A motion for leave to prosecute the suit in the name of the bankrupt, for the benefit of the assignee, should be denied, because the bankrupt, by his bankruptcy, becomes civiliter mortuus, and can no longer sue either for himself or another. All his rights of property pass by the assignment to the assignee, in whose name alone can the suit be prosecuted. Cannon v. Welford, 22 Gratt. 195; Lacy v. Rockett, 11 Ala. 1002. Contra, Noonan v. Orton, 12 B. R. 405; s. c. 34 Wis. 259.

An assignee upon filing a duly certified copy of the assignment, may on notice to the plaintiff have a pending action entered to his use. Cottrell v. Mann, 1 W. N. 157.

If the plaintiff is declared a bankrupt after the commencement of a suit, the court may instruct the jury, if they find for the plaintiff, to find their verdict in the name of the plaintiff for the use of his assignee in bankruptcy. The verdict and judgment will be a sufficient protection to the defendant, and it is not a matter of concern to him who gets the money. Woodall v. Holliday, 10 B. R. 545; s. c. 44 Ga. 18.

A decree entered after the bankruptcy of the complainant is void, and can not be enforced by an attachment, for the suit thereby became defective. Springer v. Vanderpool, 4 Edw. Ch. 362.

The assignee may be admitted to prosecute the suit in his name, although third persons have an interest in the claim. Hammond v. Rice, 18 Vt. 353.

The assignee may prosecute a pending action in his own name, although it is pending in a State court. Ames v. Gilman, 51 Mass. 239. If the suit is continued without exception in the name of the bankrupt, the defendant can not ask the court to instruct the jury, that if they render a verdict against him it must be for the use of the assignee. Southern Express Co. v. Connor, 12 B. R. 53; s. c. 49 Ga. 415.

The suit is not abated by the substitution of the plaintiff's assignee. Wise v. Decker, 1 Cranch C, C. 190; Hammond v. Rice, 18 Vt. 353.

The substitution of the assignee, when actually made, relates back to the commencement of the proceedings in bankruptcy. Browne v. Ins. Co., 4 Yeates, 119.

The State court can not proceed to hear and decide a case for the specific performance of a contract to convey land, if the vendor becomes bankrupt after the commencement of the suit, unless the assignee is made a party. Swepson v. Rouse, 65 N. C. 34.

The assignee is the only person who can move to set aside an execution after the judgment debtor is declared bankrupt. Maris v. Duren, 1 Brewst. 428; s. c. 6 Phila. 327.

When the assignee seeks to be made a party defendant to an action brought to recover the possession of property alleged to have been wrongfully taken and converted by the bankrupt, he should show that he has some right to the property in controversy. A motion which does not set forth such a right will be dismissed. Gunther et al. v. Greenfield et al., 3 B. R. 730; s. c. 8 Abb. Pr. (N. S.) 191.

Where property of the bankrupt has been sold, and the proceeds paid to the complainant under a decree which is subsequently reversed, the

complainant can not defeat a motion for an order directing a repayment of the money by dismissing the bill before the assignee becomes a party. Kane v. Pilcher, 7 B. Mon. 651.

The commencement of proceedings in bankruptcy does not affect the jurisdiction of a State court over an action then pending to foreclose a mortgage, and a sale under a decree entered after the appointment of an assignee will pass a valid title to the purchaser. Eyster v. Gaff, 13 B. R. 546; s. c. 91 U. S. 521; s. c. 2 Col. 28; in re Mary Irving et al., 14 B. R. 289; Smith v. Gordon, 2 N. Y. Leg. Obs. 325; s. c. 6 Law Rep. 313; Cleveland v. Boerum, 24 N. Y. 613; s. c. 23 Barb. 201; s. c. 27 Barb. 252; Lenihan v. Hamann, 8 B. R. 557; s. c. 11 B. R. 471; s. c. 14 Abb. Pr. (N. S.) 274; s. c. 55 N. Y. 652; Jerome v. McCarter, 15 B. R. 546. Contra, Anon., 10 Paige, 20; Ontario Bank v. Mumford, 2 Barb. Ch. 596; Johnson v. Fitzhugh, 3 Barb. Ch. 360; Fellows v. Hall, 3 McLean, 487; in re Abner H. Allen, 1 N. Y. Leg. Obs. 115; s. c. 5 Law Rep. 362; Storm v. Davenport, 1 Sandf. Ch. 135; Penniman v. Norton, 1 Barb. Ch. 246.

It is the duty of a State court to proceed with an action to foreclose a mortgage until it is informed by some proper pleading of the bankruptcy of the mortgagor. It is not sufficient for the assignee merely to file a certificate of his appointment without any motion or plea to be made a party or to take part in the case. Eyster v. Gaff, 13 B. R. 546; s. c. 91 U. S. 521; s. c. 2 Col. 28.

Where a sale is made after the commencement of proceedings in bankruptcy under a decree entered before the adjudication in an action to foreclose a mortgage in a State court, and a decree for the deficiency is entered against the bankrupt, the decree is a bar to the right of the assignee to raise the question of usury in regard to the mortgage. Cutter v. Dingee, 14 B. R. 294.

