If a trader has been twice bankrupt (a) his certificate under the second commission will not enable him to acquire any property as against the assignee, in his future estate and effects, unless his estate existing at the date of his second certificate, shall have produced sufficient to pay 15s. in the pound to the creditors. (6) But he has a good title to such after acquired property as against all the world, excepting the assignees, and he has a right to sue upon all contracts made with him during, and subsequent to, such second bankruptcy, unless the assignees claim the benefit of such contracts, and interfere to prevent him. (c)

Of the right of action of the trustee under the Scotch Bankrupt Act. -It has been held that the trustee appointed under the Scotch bankrupt or sequestration act of 54 Geo. 3, c. 137, must sue in the name of the bankrupt for the recovery of debts which have become due to the latter in this country, on the ground that the act contained no expressions large enough to enable the assignee to maintain an action in his own name for the recovery of such debts.(d) By the recent Scotch sequestration act, however, the trustee appears to be clothed with all the bankrupt's rights, and to be entitled to sue in this country in his own name upon the bankrupt's choses in action. (e)

SECTION III.

OF THE RIGHT OF ACTION OF THE ASSIGNEES UPON CONTRACTS IN WHICH THE BANKRUPT IS INTERESTED IN RIGHT OF HIS WIFE, OR IN WHICH HE HAS A JOINT INTEREST WITH OTHER PERSONS.

Transfer to the assignees of the WIFE'S property.-All the bankrupt's disposable interest, both absolute and contingent, in his wife's property. when such property has not been settled upon the wife for her separate

(a) So, if he has previously been discharged under the insolvent act. 5 Geo. 4, c. 56, s. 25. (b 6 Geo. 4, c. 16. s. 127, s. 132. Butler v. Hobson, 5 Scott, 824.

(c) Herbert v. Sayer, 2 Dowl. & L. 49; 5 Ad. & E. N. s. 965, s. c.; 13 Law J., N. s. (Q. B.) 209. Young v. Rishworth, 8 Ad. & E. 470; 3

N. & P. 585, s. c.; the act has a retrospective operation. Elston v. Braddick, 2 C. & M. 435. (d) Jeffery v. M'Taggart, 6 M. & S. 126. Sidaway v. Hay, 4 D. & R. 669.

(e) 2 & 3 Vict. c. 41; s. 68, 69. So with the Irish Act, Ferguson v. Spencer, 2 Sc. N. R. 229; 1 Man. & Gr. 987, s. c.

use, passes together with the property which the bankrupt or insolvent possesses in his own right to the assignees. They are entitled to the rents and profits of all the real estates of which the husband is seized in right of his wife, and which have not been vested in trustees for her sole and exclusive use, and to the benefit of all covenants annexed to such estates, and all contracts relating to the same. (a) A rent charge or an annuity bequeathed to the wife for life, but not limited to her separate use, passes in common with the other property to the assignees, subject to the wife's right of survivorship.(b)

It has been said that "debts due to the wife of a bankrupt dum sola, and other choses in action belonging to a wife before marriage, pass to the assignees under the commissioner's assignment, and are recoverable by them in their own name, Miles v. Williams, 1 P. Wms. 249."(c) The point actually decided in Miles v. Williams was, that the certificate of the husband would, if well pleaded, have been a bar to an action brought against him and his wife on a bond given by her before her marriage; the other question was not before the court.

The wife's debt or other chose in action cannot pass to the assignees under a commission or a fiat of bankruptcy, as it never was vested in the husband. The wife's right to her choses in action cannot be divested, except by the actual reduction of them into the possession of the husband, and this can only be done by a joint action, in which the wife is made a co-plaintiff, and in which judgment is recovered and execution actually levied by the husband, for if before execution be taken out he should die, and the wife survive him, she alone will be entitled to the benefit of the action.(d)

The bankrupt laws cannot pass to the assignees under a fiat in bankruptcy a larger right or a better title than the bankrupt himself had. The assignees must take the rights of the husband over the choses in action of the wife, in the same plight and condition as the husband himself had them, (e) and, as the latter could not alone maintain an action to recover his wife's debt, neither can the assignees; they must, therefore, standing collectively in the same situation as the husband before his bankruptcy, and unitedly representing him, bring a joint action in their own names and in that of the wife, for the purpose of reducing her chose in action into possession, and they must recover judgment, and take out execution

(a) Doe d. Shaw v. Steward, 1 Ad. & E. 311. (b) Caunt v. Ward, 7 Bing. 608.

