CHAN.]

PENDLETON v. ROOTH.

[CHAN.

the defendant M'Cubbin or his advisers to be otherwise than temporary merely, more especially as the court by the decree declared the plaintiff's lien, and directed the account to ascertain what was due upon it. I have entered thus fully into the case, not from having myself felt any difficulty upon the points, but because I should be sorry that the court in Scotland should suppose that this court would not pay all proper regard to its orders and process. This court will not fail to give full attention to the proceedings in Scotland, as the Scotch court will no doubt do to the orders and proceedings of this court. I am of opinion that these appeals are altogether unfounded, and ought to be dismissed with costs.

that he was bound to leave the money in the hands of appellant that he was misled by the order upon the the trustees of the society, which certainly he was not motion having been made without prejudice to the bound to do if the rights of the defendant were pre-arrestments and having been continued by the decree; served. Whether he would have been bound to do so but this provision, which was very properly introduced if those rights had not been reserved, and therefore whilst it was uncertain whether the court in Scotland whether the reservation of them contained in the order or this court would first arrive at a final decision bewas correct or not, it is not necessary for us to say.tween the parties, can hardly have been supposed by The reservation is one of which the defendant Mr. M'Cubbin cannot complain, and which in the result does not affect the other defendants. Then as to the decree, it is sufficient, I think, to say, that if the plaintiff was, as for the reasons already given I think he was, entitled to institute this suit, he could not be less entitled to prosecute it, and that no decree could have been made more favourable to the defendant M'Cubbin, than the order made on payment of the money into court contained. Lastly, as to the order on further consideration, this court having possession of the fund, having before it the parties claiming to be entitled to the fund, and having ascertained the rights of those parties in their presence (for the defendant M'Cubbin, although he may have thought proper not to attend, cannot be allowed to say he was not present), was surely entitled, if not bound, to dis- (Before the LORD CHANCELLOR (Campbell) and the pose of the fund according to those rights. It is said that the suit in Scotland was first instituted; but if that suit had been in England, the pending of it could not have prevented the final order in this suit from being pronounced, and apart from any special remedies incident to the proceedings in Scotland, it cannot surely be said that this court ought to give any greater effect to proceedings in that country than would be due to the same proceedings had they been taken in this country. It is said, however, that this court ought to have held its hand upon the ground of the arrestments which had been laid in Scotland; but one of those arrestments had been already satisfied by the plaintiff having appeared in the Scotch suit, and the other arrestment was for security to answer the result of the Scotch suit. In

Nov. 21, 22, 23 and 25.

LORDS JUSTICES.)

PENDLETON v. ROOTH.

Mortgagee in possession twenty-one years—Acknow
ledgment by tenant in tail of mortgagor's title.
B. mortgaged an estate to C., which he devised to h
wife for life with remainders over. On his death
C. brought an ejectment against B.'s widow, and
obtained possession of the estate, which he retainsi
till his death, a period exceeding twenty years. The
estate was devised by C. to his eldest son D. in tail
male, with remainders over. After D.'s death pro-
ceedings were instituted under B.'s will to redeem the
mortgaged premises, when a compromise was effected,
by which, in consideration of 2407., the estate was
conveyed to D. freed from the equity of redemption:

acknowledgment by D. revived the mortgagor's title, and that D.'s purchase of the equity of redemption gave him the absolute ownership of the estate, to the exclusion of the devisees in remainder under C's will.

This was an appeal from a decision of Stuart, V. C., reported 33 L. T. Rep. 358, where the facts of the case are given in detail. The case is also reported in 1 Giff. 35.

Bacon, Q.C. and Hislop Clarke opened the case for the plaintiffs, the respondents, the appeal being from the whole decree.