An assignee appointed after a completed foreclosure by judgment and sale will be bound by the judgment, and especially in a case where the court of bankruptcy has authorized the continuance of the suit before judgment and sale. Lenihan v. Hamann, 8 B. R. 557; s. c. 11 B. R. 471; s. c. 14 Abb. Pr. (N. S.) 274; s. c. 55 N. Y. 652.

The mere filing of a petition in bankruptcy does not of itself constitute a sufficient reason for the dismissal of an action pending in a State court. Hobart v. Haskell, 14 N. H. 127.

Until the plea of bankruptcy is interposed, the plaintiff is not bound to take notice of the bankruptcy of the defendant. Fellows v. Hall, 3 McLean, 281.

Bankruptcy is a fact, and when set up as a defense to a bill in equity by one or all of the defendants, should be pleaded in some regular way. Unless admitted as a fact by the opposite party, with a concession of its effect as barring all relief, it is not of itself cause for dismissing the bill in advance of the hearing. Ballin v. Ferst, 55 Ga. 546.

If a fund is in the hand of a receiver appointed by a State court for distribution, the assignee may intervene as a representative of the bankrupt and the general creditors, and contest any claim against the fund. Loudon v. Blanford, 56 Ga, 150.

If the assignee, with knowledge of the pendency of a bill brought by a creditor prior to the commencement of the proceedings in bankruptcy to vacate a deed alleged to be fraudulent, fails to be made a party to the suit until after a decree is made declaring the deed fraudulent, the creditor is entitled to payment in full out of the proceeds. Smith v. Gordon, 2 N. Y. Leg. Obs. 325; s. c. 6 Law Rep. 313.

If a suit is pending against the bankrupt at the time of the commencement of the proceedings in bankruptcy, the plaintiff by due process may cause the assignee to be made a party thereto. Norton v. Switzer, 93 U. S. 355; s. c. 27 La. An. 25.

If the assignee is made a party to a pending action in his representative capacity, a judgment against him in his individual character is void. Ibid.

If the assignee is made a party to a pending action, the judgment is effectual and operative only to establish the amount and validity of the claim, and may be filed with him as a basis of dividends. Norton v. Switzer, 93 U. S. 355; s. c. 27 La. An. 25. Contra, Minot v. Brickett, 49 Mass. 560.

If a pending action is allowed to proceed to judgment for the mere purpose of establishing the validity of the claim and the amount due, any provision in such judgment awarding a lien to the plaintiff is entirely unavailing. Norton v. Switzer, 93 U. S. 355; s. c. 27 La. An. 25. Vide Switzer v. Zeller, 27 La. An. 468.

A party to whom a claim has been assigned prior to the bankruptcy of the plaintiff may afterward intervene. The question of the bankruptcy of the plaintiff is not properly before the court upon a motion to interThe assignee in bankruptcy may contest the transfer of the claim, but not the defendant. Smalley v. Taylor, 33 Tex. 668.

vene.

When a chose in action upon which a suit has been brought is assigned for a full and valuable consideration before the commencement of proceedings in bankruptcy, the plaintiff becomes a trustee for the purchaser, and may continue the suit in his own name. His subsequent bankruptcy does not affect the right of his cestui que trust. The assignee in bankruptcy has no interest in the suit, and no right to be substituted as plaintiff. Valentine v. Holloman, 63 N. C. 475; King v. Morrison, 5 Ark. 519; Hynson v. Burton, 5 Ark. 492.

If a judgment was transferred to another, the suit thereon may be continued in the name of the bankrupt. Penn v. Edwards, 50 Ala. 63.

If the assignee declines to intervene, an action of replevin may be prosecuted in the name of the bankrupt by the surety on the replevin bond to whom the goods were delivered as security for his liability on the bond. Sawtelle v. Rollins, 23 Me. 196.

A party who has taken a transfer of the note may intervene and prosecute the suit in the name of the bankrupt. Converse v. Sorley, 39 Tex. 515.

If the assignee sells his interest in property which is in litigation in a court of equity, the purchaser should be made a party instead of the assignee. Penniman v. Norton, 1 Barb. Ch. 246.

The court will not permit an action to be prosecuted in the name of the assignee on the motion of a purchaser who has bought the claim from the assignee. Gale v. Vernon, 1 Sandf. Ch. 679.

If the assignee sells the claim, the purchaser will not be permitted to prosecute the action in his own name. Ibid.

If a suit in the name of the bankrupt is settled and dismissed after the commencement of the proceedings in bankruptcy, the assignee may move to have the case reinstated at the first regular term after his appointment. Home Ins. Co. v. Hollis, 14 B. R. 337; s. c. 53 Ga. 659.

Neither the bankrupt nor his attorney has the authority to settle a suit in the name of the bankrupt after the commencement of the proceedings in bankruptcy. Ibid.

