not be allowed to call upon his assignees for a general account of all their transactions, which he might have by applying to the Court of Bankruptcy, and on the ground that the relief sought against the other defendant did not in the least, either of necessity or in any respect of convenience, require the assignees to be joined in the suit, he allowed the demurrer.

It is to be observed, that whatever property a bankrupt has, or, to use a technical expression, may depart with, becomes, upon bankruptcy, the property of the assignees, who are to have it for the benefit of the creditors; and the circumstance of such property being in a foreign country where the bankrupt laws of this country do not prevail, makes no difference; so that a bankrupt cannot maintain a suit in this country, even though the property in respect of which the suit is instituted is in another country. This principle is laid down with regard to personal property in a great many cases (t), and has been recognised as

Bankrupts.

Bankrupt can

not sue for his property abroad;

applicable to real estates in Scotland and the colonies. In Cleve or in the colov. Mills (u), it was said by Lord Mansfield that although the nies; statutes of bankruptcy do not extend to the colonies, yet that the assignment under the commission is in the Courts abroad considered voluntary, and as such takes effect between the assignees and the bankrupt, although it does not affect the rights of other creditors. Upon the same principle it or in Scotland. is that a great number of estates in Scotland and the colonies have been sold under commissions of bankruptcy in England, and upon this ground the Court refused to entertain a bill by a bankrupt against the mortgagee of an estate in Berbice, for an account, because, although the estate was in a country to which the bankrupt laws did not extend, the disposition of that property was nevertheless in the assignees here, and by the intendment of the law the bankrupt had no interest in the property which entitled him to sue (x).

All doubt upon this point, however, has been set at rest, by the 6 Geo. 4, c. 16, s. 64, by which it is directed that the conveyance to be executed by the commissioners to the assignees shall be of all lands, tenements and hereditaments (except

(t) Sill v. Worswick, 1 H. Bl. 665; Hunter v. Potts, 4 T. R. 182; and Phillips v. Hunter, 2 H. B. 402.

77.

(u) Cooke's Bankrupt Laws, 297.
(x) Benfield v. Solomons, 9 Ves.

Bankrupts.

Insolvent debtors.

copyhold or customary) in England, Scotland, Ireland, or in any of the dominions, plantations or colonies belonging to His Majesty, to which any bankrupt is entitled, &c., with a proviso whereby it is directed that where according to the laws of any such plantation or colony such deed would require registration, enrollment or recording, the same shall be so registered, enrolled or recorded according to the laws of such plantation or colony; and no such deed shall invalidate the title of any purchaser for valuable consideration prior to such registration, enrollment or recording, without notice that such commission has issued. And by the Bankruptcy Court Act, 1 & 2 Will. 4, c. 56, s. 26, it is declared, that all the present and future real estate of any bankrupt, whether in the United Kingdom of Great Britain and Ireland, or in any of the dominions, plantations or colonies belonging to His Majesty, which by the above Act is directed to be conveyed by the commissioners to the assignees, shall vest in such assignees by virtue of their appointment, without any deed of conveyance for that purpose; and that as often as any assignee or assignees shall die or be removed or displaced, and any new assignee or assignees shall be duly appointed, such of the aforesaid real estate as shall remain unsold or unconveyed, shall, by virtue of such appointment, vest in such new assignee or assignees, either alone or jointly with the existing assignees, as the case may require, without any conveyance for the purpose. By the 27th sect. of the same Act it is declared, that where according to the laws in force a conveyance of the property of a bankrupt would require to be registered, recorded or enrolled in any register office in England, Wales or Ireland, or in any registry office, court or place in Scotland, or any of the dominions or plantations belonging to His Majesty, a certificate of the appointment of the assignee in the form therein mentioned, shall be registered in the same place, and have the same effect as the registry, enrolling or recording of any conveyance or assignment of the bankrupt's estate or effects which, by the laws of the country, is required to be registered, recorded or enrolled, &c.

The rules with regard to bankrupts apply by analogy to insolvent debtors, who are equally considered as being devested of

all right to maintain a suit in respect of any surplus to which they may eventually be entitled (y). Thus, where a bill was filed by an insolvent debtor against his assignees, under the 14 Geo. 3, c. 77, and also against a debtor to his estate, stating collusion between them, and praying that the assignees might be removed, and that a specific performance of an agreement for a lease might be decreed against the debtor, to which bill a plea was put in by the debtor stating the assignment under the Act, &c., the plea was held to be good (z). The reasons for the judgment in that case are not given in the report; but it was considered by Lord Eldon as an authority for the rule, that an insolvent debtor is placed in the same situation as that in which a bankrupt is, viz. " that the order, disposition and management of the estate is so far taken out of the party, that he cannot sue in respect of the surplus ” (a).

