SUPREME COURT. COOPER V. STRAPP AND COLEMAN. COMMON LAW. his public capacity by sureties for due administration of the estate of an intestate, and the assignee is entitled to sue thereon. This action was brought on a bond for £4,000, given by the defendants to the Curator of Intestate Estates as sureties for the due administration of the estate of Robert Quilty, deceased, by his widow and executrix. On breach of the conditions, the Curator of Intestate Estates assigned the bond to the plaintiff, who now declared thereon. Demurrer to declaration, on the ground that the bond was not assignable. Barlow and Wigley, for the defendants.-The plaintiff sues as trustee and as assignee of the bond. A bond is not assignable at Common Law. It may be assigned under the Testamentary Causes Act, No. 11 of 1867, but this bond was dated two years anterior to the passing of that Act. The declaration shows that the plaintiff intended to sue under the Testamentary Causes Act and no other. But in order to validate an assignment under that Act, it is necessary to obtain an order of a Judge, and the declaration does not show that such an order was obtained. The plaintiff must show that he had, by taking the necessary steps, the title which the Act gave Young v. Hughes, 4 H. & N., 76 Sandrey v. Mitchell, 3 B. & S., 405 Foster, in support of the declaration.-The action is based on the 19th clause of Act No. 6 of 1860, which provides that "every person shall have power to assign any chose in action, and the assignee thereof for the time being may bring every such action thereupon in his own name," &c. The bond was executed in pursuance of the old practice under Act 31 of 1855-6, sec. 1-, which was since repealed, except so far as might be necessary to support the validity of any proceedings. The bond being a right of action, was under this assignable, and there is nothing in the Act to show an intention to exclude rights vested in public officers. Barlow, in reply.-Under Act No. 31 of 1855-6, an adminis SUPREME COURT. COOPER V. STRAPP AND COLEMAN. COMMON LAW. This Act applied solely to tration bond could not be assigned. persons who were acting in their own right. This bond was given to the Curator of Intestate Estates, and could not be assigned under Act No. 6 of 1860. It is not possible to imagine that a person holding a chose in action in an official capacity can transfer that by assignment to any person in the community without authority, either from the Court or his superiors in office. To place the construction upon the declaration that the allegation of the trusteeship of the plaintiff is surplusage, is to affirm that the plaintiff, as soon as he recovered the money on the bond, would be entitled "to hold it for his own use," because that was the right given under Act 6 of 1860. 1 September Cur. ad. vult. HANSON, C.J., said:-This was an action brought by the plaintiff, as assignee of a bond, against the defendants, who are sureties to this bond. The bond was given by the defendants to the Curator of Intestate Estates, and by him alleged to have been assigned to the plaintiff. To this declaration a demurrer has been filed, on the ground that it did not appear by the declaration that the bond was assignable. That was the substantial point; and in support of that it was alleged that it was quite clear it did not come under the Testamentary Causes Act, and that was the only authority under which a bond given for the purposes of administration could be put in suit. On the part of the plaintiff, it was argued that the provisions of Morphett's Act-No. 6 of 1860applied; but then it was answered on the part of the defendants that that which was a general provision of an Act could not be intended to apply to a bond given under special circumstances to a public officer, and especially could not be held so to apply as to give him power to assign a bond which he had received in his official character to a private individual. We took time to consider the last point, and upon consideration it appears to us that the language of Morphett's Act is quite large enough to include, and in fact necessarily includes, cases of this sort; therefore, so far as the language of the Act is concerned, there is no doubt the assignment is valid, and the plaintiff may sue upon the boud in his own SUPREME COURT. RE DAWSON, DECEASED, COMMON LAW, name. With regard to the public inconvenience which may occur from the Curator of Intestate Estates being able to assign a bond in such a way, the Curator by whom this was assigned is an officer of this Court-and the Court has abundant power to restrain him in the exercise of the power which he possesses. We therefore don't think that any ground of inconvenience exists, which would induce us to put a narrower construction upon the language of the Act under which this bond purports to be assigned than that which the words of the Act themselves import. The judgment will therefore be for the plaintiff. Demurrer overruled. HANSON, C.J., Gwynne, J., WEARING, J.] 6 SEPTEMBER, 1870. RE DAWSON, DECEASED. [COMMON LAW. INTESTATE DISTRIBUTION ACT, 1867.-Personal Representative-Real Estate. Administration of the personal estate of a deceased person can be granted in the same way since the Intestate Real Estates Distri bution Act, 1867, as before Per GWYNNE, J.—Administration can be granted of the personal estate only, Act 29 of 1867, making the real estate vest in the personal representative as an incident to such character, and not by grant from the Court. Ingleby moved that administration be granted. A short time ago he mentioned the case, and suggested that letters of administration should be granted in the common form. Since that he was informed that the Chief Justice, in the matter of the late Dr. Webb, of Clare, had granted administration of the real as well as the personal estate. Such being the case, he thought it right to mention the matter, in order that the practice might be settled. SUPREME COURT. RE DAWSON, DECEASED. COMMON LAW. At present he understood there was a difference between what took place in one Judge's chamber and another. HANSON, C.J.-What is your application? Ingleby. To take administration in the common form. HANSON, C.J.-Well, you can take it in common form. Ingleby. My difficulty is that it is sworn as to realty as well. HANSON, C.J.-Well, there is no harm in that. GWYNNE, J.-You see we exercise this peculiar jurisdiction under a local Act, the Testamentary Causes Act. It is given by reference to the English Act, that is to say, over personal estate, and personal estate only. There is a Statute, no doubt, in force here, which says that the real estate shall rest in the personal representative—that is, by virtue of the character it is incident to his office; but I apprehend the grant would be under the Testamentary Causes Act-than is, a grant of the personalty-as if that other Act had never been passed. It appears clear to me that the grant must be in the usual form irrespective of that. Ingleby. That is what I have always asked for. HANSON, C.J.-The only question before us is whether when a person has sworn to real and personal estate he is entitled to administration of the personal estate. Of that, I apprehend, there can be no doubt. Granted. SUPREME COURT. CULLEN AND ANOTHER V. TIDEMANN. COMMON LAW. GWYNNE, J.] [CIVIL SITTINGS. 13 SEPTEMBER, 1870. CULLEN AND ANOTHER V. TIDEMANN. BILL AGENT.—Principal-Action. A Bill of Exchange endorsed in blank and handed to an agent on behalf of his principal does not entitle such agent to sue thereon in his own name without the authority of his principal. Action on a Bill of Exchange by endorsees against drawer. Plea (inter alia) denying endorsement. The evidence showed that the plaintiffs were the attorneys in South Australia for Mrs. Clisby, under a power authorising them amongst other things to collect all moneys, &c., and for her and in her name to bring any action, &c. The bill, the subject of the action, was endorsed by the defendant in blank and delivered to the plaintiffs as such attorneys. The plaintiffs relied on the power of attorney as authorising them to bring this action. J. Downer, for defendant.—The plaintiff must be nonsuited. The power of attorney authorised the plaintiffs to sue in Mrs. Clisby's name, and not in their own. Independently of the power, the plaintiffs could not sue. The bill was never endorsed to them, but to Mrs. Clisby; and without a subsequent endorsement or authority from her, the plaintiffs could have no title Roscoe Nisi Prius, 186 Machell v. Kinnear, 1 Stark, 499. Barlow, for plaintiffs.-The endorsement prima facie gave title to the plaintiffs. When a bill is endorsed in blank, as many as agree upon it. GWYNNE, J.-The plaintiffs have no title to the bill and must be called. Nonsuit. |