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538 HALL v. McPHERSON.
or he who must otherwise have been the plaintiff, ban been finally
discharged under the insolvent law. There is, however, mo legisla-
tive enactment prescribing any mode by which a trustee of an in-
solvent plaintiff may be allowed to come in, and prosecute a suit
which the insolvent had previously instituted; or by which a trus-
tee of an insolvent defendant may be allowed to come in and make
defence 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 come 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 the
trustee time to sue out a scire facias for the purpose of having the
matter in controversy regularly determined, (r)
The insolvent law has no distinct provision whatever in relation
to any kind of suit in equity to which an insolvent may be a party,
and which may be depending at the time of his final discharge*
But, although in equity as at law, a party to a then depending suit
may, by his having obtained the benefit of the insolvent law, be
thereby deprived of all right to the property in litigation held or
claimed in his own right, and not as trustee or in right of another,
and have been so, apparently, entirely divested of his capacity to
sue or be sued in relation to it; yet here, as at law, such a dis-
charge does not, as in the case of death, operate as an abatement
of the suit. Upon the ground, as it would seem, that a discharge
under the insolvent law operates only as a transfer of the insol-
vent's interest for the benefit of his creditors; but does not, as in
case of death, effect a total prostration and extinction of all his
rights. Hence, although an insolvent discharge cannot be said to
be strictly an abatement of the suit, yet, that circumstance renders
it as defective as if it had abated by death; which defect, when
made known to the court, must be remedied before the suit can
proceed. The proper mode of reinstating a suit in equity, in
such cases, is by a supplemental bill in the nature of a bill of re-
vivor. So that, in general, upon the find discharge under the
insolvent law of a plaintiff or defendant being suggested upon the
record, the case may be ordered to stand over, with notice to the
(r) Hewit v.. Mantell, 2 Wils. 372.
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