1832.

HANCOCK

V.

CAFFYN.

existed, and afterwards to deny the existence of such tenancy.

The second objection is, that, admitting the existence of the tenancy, there is no such implied duty on the part of the landlord as this action supposes. The duty alleged is, that Caffyn, by paying over to the superior landlord the rent received from the under-tenant, should protect the under-tenant from the superior landlord's distress. And that is no more than one of the necessary consequences of the implied agreement on the part of every landlord for his tenant's quiet enjoyment. Even if there be no actual agreement by the mesne landlord to pay over to the superior landlord the rent received from the under-tenant in order to secure his quiet enjoyment, still, in the case of Burnet v. Lynch, it was held to be an implied duty on the part of the assignee of a lease to perform the covenants contained in it, in order to keep the assignor harmless: if that be a duty in the assignee, it is not easy to see why it should not be correlatively the duty of the assignor to protect the assignee by paying over to the lessor the rent received from the assignee. And Burnet v. Lynch is also an authority that case is the more proper form of action, although assumpsit may also lie. And there are many other instances where, upon a duty which the law implies, the remedy is either by assumpsit or case.

The third objection is, that, at all events, no such right of action as this passes to an assignee under the bankrupt law. Undoubtedly, there is a large class of actions, in which, though an action lies for the bankrupt, the right does not pass to his assignees; as for injuries to person or reputation: but we should not give due effect to the statute, if we were to hold that a right did not pass arising out of an injury which has lessened the amount of the fund belonging to the creditors. The words of the statute 6 G. 4. c. 16. are very

com

comprehensive; in s. 12. it is enacted, "That the commissioners shall take such order and direction, with the body of such bankrupt, as hereinafter mentioned, as also with all his lands, tenements, and hereditaments, both within this realm and abroad, as well copy or customary hold as freehold, which he shall have in his own right before he became bankrupt, as also with all such interest in any such lands, tenements, and hereditaments, as such bankrupt may lawfully depart withal, and with all his money, fees, offices, annuities, goods, chattels, wares, merchandize, and debts, wheresoever they may be found or known, and make sale thereof in manner hereinafter mentioned, or otherwise order the same, for satisfaction and payment of the creditors of the said bankrupt." And by the sixty-third section it is enacted, "That the commissioners shall assign to the assignees, for the benefit of the creditors of the bankrupt, all the present and future personal estate of such bankrupt, wheresoever the same may be found or known, and all property which he may purchase, or which may revert, descend, be devised, or bequeathed, or come to him, before he shall have obtained his certificate; and the commissioners shall also assign as aforesaid all debts due or to be due to the bankrupt, wheresoever the same may be found or known; and such assignment shall vest the property, right, and interest in such debts in such assignees, as fully as if the assurance whereby they are secured had been made to such assignees." When the statute directs an assignment of all the bankrupt's present personal estate, how can we except a right in respect of which the fund accruing to the creditors would receive compensation to the extent to which the property of the bankrupt has been diminished. The case of executors affords a close analogy: they cannot sue for any injury to the person of the testator; but in respect of an injury to the property which would

1832.

HANCOCK

V.

Caffyn.

1832.

HANCOCK

V.

CAFFYN.

have formed part of the assets, they are entitled to

recover.

As to the amount of the damages, we see no grounds for interfering.

PARK J. I am of the same opinion. The Defendant himself has put a construction on this contract by distraining on the Plaintiff, and shewing thereby that he considered himself to stand in the relation of landlord. Burnet v. Lynch is in point as to the form of action; and the right sought to be enforced is one which undoubtedly passes from the bankrupt to his assignees. The fallacy lies in the generality of the term "personal action." It is true, that a right of action for an injury to the person does not pass to the assignee; but for an injury to the bankrupt's personal property he is entitled

to sue.

GASELEE J. If the agreement between Nicholles and Caffyn does not constitute a demise, I do not know what does. Nicholles is to enter into immediate possession; is to occupy for many months before an indenture of lease is executed; is to pay rent, and to be subject to distress. The objection as to the form of action is answered by the decision in Burnet v. Lynch; and as to the right of action not passing to the assignees, rights of the same kind have been holden to pass under the old statute, the language of which is not so comprehensive as that of 6 G. 4. c. 16.

ALDERSON J. Concurring, the rule was

Discharged.

1832.

PERRYMAN v. STEGGALL and STRAIGHT.

May 1.

lease by a creditor to a

THIS was an action on a promissory note for 1087. A general regiven by the Defendants as sureties for one Tucker to Sylvester and Walker, and by Sylvester and Walker indorsed to the Plaintiff.

bankrupt is

not sufficient to render the

At the trial before Gaselee J., London sittings in last bankrupt a Hilary term, the defence set up was, that the note was competent witness for given as a security for money which Tucker had borthe creditor, rowed of Sylvester at a usurious rate of interest; and where the reTucker, against whom a commission of bankruptcy was sult of his still in force, and who, after his bankruptcy, had been would give testimony discharged under the insolvent debtors' act, was called the creditor a to prove the usury. The bankruptcy took place after right to prove the transaction with Sylvester. Whereupon it was ob- commission. jected, that Tucker was incompetent to give evidence, The creditor ought also to as the Defendants, his sureties, would be entitled to give a release prove under his commission whatever they might be to the assignee adjudged to pay in this action, the verdict in which of all claim would be evidence against him of the amount of damage rupt's estate, sustained by the Defendants.

under the

on the bank

and the bankrupt ought to

Upon this the Defendants executed the usual general release his release to Tucker, when it was further objected, that all claim to a Tucker's estate, being vested in his assigness, the release surplus. which had been executed operated only as a release of his person, and left his estate, which was vested in assignees, still liable to the Defendants' proof. The witness, however, was admitted, and a verdict was found. for the Defendants; which

Wilde Serjt. obtained a rule nisi to set aside, on the ground that Tucker was incompetent to give evidence, notwithstanding the above release.

Andrews

1832.

PERRYMAN

ข.

STEGGALL.

Andrews Serjt., who shewed cause, after attempting, without success, to shew that Tucker was not connected with the Defendants, relied on the release as having restored his competency.

Wilde. The Defendants, in case of a verdict against them, would, notwithstanding their release to Tucker, be entitled to prove the amount under Tucker's commission, without disturbing the previous dividends, if any. 6 G. 4. c. 16. s. 52. The witness, therefore, was interested to defeat the verdict. The Defendants should have given to the assignees a separate release of all claim on the bankrupt's estate, and the bankrupt should have released his claim to a surplus. Carter v. Abbott. (a)

TINDAL C. J. It seems to me, that, under all the circumstances of the case, Tucker was not an admissible witness. He had been a bankrupt, and afterwards insolvent; and the proceedings under the commission of bankruptcy are not yet wound up. If the Defendants could prove under that commission for the amount of this verdict, the surplus and allowance to the bankrupt would be diminished in the same proportion. Now, the the fifty-second section of 6 G. 4. c. 16. enables them to prove for such a claim, without disturbing dividends already paid. If Tucker had released his right to the surplus, perhaps he might have been a competent witness as far as the bankruptcy is concerned. It is not necessary now to touch upon the insolvency; for, considering the witness incompetent in respect of the bankruptcy, we think the rule should be made

(a) 1 B. & C. 444.

Absolute.