Kitchen against Bartsch
| Jurisdiction | England & Wales |
| Judgment Date | 22 November 1805 |
| Date | 22 November 1805 |
| Court | Court of the King's Bench |
English Reports Citation: 103 E.R. 21
IN THE COURT OF KING'S BENCH.
kitchen against baktsch. Friday, Nov. 22d, 1805. It is a good plea to an action on a promissory note and for money lent, that the plaintiff is an uneertificated bankrupt, and that his assignees required the defendant to pay to them the money (a)1 Coutanche v. Le Euez, 1 East, 133, and Nowlan v. Geddes, ib. 634. (6) 1 Sid. 173. The same case is reported 1 Keb. 642, where it is said to have been adjourned ; and one of the objections there taken was, that it was not said that the defendant was outlawed super breve illud: and another was, that the sciendum, was no express averment; especially as there placed. (c) 1 Wils. 78, 86, 97. (a)2 2 Stra. 1226. (a)3 In Saundersm and Another v. Hudson, 3 East, 144, the allegation of outlawry was " which said J. S. and J. D. L. have been in due manner outlawed in the said Court of our said lord the King before the King himself, and still are, remain, and continue outlawed ; " and this was holden not to be sufficient without adding that they-were outlawed in that suit: but no prout patet was contended to be necessary. 22 KITCHEN V. BARTSCH .7 EAST, 5*. claimed by the plaintiff: and it is no 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 assumpsit, the: first count was upon a promissory note made by the defendant on the loth of August 1801, to the plaintiff for 501., payable eight months after date. The second count was upon another promissory note for 301., payable to the plaintiff at six months after the same date. And the sixth count was for money lent. Upon all the other counts a noli prosequi was entered. Pleas ; 1. Non-assumpsit. 2. That the plaintiff, before the promises and causes of action in the declaration mentioned, being a trader, &c. and indebted to W. S. in 1001., became a bankrupt; and thereupon a commission of bankrupt issued on the 5th of June 1801, of that date, on the [54] petition of W. S., by virtue of which he was duly declared a bankrupt; and that afterwards, and before the making of the promises, viz. on the 7th of July 1801, by indenture made and signed by three of the commissioners (in the custody of W. S. and S. D. and not of the defendant) " all and singular the goods, chattels, wares, and merchandizes, effects, debts, sum and sums of money, and all other personal estate whatsoever whereof the plaintiff was possessed, interested in, or entitled unto at the time he became a bankrupt, or at any time since, and all the estate, right, title, interest, equity of redemption, property, claim, and demand whatsoever of the plaintiff of, in, or to the premises, or any part thereof, were in due manner bargained, sold, assigned, and set òover to the said W. S. and S. D. in trust for the benefit of the creditors of the plaintiff." And that the several promises and causes of action in the declaration mentioned were first made and first accrued to the plaintiff after the time when he was so adjudged a bankrupt, viz. on the said 15th of August 1801; 'and that the plaintiff has never òobtained his certificate. That after the making of the promises, &c. viz. on 1st of November 1804, the said W. S. and S. D. as assignees as aforesaid, required the defendant to pay to them the several sums in the declaration mentioned, supposed to be due from the defendant to the plaintiff; by reason of which premises, and of the said indenture, and by force of the statutes, &c. the said W. S. and S. D. as such assignees, &c. became and were entitled to the several sums and causes of action in the òdeclaration mentioned, if any such there are, &c. Replication; that the promissory notes in the first and second counts were made by the defendant to the plaintiff, and the money in the sixth count was lent by the plaintiff to the defendant, [55] after the plaintiff became a bankrupt, and after the issuing of the commission, and after the making of the assignment in the last plea mentioned ; and that the several promises -and causes of action, &c. accrued to the plaintiff after he became a bankrupt, and after the said commission and assignment, &c.: and that the defendant, at...
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Re Ball
...1 Giff. 91. Jameson v. The Brick and Stone Co., LimitedELR 4 Q. B. D. 208. Kitchen v. BartschENR 7 East, at p. 61. Kitchen v. BartschENR 7 East. 53. Kitson v. HardwickELR L. R. 7 C. P. at p. 479. La Roche v. WakemanENR Peake, 140. Lloyd v. BanksELR L. R. 4 Eq. 222. M'Entire v. PotterELR 22 ......
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Wallace v. United Grain Growers Ltd., (1995) 102 Man.R.(2d) 161 (CA)
...refd to. [para. 52]. Laroche v. Wakeman (1777), 1 Peake 140; 170 E.R. 125, refd to. [para. 52]. Kitchen v. Bartsch (1805), 7 East. R. 53; 103 E.R. 21, refd to. [para. Cumming v. Roebuck (1816), Holt (N.P.) 172; 171 E.R. 203, refd to. [para. 52]. Cook v. Whellock (1890), 24 Q.B.D. 658 (C.A.)......
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Herbert against Sayer
...as present, passed by the original assignment by the commissioners to the assignees. This was decided in the ease of Kitchen v. Barlsch (7 East, 53), in which all the authorities were reviewed. The new bankrupt statute, 6 G. 4, c. 16, s. 63, appears to us only to enact in express terms that......
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