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The question for the opinion of the court, is, whether the plaintiff is entitled to recover the whole or any, and, if
any, what part of his bill; and whether with or without interest. If the court should hold him so entitled, the verdict is to be entered for such amount as the court shall direct. If not, the verdict for the plaintiff is to be set aside, and a nonsuit entered.
Lush (with whom was Montagu Chambers), for the plaintiff. It will be contended, on the part of the plaintiff,—first, that the trade assignee of an insolvent, under the statutes 5 & 6 Vict. c. 116. and 7 & 8 Vict. c. 96., is under the same liability as to the messenger's bill, as the assignee of a bankrupt,-secondly, that, if not so liable, the correspondence and affidavit set out in this case, afford evidence from which a contract to pay may and ought to be inferred.
1. The question as to the liability of the assignee of a bankrupt, under the 5 G. 2. c. 30. s. 25. arose in Bur . wood v. Felton. (a) Then came the case of Humber v. Purser (b), where it was held, that an action lay at the suit of the messenger against the sole assignee under a commission issued under the 6 G. 4. c. 16., for the costs of advertising a meeting of creditors, and for the hire of the room in which the meeting was held; and that it was not necessary for the plaintiff to prove an employment by the assignee, nor any express recognition of him as messenger, as the fact of his having acted as messenger, and of the expenses being incurred, must have been known to the assignee. [Jervis, C.J. The main point was not before the court there: the decision
proceeded on the ground of privity of contract. The next
(a) 3 B. & C. 45., 4 D. & R. 621.
(6) 2 C. & M. 209., 4 Tyrwh. 41.
case was Robson v. Jonasshon (a), where it was held that the messenger to a fiat in bankruptcy appointed by the commissioners under the 6 G. 4. c. 16. s. 27. may be removed by the assignees. And in Ex parte Hartop (6), a commission of bankruptcy having been superseded for fraud, nothing having been done under it, and the petitioning-creditor not being to be found,—the assignees who had not attended the summonses, though not privy to the fraud, and not having received any effects, were ordered to reimburse the messenger the expense subsequent to the choice of assignees, but not that previously incurred. [Jervis, C.J. All these are cases of contract.] The facts here amply shew an implied contract on the part of Hall. He knew that the messenger's assistant was in possession. The trade assignee is appointed for the express purpose of looking after the estate of the insolvent. [Jervis, C. J. Has the trade assignee power to dismiss the messenger?] The official assignee is appointed under the 1 & 2 W. 4. c. 56. s. 22.; and the 23rd section enacts that nothing therein contained shall extend to authorise any such official assignee to interfere with the assignees chosen by the creditors, in the appointment or removal of a solicitor or attorney, or in directing the time and manner of effecting any sale of the bankrupt's estates or effects. [Jervis, C.J. That is probably because the attorney suing out the fiat is generally friendly to the bankrupt. Cresswell, J. By s. 22. the property of the bankrupt is to be possessed and received by the official assignee alone, save where otherwise directed by the court of bankruptcy.] By s. 25. the property is absolutely vested in the assignees. [Cresswell, J. The property is in the two, but it is to be possessed by the official assignee alone.] By the 5 &
6 Vict. c. 116. s. 1. it was enacted, that,“ presentation of any such petition, all the estate and effects of the petitioner shall forthwith become vested in the official assignee who shall be nominated by the commissioners acting in the matter of the said petition; and such official assignee shall and may forthwith take possession of so much thereof as can be reasonably obtained and possessed without suit; and the said official assignee shall hold and stand possessed of the same in like manner as official assignees hold and possess estates and effects under and by virtue of the statute relating to bankrupts.” The 7 & 8 Vict. c. 96. makes some alteration in this respect : the 4th section enacts that the property of the petitioner shall vest in the assignee or assignees for the time being, by virtue of their appointment; provided that “the property of the petitioner shall in every case be possessed and received by the official assignee alone, save where it shall be otherwise directed by the commissioner.” The 10th section is important: it enacts, that, until an assignee shall be chosen by the creditors, the official assignee shall be enabled