[ *239]

*CHAPTER IV.

1. BANKRUPTCY AND INSOLVENCY, ss. 290–293.

2. EXECUTORS AND ADMINISTRATORS, ss. 294–297.

1.-BANKRUPTCY AND INSOLVENCY.

Right of the Assignees to sue, s. 290. Right of the Bankrupt to sue, ss. 291, 292. Insolvency, s. 293.

290. THE assignees of a bankrupt are the parties to sue jointly (a) in tort for the recovery of any portion of the property vested in him before bankruptcy, (b) whether real or personal, and whether the same were fraudulently alienated by the bankrupt in contravention of the provisions of the bankrupt act, or tortiously taken by the party in possession ; (c) and for all injuries committed thereto by which the amount of the fund belonging to the creditors is lessened; as, for the injury resulting to an under-tenant (the bankrupt) from the breach of an implied duty on the part of his immediate lessor, to indemnify him against the non-performance of the covenants entered into with the superior landlord. (d) It should be observed, however, that if the assignees have *once affirmed the acts of a party who has dis[*240] posed of or converted goods belonging to the bankrupt, and have, by so doing, ratified the contract, and treated such party as their agent, they cannot afterwards repudiate the contract, and treat him as a wrongdoer; nor can they affirm his acts in part, and avoid them as to the rest ;(e) but the assignees may revoke an authority to sell goods given by the bankrupt to his agent, for they stand in the place of the bankrupt, by whom the authority so given was revocable.(g)

291. Where, however, the injury complained of is to the person, feelings, or reputation of the bankrupt, and not to his personal property, the right to sue does not pass to the assignees, but remains vested in, and must be exercised, if at all, by the bankrupt.(h) He, therefore, and not his assignees, must recover damages for an assault, (i) or slander ;(k) and the assignees cannot sue for a libel on the bankrupt, even though the injury occasioned thereby to his reputation may have been the sole cause of bankruptcy.(1) So, the loss of service resulting from the seduction of the bankrupt's daughter is only a personal inconvenience, which cannot be consider

(a) Bloxam v. Hubbard, 5 East, 407; Snellgrove v. Hunt, 1 Chitt. R. 71; Flather, Arch. Bankruptcy, 398.

(b) Smith v. Coffin, 2 H. Bla. 444. 462; Michell v. Hughes, 6 Bing. 689;o Flather, Arch. Bankruptcy, 393.

(c) Infra, n. (e).

(d) Hancock v. Caffyn, 8 Bing. 358.P

(e) Brewer v. Sparrow, 7 B. & C. 310. 312, 313; Smith v. Hodson, 4 T. R. 211; King v. Leith, 2 T. R. 141; Gye v. Hitchcock, 4 A. & E. 84; Butler v. Carver, 2 Stark. 433. (g) Raleigh v. Atkinson, 6 M. & W. 670.*

(h) Per Tindal, C. J., and Park, J., Hancock v. Caffyn, 8 Bing. 366. 368;t Howard v. Crowther, 8 M. & W. 601.*

(i) Per Lord Abinger, C. B., Howard v. Crowther, 8 M. & W. 603.***

(k) Benson v. Flower, Sir W. Jones, 215.

(1) Per Alderson, B., 8 M. & W. 604.*

•Eng. Com. Law Reps. 19. Id. 21. Id. 14. Id. 31. Id. 3. Id. 21.

*Reprinted at $2.50 per vol.

ed as prejudicial to the estate; and, for which, therefore, an *action must be brought in the bankrupt's name. (m) "There is no doubt," [*241] as observed by the Court of Exchequer Chamber,(n) "that a right of action. for an injury to the body or feelings of a trader, arising from a tort, independent of contract, does not pass to his assignees ex. gr. for an assault and battery, or for slander, or for the seduction of a child or servant, and the same may be said of some personal injuries arising out of breaches of contracts, as contracts to cure or to marry, and if in the cases last supposed a consequential damage to the personal estate follows from the injury to the person, that may be so dependent upon and inseparable from the personal. injury which is the primary cause of action, that no right to maintain a separate action in respect of such consequential damage will pass to the assignees of a bankrupt."

