proceedings be stayed upon costs being paid; and that the plaintiffs had not, nor had the said judge, at the time of the said order, knowledge or notice of the said compounding by the defendant with his creditors in the third plea mentioned.

The plaintiffs also demurred to the third plea, the ground stated in the margin being "that the said order in the third plea mentioned is no bar to the scire facias."

The defendant joined in demurrer, and demurred to the second replication to the third plea, the ground alleged being "that the said order in the third plea mentioned is a bar to the scire facias, whether Sir S. Martin at the time of the order had notice or not." Joinder.

Archibald, for the plaintiffs. (a)-The second plea is bad. *It

is meant for a plea under the 224th section of The Bankrupt Law [*12

Consolidation Act, 1849, 12 & 13 Vict. c. 106, which enacts "that every deed or memorandum of arrangement now or hereafter entered into between any such trader and his creditors, and signed by or on behalf of six sevenths in number and value of those creditors whose debts amount to 107. and upwards, touching such trader's liabilities, and his release therefrom, and the distribution, inspection, conduct, management, and mode of winding up his estate, or all or any of such matters, or any matters having reference thereto, shall (subject to the conditions. hereinafter mentioned) *be as effectual and obligatory in all [*13 respects upon all the creditors who shall not have signed such deed or memorandum of arrangement, as if they had duly signed the same and such deed or memorandum, when so signed, shall not be or be liable to be disturbed or impeached by reason of any prior or subsequent act of bankruptcy: Provided always, that every creditor shall be

(a) The points marked for argument on the part of the plaintiffs, were,

"As to the second plea,-that the defendant's second plea does not set forth or show any memorandum of arrangement which operates in any manner as a bar to the scire facias.

"That the allegation in the second plea, that a certain memorandum of arrangement was made within the meaning and according to the provisions of the Bankrupt Law Consolidation Act, 1849, without any further statement of the contents, substance, or effect of the said instrument, is wholly unmeaning; and that the provisions of the said deed ought to have been set forth in the said plea.

"That the said second plea is bad, inasmuch as it does not show that the said memorandum of arrangement was under seal, or contained any valid release of any of the debts or causes of action mentioned or referred to in the said plea; and that, unless under seal, such memorandum of arrangement would not be pleadable in bar.

"That the said second plea does not show that the said memorandum of arrangement was duly signed, according to the provisions of the said act, by six sevenths in number and value of the creditors of the defendant, or that three months had elapsed after notice to the plaintiffs of the defendant's suspension of payment, or that the plaintiffs ever had any such notice or knowledge of any application for a certificate of the due signature of the said memorandum, or that any such certificate was granted.

"And that the alleged memorandum of arrangement, being the breach of the condition of the said bond alleged in the declaration, cannot be set up by way of defence thereto."

As to the third plea,-"That the third plea is bad, inasmuch as a judge's order to stay proceedings in an action cannot be pleaded in bar of such action; and that it appears by the order as set forth, that it was not and could not have been meant to stay proceedings in respect of the breach now alleged."

As to the second replication to the third plea,-"That the second replication to the third plea is a sufficient answer thereto, and shows that the said order was only intended to apply to any breach of the said condition which had occurred prior to the issuing of the writ of summons in the said action, and had no application whatever to the breach now alleged."

accounted a creditor in value in respect of such amount only as, upon an account fairly stated, after allowing the value of mortgaged property and other such available securities or liens from such trader, shall appear to be the balance due to him." The 225th section enacts "that no such deed or memorandum of arrangement shall be effectual or obligatory upon any creditor who shall not have signed the same, until after the expiration of three months from the time at which such creditor shall have had notice from such trader of his suspension of payment, and of such deed or memorandum of arrangement, unless such trader shall within such time obtain from the court an order or certificate of the said court declaring or certifying that such deed or memorandum of arrangement has been duly signed by or on behalf of such majority of the creditors as aforesaid: and it shall be lawful for the court within the district of which the trader shall have resided or carried on business for six months next immediately preceding his suspension of payment, to make such order or certificate on the petition of any such trader, and to exercise jurisdiction in and over the matters of any such application: and no creditor who shall not have had fourteen days' notice of any intended application for such order or certificate as aforesaid shall be bound thereby." Here, the second plea merely states that a certain memorandum of arrangement within the meaning and according to the provisions of the statute was made between the defendant and the several *14] *persons whose names were thereunto subscribed, being creditors of the defendant;-not that it was a memorandum touching the defendant's liabilities, and his release therefrom, and the distribution, &c., of his estate; nor is there anything to show that it was a memorandum within the above sections, except the general averment "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." If a form of plea had been given in the statute, that would have been intelligible enough: but, as it stands, the plea cannot be good unless it sets out the provisions of the deed, so that the court may see that it is a deed within the act. [CROWDER, J.-Might you not, if the facts would warrant it, have negatived the deed being in accordance with the statute?] It is for the defendant to make out a good defence to the plaintiff's claim. [CROWDER, J.-The plea does state that it is a deed of arrangement within the act.] It does not point to these sections; and there are other provisions in the act to which it might have been intended to apply: it might have been an arrangement made with the sanction of the court, under the 211th and subsequent sections. Whatever the effect of the general averment, it clearly cannot be held to amount to an averment that the period of notice had expired. Bloomer v. Darke, 2 C. B. (N. S.) 165, it was held that a plea of arrangement under s. 224 is not good, unless it shows on the face of it that the deed is for the distribution of the whole of the debtor's estate, and enures for the benefit of all the creditors; and that the want of such specific averments in the plea is not supplied by the general allegation. found in this plea. In the course of the argument in that case, Cresswell, J., observes, "The general words, that all matters and *things were done and happened,' &c., cannot surely be read all

