THIS was a scire facias quare executionem non.

The writ recited that whereas William Tabor, David Lloyd, and James Lyne Hancock, on the 14th of *November, 1856, in our Court of

*2] Common Pleas at Westminster, by the judgment of the same court recovered against you the said Henry Edwards 5077. 19s. 2d., whereof you the said H. Edwards are convicted; which said judgment was obtained upon a bond dated the 21st of January, 1856, and sealed with the seal of you the said H. Edwards, whereby you the said H. Edwards became held and firmly bound to the said W. Tabor, D. Lloyd, and J. L. Hancock, in the penal sum of 500l., to be paid to the said W. Tabor, D. Lloyd, and J. L. Hancock, with and under a condition to the said bond subscribed, of which condition a breach had been committed by you the said H. Edwards before the commencement of the said action in which the said judgment was obtained as aforesaid; which said condition was and is in the words and figures and of the tenor and effect as follows, that is to say,-" Whereas the above-bounden John Amey hath agreed to effect a policy of assurance with the said society, upon the life of himself, in the sum of 9001., at the annual premium of 327. 14s. 9d.; and whereas, upon the request of the above-bounden obligors, the obligees in the above-written bond lately agreed to lend to the said John Amey, out of moneys in their hands in trust for the Gresham Life Assurance Society, the sum of 3007., upon the terms that the repayment thereof, with interest for the same at the rate of 51. for every 1007. for a year, should be secured to the said obligees, their executors, *3] *administrators, and assigns, by the joint and several bond of the said John Amey and of the above-mentioned Charles Barber and Henry Edwards as his sureties, and by a deposit of the said recited policy, and by the provisions hereinafter contained; and whereas the said obligees have, immediately before the execution of the abovewritten bond, paid the said sum to the said John Amey, as he doth hereby admit, and the said policy hath been deposited accordingly: Now, the condition of the above-written bond is such, that, if the said obligors, or some or one of them, do and shall pay or cause to be paid unto the said obligees, or the survivors or survivor of them, or their or his assigns, or the executors or administrators of such survivor, the full sum of 3001. of lawful money of Great Britain, with interest, by the instalments and in manner following, that is to say, the said principal sum by six consecutive instalments of 501. each, to be respectively paid at the chief office for the time being of the said society on the 21st of July and the 21st of January in every year until the whole of the said principal sum shall be fully repaid,-the first of such payments to be made on the 21st of July now next ensuing,-and do and shall on the said several days of payment pay or cause to be paid to the said obligees, or the survivors or survivor of them, or their or his assigns, or the executors or administrators of such survivor, at the office aforesaid, interest after the rate of 51. for every 1007. by the year for the said principal sum, or for so much thereof as from time to time shall remain unpaid,— such interest to commence from the day of the date of the above-written bond; and if in the mean time the premiums on the said policy shall be duly paid, and the said policy shall in all respects be duly maintained and kept in force and available, and no one of them the said

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obligors shall in the mean time die or go to reside out of *England, or make or attempt to make any arrangement to depart from the united kingdom, or become bankrupt, or be declared insolvent, or be imprisoned for debt or outlawed, or compound or attempt to compound with his creditors, or take or attempt to take the benefit of any act or acts now or hereafter to be in force for the protection, relief, or discharge of insolvent debtors, or of any act or acts now or hereafter to be in force for facilitating arrangements between debtor and creditor, or accept or take the benefit of any letter of license or deed of arrangement with all or any of his creditors, or obtain or attempt to obtain any extension of time for payment in whole or in part of any debt or debts due, owing, or payable, or to become due or owing or payable from him, or make or execute any bill of sale or warrant of attorney as a security for or in satisfaction of any such debt or debts, or suffer judgment by default or otherwise in any action or proceeding for the recovery of any such debt or debts, or give or consent to any order of a judge for payment of such debt or debts,-then and in such case, and after such payments as aforesaid, the above-written bond shall be void, or else shall remain. in full force: Provided always, that, if default shall be made in payment of the said instalments and interest, or any of them, or any part or parts thereof respectively, for the space of twenty-one days after the day or days herein before appointed for the payment thereof, or if, whilst any money shall remain on the security of the abovewritten bond, the premiums necessary for keeping on foot the said policy shall not be duly paid by the said obligors, or some or one of them, or if the said policy shall for any other cause become void or voidable, or if, before the 21st of January, 1859, any one or more of the said obligors shall die or go to reside out of England, or make or attempt to make any arrangement to depart from the united kingdom, *or become bankrupt, or be declared insolvent, or be imprisoned for [*5 debt, or outlawed, or compound or attempt to compound with his or their creditors, or take or attempt to take the benefit of any act or acts now or to be hereafter in force for the protection, relief, or discharge of insolvent debtors, or of any act or acts now or to be hereafter in force for facilitating arrangements between debtor and creditor, or accept or take the benefit of any letter of license or deed of arrangement with all or any of his or their creditors, or obtain or attempt to obtain any extension of time for payment in whole or in part of any debt or debts due, owing, or payable, or to become due or owing or payable from him or them, or make or execute any bill of sale or warrant of attorney as a security for or in satisfaction of any such debt or debts, or suffer judgment by default or otherwise in any action or proceeding for the recovery of any such debt or debts, or give or consent to any order of a judge for payment of any such debt or debts,-then and in any such case, and at any time or times thereafter, the above-written bond shall be a security for, and may be put in force for obtaining and enforcing, immediate payment by the said obligors, or any or either of them, their, any or either of their, or his, heirs, executors, or administrators, unto the said obligees, or the survivors or survivor of them, or their or his assigns, or the executors or administrators of such survivor, of the said principal sum of 3007., with interest for the same after the rate and to be com