291 a. "As to the object of the law," remarked Lord Denman in a recent case," is manifestly to benefit creditors, by making all the pecuniary means and property of the bankrupt available to their payment, it has in furtherance of this object been construed largely, so as to pass not only what in strictness may be called the property and debts of the bankrupt, but also those rights of action to which he was entitled for the purpose of recovering in specie, real or personal property, or damages, in respect of that which has been unlawfully diminished in value, withheld or taken from him, but causes of action not falling within this description but arising out of a wrong personal to the bankrupt, for which he would be entitled to remedy, whether his property were diminished or impaired [*242]

or not, are clearly not within the letter, and have never been held to be within the spirit of the enactments, even in cases where injuries of this kind may have been accompanied or followed by loss of property, and to this class we think the action of trespass qu. cl. fr., and that of trespass to the goods of the bankrupt must be considered to belong. These rights of action are given in respect of the immediate and present violation of the possession of the bankrupt independently of his rights of property-they are an extension of that protection which the law throws around the person, and substantial damages may be recovered in respect of such rights, though no loss or diminution in value of property may have occurred, and even where such an incident has accompanied or followed a wrong of this description, the primary personal injury to the bankrupt being the principal and essential cause of action still remains in him, and does not vest in the assignee, either as his property or his debts."(o) In accordance with the principle thus laid down, it has been held that trespass for seizing and taking the bankrupt's goods under a false and unfounded claim of a debt, whereby the bankrupt was annoyed and prejudiced in his business, and believed by his customers to be insolvent, in consequence whereof certain lodgers left his house, could not be maintained by his assignees.(p) In this case the plea

(m) Howard v. Crowther, 8 M. & W. 601.

(n) Drake v. Beckham, 11 M. & W. 319,* reversing the judgment in Beckham v. Drake, 8 M. & W. 846,* S. C., 9 M. & W. 79.*

(0) Judgment, Rogers v. Spence, 13 M. & W. 580, 581,* affirming Spence v. Rogers, 11 Id. 191, which recognises Clark v. Calvert, 8 Taunt. 742. See Topham v. Dent, 6 Bing. 515." (p) Brewer v. Dew, 11 M. & W. 625.*

of *the plaintiff's bankruptcy was pleaded "as to the seizing and [*243] taking the goods and chattels in the declaration mentioned," and it was observed that although such a plea might have been good if limited to the value of the goods, yet that the jury might as the record stood give damages beyond the value of the goods, in respect of the manner of the seizure, and that the right to sue for such damages would not pass to the assignees.(q)

292. As to chattels acquired subsequently to the bankruptcy, the bankrupt whilst uncertificated has in these a defeasible property, which none but the assignees can defeat ;(r) and, subject to their interference, he or his personal representative may maintain trover for them against a stranger :(s) but an uncertificated bankrupt is not entitled to retain property against his assignees, even though left in his possession, under an agreement, for a valuable consideration paid to them by a third party ;(t) nor can he maintain trespass for seizing his effects, against one who subsequently obtained from the assignees a surrender of their interest in the effects seized, this being, in fact, a ratification of the seizue.(u) Where a party had taken possession of the goods of an intestate after his death, it was held, that he could not set up as a defence to an action of trover by the administrator, that the intestate had been first insolvent, and then bankrupt, and had not paid 158. [*244] in the pound under the fiat; and that, therefore, the property in the goods vested absolutely in the assignees, the goods having been acquired by the intestate after the bankruptcy, and he having been allowed by the assignees to retain possession of them.(x) In such a case as the above it is clear that the bankrupt, whilst uncertificated, contracts and acquires property on behalf of, and for the benefit of his assignees, and he may, subject to their interference, sue for property which he has thus acquired; and it will be no plea that the property is vested in the assignees, unless it contains an averment that they have interfered, and desired the defendant to give up the property to them, and not to the bankrupt.(y)

