the said

ད

Esq., so being such commissioner as aforesaid, and being duly authorized in that behalf, having approved of, ratified and confirmed the said choice, and having then certified under his hand that the said had been duly chosen assignee of the estate and effects of the plaintiff, and having also certified in writing that the said had been duly appointed official assignee to the estate of the plaintiff, thereupon and thereby, under and by virtue of the directions and provisions of the said secondly above recited act, all the estate and effects of the plaintiff became and were then, and before the commencement of this suit, vested in the said

and

And the plaintiff further says that at the said first sitting, to wit, on the day and year last aforesaid, the said -, Esq., so being such commissioner as aforesaid, then duly, and according to the said statutes, and before the commencement of this suit, by writing in that behalf under his hand, renewed the said order of protection for the plaintiff's person and property from process, until the - day of then next, at half past two of the clock in the afternoon, at the said Court of Bankruptcy in Basinghall Street, in the city of London, appointed the said day of then next, at half past two of the clock in the afternoon precisely, at the said Court of Bankruptcy in Basinghall Street aforesaid, to proceed to make a final order in the matter of the said petition, unless cause should be then and there shown to the contrary, and then caused a notice to be given to the defendant and such other of the plaintiff's creditors whose debts amounted to £5, and to be inserted in the London Gazette, that he the said Esq., so being such commissioner as aforesaid, would proceed to make a final order in the matter of the said petition, at the said Court of Bankruptcy in Basinghall Street, in the city of London, on the day of then next,

at half past two of the clock in the afternoon precisely, unless cause should be then and there shown to the contrary. And the plaintiff further says that afterwards, to wit, on the day and year and at the hour last aforesaid, at the said Court of Bankruptcy in Basinghall Street aforesaid, the plaintiff having then duly appeared, and no cause being then shown to the contrary, and it then appearing to the said Esq., so being such commissioner as aforesaid, that the allegations in the said petition and the matters in the said schedule were true, and that the said debts of the plaintiff were not contracted by any manner of fraud or breach of trust, or by any prosecution whereby he had been convicted of any offence, or without having at the time of becoming indebted a reasonable or probable expectation of being able to pay such debt or debts, and that such debts, or any of them, were not contracted by reason of any judgment in any proceeding for breach of the revenue laws, or in any action for breach of promise of marriage, seduction, criminal conversation, libel, slander, assault, battery, malicious arrest, malicious suing out a fiat in bankruptcy or malicious trespass, and that the plaintiff had not parted with any of his property since the presenting of his

said petition; and he the said, Esq., so being such commissioner as aforesaid, being on the said examination satisfied that the plaintiff had made a full discovery of his estate, effects, debts and credits, he the said

-, Esq., as such commissioner as aforesaid, did then, under and by virtue and according to the provisions of the said acts, make a final order to protect the person of the plaintiff from being taken or detained under any process whatever in respect of the several debts and sums of money due or claimed to be due at the time of filing the plaintiff's petition from the plaintiff to the several persons named in the said schedule as creditors, or as claiming to be creditors for the same respectively, or for which such persons should have given credit to the plaintiff before the time of filing his petition, and which were not then payable, and as to the claims of all other persons not known to the said plaintiff at the time of making the said final order, who might be indorsees or holders of any negotiable security set forth in the plaintiff's said schedule, and it was thereby directed that the proposal of the plaintiff for the payment of his debts should be carried into effect in the following manner, that is to say, that he the plaintiff should pay into the hands of

-, the official assignee, being the official assignee aforesaid, the sum of £ by the year, until the debts enumerated in his schedule should be satisfied; and that such sum should be paid quarterly, and the first quarterly payment should be made on the Midsummer day then next, as by the said order filed and now remaining of record in the said Court of Bankruptcy, reference being thereunto had, will more fully and at large appear, and which said order still remains in full force and effect; and this the plaintiff is ready to verify, &c.

EXECUTORS, ADMINISTRATORS, &c.

