7. Proceedings by Trustee to obtain Leave to issue Execution on Judgment obtained by Bankrupt. See the forms of Summons and Affidavit, ante, p. 457. 8. Action upon Joint Contract where One of the Joint Contractors is Bankrupt. The Bankruptcy Act, 1883, s. 114, enables the solvent joint contractors to sue or be sued in respect of the contract, without the bankrupt being joined as a party to the action. 9. Action to enforce Claim of Firm where One Partner is Bankrupt. By the Bankruptcy Act, 1883, s. 113, the Court having jurisdiction in bankruptcy may authorize the trustee to bring the action in the names of the trustee and the bankrupt's partner. [1891] 1 Q. B. 513; Warder v. Saunders, 10 Q. B. D. 114), or for dismissal of the action for want of prosecution (Wright v. Swindon R. Co., 4 Ch. D. 164). If the defendant becomes bankrupt, and the cause of action is a debt provable in his bankruptcy, he may apply for a stay of proceedings as against himself. As between the plaintiff and the trustee the action cannot be continued unless an order has been obtained under Ord. XVII., r. 4, ante, p. 514, CHAPTER XV. PROCEEDINGS BY AND AGAINST PAUPERS (@). 1. Case for Opinion of Counsel, and his Opinion thereon (b). A case, containing a full and true statement of all the material facts, must be laid before counsel for his opinion whether or not the pauper has reasonable grounds for taking some and what legal proceedings. The opinion, which should be written at the foot of the case, may be expressed as follows: I am of opinion that, upon the facts as stated in the above case, A. B. has reasonable grounds for bringing an action [or continuing his action] in the King's Bench Division of the High Court of Justice against C. D. for [state shortly the cause of action]. [I consent to be his counsel in such action.] 19-. J. S. W., Temple. [19, No.-.] 2. Affidavit by Plaintiff of Truth of above Case (c). In the High Court of Justice. King's Bench Division. I, A. B. [of [In the matter of an intended action] (d) Between A. B.......................... oath and say as follows: and C. D............ .Plaintiff, ...Defendant. -], the above-named [intended] plaintiff, make (a) By R. S. C., Ord. XVI., r. 22, “Any person may be admitted in the manner heretofore accustomed to sue or defend as a pauper on proof that he is not worth £25, his wearing apparel and the subject-matter of the cause or matter only excepted." By r. 25, "A person admitted to sue or defend as a pauper shall not be liable to any Court fee." By r. 27, "Whilst a person sues or defends as a pauper no person shall take, or agree to take, or seek to obtain from him any fee, profit, or reward, for the conduct of his business in the Court, and any person who takes, or agrees to take, or seeks to obtain any such fee, profit, or reward shall be guilty of a contempt of Court." By r. 28, "If any person admitted to sue or defend as a pauper gives, or agrees to give, any such fee, profit, or reward, he shall be forthwith dispaupered, and shall not be afterwards admitted again in the same cause to sue or defend as a pauper." By r. 31, "Costs ordered to be paid to a person admitted to sue or defend as a pauper shall, unless the Court or a Judge shall otherwise direct, be taxed as in other cases." (b) By Ord. XVI., r. 23, "A person desirous of suing as a pauper shall lay a case before counsel for his opinion whether or not he has reasonable grounds for proceeding." (c), (d) For notes, see p. 593. 1. The case now produced and shown to me, marked A., contains [to the best of my knowledge and belief] a full and true statement of all the material facts relating to the matters in question between me and C. D., of in respect of which I desire to bring an action in formâ pauperis against the said C. D. [or if the action has been commenced, relating to the matters in question in this action.] 2. On the day of Esquire, barrister-at-law, for his opinion thereon, and his opinion thereon is written at the end of the said case. 3. I am not worth £25, my wearing apparel and the subject-matter of the said intended [or this] action alone excepted. Sworn [&c., as usual]. 3. Affidavit by Defendant desiring to defend as a Pauper. [Formal parts as usual.] day of 19-, 1. State the stage which the action has reached, for example]: The writ of summons in this action was issued on the the day of and on 19-, I entered an appearance thereto, and no step has since been taken in the said action. 2. I am not worth £25, my wearing apparel and the subject-matter of this action alone excepted; and I desire to be admitted to defend this action as a pauper. 3. To the best of my knowledge, information and belief, I have a good defence to this action on the merits. [It may be advisable to state any ground of defence specially relied upon. It is unnecessary to produce an opinion of counsel; but if an opinion has been obtained, the case and opinion may be exhibited, and the statements in the case verified; see paragraph 1 of form No. 2, supra.] Sworn [&c., as usual]. 