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 been thereupon duly transferred to or become vested in his assignees; (f) [ 78 ] a plea of bankruptcy must state distinctly the trading, the contracting debts, the petitioning creditor's debt, the act of bankruptcy, the commission or fiat, and the finding bankrupt. It was formerly necessary to state the assignment of the personal estate to the assignees; and if real estate was in question, it was required that the bargain and sale should be clearly mentioned. (g) That part of the plea is now inapplicable, as in fact, under the Bankruptcy Court Act, no assignment or bargain and sale is necessary, all the real and personal estate of a bankrupt being, by the Act, vested in his assignees upon their appointment. (h) With respect to the bankruptcy of the plaintiff after the commencement of a suit, or after plea and answer put in, some doubt appears to be entertained whether, in the Court of Chancery, such an event operates as an abatement or not. In the Court of Exchequer it has been frequently determined, that proceedings do not abate by the bankruptcy of the plaintiff; (i) but in the Court of Chancery it seems to be otherwise. In Sellas v. Dawson, (k) Lord Thurlow appears to have been of opinion, that bankruptcy would abate a suit in any stage prior to the judgment; and that the bankruptcy of a sole plaintiff so far put an end to the suit, that the assignees could not add to it by mere supplemental bill, but must file another original bill in the nature of a supplemental bill; (7) and in Randall v. Mumford, (m) Lord Eldon observed, that without saying whether bankruptcy is or is not strictly an abatement, the Court has said, that according to the course of the Court, the suit has become as defective as if it were abated. (n)

The difference in the way in which the two Courts look upon the effect of the bankruptcy of the plaintiff pendente lite, has led to considerable difference in their rules of practice upon the occasion. In the Court of Exchequer the practice is, for the assignees of a bankrupt, if they wish to take advantage of a *suit commenced by him, to file a supplemental bill; if they omit to do so within the usual period, the defendant may move to dis*79 ] miss the bill, in which case an undertaking to speed the cause will be of no avail, and the bill will be dismissed with costs.

(e) Benfield v. Solomons, 9 Ves. 77. (e) Turner v. Robinson, 1 S. & S. 3. (g) Ibid. Arg. 669.

(i) Bramhall v. Cross, cited 2 Anst. 459; Mumford, 18 Ves. 426.

(k) 2 Anst. 458.

(d) 1 Anst. 101.

[

(f) Carleton v. Leighton, 3 Mer. 667. (h) 1 & 2 Will. 4, c. 56, ss. 25, 26. Davidson v. Butler, ibid. 460 n; Randall v.

(4) Harrison v. Ridley, Com. R. 589; Lord Red. 64. (m) 18 Ves. 426.

(n) Vide 1 Atk. 263, notis.

In the Court of Chancery, however, the practice is otherwise. The effect of bankruptcy in that Court is considered so far to abate the suit, that a common order to dismiss for want of prosecution, having been obtained when the bill was in fact out of Court, is considered as a mere nullity, and upon that ground Lord Thurlow refused to discharge one which had been obtained under such circumstances. (0) It seems, however, that bankruptcy is not considered in Chancery as a complete abatement of the suit, and that if the assignees wish to continue it, they must do so, not by bill of revivor, but by a supplemental bill in the nature of a bill of revivor, and that if the defendant wishes to get rid of the suit entirely, although he cannot make the ordinary motion to dismiss, he must adopt a course of proceeding analogous to that pursued where the plaintiff obtains an injunction and dies, in which case the defendant may move that the injunction be dissolved, unless the representatives of the deceased plaintiff revive within a certain time. (p) He must move that the assignees may, within a fortnight after notice of the order, file a supplemental bill against him, or in default thereof, that the plaintiff's bill may stand dismissed. This is, however, not a motion of course, and the assignees must be served with it. It should also be supported by an affidavit of facts, (q) and it is to be observed, that the dismissal will be without costs, as a bankrupt cannot be made to pay costs. (r) The rule of practice by which a defendant is required to give notice to the assignees in the case of the bankruptcy of a plaintiff, is confined to the case of a sole plaintiff, who, becoming bankrupt, is supposed to be negligent of what is sought by the bill, and the Court, to prevent surprise and save expense, requires notice to be given to the assignees, but there is no instance where [ *80 ] the Court has taken upon itself to interpose the rule where there are two plaintiffs, one of whom is solvent and the other insolvent, for it is as competent to the solvent plaintiff as it is to the assignees to rectify the suit. (s)

