be a paper actually and physically connected with one containing the terms of the contract. If the parties make an oral contract, and there is no memorandum at the time, but the deft. afterwards refers by letter to it in sufficient terms, it is enough, and if after the parties have met one puts the terms down in a note and the other in another subsequent letter sufficiently acknowledges those terms, it is sufficient. The cases cited show that; but it must be one by which he adopts, and in that sense incorporates, the contract. Two cases have been cited for the plt. I agree in the law as there laid down, and I must say I should have drawn the same conclusion on the facts as the court did, but we must look rather at the principles on which they were decided. There the question was, whether there was any memorandum to satisfy the statute, and in each one of the cases there was a writing signed which incorporated all the essential elements of the contract, and we must not forget that the deft. is not liable merely because he has signed the memorandum of the contract, but because there has been a contract and a performance on the part of the plt. of all that it was his duty to do upon his side; and all that was decided in these cases was, that where the deft. had adopted the contract in writing, he was not at liberty to say there was no such adoption, because he had at the same time set up something else by way of defence.

PIGOTT, B.-I am of the same opinion. I am very sorry that a dishonest defence should be successful; but we are bound to give effect to the plain meaning of a statute which I must confess, in my opinion, is a very salutary one. It is true that it has given rise to much litigation, but it is impossible to say whether there might not have been still more if it had never existed. It seems to me this case is clearly distinguishable from those cited. We have only then to see whether there is a memorandum in writing of the contract within the statute. I think, upon looking at the two letters of the plt., and that of the defts., it is clear that there is not. Can it be said that the memorandum of the 21st necessarily incorporates the terms of the bargain as contained in the other letters? My Lord has suggested other states of things which might be quite as easily implied from that letter. Therefore I think this rule must be made absolute.

This was a motion in the nature of an appeal from the decision of Martin, B. at chambers.

It appeared that judgment had been signed in the action on the 1st Oct. last. A writ of fi. fa. had issued, and the sheriff had seized goods of the deft. previously to the 16th Nov., upon which day the deft. executed a valid deed of composition with his creditors under the 192nd section of the B. A. 1861. The deed, which did not contain an assignment of the debtor's property, was duly registered upon the same or the next day, and a certifi

[Ex.

cate of registration obtained. The sheriff was still in possession, and the execution-debtor took out a summons calling upon the plt. to show cause why the sheriff should not withdraw. Martin, B. gave the plt. liberty to apply to the court, and ordered that the sheriff should not withdraw until the result of that application, if made, appeared.

Crompton Hutton now moved for a rule calling upon the deft. to show cause why the order of Martin, B. should not be discharged.-The question here is whether, where the sheriff has once got hold of the goods before the execution of the deed, there is any provision in the Bankruptcy Acts to prevent the realisation of their proceeds. [KELLY, C. B. referred to the case of O'Brien v. Brodie, 1 Law Rep. 302, Ex.; 14 L. T. Rep. N. S. 559.] There the case ultimately became one of bankruptcy, so there is a distinction. It is to be noticed also that the deed here contained no assignment of property, so that it is different from a case where there has been an act of bankruptcy or an assignment previous to the seizure. This case is, I believe, res integra. The 184th section of the B. L. C. A. enacts that "no creditor having security for his debt, &c., shall receive upon any such security more than a rateable part of such debt, except in respect of any execution or extent served and levied by seizure and sale upon the property of such bankrupt before the date of the fiat or the filing of a petition for adjudication of bankruptcy." The question is, whether that section, by the opera tion of sect. 197 of the B. A. 1861, is rendered applicable to the case of a composition-deed. Even supposing the registration could have relation back to the date of the execution of the deed, it could go no further. Here the seizure took place before the execution of the deed. The plt. is no longer a creditor. Nor is sect. 198 of the Bankruptcy Act any longer applicable, for there is no 66 debt" within that section. In Baerselman v. Langlands, 34 L. J. 3, Ex.; 11 L. T. Rep. N. S. 348, it was held that a debtor who had been taken under a ca. sa. before the date of the deed was entitled to be released, but I contend that there is a distinction between the process against the person and the goods. [MARTIN, B. referred to Ex parte Chaundy, 5 L. T. Rep. N. S. 526.] When once the sheriff seizes the goods the execution is complete, so as not afterwards to be defeated according to the old law :

Giles v. Grover, 2 C & F. 177.