*15]

In

words were inserted in the deed necessary to make it a compliance with the act.'" [WILLIAMS, J.-The plea is certainly very loose.] Even in Bloomer v. Darke the plea was much fuller than that in the present case. [WILLES, J.-The plea in that case did not show that the deed relied upon was a deed within the meaning of the act.] It has always been the practice to set out the terms of the deed. [WILLES, J.-It certainly was not so before the middle of the year 1855. The House of Lords in Larpent v. Bibby, 5 House of Lords Cases 481, decided that you must not look to the 224th section only, but that it must be made appear that the deed provides for the distribution of the debtor's property amongst all his creditors. That is stated here, by the general averment.] There was a general averment in Bloomer v. Darke. [WILLES, J.-Not that the deed was in accordance with the provisions of the statute; but that "all matters and things were done and happened according to the said act, to make the deed, and the said release therein contained, as effectual and obligatory in all respects upon the creditors, including the plaintiff, who did not sign the said deed, as if they had duly signed the same."] It may be that the deed is conditional on the estate proving sufficient to pay all the creditors 208. in the pound; or it may not contain a release. [WILLES, J.-That is a better point: it might be only a letter of license for two years.] Exactly so. [CROWDER, J.-If it is a deed under the 224th section of the 12 & 13 Vict. c. 106, it must contain a release: if not, should you not have replied it?] To constitute a defence to the action, the deed must amount to a release or a bar, and that should appear by the plea. The third plea sets up a stay of proceedings by judge's order. No action lies for disobedience of a judge's order: the remedy is by attachment: Dent v. *Basham, 9 Exch. 469,-even

though the order be made by consent: Hookpayton v. Bussell, 10 [*16

Exch. 24. The converse is equally true, viz., that it cannot be used as a defence to an action. The second replication to the third plea is unexceptionable.

Malcolm, contrà.(a)-The second plea sets out that which, if proved, affords a complete answer to the action. A "memorandum of arrangement" under the statute need not be by deed. [WILLES, J.-If the plea had gone on to say, "and whereby it was agreed that the defendant should be released and discharged from all his debts," &c., the difficulty now suggested could not have arisen. If you will not put in an averment of that sort, we cannot help thinking that the deed is no release.] The

(a) The points marked for argument on the part of the defendant, were as follows:"That the declaration shows no cause of action; the stipulation in the contract, that the defendant should not compound or attempt to compound with his creditors, being illegal and contrary to the policy of the bankrupt laws:

"That the second plea does set forth and show a memorandum of arrangement which operates as a bar to the scire facias:

"That the allegation in the second plea, that a certain memorandum of arrangement was made within the meaning and according to the provisions of the Bankrupt Law Consolidation Act, 1849, without any further statement of the contents, substance, or effect of the said instrument, is sufficient; and that, if the plaintiffs contended that the contents, substance, or effect of the said instrument were not in accordance with the provisions of the said act, they ought to have set out the said instrument in terms, and demurred thereto :

"And that the Bankrupt Law Consolidation Act, 1849, does not require a memorandum of arrangement to be made by deed, or under seal, and a memorandum of arrangement under the said act is pleadable in bar, though not under seal."

VOL. IV.-3

plea does so allege in general terms. It could not have been a *17] statutory suspension of the right of action for a limited time; for, that would not be a "memorandum of arrangement" within the statute at all, (a) which the plea expressly avers this deed to have been. [WILLIAMS, J.-Would a letter of license for two years be a bar?] That would not be within the 224th section. The allegation here is altogether inconsistent with anything short of a deed or memorandum under that section. The ordinary deed of inspection is not the thing there contemplated. [WILLIAMS, J.-It is much to be regretted that we do not know what the deed really is. Archibald intimated that he had ascertained that there was nothing in the deed which could make the plea any better.] As to the third plea,-the instrument there referred to is something more than a mere judge's order: it amounts to an accord and satisfaction, sanctioned by the judge.

Archibald, in reply.-No answer has been given to the objection, that, for anything that appears upon the face of the second plea, the deed may not have contained an absolute release. In a case now pending in the Exchequer,-Irving v. Gray,-that court treated a deed of inspection as being within the 224th section. [CROWDER, J.-How do they deal with Tetley v. Taylor, 1 Ellis & B. 529 ?] No judgment has yet been delivered.(6)

WILLIAMS, J.-We entertain no doubt as to the third plea being a bad one. The second, however, raises an *important question, as to *18] which it is desirable that we should take time to consider.