In the case of injunctions granted at the suit of a plaintiff who afterwards becomes bankrupt, the course of proceeding appears to be somewhat different from what it is under ordinary circumstances. In such case, the practice which the Court of Chancery has adopted is to require the bankrupt to bring his assignees before the Court by bill of revivor, or supplemental bill in the nature of a bill of revivor, or by whatever name it is called; and the Court will make an order to dissolve the injunction and dismiss the bill, unless the assignees shall be brought before it within a reasonable time, (t) which order it seems, may be served upon the bankrupt alone, as it is supposed that the bankrupt will find the means of giving his assignees notice. (u) Such an order will also be without costs.

The practice in the Court of Exchequer in this respect appears to be similar to that of the Court of Chancery. (x)

It is proper in this place to notice a point which has been much discussed, and upon which there appears to have existed considerable diversity of opinion, especially between the Courts of Exchequer and Chancery, viz: the right of the assignees of a bankrupt to institute a suit without the concurrence of the creditors, or rather with respect to the right of the defendant to avail himself

(0) Sellas v. Dawson, ubi supra.

(9) Porter v. Cox, 5 Mad. 80.

(p) Wheeler v. Malins, 4 Mad. 171.
(r) Wheeler v. Malins, 4 Mad. 171.

($) Caddick v. Masson, 1 Sim. 501; Latham v. Kenrick, ibid. 502.

(1) Randall v. Mumford, 18 Ves. 424.
(u) Randall v. Mumford, 18 Ves. 424;
(x) 1 Fowl. E. P. 286.

Wheeler v. Malins, 4 Mad. 171.

of the omission of the assignees to obtain such concurrence, and the manner in which he is to insist upon such right.

By the 5 Geo. 2, c. 30, s. 38, it was provided that no suit in equity should be commenced by any assignee or assignees, without the consent of the major part in value of the creditors of such bankrupt, who should be present at a meeting to be held pursuant to notice given in the London Gazette for that purpose; and by the 6 Geo. 4, c. 16, by which the 5 Geo. 2, c. 30, is repealed, it is enacted (y) that the assignees, with the consent of the major part [ *81 ]

in value of the creditors, who shall have proved under the commission, present at any meeting, whereof, and of the purport whereof twentyone days' notice shall have been given in the London Gazette, may do certain acts therein specified, and that no suit in equity shall be commenced by the assignees without such consent as aforesaid, provided that if one-third in value or upwards of such creditors shall not attend at any such meeting, (whereof such notice shall have been given as aforesaid,) the assignees shall have power, with the consent of the commissioners testified in writing under their hands, to do any of the acts aforesaid.

The first reported case in which the right of the defendant in equity to avail himself of the omission on the part of the plaintiff to procure the necessary consent of the creditors under the 5 Geo. 2, c. 30, s. 38, was that of Ocklestone v. Benson, (2) which came before Sir John Leach, V. C., upon a plea, when his Honor allowed the plea, observing, that if the creditors are not bound by the result of a suit which is commenced by the assignees without the consent of the creditors, then it is not fit that the defendant should be vexed in a suit, which at the pleasure of the creditors, may be to him fruitless; and that, if the creditors are bound by such a suit, then it is fit that a plea should be favoured which is in furtherance of the purposes of the statute. The same question was afterwards raised in Bevan v. Lewis, (a) which was the case of a supplemental bill filed by assignees in consequence of one of the plaintiffs in the original suit having become bankrupt. There was no plea, nor was the point raised by the answer, but the objection was taken at the hearing and overruled by the V. C., (Sir A. Hart) who said that as the objection now insisted on had not been raised by the answer, he was not at liberty, upon reading the record, to assume that the assignees had not had the assent of the creditors.

