Daniel Beckham, - Plaintiff in Error; William Walker Drake and John Surgey, - Defendants in Error
| Jurisdiction | England & Wales |
| Judgment Date | 26 July 1849 |
| Date | 26 July 1849 |
| Court | House of Lords |
English Reports Citation: 9 E.R. 1213
House of Lords
Mews' Dig. ii. 326, 1137; ix. 832; x. 551. S.C. 13 Jur. 921; and, below, 9 M. and W. 79; 11 M. and W. 315; 12 L.J.Ex. 486; 7 Jur. 204. See Rogers v. Spence, 1846, 12 Cl. and F. 700, and note thereto; Wadling v. Oliphant, 1875, 1 Q.B.D. 150; Emden v. Carte, 1881, 17 Ch.D. 172; In re Roberts (1900), 1 Q.B. 122. Cf. also Spurr v. Cass, 1870, L.R. 5 Q.B. 659; Colder v. Dobell, 1871, L.R. 6 C.P. 490.
[579] DANIEL BECKHAM,-Plaintiff in Error; WILLIAM WALKER DRAKE and JOHN SURGEY,-Defendants in Error [May 11, 14, 1847; July 6, 26, 1849]. [Mews' Dig. ii. 326, 1137; ix. 832 ; x. 551. S.C. 13 Jur. 921; and, below, 9 M. and W. 79 ; 11 M. and W. 315 ; 12 L.J.Ex. 486; 7 Jur. 204. See Rogers v. Spence, 1846, 12 Cl. and F. 700, and note thereto; Wadling v. Oliphant, 1875, 1 Q.B.D. 150; Emd'en v. Carte, 1881, 17 Ch.D. 172 ; In re Roberts (1900), 1 Q.B. 122. Cf. also Spurr v. Cass, 1870, L.R. 5 Q.B. 659; Colder v. Dobell, 1871, L.R. 6 C.P. 490.] A. entered into an agreement with B. and C. to serve them for seven years, at fixed wages, at the rate of three guineas weekly, " the party making default to pay to the other the sum of £500 by way or in nature of specific damages." A. was dismissed; he became bankrupt, and after the bankruptcy brought an action of assumpsit on the agreement, to which the defendants pleaded his bankruptcy- Held, that this plea was an answer to the action, for that the right of action in respect of this breach of the agreement passed to his assignees. This was a writ of error upon a judgment of the Court of Exchequer Chamber reversing a judgment of the Court of Exchequer of Pleas, in an action on promises. The action was brought by Beckham against Drake, Surgey, and Knight, upon an agreement dated 23rd October, 1834, made between William Moxey Knight and John Surgey, of Bishop's Court, Old Bailey, in the city of London, typefounders, of the one part, and Daniel Beckham of the other part. The agreement recited that Beck-ham had been for some time in the employment of Knight, and Surgey, as their foreman in the carrying on of their trade, and that the said parties were mutually desirous of continuing their connection together for the term of seven years from the date of the agreement. The parties then agreed that Beckham should serve Knight and Surgey, and the survivor of them, for and during the term of seven [580] years, to commence and be computed from the day of the date of the agreement, as their foreman, and should, to the best of his power, promote and advance their success and prosperity in the same. And also, that he should not, during the said seven years, engage in the same or any other business, either on his own account or on account of or for the benefit of any other person, without their consent in writing, first had and obtained for that purpose. Knight and Surgey, for the considerations aforesaid, agreed, that they, or the survivor of them, would employ Beckham as their foreman during the said seven years, if they, or either of them should so long live, paying him wages after the rate of three pounds and three shillings of lawful money weekly. And it was mutually agreed and declared by the parties thereto, " that in case either of the said parties hereto, shall not well and truly observe, etc., the covenants, etc., herein on their respective parts contained, that then, and in such case, the party so failing or making default shall and will pay to the other of them the sum of five hundred pounds, by way or in the nature of specific damages." The declaration contained two counts: the first count was special upon the agree ment; the second count was upon an account stated. Drake and Surgey severally pleaded, first, " non-assumpsit; " and secondly, that Beckham became bankrupt after the accruing of the causes of action and before the commencement of the suit, whereby the causes of action became vested in his assignees. Knight suffered judgment by default. Beckham joined issue upon the pleas of " non-assumpsit," and demurred to the pleas of bankruptcy. Drake and Surgey joined in demurrer. The issue in fact was [581] tried arid a verdict was given for the plaintiff, damages £100 (9 Mee. and Wels. 79). 