Defendants.]-Where the defendant is a British subject, and resides in Scotland or Ireland, he cannot be sued in this country, but the plaintiff can only sue him in the courts of Scotland or Ireland respectively. Where, however, the defendant is a British subject, and resides anywhere out of the jurisdiction, except in Scotland or Ireland, if the cause of action arose within this jurisdiction, he may be served with the writ of summons while abroad, and in certain cases judgment may be obtained, as stated ante, p. 105. And where a defendant so served has entered appearance, he cannot apply to the court afterwards to set aside the writ, and all subsequent proceedings, for he has attorned to the jurisdiction; but perhaps he might apply to set aside the appearance, if improvidently made.(1) Where the defendant resided abroad when the cause of action accrued, the plaintiff may bring the action any time within six years after the defendant's return; but if he chooses to sue the defendant before his return, he is not prevented from doing so.(2)

Foreign law. (3)]-When foreign law requires to be pleaded, it is not necessary to set out the law abstractedly, and then the facts, but it is enough to make general averments, stating substantially the ground of action or defence according to the foreign law. () The mode of proving foreign law at the trial is not by producing copies of foreign law books, or statutes, or codes, but by calling witnesses who are experts, i. e. specially skilled in the law of the particular country.(5) Where witnesses reside out of the jurisdiction, they may either be examined by commission or mandamus, or induced by consent and agreement to attend at the trial.() Where the witness resides in Scotland or Ireland, he may be compelled by subpoena to attend the trial here, provided the leave of the court has been previously obtained, see ante, p. 264. The rule for this purpose is absolute in the first instance.(7)

(1) Forbes v. Smith, 10 Exch. 717. (2) Ibid. 11 Exch. 161.

Where a contract is made abroad to be enforced here, see as to the effect of the Statute of Frauds, and as to the law generally, Leroux v, Brown, 12 C. B. 801.

Gould v. Webb, 4 E. & B. 933.

(3)_Sussex Peerage case, 11 Cl. & Fin. 114; Baron De Bode's case, 8 Q. B. 208.

(*) See ante, "Means of Evidence."

Who to sue.]-The adjudication of bankruptcy vests in the assignees the whole real and personal estate which the bankrupt had or was entitled to for his own benefit, either in possession, remainder, or reversion, as also all property which may come to him before his certificate; and the assignees must sue for the outstanding debts in their own names.(1) In general they may sue for all choses of action of the bankrupt, or breaches of contract committed before the bankruptcy, or on contracts completed by them after the bankruptcy.(2) Where the cause of action, however, arises mainly from some injury or contract connected with the person, it is often a question of nicety whether, and to what extent, the right of action passes to assignees. (3) Where a member of a partnership becomes bankrupt, the assignees

Bankr. L. Cons. Act, 1849; 12 & 13 Vict. c. 106, ss. 141, 142. (2) Whitmore v. Gilmour, 12 M. & W. 808; Hill v. Smith, Id. 618; Alder v. Keighley, 15 M. & W. 107; Gibson v. Carruthers, 8 M. & W. 331.

(3) Drake v. Beckham, 11 M. & W. 315; 2 H. L. C. 579; Rogers v. Spence, 13 M. & W. 571; 12 Cl. & F. 700; Brewer v. Dew, 11 M. & W. 625; 1 D. & L. 383; Elliott v. Clayton, 16 Q. B. 581; see also Boddington v. Castelli, 1 E. & B. 879.

may apply to the Court of Bankruptcy for authority to commence an action in the name of themselves and the other partner against any debtor of the partnership; but they must give notice to such other partner of the application, and, if necessary, indemnify him against payment of costs in respect of such action. (1) In all cases, where the assignees sue in right of the bankrupt, they must first apply to the Court of Bankruptcy for leave to do so, otherwise they will not be entitled out of the proceeds of the estate to be allowed any costs they may incur.(2) If the bankrupt is uncertificated, when he enters into a contract, he may sue on it, subject to the right of the assignees to interfere; but he is, nevertheless, entitled to recover for his own personal labour, though the assignees may claim what does not come under that character. (3) Where the goods are in "the order and disposition" of the bankrupt, the assignees must apply to the Court of Bankruptcy for an order to sell the same (such order specifying the particular goods to be sold) (*) before they can sue for the goods; and, on obtaining the order, their title refers back to the date of the act of bankruptcy.($) The estate does not absolutely vest in the official assignee on an order being made under the arrangement clauses of 12 & 13 Vict. c. 106, s. 211, et seq.(®)

If assignees have not been appointed by the creditors, the official assignee may, it seems, sue in his own name. ·(2) Where an action is brought in the name of the official assignee without his authority, he is entitled to be indemnified against the costs. (8) When assignees are appointed by the creditors, all, including the official assignee, must join in the action; (9) and the objection of nonjoinder in an action ex contractu should be taken not by plea in abatement, but

(1) 12 & 13 Vict. c. 106, s. 152.

(2) Ibid, s. 153.