(c) Tindal, C. J., Mitchell v. Hughes, 4 M. & P. 587; 6 Bing. 732, s. c.

(d) See post, ch. 13, s. 3.

(e) Ex parte Coysegame, 1 Atk. 192. Britten v. Perrot, 2 C. & M. 597. Hill v. Smith, 13 Law J., N. S. Exch. 243.

in such joint action before the death of the husband, to make good their title against the wife, in case she should survive him. (ƒ) It has accordingly been held in a recent case, over-ruling a contrary decision (g) in the Court of Exchequer, that the assignees of a bankrupt cannot alone sue on a promissory note not negotiable, given to the wife of a bankrupt before marriage, (h) and if the wife of a bankrupt before her marriage has assigned to a trustee a chose in action for the benefit of herself, the right to sue on that chose in action cannot pass to the assignees of the bankrupt husband; the entire equitable interest therein is in the trustee, who alone has the right to turn such chose in action into possession, and he may sue for it in the name of the husband and wife, notwithstanding the bankruptcy. (i)

Transfer to the assignees of the bankrupt's interest in a partnership. -If one of several partners becomes bankrupt, his right of action upon the contracts of the firm is at once transferred to the assignees, and all actions consequently in respect of the partnership contracts and transactions entered into before the bankruptcy must be brought in the names of the assignees and the solvent partners. (k)

If an action has been commenced by a firm in partnership its further progress may be at once stopped by a plea of the bankruptcy of one of the partners. (7) The action must be prosecuted in the names of the assignees and the solvent partners, and if the latter should object to the prosecution of a joint action in their names, the assignees are entitled to make use of their names and conduct the necessary proceedings without their consent. By 6 Geo. 4, c. 16, s. 47, it was enacted that the Lord Chancellor, upon petition, might authorise the assignees to use the name of a solvent partner without his consent, provided such partner, if no benefit was claimed by him from the proceedings, was indemnified against costs; and by the recent bankruptcy act it has been enacted, that it shall be lawful for the court of bankruptcy, when the bankrupt is a member of a firm in partnership to authorise the assignee upon his application to commence, or prosecute, any action at law, or suit in equity in the name of such assignee and of the remaining partner against any debtor of the partnership, and such judgment, decree, or order, may be obtained therein, as if such action or suit had been instituted with the consent of

(f) Gayner v. Wilkinson, 1 Bro. C. C. 49, n. Mitford v. Mitford, 9 Ves. 87, 99. Purdew v. Jackson, 1 Russ. 1. Honner v. Morton, 3 Russ. 65. Pierce v. Thornley, 2 Sim. 177.

(g) Yates v. Sherrington, 11 M. & W. 42.
(h) Sherrington v. Yates, 12 M. & W. 864.

Hart v. Stephens, 9 Jurist, 225.

(i) Parnham v. Hurst, 8 M. & W. 750. (k) Eckhardt v. Wilson, 8 T. R. 142. Thomason v. Frere, 10 East, 418.