But although neither a bankrupt nor an insolvent debtor can sue in respect of their interest in the surplus of the property, yet as they have such an interest in the surplus as is capable of assignment, it seems that the persons claiming under such assignments, if made for valuable considerations, may maintain bills respecting them. This appears to have been the opinion of Lord Alvanley, in Spragg v. Binkes (b), though his lordship seems to have doubted whether the Court had not gone too far in permitting such assignments, and to have held, that a party could not parcel out a right in accounts to be taken to different persons, so that every one of those persons might file a bill pro interesse suo.

bankrupt
may sue for pro-
perty acquired
subsequently to

The disability of a bankrupt to maintain a suit, does not Certificated apply to a certificated bankrupt suing in respect of property acquired subsequently to the allowance of his certificate; but by the 6 Geo. 4, c. 16, it is enacted, that if any person who shall already have been discharged by certificate, or who shall have compounded with his creditors, or who shall have been discharged by any Insolvent Acts, shall be or become bankrupt, and obtain his certificate, such certificate, unless his estate shall produce, after all charges, sufficient to pay every

certificate, unless in the case of second bankruptcy, &c.

Insolvent
Debtors.

Difference in this respect between a bank

rupt and insolvent debtor.

By the Insol. vent Act,

creditor under the commission 15s. in the pound, shall only protect his person from arrest and imprisonment; but his future estate and effects, except his tools of trade and necessary household furniture, and the wearing apparel of himself, his wife and children, shall vest in the assignees under the commission, who shall be entitled to seize the same in like manner as they might have seized property of which such bankrupt was possessed at the issuing of the commission.

In most respects the situation of an insolvent debtor, as far as regards the right to sue for property acquired previous to his discharge, is similar to that of a certificated bankrupt; but there is a material difference in their situations with regard to after-acquired property. A bankrupt may, as we have seen, after the allowance of his certificate, become entitled to property in the same manner that he might before his bankruptcy, unless it be the case of a second bankruptcy, where he has not paid 15s. in the pound; but in the case of an insolvent debtor, his future property is made liable to the payment of his debts contracted before his discharge.

By the 57th section of the Act, before any adjudication is made, the prisoner is to execute a warrant of attorney to authorise the entering up of a judgment against him, at the suit of his assignees, for the amount of the debts stated in his schedule, which judgment is to have the form of a recognizance; and if at any time it shall appear to the satisfaction of the Court that such prisoner is of ability to pay such debts, or any part thereof, or that he is dead leaving assets for that purpose, the Court may permit execution to be taken out thereupon for such sum of money as under all the circumstances of the case the Court shall require, which sum is to be distributed rateably amongst the creditors of the insolvent; and by the 58th and 59th sections, where an insolvent shall after discharge become entitled to property which cannot be taken in execution under the judgment to be entered up on the before-mentioned warrant of attorney, the assignee may, veyed or assign in case the insolvent refuses to convey or assign such property, ed to assignee, and if insolvent apply to the Court by petition, and upon such petition the refuses to con- Court may cause the insolvent to be apprehended and comvey or assign it, mitted to custody until he transfers or assigns such property

After-acquired property of insolvent, which cannot be taken in execution, must be con

to his assignees; and in case any person shall become possessed of any stock or other property belonging to the insolvent, or held in trust for him, or for his use and benefit, or to which he shall be in any way entitled, or shall be in any manner indebted to such insolvent, the Court may, upon application of any assignee or creditor of the insolvent, cause notice to be given to such person, directing him to hold or retain the property till further order, and thereupon it shall be lawful for such Court to order such property to be delivered over to the assignee of the insolvent, for the general benefit of the creditors.

The effect of these clauses in the Act, it is to be observed, is not absolutely to vest the future property of the insolvent in his assignee, but merely to give the assignee, on application to the Court, power to get at it, and to apply it for the benefit of creditors. It would seem, therefore, that for such future property, a person who has taken advantage of the Insolvent Act, must be entitled to sue, at least till an assignment has been made to the assignee, pursuant to the provisions of the 58th section.

The proper course by which to take advantage of the bankruptcy or insolvency of the plaintiff in a suit, if such bankruptcy or insolvency has occurred previously to the filing of the bill, is by demurrer, if the fact appears upon the bill (c), and if the fact does not appear it should be pleaded. In Bowser v. Hughes (d), which was the case of a plea to a bill by an insolvent debtor against his assignees and a debtor to the estate, the facts stated in the plea appeared upon the face of the bill, and yet the plea was held good; and it has been held, that as at law any matter which arises between the declaration and the plea may be pleaded, so bankruptcy or other matters arising between the bill and plea may be pleaded in equity (e). In pleading bankruptcy, all the facts should be stated successively and distinctly; and it will not be sufficient to say that a commission or fiat of bankruptcy was duly issued against the plaintiff, under which he was duly found and declared a bankrupt, and that all his estate and effects have

77.

(c) Benfield v. Solomons, 9 Ves.

(d) 1 Anst. 101.

(e) Turner v. Robinson, I S. & S. 3.