puted as aforesaid, or so much of the same principal sum and interest as shall not have been paid, and also for obtaining and enforcing the payment by the said obligors, or any or either of them, or any or either of their or his heirs, executors, or administrators, unto the said obligees, or the survivors or survivor of them, or their or his assigns, or the executors or administrators of such survivor, of all and every the pre

miums and premium, sums and sum of money for which the *said

*6] obligees or any of them shall have obtained an acknowlegment of credit or receipt in writing from the said Gresham Life Assurance Society for the purpose of keeping on foot or renewing the said policy against the said company, notwithstanding that default shall have been made by the said obligors, and every of them in making the payments necessary for keeping the said policy on foot, or that any breach of the conditions or stipulations contained in or endorsed on the said policy shall have occurred, together with interest for such premiums or premium, sums or sum of money for which such credit or receipt shall have been given as aforesaid,-such interest to be computed on the respective premiums or sums, after the rate aforesaid, from the time or times from which such credit or receipt shall have been given for the same; and further for obtaining and enforcing from the said obligors, or any or either of them, their or any or either of their, or his, heirs, executors, or administrators, the payment to the said obligees, or the survivors or survivor of them, or their or his assigns, or the executors or administrators of such survivor, of all costs, charges, and expenses to be paid or incurred by them or any of them in or about the enforcing or attempting to enforce the above-written bond against the said obligors, their heirs, executors, administrators, or assigns, or any one or more of them, or otherwise incident to or consequent upon any breach or default of the foregoing conditions, or any of them: Provided always that nothing herein contained shall extend or be deemed to extend as imposing any obligation upon the said obligees, or the survivors or survivor of them, or their or his executors, administrators, or assigns, or upon the said Gresham Life Assurance Society, to renew or cause or procure to be renewed the policy in cases of non-payment of any such premium or premiums as aforesaid, or in case of breach or non-observance of *7] any of the provisoes, conditions, or stipulations contained in or endorsed upon the said policy: Provided further, that, if default shall be made in payment of any of the instalments of the said principal sum, or in payment of the interest thereon, or of any premium or premiums upon the said policy, contrary to the conditions aforesaid, and the said obligees, or the survivors or survivor of them, or their or his executors, administrators, or assigns, shall have waived any such default, and shall have accepted payment of any of the said instalments and interest, or have permitted the renewal of the said policy (if the said Gresham Life Assurance Society shall choose to renew the same) without enforcing full payment of the said principal sum, and the interest thereof, or so much thereof as shall then remain unpaid, such waiver and acceptance or renewal shall in nowise prejudice or defeat the right of the said obligees, or the survivors or survivor of them, or their executors, administrators, or assigns, to proceed upon the above-written bond, on the happening of any subsequent breach or breaches of the foregoing con