KELLY, C. B.-I am of opinion that there should be no rule. I think the order of my brother Martin was rightly made and quite in conformity with the Bankruptcy Act. The 198th section of that Act enacts that "after notice of the filing and registration of such deed has been given as aforesaid,” and there was such notice here, "no execution, sequestration, or other process against the debtor's property in respect of any debt, and no process against his person in respect of any debt other than, &c., shall be available to any creditor or claimant without leave of the court, and a certificate of the filing and registration of such deed under the hand of the chief registrar and the seal of this court shall be available to the debtor for all purposes as a protection in bankruptcy." It is not disputed that if this was a case of process against the person, the autho rities are quite clear and the court would be bound to discharge the person out of custody so as to prevent the process being available. I do not understand that the deft.'s counsel disputes the authority of the cases that show this, and indeed it would be impossible to do so. It therefore became necessary for him to endeavour to show that we ought to draw a distinction between process against the goods and

Ex.]

[Ex.

matical construction that words of reference in a deed such as "the said," or 66 as aforesaid," must necessarily refer to the last or immediate antecedent: (see The Eastern Counties, &c. Railway Company v. Marriage, 9 H. of L. Cas. 32; 3 L. T. Rep. N. S. 60.)

MARTIN, B.-I am of the same opinion. The real question is, what is the meaning of the word "available?" Now, if we look at the Act, we shall see that the previous sections make various provisions, all intended to prevent one creditor sweeping away all the effects. There are evils on both sides. The old law favoured and protected the creditor who was diligent in pursuit of his remedy; but of late years the Legislature has taken a different view. I have no doubt that in this case the goods must be restored, and that my Lord's view of the meaning of the word "available" is what was intended. There are, no doubt, conflicting evils. An instance of the evil that may arise from the present state of things lately came within my own knowledge. If a sale under an execution could have been postponed for a week, the goods would have fetched probably twice as much; and though there was otherwise no objection on either side to this course, the risk of a bankruptcy in the meantime made it impossible for one side to consent to it, and the goods had to be sold at an immense sacrifice.

BRAMWELL, B.-I am of the same opinion. I have no doubt, upon the construction of the Act, that this execution is no longer available.

PIGOTT, B.-I am of the same opinion. The language of the Act is too clear to admit of a doubt. No doubt many of these composition-deeds have the effect of protecting fraudulent debtors; but the provisions of the Act are quite plain on the subject.

Friday, Nov. 16.

Rule refused.

TETLEY AND OTHERS v. WANLESS.

This was an action for goods sold and delivered, &c., and for money due on account stated. The action was commenced on the 24th April 1866, when the writ was issued.

Plea:

That after the accruing of the plt.'s claim, and after the 11th Oct. 1861, deft. then being a debtor within the true intent and meaning of the B. A. 1861, and indebted to divers persons, a deed bearing date the 7th May 1866 was made and entered

into between the deft. of the first part, John Dobbing of the

set, but also all

second part, and the several persons respectively creditors of the deft, or the authorised agents of such creditors (not only those whose names and seals were thereunto subscribed and others the creditors) of the defts. of the third part, and that the said deed related to the debts and liabilities of the deft. and his release therefrom, and was in all respects a composition-deed within the true intent and meaning and provisions of the B. A. 1861; and by the said deed, after reciting that the deft. was indebted to the said several creditors in the several sums of money set opposite to their several and respective names in the schedules thereunder written (over and above the balance of the securities by them or any of them respectively held); and that it was agreed by a majority in number of the said several creditors, representing three-fourths in value of the creditors of the deft. whose debts respectively amounted to 104 and upwards, to accept the composition and security thereon, expressed in full satisfaction of such respective debts; it was witnessed that, in pursuance of the said agreement, and in consideration of the joint and several promissory notes of the deft. and the said John Dobbing, for payment to the said respective creditors of the deft. of the composition of 5s. in the pound on the respective sums of money as aforesaid, dated the 27th April then last past, payable to the respective creditors of the deft. four months after the date thereof respectively, they, the said creditors of the deft., parties thereto of the third part, for themselves and their several and respective partners, and the respective heirs, executors, and administrators of the said several and respective partners, did, and each of them did, for himself, his heirs, executors and administrators (but so far only as related to the acts of himself, his executors, administrators, assigns, and partners), to the intent that these presents should be valid, effectual, and binding on all the creditors of the deft. pursuant to the provisions of the B. A. 1861, thereby release unto the deft, his heirs, executors, and administrators, all actions, suits, debts, claims, and demands which the creditors of the deft, and their several and respective partners, or any or either of them, had, or had had against the deft., and did thereby accept the said composition so payable as aforesaid in full satisfaction and discharge of the several debts and sums of money due and owing to them by deft., specified in the said schedule, and they, the creditors of the deft, parties thereunto of the third part, did also for themselves and their several and respective partners, and each of them did for himself, his heirs, executors, and administrators, covenant with the deft. that it should be lawful for the deft., his heirs, executors, or administrators, to plead these presents in bar of