292 a. It is moreover a general rule, that where goods are sold by the bankrupt, whilst uncertificated, the assignees may either affirm the sale as having been effected by the bankrupt as their agent, and sue in assumpsit for the price, or they may repudiate the sale and bring trover for the goods. Where, for instance, it appeared that after the bankruptcy the bankrupt delivered goods to the defendants, as they alleged, to meet an accommodation bill which they were about to give the bankrupt, and the goods were accompanied by an invoice, which stated them to be bought by the defendants of the bankrupt, it was held, under these circumstances that the assignees might waive the tort and bring assumpsit for goods sold and delivered.(z)

(9) See per Lord Abinger, C. B. 11 M. & W. 629.*

(r) Per Heath, J., Fowler v. Down, 1 Bos. & Pul. 48, recognised per Grose, J., Webb v. Fox, 7 T. R. 398.

(8) Fowler v. Down, 1 Bos. & Pul. 44; Webb v. Fox, 7 T. R. 391; Fyson v. Chambers, 9 M. & W. 460. (t) Nias v. Adamson, 3 B. & Ald. 225.*

(u) Hull v. Pickersgill, 1 Brod. & Bing. 282.*

(x) Fyson v. Chambers, 9 M. & W. 460.*

a

(y) Herbert v. Sayer, 5 Q. B. 982, ante, s. 115, a. (z) Russell v. Bell, 10 M. & W. 340.*

*Eng. Com. Law Reps. 5. Id. 48.

Reprinted at $2.50 per vol.

292 b. Although the assignees of a bankrupt have, as already stated, a right of action ex delicto, for any injury done to the goods, [*244 a] to which they have become entitled as assignees, and likewise succeed to those rights of action which were vested in the bankrupt, by relation to the act of bankruptcy, (a) yet it must be borne in mind that these are two different descriptions of interest; thus, in the latter case, a release by or accord and satisfaction to the bankrupt, would be a good bar, but not in the other. It is therefore necessary that the title of the assignees should be correctly described, for if they sue in trover, and the declaration alleges that the property in the goods was vested in them, they will fail unless proof be given of a conversion after bankruptcy: it will not be sufficient to shew that an injury has been done to the goods, but to support the declaration they will be bound to shew that it was done to their goods.(b)

293. The right of an insolvent to sue in tort seems by analogy similar to that of a bankrupt, and does not require any separate notice. It should be observed, however, that the assignee of an insolvent debtor, on his acceptance of the appointment, has vested in him all the estate and rights of the insolvent, from the date of the vesting order, and may therefore recover, in an action of trover, wherein he alleges that he possessed as assignee before the period of the conversion, though the conversion took place in the time of the provisional assignee. (c) Moreover the interest of an insolvent in premises held by him either for a term or from year [*244 b ] to year, under an agreement for a lease, has been held to pass by the assignment to the provisional assignee, so as to prevent the insolvent from maintaining ejectment against his tenant, with respect to the same, notwithstanding no act has been done by such provisional assignee to shew his acceptance or refusal of the lease.(d)

2.-EXECUTORS AND ADMINISTRATORS.

Where Personal Representatives may sue for a Tort to the Testator or Intestate, and Limitation of the Rule, ss. 294, 295. For Injuries to the Real Estate of the deceased, s. 296. Rule as to the Joinder of Personal Representatives-How they should sue, s. 297.

294. By stat. 4 Edw. 3, c. 7, reciting that, in times past, executors had not had actions for a trespass done to their testators, as of the goods and chattels of the said testators carried away (e) in their lifetime, it is enacted that the executors in such cases shall have an action against the trespassers, in like manner as they whose executors they are should have had if they

(a) See Turquand v. Hawtrey, 9 M. & W. 727; Rouch v. The Great Western Railway Company, 1 Q. B. 51;b ante s. 115.

(b) Edwards v. Hooper, 11 M. & W. 363; Alsager v. Close, 10 M. & W. 576.

(c) Yorke v. Browne, 10 M. & W. 78.

