Page:Halsbury Laws of England v1 1907.pdf/243

 ——

— Part

Who may

III.

.

sue and be sued.

21

^• His right of action is, however, merely suspended, and revives on Alien and a prisoner of war whilst still in the restoration of peace {e) E nemi es, confinement may sue upon a contract entered into by him whilst such a prisoner (/ ) Right revives The Court may apparently take notice of the fact that a plaintiff when hosis an alien enemy, even though it be not pleaded {g).

.

an^end^*

Sect.

Bankrupts.

7.

27. A bankrupt's right to maintain an action depends upon uighttosue. w^hether or not the cause of action is one which vests in his trustee if it does so vest, the trustee is the proper person to sue ; if it does not so vest, the bankrupt may himself sue, subject to the right of the' trustee to intervene and take the proceeds of the action, except so far as they are necessary for the bankrupt's maintenance (li). Bankruptcy is a defence to any action brought (or continued) Liability to without leave of the Court in respect of any debt for which the ^® plaintifi' could prove in the bankruptcy (i)

Sect.

8.

Infants.

but specific performance 28. An infant can sue and be sued cannot be decreed against him (A;), and, therefore, the Court will not An injunction as a rule grant specific performance at his suit(^). may in a proper case be granted against him (?»)• An infant litigant is, however, subject to special rules of procedure he should sue by if he sues in his own name alone, the writ his "next friend " may be set aside with costs against the solicitor issuing it (o) but, in the absence of any objection by the defendant, the action could







Term Eep.

35. See, however, Dauhuz v. Morshead (1815), 6 Taunt. 332 ; Kensington V. Inglis (1807), 8 East, 273, two exceptional cases as to bills negotiated by prisoners of war and insurance policies on alien vessels. (e) Janson v. Driefontein Consolidated Mines, Ltd., [1902] A. C. 484, citing The Jan Frederick (1804), 5 Ch. Eob. 128, TheBoedes Lust {1S04:), 5 Ch. Eob. 233, FUndt V. Waters (1812), 15 East, 260; see also Antoine v. Morshead (1815), 1 Marsh, 558; Ex parte Boussmalcer (1806), 13 Ves. 71. Sparenbiirgh v. Bannatyne (1797), (/) Maria v. Hall (1807), 1 Taunt. 33, n.

1

&

B.

P. 163.

Janson v. Briefontein Consolidated Mines, Ltd., supra, per Lord Davey ; as to pleading generally in an action by an alien enemy, see Wells v. Williams (1697), 1 Salk. 46 ; Le Bret v. Papillon (1804), 4 East, 502 ; Sylvester's Case (1703), 7 Mod. Eep. 150; Boulton v. Ihhree (1808), 2 Camp. 163. See generally, as to status of aliens, title Aliens. (A) Beckham v. Brakeil^^l), 2 H. L. C. 579 Bailey v. Thurston & Co., Ltd., [1903] 1 K. B. 137. ((/)

and

(/)

Bankruptcy Act, 1883 (46

&

47 Yict.

c.

52),

s.

9

(1).

See

title

Bankruptcy

AND Insolvency. [k)

Lumley

Ravenscroft, [1895] 1 Q. B. 683. Bolland (1828), 4 Euss. 298. [m) Lempriere v. Lange (1879), 12 Ch. D. 675 Evans v. Ware, [1892] 3 Ch. _ 502 but not where he could not be sued for damages, De Francesco v. Barnum (1889), 43 Ch. D. 165. He may be ordered to pay the costs of the action for an injunction, Wool/ y. Wool/, [1899] 1 Ch. 343. {n) E. S. C, Ord. 16, r. 16. The next friend is liable for the costs of the (/)

Flight

v.

V.





action. (o)

Geilinger v. Gihls, [1897] 1 Ch. 479, unless leave

adding a next friend.

were given

to

amend by

infants,