12. Plea of Set-off in an Action by Executors, &c. (p)

Commencement, ante, 24.] Saith that the said E. F., before and at the time of his death, was indebted to the said defendant in the sum of £for [here state the debt; see Form 1], which said sum of money so due to the defendant was, before and at the time of the commencement of this suit, and still is, due and owing from the said plaintiffs, as executors [or "administrators"] as aforesaid, to the said defendant, and equals the damages sustained by the said plaintiffs, as executors [or "administrators"] as aforesaid, by reason of the non-performance by the defendant of the said

(p) See the statute, ante, 389, obs., and the notes to Form 1. A debt due from the plaintiff's testator cannot be set off against a debt which accrued to the plaintiff as executor after the death; Hutchinson v. Sturges, Willes' Rep. 263, 264; Shipman v. Thompson, id. 103; Bul. N. P. 180; Underwood v.

Robertson, 4 Camp. 342; Rogerson v. Ladbrooke, 1 Bing. 93; Henslow v. Robertson, 6 Taunt. 448, 451; Schofield v. Corbett, 6 N. & M. 527. Care must be taken, therefore, to restrict this plea to a count charging a debt to the deceased. As to replication, ante, 391, Form 4.

several supposed promises in the declaration mentioned, and out of which said sum of money so due and owing to the defendant he is ready and willing and hereby offers to set off and allow to the said plaintiffs, as executors [or administrators"] as aforesaid, the full amount of the said damages, according to the form of the statute in such case made and provided; and this the defendant is ready to verify, &c. [Counsel's signature.

66

13. Plea of Set-off in an Action against Executors. (q)

Commencement, ante, 24.] Saith that the plaintiff, before and at the time of the death of the said E. F., was indebted to the said E. F. in the sum of £for [here state the debt; see Form 1], which said sum of money was, at the time of the commencement of this suit, and still is, due and owing from the plaintiff to the said defendants, as executors [or "administrators"] as aforesaid, and equals the damages sustained by the plaintiff by reason of the non-performance of the said several supposed promises in the declaration mentioned, and against which said sum of money so due and owing from the plaintiff as aforesaid, the said defendants, as executors as aforesaid, are ready and willing and hereby offer to set off and allow to the said plaintiff the full amount of the said damages, according to the form of the statute in such case made and provided; and this the defendant is ready to verify, &c. [Counsel's signature.

14. Plea to an Action for Goods sold, that the Defendant bought them of Plaintiff's Factor, as the apparent Principal, and has a Set-off against him. (r)

Commencement, ante, 21, 24.] Saith that the plaintiff sold and delivered the said goods to the defendant by and through the medium of one J. S., who at the time of such sale and delivery was the factor and agent of the plaintiff in that behalf, and intrusted (s) by him with the said goods, and the said J. S., so being such factor and agent, and intrusted as aforesaid, with the consent of the plaintiff, sold the said goods to the defendant in his the said J. S.'s own name, as the true and sole owner of the said goods, and as

(9) See supra, n. (p). A defendant sued as executor cannot set off a debt due to him personally from the plaintiff; Hutchinson v. Sturges, Willes' Rep. 263, 264; Blakesley v. Smallwood, Q. B. Hil. T. 1846; but he may set off a debt due from the deceased to an account stated against him as executor, ibid. A person sued for his own debt cannot set off a debt due to him as executor, ibid.

(r) See forms, &c. Carr v. Hincliff, 4 B. & C. 547; Purchell v. Sulter, 9 Dowl. 511; S. C. 1 Q. B. 197; Warren v. M‘Kay, 1 M. & W. 591; and see the stat, 5 & 6

Vict. c. 39, and note (3), post. De injuriá would be a bad replication; Salter v. Purchell, supra. The proper mode of replying would be "that the said goods were not, with the consent, &c. of the plaintiff, sold and delivered by the said J. S., then being the factor of the plaintiff, in J. S.'s name, as owner and as his own goods, modo et forma, &c. See form Pigeon v. Osborn, 9 Dowl. 511; S. C. 12 A. & E. 715.