(d) Doe d. Palmer v. Andrews, 4 Bing. 348.c

(e) This statute has always been expounded largely, being a remedial law. Williams v. Breedon, 1 B. & P. 329; Emerson v. Emerson, 1 Ventr. 187. See the note, 1 Wms. Saund. 216 a, 217.

Eng. Com. Law Reps. 41. Id. 13.

were living. An administrator is within the equity of this statute ;(ƒ) *and by stat. 25 Edw. 3, st. 5, c. 5, the like remedy is extended to the executors of executors.

[*244 c]

294 a. Under the first-mentioned statute, it has been held, that executors may maintain an ejectment, a quare impedit, and an action of trover or replevin, the conversion or taking having been in the testator's lifetime.(g) So, case lies by an executor against a sheriff, for a false return to a fi. fa., made in the lifetime of the testator, (h) or for an escape on final process. (i) 294 b. It is moreover important to observe that an executor or administrator has the property of the goods of his testator or intestate vested in him before his actual possession, for the interest of an executor in the estate of the deceased is derived exclusively from the will, and such estate consequently vests in the executor from the moment of the testator's death, and the letters of administration relate back to the time of the death of the intestate, and not merely to the time of granting them, and therefore an executor or administrator may maintain trespass or trover for goods of the intestate *taken between the death and the grant of

[*244 d] probate, or of letters of administration.(k) "In the case of

an administration," it was recently observed, "a man cannot sue out a writ as administrator until he has obtained his letters of administration, although when he has obtained them all tortious acts done to the deceased's property relate back to the time of his death, so as to enable the administrator to sue for them."(7) So the demise in ejectment may be laid by an executor before probate granted, and by an administrator before administration granted.(m) It has likewise recently been decided that a demise laid by two out of three co-executors is good, for each executor takes the whole estate, although all the co-executors are, in law, but one person, and each therefore by his demise passes the entire interest in the land demised.(n)

295. Prior to the recent stat. 9 & 10 Vict. c. 93, an action was not maintainable against a person, who by his wrongful act occasioned the death of another, but by s. 1 of that act, it is enacted that "whensoever the death of a person shall be caused by wrongful act, neglect or default, and the act, neglect, or default is such as would (if death had not ensued) have entitled the party injured to maintain an action, and recover *damages in [*244 e] respect thereof, then and in every such case the person who would have been liable if death had not ensued, shall be liable to an action for damages, notwithstanding the death of the person injured, and although the death shall have been caused under such circumstances as amount in law to

(f) Smith v. Colgay, Cro. Eliz. 384; and see 31 Edw. 3, st. 1, c. 11.

(g) 1 Williams on Executors, 3d ed. 622. 626. 697; Bro. Ab. Executors, 45; Doe d. Shore v. Porter, 3 T. R. 13; Rutland v. Rutland, Cro. Eliz. 377; Drake's case, and Russel v. Pratt, cited, Cro. Eliz. 377; Com. Dig. Administration (B. 13.) See, as to the construction of the statute, per Lord Ellenborough, C. J., Wilson v. Knubley, 7 East, 134, 135; post, s. 297.

(h) Williams v. Grey, I Lord Raymond, 40; Com. Dig. Administration (B. 13). (i) Per Holt, C. J., Berwick v. Andrews, 2 Lord Raymond, 973. See Palgrave v. Windham, 1' Stra. 212; Le Mason v. Dixon, Sir W. Jones, 173.

(k) Tharpe v. Stallwood, 6 Scott, N. R. 715, recognised Foster v. Bates, 12 M. & W. 226; Com. Dig. Administration (B. 9), (B. 10).

(1) Per Parke, B., Yorston v. Feathers, 15 L. J., N. S., Ex. 31.

(m) Doe d. Bendall v. Summerset, 2 W. Bla. 694; Patten v. Patten, 1 Al. & Nap. 493, cited Arg. 6 Scott, N. R. 718. As to evidence of title, see Doe d. Woodhouse v. Powell, 15 L. J., N. S., Q. B. 189.

(n) Doe d. Stace v. Wheeler, MS. Excheq. Trin. T., June 5, 1846.