Walker, Q.C. and Chapman Barber for the defendants the appellants.

this case, however, the debt arrested was validly as-Held (affirming the decision of Stuart, V.C.), that the signed according to the law of this country upon a contract entered into here between parties domiciled here, and is recoverable according to the law of this country, and I do not apprehend that under such circumstances this court can be in any way bound to supersede its own jurisdiction in favour of the jurisdiction of Scotland. There may possibly be cases in which even under such circumstances this court would impose upon the party suing in this country the obligation of giving the security required by the law of Scotland; but if this can be done at all, I think it can only be done where the justice of the case plainly requires it; and looking to the state of the account between these parties, I see no foundation for requiring it to be done in this case. With reference to the general law upon this subject there have been some cases in which this court has refused to interfere with proceedings in foreign courts upon the ground of convenience, and upon the same ground this court might, as I apprehend, supersede its decree until a decision had been come to in a foreign court; but if we look at this case with reference to the question of convenience, I think that the affidavit to which I have referred abundantly shows that the convenience is in favour of the proceedings in this court, and not of the proceedings in the Court of Scotland. The case of the Carron Company, which was referred to on the part of the appellants, does not seem to me to have any bearing upon the question beIt decides no more than that this court ought not to interfere to restrain a foreign creditor from proceeding to recover his debt according to the law of his own country, and does not touch the question whether the foreign creditors would prevent a creditor here from recovering according to our law, which is what the appellant M Cubbin is endeavouring to do. It was suggested on the part of the

fore us.

The following authorities were referred to:-Roddam v. Morley, De G. & J. 1; Stansfield v. Hobson, 3 De G. M. & G. 620; Harrison v. Hollins, 1 S. & S. 471; Reynoldson v. Perkins, 2 Amb. 653; Cowne v. Douglas, M'Cl. & Y. 321; Hovenden v. Annesley, 2 Sch. & Lef. 617; Noys v. Mordaunt, 2 Vern. 583; Garret v. Evers, Mos. 364; Corbett v. Baker, 1 Anstr. 138; Gregson v. Hindley, 10 Jur. 383; Drant v. Vasse, 1 Y. & C. C. C. 580; Smith v. Smith, 5 Ir. Ch. Ca. 88.

The LORD CHANCELLOR.—I am of opinion that the respondents are entitled to two-thirds of this estate. When Samuel Rooth the elder had, as mortgagee, been in possession for twenty years without acknowledgment of the debt, he was not liable to be ousted by the mortgagor; but the presumption that he was absolutely entitled might be rebutted during his life by his acknowledgment that he held only as mortgagee and was accountable to the mortgagor. It is admitted that independently of the will an acknowledgment at any time after his death by his son would have been sufficient; even that as devisee in tail he might have

CHAN.]

Ex parte ALSOP, re REES.

[CHAN.

his creditors, which deed professed to be made under
the arrangement clauses of the Bankrupt Law
Consolidation Act 1849, and was intended to be
executed by six-sevenths in number and value of his
creditors; their Lordships

Held (differing from Mr. Commissioner Hill), that
such execution was an act of bankruptcy committed
by the trader, and that before its execution by the
required majority, any creditor who had not executed
it might avail himself thereof to support a petition
for adjudication of bankruptcy against the trader.

bound his own interest, although it was strenuously
denied that this acknowledgment would have prejudiced
the rights of the persons entitled in remainder. I do
not, however, see how such an acknowledgment could
be good for the one purpose and not for the other.
By the deed of 1814, to which Samuel Rooth the
younger was named a party, and under which he acted,
a true history was given of the deeds affecting the
premises and of the state of circumstances, showing
that Samuel had no beneficial interest except under
the mortgage, and that the equity of redemption was
still subsisting. Mr. Walker, in his learned and inge-But where a sale of the effects was contemplated by the
nious argument, reasoned as if Samuel was tenant in
tail with remainders over, and had no other title. It
is not necessary for us to consider how the case would
have stood if Samuel Rooth the younger had been a
mere stranger, and if he had entered on the premises
and then acknowledged the right of the mortgagor.
Samuel Rooth was, however, heir-at-law of the mort-
gagor, and it is admitted that he never acted as tenant
in tail or in any way inconsistently with his title as
mortgagee. I think, therefore, the case must be con-
sidered as if he was only mortgagee and there had been
no will. The consequence is, that effect must be given
to the release of the equity of redemption to Samuel
under which the respondents claim, and no effect to
the gift in remainder on which the appellants rely,
and this appeal must be dismissed.