1. In a composition-deed under sect. 192 of the B. A. 1861 the limitation of the consideration for the release to creditors whose debts are scheduled does not affect the absolute and unconditional character of the release, it being manifest, from the whole deed, that payment of the composition to the whole body of the creditors was contemplated and provided for by the deed.

2. Where creditors release the debt cr from all debts, such release is absolute and general, notwithstanding a subsequent statement in the deed that the creditors have accepted the composition "in discharge of the said debts specified in the said schedule” only:

So held in this case by the Court of Ex. (Kelly, C. B., Bramwell, Channell, and Pigott, BB.)

Per Bramwell B.: Where a deft. by his plea avers performance of conditions precedent generally, the general replication under sect. 77 of the C. L. P. A. 1852 is a sufficient traverse by the plt. of nonperform ance of a particular condition precedent included in such general averment by the deft., non obstante sect. 57 of the said Act:

against the deft. by any of his creditors, parties thereto of the third part. Provided always, that neither these presents, nor anything therein contained, should be construed to invalidate or in any manner affect any mortgage, charge, lien, or other specific security of any debt, or sum of money due or owing by the deft.; and each of them, the deft. and the said John Dobbing, for himself, his heirs, executors, and the creditors of the deft., parties thereto of the third part, administrators, did thereby covenant with each and every of that they, the deft, and the said John Dobbing, or one of them, should and would pay to each and every of the creditors of the deft. 58. in the pound upon their respective debts as aforesaid, at or immediately after the execution of these presents by the said majority of his said creditors as aforesaid; and each of them, the deft, and the said John Dobbing, their executors, administrators, and assigns, should and would make and deliver to each and every the creditors of the deft, upon demand, at or immediately after the execution of these presents by the said majority of his said creditors as aforesaid, the said promissory notes, and that they, the deft. and the said John Dobbing, or one of them, their or his executors or administrators, would pay the said promissory notes for the payment of the said composition of 5s. in the pound, as and when the same should become due and payable.

Averments of due execution by the requisite statutory majority of the creditors and by deft. and the said John Dobbing, and of the performance of all the other statutory requisitions necessary to make the said deed as valid and binding on all the

creditors of the deft. as if they had been parties to and duly executed the same, and the pits. were and are creditors of the deft. within the true intent and meaning of the said deed, and of the B. A. 1861, and the claim in the declaration mentioned was a debt, claim, and demandwithin the said deed, and in respect of which the said composition was payable under the same, and the said deed from the making thereof hitherto has been and still is in force, and by reason of the premises the deft. became and is entitled to plead the said deed in bar of and as a defence to this action.

Issue thereon.

At the trial before Lush, J., at the last summer assizes for Carlisle, it was proved that the plts. were non-assenting and unscheduled creditors of the deft., and that no tender had been made to them of either the promissory notes or the composition. A verdict was found for the deft., and questions were reserved for the opinion of the Court of Ex., on which the plts. had leave to move. A rule was accordingly obtained by Kemplay for the plts., calling on the deft. to show cause why the deft.'s verdict should not be set aside, and a verdict entered for the plts. for 987. 14s. 5d. on the grounds reserved at the trial, viz. first, that the plea is a plea in bar to the action generally, and not to the further maintenance of the action, and was not proved; secondly, that tender of the composition was put in issue by the replication and was not proved; or why judgment should not be entered for the plts. non obstante veredicto on the grounds, first, that the deed mentioned in the plea did not release the plts.' debt, the same not being a scheduled debt; secondly, that the provisions of the deed were unequal, the giving of the promissory notes being confined to scheduled debts; thirdly, that the plea is bad for not averring a tender of the composition.

The following sections of the C. L. P. A. 1852 were referred to as material by the court and counsel during the argument :Sect. 57:

1t shall be lawful for a plt. or deft. in any action to aver performance of conditions precedent generally, and the opposite party shall not deny such averment generally, but shall specify in his pleading the condition or conditions precedent the performance of which he intends to dispute.