(1) Marlar v. Hartley, 4 Doug. 22 n.

such partner, and if such partner shall execute any release of the debt or demand, for which such action or suit is instituted, such release shall be void, provided that every such partner shall have notice given him of such application, and be at liberty to show cause against it, and if no benefit is claimed by him, by virtue of the said proceedings, shall be indemnified against the payment of any costs in respect of such action or suit, in such manner as such court, upon his application, shall direct; and that it shall be lawful for such court, upon the application of such partner, to direct that he may receive so much of the proceeds of such action or suit as such court shall direct. (m)

If a debt be due to two persons jointly, and they both become bankrupt, and separate commissions issue against each of them, the assignees under both commissions must all be made plaintiffs in an action brought to recover the debt. (n) When a joint commission has been issued against a whole firm in partnership, the assignees appointed under it being assignees of the entire estate of each partner, as well as the assignees of the property of the whole firm, may in the same action recover debts due to all the partners jointly, and the separate debts due to each partner individually, for the money when recovered all goes to the same fund, to be divided among the creditors. (o) If such assignees, under a joint commission against several, sue only for the debts and contracts of one partner, they should describe themselves as the assignees of that partner, without at all noticing the others. (p) To recover joint debts the assignees must, of course, claim either under a joint commission against all the bankrupts or under separate commissions against each. (q) If they claim under separate commissions, then, in suing together, they can of course only recover joint demands. (r)

SECTION IV.

OF THE APPOINTMENT OF NEW ASSIGNEES.

The court of review in bankruptcy is expressly authorised to remove any assignee of any estate, and the order of such court thereupon is final

(m) 5 & 6 Vict. c. 122, s. 31.

(n) Scott v. Franklin, 15 East, 436.

(0) Graham v. Mulcaster, 4 Bing. 115; 12 Moore, 327, s. c.

(p) Stonehouse v. De Silva, 3 Camp. 399. Harvey v. Morgan, 2 Stark. 17.

(9) Streatfield v. Halliday, 3 T. R. 781.

r) Hancock v. Hannay, id. 433.

and conclusive to all intents and purposes, and not subject to any review by the Lord Chancellor or otherwise. (a) And as often as any assignee shall die, or be lawfully removed, and a new assignee duly appointed, all such real and personal estate as was then vested in such deceased, or removed assignee, shall, by virtue of such appointment, vest in the new assignee, either alone or jointly with the existing assignees as the case may require, without any deed or assignment for that purpose. (b)

And whenever an assignee shall die or a new assignee or assignees shall be chosen, no action at law or suit in equity shall be thereby abated, but the court in which any action or suit is depending, may, upon the suggestion of such death or removal, and new choice, allow the name of the surviving or new assignee to be substituted in the place of the former, and such action or suit shall be prosecuted in the name or names of the said surviving or new assignee, or assignees in the same manner as if he or they had originally commenced the same. (c)

Such new assignee may by suggestion on the record continue in his own name an action brought by the former assignee against the provisional assignee to recover the penalty for not delivering up the bankrupt's estate pursuant to 6 Geo. 4, c. 16, as the penalty, when recovered, is to be divided amongst the creditors. (d) He may also maintain an action upon a judgment recovered by a former assignee for damages sustained by reason of injuries to the bankrupt before his bankruptcy, as also to the assignee as such since the bankruptcy, the damages so recovered being part of "the debts, effects, or estate" of the bankrupt. (e)

In cases of insolvency it is enacted by 1 & 2 Vict. c. 110, s. 42, that all and every the real and personal estate, money, and effects vested in or possessed by the provisional assignee, shall not remain in him if he shall resign or be removed from his office, nor in his heirs, executors, or administrators, in case of his death, but shall in every such case go and be vested in his successor in office, appointed by the court. And by 7 & 8 Vict. c. 116, s. 10, it is further enacted that the property vested in any official assignee alone, or jointly with any assignee chosen by creditors, shall not remain in such official assignee alone, or jointly with such assignee chosen by creditors, if such official assignee shall resign or be removed from his office, nor in the heirs, executors, or administrators of such official assignee, nor in the surviving assignee alone, in case of the death of such official assignee, but all such property shall in every such

(a) 1 & 2 W. 4, c. 56, s. 36; 6 Geo. 4, c. 16,

s. 66.

(b) 1 & 2 W. 4, c. 56, s. 25, 26.

(c) 6 Geo. 4, c. 16, s. 67.

(d) Bates v. Sturges, 5 M. & P.568; 7 Bing. 585, s. c.

(e) De Cosson v. Vaughan, 10 East, 61.