Penniman v. Norton — 5 Sarat. Ch. Sent. 50

Majority

p. 50

Sylvanus J. Penniman et al v. Isaac M. Norton et al.

W. D. White, for complainants ;

N,. Hill, Jun., for defendants.

Headnote

Partees.

. . ,. solventdefend-

Representa-ceasecf defendant-

When a suit nSfagainst »n" bankrupt, after his dig-«barge.

Application by complainants for leave to proceed in this suit against the surviving defendants, notwithstanding the death of Me Neil, one ot the original defendants and one ' of the judgment debtors of complainant, Norton and Bartfe, the other two judgment debtors bad been discharged under he bankrupt act.

The chancellor decided that although it appeared by affidavit that all the iudgment debtors were insolvent when the hill was filed, that afforded no excuse foi proceeding in the cause without bringing before the court those who have subsequently succeeded to their rights in the property which they had’ai the commencement of the suit.

That if the defendants, Norton and Bartle,. had no property which could pass to the assignee in bankruptcy subject to the complainants claim, or if Me Neil had an interest in any property which could pass to his personal representatives or heirs subject to such claim, the fact should have been distinctly stated in the complainants affidavit; to excuse them from bringing the assignee in bankruptcy before the court in the one case, or the representatives of McNeil, in the other.

That a suit cannot be further proceeded in against a de. fen^arlt> after he has obtained a regular discharge as a bankrupt ; unless the complainant intends to contest the validity , J of such discharge, for the purpose of obtaining a personal decree against the bankrupt That in such a case the prop. er course for the complainant is to file a supplemental bill, stating the commencement of the original suit, the subsequent decree in bankruptcy, the discharge of the bankrupt, and the facts upon which that discharge is claimed to he void and: in

p. 51

operative; and making the assignee, as well as the bankrupt^ parties to such bill.

¡,⅜ signee of banb-

Purchaser from assignee aneesa. party"

Or, if the complainant merely wishes to proceed against the property which has passed to the assignee in bankruptcy, subject to his prior claim thereon, he should revive the sort against the assignee alone — stating the discharge of the bankrupt, as a ground forproceedingnofaTtberm the suit against him as a party.

And that where the assignee in bankruptcy has sold alibis . * interest in the- subject matter of the litigation before the mencement of the proceedings against him to revive and tinue the suit, that fact should be stated; and the purchaser should in that case be made a party to the suit, instead of the assignee.

Application denied, with $10 costs; but without prejudice to their right to file such a bill to revive and continue the proceedings as they may be advised is proper.