When a suit is settled after the commencement, of the proceedings in bankruptcy, it is not incumbent on the assignee to show that the settlement was wrong in order to have the case reinstated. Ibid.

If the complainant becomes bankrupt while a suit in equity is pending, the bill may, on motion of the defendant, be dismissed unless the assignee intervenes within a certain time. Bailey v. Smith, 10 R. I. 29. If the assignee declines to intervene and prosecute a bill filed against a conventional trustee alleging a mismanagement of the trust fund, the bankrupt can not make him a party by a supplemental bill. Ibid.

The assignee may intervene in an action commenced by the bankrupt by an original bill in the nature of a supplemental bill. Northman v. Ins. Co., 1 Tenn. Ch. 312, 319.

If a demurrer is entered to a plea setting up the bankruptcy of the plaintiff properly, it should be overruled, for no one can be or remain a party to a suit after his bankruptcy. Collier v. Hunter, 27 Ark. 74. A plea of the bankruptcy of the plaintiff should conclude with a verification. Brown v. Patrick, 7 Phila. 143.

A plea of the bankruptcy of the plaintiff pendente lite need make no allegation in respect to the jurisdiction of the bankruptcy court, for it will be intended that the petition was filed in the proper court. Lacy v. Rockett, 11 Ala. 1002.

If the assignee takes issue upon the plea of the bankruptcy of the plaintiff, and it is found against him, judgment must be entered for the defendant. Ibid.

The assignee may avoid a plea of bankruptcy of the plaintiff pendente lite by submitting to make himself plaintiff. Lacy v. Rockett, 11 Ala. 1002; Brooks v. Harris, 12 Ala. 555.

The defendant may plead that the plaintiff has been declared a bankrupt by the proper district court subsequent to the institution of the suit. Such a plea is a plea in bar. Lacy v. Rockett, 11 Ala. 1002; Hynson v. Burton, 5 Ark. 492; King v. Morrison, 5 Ark. 519.

A plea that the defendant became a bankrupt before the suing out of a writ of error, need not set forth the name of the assignee. Vairin v. Edmonson, 9 Ill. 120.

The question whether the person who claims to be assignee of the plaintiff is such, can not be raised by a general demurrer, but only by a plea in abatement. Manning v. Hunt, 36 Tex. 118.

The State court is not a mere auxiliary tribunal of the Federal court to entertain the claim of the assignee to property, and to order it to be surrendered up to him unconditionally, right or wrong, to be administered and disposed of by the bankruptcy court. If the aid of the State court is sought and demanded by an assignee to recover property, he must submit to the terms prescribed, and recover or not recover as the principles of law and equity bearing on the rights of the contesting parties demand. He is estopped in such a case to deny the jurisdiction of the State court to decide the merits of the controversy. Pindell v. Vimont, 14 B. Mon. 400.

When the assignee appears to defend a pending action, he may adopt the answer already filed. Fritsch v. Van Mittledorfer, 2 Cinn. 261.

A plea that a part only of the plaintiffs have become bankrupts pendente lite is a good plea. Lacy v. Rockett, 11 Ala. 1002; Sims v. Ross, 15 Miss. 557.

The bankruptcy of the plaintiff can not be proved by parol evidence. Moore v. Voss, 1 Cranch C. C. 179.

If the assignee is permitted to appear and defend a suit in the name of a bankrupt defendant, he can not be directed to pay costs after the rendition of a judgment. The proper practice in such a case is to move for security for costs at the time of his appearance, or prior to the termination of the proceedings. Holland v. Seaver, 21 N. H. 386. Under the laws of New York the assignee is not liable for costs, except in case of mismanagement or bad faith. Reade v. Waterhouse, 10 B. R. 277; s. c. 12 Abb. Pr. (N. S.) 255; s. c. 52 N. Y. 587; s. c. 35 N. Y. Supr. 78. Costs can not properly be taxed to the assignee before he became a party to the suit. Norton v. Switzer, 93 U. S. 355; s. c. 27 La. An. 25.

If a party who has recovered a judgment takes the benefit of the bankruptcy act and afterward dies, the suit in the appellate court should be revived against the assignee in bankruptcy, and not against the administrator. Moffit v. Cruise, 7 Cold. 137.

If the judgment debtor is declared a bankrupt after the rendition of a judgment affecting a right of property which would pass to his assignee, the latter is the proper party to bring a writ of error, and he alone can do it. Knox v. Exchange Bank, 12 Wall. 379; Day v. Laflin, 47 Mass. 280; Vairin v. Edmonson, 9 Ill. 120; Sanford v. Sanford, 12 B. R. 565; s. c. 58 N. Y. 67.

When the bankrupt is seeking to prevent the establishment of a claim against himself, he has an interest sufficient to entitle him to maintain an appeal. Sanford v. Sanford, 12 B. R. 565; s. c. 58 N. Y. 67.

Where the judgment of a justice in a summary proceeding against the bankrupt under the landlord and tenant act is reversed on appeal, the assignee who has been appointed since the commencement of the proceeding is entitled to a writ of restitution, although he never was in possession,