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and to doubt whether the case of Wright v. Goodlake (1) can be followed up on every occasion to which it may appear to be applicable. But that case is distinguishable from the present. The criterion of damages there was, no doubt, the value of the pamphlet which had been pirated, and the questions put in that case were put to shew that so few copies of the original pamphlet had been sold that the damage which the author had sustained was very small. Here the defendant's contention seems to be that, because a Court of equity would for some purposes allow the proposed questions to be put, we ought to allow them in this action. Now I do not think that these questions would be allowed in a Court of equity, except for the purpose of taking an account between the parties so as to ascertain their separate rights. That cannot be done in an action of this sort. Neither the rule to be collected from Wright v. Goodlake (1), nor those to be collected from the practice of the Courts of equity, seem to me to apply to this case.

MARTIN, B.-I am inclined to think that to allow these interrogatories would be contrary to the usual rule, that a party is entitled to a discovery as to all matters which establish his own case, but not as to matters which relate to the plaintiff's case. This is an action for a breach of contract, with a plea of payment of 50l. into court. The interrogatories seem really intended to discover whether or not certain goods have been sold, which cannot properly and fairly be the criterion of damages. A case may arise where interrogatories ought to be allowed respecting the damages which have been sustained, but I have heard nothing in this case to induce me to think that my Brother Channell was wrong in his decision.

PIGOTT, B. concurred. CHANNELL, B.-I also think, upon consideration, that I was right in refusing to allow these interrogatories to be put. A plaintiff may be called on to disclose his case where the matters to which the interrogatories relate are common to his case and to the defendant's. That is the common law rule. There may be some cases in which a discovery may be obtained in

equity, although not in law, and I am far from saying that if an account were being taken between these parties, the defendant would not have been entitled to call upon the plaintiff for an account of the monies which he has received. But on the question whether a Judge at chambers is bound to admit interrogatories upon the ground that the discovery might be obtained in a Court of equity, I am of opinion that they must be ad rem, with reference to the action in which it is intended to exhibit them, and not with reference to matters not raised by the pleadings. The defendant has now paid money into court. The replication, no doubt, will be that the plaintiff has sustained damage beyond the 50l. That goes to shew, to my mind, that this is an application to exhibit interrogatories, in order to ascertain the damage which the plaintiff says that he has sustained. It would be a very cumbrous and expensive proceeding to allow that to be done through the medium of interrogatories.

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Bills of Sales Act, 1854, (17 & 18 Vict. c. 36), s. 1.-Form of Oath "To the Best of my Belief."

The Bills of Sales Act, 1854, (17 & 18 Vict. c. 36.) requires that with every bill of sale shall be filed an affidavit of the time of such bill of sale being made or given, and a description of the residence and occupation of the person making or giving it :- Held, that an affidavit which swears positively as to the time of the making of the bill of sale, but qualifies the description of the residence and occupation of the person making it by stating them to the best of the belief of the deponent, is sufficient to satisfy the requirements of the act.

This was an action against a sheriff for making a false return to a writ of fi. fa.

At the trial, before Bramwell, B., at the Sittings in London after Michaelmas Term, evidence was given on behalf of the defendant that, previously to the delivery of the writ to the sheriff for execution, the judgment debtor had assigned certain of his goods by a bill of sale. In the affidavit filed with the bill of sale, the time of the giving of the bill of sale was stated positively, but the residence and occupation of the person making it were only stated by the deponent to the best of his belief. It was objected that the bill of sale was void as against judgment creditors, because the requirements of the Bills of Sales Act, 1854, 17 & 18 Vict. c. 36. s. 1, which enacts that every bill of sale of personal chattels made after the passing of the act, shall be filed, "together with an affidavit of the time of such bill of sale being made or given, and a description of the residence and occupation of the person making or giving the same" had not been complied with.

BRAMWELL, B. thought that the act was sufficiently complied with, and directed a verdict for the defendant, giving the plaintiff leave to move to enter a verdict for him.

Montagu Chambers (H. James with him) moved accordingly.

POLLOCK, C.B. -The question is, whether an affidavit made by a person stating that at the time of the execution of the bill of sale, to the best of his belief, the residence and occupation was as stated in the bill of sale, is a sufficient compliance with the statute. I think that it is. A man who in court or out of court states that such and such is his belief, imports that he has an acquaintance with the subject, and has formed a belief upon it. He ought not to be subjected to the quibble that he may have no belief at all in the matter, and therefore that the best of his belief may be nothing at all. A Court of justice would vindicate its authority and the law and the dignity of its proceedings, if ever such a case came before it; and I would warn and caution all persons not to rely on the least laxity in such a form of oath.