Lord Justice KNIGHT BRUCE.-The first question here is, whether, although the conveyance was not executed by Samuel Rooth, he ought to be taken to be privy to it, and to have paid the consideration money, and to have taken an interest under it. That question must be answered in the affirmative, and this case must be treated on the same footing as if, in 1814, Samuel had been an executing party to that deed. Then arises whether, on the facts stated, including the possession of the father for twenty-three years, and of the son till 1829, and the will (under which, however, all that Samuel Rooth took was an estate as tenant in tail), but including also the conveyance of 1814, it ought to be considered that immediately before the conveyance the mortgage was redeemable. I am of opinion that the affirmative of this also is correct. The materials before the court established that the right of the mortgagors was not before the conveyance released or extinguished. If these views are correct, then I am of opinion that the two-thirds of the Newmarket property was not in equity bound as real estate by the will of the mortgagee, but became assets in the hands of his executors. The transaction of 1814 seems to me to consist of two parts: first, the redemption of the two-thirds of the estate by the representatives of the mortgagors; and secondly, the purchase by Samuel Rooth of the equity of redemption from the persons entitled to redeem, which purchase he was clearly entitled as against all the other devisees of the real estate to make and did make. He owed no duty to any of the persons attempting to forbid the transaction. The decree therefore appears to me to be right as respects these two-thirds. With respect to the other third there is no dispute, the plaintiffs having undertaken to give it up.

Lord Justice TURNER.-As I did not hear the whole argument in this cause, I do not think it right to give a judgment.

Sa'urday, Dec. 17.
(Before the LORDS JUSTICES.)
Ex parte ALSOP, re REES.

trustees, and the petitioning creditor had written to
the traders recommending a sale, and to the trustees
requesting a bill of the sale, in order that he might
attend thereat, even although he had expressly de-
clined to execute the deed, it was

Held (dubitante Knight Bruce, L.J.), that this con-
duct was such an acquiescence in the deed by the
creditors, as to preclude him from taking advantage
of the trader's execution of the deed, by procuring
adjudication of bankruptcy against the trader.
a petition presented in appeal from a
decision of Mr. Commissioner Hill, of the Bristol Dis-
trict Court of Bankruptcy, by which an adjudication of
bankruptcy against Mr. Richard Rees, a cabinet-maker
of Llanelly in the county of Caermarthen, was an-
nulled. The circumstances were as follows:-

This was

In the autumn of 1859 Mr. Richard Rees being in difficulties, caused to be prepared a deed of arrangement with his creditors, and it was duly executed by him on the 2nd Nov. 1859. It was expressed to be made in pursuance of the provisions of the Bankrupt Law Consolidation Act 1849, so far as the same affected deeds of arrangement between debtor and creditors, and it contained, amongst other things, a clause in these terms: "Provided also, that all questions relating to the said trust-estate shall be decided according to the English bankrupt law, and especially according to the provisions of the Bankrupt Law Consolidation Act 1849, with respect to arrangements by deed; and if any clause, matter or thing herein contained shall be inconsistent with, or shall be by a court of competent jurisdiction construed to be inconsistent with, the provisions of the said Act, then such clause, matter or thing shall be void and have no effect, and the said court shall have full power to expunge the same, and to insert any clause, matter or thing, or words herein, which shall be deemed necessary to make those parts thereof conformable to the said provisions; it being the intention of all the persons by or on whose behalf these presents are or shall be signed or executed, that the same shall operate, so far as may be, as a deed of arrangement, to be made obligatory under the provisions of the said Act."

