* 586

There are many rights of action which do not pass to administrators or to assignees of a bankrupt. The seduction of a servant is one instance of the kind; Howard v. Crowther.1 Actions for assault and for slander, (except, perhaps, slander affecting only the trade of the bankrupt and directly diminishing the profits of his trade,) trespass to the person, negligence in the cure of bodily infirmity or wounds, and for not safely carrying, are other instances of the same kind. But without mentioning these, the last two of which, though founded in contract, partake in their nature of torts, there is one which is distinctly in the class of contracts, namely, an action for breach of a promise to marry. Such an action is clearly personal alone. It is true that an administrator did once attempt to maintain such an action, Chamberlain v. Williamson,2 but failed. That case is a strong authority for the plaintiff in error here, for if an administrator cannot maintain an *action in respect of the breach of a purely personal contract with the intestate, though his estate might be benefited by its performance, most certainly assignees cannot do so in respect of a purely personal contract with the bankrupt, for an administrator is more directly and absolutely the representative of the person of his intestate than assignees are of the bankrupt. Yet the argument which will, no doubt, be much relied upon by the other side, exists in such a case, namely, that to maintain the action might be for the benefit of the estate, so that the exception now mentioned proves that the law does not always look to the indirect consequences by which the estate of the bankrupt may be increased. In one case, where 5701. were ultimately recovered in an action for not safely carrying by a railway, there was no pretence that the right of action passed to the assignees, and yet the estate of a bankrupt would have been largely benefited by such damages. The benefit to the estate therefore is not the only matter to which the law looks, but rather to the principle whether the right is, or is not, founded in something of a purely personal kind. The true rule is this, that if the contract goes directly to the increase of the personal estate, as in Wright v. Fairfield, then the right of action on it will pass; and, again, if the breach of such a contract occurs before the bankruptcy, the right of action for that particular breach will pass. But if the contract is for labour to be

1 8 Meeson & Welsby, 601.
22 Maule & Selwyn, 408.

3

2 Barnewall & Adolphus, 727.

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performed, involving the exercise of the contractor's own personal skill, except so far as a debt has been created by the exercise of that personal skill before the bankruptcy, that will not pass. The damage here is likewise purely personal, the injury being to the bankrupt himself in the loss of the means of subsistence to *587 which he is entitled, and in the loss of time in looking after other employment. The cases of Chipenpdall v. Tomlinson, where Lord Mansfield says "the assignees cannot let out the bankrupt"; Silk v. Osborn,2 and of Hesse v. Stevenson,3 - in the last of which it was expressly said that the assignees cannot take the profits of the bankrupt's daily labour, - clearly establish the principle of this distinction; and in Williams v. Chambers,* it is distinctly affirmed by the Court that there is "no authority in which it has been held that the assignee of a bankrupt or insolvent could sue for the price of the personal labour of the bankrupt or insolvent after the bankruptcy or insolvency, as a debt due directly to the assignee himself as upon a contract made with him." The same rule was likewise established in Ex parte Walters,5 where it was held that a man was not liable to account to his assignees for money received by him as a surveyor for valuing, such money being received in respect of his personal labour.

The argument that the assignees would be entitled to the money if it was in the bankrupt's actual possession, that this admits a right of action in them, and that two rights of action vested in different persons cannot exist in respect of the same matter, is not always and necessarily correct. Two rights of action may exist together, even though in one of them no more than nominal damages might be recovered. In Williams v. Millington, Lord Loughborough declares the possibility of two actions for the same cause, and says: "It is not a true position that two persons cannot bring separate actions for the same cause. The carrier * and the owner of the goods may each bring an action on a tort; the factor and owner may each have an action on a contract." This declaration is founded on very ancient authority. In Bracton it is said, Ex uno facto injurioso plures possunt oriri actiones pænales in causâ civili. An instance of this occurred in

*588

the case of Turner v. Ford, where a piano in the hands of a bailee was seized for rent due from him, and where Baron Parke said: "I am inclined to think that if the act of conversion had amounted to pound breach, the defendant would have been liable in damages to the landlord, and also to the owner of the property for damages for the conversion."

[LORD CAMPBELL.

That was a case of two actions in respect of separate rights. But I want the case of two actions by different parties in respect of the same right. The bankrupt and assignees sue in respect of the same right.]

Such a case is unknown in practice, but the principle which governs one case governs the other; and in the judgment delivered by a noble and learned Lord in this House in the case of Rogers v. Spence, it was said: 3 "It may possibly be that the law will give an action to the bankrupt for the personal injury which has been sustained by him, and will give an action to the assignees for the injury which has been done to the property; as for example, in the case which has been put during the argument, of the owner of a ship being on board, and the ship being run down on the high seas, and the ship going to the bottom and the owner escaping and afterwards becoming bankrupt; it is possible that he may maintain an action for the personal injury done to him, and that the assignees may maintain an action for the injury done to the * 589 property." Here the principle exists on which the right to

bring these two actions is founded. It is the principle of a distinct right being vested in the bankrupt in virtue of a purely personal matter. The existence of such a right shows the judgment of the Court below to be erroneous.

