166 Scire facias by assig nees on an interlocutory judgment. Assignees When Assignees can be made Parties to the Record. [Bк. II. plaintiff (k). In one case however, where the parties were at issue and notice of trial had been given, and the plaintiff before trial became a bankrupt, the Court upon motion permitted the trial to go on in the name of the bankrupt upon the assignees undertaking to pay the costs of suit in case a verdict should be given for the defendant (1), and this course has since grown into practice (m); but the defendant's right to plead the plaintiff's bankruptcy in bar to the further maintenance of the action remains untouched by it (n). Where however the defendant has no day in Court in which to plead the plaintiff's bankruptcy-as where the plaintiff had obtained interlocutory judgment before his bankruptcy--it has been held that the action was rightly continued in the bankrupt's name during the execution of the writ of inquiry, and until final judgment, because "after the interlocutory judgment the defendant had no day in Court, nor could he afterwards plead anything to the action. The taking the inquisition and entering final judgment were only the conclusion and necessary consequence of the interlocutory judgment; for the Court themselves, if they had so pleased, might upon the interlocutory judgment have assessed the damages, and thereupon given final judgment before the plaintiff became bankrupt; and the inquisition is only a matter of course, taken to inform the conscience of the Court" (o). It was also held in the same case that there was no doubt but that the assignees might issue a scire facias on the judgment so obtained to have execution of it (0). So, where the plaintiff has become bankrupt after final judg ment and pending a writ of error, his assignees must proceed to final judgment or affirmance in the bankrupt's name (p); the rule make them being that the assignees cannot make themselves parties to the record in any intermediate stage of the proceeding, but it must be record till immediately after judgment, though an interlocutory judgment is cannot selves parties to the after judg ment. sufficient for that purpose (q). We have now traced the proceedings up to that point when the (k) Kinnear v. Tarrant, 15 East, 624. (1) Priddle v. Thomas, cited 2 Wils. 373. (m) Heaford v. Knight, 2 B. & C. 579; 4 D. & R. 81, S. C.; Doyle v. Anderson, 2 Dowl. P. C. 596. (n) Swan v. Sutton, 10 Ad. & El. 630, per Lord Denman, C. J. (0) Hewett and others, Assignees, v. Mantel, 2 Wils. 372, 358; and see Monke v. Morris and another, 1 Mod. 93. (p) 2 Tidd's Prac. 1167, 8th ed. (q) Kretchman v. Beyer, 1 T. R. 463; 2 V. Wms. Saund. 72 m, n. CH. IV.] Scire Facias by Assignees on Judgment of Bankrupt. assignees must sue out execution on a judgment obtained in the name of a bankrupt after his bankruptcy, or by a bankrupt before his bankruptcy, on which execution has not been issued before his bankruptcy, and where the principle laid down in Penoyer v. Brace (r) applies, that "where a new person is to be benefited or charged by the execution of a judgment there ought to be a scire facias to make him a party to the judgment." 167 to make as parties to After judgment therefore has been obtained by the bankrupt, or Scire facias in his name by the assignees, whether interlocutory (s) or final, signees the assignees may make themselves parties to the record in order the record to have execution of the judgment by suing out a scire facias ad inquirendum or quare executionem non, as the case may be. So where a recognizance was entered into by bail in an action it was held, on judgment having been obtained by the plaintiff, and on his subsequently becoming bankrupt before execution, that the assignees might sue out a scire facias on the recognizance against the bail (t). where judgtained by bankrupt or in his name. ment ob debt levied bankruptcy hands of Where the bankrupt had recovered damages in an action on the Judgment case for words spoken of his wife, and after the sheriff had levied before the amount under an execution against the defendant, and before and in he had returned the writ, the plaintiff became a bankrupt, and the sheriff. judgment debt, and costs were assigned to assignees, and the sheriff instead of paying the money over to the bankrupt brought it into Court; it was held that the assignees were not entitled to the money on the ground of its having been levied before the bankruptcy and not paid to the bankrupt, and that it was therefore not his; that after the bankruptcy it was in custodiá legis, and could not be assigned; and that as it was levied by record it could only be delivered to him who was able to acknowledge satisfaction of record, which the assignees (being strangers to the record) could not do. The money was therefore ordered to be delivered to the bankrupt (u). by as recover Where a plaintiff after judgment became bankrupt and after- Scire facias wards sued out execution, and the money was levied by the she- signees to riff and brought into Court, the Court refused upon motion of the money in assignees to order the money to be paid to them, but consented to hands, le (r) 1 Salk. 319; ante, book ii. ch. i. p. 1; 2 Tidd's Prac. 8th ed. 1166. (8) Hewett and others, Assignees, v. Mantel, 2 Wils. 372; Kretchman v. Beyer, 1 T. R. 463; Deacon and De Gex's Law and Practice of Bankruptcy, 2nd ed. 806. (t) Fletcher v. Pogson, 3 B. & C. 192; see also Swan v. Sutton, 10 Ad. & El. 623. (u) Benson v. Flower, Cro. Car. 166, 176; Sir W. Jones, 215; Deacon and De Gex's Law and Practice of Bankruptcy, 2nd ed. 425. sheriff's 168 vied on judgment debt of bankrupt. Bankrupt a trustee for his assignees. Scire facias against Amendment of Scire Facias. [BK. II. detain the money that the assignees might recover it by issuing a scire facias against the defendant to try the bankruptcy and prove their title (x). But in the case of Plummer v. Lea (y), where a plaintiff had obtained judgment on a scire facias, and afterwards became bankrupt, the Court on motion dispensed with a fresh scire facias by the assignee, and allowed a suggestion to be entered on the record to enable him to issue