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vit of her incapacity or imbecility at the time the acknowledgment was taken.



Mr. Justice BURROUGH.-If the deforciant should die before the inquiry as to her capacity be made, the fine would be completely at an end. The enquiry in the first instance should have been made to the commissioners by whom the acknowledgment was taken ; and the affidavit on which the caveat is sought to be entered, merely states, that the deponent is informed and believes that the deforciant is in an imbecile state of mind, and it does not even appear that he has ever seen her.

The learned Serjeant therefore took nothing by his motion.


SUMMERSETT V. ADAMSON. Nov. 19tb. Where, in tro- This was an action of trover, brought against the dever against an auctioneer, for fendant as an auctioneer, for having sold the plaintiff's plaintif's goods effects in the year 1817, by the authority of assignees, under a commission of

under a commission of bankruptcy, which had been isbankruptcy, sued against the plaintiff in that year, but which had which was afterwards super- been afterwards superseded. seded, one of the plaintiff's

At the trial of the cause, before Lord Chief Justice witnesses, on

Dallas, at Guildhall, at the Sittings after the last Term, cross examination, said, that one of the plaintiff's witnesses, on cross-examination, he had heard the plaintiff

stated that he had heard the plaintiff say, that he had say, that he had been dis

been discharged under the Lords' Act(a), in the month charged under the Lords' act since the sale : Held, that such admission being a matter of law as well as fact, was not conclusive to impeach the plaintiff's title to sue the defendant, as the latter should bare produced the assignment, or shewn that the requisites of that statute had been complied with, so as to entitle the plaintiff to his legal discharge.

(a) 32 Geo. 2. c. 28.




of January, 1820; on which it was objected for the defendant, that as the subject matter of this action arose in the year 1817, the plaintiff could not shew any legal title to any property he might have been possessed of previous to his discharge, as the whole of it passed to his creditors under that statute ; or, at all events, was vested in his assignee; and that he was bound to shew that his creditors had re-conveyed to him some right; or if not, that he could have no claim on the defendant. No assignment was put in by the defendant, as required to be made by an insolvent by the 17th section of the 32 Geo. 2, c. 28, nor was any direct evidence offered of the plaintiff's discharge; and it was submitted, that it was unnecessary for the defendant to do so, as the admission by the plaintiff's witness, that the former had told him that he had been discharged under that act, was sufficient; or that, at all events, the plaintiff's title was thereby shewn to be defective, so as to render him incapable of maintaining the present action. The Jury, however, found a verdict for the plaintiff, damages 1,1001, ; but his Lordship reserved the point on which the objection was taken, for the consideration of the Court.

Mr. Serjeant Taddy, on a former day in this Term, accordingly obtained a rule nisi that this verdict might be set aside and a nonsuit entered, or a new trial granted. He submitted, that if the plaintiff had been discharged without having assigned over his property to an assignee, in trust for the benefit of his creditors, according to the provisions of the statute 32 Geo. 2, he was liable according to the seventeenth section thereof, to transportation for seven years; and that as it had been admitted by one of his own witnesses that he had himself stated that he had been discharged under that act, it was sufficient, without the production of the assignment by the defendant; for it must be presumed, that what



ever was done under that statute was done rightly, acSUMMERSETT cording to the well known rule respecting proceedings in

Courts of Justice, that omnia presumuntur rité acta. He also submitted, that the defendant was merely an agent to the assignees under the commission, who were present at the time of the sale, and that he could only be liable to the plaintiff as such; and that the latter had recovered the value of the goods so sold by the defendant from the assignees, in a previous action (a), and that the plaintiff had since obtained a bond from them, in which they had undertaken to account to hin for the proceeds of the sale. The defendant, therefore, could not be considered a trespasser, as the bond was given by the assignees, as his principals on account of the sale, and for the proceeds of which this action was brought.

The Court granted the rule on the first objection only.

Mr. Serjeant Lens now shewed cause, and contended, that the supposed acknowledgment by the plaintiff, that he had been discharged under the Lords' Act, ought not to be taken as conclusive against him, but that the defendant should have proved that he had been regularly discharged, according to the provisions of that statute, by the production of the assignment, which must have been made before the plaintiff could have been entitled to take the advantage of it. Although he might have applied for his discharge, it would not bar him from maintaining the present action : and it does not appear that he was ever required to deliver in a schedule, or that the demand for which this action was brought was included in it; nor was any order for his discharge ' by the Insolvent Debtors' Court given in evidence by the

(a) See ante, Vol. VI. 56.




defendant. The Court is not to presume that there bas been an assignment; and even if there had been, and the assignee did not interfere, the plaintiff might recover as a trustee for him ; but the whole of his acknowledgment merely went to shew that he had taken the benefit of the act. In Townsend v. Snow (a), where an insolvent having assigned his property under the insolvent acts, brought an action to recover a debt incurred before the assigoment, the assignees having refused to sue; the Court refused to set aside the proceedings, or require the insolvent to give security for costs. And in Brown v. Rivers (6) it was held, that if a person, who has been discharged under an insolvent act, brings an action and recovers, on a promissory note made payable to bim before his imprisonment, but not due till after his discharge, and which was not inserted in his schedule, he shall hold the money as a trustee for his assignees. Although, therefore, the plaintiff might have been discharged, as there was no evidence of an assignment, or even an acknowledgment by him that such an instrument had been made ; and as it did not even appear that an assignee had been appointed, the verdict found at the trial cannot be disturbed.

Mr. Serjeant Taddy, in support of the rule.-There is a manifest distinction between an assignment of a private nature, and an assignment by statute. A chose in action cannot be assigned at law, so as to vest any right of action in the assignee; but by the 17th section of the 32 Geo. 2, all the estate and property of the insolvent is vested in the assignee for the benefit of the creditors, and he alone is entitled to sue. Here, all the plaintiff's property must have been inserted in his schedule, which distinguishes, this case from Brown v. Rivers, where the

(a). 1 Marsh. 477. S. C. nominc Snow v. Townsend, 6 Taunt. 123.(6) 2 Doug. 472.




note on which the action was brought was not included: There, too, the note did not become due until after the plaintiff's discharge, and was not paid even when it was due. There was therefore no doubt as to his right to recover from the defendant; and in Townsend v. Snow, it was merely decided, that where the assignee of an insolvent had refused to sue, and he brought an action in bis own name, he could not be required to give security for costs. Here, however, the sale of the plaintiff's property by the defendant took place three years before his discharge, and was consequently vested in his assignee. With respect to its being incumbent on the defendant to have produced the assignment at the trial, the objection raised by him went to destroy the plaintif’s right of action, and he was therefore bound to make out a good title in omnibus. If bis assignees had sued, it would be a different question ; but the plaintiff himself adınitted that he had been discharged, which was conclusive; as he thereby shewed that his title to maintain this action was defective. So, when a person confesses he has become a bankrupt, it is an answer to an action brought by him in his own right since the bankruptcy, for a cause of action which accrued to bim before. If the plaintiff had been discharged without inaking an assignment, he would be liable to transportation; and the Court would not presume a crime to have been committed, or that he had not included his claim on the defendant in his schedule ; and as the plaintiff has impeached his title to sue by his own act, he had no right to maig. tain this action.

Lord Chief Justice Dallas.- The only evidence given at the trial that the plaintiff had been discharged under the statute 32 Geo. 2, c. 28, was a supposed admission made by himself to one of his witnesses, and which was elicited from the latter on his cross-examination. If he had

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