SECTION VIII.

BANKRUPTS.

WE have, in this country, no general bankrupt law; and the insolvent laws of the several States usually provide for most of the questions which can occur in relation to negotiable paper. In general, however, it may be said that all the property, chattels, or choses in action, and all the interest in any property belonging to the bankrupt, passes to his assignees. He has, therefore, no property left, and no power of disposition or control. He cannot sue, or indorse, (e) or assign. In respect to a bill or note received by a bankrupt after his bankruptcy, it is held, in England, that it does not vest absolutely in the assignees, although they have a right to claim it; but, in the absence of any claim by them, the title of the bankrupt is good as against all other persons. (f) And if the property in the

(e) In Ashurst v. Royal Bank of Australia, Q. B. 1856, 37 Eng. L & Eq. 195, it was held that a bankrupt could convey no title to a note by indorsing it after maturity, but it was said that he could before. See also Smith e. De Witts, 6 Dowl. & R. 120.

(f) Kitchen v. Bartsch, 7 East, 53. In this case it was held to be a good plea to an action on a promissory note, and for money lent, that the plaintiff was an uncertificated bankrupt, and that his assignees required the defendant to pay to them the money claimed by the plaintiff; and it is not a good replication that the causes of action accrued after the plaintiff became bankrupt, and that the defendant treated with the plaintiff as a person capable of receiving credit in those behalves, and that the commissioners had made no new assignment of the said notes and money; for the general assignment of the commissioners passes to the assignees of the bankrupt all his after acquired as well as present personal property and debts. In Drayton v. Dale, 2 B & C. 293, which was assumpsit by the indorsee against the maker of a promissory note payable to A or his order, the defendant pleaded that A became bankrupt, and that his property was duly assigned to assignees, whereby the interest, title, and right to indorse the promissory note before the time of indorsement became vested in the assignees, whereby the indorsement by A was void, and created no rights in the plaintiffs to sue. Repli cation, that the indorsement was made with the consent of the assignees. Rejoinder taking issue upon that fact. A verdict having been found for the defendant on this issue, it was held, that the plaintiff was entitled to judgment, non obstante veredicto. First, because the defendant, who had made the note payable to A or his order, was estopped from saying that A was not competent to make an order. Secondly, because the property acquired by a bankrupt subsequently to his bankruptcy does not absolutely vest in the assignees, although they have a right to claim it; but if they do not make any claim, the bankrupt has a right to such property against all other persons.

bill had already passed from the bankrupt before his bankruptcy, or was so intended, and indorsement ought to be made, the bankrupt may indorse it, or the assignees may be compelled to indorse.(g)

SECTION IX.

OF EXECUTORS AND ADMINISTRATORS.

IN general they have all the rights and remedies of the deceased, although not named in the contracts or instruments from which these rights arise; and lie under all the obligations of the deceased, so far as his assets suffice. All, however, with the important exception of those contracts, whether express or implied, which are so entirely personal to the deceased, that no one can fill his place or become his substitute; so that all the rights and obligations arising under such contracts of course die with him.

If a negotiable note is indorsed, or if a non-negotiable note is assigned for value, to a dead man, whose death is not known, it becomes the property of his executor or administrator, in the same manner as if he had died after the transfer.(h) And this would probably be the case, if this transfer were made in good faith with a knowledge of the death; as it could be made with no other intention than to place the note among his as

sets.

Only the executors or administrators, and not the heirs or next of kin of persons deceased, can claim possession of his bills and notes, or demand payment, or put them in suit.(i) In suing upon them, they must set out distinctly the facts which constitute their representative character, because this is a part of their title. It has been held not sufficient to describe themselves as executors, nor even to aver that they were duly appointed; but they are required to set out the proceedings, so that the court may see that the appointment was legal.(j)

(9) Smith.v. Pickering, Peake, 50; Ex parte Mowbray, 1 Jac. & W. 428. (h) Murray v. East India Co., 5 B. & Ald. 204.

(i) Morse v. Clayton, 13 Smedes & M. 373.

(j) Beach v. King, 17 Wend. 197.

