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1851.

HAMBER

Lush, in reply. The defendant, throughout the whole correspondence set out in the case, is assumed to be, and treated as, the person having sole and entire control over the messenger, and as the person who is to exercise his discretion as to the keeping or relinquishing possession.

Hall.

Jervis, C. J. I am of opinion that the defendant in this case is entitled to the judgment of the court. Although it is asserted generally in the text-books, that the assignees are responsible to the messenger for his fees, no section of any statute is cited as an authority for that position: and I think all the cases that are to be found upon the subject resolve themselves into cases of contract. Under the old statutes, it was the duty of the trade assignees to receive and to administer all the property of the bankrupt; and, when they found a messenger in possession, and knew that he was doing acts which they themselves were bound to do, their permitting him to continue in possession was such a recognition of an act done for their benefit, and such an adoption thereof, as to amount to an implied contract to pay his expenses. That, I apprehend, was, because they were bound to do the act, and adopted it as an act done for their benefit. Here, however, there is no evidence of any express or positive contract. The messenger was appointed by the official assignee: but, it is said, the defendant allowed him to continue in possession. But the question is, whether we are to imply a contract, from the relative position of the assignee, and what is the degree of his liability. The question is the same under the 5 & 6 Vict. c. 116. and 7 & 8 Vict. c. 96. as under the bankrupt act 1 & 2 W. 4. c. 56.; for, the 5 & 6 Vict. c. 116. ss. 1. and 7. in substance re-enact the 22nd and 25th sections of the 1 & 2 W. 4. c. 56., and the 7 & 8 Vict. c. 96. ss. 4. and 10. re-enact the 1st and 7th sections of the 5 & 6 Vict. c. 116., though in an inverted order.

1851.

HAMBER

Hall,

What, then, is the combined effect of these provisions ? I apprehend it is this,-that, whereas formerly an assignment from the commissioners was necessary to vest the bankrupt's estate in his assignees, now the property is vested by the act of adjudication in the official and trade-assignee, but it is to be possessed by the official assignee alone. It is the duty of the official assignee, therefore, and not that of the trade assignee, to keep possession of the property. The trade assignee does not receive any thing : all is received by the official assignee. The former, therefore, if liable for the charges in question merely because he is the assignee, would have no fund out of which to reimburse himself. It seems to me, therefore, that there was no contract, either express or to be implied, here, because the messenger was not doing an act which it was the duty of the trade assignee to do.

CRESSWELL, J. I am of the same opinion. This is an action for work and labor done and money paid by the plaintiff at the request of the defendant. Now, there was undoubtedly no express contract, nor any express promise to pay. If the work and labor were done, or the money paid, for the defendant, and he afterwards sanctioned it, it might be implied that it had been done or paid at his request. If the expense had been incurred in doing something which the defendant was bound to do, and he knew that it was done, and did not dissent, it might very possibly be said to have been done for him. Now, the work done here, was, keeping possession of property of an insolvent. The law casts that duty upon the official assignee. What is there, then, to raise an inference that this was done at the request of the trade assignee? It being an act which by law is to be done by some one else, it seems to me that it cannot with propriety be said to have been done either by the de

1851.

fendant or at his request. I therefore think the plaintiff is entitled to the postea.

HAMBER

v. Hall.

WILLIAMS, J. I am of the same opinion. There is no evidence of any express contract, or of any express employment of the messenger by the defendant. Bearing in mind the character and duties of the trade assignee, I cannot find that the messenger was employed upon the retainer of the defendant : and I for one am not disposed to be astute to impose upon him an implied liability, where the legislature has not thought fit to impose an express liability.

TALFOURD, J. I am entirely of the same opinion. It is found upon the case that the plaintiff was appointed messenger and took possession before the defendant became assignee. The defendant never was at the colliery, and never interfered, except as is to be gleaned from the correspondence. And from that I infer that the man was kept in possession much against the defendant's will. I think the plaintiff should be nonsuited.

Judgment of nonsuit.

1851.

quest of B.

SMITH v. HARTLEY. May 2. The declara- ASSUMPSIT. The first count of the declaration tion stated that stated, that, before the making of the promise therea certain dif. ference had inafter next mentioned, a certain difference had arisen arisen and was and was then depending between the plaintiff and the depending between A. and defendant, touching and concerning twenty shares in B. touching certuin railway

The Southampton, Manchester, and Oxford Junction shares which Railway, which the plaintiff, at the request of the deA. at the re

fendant, had before then purchased for the defendant, had purchased and for which the plaintiff had paid a large sum of money, for B., and for which A. had to wit, 122. ; that thereupon, for the putting an end to paid 1221.;

the said difference, the plaintiff and defendant, theretothat,for putting an end to the fore, to wit, on the 8th of February, 1849, respectively, said difference, submitted themselves to the award of W. West and R. A. and B. submitted them- Peake, to be made between them of and concerning the award of C. to said difference; that, in consideration thereof, and that be made the plaintiff, at the request of the defendant, had then between them of and con

promised the defendant to perform and fulfil the award cerning the

of the said W. West and R. Peake, so to be made said difference;

between the plaintiff and the defendant of and concerning mised to per- the said difference, in all things on the plaintiff's part to award ; that C. be performed and fulfilled, he, the defendant, then promade his award of and mised the plaintiff to perform and fulfil the said award concerning the in all things therein contained on the defendant's part to said difference, and did thereby award that he decided in favour of A., and that 501., which had been deposited by A. with B., was in part payment of the said twenty shares, and A. by his award did then request B. to pay the balance of the account forth with ; and that B. refused to pay d. the balance of the said account, amounting to 721., according to the tenor and effect of the award :

Held, that the arbitrator's authority to make the award sufficiently appeared, although the nature of the difference was not specifically stated; and that the request to pay amounted to a direction.

But, semble, that the direction to pay “the balance of the account," would have been objectionable, if pointed out as cause of special demurrer.

that B. pro

be performed and fulfilled; that the said W. West and 1851. R. Peake, having taken upon themselves the burthen of

Smith the said arbitrament, afterwards, to wit, on the day and

HARTLEY. year aforesaid, made their certain award of and concerning the said difference, and did thereby then award that they, the said W. West and R. Peake, decided in favour of the plaintiff, and that 50l. which had been deposited by the defendant with the plaintiff, was in part payment of the said twenty shares; that the said arbitrators, by their said award, did then request the defendant to pay the balance of the account forth with,—of which said award the defendant afterwards, on the day and year aforesaid, had notice; and that, although he the defendant was afterwards, to wit, on the day and year aforesaid, requested by the plaintiff to pay him the balance of the said account, amounting to a certain sum, to wit, 721., according to the tenor and effect of the said award, and of his said promise ; yet that the defendant, not regarding his said promise, did not nor would on the day and year last aforesaid, or when he was so requested as aforesaid, or at any time afterwards, pay the said sum of 721., or any part thereof, to the plaintiff, &c.

Special demurrer, assigning for causes,—that the award Special dein the first count mentioned and set forth, is void in law, so far as it relates to the balance of the account therein mentioned, in this, to wit, that the account mentioned in the award, the balance whereof the arbitrators by the said award requested the defendant to pay, was a matter which, as far as appears from the first count, was not referred to the said arbitrators by the plaintiff and defendant; and that, even if the said account was a matter referred to the said arbitrators, and if the said arbitrators had any authority to award that the defendant should pay the balance thereof, the said award is uncertain and insufficient, in this, to wit, that the said arbitrators thereby merely requested the defendant to pay the balance of the

VOL. X.-C. B.

murrer.

3 F

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