66 "in writing, to the Right Honourable Edward Lord Thurlow, "then Lord High Chancellor of Great Britain, and thereby "petitioned the said Lord Chancellor to grant to the said "George Tickner Hardy his Majesty's commission, to be di"rected to such and so many persons as he should think fit to give his authority of and concerning the said bankrupt, and "to all other intents and purposes, according to the provi"sions of the statutes made and then in force concerning "bankrupts, as by the said petition remaining in the Court of "Chancery of our lord the now king at Westminster aforesaid, more fully appears; and the said Peter James further saith, "that upon the said petition of the said George Tickner Hardy "so exhibited as aforesaid, on behalf of himself and all other "the then creditors of the said Peter James, according to the "form of the statutes in such case made and provided, for 66 66 giving them relief on that behalf, afterwards and before the "said sum of money in the said declaration mentioned, or any part thereof became due, and before the said supposed breach of covenant, to wit, on the ninth day of June in the year "aforesaid, at Westminster aforesaid, to wit, at London afore"said, in the parish and ward aforesaid, a certain commission "of our lord the now king, founded upon the statutes made "and then in force concerning bankrupts, in due form of law issued, under the great seal of Great Britain, bearing date "the same day and year last aforesaid, directed to Michael "Dodson, Thomas Plumer, Edward Finch Hatton, Robert "Comyn, and Charles Proby, esquires, and was then and there "to them directed, by which said commission our said lord the "now king gave full power and authority to them the said "Michael Dodson, Thomas Plumer, Edward Finch Hatton, "Robert Comyn, and Charles Proby, four or three of them, to proceed, according to the said statutes, and all other statutes "then in force concerning bankrupts, not only concerning the "aforesaid bankrupt, his body, lands, tenements, both free"hold and copyhold, goods, debts, and all other matters "whatsoever, but also concerning all other persons, who by "concealment, claim, or otherwise should offend touching or "concerning the premises, or any part thereof, against the true intent and purport of the said statutes, and to do and execute all and every thing and things whatsoever, as well 66 1790. MILLS against AURIOL. [* 435 ] "for 1790. MILLS against AURIOL. 66 66 "for and towards satisfaction and payment of the creditors of "the said Peter James, as towards and for all other intents "and purposes whatsoever, according to the order and pro"visions of the said statutes, as by the said commission [436] (amongst other things) more fully appears: by virtue of "which said commission, and by force of the statutes afore"said, the said Michael Dodson, Edward Finch Hatton and "Robert Comyn, three of the commissioners named in the said "commission afterwards, to wit, on the eleventh day of June, in the year aforesaid, to wit, at London aforesaid, in the parish and ward aforesaid, having taken upon themselves "the burthen of the said commission, then and there duly adjudged and declared the said Peter James to have been and "become on the day of the issuing of the said commission, "and then to be a bankrupt, within the true intent and meaning of the said statutes, some or one of them: And the said Peter James further says, that afterwards, to wit, on the "26th day of June in the year aforesaid, at London aforesaid, (the said Peter James then remaining and continuing a bankrupt as aforesaid) they the said Michael Dodson, Edward "Finch Hatton and Robert Comyn in due manner, and according to the form of the statute in such case made and provided, by an indenture then and there duly made, and bearing date the same day and year last aforesaid, between "the said Michael Dodson, Edward Finch Hatton and Robert "Comyn of the one part, and Robert Mendham of Walbrook, "London, merchant, George Marsh of Broad-Street, London, "silk broker, and the said George Tickner Hardy of the other 66 66 66 66 66 66 66 part, then and there duly bargained, disposed, assigned and "set over, amongst other things, the said indenture of lease in "the said declaration mentioned, and all the estate and interest of the said Peter James, of, in, and to the same, and of, in, "and to the premises thereby demised, to the said Robert Mend"ham, George Marsh, and George Tickner Hardy (the said "Robert Mendham, George Marsh, and George Tickner Hardy, "before the said assignment so made to them as aforesaid, "having been duly chosen assignees of the debts, credits, "goods and chattels, estate and effects of the said Peter James "the bankrupt, according to the form of the statutes in such case made and provided), to hold to them the said Robert "Mendham, 1790. MILLS against AURIOL. "Mendham, George Marsh, and George Tickner Hardy, their executors, administrators and assigns, from thenceforth for "the residue of the said demised term, then to come and unex"pired; by virtue of which said assignment, all the estate, interest, " and term of years then to come and unexpired, property, claim, "and demand of the said Peter James, of and in the said inden"ture of lease, and of and in the premises thereby demised, then "and there became and was vested in the said Robert Mend"ham, George Marsh, and George Tickner Hardy, as such [487] "assignees, and the same from thence hitherto hath been, and still "is vested in them, the said Robert Mendham, George Marsh, "and George Tickner Hardy (the said commission still re"maining in full force and effect, in no ways superseded, can"celled, or set aside,) and the said Robert Mendham, George "Marsh, and George Tickner Hardy, then and there, to wit "on the same day and year last aforesaid, at London aforesaid, "became, and were, and for a long time, to wit from thence "hitherto have been, possessed of and in the said demised pre"mises, with the appurtenances, and this the said Peter James is "ready to verify," &c. To this plea there was a general demurrer, and issue joined on the two first. The demurrer was argued in Easter Term last by Bond, Serjt., for the Plaintiff, and Le Blanc, Serjt., for the Defendant; and in this term by Adair, Serjt., for the Plaintiff, and