It is otherwise, if they receive a note payable to themselves, though for a debt due to the estate, and though payable to them as executors. For in such case their representative character constitutes no part of their title. The note ever belonged to their testator, but vested in them originally. And if a bill or note, belonging to the testator at the time of his decease, is payable to bearer, they need not in suing upon it make title through him; they may sue as bearers simply. The same distinction is applicable to guardians, receivers, assignees in bankruptcy, and trustees of every description.(k)

It has been a vexed question, whether a note payable to "A, as executor," and given for a debt due to the estate, will be regarded as assets. It was once held that it would not; and therefore that a count upon such a note could not be joined with counts upon promises made to the testator in his lifetime.() But this doctrine has since been overruled ; and it is now well settled that such a note will be assets, at least at the election of the executor.(m) Therefore, if he declares upon it as a note payable to him as executor, and lays the promise as made to him in his representative capacity, he may join counts upon promises to his testator in his lifetime.(n)

(k) Gillet v. Fairchild, 4 Denio, 80; White v. Joy, 3 Kern. 83.

(1) Betts v. Mitchell, 10 Mod. 316. And see, per Chambre, J., in Hosier v. Arundell, 3 B. & P. 11.

(m) See Henshall v. Roberts, 5 East, 150; Hemphill v. Hamilton, 6 Eng. 425; Baker v. Baker, 4 Bibb, 346.

(n) King v. Thom, 1 T. R. 487. In Partridge v. Court, 5 Price, 412, affirmed on error in 7 Price, 591, it was held, that counts on promises made to an intestate may be joined in a declaration by an administrator, in an action of assumpsit on such promises, with counts on promissory notes given to the administrator since the death of the intestate as administrator, because the amount when recovered will be assets in the hands of the administrator. Graham, B. said: "Wherever the money when recovered shall be assets, counts in each character may be joined; and that is a fair and sound criterion, and one which is sufficient to prevent all ambiguity and doubt; it ought, therefore, to be adopted as a never-failing rule. Then we should look to this record with a view to see whether the money which is sought to be recovered would be assets in the hands of the administratrix, and in my opinion the judgment for the plaintiff would be conclusive, if produced, to show that assets had come to her hands, and might be used for that purpose." Wood, B.: "The objection to this declaration is, that it contains several counts which are distinct, and cannot be joined, some being framed on demands in the plaintiff's representative character, and others on demands which should be asserted by her personally, and no doubt if that were so, the declaration would be bad; but I am of opinion that all these counts are on demands arising to her in her representative

Upon the same principle, if an administrator, who has received such a note, dies before it is paid, it goes properly with the other assets into the hands of the administrator de bonis non, and he may sue upon it, and demand and receive payment. (0)

.....

character, and not in person. The true criterion of that is certainly what has been already stated, that where the money, if recovered, would be assets, the causes of action may be joined, and in this case I take it that the money, when recovered, may be clearly so considered. . . . The note is given to the administratrix, as administratrix, and that is not merely, as has been argued, a description of the person, it is a description of character, and of the character in which the debt is to be paid to her." See Henshall v. Roberts, 5 East, 150 ; per Parke, B., in Fath v. Chilton, 12 M. & W. 637 ; per Nelson, C. J., in Bogert v. Hertell, 4 Hill, 503, et seq. In 1 Williams on Executors, 4th ed., 751, after stating the cases, it is said: "The principle on which these cases were decided has not been settled without conflict. Several old cases may be found, in which it was considered that the contracts made with an executor or administrator were personal to him, and that he must sue for them in his own right, and not in his representative capacity; and particularly in the instance of negotiable instruments, it was conceived, until very modern times, that if an executor took a bill or note from a debtor to the estate of his testator, a new debt was thereby created, which must be declared on as such. However, the rule may now be regarded as firmly established by the more recent cases, that wherever the money recovered will be assets, the executor may sue for it and declare in his representative character." And see Sheets v. Pabody, 6 Blackf. 120. But see Turnbull v. Freret, 17 Mart. La. 703; Gilman v. Horseley, 17 Mart. La. 661; Urquhart v. Taylor, 5 Mart. La. 200; Clampitt v. Newport, 8 La. Ann. 124.