1213 II H.L.C., 582 BECKHAM V. DRAKE [1849] The dem,urrers were argued before the Judges of the Court of Exchequer, who, at the sittings after Trinity Term, 1841, gave judgment for the plaintiff upon the demurrer to the pleas of bankruptcy (8 Mee. and Wels. 846). The defendants brought a writ of error in the Exchequer Chamber, and, after argument, the judgment of the Court of Exchequer was reversed (11 Mee. and Wels. 315) by the unanimous judgment of the Court of Exchequer Chamber.* The present writ, of error was then brought. [582] Mr. Martin and Mr. Stammers for the plaintiff in error.-The sole question which it is now intended to argue (for that arising out of the form of the contract to which two only of the defendants were originally parties, will not, after the unanimous decisions of two Courts, be further contested) is, whether the plea of the bankruptcy of the plaintiff affords a sufficient reason for depriving him of his right of action in this case. That will depend on the construction to be given to the 12th and 63rd sections of the 6 Geo. IV., c. 16.t [583] Applying to those sections the ordinary rules of construction, nothing but the personal estate of the bankrupt, and such contracts as directly relate to property, can be said to fall within them. Contracts which relate, not to the property but merely to the personal services of the bankrupt, will not * This case was likewise before the Court of Common Pleas in 1837. In June, Beckham became bankrupt, but obtained his certificate before November. Early in Michaelmas Term a rule for security for costs was obtained. After argument by Mr. Stammers for the plaintiff, and by Mr. E. V. Williams for the defendant, the rule was discharged (4 Bing. N. C. 74). In giving judgment Lord C. J. Tindal said, " The plaintiff commences an action when he is a solvent person : he afterwards becomes bankrupt and obtains his certificate: it is not till after he has obtained it that application is made for security for costs, and there is no proof that the assignees undertake to go on with the action, but the affidavit in support of the application discloses the contrary." The defendant Drake, who was sued as a dormant partner, pleaded specially that the agreement on which the action was brought was made by the plaintiff with Knight and Surgey alone. There was a demurrer to this plea. The demurrer was argued in Hilary Term, 1838, and judgment given for the defendant, and that judgment was afterwards affirmed. (See 4 Bing. N. C. 243 ; 1 Scott N. R, 675 ; and 1 Man. and Gr. 738 in Error. But see 9 Mee. and W. 79, where the decision of the Court of Common Pleas is controverted, and the affirmance of it is explained.) t 6 Geo. 4, c. 16, s. 12, enacts, " that the Lord Chancellor shall have power, upop petition made to him in writing against any trader having committed any act of bankruptcy to appoint such persons as to him, shall seem fit, who shall have full power and authority to take such order and direction, with the body of such bankrupt, as also with all his lands, tenements, and hereditaments, etc., 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 sucli 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 to make sale thereof in manner hereinafter mentioned, or otherwise order the same for satisfaction and payment of the creditors of the said bankrupt. The 63rd section enacts, " 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; and after such assignment neither the bankrupt nor any person claiming through or under him shall have power to recover the same, nor to make any release or discharge thereof, neither shall the same be attached as the debt of the bankrupt by any person according to the custom of the city of London, or otherwise, but such assignees shall have like remedy to recover the same in their own names, as the bankrupt himself might have had if lie had not beeii adjudged bankrupt. 1214 BEOKHAM V. DRAKE [1849] II H.L.C., 584 pass, and, as a necessary result, the right of action for a. breach of any such contract will not pass; for there can be no difference between the contract itself and the right to sue for a breach, of it. It must be admitted that in some of the cases the language of the courts has been sufficiently equivocal to raise some doubts as to the construction of these clauses of the bankrupt act. But with respect to real property the question has been settled; Smith v. Coffin (2 H. Bl. 444) decided that a real action passed to the assignees by the usual words of a deed of assignment in bankruptcy. But for an injury done to real property in the tenancy of the bankrupt the right of action would not pass, nor would the ordinary right to maintain trespass yaare clausum fregit pass to...
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