r. EARL OF JERSEY.

[ *190 ]

falsa demonstratio, and does not affect that which is already suffi- LLEWELLYN ciently conveyed. *By the application, therefore, of the legal maxims I have mentioned, this case is readily determined: and it is of much more importance that we should adhere strictly to legal maxims, than attempt to evade them in order to meet the supposed intention of the parties. If they really intended in this case to make the boundaries of the two closes correspond, they should have taken care to use proper words for that purpose, which they have not done. Sitting here, we can only say that the portion separated by the line upon the plan, and that alone, passed by the description they have employed. The verdict, therefore, ought not to be disturbed.

ALDERSON, B.:

I am of the same opinion. It is quite clear that, applying the true principles of law to the construction of this deed, we must be governed by the description contained in it, and cannot travel out of it to consider what the parties may have intended. It appears to me that the statement as to the 34 perches is merely falsa demonstratio; and it is one which applies as well to the defendant's as to the plaintiff's case. Looking at the description, it is clear that what was conveyed was the small parcel 153 b, as defined upon the plan produced at the trial.

GURNEY, B., concurred.

ROLFE, B.:

There was an alternative view presented to the jury, either of which gave the defendants the verdict. I rather suggested the second as being the correct view, but I am now satisfied that the first was the proper one, namely, that the plaintiff was entitled only to the portion actually marked off upon the plan.

SPENCE v. ROGERS (1).

Rule discharged.

(11 Meeson & Welsby, 191-197; S. C. 12 L. J. Ex. 252; 2 Dowl. N. S. 999.) Trespass for breaking and entering the dwelling-house and garden of the plaintiff, and making a great noise and disturbance therein, &c., &c., whereby the plaintiff and his family were greatly harassed, disturbed, and annoyed in the peaceable possession of the dwelling-house, &c.

Plea, that, after the trespass and after the commencement of the suit, (1) Affirmed (sub nom. Rogers v. 15 L. J. Ex. 49), and in H. L. (12 Cl. Spence) in Exch. Ch. (13 M. & W. 571, & Fin. 700).-A. C.

1843. Feb. 11.

Exch. of
Pleas

[191]

the plaintiff had become bankrupt, and one W. P. was appointed assignee, whereby and by virtue of the statutes &c. the said causes of action vested in the said W. P.: Held, on general demurrer, that the plea was bad.

Quare, whether it would have been good if it had been shown that the locus in quo passed to the assignee.

TRESPASS for breaking and entering the dwelling-house and garden of the plaintiff, and making a great noise and disturbance therein, and staying and continuing therein, making such noise and disturbance, for a long space of time, to wit, ten days, and forcing and breaking open and damaging the doors, locks, staples, and hinges of the dwelling-house, and by walking destroying the herbage, and tearing up, breaking up, breaking down, and damaging the fruit trees and fruit, shrubs, and plants, and seizing and taking away certain furniture and chattels of the plaintiff, and exposing them for sale, and selling them upon the premises of the plaintiff without his license or authority; whereby and by means of which several premises the plaintiff and his family were greatly harassed, disturbed, and annoyed in the peaceable possession of the said dwelling-house and garden; and the plaintiff was prevented from carrying on and transacting his lawful business, and was deprived of the use and enjoyment of his said goods and chattels.

Plea, actionem ulterius non, because after the trespass, and after the commencement of this action, the plaintiff had become bankrupt, and one W. Pennell had been appointed his assignee, who then accepted the said appointment; by virtue of which appointment and acceptance, and by force of the statutes, the said causes of action and every of them became absolutely vested in and transferred to the said W. Pennell.

To this plea the plaintiff demurred generally, stating, as the point for argument, that the declaration disclosed a variety of causes of action which did not, according to law, pass to or vest in the plaintiff's assignees.

Joinder in demurrer.

Peacock, in support of the demurrer, was stopped by the COURT, who asked Manning, Serjt., who appeared to support the plea, whether be could distinguish the case from that of Clark v. Calvert (1).

Manning, Serjt.:

This case is distinguishable from Clark v. Calvert, because it has (1) 21 R. R. 528 (8 Taunt. 742; 3 Moore, 96).

arisen since the passing of the 6 Geo. IV. c. 16 (1), and must be decided with respect to the 63rd and 64th sections of that Act, the first relating to personal and the other to real property. It has been decided, with respect to the 64th section, that it operates to pass all the bankrupt's real property, and all rights in respect of it belonging to the bankrupt. Thus, in Michell v. Hughes (2), it was held that a right of entry, vested in husband and wife in right of the wife, passed to the assignees of the husband. Smith v. Coffin (3) shows that every thing that belongs to the bankrupt passes to his assignees. In Michell v. Hughes, TINDAL, Ch. J., after referring to Smith v. Coffin, says, "As that case has established that such right of entry was an hereditament within the meaning of the Bankrupt Act, and that it passed to the assignees under the general words inserted in the bargain and sale, we think the same construction must be put on the present Bankrupt Act, notwithstanding some words omitted in the 64th section which are to be found in the previous Acts; for we think neither the extent nor the nature of the bankrupt's property, intended to be vested in the assignees for the benefit of the creditors, is thereby in any way limited or confined." This was a trespass committed upon property of which the bankrupt was possessed before his bankruptcy, and which passed to the assignees, and the assignees are entitled to damages for any deterioration it may have sustained.