Cur. adv. vult. WILLIAMS, J., now delivered the judgment of the Court:

*19]

Upon the argument of this demurrer, the court entertained some doubt as to the construction of the 224th section of the 12 & 13 Vict. c. 106, with reference to the decisions as to whether, in cases of arrangements within that section, there must be an express assignment on the part of the insolvent of all his estate and effects. But we think it unnecessary to consider that question, because we are of opinion, that, assuming it to be requisite to the validity of the deed or memorandum of arrangement under that section that there should be an assignment by the debtor of all his *property, such a deed or memorandum might be valid. notwithstanding that it should not operate as a bar to an action (a) See Tetley v. Taylor, 1 Ellis & B. 529, Larpent v. Bibby, 5 House of Lords Cases 481. (b) Irving v. Gray has since been reported in 3 Hurlst. & N. 34.† The way in which the court, in giving judgment, deal with Tetley v. Taylor, is as follows (p. 90): "We agree that the trusts of the deed must be such as to enure for the distribution of all the debtor's estate and effects amongst all his creditors. This court, in Drew v. Collins, 6 Exch. 670,† and the Court of Common Pleas in Bell v. Fisher, 12 C. B. 363, decided that a deed of arrangement must provide for a distribution of all the trader's estate amongst all his creditors. The Court of Exchequer Chamber in the case of Tetley v. Taylor, 1 Ellis & B. 529,† on a writ of error brought upon a decision of the Court of Queen's Bench, decided the same. This question was much discussed in the House of Lords, in the case of Larpent v. Bibby, 5 House of Lords Cases 481. It was not, however, then determined. The judges who heard the argument were not altogether agreed upon this point, and the case was decided on another ground. The Court of Common Pleas has, since the case of Larpent v. Bibby, viz., in the case of Bloomer v. Darke, 2 C. B. (N. S.) 165, held that a plea of arrangement under the 224th section is not good unless it shows on the face of it that the deed is for the distribution of the whole of the debtor's estate, and enures for the benefit of the whole of the creditors. No part of the trader's property is in terms, or, as we think, by necessary implication, excluded from the operation of the present deed, as was the case in Drew v. Collins and Tetley v. Taylor."

by a creditor. It is therefore quite consistent with the allegation in the third plea that the deed or memorandum of arrangement therein referred to contains nothing which can operate as a bar to the action; and, consequently, the plea is no answer. As there is nothing in the plea to inform us what are the contents of the deed, we cannot hold it to be a bar to the action. In addition to this, the court are by no means satisfied, though it is unnecessary to give any decided opinion upon the point, that the plea is not bad, on the ground that it fails to satisfy the requirements of the 224th section, in this, that it does not allege that the notice was given as required by that section, for, it is at the best extremely doubtful whether the general averment is not consistent with the thing not having been done within the time prescribed by the 224th section.

For these reasons, we are of opinion that our judgment must be for the plaintiffs. Judgment for the plaintiffs.

*POPPLETON v. BUCHANAN.

BUCHANAN v. POPPLETON. Feb. 10.

[*20

By the particulars on a sale by auction of freehold land, the property was described as "landtax redeemed." The only evidence of that fact, was, a statement in the witnessing part of a conveyance (dated in 1844,-twelve years before the date of the sale) from one Mears to one Humphreys (from whom the property came by various mesne assignments to the vendor), in which the then vendor acknowledged to have received the amount of the purchase-money for the purchase of the premises " and the fee-simple and inheritance thereof in possession, free from land-tax and all other encumbrances," and a statutory declaration by Mears, to the effect, that to the best of his knowledge and belief, no land-tax had ever been paid for or in respect of the land "subsequently to the purchase or redemption thereof in or about the year 1799:"_

Held, that this was not such evidence of the fact of the land-tax having been redeemed, as to entitle the vendor to insist upon a completion of the purchase,-notwithstanding a condition which provided that "every deed and entry on or copy of court roll dated more than ten years ago shall be conclusive evidence of everything recited or stated therein:" for, that this was not a direct statement or recital of the fact that the land-tax had been redeemed, but only an acknowledgment by the then vendor that the then purchaser had paid a certain sum for the land as being free of land-tax and other encumbrances; and it was consistent with such statement that the land-tax had not been redeemed, but that it had been purchased or assigned to the then purchaser, or to a trustee for him, in whom or in whose representatives it might still be vested.

And held, that the purchaser was entitled to recover back the deposit with interest, and the costs of investigating the title.

Quære, whether this was not properly the subject of compensation, under the ordinary condition for that purpose?

THE following case was stated for the opinion of the court, pursuant to a judge's order.

On the 1st of August, 1856, Dr. Andrew Buchanan caused to be put up for sale by auction the house and premises described in Lot 1 of the particulars of sale as "a recently erected modern detached residence" (describing it).

"The land comprises in all 29a. 1r. 31p. (more or less), divided into convenient enclosures, as follows: