Copeland against Stephens
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1818 |
| Date | 01 January 1818 |
| Court | Court of the King's Bench |
English Reports Citation: 106 E.R. 218
IN THE COURT OF KING'S BENCH.
Referred to, Wilson v. Walliani, 1880, 5 Ex. D. 158.
[593] cases argued and determined in the court of king's bench, ik trinity term, in the fifty-eighth year of the reign of george III. copeland against stephens. 1818. The general assignment of a bankrupt's-personal estate under his commission, does not vest a term of years in the assignees, unless they do some act to manifest their assent to the assignment as-it regards the term, and their acceptance of the estate, rents, &c. And therefore till some act of this sort is done by them, the term still remains in the-bankrupt, and he is liable to the payment of rent accruing due subsequent to th& bankruptcy. [Referred to, Wilson v. Wallani, 1880, 5 Ex. D. 158.] Action of covenant. The plaintiff, in Michaelmas term 1816, declared, that by an-indenture, dated 9th June, 1813, made between her and one Robert Thompson, she demised to the said Robert Thompson, bis executors, administrators, and assigns, certain messuage, &c. for seven years, at the rate of 571. 15s. per annum, to be paid by four equal quarterly payments, which the said Robert Thompson covenanted, for himself, his executors, &e., well and truly to pay or cause to be paid. That the said Robert Thompson entered and became possessed of the said demised premises, and that afterwards, on the 3d May, 1814, all the [594] estate, right, title, interest, term of years then to come and unexpired, profit, claim, and demand whatsoever of the-said Robert Thompson to the demised premises by assignment thereof, legally came to and vested in the defendant, who entered and became possessed and continued possessed till the time of action brought. The declaration then charged a breach of covenant, in the defendant not having paid a quarter's rent due 29th September 1815, amounting to 141. 9s. 8d. Plea, that after defendant became assignee of the demised premises, to wit, on the 1st June 1815, he became a bankrupt, and that afterwards, and before any part of the said sum of 141. 9s. 8d. became in arrear and unpaid, the commissioners, on the 1st July 1815, by indenture between themselves and one William Tate, assigned to the said William Tate, (who had been before duly chosen assignee of the estate and effects of the said defendant,) all the goods, chattels, merchandises, effects, debts, sums of money, and all other personal estate whatsoever, and all the estate, right, title, interest, equity of redemption, property, claim or demand whatsoever of or in the said demised premises belonging to the defendant. By virtue of which all the estate, interest, and terms of years then to come and unexpired of him the said defendant of, in, to, or out of the said demised premises became and were from thence- 1 B. & AID. 595. COPBLAND V.STEPHENS 219 forth and still are legally assigned to and vested in the said William Tate as such assignee as aforesaid. The plaintiff replied, that the said William Tate did not, before the said sum of money in the said declaration mentioned became in arrear and unpaid, or afterwards, accept the said indenture of lease, or the benefit therefrom, as part of the estate and effects of the said [595] defendant, nor enter into or become possessed of the said premises thereby demised. To this replication there was a general demurrer and joinder; and the case was argued in last Michaelmas term, by Deacon, in support of the demurrer. The distinction between the liability of the original lessee and that of the assignee of a term is, that the first is liable always by reason of the privity of contract; the latter, only by reason of the privity of estate. The moment therefore that the privity of estate is gone, his liability ceases to exist. Here the defendant is sued as assignee of the term originally demised to Eobert Thompson, and the question is, whether the privity of estate still subsists. It was not necessary to aver in the plea the entry of W. Tate, the assignee of the bankrupt. For when an assignment to a third person, not a party to the suit, is pleaded, it is not necessary to aver entry. In Cook v. Harris (a)1, Lord Holt says, "The ancient method of pleading assignments was virtute cujus the assignee assented and was possessed ; but that is disused now, for the assignee has the estate in him before entry, though not to bring trespass." And there the assignee was himself the party to the suit; so that that case is stronger than the present. The lessee has a right and an estate in him before entry, which he may grant or assign to another (6)1. Saffyris case (e)1. Then as large an interest as passes to the lessee before entry, will pass to his assignee, or from one assignee to another, before entry, and there will not remain with either the lessee or the mesne assignee such a privity of estate with the lessor as would entitle the latter to sup-[596]-port an action of covenant against them. Here the commissioners have assigned all the bankrupt's interest to the assignee under the commission. The bankrupt then has no privity of estate left, and being only assignee of the term, and not lessee, there is neither privity of estate nor privity of contract; and consequently this action of covenant cannot be maintained against him. In Eaton v. Jagues (a)2, an entry was certainly held to be necessary. But that case has been overruled in Westerdell v. Dale (b)2, and by Lord Kenyon in Stone v. Evans (c)2. And the same seems to have been taken as clear law in SparJces v. Smith (d), and...
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