The deed which conveyed and assigned all Mr. Rees' property to Mr. Holmes, of Bath, timber merchant, upon the usual trusts, having been duly executed by Mr. Rees, was by his solicitors carried round without delay to his principal creditors, and amongst them to the present petitioner Mr. Uriah Alsop; that gentleman gave an evasive answer to the request that he would execute it, and said that he wished to consult his solicitor in the matter, but he did not positively refuse to sign. Under the provisions of the deed the property of Mr. Rees was to be sold, and particulars of the sale were being prepared. Some evidence was gone into by Mr. Rees, as to what passed at this interview, to prove Mr. Alsop's acquiescence in the deed, and Mr. Holmes the trustee made an affidavit which at the close of the judgment was especially referred to by Turner, L.J. Mr. Holmes was present when Mr. James Clark, the

Bankruptcy Deed of arrangement-Execution by
tracer-Act of bankruptcy--Non-execution by cre-
ditor-Creditor's acquiescence-Bankrupt Law Con-managing clerk of Mr. Rees' solicitors, who was con-
solidation Act 1849, ss. 68, 224, 225.
Where a trader had executed a deed of assignment of
his property and effects to trustees for the benefit of

ducting the transaction, requested Mr. Alsop to sign;
and the affidavit proceeded thus:-"The said James
Clark pointed out to the said Uriah Alsop that the only

г

As additional evidence of acquiescence, Mr. Holmes also verified a letter written to himself by the petitioning creditor in these words :

URIAI ALSOp.

"Broadmead, Bristol, 8th Nov. 1859. "Sir,-Will you please send a bill of the sale to give me a chance to go to the sale at Llanelly? "Yours truly, "(Signed) And another letter, dated on the 7th Nov., written by the petitioning creditor to Mr. Rees, in which he advised him as to the sale of his property, and mentioned the names of two of the creditors who had executed the assignment, adding, however, that he himself had not yet done so.

On the 11th Nov., and without further communication between the parties, Mr. Alsop filed a petition for an adjudication of bankruptcy against Mr. Rees, relying on that gentleman's execution of the deed of assignment as an act of bankruptcy, which deed had not up to that day been executed by six-sevenths in number and value of debts of the creditors. Mr. Rees was on the same day adjudged bankrupt, but having given notice that he should dispute the validity of the adjudication, the matter was argued before the learned commissioner on the 20th Nov., Mr. Rees relying on two grounds, viz., that the mere execution of the deed was no act of bankruptcy till after the expiration of three months, even although the same was not executed by six-sevenths in number and value of the creditors; and secondly, that the acquiescence in the deed of arrangement by the petitioning creditor was sufficient to preclude him from treating the deed as an act of bankruptcy.

[CHAN.