Sect. 68:

Any defence arising after the commencement of any action shall be pleaded according to the fact, without any formal commencement or conclusion, and any plea which does not state whether the defence therein set up arose before or after action shall be deemed to be a plea of matter arising before action.

Sect. 77:

A plt. shall be at liberty to traverse the whole of any plea or subsequent pleadings of the deft. by a general denial, or admitting some part or parts thereof, to deny all the rest, or to deny any one or more allegations.

Sect. 78:

A deft, shall be at liberty in like manner to deny the whole or any part of a replication or subsequent pleading of the plt. Sect. 79:

Either party may plead in answer to the plea or subsequent pleading of his adversary that he joins issue thereon, which joinder of issue shall be as follows, or to the like effect: "The plt. joins issue," &c. And such form of joinder of issue shall be deemed a denial of the substance of the plea or other subsequent pleading and an issue thereon; and in all cases where a plt 's pleading is a denial of the pleading of the deft., or some part of it, the plt. may add a joinder of issue for the deft.

Manisty, Q.C. and Lewers, for the deft., now showed cause against the plt.'s rule. It is not necessary that there should be a formal commencement to the plea; if the plea in its body, as in the present case, shows a defence arising after the action, it is a plea in bar. Here the deed is shown to have been executed after action and ex necessitate, it is a plea in bar: (Bullen & Leake on Pleading.) In Brooks v. Jennings, 14 L. T. Rep. N. S. 19; 1 L. R. 476,

[Ex.

| C. P.; there was no formal commencement, and there the date of the deed was laid under a videlicet, and the court, in giving judgment, held that an objection taken to the plea similar to the objection taken in the present case, was answered by sect. 68 of the C. L. P. A. 1852. The date of the deed pleaded after the action brought, as stated in the plea, is prima facie the date of its execution. [BRAMWELL, B.-In Brooks v. Jennings the objection was that the plea, which showed that the matter arose after action, was bad for not being pleaded to the further maintenance; the point here is a different one.] A second objection was, that tender of the composition was put in issue by the replication, and was not proved. On that two questions arose ; first, was tender put in issue? and if not, was it necessary that it should be averred? First, then, I say that the general averment in the plea, that all things necessary to make the deed binding were done, includes the averment of tender if such was necessary: (sect 57 C. L. P. A. 1852.) A particular traverse of the condition was neces sary. [BRAMWELL, B.- The meaning of that section is, that where a pleading, declaration, plea, or what not, contains a general averment that all things necessary have happened, &c., the other party may not reply generally "that all things have not happened;" he must traverse some one or more things specially; but overriding that provision of the statute is the rule that he may traverse the truth of the whole pleading generally, and say "Your plea is not true." His Lordship here referred to sect. 77 et seq. of C. L. P. A. 1852.] It is immaterial here, because in the present case it was unnecessary to aver tender at all; it was not a condition precedent. The release was an absolute one, and the covenant to pay was an independent covenant. Deft. was absolutely released from his debts, but he and his surety became responsible for them by covenant; but the two things were independent one of the other. The covenant here is similar to that in Johnson v. Barratt (13 L. T. Rep. N. S. 597; 35 L. J. 15, Ex.; 1 L. R. 65, Ex.), to pay so much in the pound, and to deliver promissory notes on demand on a given day; therefore if there is no demand no promissory note is payable. The release is absolute. With regard to the other point of the rule, entering judgment for plts. non obstante veredicto, on the plain and clear construction of the deed there was a release by all the creditors of all their debts and claims on deft.; the deed was made between the deft. and all his creditors, and the covenant was to pay the composition to all the said creditors, and there was no inequality.

Kemplay, for the plts., contra, in support of his rule. [BRAMWELL, B.-The material point is the validity of the deed.] First, then, tender was necessary. The present case differed from Johnson v. Barratt (ubi sup.). The release here was in consideration of the promissory note, and not, as there, in consideration of the covenant thereinafter contained. It might be conceded that in the case of an absolute release on the one side, and on the other a covenant to pay a composition, the release would be absolute, and tender might not be necessary. But that is not the case here, as was clearly shown on the plea itself. No doubt the deed here applied to all the creditors executing or assenting; but the first recital was that the debtor was indebted to the several creditors whose debts were scheduled, and that a majority of the said several creditors had agreed to "accept the composition and security therein expressed;" and in the operative part of the deed the release was expressed to be "in consideration of the joint and several promissory notes of deft. and Dobbing" for payment to the said creditors of the composition "on the respective sums of

[Ex.