4. Petition, before Action brought, for Leave to sue as a Pauper (e). [Title as in form No. 2, supra.] To the Right Honourable Justice of England. [name of Lord Chief Justice], Lord Chief (e) By Ord. XVI., r. 24, "No person shall be permitted to sue as a pauper unless the case laid before counsel for his opinion, and his opinion thereon, with an affidavit of the party, or his solicitor, that the case contains a full and true statement of all the material facts to the best of his knowledge and belief, shall be produced before the Court or Judge or proper officer to whom the application is made, and no fee shall be payable by a pauper to his counsel or solicitor." (d) The title will vary according as the action has or has not been commenced. (e) Hand the petition, with the affidavit and the exhibits thereto, to a Master at C.F. 38 The humble petition of A. B., of · of That C. D., is justly indebted to your petitioner in the sum of £- for [here state concisely the cause of action]; and your petitioner has not yet commenced an action against him for the same, being unable to commence or carry on such action on account of his poverty, as appears by the affidavit annexed hereto. Your petitioner, therefore, humbly prays your lordship that he may be admitted to prosecute the said action in the King's Bench Division of this Honourable Court in formâ pauperis [and that J. S. W., Esquire, may be assigned to him as his counsel, and X. Y., of as his solicitor, in the said action] (f). £ Dated And your petitioner will ever pray, &c. 5. The like, after Action brought. [Title, &c., of action as usual.] To the Right Honourable [&c., as in preceding form]. (Signed) A. B. The humble petition of the above-named plaintiff, A. B., of Sheweth, That the above-named defendant is justly indebted to your petitioner in for goods sold and delivered by your petitioner to the said defendant [or as the case may be], and your petitioner has commenced this action against him for the same, but is unable to carry on the said action on account of his poverty, as appears by the affidavit annexed hereto. Your petitioner, therefore [&c., as in preceding form]. 6. Petition to be admitted to defend as a Pauper (f). [Title, &c., of action as usual.] To the Right Honourable [&c., as in form No. 4, supra.] The humble petition of the above-named defendant C. D., of Sheweth, That your petitioner is unable to defend this action on account of his poverty, as appears by the affidavit annexed hereto, unless he be permitted to defend the same as a pauper. Chambers, and apply to him ex parte for an order. In practice, in the K. B. D., the order is usually obtained on production of the affidavit, exhibiting counsel's opinion, the formal petition being dispensed with. (f) By R. S. C., Ord. XVI., r. 26, “Where a person is admitted to sue or defend as a pauper, the Court or a Judge may, if necessary, assign a counsel or solicitor, or both, to assist him, and a counsel or solicitor so assigned shall not be at liberty to refuse his assistance unless he satisfies the Court or Judge that he has some good reason for refusing." The pauper should name the counsel and solicitor whom he desires should be assigned; as a rule, the Official Solicitor ought not to be assigned (Moutrie v. Mitchell, [1901] 1 K. B. 596). Your petitioner, therefore, humbly prays your lordship that he may be permitted to defend this action in formâ pauperis [and that a counsel and a solicitor may be assigned to assist your petitioner in defending the same]. And your petitioner will ever pray, &c. Dated 7. Order on Petition (g). [Title, &c., as in Petition.] (Signed) C. D. Upon reading [the petition dated, and] the affidavit sworn herein on, of the above-named [plaintiff or defendant] A. B. [and the case laid before counsel and his opinion thereon, exhibited to the said affidavit]: It is ordered that the said A. B. be permitted to prosecute [or defend] this action [or the intended action referred to in the said petition] as a pauper [and that J. S. W., Esquire, be assigned to be his counsel, and X. Y., of gentleman, to be his solicitor in such action]. Dated [The order must be served on the opposite party.] 8. Application to dispauper. [Formal parts as usual] for an order that the above-named plaintiff [or defendant] A. B. be dispaupered, and the order dated -, whereby the said A. B. was permitted to proceed as a pauper, be discharged, on the ground that [state concisely the grounds of the application]. [The application should be supported by an affidavit stating the facts relied on.] (g) Subsequent Applications by Pauper.]-By R. S. C., Ord. XVI., r. 29, "No notice of motion shall be served or summons issued, and no petition shall be presented, on behalf of any person admitted to sue or defend as a pauper except for the discharge of his solicitor, unless it is signed by his solicitor." This Rule does not apply, where no solicitor has been assigned (Jacobs v. Crusha, [1894] 2 Q. B. 37). By r. 30, "It shall be the duty of the solicitor assigned to a person admitted to sue or defend as a pauper to take care that no notice is served, or summons issued, or petition presented, without good cause." |