In Bozon v. Williams, (b) which occurred in the Exchequer upon a plea, the judgment was in favour of the plea, chiefly upon the authority of the decision which had been come to in Ocklestone v. Benson. The Lord Chief Baron (Sir W. Alexander) in pronouncing the judgment on that occasion, confessed that when the case was first opened, he con[ *82 ] sidered that the effect of the statute would have been merely to render the assignee liable for misconduct in instituting a suit without the consent required by the Act, and to give the creditors a remedy against the assignee for so doing, but that after hearing the case cited, (c) in which, after consideration, the Master of the Rolls had positively decided that this was a clause of which the defendant might avail himself in the form and under the same circumstances in which the present defendants sought to avail themselves of it, he felt it to be of so much consequence to adhere to former decisions, that he should be unwilling to come to a different conclusion, unless there were some special circumstances to induce him to depart from that decision. His Lordship further observed, "The strongest argument used, and which makes me in some mea

(y) Sect. 88.

(a) 2 Glyn & Jameson 245.
(c) Ocklestone v. Benson, supra.

(z) 2 S. & S. 265.
(b) 2 Young & J. 475.

sure doubt the accuracy of the report of the case before the Master of the Rolls, is the supposed case of waste, in which it might be necessary to make an immediate application to the Court, and to give the notice required by the Act would only be to accelerate the mischief. The observation is a very strong one, and difficult to be dealt with. When such a case occurs, in what manner the Court will deal with it I will not now undertake to say. If this had been the case of a demurrer, I would have presumed all proper measures to have been taken under the Act, but where the question is put directly in issue by a plea, and it is in the power of the plaintiff to reply to such plea and put the matter in a course of trial, I feel that I am not at liberty to pronounce the provisions of the Act to have been complied with."

After the above case was decided by the Lord Chief Baron, the same point again came under the consideration of the Court of Chancery, upon a demurrer to a supplemental bill, which had been filed by the assignees. (d) The defendant in his answer to an original bill filed by the assignees, had insisted upon the fact of the original bill not having been filed with the consent of the creditors, &c., as required by the Act, whereupon the assignees filed a supplemental bill, stating, that since the filing of the original bill, they had obtained the [ *83 ] necessary assent, to *which supplemental bill the defendant demurred, and the Vice Chancellor (Sir L. Shadwell) allowed the demurrer on the authority of Ocklestone v. Benson, before cited. In Jones v. Yates, (e) however, Sir William Alexander, L. C. B., overruled a demurrer to an original bill, exhibited by the assignees of a bankrupt, on the ground that the assent required had not been obtained, and in doing so his Lordship said, "There is, certainly, great advantage in requiring a plaintiff to state his rights accurately on the record; but it seems to me very questionable whether the Act of Parliament intended that the assignees should be stopped from instituting a suit without the consent of the creditors, or only intended to provide as between the assignees and the creditors, that the assignees should be responsible if they instituted any suit without the consent directed by the Act. In point of fact, the assignees by the assignment to them, get the species of interest which would enable them to institute any action or suit; but then comes the prohibition in the Act. Now, whether that mere prohibition is to have the effect of depriving the assignees of the right which their situation would otherwise give them, or has only the effect of rendering them liable to the creditors for the consequences of any action or suit instituted without their consent, is very questionable. I promised to speak to the other Judges about the demurrer: I have done so, and I am now disposed to overrule the demurrer, but without costs. I have spoken to both the Master of the Rolls and the Vice Chancellor, and if those learned Judges continue of the opinion now entertained by them, a different rule will for the future prevail in the Court of Chancery." It is to be observed, that in a subsequent case before the Vice Chancellor, (ƒ) his Honor decided in conformity with Ocklestone v. Bozon, but that in a case which afterwards occurred before the Master of the Rolls, (Sir John Leach) in which an objection upon the above ground was taken at the hearing, his Honor said that he had had an opportunity of conversing with some of the Judges at common law upon the point, and their impression was according to the inclination of opinion which he had expressed at the *hearing; viz: that

[ *84 ] the provision made in the statute was to be considered as made for

the benefit of the creditors alone, and that it was not competent to the defendant to take advantage of the objection that the suit had been instituted without the consent of the creditors. 66 Upon the whole," his Honor said, "I do not

(e) 3 Y. & J. 373.