course now open to the creditors of the said Richard who desired to settle out of court. He came into Rees was either to come in under the assignment or court, and all that had been done out of court stood make the said Richard Rees bankrupt; and that, as the for nothing, and the matter ended in bankruptcy. estate was small, it seemed very undesirable to incur When I say that all that had been done out of court the large expense of winding it up in the Court of stood for nothing, I ought to qualify the expression by Bankruptcy; and I say that the said Uriah Alsop adding, that where the attempt of a portion of the expressed himself as being of the same opinion, and creditors to settle among themselves failed, one of the he recommended that the sale should be on a market necessary conditions of a bankruptcy was furnished by day, and said that he should come down and attend it. themselves, namely, the act of bankruptcy. But then At the close of the interview the said James Clark it was found that there was a very strong desire on the asked the said Uriah Alsop to sign the assignment, but part of the commercial world to be able to settle conhe said he preferied waiting a day or two." clusively the affairs of a failing trader without going into bankruptcy, and the Legislature yielded to that very natural and very reasonable desire on the part of the creditors, and said, "It is too much to permit one creditor, and possibly one to a small amount, to defeat an arrangement which may be for the benefit of all parties, and therefore we will concede this power, that when six-sevenths of the creditors in number and value agree upon a settlement out of court, if they take the steps which shall be provided in the Act which we are about to pass, then they shall be able to set at defiance a dissentient or a number of dissentient creditors, who do not amount to one-seventh in number and value." This power having been conceded by the Legislature, it now becomes the duty of the court to see that such a privilege is not rendered null by a sweeping application of the old powers in bankruptcy which grew up partly by the Act of the Legislature, and partly by the deci sions of the courts, before the Legislature had conferred that privilege upon creditors of settling the affairs of a failing trader without bankruptcy against the wish of a few dissentients; and therefore it appears to me that they must be well considered before the court can arrive at the conclusion that the power of treating arrangements of this kind while in inception as an act of bankruptcy exists. It seems to me that such an application is repugnant and even destructive of the privilege which the Legislature has granted. If it can be said that the moment a deed is executed, which the parties intend as a deed of arrangement, that at that moment an act of bankruptcy has been committed, it will operate as the greatest possible discouragement to such deeds, and seems to me to be acting in direct opposition to the general intention of the Legislature. But this case must be taken that, under the guise of a deed which is to be carried into operation by means of those sections of the Consolidation Act which regard arrangements, and which give the court a control over them, it is not in truth a deed of the common sort, operating, it is true, in the first instance only, upon those who execute it, but yet by lapse of time gaining an operation which is conclusive upon all; the dissentient creditors being thrown off their guard by the belief that the deed is being worked under the arrangement clauses of the Consolidation Act. And therefore it did appear to me to be very important to ascertain what was done under this deed; and it appears that what was done under this deed was, that the trustees took possession of the property and were about to go to a sale. Now, then, has there been an unreasonable time in the carrying of this deed into execution, so that we can say that there have been laches or negligence in not obtaining the assent of the six-sevenths to the extent of making it reasonable to suppose that the parties to the deed have not had at any time the power to obtain the assent of six-sevenths of the creditors, or that they have lost that power by their own supineness? I don't apprehend (and, indeed, it has not been alleged) that there has been any such unreasonable time occupied, but the time which has elapsed has not been exactly stated, although it seems that the deed was executed on the 2nd Nov., and the petition in bankruptcy was filed on the 11th. These dates show that the petitioning creditor was quite right in not raising any such difficulty, for that

The Learned Commissioner said:-As regards the deed, the Legislature has thrown upon the courts of bankruptcy a very delicate, but a very important duty: on the one hand, to see that assignments are not made, and carried into execution, which would defeat the rights of all creditors except those who choose to sign such deeds, which would defeat their rights, not by depriving them of their dividend, but by depriving them of the means which the Court of Bankruptcy gives to add to the estate frequently to a most important extent, and which can only be done when the estate is wound-up in bankruptcy, according to the old law. As, for instance, supposing there has been a fraudulent preference in contemplation of bankruptcy, such fraudulent preference cannot be set aside but through the medium of bankruptcy, because, although for brevity we say that a preference is fraudulent and bad if made in contemplation of bankruptcy yet, if it were necessary to complete the proposition, we should go on and say, when such contemplation is followed up by adjudication of bankruptcy; and therefore I say it is very material indeed, where parties desire to settle their own affairs-that is, where certain creditors desire to settle with their debtor-that they should be held to strict responsibility as to the mode in which that is done. Indeed, until of late years, any attempt to settle the affairs of an insolvent trader without the consent of all his creditors, could by any one of those creditors be set aside, because, the attempt itself being an act of bankruptcy, the dissentient creditor was furnished with his remedy by the act of those

If a

[CHAN.

think it immaterial whether the bankrupt assented or not. I do not see that anything has been done here by any of the parties inconsistent with their bona fides in carrying out the settlement of this trader's affairs through the arrangement clauses of the bankrupt law; and therefore I am of opinion that neither this deed,

done under this deed, can amount to an act of bankruptcy. The question is one of very great importance, and one of no slight difficulty, and I should be very glad indeed to have the guidance of the Appellate Court upon it.