execution. This decision, however, seems contrary to principle, and to the decisions in the analogous cases of death and marriage of a feme sole, after judgment obtained. The Court, however, in one case, where execution was taken out in the name of the bankrupt without a scire facias being sued out by the assignees to make them parties to the record, refused to set aside the proceedings for irregularity, on motion (z); and this case was acted on in Guiness v. Carroll (a); Lord Tenterden, in his judgment in that case, saying, that the plaintiff (the bankrupt) "must be considered as a trustee for the assignee and the other creditors, and that what he recovered in the suit was received for their benefit" (b). The safer and regular course appears to be, however, to make the assignees parties to the record, in order to enable them to issue execution on the judgment (c). If a bankruptcy commissioner were to refuse to execute an bankruptcy order of reference from the Court of Review, directing him to commis- inquire into any matters relating to the bankruptcy, and to report enforce per the same to the Court, it seems that a scire facias may issue against him to enforce the performance of the order (d). sioner to formance of order of Court of Review. Amendment of scire facias. Costs on. The Courts have allowed a scire facias, by assignees, to revive a judgment obtained by the bankrupt before his bankruptcy to be amended on payment of costs even after issue has been joined, by inserting the name of the official assignee, liberty being given to the defendant to plead de novo (e). If a judgment recovered before the bankruptcy be revived by scire facias after the bankruptcy, it has been decided that the (x) Monke v. Morris and another, 1 Mod. 93; Vent. 193. (y) 5 Mod. 88. (2) Waugh v. Austen, 3 T. R. 437; and see Ouchterlony v. Gibson, 6 Scott, N. R. 577, 581. (a) 1 B. & Ad. 459. (b) See Winch v. Keeley, 1 T. R. 619. Prac. 8th ed. 1021. (d) Deacon and De Gex's Law and Practice of Bankruptcy, 2nd ed. 156; Ex parte Steward, 3 M. D. & D. 405; Ex parte Rolfe, 2 Dea. 421; 5 Com. Dig. tit. Officer, K, 11. (e) 2 P. & D. 336; Holland v. Phillips, 10 Ad. & El. 149, S. C. CH. IV.] Practice on Scire Facias by Assignees. It has been decided in a recent case-where a plaintiff recovered a verdict in an action of assumpsit for damages and costs, and after a fiat in bankruptcy had issued against the defendant, signed judgment, and afterwards proved the amount of the judgment debt under the commission, the bankrupt commissioners refusing to allow him to prove for the costs, judgment having been signed after the bankruptcy, and where no dividend was paid, nor did the bankrupt obtain his certificate-that the proof under the commission was an abandonment of the action under the 59th sect. of the 6 Geo. IV. c. 16, and the plaintiff could not therefore revive the judgment by scire facias in order to recover the costs. The Court of Queen's Bench accordingly granted a rule to stay proceedings on the scire facias (i). 169 It was formerly held to be sufficiently certain if the scire facias Practice on. by the assignees stated generally that the bankrupt creditor, after judgment recovered, became bankrupt within the true intent and meaning of the statutes, &c., and that his goods and effects were afterwards in due manner assigned to the plaintiffs as his assignees, without alleging that the plaintiff was declared a bankrupt, or how his effects were assigned (k). So a declaration in scire (f) Phillips v. Brown, 6 T. R. 282; Blandford and others v. Foote, Com. 138; Hurst v. Mead, 5 T. R. 365; Watts v. Hart, 1 B. & P. 134. (g) Deacon and De Gex's Law and Prac. of Bankruptcy, 2nd ed. p. 301. (h) Ibid. (i) Woodward and another v. Meredith, 2 D. & L. 135; Harley and another v. Greenwood, 5 B. & Al. 95. 45. (k) Winter v. Kretchman, 2 T. R. 170 Effect of provisions of acts relating to insolvents, c. 110. Sci. Fa. by Assignees on Judgment Debt of Insolvent. [Вê. II. facias by assignees of a bankrupt, averring his bankruptcy within the true intent and meaning of the several statutes, &c., and that a commission of bankrupt was duly awarded and issued against him, and that the plaintiffs were duly chosen assignees of his estate and effects under the said commission, and concluding with the prayer that execution may be adjudged to them "as assignees as aforesaid," was held sufficient on general demurrer, without stating that an assignment of the estate and effects of the bankrupt was made to the plaintiffs (7). But now, by the Bankrupt Law Consolidation Act (m), "all the personal estate and effects of the bankrupt, present and future," and all debts due and to be due to him, and the property, right, and interest in such debts, vest in the assignees by virtue of their appointment, and no deed of assignment of the bankrupt's estate and effects is required. If a bankrupt recover judgment, and afterwards sue out a scire facias to have execution, the defendant cannot plead the plaintiff's bankruptcy in bar of the action, if it occurred before judgment recovered, as he might have pleaded it to the original action, and such a plea to a scire facias, which does not aver with certainty whether the plaintiff became bankrupt before or after judgment recovered, is bad (n). Though such a plea, if sufficiently pleaded, where the bankruptcy has occurred after the judgment was recovered, would, it seems, be a good bar to the plaintiff's right to have execution on the judgment (o). We now come to consider the effect of the statutes relating to insolvent debtors, and the mode of recovering judgment debts due to insolvents. By the 1 & 2 Vict. c. 110, s. 35, a prisoner for debt petitioning the Insolvent Court to be discharged, and in his petition stating his willingness that all his real and personal estate and effects 1 & 2 Vict. shall be vested in the provisional assignee for the time being of the estate and effects of insolvent debtors; or by sect. 36, on any creditor of such person so applying (where the debtor, after being imprisoned twenty-one days, shall not have satisfied his creditors), -by sect. 37, all the real and personal estate and effects of such |