Suits by Assignees. Difference between former and present enactments. When depositions made conclusive evi dence. (like those in the former statute) (q) confined to actions and suits by or against the assignees, but extend to those against the commissioners or any person acting under them. There is also a material difference in the enactments; the former statute providing that in case of no notice being given, "the commission, and the proceedings of the commissioners under the same, shall be evidence to be received" of the petitioning creditor's debt, the trading and act of bankruptcy, while the present statute declares, that "no proof shall be required at the trial" of those matters (r). It is to be observed, moreover, that where the assignees sue for a debt or demand for which the bankrupt might himself have sued, the 6 Geo. 4, c. 16, takes away from the defendant all power whatever of contesting those proceedings after a certain period allowed the bankrupt to dispute the validity of the commission, for by section 92 it is declared, that if the bankrupt shall not, (if he be within the United Kingdom at the issuing of the commission,) within two calendar months after the adjudication; or (if out of the Kingdom) then within twelve calendar months, give notice of his intent to dispute the commission, and proceed therein with due diligence, the depositions taken before the commissioners of the petitioning creditor's debt, the trading and act of bankruptcy, shall be conclusive evidence of the matters therein respectively contained, in all actions or suits brought by the assignees for any debt or demand for which the bankrupt might have sustained any action or suit (s). (q) 49 Geo. 3, c. 121, s. 10. 11. more Judges of the Court, in which case it is declared, that if the verdict in such issue should not be set aside on application made to the Court of Review within one month after the trial, or in case no issue should be directed, if the adjudication of the commissioners should not be set aside by the Court of Review on the petition, such verdict or adjudication of the commissioners shall in all cases, as against the bankrupt, and also as against the petitioning creditor, and as against any assignee to be chosen of the bankrupt's estate and effects and all persons claiming under the assignees, and all persons indebted to the bankrupt's estate, be conclusive ; It is to be noticed, that this section of the Act extends only to those cases in which an action or suit is brought by the assignees for any debt or demand for which the bankrupt himself might have sustained a suit; in those cases, therefore, in which the bankrupt himself, supposing he had not become one, would have had no right to maintain a suit, as in the case of a suit brought by the assignees to recover back the payment of a debt made by the bankrupt to his creditor, after his knowledge of an act of bankruptcy, or after the issuing of the commission or fiat; the Act does not deprive the defendant of the right to dispute the petitioning creditor's debt, the trading and act of bankruptcy at any time, upon giving the requisite notice of his intention to do so (t). It is also to be observed, that the term conclusive evidence, as applied in the act to the depositions taken before the commissioners, must be understood as only applying to the facts contained in the depositions, and not to the conclusion of law drawn by the witnesses or the commissioners from them (u); for though no evidence can be produced to contradict the facts. deposed to, yet if the depositions on the face of them are not legal proof of the petitioning creditor's debt, and of the trading and act of bankruptcy, they cannot be received in evidence, notwithstanding they have been considered as proved by the commissioners. Thus, though the deposition of the witness to prove the act of bankruptcy will be conclusive evidence of the time when the bankrupt did a certain act, and of the fact itself, it will not be evidence of its amounting to an act of bankruptcy. So the deposition of the petitioning creditor will be evidence of a certain sum due to him, and also of the character in which he claimed it, whether as executor or assignee; nor will it be necessary in either of these cases to produce the probate, or the assignment (x); but whether the sum due was a debt to support a commission, that is an inference of law which the Court upon the trial will not be estopped from determining by the adjudi evidence that the party was or was not a bankrupt at the date of such adjudication; and a power of appeal is given by the same section to the Lord Chancellor, from any decision of he Court of Review, upon any matter of law or equity, or on the refusal or (1) Skaife v. Howard, 2 B. & C. 560. Suits by Assignees. Suits by Assignees. Defective depositions may be supplied