From his Honour's decision Mr. Alsop now appealed. The clauses of the statute having reference to this case are the following:

The 68th section enacts, "That if any such trader shall execute any conveyance or assignment by deed of all his estate and effects to a trustee or trustees for the benefit of all the creditors of such trader, the execntion of such deed shall not be deemed an act of bankruptcy unless a petition for adjudication of bankruptey be filed within three months from the execution thereof, provided such deed shall be executed by every such trustee within fifteen days after the execution thereof by such trader, and the execution by the trader and by every such trustee be attested by an attorney or solicitor, and notice thereof be given within one month from the execution thereof by such trader," &c.

The 224th and 225th sections of the Act are in

delay is not unreasonable. Then with regard to the seizure or taking possession of the property by the trustees. Now, if any portion of their conduct had shown that they were taking possession of it with a view of acting on the deed, even if the assent of the six-sevenths could not be obtained, that might be an important question to consider, especially if the bank-nor anything brought before the court as having been rupt had assented to any such conduct. But no such conduct at all is alleged as having been entered into by the trustees. No such aspersion is made upon them, as that they were acting other than bona fide. The question is, is the taking possession by the trustees until the six-sevenths have adhered, right and proper? Here I confess that for a long time I was inclined to think that the trustees ought not so to have acted until the six-sevenths had adhered; but, when I remember how important it is in these matters that the property should be taken into hands who have no motive to dissipate it, but, on the contrary, every motive of interest and duty to take the greatest possible care of it for the benefit of creditors, I think it would be too much to say that the taking possession did of itself manifest an intention that the deed was not bonâ fide intended to be carried into effect by the arrangement clauses which give such great powers to the court to be exercised for the benefit of all parties. And here the section giving the creditors power to come to the court seems to be very important. It was suggested that that section, and the powers given by it, do not operate at first, but at some future stage of the proceed-these terms:-" 224. That every deed or memorandum ings; but I see nothing in the Act myself to limit the of arrangement now or hereafter entered into between commencement of the operation of that section. any such trader and his creditors, and signed by or on creditor, the very moment a bankrupt had executed the behalf of six-sevenths in number and value of those deed, and the trustees had accepted the trust, were to creditors whose debts amount to ten pounds and upcome to the court to make a complaint, it does seem wards, touching such trader's liabilities and his release to me that the court would have jurisdiction to enter- therefrom, and the distribution, inspection, conduct, tain that complaint. If, however, it is conceived that management and mode of winding-up of his estate, or I have fallen into error here, I should be glad to have all or any of such matters, or any matters having it pointed out. And it being suggested that I should reference thereto, shall (subject to the conditions herethen not be seised of the deed, I should meet that inafter mentioned) be as effectual and obligatory in all supposed difficulty in this way. I should say, "Take respects upon all the creditors who shall not have out a summons and bring the deed into court." Of signed such deed or memorandum of arrangement as if course, to give a jurisdiction, the fact must exist; and they had duly signed the same; and such deed or to give an operative jurisdiction the evidence of the memorandum, when so signed, shall not be or be liable fact must be adduced; but it seems to me that the to be disturbed or impeached by reason of any prior or jurisdiction comes into existence when the fact comes subsequent act of bankruptcy. 225. That no such into existence. Well, then, the question I am now deed or memorandum of arrangement shall be effectual considering, and the consideration of which I have or obligatory upon any creditor who shall not have nearly completed, is this-Was there an act of bank- signed the same, until after the expiration of three ruptcy committed by the execution of the deed? I am months from the time at which such creditor shall of opinion that there was not. The next question is, have had notice from such trader of his suspension of Was there an act of bankruptcy committed by the payment, and of such deed or memorandum of arrangeseizure of the property? Why, it is quite clear that ment, unless such trader shall within such time obtain the seizure of the property is only one step towards from the court an order or certificate of the said an act of bankruptcy, because that seizure is not made court, declaring or certifying that such deed or memoby the bankrupt, and he is no party to the seizure. But randum of arrangement has been duly signed by or on then it is said that he afterwards acceded to the seizure. behalf of such majority of the creditors as aforesaid; I cannot say, for my own part, that these circumstances and it shall be lawful for the court within the district prove that he did so. If any act had been brought to of which the trader shall have resided or carried on the knowledge of the court, showing that he knew the business for six months next immediately preceding his trustees had taken possession, those matters might be suspension of payment, to make such order or certifiimportant, as showing the state of his mind, and that he cate on the petition of any such trader, and to exercise I must take the case upon the circum-jurisdiction in and over the matters of any such stances, and cannot go any further. But I was application; and no creditor who shall not have had going on to add that I do not believe that fourteen days' notice of any intended application for this point is of the importance which I attached such order or certificate as aforesaid shall be bound to it in my own mind during the argument; and for this reason-because, if it were right in a winding-up under the arrangement clauses for the trustees to take possession, then it was not wrong for the bankrupt to assent to it, and therefore I think Mr. Eldin (the counsel for the petitioning creditor) need not attach any importance, in his own mind, to what fell from the court as to the omission which has been made to supply any evidence on this point. Upon the best judgment I can give to the matter, I

