CH. III.] Scire Facias for Husband, on Debt due to Wife. wife. 161 she marry before execution, there should regularly be a scire facias against the to revive it against her and her husband (a) in order to charge the husband (b); for otherwise, if the wife die before the suing out of execution, the husband will be discharged from the demand (c). If execution be taken out on the judgment without making the husband a party by scire facias in order to charge him, it must follow the judgment and be against the wife alone (d); and the capias shall be awarded against her only, and not against her husband (e). scire facias against and wife on for judgment recovered by the wife In the case of Woodyer v. Gresham (ƒ) it was held, that if Effect of execution be awarded to the husband and wife on a judgment by or obtained by the wife dum sola for her own proper debt, the hus- husband band alone may have a scire facias after his wife's death (g); although the award of execution does not alter the nature of the or against debt, yet it alters the property and vests it in the husband jointly whilst sole. with his wife, and the debt survives (h). And, in like manner, if judgment be obtained against a feme sole and she marry, and then the plaintiff sue out a scire facias against husband and wife and have judgment quod habeat executionem against both, and after a year and a day the wife die, the plaintiff may sue out a scire facias, and have execution against the husband (i). But if the husband has not been made party to the judgment by scire facias in the lifetime of the wife, he cannot after her death issue a scire facias on the judgment (under 8 & 9 Will. III. c. 11, s. 8) to have execution of arrears of an annuity due in her right. Not having been made a party to the record, he can only recover the debt as administrator to his wife (k). (a) 2 Tidd's Prac. 8th ed. 1166. (b) Cooper v. Hunchin, 4 East, 520. "Because the execution must follow the judgment." (c) 2 Roper on Husband and Wife, 2nd ed. 73. (d) Cooper v. Hunchin, 4 East, 521; Thorpe v. Caroline Argles, 1 D. & L. 831; 3 Bla. Com. 414; Doyley v. White, Cro. Jac. 323; Moo. 704; Cro. Car. 513; Wilkins v. Whetherill, 3 B. & P. 220; King and Wife v. Jones, 2 Stra. 811, and see note (g), ante, p. 159. (e) 3 Bla. Com. 414. (f) 1 Salk. 116; Carth. 415; Comb. 455; Skin. 682, S. C.; Bac. Abr. tit. Scire Facias, C, 6. (g) Where the debt recovered was personalty, a scire facias on the death of the wife would seem not to be required, according to the cases, as the husband would be entitled to execution by survivorship. See Gabriel Nule's case, 1 Mod. 178; Obrian v. Ram, 3 Mod. 189; 2 V. Wms. Saund. 72 1, n. (h) See 2 Roper on Husband and (i) 2 Tidd. Prac. 1167, 8th ed.; M 162 The venue of the mar riage need not be alleged. In a scire facias by baron and feme, upon a judgment recovered by the feme dum sola, the plaintiff's should state their marriage, though they need not allege it with a venue, that being only matter of surmise to which no venue is necessary (1). See references to the forms, post, Append. (m). (1) 2 Tidd's Prac. 2nd ed. p. 1167; Blake v. Astrill, 2 Stra. 775; 2 Ld. Raym. 1504, S. C.; 1 Barnard. K. B. 16; 2 H. Bla. 145; Neal and others v. Garay and another, 7 T. R. 243. (m) See Chitty's Forms, 6th ed. p. 478. CH. IV.] 163 CHAPTER IV. SCIRE FACIAS IN CASES OF BANKRUPTCY OR INSOLVENCY. Effect of 6 Geo. IV. c. 16, P. 163. P. 164. Scire Facias to make Assignees Bankrupt a Trustee for his As signees, p. 168. Scire Facias against Bankruptcy Amendment of Scire Facias, p.168. Practice on p.168. p. 169. Effect of Provisions of Acts relating to Insolvents. 1 & 2 Vict. c. 110, p. 170. 5 & 6 Vict. c. 116, p. 171. 7 & 8 Vict. c. 96, p. 171. Practice as to Scire Facias in Cases of Bankruptcy and Insolvency, the same, p. 172. Scire Facias in Case of a Bankrupt Joint-stock Company, p. 172. In treating of the writ of scire facias in cases of bankruptcy and insolvency, when required to have execution on a judgment obtained by a bankrupt or insolvent prior to his bankruptcy or insolvency, the right to have the fruits of which has vested in the bankrupt's or insolvent's assignees, it will be advisable to consider the various statutes affecting each separately. Geo. 4, . Formerly by the 6 Geo. IV. c. 16, s. 63, the commissioners of Effect of 6 bankruptcy were to assign to the assignees for the benefit of the 16. creditors of the bankrupt "all debts due or to be due to the bankrupt wherever the same might be found or known," which assignment vested the property, right, and interest in such debts in such assignees, and after such assignment neither the bankrupt nor any person claiming through or under him had power to recover, or to