(d) King v. Tullock, 2 Sim. 469.
(f) Smith v. Biggs, (6 July, 1832,) 5 Sim. 391.

now hesitate to decide that this suit can be well sustained by the assignee, and that he is entitled to the decree sought by this bill." If there be collusion between the plaintiffs and defendants in a suit instituted by the assignees without the previous consent of the creditors, the judgment of the Court will bind the interest of the creditors, but the assignees in such case take upon themselves the responsibility that the suit is properly instituted and properly conducted. (g) With reference to this point it is to be observed, that the Insolvent Debtors' Act, 1 Geo. 4, c. 119, contains a clause nearly to the same effect as that in the Bankrupt Act above referred to. By the 11 sect. it is enacted that no suit at law be proceeded in further than an arrest in mesne process, or suit in equity be commenced by any assignee or assignees of any such prisoner's estate and effects, without the consent of the major part in value of the creditors of such prisoner, who shall meet together pursuant to a notice to be given, &c. for that purpose, and without the approbation of the commissioners of the said Court;" and the Court of Common Pleas have expressed an opinion, that this clause does not make it necessary for an assignee under the Act to prove at the trial of an action brought by him on account of the insolvent's estate, that he was authorized in the manner prescribed by the above section. In delivering the opinion of the Court, Lord Chief Justice Best, said, that the legislature did not intend to increase the expense of suits brought for the benefit of insolvent estates, or to give any advantage to those who endeavour to withhold from the assignees what belongs to such estates, which consequences, if the construction contended for by the defendant were to prevail, would both follow; "If an action is brought without the proper authority, this Court might perhaps stop it on motion, or the Insolvent Debtors' Court might order their officer to suspend or discontinue it. I doubt, however, whether either *Court should

interfere on the application of a defendant; he can in no way [ *85 ]

avail

himself of this provision in the Act, as it was not made for his benefit. I am convinced he can make no use of it at the trial of an ejectment brought against him." (h) In a subsequent case, which arose upon the construction of the present Act for the relief of insolvent debtors, (i) the Court of Common Pleas were of opinion, upon the same grounds, that the 16th section of that Act was only confirmatory of the assignee's right to sue, and that he might sue without the order of the Court of Insolvent Debtors required by that section. (k)

In this place it is right to notice another section in the Insolvent Debtors' Act, which has been the subject of much discussion in the Court. By the 7 Geo. 4, c. 57, s. 26, it is enacted, "that whenever any such assignee or assignees shall die or be removed, and a new assignee or assignees shall be appointed in pursuance of the provisions of this Act, no action at law or suit in equity shall be thereby abated, but the Court in which any action or suit is depending, may, upon the suggestion of such death or removal and new appointment, allow the name or names of the surviving or new assignee or assignees to be substituted in the place of the former; and such action or suit shall be prosecuted in the name or names of the said surviving or new assignee or assignees, in the same manner as if he or they had originally commenced the same." (1) Under this section an application was made to the Vice Chancellor for leave to substitute the name of a new provisional assignee as a defendant, in lieu of a provisional assignee who had been originally made a defendant, but had been removed from his office, and an order was made to that effect; (m)

(g) Piercy v. Roberts, 1 Mylne & Keen, 8-11.
(h) Doe dem. Clark v. Spencer, 3 Bing, 203.
(i) 7 Geo. 4, c. 57.

(k) Dance v. Wyatt, 6 Bing, 486.

(1) A similar section occurs in the Bankrupt Act, 6 Geo. 4, c. 16, s. 7. (m) Gilchrist v. Renton, Younge E. R. 387, n.