did assent.

thereby."

Selwyn, Q.C. (with whom was Bagley), was for the petitioning creditor appealing.

Bacon, Q.C. and Southgate, for Mr. Rees, relied upon the grounds already mentioned, and on the question whether the execution of the deed by Mr. Rees was, or was not, an act of bankruptcy; they referred to Dutton v. Morrison, 17 Ves. 193; Young v. Ward, 8 Ex. Rep. 221; Ex parte Calvert, 32 L. T. Rep. 2 Ex parte Wilkes, 5 De G. M. & G. 418.

Selwyn, Q.C. having been heard in reply, Lord Justice TURNER said, that there were two questions in the present case: the first, whether an act of bankruptcy had been committed; the second, whether Mr. Alsop, the petitioning creditor, had so assented to the deed of arrangement as to preclude himself from raising the first question, and presenting his petition for adjudication of bankruptcy against Mr. Rees. Now, upon the former point, his Lordship was of opinion that there had been an act of bankruptcy. Beyond all question, before the Bankrupt Law Consolidation Act 1849, such an assent by a trader would have been one, and the court had therefore to consider what was the effect of that statute. The 68th section only saved the execution of such a deed from being an act of bankruptcy after the expiration of three months, and it did no more than that. Then turning to the 224th and 225th sections, had anything in those sections prevented such a deed from operating as an act of bankruptcy? It could not be said that those sections contained any express provision

[ROLLS.

opinion that the execution of this deed by the debtor was and is an act of bankruptcy, of which the petitioning creditor was and is entitled to avail himself in support of his petition, unless he has precluded himself from so doing by assent, admission or acquiescence. Upon this latter point I confess that I am not quite satisfied, but, as my learned brother is convinced with respect to it, the order of the learned commissioner must, of course, stand. We are agreed, however, that each party should have his costs out of the estate, and that the deposit should be returned to the appellant.

ROLLS COURT.

Reported by GEORGE WHITELEY, Esq., of the Middle Temple,
Barrister-at-Law.

Dec. 20 and 21.

BASKCOMB v. PHILLIPS.

Specific performance-Insufficient title in lessor-
Land included in agreement which were in lease to
lessor together with other lands-Bill dismissed
with costs-Objection taken after bill filed.
Where the plaintiff proposed to let a dwelling-house
and land for a term of twenty-one years, being only
lessee of part of the land for a shorter term, with
an alleged assurance of renewal from his lessor, and
other land was included in the demise to the plain-
tiff, and such demise contained covenants which were
objectionable, and the state of the plaintiff's title to
the property was not disclosed to the defendant, the
proposed lessee, and was only ascertained by him
after the commencement of the suit:

though the defendant had refused to perform his contract on other grounds (which were not gone into at the hearing), and in consequence of which this suit was instituted.