release, or discharge the same, and the assignees had the like remedy to recover the same in their own names as 164 4, c. 56. of the Bank rupt Law Consolidation Act, 12 & 13 s. 141. Vesting of Bankrupt's Estate in Assignees. [BK. II. 1 & 2 Will. the bankrupt himself had before his bankruptcy. By the 1 & 2 Will. IV. c. 56, ss. 25 and 26, there was a similar provision, vesting all the personal and real estate and effects, present and future, of any person adjudged a bankrupt in the assignees of such bankrupt for the time being by virtue of their appointment (a). And now by the Bankrupt Law Consolidation Act (6) Provisions it is enacted, "That when any person shall have been adjudged a bankrupt (c), all his personal estate (d), effects, present and future, wheresoever the same may be found or known, and all property Vict. c. 106, which he may purchase, or which may revert, descend, be devised or bequeathed, or come to him, before he shall have obtained his certificate, and all debts due or to be due to him wheresoever the same may be found or known, and the property, right, and interest in such debts shall become absolutely vested in the assignees for the time being for the benefit of the creditors of the bankrupt by virtue of their appointment, and after such appointment neither the bankrupt nor any person claiming through or under him shall have power to recover the same, nor to make any release or discharge thereof; neither shall the same be attached as the debt of the bankrupt by any person according to the custom of the City of London or otherwise, but such assignees shall have like remedy to recover the same in their own names as the bankrupt himself might have had if he had not been adjudged bankrupt." (a) See 1 Deacon and De Gex's Law v. Beckham, 11 M. & W. 315; Smith v. Coffin, 2 H. Bla. 451; Raymond v. Fitch, 2 C. M. & R. 588); debts due to the bankrupt, and the damages to be recovered by him for the breach of contracts relative to the bankrupt's personal estate and which affect its value, pass as personal estate to the assignees, Hill v. Smith, 12 M. & W. 630. (b) 12 & 13 Vict. c. 106, s. 141. (c) As to which see ss. 101, 211. (d) The words "personal estate include all choses in action, trespass for injury to property, real or personal, trover for goods, &c., actions on contracts (if the assignees choose to adopt them), and all actions for an injury to the property of the bankrupt, which has had the effect of deteriorating its value in the hands of the assignees, Archbold's Bankrupt Law Consolidation Act, p. 30. CH. IV.] Debts due to Bankrupt, how recovered. Section 142 vests all the bankrupt's real estate, present and future, in the assignees in the same manner by virtue of their appoint ment. Section 155 discharges any debtor who pays any debt claimed by the assignees of a bankrupt from all demands or claims which may be made in respect of the same by any person adjudged a bankrupt or claiming under him, even although the fiat be afterwards superseded, or the adjudication of bankruptcy, or petition for adjudication, be afterwards annulled or dismissed. All actions, therefore, for the recovery of debts due to the bankrupt brought after his bankruptcy must be commenced by and in the name of his assignees, and by section 153 of the Bankrupt Law Consolidation Act this must be "with the leave of the Court first obtained, upon application to such Court, but not otherwise." And though the bankruptcy of the plaintiff after action brought has been held not to be an abatement of the suit (e), and the action may be continued by the assignees in the name of the bankrupt (ƒ), yet the plaintiff by becoming bankrupt has disabled himself from continuing the suit, and his bankruptcy, if pleaded in bar to the further maintenance of the action, or puis darrein continuance, is a good defence (g), for where a defendant has a day in Court to plead and the means likewise of pleading the plaintiff's bankruptcy the Court cannot refuse to give effect to a legal defence of this nature (h). The safest course therefore, in such a case, would be to discontinue the proceedings in the name of the bankrupt, and for the assignees to bring a fresh action in their own names (i); for, if the defendant plead the bankruptcy, the plea will be good, notwithstanding the plaintiff reply that the proceedings are continued by the assignees in the name of the plaintiff for the use and benefit of the plaintiff's creditors, and not for the use of the 631; per Littledale, J. Biggs v. Cox, (h) 1 Deacon and De Gex's Law and (i) Deacon and De Gex's Law and Practice of Bankruptcy, 2nd ed. 806; Barnes v. Maton, cited 15 East, 631; 1 Chitty on Pleading, 6th ed. 23; Biggs v. Cox, 4 B. & C. 920. 165 |