he could not move for the costs as a defendant against whom discovery only is prayed, and no decree can be made. It is then, perfectly clear, that relief being prayed against a defendant, who can be a party only for the purpose of discovery, he may demur upon that ground that relief is prayed against this bankrupt, when at all events a discovery only can be sought against him; it seems to me, that without determining the general question, this demurrer may be sustained." In what cases they may be Defendants. But if relief be prayed against him he may demur. Both to the dis covery and relief. fraud is charged against him. The decision of Sir Thomas Plumer, just quoted, still leaves it doubtful whether a bankrupt can be made a party to a bill against his assignees for the mere purpose of discovery and injunction; but there is no doubt that if he is made a party for the purpose of obtaining relief against him, he may demur to the bill, and that in such case his demurrer will protect him from the discovery as well as the relief; where, however, Unless where fraud or collusion is charged between the bankrupt and his assignees, the bankrupt may be made a party, and he cannot demur, although relief be prayed against him. Thus, where a creditor having obtained execution against the effects of his debtor, filed a bill against the debtor, against whom a commission of bankrupt had issued, and the persons claiming as assignees under the commission, charging that the commission was a contrivance to defeat the plaintiff's execution, and that the debtor having by permission of the plaintiff possessed part of the goods taken in execution for the purpose of sale, and instead of paying the produce to the plaintiff had paid it to his assignees, a demurrer by the alleged bankrupt, because he had no interest and might be examined as a witness, was overruled (n). Upon the same principle, where a man had been fraudulently induced by the drawer to accept bills of exchange without consideration, and the drawer afterwards indorsed them to others, upon a bill filed against the holder and drawer of the bill of exchange for a delivery up of the bill, and an injunction, the drawer pleaded his bankruptcy which took place after the bill filed, in bar to the bill, and the Vice-Chancellor overruled the plea (o). (*) King v. Martin, 2 Ves. jun., 641; cited, Lord Red. 132. (0) Mackworth v. Marshall, 3 Sim. 368. Effect of Bank ruptcy after Suit commenced. Bankruptcy of defendant no abatement. Assignees must be brought before the Court by supplemen tal bill. Where a defendant becomes bankrupt after the commencement of the suit, the bankruptcy is no abatement, and the plaintiff has his choice either to dismiss the bill and go in under the bankruptcy, or to go on with the suit, making the assignees parties by supplemental bill (p). It seems, that in Knox v. Brown (q), Lord Thurlow permitted the plaintiff to dismiss his own bill without costs, because it was by the act of the defendant himself that the object of the suit was gone. In a subsequent case, however, of Rutherford v. Miller (r), the Court of Exchequer refused to make such an order without costs, and in Monteith v. Taylor (s), where a motion was made on behalf of the defendant, who had become bankrupt, to dismiss the plaintiff's bill with costs, for want of prosecution, Lord Eldon, although he at first entertained a doubt whether he could make such an order with costs, afterwards expressed an opinion against the plaintiff upon that point, upon which the plaintiff submitted to give the usual undertaking to speed the cause. After what has been said, it is scarcely necessary to observe, that where a party who is a defendant to a suit becomes bankrupt, or takes advantage of the Insolvent Debtor's Act, it will be necessary for the plaintiff, if he proceeds with the suit, to bring the assignees before the Court by a supplemental Death of assig- bill; and it has been decided, that where the assignee of an insolvent has been already before the Court as a defendant, and such assignee die or is removed, and a new assignee is appointed in his stead, the suit abates, and that the 26th sect. of the 7 Geo. 4, c. 57, applies only to cases where the assignee is plaintiff, and not to cases where he is a defendant (t). nee abates suit. As a similar section occurs in the Bankrupt Act, 6 Geo. 4, c. 16, s. 7, it is presumed that a similar construction would be put upon it (u). Where a bill has been filed against a defendant who after (p) Monteith v. Taylor, 9 Ves. 615. (9) 2 Bro. C. C. 186. (r) 2 Anst. 458. (s) Supra. (t) Bainbridge v. Blair, Younge, E. R. 389; Mendham v. Robinson, 1 Mylne & Keene, 317; vide ante, p. 85. (u) Vide ante, p. 86. wards becomes bankrupt, and a supplemental bill is in consequence filed against his assignees, the evidence taken in the original cause previously to the bankruptcy may be read at the hearing against the assignees; but where it appeared that some of the witnesses in the cause had been examined after the commission issued, and before the supplemental cause was at issue, the Vice-Chancellor allowed an objection to reading their depositions, but over-ruled it so far as it extended to the witnesses who had been previously examined (x). Effect of Ba ruptcy after Suit commenced. Evidence taken in original causes may be read against assig nees; but not if exa mination took place after commission issued. As to costs of Where a mortgagor had taken advantage of an Insolvent Act and the provisional