wilson,

8 T. R. 140.

An uncertificated bankrupt may maintain an action for work and labour done after his bankruptcy* (45).

If the assignees of a bankrupt manufacturer employ him 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 reasonable compensation for his work and labour'.

Where a commission of bankrupt is taken out fraudulently or maliciouly", the chancellor may under the stat. 5 Geo. 2. c. 30. s. 23. assign the bond (given by the petitioning creditor) to the bankrupt, so as to enable him to recover the whole penalty of the bond. N. The assignment of the bond by the chancellor is conclusive evidence of the fraud or malice in an action brought on such bond, and it is not necessary to state in the declaration that the commission was fraudulently or maliciously sued out.

See further on this point, Smithy v. Edmonson, 3 East's R. 22.

VIII. Of the Pleadings.

1. Of the general Plea of Bankruptcy under Stat. 5 Geo. 2. c. 30. s. 7.-By stat. 5 Geo. 2. c. 30. s. 7. "If If any bank"rupt is afterwards impleaded for any debt due before such "time as he became a bankrupt, he may plead in general, "that the cause of such action or suit accrued before such k Chippendale v. Tomlinson, Co. B. L. 1 Coles v. Barrow, 4 Taunt. 774. 5th edit. p. 431. m Smith v. Broomhead, 7 T. R. 300.

(45) So for work and labour, and materials found, incident and necessary to the labour, Silk v. Osborne, I Esp. N. P. C. 140. So for money lent and advanced, as it will be presumed that the money may have been earned by his labour. Evans v. Brown, 1 Esp. N. P. C. 170.

Lord Ellenborough, C. J. speaking of Chippendale v. Tomlinson, and the cases which have been decided on its authority, said*, that the hardship of the case might perhaps have warped the opinion of the judges, when the evil might have been better remedied by statute, but now there was an inveterate practice of above twenty years in support of that series of cases.

In Kitchen v. Bartsch, 7 East's R. 62.