526 HALL ». McPHERLON.—3 BLAND.

ciples arise which have occasioned some perplexity at law as well
as in equity.

It seems to be well settled in England, that a discharge and as-
signment under the insolvent law does not, of itself, operate as an
abatement of any action at common law which may have been
previously instituted by the insolvent; because, although the dis-
charge and assignment do legally divest him of all property claimed
by such action, and transfer it to his trustee for the benefit of his
creditors; yet the insolvent may well be allowed to proceed with
the prosecution of the suit for the benefit of his creditors until the
trustee interferes and claims adversely to him, in which case, he
will not be allowed to recover that which is in law the property of
the trustee, and is claimed as such. Monke v. Morris, 1 Mod. 93;
Hewit v. Mawtell, 2 Wils, 372; Kretchman v. Beyer, 1 T. R. 463;
Winter v. Kretchman, 2 T. R. 45; Waugh v. Austen, 3 T. R. 437;
Kitchen v. Bartsch, 7 Ea,st, 63. It is also laid down, that the in-
solvency of the defendant does not, of itself, abate any action at
common law. Hewit v. Mantell, 2 Wils. 374.

By our insolvent law it has been declared, that the trustee of the
insolvent's estate may, in his own name or in that of the applicant,
sue for, collect and recover all debts, demands and property due or
belonging to the applicant and assigned by him to such trustee;
and that such trustee may also prosecute to judgment any suit
commenced by the applicant before his appointment. 1805, eh.
110, s. 8; 1827, ch. 70, s. 2. (b) These provisions seem to be con-
fined to actions at common law; and also to such cases of that de-
scription only in which the plaintiff, * or he who must other-
538 wise have been the plaintiff, has been finally discharged
under the insolvent law. There is, however, no legislative enact-
ment prescribing any mode by which a trustee of an insolvent
plaintiff may be allowed to come in, and prosecute a suit which
the insolvent had previously instituted; or by which a trustee of
an insolvent defendant may be allowed to come in and make de-
fence in a pending suit, the recovery in which may be of no con-
sequence to the insolvent; but which may greatly reduce the divi-
dends of his creditors. According to the course of the Courts of
common law here, as in England, the trustee of an insolvent plain-
tiff has always been permitted to couie in at any time and claim
for the benefit of his creditors, either on motion, or by scire facias.
The most usual course seems to be to come in on motion; but if
the claim of the trustee, as such, be questioned, then the Court
will intercept or stay the paying over of the proceeds so as to give

(b) Some further provisions have been since made as to the continuance of
suits where a change is made of a permanent trustee of an insolvent debtor
of the City and County of Baltimore, pending a suit instituted by or against
such trustee, by the Act of 1833, ch. 173.