Mr. Peacock and Mr. Hugh Hill (Mr. W. Morris was with them) for the defendants in error:

It is impossible to contend that the assignees take no interest in the profits of the bankrupt's labour, and if they do take an interest in them, they can sue to recover these profits. They are certainly entitled to that which adds to the value of his estate. The defendant here broke his contract with the bankrupt. Had he paid the bankrupt the money, that money would have been assets in the bankrupt's hands for the benefit of the creditors. The damages that arise from the breach of the contract also belong 1 15 Meeson & Welsby, 12. 12 Clark & Finnelly, at p. 720.

15 Meeson & Welsby, at p. 215.

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to them. Suppose the bankrupt had served for six years at a thousand a year, but had not received the money, and at the end of the next half-year had become bankrupt, there can be no doubt that the assignees would be entitled to recover all the money then due, as well the money for the last half-year as for the six preceding years. Their right to recover it in respect of a wrongful dismissal must be the same as in the case of the services being actually performed but not paid for. The case of Chippendall v. Tomlinson1 does not disprove this proposition, for it merely establishes that under such circumstances the bankrupt may sue, his assignees not interfering. The expression attributed to Lord Mans

field in the abstract given of this case in Cooke's Bankrupt * 590 Laws,2* that "the assignees cannot let out the bankrupt,'

means no more than that they cannot contract for his future labour, a doctrine that no one presumes to doubt; but if he has already, and before his bankruptcy, made a contract for that labour, they are entitled to recover for a breach of that contract by which the amount of his assets is diminished.

The question whether more than nominal damages could be recovered in the action, as in cases where the bankrupt personally and the bankrupt's property suffer from the same act, does not in the least degree affect this case, for, if so, this absurdity would follow, that, in order to ascertain the right to maintain the action itself, there must be a verdict given, that is, a verdict ascertaining and fixing in respect of what cause of action it was pronounced, and that not till then could the right to maintain the action be decided. The law cannot allow such an absurdity.

[LORD CAMPBELL. By the law of Scotland the damages would be divided so much would be given for the injury to the property, and so much for the injury to the person.]

No such distinction is made by the law of this country. If a man sues for a debt, he cannot join in that action any claim for damages for injury to his feelings through having been kept out of it. In the case of Startup v. Cortazzi,3 the rule as to the time at which the damages arise on a breach of contract is ascertained, and that rule shows that nothing of feeling can enter into consideration in such a case. That was an action for not delivering linseed at a given time. A portion of the price of the linseed had

*

* 591

been advanced, and it was held that repayment of the money advanced, with simple interest upon it, and payment of the difference between the contract price of the seed, and the price at the time when it ought to have been delivered, would be the right measure of damages. It was the loss of profit at the time of the breach that the plaintiff there was held entitled to; and in this case, he was no more entitled to vindictive damages for dismissal from employment, than in that, for any injury to his feelings by the non-delivery of the seed. This subject was fully discussed in Brewer v. Dew, which is a very strong case on the side of the defendants in error. There the plaintiff brought an action of trespass for seizing and taking his goods under a false and unfounded claim of a debt. The allegation was that he was annoyed and prejudiced in his business, and believed by his customers to be insolvent, and certain lodgers left his house; and it was held that the plaintiff alone might sue, because there the jury could give vindictive damages for the injury to the plaintiff's personal feelings. The power to give vindictive damages was the test applied by the Court. Apply that test here, and the right of the bankrupt to maintain this action fails entirely, for here the jury could not give vindictive damages, and consequently the right to maintain the action is one which exists for no other purpose than the increase of the funds of the estate, and therefore passes to the assignees. That principle was adopted in this House in determining the case of Rogers v. Spence. It is upon such a principle that a right of action for an injury to a man by being run over, by being assaulted, by a breach of promise to marry him, by criminal conversation with his wife, or by the seduction of his daugh

*

ter, would not pass to his assignees. In all these cases * 592 the damages are vindictive in their nature. No previous property existed in them before the wrong committed, and his estate might not have been the better if he had not been run over, or assaulted, or if the promise to marry him had been performed, or if his wife had remained faithful, or his daughter been unseduced. In all these instances the right to damages is in consequence of a purely personal wrong, and exists for the compensation of his bodily or mental feelings. For that reason alone the right of action does not pass to his assignees. But here, if the contract had been performed, the estate of the bankrupt would have been 1 11 Meeson & Welsby, 625. 12 Clark & Finnelly, 700, 718.