but upon a similar application being made to the Court of Exchequer, Lord Lyndhurst, C. B., said that the section applied only to the case of the assignee being plaintiff, and not where he is defendant; (n) and in a subsequent case before Lord Brougham, L. C., the opinion of Lord Lyndhurst was confirmed, (o) so that the rule may now be taken to be settled, that the [ *86 ] section in question applies only to cases where the assignee or assignees fill the character of plaintiffs, and that it extends to the provisional assignee of the Court, as well as to assignees otherwise appointed under the Act.

As the Bankrupt Act, 6 Geo. 4, c. 16, contains a section (p) nearly in the same words with that above quoted from the Insolvent Debtors' Act, it is presumed that the same rule will apply to assignees of a bankrupt. According to the old practice with regard to them, where some died or some were discharged, and others by order of the Court, put in their room, the new assignees might have had the benefit of the former suit by filing a supplemental bill, but now, by the above Act, whenever an assignee who is a plaintiff in a suit shall die, or a new assignee or assignees shall be appointed, no action at law or suit in equity will be thereby abated, but the Court may, upon the suggestion of such death, &c., allow the name of the new assignee or assignees to be substituted in the place of the former, and the action or suit to be prosecuted in the name or names of the surviving or new assignee or assignees, in the same manner as if he or they had originally commenced the same.

By sect. 89 of the Bankrupt Act, 6 Geo. 4, c. 16, in any commission against one or more of the members of a partnership, the assignees may, upon obtaining the order of the Lord Chancellor, prosecute any suit or action in the name of such assignees and of the remaining partner or partners, against any debtor of the partnership, and may obtain such judgment, decree or order, as if the action or suit had been instituted with the consent of the other parties.

It was formerly necessary in all actions where the assignees, either as plaintiffs or defendants, claimed property under the bankrupt, to prove strictly the three requisites to support the commission; viz: the trading, the act of bankruptcy, and the petitioning creditor's debt, as well as that the commission was regularly issued, and the assignment duly executed. Upon failure of proving any one of these matters, (the proof of which adds considerably to the costs of an action, and is often difficult to be established by strict rules of [ *87 ] evidence,) the assignees were nonsuited, and thus frequently prevented from recovering a just debt due to the bankrupt's estate. To provide in some measure for this evil, the 49 Geo. 3, c. 121, ss. 10, 11, enacted, that the commission and proceedings should be evidence of the petitioning creditor's debt, the trading and act of bankruptcy, unless the other party, before a particular period of the suit, should give notice of his intention to dispute them. But this, it seems, did not afford an effectual check to the vexatious defence so frequently set up to actions brought by assignees, notwithstanding the defendant was liable to pay the costs of forcing them to prove these several matters on the trial. The legislature therefore thought it expedient to enact, that in certain cases no such proof should be required from the assignees; and in others that the depositions of these matters before the commissioners should be conclusive evidence, confining in reality the former general obligation of proof under the old system, to what may now be considered as excepted cases under the new. Thus, by section 90 of the 6 Geo. 4, c. 16, it is declared, that in any action by or against an assignee, or any commissioner or person acting

(n) Bainbridge v. Blair, ibid. 386.

(0) Mendham v. Robinson, 1 Mylne & Keen, 217.
(p) Sect. 7.

under the warrant of the commissioners, for anything done as such commissioner or under such warrant, no proof shall be required at the trial, of the petitioning creditor's debt, the trading or act of bankruptcy, unless the other party in such action shall (if defendant, at or before pleading, and if plaintiff, before the issue joined,) give notice in writing to such assignee, commissioner or other person, that he intends to dispute some, and which of such matters. And the party giving notice renders himself liable to the costs occasioned by it, if the disputed matter is proved by the other party upon the trial. By section 91, also, a similar provision is made as to suits in equity by or against the assignees, unless the party in the suit shall, within ten days after rejoinder, give notice in writing to the assignees of his intention to dispute; in which case, if the assignees shall prove the matter so disputed, the costs occasioned by the notice are, in the discretion of the Court, to be paid by the party giving it. These two clauses, it will be perceived, are not (like those in the former statute) (q) confined to actions and suits by or against [ *88 ] 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. (8)

*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 [

*89

]

for any debt or demand for which the bankrupt himself might have sustained a

(r) 1 Deacon's Bankrupt Law, 757.

(7) 49 Geo. 3, c. 121, s. 10, 11. (s) By the new Bankruptcy Court Act (1 & 2 Will. 4, c. 56, s. 27,) if a trader, adjudged a bankrupt, wishes to dispute the adjudication, he must present a petition praying the reversal thereof, to the Court of Review, within a certain period limited by the Act, and then the Court must proceed to hear and decide on the petition, or, at the option of the bankrupt, (on his finding security for costs, if required,) to direct an issue to try any matter of fact, affecting the validity of such adjudication, by a jury to be empannelled and sworn for that purpose before the Chief Judge, or any one or 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 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 the Court of Review, upon any matter of law or equity, or on the refusal or admission of evidence only.