by other evidence. Infant defendants may dispute the validity of the bank ruptcy, without giving notice. cation of the commissioners. So, if a deposition state that the deponent witnessed the execution of a deed by the bankrupt, by which he assigned his property to A. B. Though this is evidence of such a deed as stated in the deposition (y), yet it is not evidence that the deed itself was an act of bankruptcy. The whole effect, indeed, of the provision of the statute is only to make the depositions evidence, not to declare the fact of the bankruptcy to have been proved, for this must be as strictly made out by the depositions, as it would be required to be done by witnesses (z). If the facts, therefore, stated in the depositions are sufficient of themselves to sustain the bankruptcy, no farther proof is necessary (a); but they may be always objected to for not proving the subject-matter to which they apply. Thus, if the deposition of the petitioning creditor state only that the debt was due to him at and before the time of suing forth the commission, not showing that it existed at the time of the act of bankruptcy, this would be defective proof of the petitioning creditor's debt (b). So, upon a commission sued out against the drawer of a bill of exchange, if the deposition does not state presentment and notice, there will not be sufficient evidence of the debt (c). And again, where the deposition of the witness to prove the act of bankruptcy stated that the party absented himself on a certain day, and that he had declared to the deponent that his motive was to avoid his creditors, but not stating the time when this declaration of the bankrupt was made; this was ruled not to be sufficient proof of an act of bankruptcy (d). In every case, however, where the depositions turn out to be insufficient proof of any of the requisites to support the commission, the assignees will not be prevented from establishing these facts by other evidence (e). And it is to be remarked, that where the defendants to a suit brought by the assignees of a bankrupt, or any of them, are infants, they will be entitled to dispute the validity of the bankruptcy, without giving (y) Kay v. Stead, 2 Star. 200. and see Lawton v. Robinson, ibid. 456. (c) Cooper v. Machin, 1 Bing. 426. (d) Marsh v. Meager, 1 Star. 353. (e) Clarke v. Askew, 1 Star. 458. the notice required by the Act. This was decided by Sir J. Leach, V.C., in the case of Bell v. Tinney (ƒ), in which a bill was filed by the assignees of a bankrupt to set aside a settlement which had been made by the bankrupt upon his wife and children. There was no other evidence of the bankruptcy but the commission, which the counsel for the plaintiff insisted was sufficient under the 9 Geo. 3, c. 121, s. 11, but the Vice-Chancellor held, that as there were infant defendants he would not bind them, by the want of the notice required by the Act; and directed an inquiry before the Master, whether a commission had been duly issued against the bankrupt. Suits by Assignees. (f) 4 Mad. 372. OF PERSONS WHO CHAP. III. PART II. ARE DISQUALIFIED FROM SUING ALONE. Of Infancy. SECT. I.- Of Infants. WE come now to the consideration of those disqualifications which only incapacitate a person from maintaining a suit alone, but do not prevent his suing in equity, provided his suit be supported by another person. Such disqualifications arise from infancy, idiotcy, lunacy or imbecility of mind, and marriage. With respect to infants, idiots, lunatics, and persons of weak minds, the law considers that by reason of the immaturity or imbecility of their intellects, they are incapable of asserting or protecting their own rights, or of forming a judgment as to the necessity of applying for protection or redress to the tribunals of the country; it therefore requires that whenever it is necessary that application should be made on their behalf to a court of justice, such application should be supported by some person who may be responsible to the Court that the suit has not been wantonly or improperly instituted. With respect to married women, their incapacity does not arise from want of reason (a), but from the circumstance that by the law of this country the property of all women in a state of coverture vests in the husband, the consequence of which rule is, that no suit can be maintained by the wife without her husband being joined as a co-plaintiff with her. In those cases, however, in which by the peculiar doctrines of a Court of Equity she is considered entitled to property separate and distinct from her husband, if it should so occur that her interests are in opposition to those of her husband, Courts of Equity will permit her to sue in her own name, but then some person must be joined with her in the suit, who may be responsible for the costs of the pro (a) Co. Litt. 346 a & b. |