transferred to the assignee.(1) Where, however, a bond or debt has been assigned by the insolvent before insolvency, and notice of the assignment given to the debtor, the insolvent must sue as trustee for the assignee.(2)

Where a trader owes less than 300l., or another person not a trader becomes insolvent, he may present a petition to the Insolvent Court in the mode pointed out by 5 & 6 Vict. c. 116, s. 14, and all his estate and effects become vested in the official assignee as if such person were bankrupt. The official assignee then may, immediately on his appointment, sue for debts due to the insolvent; and it is a good plea in bar to an action by the insolvent in such a case, that the petition has been presented, protection granted, and an assignee appointed.() When an assignee is appointed by the creditors, then he must join with the official assignee in suing;() and no action abates by reason of the death, removal, or new appointment of an assignee. (5)

Where, under the Arrangement between Debtors and Creditors Act,() a resolution and agreement of the creditors has been filed, the estate and effects of the petitioning debtor vest in the trustee only so far as such debtor has expressly given them up ;(7) and therefore the plea must show, that the creditors resolved that a trustee should be appointed, and that the particular debt should vest in him.

The defendant must plead specially that the plaintiffs are not assignees. (8) If the plaintiff reply nil debet to a plea of set-off, he cannot at the trial give in evidence his discharge under the Insolvent Debtors Act;(9) he should have replied such matter specially.(10)

(1) Swann v. Sutton, 10 A. & E. 631.

(2) Buck v. Lee, A. & E. 804; Boyd v. Mangles, 3 Ex. 387. See also Trott v. Smith, 12 M. & W. 703; D'Arney v. Chesneau, 13 M. & W. 796.

(3) Sayer v. Dufaur, 5 D. & L. 313, which gives a form of the plea.

(4) 7 & 8 Vict. c. 96, s. 10.

(5) Ibid. s. 16.

(6) 7 & 8 Vict. c. 70.

(7) Ibid. s. 7; Chilcott v. Kemp; Robins v. Hobbs, 9 Hare, 122; 3 Exch. 514.

(8) Rule Pl. 5 T. T 1853, ante p. 655.

() 1 & 2 Vict. c. 110, s. 91.

(16) Ford v. Dornford, 8 Q. B. 583.

Form of Writ of Summons.

E. F. and G. H., assignees of the estate and effects of A. B., an insolvent debtor, according to the statutes in force for the relief of insolvent debtors in England.

Form of Declaration by Assignees of Insolvent discharged under 1 & 2 Vict. c. 110.

to wit. E. F. and G. H., assignees of the estate and effects of A. B., an insolvent debtor, and heretofore discharged as such under and according to the statutes in force for the relief of insolvent debtors in England, by P. A. their attorney, sue C. D. for money payable by the defendant to the said E. F., before [or after] he was divested of his estate and effects under the said statutes.

Where the insolvent sues as nominal plaintiff for the benefit of an assignee, the defendant may require him to give security for costs, as to which see post, "Security for costs."

(b) Defendants.

An insolvent is discharged from those particular debts only which are set forth in his schedule to be due to the creditors there mentioned. (1) He is not expressly discharged even from these so as to exclude every mode of obtaining satisfaction.(3) The insolvent may, however, be sued for damages which were not ascertainable at the time of his discharge.(3) Previous to his discharge the insolvent must execute a warrant of attorney to his assignees, that they may enter up judgment on which execution may be issued without a scire facias against his after-acquired property, (*) and he cannot be imprisoned thereon.(5) The insolvent, when sued on a cause of action inserted in the schedule, may plead his discharge generally.(*)

Form of Plea of Insolvency.

that by an order made by the Court for the Relief of Insolvent Debtors, according to the statute made and passed in the session of Parliament held in the first and second years of the reign of Her Majesty,

(1) Leonard v. Baker, 15 M. & W. 202. As to the effect of a mistake in the description of the debt in the schedule, see sect. 93. Hoyles v. Blore, 14 M. & W. 387; Maile v. Bays, 2 D. & L. 964; Brown v. Thompson, 17 C. B. 245.

(2) Francis v. Dodsworth, 4 C. B. 202.

(3) Allard v. Kimberley, 12 M. & W. 410.

(4) 1 & 2 Vict. c. 110, ss. 75, 87.

(5) Ibid. s. 90.

(Ibid. s. 91. Where one of several defendants is an insolvent, see the proper course for the plaintiff to pursue, ante, p. 68.

for the relief of insolvent debtors in England, he was duly discharged of and from the said causes of action.

If he has obtained a final order of protection under 5 & 6 Vict. c. 116, 7 & 8 Vict. c. 96, he may plead in bar that the petition was duly presented, and a final order for protection and distribution of his effects made by a commissioner duly authorized. (1) The plea must not only show that the debt was contracted before the date of filing the petition, but also that it was inserted in the schedule. (2)

3. Bankruptcy or Insolvency occurring during Action. Plaintiff.]"The bankruptcy or insolvency of the plaintiff, in any action which the assignees inight maintain for the benefit of the creditors, shall not be pleaded in bar to such action, unless the assignees shall decline to continue and give security for the costs thereof, upon a judge's order to be obtained for that purpose, within such reasonable time as the judge may order, but the proceedings may be stayed until such election is made; and in case the assignees neglect or refuse to continue the action, and give such security within the time limited by the order, the defendant may, within eight days after such neglect or refusal, plead the bankruptcy."(3) This section does not apply to actions commenced after the insolvency of the plaintiff, and the noninterference of the assignees is immaterial where the cause of action accrues before the insolvency.() When the bankruptcy is properly pleaded, the assignees must commence the action de novo, in their own names. (5) When no such plea is pleaded, the assignees may allow the action to go on to judgment and then make themselves parties to it.