Buvelot v. Mills (ubi sup.); Hickmott v. Simmons (before the M. R.), 13 L. T. Rep. N. S. 614; 35 L. J. 580, Ch.; 1 L. Rep. 462, Eq. In Dingwall v. Edwards, 10 L. T. Rep. N. S. 132; 33 L. J. 161, Q. B., the Court were divided in opinion, Blackburn and Mellor, JJ. holding, in opposition to Cockburn, C. J. and Crompton, J., that payment or tender of the composition was necessary, in the case of non-executing creditors, aq a condition_precedent to their being bound by the release. In Fessard v. Mugnier, also, 11 L. T. Rep. N. S. 635; 34 L. J. 123, C. P.; 18 C. B., N. S., 286, tender to non-assentients was held a condition precedent. [Manisty, Q. C.-The ground of the decision in that case was that the release was

conditional.] Without tender plts. cannot get the promissory notes, and so would get no consideration for their release, which accordingly is inoperative. (a)

KELLY, C. B.-It appears to me that this rule must be discharged. Two questions only arise for our decision in the case, and both are as to the validity of the deed in question as a composition-deed under the B. A. 1861. The first question is, whether the release contained in the deed is an absolute and unconditional release of the demand of the plts., or whether it is a qualified one and conditional on the payment of the composition or the delivery of the promissory notes. I am of opinion that the release is absolute and unconditional. It is only necessary to look at the plea to see what are the terms and what the meaning of the deed, for there the document is set out at length. First it is a deed to which the whole body of the creditors are made parties, for it is in terms made between the debtor of the first part, the surety of the second part, and "the several persons respectively creditors of the debtor, not only those whose names and seals are thereunto subscribed and set, but also all others the creditors of the debtor of the third part;" and after stating in terms that it was a deed "relating to the debts and liabilities of the debtor and his release therefrom, and was in all respects a composition-deed within the meaning and provisions of the B. A. 1861," it recites that the debtor "was indebted to the several creditors in the said several sums of money set opposite to their several respective names in the schedule thereunder written," and that it was agreed by a majority in number of "the said several creditors," representing three-fourths in value of the

(a) Objections with reference to the date of the writ and the date of the deed were also argued, but were disposed of in the course of the argument by the court giving leave to the deft. to amend his plea.

Vol. IV.-No. 92.

But in a deed under seal no consideration at all is necessary to be averred or stated in the deed. Again, the words of the release here are absolute. It states that "the said creditors of the debtor, parties of the third part "-that is, the whole body of the they did thereby, for themselves and their partners, creditors, including the plts.-are prepared to, and &c., and their several and respective heirs, &c., "release unto the debtor, his heirs, &c., all actions, suits, debts, claims, and demands which the creditors of the debtor, or any or either of them, had or had had against the debtor, and did thereby accept the said composition in full satisfaction and discharge of the said debts and sums of money due or owing to them by the debtor specified in the said schedule." Laying aside for the moment the consideration, this is an absolute unconditional release of all their debts by the whole body of the creditors; putting aside all questions as to tender or payment of the composition, I am of opinion that there is an absolute release, and that so the deed is valid. It has also been objected by Mr. Kemplay that the deed is unequal, and that by reason of such inequality it is invalid and void under the provisions and within the meaning of the B. A. 1861. But if, taking the whole deed together, it contains a covenant and an obligation by the debtor and his surety to pay the composition by cash or by promissory notes to the whole body of the creditors, the objection fails. Now it may be, that if we were to confine ourselves to the clause in the deed providing for the delivery of the promissory notes, it might seem to be confined to those creditors only whose debts were named in the schedule; but when we go further on we find this clause, which I will read. It is as follows: "and each of them, the debtor and the said John Dobbing for himself, his heirs, &c. did thereby covenant with each and every of the creditors of the debtor, parties thereto of the third part" (thereby making them parties, and giving them rights under the deed in equity, and probably at law), "that they the debtor and the said John Dobbing, or one of them, should and would pay to each and every of the creditors of the debtor 5s. in the pound upon their respective debts as aforesaid, at or immediately after the execution of these presents by the majority of his said creditors as aforesaid." Now, an observation has been made upon these words "as aforesaid," and it has been said that their operation must be to limit the effect of this covenant to those creditors only whose debts are in the schedule. I think there is no such limitation. Looking at the matter in the light of common sense, and seeing the previous recital of an agreement to pay a composition of 5s. in the pound to all the creditors, we should, I think, rather construe the words "as aforesaid" as referring to all the creditors, and so make all parts of the deed consistent the one with

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