assignee was made a party to a bill to assignees. foreclose, and he put in answer claiming no interest in the premises, except such as he was entitled to as provisional assignee, it was held that the plaintiff ought to pay him his costs and add them to his debt (y). In a previous case, however, before Sir J. Leach, M. R., where a bill of foreclosure had been filed against the assignees of the mortgagor, who was an insolvent debtor, the Master of the Rolls held that the assignees were not entitled to their costs, although they had by their answer disclaimed all interest, and said that they would have released the equity of redemption if any application for that purpose had been made to them (z). SECT. X. Persons Outlawed and Attainted, or Convicted of Treason or Felony. It is said that all persons disabled by law to institute or maintain a suit may, notwithstanding, be made defendants in a Court of Law, and cannot plead their own disabilities (a); and (x) Hitchens v. Congreve, 4 Sim. 420. (y) Woodward v. Haddon, 4 Sim. 606. (z) Collins v. Shirley, 1 Russ. & M. 638. (a) Treatise on Star Chamber, part 3, sec. 6. (2 Collect. Jurid. 140), It is said in the above Treatise, that persons attainted of treason or felony are excepted out of this rule; but it has been decided in many In what cases they may be Defendants. Persons Outlawed, it is presumed that this rule would also be adopted in Courts of Attained, &c. Equity, where the suit seeks to establish a pecuniary demand against the party; where however the proceeding is in rem., and a person under any of the disabilities alluded to is interested in the object of the suit, then it would seem that as the interest of the party is entirely vested in the Crown, the Attorney-general would be the proper defendant (b). Whether in such case the party himself should be joined, is a point which does not appear to have been determined, but it is submitted that the rule before laid down, viz. that no person can be made a party to a suit against whom no relief can be prayed, will apply to this case as well as to that of bankrupts and insolvents. Defendants may be admitted in formá Pauperis. SECT. XI. Paupers. ALTHOUGH the statute 27 Hen. 7, c. 12, before referred to, as that under which the practice of admitting parties to sue in formá pauperis originated, does not extend to defendants, and consequently a defendant in an action at law is never allowed to defend it as a pauper (c); yet a greater degree of liberality is practised in Courts of Equity, and a defendant who is in a state of poverty, and as such incapable of defending a suit, may, as well as a plaintiff, obtain an order to defend in formá pauperis, upon making the same affidavit of poverty as that required to be made by a plaintiff. Indeed, originally the right of admis sion in formá pauperis appears to have been confined to defendants. By Lord Bacon's orders, it is said, "that any man shall be admitted to defend in formá pauperis upon oath, but for plaintiffs they are ordinarily to be referred to the Court of Requests or to the provincial counsels, if the case arise in the cases, that a defendant cannot plead Leon. 329; and Vin. Ab. Attainder, [B.] 3. (b) Vide Balch v. Wastall, 1 P. Wms. 445; Hayward v. Fry, ib.; Rex v. Fowler, Bunb. 38. (c) 1 Tidd. 88. jurisdiction, or to some gentleman in the country, except it be in some special cases of commiseration or potency of the adverse party" (d). To entitle a party to defend as a pauper, he must make the same affidavit as is required from a plaintiff applying to sue in that capacity; and it seems that if he is in possession of the property in dispute, though it be ever so small, he cannot be admitted, or if admitted, he may, upon the fact being afterwards shown to the Court, be dispaupered (e). In this and in most other respects, the rules laid down with regard to persons suing in formá pauperis, are applicable to persons defending in that character; the only difference being in the form of application for admission, the petition for which, in the case of a defendant, is much shorter than in the case of a plaintiff, and is not required to contain any statement of the case. Nor is it necessary, in the case of a defendant, that the petition should be accompanied by any certificate of counsel (ƒ). Defendants may be admitted in forma Pauperis. Not where he is in possession of the property in dispute. SECT. XII. Of Persons out of the Jurisdiction of the Court. WHERE a suit affects the rights of persons out of the jurisdiction, the Court will in some cases, where there are other parties concerned, proceed against those other parties, and if the absent persons are merely passive objects of the judgment of the Court, or their rights are incidental to those of the parties before the Court, a complete determination may be obtained without them (a). Thus in Attorney-general at the relation of the University of Glasgow v. Baliol College(b), which was an information filed, impeaching a decree made in 1699, on a former information by the Attorney-general against the trustees of a testator, his heirs at law and others, to establish a will and a charity created by it, alleging that the decree was contrary to the will, and that the University of Glasgow had not been made a party to the suit; Lord Hardwicke over (d) Beames's Ord. 45. (e) Spencer v. Bryant, 11 Ves. 49; vide etiam, Prac. Reg. 321. VOL. I. S (f) 2 Harr. 390. (a) Lord Red. 25. Where their interests are in cidental to those of others. |