MARTIN, B.-I am entirely of the same opinion. It is a clear case. The question is, whether the act of parliament is complied with; and if it be, we ought not to seek more. Now, what the act of parliament requires is, that an affidavit shall be made of the time of a bill of sale being made, and a description of the residence and occupation of the person making it. This

does contain a description of the residence of the party making it, and a true description. It is said that under this act of parliament the person who is to make the affidavit should have knowledge, such as would not, on cross-examination, turn out to be hearsay; but that would be more than the act requires. In my judgment, there is nothing whatever in the objection.

CHANNELL, B.-I also think that this affidavit is sufficient, though I cannot, I confess, think the matter so clear as it seems to my Brother Martin. The act requires an affidavit of the time of such bill of sale being made, and something more which is clearly defined, namely, a description of the residence and occupation of the person making the same. The act does not say, "an affidavit of the description, residence and occupation of the person"; but the phraseology is changed. I think that it may be read as requiring that the affidavit shall swear positively to the time when the bill of sale was made; but when that has been done, the affidavit may contain a description of the residence and occupation, so as to comply with the act of parliament, although the description be qualified by being to the best of the belief of the person who makes the affidavit.

BRAMWELL, B. - I reserved the point because this is really the first time that I remember any affidavit in this form. I think the matter not quite so plain as my Brother Martin thinks it, and that the way to deal with it is as the Lord Chief Baron has done. When a man swears to the best of his belief he substantially swears that he has a belief, and that it is what he states. I am not sure that this may not introduce a little laxity in affidavits, which are already loose enough. People say, "I have been informed and verily believe"; and it may be that some whose consciences are not hard enough to swear to that, will swear "to the best of my belief," - hoping to escape on a quibble. I think that it was a right question to reserve; but I am of the same opinion as I was at the trial, that the objection is not valid.

Rule refused.

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Debtor and Creditor--Bankruptcy Creditor's Election to prove-12 & 13 Vict. c. 106. s. 182. - Equitable Plea.

An equitable plea to an action for debt, that after the accruing of the plaintiffs claim, and before suit, the defendant was adjudicated bankrupt, and after the commencement of the suit, but before declaration, one of the plaintiffs was appointed assignee of the defendant's estate, and the plaintiffs proved their debt under the bankruptcy and elected to take the benefit of the petition: -Held, bad.

Harley v. Greenwood (1) extended to equitable pleas.

Declaration-For goods sold and delivered, and on an account stated.

Equitable plea-That after the accruing of the plaintiffs' claim, and after the passing of the Bankruptcy Act, 1861, and before this suit, the defendant committed an act of bankruptcy, and became bankrupt within the meaning of the statutes in force concerning bankrupts, and thereupon a petition for adjudication of bankruptcy against herself, the defendant, was duly filed, by the defendant, in the Court of Bankruptcy, Basinghall Street, London, according to the said statutes, and such proceedings were had in the matter of the said petition that the defendant was by the said Court duly adjudged bankrupt; and thereupon, and after the commencement of this suit, but before the plaintiffs declared therein, at a certain sitting duly appointed by the said Court of Bankruptcy in that behalf, the plaintiff, Edwin Hewitt, was duly appointed by the said Court to be and became the assignee of the estate and effects of the defendant under her said bankruptcy, and the plaintiffs then and there duly proved the debt and claim for which this action is brought under the said petition, and elected to take the benefit of such petition with respect to such debt and claim, whereby the defendant was and is in equity discharged from the said debt and claim of the plaintiffs, and their said proof of their

(1) 5 B. & Ald. 95.

NEW SERIES, 35.-EXCHEQ.

said debt is still in force and effect. Demurrer.

