(u) See supra, p. * 468, and cases cited.

(v) Deacon on Bankruptcy, tit. Copyhold, 354; Taylor v. Wheeler, 2 Vera. 565. See also Ex parte Harvey, Back, 493; Ex parte Holland, 4 Madd 4S3; Doe v. Clark, 1 Dow. & R. 44, 5 B. & Ald. 458.

(w) 4 Kent, Com. 168, and notes.

(x) Berry v. Mutual Ins. Co. 2 Johns. Ch. 603; Portwood v. Outton, 3 B. Mon. 247; Rockwell v. Hobby, 2 Sandf. Ch. 9 ; Williams v. Stratton, 10 Smedes & M. 418; Welsh v. Usher, 2 Hill, Eq. 170. See also Shite v. Dieffenbach, 3 Pa. 233; Vanmeter v, McFaddin, 8 B. Mon. 435; Adams's Equity (Am. ed.), 333.

1 A bankrupt's deed, with a contemporaneous and unrecorded agreement of defeasance, which is, in equity, a mortgage, leaves an equity of redemption in him, which will pass to an assignee'or trustees in bankruptcy. Moors v, Albro, 129 Mass. 9. See Campbell r. Dearborn, 109 Mass. 130. - K.

So, if the bankrupt's wife has land, and the bankrupt has any estate or interest in it as her husband, for her life, or as tenant by the curtesy for his own, all this interest of the husband passes to the assignee, (z) And it passes so absolutely, that it seems no suit can be brought against the husband after the act of bankruptcy, for division, or for any purpose, and no such action can be defended against by the bankrupt himself, or in his own name, but only by the assignee, (a)

In regard to the real estate, as well as to the personal estate * of the bankrupt, it may be regarded as a very general, if not a universal, rule, that whatever the bankrupt .could himself transfer to his creditors or to his assignees for them, the register could and should, without the bankrupt's act, transfer to his assignees, (b)

It is an apparent exception, and not a real one, which will not permit an assignee to take what the insolvent holds in trust, or in any fiduciary relation. For the insolvent could not transfer that in payment of his own debts, honestly or legally. But it may be sometimes difficult to distinguish between such fiduciai'y interest, which the assignee would not take, and an interest encumbered with a charge, which he would take. In general, it may be said that if the thing to be done be capable of immediate performance and the assignee can do it as well as the insolvent, and by doing it a valuable interest will become vested in the assignee, which he can use for the benefit of the creditors, without detriment to any person, such an interest or right the assignee will take.

(y) Smith v. Coffin, 2 H. Bl. 444; Mitchell v. Hughes, 4 Moore & P. 577, 6 Bing. 689. The case of Smith v. Coffin was a writ of entry sur abatement, brought by the assignees of a bankrupt. Eyre* L. Cf. J, said: "This case has been very elaborately and ably argued by my brother William*, but his argument goes against the most express and plain spirit of the bankrupt laws, which is, that every beneficial interest which the bankrupt has shall be disposed of for the benefit of his creditors. ... It is true, that on general principles, rights of action are not forfeitable nor assignable, except in a particular mode; but that rule is founded on the policy of the common law, which is averse to encourage litigation; but in this case the policy of the bankrupt laws requires that the right of action should be assignable and transferred to the assignees, as much as any other species of property. It is an hereditament, and the words" of the statute are large enough to comprehend it; and no case has been shown to prove that it ought not to pass. What, then, does the whole argument amount to but this, - that in many cases, from the policy of the law. a right of action does not pass. But here the policy is, that every right belonging in any shape to the bankrupt, should pass to his assignees. And this being the clear intent of the law, a particular recital of this species of right could not be necessary. I think it is a clear case, both on the words of the act of Parliament, and on the subject-matter." See also cases cited ante, note.

(z) Jacobson v. Williams, 1 P. Wms. 383. See further cases cited ante, note (a), §6, p. *469.

(a) Mitchell v. Hughes, 6 Bing. 689. Ttndal, C. J.: "Upon the general ground, therefore, that in all instances in which the assignees take anything derivatively from the bankrupt, they are empowered by the bankrupt act to sue in their own names. We think the present count, in which the bankrupt sues to recover, in his own name and that of his wife, land in which he would take a freehold that would forthwith belong to the assignees, cannot be supported."

(b) See cases cited ante, note (n) p. *472.