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 adjudication of the [ *90 ] 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. (e) 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

(t) 1 Deacon, 777.

(x) Skaife v. Howard, 2 B. & C. 560. (z) Rawson v. Haigh, 1 Car. 80.

(b) Clarke v. Askew, 1 Star. 458; and see (c) Cooper v. Machin, 1 Bing. 426.

(u) Ibid.

(y) Kay v. Stead, 2 Star. 200.

(a) Per Abbott, C. J., 2 B. & C. 560. Lawton v. Robinson, ibid. 456. (d) Marsh v. Meager, 1 Star. 353.

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 *the notice required by

the Act. This was decided by Sir J. Leach, V. C., in the case [ *91 ] of Bell v. Tinney, (f) 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.

*CHAPTER III.

[ *92 ]

PART II.

OF PERSONS WHO ARE DISQUALIFIED FROM SUING ALONE.

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 proceedings, *in [ *93 ] case it should appear that the suit has been improperly instituted or conducted.

(e) Clarke v. Askew, 1 Star. 458. (a) Co. Litt. 346, a. & b.

(f) 4 Mad. 372.

In the present section, the attention of the reader will be directed to the peculiarities in the practice of the Court, arising from the circumstance of the party, or one of the parties suing being an infant.

The laws and customs of every country have fixed upon particular periods at which persons are presumed to be capable of acting with reason and discretion. According to the law of this country, a person is styled an infant until he attains the age of 21 years, which is termed his full age. (b)

An infant attains his full age on the completion of the day which precedes the twenty-first anniversary of his birth; but, as the law will make no fraction of a day, he may do any act which he is entitled to do at full age, during any part of such day. Thus it has been adjudged, that if one is born on the 1st of February, at 11 at night, and on the last day of January, in the 21st year of his age, at one of the clock in the morning, he makes his will of lands and dies, it is a good will, for he was then of full age. (c)

Although for many purposes an infant is under certain legal incapacities and disabilities, there is no doubt that a suit may be sustained in any Court, either of Law or of Equity, for the assertion of his rights or for the security of his property, and for this purpose a child has been considered to have commenced his existence as soon as it is conceived in the womb. Under such circumstances it is termed in law an infant en ventre sa mere, and a suit may be sustained on its behalf, and the Court will, upon application in such suit, grant an injunction to restrain waste from being committed on his property. (d)

In Robinson v. Litton, (e) Lord Hardwicke seems to have considered that the point that a Court of Equity would grant an injunction to stay waste at the suit of an infant en ventre sa mere, though it had often been said arguendo, had never been decided; but it seems that, though Lord Hardwicke

[ *94 ] was not aware of the circumstance, such an injunction was actually granted by Lord Keeper Bridgman. (ƒ)

But although an infant may maintain a suit for the assertion of his rights, he can do nothing which can bind himself to the performance of any act, and therefore, where from the nature of the demand made by the infant it would follow that if the relief sought were granted, the rules of mutuality would require something to be done on his part, such a suit cannot be maintained. Thus it has been held, that an infant cannot sustain a suit for the specific performance of a contract, because in such cases it is a general principle of Courts of Equity to interpose only where the remedy is mutual, and if a decree were to be made for a specific performance, as prayed on the part of the infant, there would be no power in the Court to compel him to perform it on his part, either by paying the money or executing a conveyance. (g)

Although an infant, as we have seen, in general is capable of maintaining a suit, yet on account of his supposed want of discretion, and his inability to bind himself and make himself liable to the costs, he is incapable of doing so without the assistance of some other person who may be responsible to the Court for the propriety of the suit in its institution and progress. Such person is called the next friend of the infant, and if a bill is filed on behalf of an infant without a next friend, the defendant may move to have it dismissed with costs, to be paid by the solicitor. In a case however, where a bill was filed by the plaintiff as an adult, and it was afterwards discovered that he was an infant at the time of filing the bill, and still continued so; whereupon the

(b) Jacob's Law Dict. tit. Infant.

(c) Anon. Salk. 44, Sir R. Howard's case, ibid. 265.

(d) Musgrave v. Parry, 2 Vern. 710.

(e) Robinson v. Litton, 3 Atk. 209; Wallis v. Hodson, 2 Atk. 117.

(f) Luttrel's case, cited Prac. Ch. 50. (g) Flight v. Bolland, 4 Russ. 298.