the provisions either of the 1 Jac. 1. c. 15. s. 14. or the 19 G. 2. c. 32. s. 1. and that the factor was answerable to the assignees for the value of the goods.

A trader, being indebted to A. for goods sold and delivered, committed a secret act of bankruptcy"; after which A. without the knowledge of the bankrupt, by the custom of London, attached money belonging to the bankrupt in the hands of his debtor, and received the same from the debtor in consequence of a judgment obtained against him in the foreign attachment. It did not appear, that the bankrupt knew that this money was in the hands of his debtor: it was holden, that this payment by the debtor was not protected by stat. 19 G. 2. c. 32. for that statute extends only to payments by the bankrupt.

VI. Of Actions which may be brought by the Assignees of a Bankrupt, and in what Manner they ought to sue.

1. Money had and received.-An action for money had and received will lie against a creditor of the bankrupt, who after the act of bankruptcy, takes out execution against the goods of the bankrupt, and receives from the sheriff the money arising from the sale of the goods; for the law supposes the creditor to have received the same for the use of the assignees, in whom the property of the goods is vested, and thence implies a promise to pay.

So where a trader became a bankrupt by lying in prison two months after an arrest, it was holden, that his assignees might maintain an action for money had and received against a person, who, after the arrest, and before the expiration of the two months, having had notice that a commission would be sued out against the trader, sold his goods, and paid him the produce (36).

Hovil v. Browning, B. R. H. 46
G. 3. 7 East, 154.

o Kitchin v. Campbell, 3 Wils. 304. and Bl. Rep. 827

p King v. Leith, 2 T. R. 141.

(36) In cases of this kind the assignees have an election to bring either traver or assumpsit. In trover they may recover the full value of the goods at the time they were taken, though the sale may not actually have produced more than half their worth; but

By the law of England', if not contradicted by the laws of the country where the property may be, the commissioners may dispose of. the personal property of the bankrupt resident here, although such property be in a foreign country. Hence where the defendant being resident in England, and a creditor of the bankrupt in England, after the assignment of the bankrupt's estate, and with full knowledge thereof, attached and afterwards received, by a remittance, money due to the bankrupt in Rhode Island in North America; it was holden, that the assignees might recover the same from the defendant, in an action for money had and received to their use.

So where after an act of bankruptcy committed', but before the assignment, a creditor of the bankrupt in England, and resident in England, with knowledge of the act of bankruptcy, made an affidavit of debt in England, by virtue of which he attached, and after the assignment received, money due to the bankrupt in one of the British plantations in America; it was holden, that the assignees might recover the same in an action for money had and received.

A. after an act of bankruptcy committed by B.', received the amount of a draft drawn by B. on his banker in favour of A., for a bona fide debt. The plaintiffs, as assignees of B., brought an action' against the banker for a larger sum of money belonging to the bankrupt, in which action the banker attempted to set off the beforementioned sum, which he had paid to A.: but it appearing that the banker had paid the money to A. with full knowledge of the bankruptcy, the set-off was disallowed. The plaintiffs then brought an action for money had and received against A. to recover the

q Hunter v. Potts, B. R. H. 31 Geo. 3. 4 T. R. 182. (37).

r Sill v. Worswick, 1 H. Bl. 665.

s Vernon v. Hanson, 2 T. R. 287.
t Vernon v. Hankey, 2 T. R. 118.

in assumpsit, the assignees considering the party selling the goods as their agent, are entitled to recover only what was produced by the sale of the goods. Per Grose and Buller Js. in King v. Leith, 2 T. R. 144, 145. If the assignees bring assumpsit they affirm the contract, and the defendant, if a creditor of the bankrupt, may set off his debt, Smith v. Hodson, 4 T. R. 211. But the assignees cannot affirm the act of the bankrupt as their agent in part, and avoid it as to the rest, Wilson v. Poulter, Str. 859.

(37) The authority of this case was confirmed by the decision in Phillips v. Hunter, on error in Exchequer Chamber, Hil. 35, Geo, 3. Eyre C. J. dissentient, 2 H. Bl. 402.

amount of the draft, but it was bolden, that the action would not lie; for, although the plaintiff's had at first an election whether they would bring the action against the banker or A., yet having in the former action, against the banker, insisted that the money had not been paid on their account, and that it was void, they could not in the present action be permitted to contradict it, and insist that the payment was made on their account.

