of a bankrupt's personal labour, the assignees are entitled to it. Lord Alvanley, C. J. in Hesse v. Stevenson, 3 Bos. & Pull. 578. says, "they cannot indeed take the profits of his daily labour. He must live." This is an express authority. But here the assignees themselves, if they had such a right, have waved it, by employing the plaintiff, and contracting with him; the contracting by a lord with his villain was a manumission. The same broad ground of policy and humanity ought to prevail here, the very circumstance of contracting with him ought to operate to enable the bankrupt to make such contract for his own benefit. No man will venture to work when he is not sure of his pay. The plaintiff is also entitled to recover upen another ground, viz. that if this defence is of any avail, the defendants ought to have pleaded specially, that the plaintiff was a bankrupt, and that they were his assignees, and that he therefore cannot maintain this action against them.

Best replied on the dictum of Lord Alvanley, that it was strongly in favour of the defendants: he only says, that the bankrupt is entitled to the profits of his daily labour; perhaps the assignees cannot take his daily meal out of his hand: but it is for the Court to say, whether if he were to recover a consider able accumulation, like this sum, he might not be summoned before the commissioners, and obliged to refund it.

MANSFIELD, C. J. It is very common for the assignees, how wisely, may sometimes be doubted, but in some cases usefully, to employ the bankrupt in the management of their affairs, and it is usual to make the bankrupt an allowance at the end. And if if the assignees had made an express contract, it might be very hard to say that they had not given up their right, and that they were not bound to pay, but this is not that case, here is no evidence of any contract. In many of the cases cited the whole question has been whether the Court should interfere to require security for the costs. No doubt, in such an action where the bankrupt is permitted to sue for his own benefit, the Court will not interpose to compel that security from a bankrupt, if the assignees do not claim the property. Where the bankrupt sues for their benefit, there the Court will compel security from him, but that does not establish the proposition contended for.

HEATH, J. Here is a payment in part, and it may be questioned whether that is not evidence of such a positive contract. If there were not an implied contract, how could the assignees justify to the creditors giving the bankrupt any thing?

CHAMBRE,

1815.

COLES

V.

BARROW.

[759 ]

1813.

COLES

V.

BARROW.

CHAMBRE, J. This case is infinitely stronger in favour of the bankrupt than was the case of Chippendale v. Thomlinson. There it was held the bankrupt might * recover, if the assignees did not interfere, and if there were an implied assent; and here [ *760 ] is, not merely an implied, but an express assent; where the assignees employ the bankrupt, and have held all the benefit of his labour, and make him a payment in part, I think it would be a monstrous thing if this action were not maintainable.

Cur. adv. vult.

MANSFIELD, C. J. in this term delivered the opinion of the Court, Heath, J. being absent.

This was an action brought by the plaintiff, who was a clothdresser, and had become a bankrupt, against his assignees. The evidence disaffirmed any express agreement having been made by the defendants to pay wages to the plaintiff, and the claim of the plaintiff was upon a common quantum meruit for work and labour. My two brothers (a) are of opinion, that the nonsuit was wrong, and that the rule must be absolute. I was of another opinion, as thinking that all rights, and all goods due to the bankrupt, are vested in the assignees. I have never been able to change my opinion; but I now entertain a considerable degree of doubt, on account of the opinion of my learned brothers, the present rule therefore must be absolute, and the nonsuit must be set aside.

Rule absolute.

(a) Lawrence, J. had resigned before this judgment was given, and Gibbs, J. was not on the bench when it was argued.

END OF HILARY TERM.

CASES

ARGUED AND DETERMINED

IN THE

COURTS OF COMMON PLEAS,

AND

EXCHEQUER-CHAMBER,

AND OTHER COURTS,

IN

Easter Term,

In the Fifty-third Year of the Reign of GEORGE III.

WALLIS V. LADE (a).

1813.

May 6.

T

in the memoriał

of an annuity to securities were executed “in the presence of T. C. of, &c." without expressing that he subscribed his

state that the

HE memorial of an annuity noticed a bond to the plaintiff. It is sufficient in 600l. for securing the annuity, and also a warrant of " and which said bond and warrant of attorney were attorney, respectively executed by the defendant in the presence of Thomas Chapman, clerk to Charles Harman, of Wine-office Court, London." Best, Serjt. had in the last term obtained a rule nisi to set aside this warrant of attorney, upon the ground that the memorial did not, as required by stat. 17 G. 3. c. 26. tain the name of the witness."