Defendant.]-If the defendant obtains his discharge after the writ issued, he should plead it puis darrein continuance; or, if unable to do so, the court will, on motion, stay the proceedings.) The plaintiff in such circumstances may prove the debt in bankruptcy, in which event he will discontinue the action, as to which see ante, p. 681.

(1) See Jacobs v. Hyde, 2 Exch. 508. see also Cook v. Henson, 1 C. B. 908;

As to the form of the plea Laurie v. Bendall, 12 Q. B. 634; Lewis v. Hance, 11 Q. B. 921; Gillon v. Deare, 3 D. & L. 412; 2 C. B. 309.

(2) Phillips v. Ponsford, 9 C. B. 459. See Kemp v. Hurry, 11 Exch. 47.

(3) C. L. P. Act, 1852, s. 142.

(4) Stanton v. Collier, 3 E. & B. 274.

(5) Swann v. Hutton, 10 A. & E. 623.

() 12 & 13 Vict. c. 106, s. 200 to 205; Sharp v. D'Almaine, 8 Dowi. 664; Sadler v. Cleaver, 7 Bing. 769,

CHAPTER VIII.

HEIRS AND DEVISEES.

1. Heirs.

AN heir is liable for the specialty debts of his ancestor to the extent of the real estate come to him by descent, or its proceeds; and so is the devisee.(1) If there be both an heir and a devisee, the action must be against both jointly.(2) The writ of summons need not, however, describe the defendant in his representative character.() He cannot be held to bail.(*)

Plea.]-It is a good plea to an action on the ancestor's bond, that the defendant has already paid another bond creditor to the value of the land. (5) If the defendant, by his plea, admit assets, without stating how much, or falsely state too little, the plaintiff, if successful, obtains judgment for the debt and costs against the defendant, as if the debt were his own ;() except where non est factum is falsely pleaded to the action on a specialty, for that binds the lands only.) Where the heir has only a reversionary interest, he should specially plead this, and the judgment will then be

(1) 11 Geo. 4 & 1 Will. 4, c. 47, s. 6. (2) Ibid.

(3) See ante, pp. 84, 85.

3 Bla. Com. 292; 3 Bulstr. 316. The customary heir of a copyhold tenure cannot maintain trespass without entry; but, after entry, there is a relation back to the actual title as against a wrong doer, and he may maintain an action for trespass committed prior to his entry; Barnett v. Earl of Guildford, 11 Exch. 19.

(5) Buckley v. Nightingale, 1 Str. 665.

() 2 Wms. Saund. 7 c.; Smith v. Angel, 2 Lord Raym. 783. (Clothworthy v. Clothworthy, Cro. Car. 436.

of assets quando acciderint.(1) It is a bad plea that there is an executor having assets; (2) also that all the rents have been spent on repairs. (3)

Replication.]-If the heir plead riens per descent at the time of action brought, the plaintiff may reply, that the defendant had lands from his ancestor before action brought; and if issue be joined thereon, and found against the defendant, the jury shall inquire the value of such lands, and judgment and execution be awarded against him(^) to the extent of the value of such lands.(3) `If the plaintiff take issue on the plea of riens per descent and obtain a verdict, he may have a general judgment against the defendant ;(6) or the plaintiff may confess the plea and take judgment of assets quando acciderint. If, however, judgment be given against the heir by confession of the action, without confessing the assets descended, or upon demurrer, or nihil dicit, it shall be for the debt and damage, without any writ to inquire of the lands.(')

Judgment.]-The judgment may be either general against the heir, or it may be special, i. e., that the debt, damages, or costs be levied out of the lands descended,() according to the pleadings as before mentioned. If the heir has aliened malá fide the land before action brought, then the judgment will be against him, as if the debt were his own, to the extent of the value of the said lands.()

Form of Judgment against Heir for Ancestor's Debts.

Therefore it is considered that the plaintiff do recover against

,

by the jurors

the defendant his said debt and damages to £ aforesaid, in form aforesaid, assessed, and also £ , for his costs of suit by the court here adjudged of increase to the plaintiff, to be levied of the lands and tenements which were of the said E. F., in fee simple, at the time of his death, and which came to and are now in the hands of the defendant, by hereditary descent, from the said E. F., &c.

(1) 2 Wms. Saund. 7 e.; Anon. Dy. 373 b.

(2) Davy v. Pepys, 1 P. Wms. 203.

(3) Shetelworth v. Neville, 1 T. R. 454.

(4) 11 Geo. 4 & 1 Will. 4, c. 47, s. 7.

(5) Brown v. Shuker, 2 C. & J. 311; 1 Tyr. 400; 1 Price N. R. 1. (6) Matthews v. Lee, Barnes, 444.

(7) 11 Geo. 4 & 1 Will. 4, c. 47, s. 7.

(8) See 2 Wms. Saund. 7 c, e.

(*) 11 Geo. 4 & 1 Will. 4, c. 47, s. 6.