(0) Thus, in Catherwood v. Chabaud, 1 B. & C. 150, where a bill of exchange was indorsed generally, but delivered to S. C., as administratrix of J. C., for a debt due to the intestate, and S. C. died intestate after the bill became due, and before it was paid, it was held, that the administrators de bonis non of J. C. might sue upon the bill. Abbott, C. J. said: "It was clearly established by the evidence that the bill in question was given to S. C., as the administratrix of J. C., for money due to her intestate; she took it as assets, and if she had received the money, that must undoubtedly have been accounted for to his estate. The money not having been received in her lifetime, the bill remained as a part of J. C.'s estate, and the right to it devolved upon the persons who afterwards became his representatives. This case differs widely from Barker v. Talcot, 1 Vern. 473, for there the debtor had actually paid the executor of the administrator; now such a payment would, in equity, and might, perhaps, in law also, be a sufficient answer to any action afterwards brought to enforce payment of the same debt over again. Here no payment has been made by the debtor, who therefore cannot be damnified by this action. It has been decided in a variety of modern cases, that an administrator may sue as such upon a promise made to him in his representative character; and that principle governs my opinion upon the present case; for where the cause of action is such that the first administrator may sue in his representative character, the right of action devolves upon the administrator de bonis non of the intestate." Bayley, J.: "It was decided in the case of King v. Thom, 1 T. R. 487, that if a bill be indorsed to A and B as executors, they may declare as such in an action against the acceptor. In Cowell v. Watts, 6 East, 405, it was held, that an administrator may sue in his representative character upon promises made to himself, where the money will be assets when recovered. Now, if the administrator dies intestate, without having sued upon such a promise, the administrator de bonis non may sustain an action upon it; for he

But payment to the administrator of the deceased has been held, in the English Court of Chancery, to discharge the payer; (p) and in a recent case this decision is so commented upon as to imply that the payment might be held good at law. (q) It is also intimated, in the same case, that there may be cases where the representative of the administrator might and ought to sue; as if the administrator had made himself debtor to the intestate's estate for the amount of the note. (r)

An executor or administrator may indorse a negotiable note of the deceased; and his assignment of a non-negotiable instrument passes the property to the assignee.(s)

But such

succeeds to all the legal rights which belonged to the administrator in his representative capacity. Here, S. C., the administratrix of J. C., might have sued as such upon the bill in question. This action was, therefore, properly brought by the administrators de bonis non. By this mode of proceeding, the money recovered is immediately applicable to the right fund, as assets of the first intestate; whereas, if the action had been brought by the personal representative of the administratrix of J. C., it would, in the first instance, have become a part of her estate, and must afterwards have been transferred from that to the estate of J. C., the first intestate." Holroyd, J.: "I am of the same opinion. The decisions in the old cases proceeded upon the principle that contracts made with an administrator were personal to him, and that he must sue upon them in his own right, and not in his representative capacity. That principle has since been altered, and it has been ruled in several modern cases, that upon such contracts an administrator may sue in his representative character. The older cases have, therefore, received a qualification, and are not now to be considered as law to their full extent." Best, J.: "In refusing this rule it is not necessary to decide that the administrator of the administratrix S. C. could not have sued; it is sufficient to say, that the adminis trator de bonis non might sue; and this observation may serve to reconcile the various cases which have been referred to. An action by the administrator de bonis non was certainly the most proper, that being the shortest and most convenient mode of bring ing the money recovered into the funds of the original intestate." Abbott, C. J.: "There is much weight in the distinction which has been taken by my brother Best. There may be cases where the administrator of an administrator might and ought to sue, namely, if the first administrator had made himself debtor to the intestate's estate for the amount of a bill received in payment of a debt due to that estate." And see Sheets v. Pabody, 6 Blackf. 120.

(p) Barker v. Talcot, 1 Vern. 473.

(q) Catherwood v. Chabaud, 1 B. & C. 150.

(r) Catherwood v. Chabaud, supra. In Rix v. Nevins, 26 Vt. 384, the plaintiff, as administrator of the estate of R., commenced a suit upon certain notes which R., in his lifetime, had taken of the defendant as administrator of the estate of L. (of which estate the plaintiff was also administrator de bonis non), and obtained judgment against the defendant on the same. Held, that the plaintiff, having thus treated the claim against the defendant as assets, and as the property of the estate of R., the same was subject to every legal and equitable set-off which the defendant had against R. or his

estate.

(s) Rawlinson v. Stone, 3 Wilson, 1. This was an action upon a promissory note,