Woodham v Marlow
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1788 |
| Date | 01 January 1788 |
| Court | Court of Common Pleas |
English Reports Citation: 126 E.R. 253
IN THE COURTS OF COMMON PLEAS AND EXCHEQUER CHAMBER
(a) Woodham v. Marloio, B. R. Mich. 25 Geo. 3 *. This was an action of debt for rent due on a lease which was expired. The defendant pleaded : 1. Non est factum. 2. As to 181. 5s. one quarter's rent, that he became a bankrupt, and that the said sum of 181. 5s. was due before his bankruptcy. 3. As to the residue of the sura demanded, that it became clue after the bankruptcy. On the first plea issue was joined. On the second the plaintiff remitted the 181. 5s. and demurred generally to the third. It was argued in support of the demurrer, that where there is an assignment by the original lessee, if the lessor accepts rent of the assignee the lessee is thereby discharged, it being an acceptance of the assignee as tetiant. The lessor may either resort to the lessee on the privity of contract, or the assignee on the privity of estate. But having made his election against whom to proceed, he is bound by it. Walker's case, 3 Co. 22, Devereux v. Barlmv, 2 Sannd. 181. The case of Coghill v. Freelove, 3 Mod. 325, goes farther, as there it is said, that privity of contract with the testator is not discharged by his death. In Oantrel v. Graham, Barnes, 69, the Court interposed on behalf of tha liberty of the person. That is like the case of a certificated bankrupt having by a subsequent promise made himself liable to a debt contracted before his bankruptcy, where the Court have permitted a common appearance. As to the general question, whether the Plaintiff can recover notwithstanding the assignment, the bankrupt may indeed say, that he has parted with his whole interest, and that it is hard he should be called to account, on a contract previously made. * Cooke'a Bankrupt Laws, last edit. 518 [more fully and correctly reported in 8 East, 316 ()]. But if there be any hardship, it is for the Legislature to interpose. Bankruptcy arises from the act of the bankrupt himself, he therefore is liable as much as any other lessee. The certificate can discharge from no debt but what is due before the bankruptcy. In Aylett v. James, C. B. 22 Geo, 3, which was an action of covenant, the defendant pleaded his discharge under an insolvent act, and on demurrer judgment was given for the plaintiff. It was there said, that a bankrupt is liable for covenants made before bis bankruptcy: and there seems to be no reason why he should not also be liable far a debt accruing in...
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