Covenant. In covenant for rent on an indenture" brought by the assignees of the lessor (a bankrupt) the lessee cannot plead that the lessor nil habuit in tenementis; for the assig nees succeed to all the rights of the bankrupt, and conse quently may claim the benefit of that estoppel, which would have operated between the lessor and lessee.

Debt. The assignees of a bankrupt may bring an action. of debt on the stat. 9 Ann, c. 14. against the winner for money lost at play by the bankrupt before his bankruptcy.

Trover.-If after an act of bankruptcy but before commission, a person sue out execution against the goods of the bankrupt, under which the sheriff makes a seizure, and then a commission issues, and afterwards the sheriff sells the goods, the assignees may maintain trover against the sheriff, but not trespass, for officers and ministers of justice cannot be made trespassers by relation.

In like manner the assignees may bring trover against the party suing, if proved a party to the conversion by giving bond to the sheriff, and receiving the money levied (38).

Or if the party accompany the officer in levying the goods, though the produce of the goods remain in the hands of the sheriff's broker.

If a trader become a bankrupt between the time of executing a bill of sale of a ship at sea to the defendant, and the time of the defendant's complying with the requisites of the registry acts of the 26 Geo. 3. c. 60. and S4 Geo. 3. c. 68. 16. though such requisites were completed after the act of bankruptcy, and before the action brought, yet u Parker v. Manning, 7 T. R. 537. x Brandon v. Pate, 2 H. Bl. 368. y Cooper v. Chitty, 1 Burr. 20, and 1 Bl. Rep. 65.

z Smith v. Milles, 1 T. R. 475.

a Rush v. Baker, Bull N. P. 41. Str. 996, and MSS. S. C.

b Menham v. Edmonson, 1 Bos. & Pul. 369.

c Moss v. Charnock, 2 East's R. 399.

(38) "As to the conversion by the defendant, the evidence is as strong as can be; the bond proves that he ordered the execution, and the money paid to him shews who had the produce of the goods." Per Cur. S. C. MSS.

the property does not pass, and the assignees may maintain trover for the ship.

If a trader has been a bankrupt twice, and obtained his certificate under both commissions, but has not paid a dividend of 15s. in the pound under the last; although the future estate of such bankrupt remain liable to the claims of his individual creditors, under the second commission, not having received 15s. in the pound, which they may respectively sue for as in other cases, yet this will not prevent the vesting of the bankrupt's estate in the assignees under a third commission for the benefit of all the creditors, and such assignees may sue for and recover the same.

In what Manner the Assignees ought to sue.In actions brought by the assignees, they may declare generally as assignees of the estate of A. a bankrupt, according to the form of the statutes concerning bankrupts, without setting forth the act by which the trader became a bankrupt, or the proceedings under the commission'.

A new assignee may in his own name maintain an action upon a judgments, obtained by a former assignee, who has been displaced by the chancellor.

A declaration on a scire facias, by the assignees of a bankrupt, stating generally, that he became a bankrupt within the meaning of the statutes, and that his goods and effects were duly assigned to the plaintiffs, is sufficient, without stating the trading, act of bankruptcy, &c. because a scire facias is an action.

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

d Hovil v. Browning, 7 East, 154.
e Pepys v. Low, Carth. 29.
f Lawson v. Lamb, Lutw. 274.

g De Cosson v. Vaughan, 10 East, 61.
h Winter v. Kretchman, 2 T. R. 45.
i Kretchman v. Beyer, 1 T. R. 463.

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 an 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

nees.

In an action brought by the assignees of a bankrupt, the plaintiff declared on an account stated with the bankrupt, whereon the defendant was found in arrear 7., 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 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 bankk Evans v. Mann, Cowp. 569.

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

m Fashion v. Dormet, 7 Vin. Abr. 140. Tit. Creditor and Bankrupt, pl. 16. n Skinner v. Rebow, T. 8 & 9 G. 2. B. R. MSS.

(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.