(PARKE, B.: Are there not matters included in this declaration for which the assignees would *not be entitled to recover ?)

No; the personal injury is primâ facie only matter of aggravation. Any plea, therefore, which justifies the entry will be an answer to the personal injury, unless the plaintiff, by a new assignment, gives notice to the defendant that he means to insist upon it as a substantive cause of action: Taylor v. Cole (4). No injury of a personal nature is alleged as forming part of the gist of this action. The action is for breaking and entering the plaintiff's dwellinghouse, garden, and premises, and making a great noise and disturbance therein, &c., and the allegation that the plaintiff and his family were disturbed and annoyed thereby is only under the per quod, and is mere matter of aggravation, which could not be

(1) Repealed by 12 & 13 Vict. c. 106, s. 1; see now Bankruptcy Act, 1883 (46 & 47 Vict. c. 62), ss. 44 and 168.— A. C.

R.R.-VOL. LXIII.

(2) 6 Bing. 689; 4 Moo. & P. 577.
(3) 3 R. R. 435 (2 H. Bl. 444).
(4) 1 R. R. 706 (3 T. R. 292;1 H.
Bl. 555).

37

SPENCE v. ROGERS.

[ *194 ]

pleaded to. The whole of the substantial grievance alleged as the ground of the action might have taken place, consistently with the declaration, in the absence of the plaintiff. The right to recover for the personal injury is consequent upon the injury to the real property, and the right to recover damages for that would pass to the assignees.

(PARKE, B.: The plea does not state that the assignees have made their election to sue.)

No election is necessary: the right vests in the assignees at once,
as in any other case.
Suppose the defendant had pulled down the
plaintiff's house, could it be contended that the right of action in
such case did not pass to the assignees? Clearly not. In Wright v:
Fairfield (1), it was held that assignees under bankruptcy, since the
stat. 6 Geo. IV. c. 16, might maintain an action for unliquidated
damages which accrued before the bankruptcy by non-performance
of a contract.

(PARKE, B.: Because that was part of the personal estate. It was a contract relating to personal property, and the action was for a wrongful act which prevented a profit from coming to the assignees. If the personal property passes, the contract also will pass. The injury here complained of does not at all affect the value of the real property. Under this plea you might give evidence of a trespass committed ten years ago, and your argument must go to the extent that the assignees can support this action of trespass for an entry which may have been committed ten years before their appointment. Clark v. Calvert appears to me to decide that the assignees cannot maintain such an action. The Court there perhaps unnecessarily go into the question as to the right of the assignees to interfere.)

In that case, the bankruptcy and assignment were pleaded, and therefore it would depend upon the words of the assignment whether the right of action passed. Here every thing of which the bankrupt was possessed is assigned, because the effect of the statute is to vest every right of which he was possessed in the assignees.

(PARKE, B.: Have you any authority to show that assignees can maintain an action of trespass quare clausum fregit for a trespass (1) 2 B. & Ad. 727.

not committed in their own time? Smith v. Mills (1) seems to show the contrary. It is there said that, to entitle a man to bring trespass, he must, at the time when the act was done which constitutes the trespass, either have the actual possession in him of the thing which is the object of the trespass, or else he must have a constructive possession in respect of the right being actually vested in him.)

The Court is there speaking of the party in whom the right to bring an action of trespass was originally vested: how far the right so vested would be transmissible to other persons was not the subject of inquiry: Brandon v. Sands (2).

(PARKE, B.: How are the assignees to recover for this trespass, committed, it may be, many years before the bankruptcy?)

By showing that a right of action accrued to the bankrupt-that he became bankrupt-and that his rights of action vested in the plaintiffs as his assignees. If the Bankrupt Acts are so framed *as not to extend to such a case, the greatest injustice may be done. It may be that the whole of the deficiency of the bankrupt's estate may have been caused by acts of trespass quare clausum fregit. One of the learned Barons (3) is well aware that, shortly before the passing of the Reform Act, the electors at Camelford being nearly balanced, a tenant of the Marquis of Hertford built three houses, which would have given his party three votes. At nine in the morning, the occupiers received notice from the agent of the Earl of Darlington that the houses had been undermined, and would at the end of an hour be blown into the air. The parties removed their goods, the explosion took place at the appointed time, and a majority was secured at the ensuing election. If the builder of these houses had become bankrupt, and the persons who furnished the bricks and timber for the buildings had been appointed his assignees, are the bankrupt laws so imperfect as to deny to the creditors all redress? Can it be doubted that an action of trespass would lie at the suit of assignees, to recover the mesne profits of the bankrupt's lands accruing before his bankruptcy?

(PARKE, B.: The old bankrupt law and the new are the same in this respect.)

(1) 1 T. R. 475.

(2) 2 Ves. Jr. 565.

(3) Mr. Baron Alderson.