Lawrence, Serjt., for the Defendant. The following was the substance of the arguments on the part of the Plaintiff. The matter disclosed in the third plea, affords no answer to the demand of the Plaintiff, because the covenant on which the action is brought, being express, personally bound the Defendant, and was not done away by the assignment under the commission of bankrupt. In leases there are two sorts of covenants, by which tenants are liable either to an action of debt or covenant; namely, express, and implied covenants. In the latter, the lessee is liable to either species of action, unless there has been a complete assignment with the assent of the lessor, for by such an assignment, the right of action of the lessor is certainly divested. Walker's case, 3 Co. 22 a. where the lessee having assigned his term without the assent of the lessor, was still holden to be subject to debt for the rent in arrear. So in Wadham 1790. MILLS against AURIOL. [*438 ] Wadham v. Marlow (a), Lord Mansfield says that the tenant * shall not by his own act destroy the tenancy without the concurrence of the landlord. As the law is thus with regard to (a) Woodham v. Marlow, B. R. Mich. 25. Geo. 5.* the 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 187. 5s. one quarter's rent, that he became a bankrupt, and that the said sum of 187. 5s. was due before his bankruptcy. 3. As to the residue of the sum demanded, that it became due after the bankruptcy. On the first plea issue was joined. On the second the Plaintiff remitted the 187. 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 tenant. 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. Devereur v. Barlow, 2 Saund. 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 Cantrel v. Graham, Barnes 69. the Court interposed on behalf of the 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 con⚫tract previously made. 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 his bankruptcy: and there seems to be no reason why he should not also be liable for a debt accruing in consequence of a covenant made before it. For the Defendant it was contended, that debt only was brought on the reddendum of the lease. Plowd. 152. Co. Litt. 142 a. 2 Black. Com. 41. It is payable out of the land, not on account of the land. The moment the lessee parts with the possession, the action can no longer be maintained. Notice to the lessor of the assignment by the lessee, is sufficient to discharge him. There is a great difference between covenant and debt on the reddendum; the words "yielding and paying" create a covenant to pay, but only on condition that the lessee shall enjoy. It does not hold after eviction or • Cooke's Bankrupt Laws, last edit. 518. [more fully and correctly reported in 8 East, 316. (n).] loss the action of debt on an implied covenant, so also it is with respect to the action of covenant on an implied covenant, in which the general rule is, that without the assent of the lessor, the lessee loss of possession. But after loss of possession the party is still liable on an express covenant. 1 Sid. 447. 1 Brownl. 20. Rent arises on a contract executory. Suppose the bankrupt had entered into a contract to deliver goods at a future day: his assignees might have affirmed or disaffirmed the contract. All his personal engagements pass to them. If the term be of greater value than the rent, it shall be presumed that the assignees have accepted it, and the lessee shall be exonerated. The privity of contract is destroyed by the assignment. When the lessee is deprived of the land without remedy over, he ceases to be liable for the rent. So it is on eviction, entry, and expulsion. Plowd. 71. Noy 75. So if deprived by the act of God. 1 Roll. Abr. 236. But here the Defendant is deprived by the act of law. 7 Vin. Abr. 84. 1 Atk. 67. A commission of bankruptcy is an execution in the first instance, not an act of the party. Burr. 2439. Mayor v. Steward. There is a difference between an insolvent person and a bankrupt. Lord MANSFIELD. Two points were argued for the Plaintiffs. 1st. If there had been no bankruptcy, but the lessee had merely assigned to another, he would still remain liable in debt, till the lessor had assented to the assignment. 2d. Bankruptcy being an act done by the bankrupt himself, he shall remain liable, like any other lessee. As to the first point, it is not necessary that there should be an actual acceptance of rent by the lessor in order to discharge the lessee from the action of debt or the reddendum; but any assent is sufficient. The action on the reddendum is founded, not merely on the terms of the demise, but on the enjoyment of the tenant. In Warren v. Conset, 2 Lord Raym. 1500. it was agreed that "levied by distress and sic "nil debet" was a good plea to debt for rent on an indenture. What shall be deemed an enjoyment by the tenant hath been much agitated as a question of law; but he cannot destroy the tenancy without the assent of the lessor. On behalf of the Defendant it was argued, that notice to the lessor is a sufficient discharge of the lessee. But in the cases in Brownl, and Cro. Jac. there was an express acceptance, and in Siderfin, though the case is short and confused, it must be so understood. In 2 Saund. 181. it is said he may sue either assignee or lessee. In the present case there is neither acceptance of rent, nor assent; and if there were nothing but notice, we are all of opinion, that the lessee would be liable to the action. This brings me to the second point, on which there are only two cases; for that of Aylett v. James does not apply. Those cases are Mayor v. Steward and Cantrel v. Graham. The first was determined on the ground that the covenant was collateral; but there is a strong though obiter dictum of Yates, J., that it would be hard to leave the lessee liable to the covenants, when the act of law had divested him of the emoluments, and vested them in his creditors. In Cantrel v. Graham, the Court made a direct determination on the point. We have a fuller note of it than there is in Barnes. The counsel said it was merely an effort made to relieve the Defendant on account of the hardship of the case. But the Court would not have discharged him, unless they had been satisfied that 1790. MILLS against AURIOL. the |