This was a suit for the specific performance of an agreement entered into by the defendant with the plaintiff to take a lease of a mansion-house called the Manor-house at Chislehurst, with stables, garden, lawn, farm-buildings, and appurtenances, and meadow land, the whole containing about 42 acres, and forming a handsome ornamental residence, for a term of years.

On the 11th March 1859 the plaintiff entered into an agreement with the defendant for the granting of a lease thereof to him, which agreement was as follows:

that such a deed should not be an act of bankruptcy, so that under them, if such a deed was not an act of bankruptcy, it must be by inference only that it was not. Now, the 224th section was to this effect only-that every deed of arrangement should be as effectual and obligatory in all respects upon all the creditors who should not have signed such deed as if they had duly signed the same, where it had been signed by six-sevenths of the creditors in number and value; therefore, not that the deed should be obligatory on all the creditors, but that it should be obligatory on them only when so exe-Held, that the bill must be dismissed with costs, alcuted and signed; and the deed must not be one merely between a trader and his creditors, but must be executed and signed by six-sevenths in number and value. The 225th section was also very important, providing that no deed should be obligatory upon any creditor not signing it until after the expiration of three months from notice to such creditor of the debtor's suspension of payment, and of the deed of arrangement, unless such trader should, within such time, have obtained a certificate from the court that the deed had been duly signed by or on behalf of such majority of the creditors as aforesaid, that is, sixsevenths in number and value. It was, as his Lordship thought, the evident intention of the Legislature that such a deed should not affect the rights of creditors, unless three months had expired, or unless a certificate was obtained from the court that six-sevenths of the creditors in number and value had executed it. In fact, to decide that such a deed was not an act of bankruptcy would be to decide that it was binding against the creditors, even in the absence of the re-mises, and the oak furniture in the library. The lease quired certificate. Another argument relied on by the respondent was that the effect of this decision would be to defeat entirely all such deeds; but the answer to that was, that the debtor had only to procure the concurrence of the requisite majority of his creditors, and then to obtain the certificate of the Court of Bankruptcy. In his opinion, therefore, the true construction of the Act of Parliament was, that this deed was an act of bankruptcy. Upon the second question raised on the evidence-namely, whether the petitioning creditor had so far assented to this deed as to deprive himself of the right of questioning it—his Lordship regretted to say that he thought he had precluded himself from disputing it, even although on the 7th Nov. he had declined to execute the deed. The letters proved appeared to him to establish his assent sufficiently; for his application for a bill of the intended sale could not be accounted for, except by. the supposition that he was assenting to this deed. He had given such an assent, therefore, that the order annulling the adjudication inust stand upon that ground.

Lord Justice KNIGHT BRUCE said:-I also am of

"The premises agreed to be let comprise the manorhouse, outbuildings, gardens and meadow land, the whole comprising forty-two acres, little more or less (reserving to Mr. Baskcomb the land next the road on the further side of the cottage as now fenced off), together with the fixtures and iron hurdles on the pre

to be from the 25th March inst., for a terin of twentyone years, determinable at the option of either party at the expiration of seven or fourteen years, by giving six months' previous notice in writing. Rent 315 per annum, payable quarterly. Lessee to pay tithes and all other rates, taxes and assessments whatsoever, and also to insure the house and premises. The lease to be prepared by the lessor's solicitor at the lessee's expense, and to contain the usual and ordinary covenants, including a covenant by the lessee to keep and maintain the premises, fixtures and furniture in good repair, and to paint as usual the exterior once in three and the interior once in seven years. Lessee not to break up any meadow land, or injure or lop any trees without the lessor's consent. Rent to commence from the 25th March inst., and possession to be given not later than the 18th April, until which time the grounds shall be kept up at the lessor's expense. Lessor to have permission at any reasonable times in the day, with surveyors, workmen or others, to enter upon the premises and inspect the same with a view to any necessary repairs."