Shoemaker, Assignee versus Keely

Shoemaker, Assignee versus Keely. THIS was an action on the case, for deceiving the bankrupt, in the sale of a quantity of Claret; and the question submitted for decision to the Court was,—whether such an action could be maintained by the assignee ? The defendant's Counsel (Rawle) observed, that the bankrupt was really indebted to his client; but that in this form of action he would be deprived of the advantage of a set off; and they contended that the action would not lie. The 7 sect. of the bankrupt act (2 Vol. Dall. Edit. p. 371.) gives to the Commissioners a power only “ to assign or dispose of all the debts due to, and for the benefit of, the bankrupt,” &c. Debts, emphatically, and nothing else, pass under this power; goods and chattels passing under the general statutory assignment; and the remedy for a tort is not, in its nature, assignable. Doug. 101. 562. Co. 222. 228. 2 Vern. 98. The plaintiff’s Counsel (M. Levy) answered, that this was not an action brought against the bankrupt, or the commissioners; and that it ought to be sustained upon the same principle, which authorised such an action to be brought by executors, or administrators (who are assignees of the deceased) though it could not be brought against them. Thus, likewise, though a chose in act ion is not assignable at law,it goes to executors. Cowp. 373. 2 Bl. C. 389. 485. The statute's of bankruptcy were framed to ameliorate the condition of creditors; and, it is obvious, that every-right and interest of the bankrupt, even a mere possibility, is transferred.' 3 P. Wm. 132. Co. B. L. in App. 45. 6. [MAJORITY — By the Court:] By the Court: —It is plain, that the action, in its present form, cannot be supported. Under the act of Assembly, nothing but debts are assigned, or assignable; and torts must be considered as the mere personal concern of the bankrupt. Let Judgment be entered for the defendant.