CH. IV.] Vesting of Insolvent's Property in Assignees. prisoner (excepting his wearing apparel and tools and implements of trade, not exceeding 201. in value), and all property to which he may become entitled before his final discharge, and all debts due or growing due to such prisoner, or to be due to him before such discharge, shall be vested in the provisional assignee for the time being of the estates and effects of insolvent debtors in England. c. 116. 171 By the Act for the Relief of Insolvent Debtors, the 5 & 65 & 6 Vict. Vict. c. 116, s. 1, upon the presentation of the petition of an insolvent (p), for protection from process, to the Court of Bankruptcy, (if he have resided twelve calendar months in London, or to the commissioners of bankrupt in the country within whose district he may have resided twelve calendar months,) with a true schedule and description of his debts annexed, it shall be lawful to a judge of the Court of Bankruptcy, or for such commissioner in the country, to give a protection to the petitioner from all process against either his person or his property, and all the estate and effects of the petitioner shall forthwith become vested in the official assignee, who shall be nominated by the commissioners acting in the matter of the said petition; and such official assignee shall and may forthwith take possession of so much thereof as can be reasonably obtained and possessed without suit. By sect. 7, on the passing of the final order, the petitioner's whole estate and credits vest in the assignees chosen by the creditors; and by sect. 9, the insolvent's assignees shall be entitled to claim and demand from him, at any time after the passing of the final order for his protection, any estate and effects acquired by him, at any time after such order shall have been made, and all such estate and effects vest in them upon their filing a copy of their claim, served upon the insolvent; but no assignee shall be authorized to take possession of any such estate and effects, except under the authority of a commissioner, or of the Court of Review in Bankruptcy, to the extent that they may order. c. 96. And by sect. 4 of the 7 & 8 Vict. c. 96 (q), it is enacted, "that 7 & 8 Vict. the property of the petitioner shall, for the purposes of the said recited Act (5 & 6 Vict. c. 116), and of this Act, vest in the assignee or assignees for the time being, by virtue of the appointment of such assignee or assignees." "Provided always, that the (p) I. e., "of a person not being a trader within the meaning of the statutes now in force relating to bankrupts, or being such trader, but owing debts amounting in the whole to less than 3007." (4) "An Act to amend the Law of Insolvency, Bankruptcy, and Execution." 172 Practice as to scire facias in cases of and insol In the Case of a Bankrupt Joint-stock Company. [Bк. II. property of the petitioner shall, in every case, be possessed and received by the official assignee alone, save where it shall be otherwise directed by the commissioner." Sect. 11 vests all powers which the petitioner could legally execute for his own benefit in his assignees, and sect. 13 enables the assignees to sue in their own names for the recovery of any rights or property of the petitioner. On these statutes the practice as to issuing a scire facias by the assignees, to make themselves parties to a record, to have execubankruptcy tion of a judgment previously obtained by an insolvent, appears to be the same as in the case of bankruptcy (r); and most of the decisions relative to actions by the assignees of a bankrupt are applicable to actions by the assignees of an insolvent debtor (s). vency the same. Scire facias in case of a bankrupt joint-stock company. In Williams v. Chambers (t) it was decided that the value of the personal labour of an insolvent, after the vesting order by the Court, does not pass to the assignee appointed under the provisions of the 1 & 2 Vict. c. 110, s. 37, as he cannot let the insolvent out to hire and contract for his personal labour. Where a joint-stock company has become bankrupt, and its affairs are being wound up under the provisions of the 7 & 8 Vict. c. 111, 9 & 10 Vict. c. 28, and 11 & 12 Vict. c. 45, a scire facias would seem to be necessary, to enable the "official manager" appointed under sects. 20 and 22 of the latter statute (in whom, on his appointment, the estate, effects, credits, and rights of action vest, by virtue of his appointment (u),) to have execution of a judgment already obtained by the bankrupt company, and to which the "official manager" was no party (v). But it does not appear to be yet settled in what manner the Courts will allow an unpaid creditor of such a company to issue execution against the persons liable to contribute, should he be unable to obtain satisfaction of (r) Chitty's Arch. Prac. 8th ed. 1021. (s) 1 Chitty's Plead. 6th ed. 27; Swan v. Sutton, 10 Ad. & E. 625. (t) 10 Q. B. 340; and see Chippendale v. Tomlinson, 4 Doug. 318; 1 Cook's Bank. Laws, 342; Hesse v. Stevenson, 3 B. & P. 565, 578; Ex parte Walters, 2 M. D. & De Gex, 635. (u) Sects. 