to act, and shall be deemed to be, to all intents and purposes, a sole assignee of the property of the petitioner, and, if the commissioner shall so order, may sell or otherwise dispose of such property, &c.; and the property vested in any official assignee alone, or jointly with any assignee chosen by creditors under the 5 & 6 Vict. c. 116. or this act, shall not remain in such official assignee alone, or jointly with such assignee chosen by creditors, if such official assignee shall resign or be removed from his office, nor in the heirs, &c., of such official assignee, nor in the surviving assignee alone, in case of the death of such official assignee, but all such property shall in every such case go to and be vested in the successor in office of such official assignee alone, or jointly with the assignee chosen by the creditors (if any),
as the case may be. [Jerris, C.J. Is not this act incorporated with the bankrupt act ?] To some extent it is. (a) By the 13th section of the 5 & 6 Vict. c. 116., the judges and commissioners of the court of bankruptcy, or any four of them, are impowered to make orders, rules, and regulations for the better carrying the act into execution, and particularly for regulating and appointing the duties of the official and other assignees; and this was done by general orders of the 1st of November, 1842. Referring to the practice in bankruptcy, it is clear that the creditors' assignee is the person who realises the estate. [Jervis, C. J. He is possessed of the estate. (6)]
2. At all events, there is enough upon the face of the correspondence set out in the case, to shew an implied contract on the part of the defendant to pay expenses necessarily incurred with his knowledge and sanction. The order for the discharge of the messenger from possession comes from the defendant. [Cresswell, J. It emanated from the official assignee.] The assignee voluntarily accepts the oflice, knowing it to be fettered with responsibilities: and there is no reason why he should be allowed to evade them.
Channell, Serjt. (with whom was Bovill), contrà. (c) The defendant is under no liability for the demand in question simply as creditors' assignee : and there is no evidence of an implied contract to pay the messenger's expenses out of his own funds. All the cases upon the subject occurred prior to the time when official assignees
(a) See section 73.
(b) See 12 & 13 Vict. c. 106. s. 141.
(c) The point marked for argument on the part of the defendant, was,—“that, as creditors' assignee, having regard to the date of his appointment, and to the other facts stated in the case,
he is not liable, except upon an express contract with, retainer of, or promise to, the plaintiff, to pay bim his demand, or any portion thereof; and that there are no facts stated in the case from which such a contract, retainer, or promise, can or ought to be implied."
were first introduced. By the statutes, the right of possession of the insolvent's property is exclusively vested in the official assignee. There is nothing to shew that the messenger in this case kept possession of the colliery at the request of the defendant, or even with his concurrence; but there is much to shew the reverse. The question turns mainly upon the statutes 5 & 6 Vict. c. 116. and 7 & 8 Vict. c. 96. [Jervis, C.J. The 1 & 2 W. 4. c. 56. also has an important bearing upon it.] The 1st section of the 5 & 6 Vict. c. 116. came under the consideration of the court of Queen's Bench in a case of Sayer v. Dufaur (a), where it was held, that the official assignee of an insolvent, appointed under that section, might immediately on his appointment sue in his own name for an outstanding debt due to the insolvent. By s. 4., the final order is to be “for the protection of the person of the petitioner from all process, and for the vesting of his estate and effects in an official assignee, to be named by the commissioner, together with an assignee to be chosen by the creditors." The 7th section enacts, that, from and after the passing of the final order, the whole estate, &c., of the petitioner shall become absolutely vested in the official assignee and the assignee chosen by the creditors. The subsequent statute does not materially vary the matter, except that the 4th section contains a proviso “that the property of the petitioner shall in every case be possessed and received by the official assignee alone, save where it shall be otherwise directed by the commissioner.” [Jervis, C. J. Who would be liable to the messenger, before the choice of a trade-assignee? Under the old bankrupt acts, the petitioning-creditor was liable. (6)] There is no provision for that in these statutes.
(a) 11 Q. B. 325.
and see 12 & 13 Vict. c. 106. s. 114.