(3) Herbert v. Sayer, 5 Q. B. 965; Williams v. Chambers, 16 L. J., 230 Q. B.; Crofton v. Poole, 1 B. & Ad., 568; Elliott v. Clayton, 16 Q. B. 581.

(*) Quartermaine v. Bittlestone, 13 C. B. 133.

(5) Heslop v. Baker, 6 Exch. 740; 8 Exch. 411.

(Lewis v. Collard, 14 C. B. 208.

(†) Dunn v. Hill, 11 M. & W. 470; 2 Dowl. N. S. 1062; Cannan v. South Eastern Railway Company, 21 L. J. 257, C. P.; Page v. Bauer, 4 B. & Ald. 345.

(*) Laws v. Bott, 16 M. & W. 300; 4 D. & L. 559.

(9) Snellgrove v. Hunt, 1 Chit. R. 71; 2 Stark. 424; Holland v.

by way of traversing the allegation that the plaintiffs are assignees.(1)

Writ of summons and declaration.]—The writ of summons need not describe the plaintiffs as assignees. The declaration is as in ordinary cases, and varies only in part of the

Form of Declaration.

E. F., G. H., and O. A., assignees of the estate and effects of A. B., a bankrupt, according to the form of the statutes in force concerning bankrupts by P. A., their attorney, sue, &c.

And the

Affidavit to hold to bail.]-If the assignees find it necessary to hold the defendant to bail, the following is the

Form of Affidavit to hold to Bail.

In the Q. B., ["C. P." or Exch. of P."]

Between E. F., G. H., and O. A., assignees of the estate
and effects of A. B., a bankrupt, plaintiffs, and
C. D., defendant.

I, E. F., of , one of the above-named plaintiffs, make oath and say that C. D., the above-named defendant, is justly and truly indebted to me and the above-named G. H. and O. A. as assignees of the estate and effects of the said A. B., a bankrupt, in £ [state cause of action], as appears by the books of the said A. B., and as I verily believe.

for

Defence.]-If the bankrupt sue in his own name on a cause of action which has passed to his assignees, the defendant must plead that the plaintiff is a bankrupt. Where, however, he sues on a contract entered into when an uncertificated bankrupt, a plea of the plaintiff's bankruptcy constitutes no defence, unless it contains an averment that the assignees have interfered. (2) "In all actions by assignees of a bankrupt, the character in which they are stated on the record to sue shall not be considered as in issue, unless specially denied."(3) Such a special plea puts in issue not merely the plaintiffs' appointment as assignees, but also

(1) Jones v. Smith, 1 Exch 831.
(2) Herbert v. Sayer, 5 Q. B. 965.
(3) Rule Pl. 5 T. T. 1853.

their title, i. e. the petitioning creditor's debt, the act of bankruptcy, and trading. (')

Notice of disputing the act of bankruptcy.]-"In any action other than an action brought by the assignees for any debt or demand, for which the bankrupt might have sustained an action, had he not been adjudged bankrupt, and whether at the suit of or against the assignees, or against any person acting under the warrant of the court for anything done under such warrant, no proof shall be required at the trial of the petitioning creditor's debt, or of the trading, or act of bankruptcy, respectively, unless the other party in such action shall, if defendant, at or before pleading, and if plaintiff, before issue joined, give notice in writing to such assignee or other person that he intends to dispute some and which of such matters; and in case such notice shall have been given, if such assignees or other person shall prove the matter so disputed, or the other party admit the same, the judge before whom the case shall be tried may (if he think fit) grant a certificate of such proof or admission; and such assignees or other persons shall be entitled to the costs occasioned by such notice, and such costs shall, if such assignees or other person shall obtain a verdict, be added to the costs, and if the other party shall obtain a verdict, shall be deducted from the costs which such other party would otherwise be entitled to receive from such assignees or other person."(2) The notice here referred to must specify which of the above particulars the defendant means to dispute; for it is too general to say, he will dispute "the bankruptcy."(3) The notice must be given, notwithstanding defendant pleads a plea expressly disputing the bankruptcy.() The notice should be delivered with the plea; and, if it has not been then or previously delivered, the defendant should apply to a judge at chambers for leave to withdraw the plea, that it may be re-delivered with the notice.(5)

(1) Butler v. Hobson, 4 Bing. N. C. 301; Buckton v. Frost, 1 P. & D. 102; 8 A. & E. 844.

(*) 12 & 13 Viet. c. 106, s. 234. The trial of a feigned issue is not within this clause, Lott v. Melvill, 3 Sc. N. R. 346, 9 Dowl. 882; but an action of ejectment by an assignee is. Doe d. Johnson, v. Liversedge, 11 M. &. W. 517.

(3) Trimley v. Unwin, 6 B & C. 537; Porter v. Walker, 1 Sc. N. R. 568; Hernaman v. Barber, 15 C. B. 774; 14 C. B. 583. (4) Moore v. Raphael, 7 C. & P. 115.

(5) Folks v. Scadder, 3 C. & P. 232; Butcher v. Addison, 1 Sc.