dition, or any part thereof, and so from time to time: Provided further, that the giving time to the said John Amey, or the having any other dealings with him by the said obligees, or the survivors or survivor of them, or their or his executors, administrators, or assigns, or any of them, shall not affect, release, or discharge the said sureties, or either of them, or their or either of their heirs, executors, or administrators, from liability under the above-written bond, but that such liability shall continue until all moneys intended to be secured by the above-written bond shall be fully paid:" And whereas we are now also informed on behalf of the said W. Tabor, D. Lloyd, and J. L. Hancock, in our said court, that, after the commencement of the said action wherein the said judgment was recovered as aforesaid, you the said *H. Edwards compounded with your creditors within the meaning of and contrary to the said [*8 condition, and that, at the time when you so compounded with your creditors as aforesaid, a large part of the said principal sum of 3007. and interest in the said condition mentioned, to wit, in all, the sum of 260., was and remained unpaid, and thereby and by virtue of the said condition, upon such compounding as aforesaid, became and was payable to the said W. Tabor, D. Lloyd, and J. L. Hancock, and that the said sum of 2607. still is and remains in arrear and unpaid to the said W. Tabor, D. Lloyd, and J. L. Hancock, for which said breach, being another and further breach, since the said judgment, of the said condition, the said W. Tabor, D. Lloyd, and J. L. Hancock have humbly besought us to provide them a proper remedy: And we, being willing that what is just in this behalf should be done, do, according to the statute in that behalf made and provided, command you, that, within eight days after the service of this writ upon you, inclusive of the day of such service, you appear in our Court of Common Pleas at Westminster to show cause why execution should not be had and awarded against you upon the said judgment so obtained as aforesaid, for the damages to be assessed by reason of the said last-mentioned breach of which we are now informed as aforesaid, if it shall seem expedient for the said W. Tabor, D. Lloyd, and J. L. Hancock, and further to do and receive what our said Court shall then and there consider of you in this behalf: And take notice, that, in default of your so doing, the said W. Tabor, D. Lloyd, and J. L. Hancock may proceed to execution. Witness, &c. And the said H. Edwards has appeared to the said writ; and the said W. Tabor, D. Lloyd, and J. L. Hancock prayed that execution might be adjudged to them against the said H. Edwards upon the said judgment so obtained for the damages to be assessed by reason of the said last-mentioned breach of the said condition of the said bond, according to the form and effect of the said recovery, &c.

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The defendant pleaded,-first, that he did not, after the commencement of the said action, compound with his creditors, within the meaning of or contrary to the said condition, as alleged.

Secondly, that, after the commencement of the said action, and before the issuing of the scire facias herein, he, the defendant, was a trader liable to become bankrupt under the bankrupt laws, and within the meaning of The Bankrupt Law Consolidation Act, 1849, and, before and at the time of the making of the memorandum of arrangement thereinafter mentioned, was indebted to the parties of the other part of the

said memorandum of arrangement, and to divers other persons, in divers sums, and was unable to pay the same in full: That the defendant, before the time of making the said memorandum of arrangement, and after the passing and coming into operation of the said statute, suspended payment; and thereupon a certain memorandum of arrangement, within the meaning and according to the provisions of the said statute, was made between the defendant of the first part, and the several persons whose names were thereunto subscribed (being respectively creditors of the defendant, or the authorized agents of such creditors) of the other part: That all things were performed and done as required by the said statute to make the said memorandum of arrangement an obligatory instrument within the terms of the said statute upon all the creditors of the defendant: That the plaintiffs were at the time of the making of the said memorandum of arrangement creditors of the defendant in respect of the causes of action in the declaration mentioned, within the provisions of the said Act; and that, after the said suspension of payment by the *defendant as aforesaid, and after the said memorandum of *10] arrangement had been so signed as aforesaid, and before the issuing of the said scire facias, the plaintiffs had notice; and that he the defendant and the said parties of the other part had at all times since the making of the said memorandum of arrangement well and truly observed and performed in all respects the premises and agreements in the said memorandum of arrangement contained on their parts to be fulfilled and performed; and that, by reason of the premises, and by force of the said statute, the said memorandum of arrangement became and was and is obligatory on the plaintiffs as if they had duly signed the same.

Thirdly, that, after the commencement of the said action, the defendant compounded with his creditors, and that, after such compounding, by a certain order of Martin, B., made in the said action, upon hearing the attorneys or agents on both sides, it was ordered that the plaintiffs should be at liberty to sign judgment in the said action, with costs, to be taxed, and that the proceedings should be stayed on the costs being paid; that the said costs were afterwards, on the 18th of November, 1856, taxed by one of the masters at the sum of 77. 19s. 2d.; that the defendant thereupon, and before the issuing of the said writ of scire facias, paid to the plaintiffs the said sum of 77. 19s. 2d. for such costs; and that, except as in that plea before mentioned, he the defendant had not, after the commencement of the said action, compounded with his creditors within the meaning of or contrary to the said condition. The plaintiffs joined issue on the several pleas.

They also demurred to the second plea, the ground stated in the margin being "that the second plea does not set forth or show the existence of any memorandum of arrangement operating as a bar to the scire facias."

And, for a second replication to the third plea, the plaintiffs *11] said that the said order in that plea mentioned was and is in the words and figures and of the tenor and effect as follows, that is to say, -"Tabor and Others v. Edwards." Upon hearing the attorneys or agents on both sides, I do order that the plaintiffs be at liberty to sign judgment in this action for 500l., with costs, to be taxed, and that the