(s) See 5 & 6 Vict. c. 39; Learoyd v. Robinson, 12 M. & W. 745; Bonsi v. Stewart, 4 M. & G. 295.

and for his the said J. S.'s own proper goods, and the said J. S. then appeared to be such true and sole owner, by the plaintiff's consent, and the plaintiff did not appear, nor was he known by the defendant at or before the time of the said sale, as the proprietor of or to be interested in the said goods, and the defendant then bought and received the said goods of and from the said J. S. as his proper goods, and did not know and had not the means of knowing that the plaintiff was the owner of the said goods or interested therein, or that the said J.S. was only an agent in that behalf; and the defendant further saith that the said J. S., before the defendant had any knowledge or notice (t) that the plaintiff was the real owner of the said goods, before and at the time of the said sale, was and thence continually hitherto hath been and is indebted to the defendant in £— for [&c. stating the debt: see ante, 390, Form 1], which said sum so due to the defendant equals [&c. proceed and conclude as in the common Form 1, ante, 390, omitting the words " according to the form of the statute in such case made and provided."

SHIP.

See "Seaman," ante, 387.

Plea to an Action against the Captain for excluding Plaintiff, a Passenger, from the Cuddy, that the Plaintiff conducted himself in an unbecoming and ungentlemanly manner, and threatened the Captain with personal Violence.

Prendergast v. Compton, 8 C. & P. 454.

SOLICITOR.

See "Attorney," ante, 251.

It has been decided that it is necessary, under 6 & 7 Vict. c. 73, to plead specially the non-delivery of a signed bill; Bowen v. Hodges, Exch. East. T. 1846; see the plea, ante, 252, Form 2. As to whether the court where the business was done must be mentioned in the bill, see Lewis v. Primrose, 13 Law J. 269, Q. B.; Engleheart v. Moore, Exch. East. T. 1846.

SPIRITUOUS LIQUORS.

1. Plea to a Declaration for Goods sold, that they consisted of Spirits supplied contrary to the Tippling Act. (u)

Commencement, ante, 21, 24.] Saith that the said sum of £

(t) See the observations of Parke, B., 1 Q. B. 197.

(u) 24 G. 2, c. 40, s. 12; see cases, Chit.

was

jun. Contr. Index, in voc.; Hughes v. Done, 1 Q. B. 294. De Injuria might be replied, ante, 304,"Frauds, &c."

and is a certain sum of money, debt and demand claimed by the plaintiff from the said defendant for and on account of certain spirituous liquors by him the plaintiff supplied to the defendant at divers days and times before the commencement of this suit; and the defendant further saith that he was indebted to the plaintiff in the said sum of £————, and the same became due as in the said declaration mentioned for and on account of divers quantities of spirituous liquors sold at various times by the plaintiff to the defendant in articles and items not amounting at any one time to the full value or amount of 20s. each, contrary to the form of the statute in such case made and provided; and this the defendant is ready to verify, &c. [Counsel's signature, and as to answering the account stated, ante, 374, note (ƒ).

STAMP.

See ante, 230 and 266.

It seems doubtful whether the want of a stamp can in any case be pleaded; but at all events such a defence can only be pleaded in cases where the instrument cannot be made good by being stamped before the trial; see Bradley v. Bardsley, 15 Law J. 115, Exch.

STOCK-JOBBING.

To a Declaration for Money lent, Plea that the Money was lent to pay Stock-jobbing Differences. (x)

Commencement, ante, 21, 24.] Saith that heretofore, and before the commencement of this suit, to wit, on [&c.], the defendant had lost to a certain person, to wit, one E. F., and the said E. F. claimed to receive of and from the defendant certain sums, amounting in the whole to a large sum of money, to wit, the sum of £1200, upon and by virtue of an unlawful wager and contract in the nature of a wager relating to the future price and value of certain public English stock called —, that is to say, £[consols], that is to say, a certain wager and contract, before then, to wit, on [&c.], made by and between the defendant and the said E. F., by which the payment of such sums of money by the said defendant or by the said E. F. was made to depend upon the rise or fall of the said stock and the future price and value thereof, neither of them being possessed of such

(1) See Cannan v. Bryce, 3 B. & Al. 179; De Begnis v. Armistead, 10 Bing. 107. The statute 7 G. 2, c. 8, and cases as to stockjobbing, Chit. jun. Contr. Index, "Stock, &c." Neither gambling transactions in English railway shares, Hewitt v. Price, 4 M. & G.

355, nor similar transactions in foreign funds, are within the prohibition of the Stock-Jobbing Act, Wells v. Porter, 2 B. N. C. 722; Oakley v. Rigby, ib. 732; nor are they illegal at com. mon law, Elsworth v. Cole, 2 M. & W. 31; see ante, "Gaming," 306.

DD