S. 1. con

name as an at

testing witness.

Vaughan, Serjt. shewed cause. It contains the name of Chap- [769]

(a) Mansfield, C. J. was prevented by indisposition from attending in Court until the 13th of May.

VOL. IV.

3 F

man,

1813.

WALLIS

V.

LADE.

man, who was in fact the only attesting witness, and that is all which the act requires.

Best, in support of the rule. The memorial contains the name of Chapman, but it does not state that Chapman attested. The warrant of attorney might have been executed in the presence of an hundred persons, of whom one only may have attested, and this memorial does not guide the defendant to find that one. Chapman might, consistently with what appears here, have been accidentally in the room, not attending to what was passing.

HEATH, J. We think it sufficiently certain in this case to a common intent. The persons in whose presence it was done must be presumed to be the witnesses: if they are not, the defendant will have the advantage of it when the annuity is to be enforced.

CHAMBRE, J. The act requires nothing more than the name, and it is given. If Chapman was not a subscribing witness to the bond, the defendant may, if sued thereon, resist payment, upon the ground that the subscribing witness, whose name shall appear on the bond when produced, is not mentioned in the memorial.

GIBBS, J. There can be no danger of that which the defendant apprehends. The plaintiff cannot use his warrant of attorney without filing it; he cannot file it without giving thereby to the defendant an opportunity of seeing it and seeing who are the witnesses; and if it then appears that they are not all named in the memorial, the annuity is void.

Rule discharged.

[ 763] May 6. It is not to be concluded that a disorder with which a person is afflicted before he effects

THIS

WATSON V. MAINWARING and Others.

HIS was an action brought by the executors of Dr. Watson, deceased, against the Equitable Insurance Office, to recover a sum which had been insured on his life. Upon the trial of the cause at the sittings after Hilary term 1813, before Gibbs, J. the office resisted the demand on the ground that disorder tend- when the policy was effected the deceased had, (in breach of his

an insurance on his life, is a

ing to shorten

life" within the

meaning of the

declaration required by the Equitable Insurance Office, from the mere circumstance that he afterwards dies of it, if it be not a disorder which generally has that tendency.

declaration

declaration to the contrary,) a disorder tending to shorten life, and that the policy was therefore void. For the plaintiff it was proved by an eminent physician of Bath, to whom Dr. Watson had applied for advice, that his disorder was an affection of the bowels; that this disease may proceed from either of two causes, the one a defect of some of the internal organs, the other a mere dyspepsia: that the first would tend to shorten life; that the second, though it renders the patient uncomfortable, does not generally, unless it increases to an excessive degree, tend to shorten life, and that the complaint with which Dr. Watson was afflicted was not the organic dyspepsia. Several other medical men stated that they had attended Dr. Watson since the policy had been effected, and that he was then quite free from the disorder. On the other hand, several medical persons stated, as witnesses for the defendants, that they had seen him at the time of his visiting Bath previously to effecting the insurance, and that they then considered him as a falling man. It was left to the jury whether the patient's complaint was the organic dyspepsia, and if it was not, whether the dyspepsia under which he laboured was at the time of effecting the policy of such a degree, that by its excess it tended to shorten life. The jury found that it was neither organic nor excessive, and gave a verdict for the plaintiff.

Shepherd, Serjt. on this day moved to set aside the verdict and have a new trial, contending that since the assured afterwards died of the same disorder which he had before effecting the policy, that circumstance was conclusive proof that he was then afflicted with a disorder tending to shorten life.

CHAMBRE, J. All disorders have more or less a tendency to shorten life, even the most trifling; as for instance, corns may end in a mortification; that is not the meaning of the clause; if dyspepsia were a disorder that tended to shorten life within this exception, the lives of half the members of the profession of the law would be uninsurable.

GIBBS, J. According to the rule contended for, the assured, to be insurable, must have no disease at all. It cannot be said that this was not a case, if ever there was one, fit to be left to a jury; and though the office had very good grounds to try the cause, since it has been fairly submitted to a jury, there is as little ground for the Court to interfere, as in any case that ever was tried.

1813.

WATSON

V.

MAINWA

RING.

[764]