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HALL v. McPHERSON. 537
Hence it may be regarded as a general rule, that in all eases
where a debtor has, before the institution of a suit by or against
him, been finally discharged under the insolvent law, he cannot be
allowed to sue or be made a party to a suit in respect to any pro-
perty which has been rightfully transferred in pursuance of the in-
solvent law for the benefit of his creditors; because having parted
with all his interest therein, he has thereby divested himself of all
capacity to sue or be sued in relation to any such property. But
where a debtor has, pending a suit to which he is a party, been
finally discharged under the insolvent law, other principles 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, (o) It is also laid down, that the
insolvency of the defendant does not, of itself, abate any action at
common law. (p)
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 Of
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, (g) These
provisions seem to be confined to actions at common law; and
also to such cases of that description only in which the plaintiff,
King v. Martin, 2 Ves., jun., 641; Williams v. Kinder, 4 Ves. 387; Benfield w. Sol-
omons, 9 Ves. 83; Saxton v. Davis, 18 Ves. 81; Whitworth v. Davis, 1 Ves, & B.
548; Lowndes v. Taylor, 1 Mad. Rep. 422 5 Mackworth v. Marshall, 5 Cond. Cha.
Rep. 157; Piercy v. Roberts, 6 Cond. Cha. Rep. 469; Barton v. Jayne, 9 Cond.
Cha. Rep. 461. —(o) Monke v. Morris, 1 Mod. 93; Hewit v. Mantell, 2 Wils. 372;
Kretchman v. Beyer, 1 T. R, 468; Winter v. Kretchman, 2 T. E. 45; Waugh v.
Austen, 3 T. E, 437; Kitchen v. Bartsch, 7 East. 63. -(p) Hewit v. Mantell, 2 Wils.
374. —(q) 1805, ch. 110, s. 8; 1827, ch. 70, s. 2. —Some further provisions hare 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: ft suit
instituted by or against such trustee, by the act of 1833, ch, 173.
68 v. 3
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