29 and 30. · (v) Sed quære, whether a suggestion would not be sufficient, the "official manager" being but a nominal party; see ante, pp. 104, 116; and Bosanquet v. Ransford, 11 Ad. & E. 520; Webb, P. O., v. Taylor, 1 D. & L. 676 ; and Barnewall, P. O., v. Sutherland, 1 L. M. & P. 159. And although the "official manager," would be a "new party" on the record, yet he would "neither derive a benefit by, nor become chargeable to the execution," within the terms of the rule laid down in Penoyer v. Brace, see ante, p. 99. CH. IV.] Against future Effects of Insolvent. 173 his debt from the fund of the contributories vested in the Master in Chancery (w). cias neces future insolvent. It has been seen that, under the 87th sect. of the Insolvent No scire faAct (x), no scire facias is necessary to revive the judgment on the sary against warrant of attorney executed by an insolvent before adjudication. effects of Under that section of the statute execution may at all times issue thereon, by virtue of the order of one of the superior Courts in which such judgment shall have been entered up, "if it shall appear, to the satisfaction of the said Court, that such prisoner [insolvent] is of ability to pay such debts, or any part thereof, or that he is dead, leaving assets for that purpose," for "such sum as, under all the circumstances of the case, the said Court shall order; such sum to be distributed rateably amongst the creditors" (y). For references to the forms, see post, Appendix (z). (w) See ante, p. 153; and Thompson v. The Universal Salvage Company, 3 Exch. 318. (x) 1 & 2 Vict. c. 110. (y) See ante, book i. ch. vii. p. 88. OF SCIRE FACIAS IN CASE OF THE DEATH OF ONE OF SEVERAL PLAINTIFFS OR DEFENDANTS, AND ALSO IN THE CASE OF THE DEATH OF A SOLE PLAINTIFF OR DEFENDANT. Of the Necessity of issuing a Writ of Scire Facias in case of the Death of a Plaintiff or Defendant in an Action, in order to have Execution of the Judgment, P. 175. Of the Doctrine of Survivorship where there are several Plaintiffs or Defendants, and one dies, p. 175. Arrangement of the Subject of the Chapter, p. 176. Where one of several Plaintiffs or Defendants has died pending a Suit, p. 176. Scire Facias on the Death of one of several Plaintiffs or Defendants not necessary in a Personal Action, p. 177. The Doctrine of Survivorship does Scire Facias against Survivor and ant has died pending a Suit, p. The Stat. 17 Car. II. is not confined to Actions which would have survived to the Personal Representative, p. 180. Nor does it apply to Cases of Non Where the Death of the Plaintiff or Defendant happens after Verdict and before Judgment, p. 183. Entering Judgment nunc pro tunc, p. 184. When the Death of the Plaintiff or Defendant happens before Interlocutory Judgment, p. 186. When the Death of the Plaintiff or Defendant happens after Interlocutory and before Final Judgment, p. 186. Form of the Writ, p. 187. necessary, p. 188. What the Executor may plead, p. 189. Where a sole Plaintiff or Defendant has died after Final Judgment and before Execution, p. 189. Scire Facias by Administrator durante minore Etate of an Executor, p. 191. No Scire Facias necessary where the Death of the Judgment Creditor happens after the Debtor is charged in Execution, p. 192. Where the Defendant seeks to obtain his Discharge as an Insolvent, the Plaintiff having died, p. 193. Writ of Execution issued in the Lifetime of the Judgment Creditor valid after his Death, P. 193. Of Scire Facias against an Executor, p. 193. Declaration by Executors and Administrators, p. 194. CH. V.] In Case of the Death of Plaintiff or Defendant. 175 What may be pleaded by them, p. ! 194. Evidence under Plea of plene ad ministravit, p. 195. The Scire Facias must pursue the fendant has died, after Judg Of Administration de Bonis non, Scire Facias against Administra- cessity of writ of scire case of the plaintiff or in an action have execu Terms of the Judgment, p. 196. Where the Executor or Administrator of a sole Plaintiff or DeTHE necessity or otherwise of issuing a writ of scire facias in of the necase of the death of a plaintiff or defendant in an action, depends issuing a in some cases upon statutory enactments, which prevent the facias in the suit from abating (a); and in all cases, when necessary, upon death of a the general rule of law which has been already set forth in the defendant first chapter of the second book (6), "that in all cases where a in order to new person, who was not a party to a judgment or recognizance, tion of the derives a benefit by, or becomes chargeable to the execution, judgment. there must be a scire facias to make him a party to the judgment" (c). In the case of the death, therefore, of a sole plaintiff or defendant, after judgment interlocutory or final, the legal representatives of such plaintiff or defendant, deriving a benefit by, or becoming chargeable to the judgment, being strangers to the record, require a scire facias to issue, to make them privy to the judgment (d), in order that the execution by which they are to be benefited or charged, may be warranted by the judgment (e), and that the record may be consistent with itself. Where there are several plaintiffs or defendants in a per- of the docsonal action, and one of them dies after judgment, and before vivorship the nature of the execution is changed; trine of sur |