"No

Holl, in support of the demurrer.-The defendants will rely in support of their plea on section 182. of the Bankrupt Law Consolidation Act, 1849 (12 & 13 Vict. c. 106), which enacts as follows: creditor who has brought any action or instituted any suit against any bankrupt in respect of a demand prior to the bankruptcy, or which might have been proved as a debt under the bankruptcy, shall prove a debt under such bankruptcy, or have any claim entered upon the proceedings without relinquishing such action or suit, and the proving or claiming a debt under a fiat or petition for adjudication of bankruptcy by any creditor shall be deemed an election by such creditor to take the benefit of such fiat or petition with respect to the debt so proved or claimed: provided also, that any creditor who shall have so proved or claimed, if the fiat or petition for adjudication be afterwards superseded or dismissed, may proceed in the action as if he had not so proved or claimed." This section is similar in its terms to 49 Geo. 3. c. 121. s. 14, on which there is a decision in Harley v. Greenwood (1), where a plea similar to this was held to be bad, and no distinction can be made from this plea being pleaded on equitable grounds. The reasons given for the judgments in that case apply equally to legal and equitable pleas. The bankruptcy may be superseded, so that it is clear that, proving under the bankruptcy cannot act as an extinguishment of the debt. The other side will rely on Elder v. Beaumont (2); but that case is distinguishable, for the defendant had obtained his certificate, and the Court held that where the principal debt was barred the covenant to keep up the securities could not be sued on. The proper course for the defendant to have pursued would have been to have applied for an order to stay proceedings, or they should have pleaded to the further maintenance of the action. Ex parte Dyack (3) shews that a Court of equity would not, in such a case as this, grant a perpetual injunction,

(2) 8 El. & Β. 353; s. c. 27 Law J. Rep. (N.S.). Q.B. 25. (3) 2 Mont. & Ayr. 675.

L

J. Brown, in support of the plea. - The case stands on a different footing from similar cases which were decided before equitable pleas were allowed. It is ad mitted that Harley v. Greenwood (1) decides that the plea would be bad at law, but the defendant would be entitled to relief in equity, as in fact appears from Ex parte Dyack (3).

[PIGOTT, B.-But would the relief be final and perpetual?]

Possibly, if the bankruptcy proceedings were annulled, the plaintiffs might go to the Court of Chancery and get the injunction dissolved.

[POLLOCK, C.B. --But why should the plaintiffs be compelled to do that? If the Court of Chancery would only give you relief quousque, you cannot plead this plea in bar. You ought to shew not only that the plaintiffs are not now entitled to maintain the action, but that they never will be. You should have applied to stay proceedings.]

The COURT (4) being of opinion that the plaintiffs were entitled to judgment on the demurrer, it was arranged that judgment in the plaintiffs' favour should be given, but that the defendant should have leave to apply at chambers on affidavits to set the judgment aside and enter a stay of proceedings, the plaintiffs undertaking not to oppose the application on payment of the costs of the demurrer.

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Debtor and Creditor-Bankruptcy Act, 1861, 24 & 25 Vict. c. 134. s. 192.-Composition-Deed-Covenant with Creditors.

A composition-deed was expressed to be made between the debtor of the one part and all his creditors of the other, and after reciting that the debtor had agreed to pay a certain composition by instalments, which the creditors had agreed to accept, it contained a covenant by the debtor with his said several creditors and each of them to pay the composition, in consideration of which the

(4) Pollock, C.B., Martin, B., Channell, B. and Pigott, B.

creditors released him from all actions, debts, contracts, agreements, &c., reserving the rights which individual creditors might have against other persons: - Held, upon the authority of Lay v. Mottram (1), that this was a good deed under section 192. of the Bankruptcy Act, 1861.

Semble-A creditor could sue on the covenant, although not named in the deed.

Declaration on a promissory note, with money counts.

Third plea-That after action an indenture was made between the defendant and divers of his creditors, which was set out at length. It was expressed to be made between the defendant of the one part, and all his creditors of the other part, and after reciting that the creditors had agreed to accept a composition of 5s. in the pound upon the amount of their several debts, payable in three instalments, contained a covenant on the part of the defendant with his said creditors and each of them to pay the composition, and a release by the creditors in consideration of the premises from all "actions, suits, debts, accounts, contracts, agreements, bills, notes, &c.," with a reservation of remedies against other persons liable with the defendant, concluding with a statement that the deed was intended to take effect under section 192. of the Bankruptcy Act, 1861, and to be for the benefit of all the creditors equally. The plea then averred that all the conditions necessary under the statute to render the deed binding on non-assenting creditors had been performed, and that the defendant was thereby released from the claim in the declaration mentioned.

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dered formal commencements and conclusions of pleas unnecessary, and that Oppenheimer v. Grieves (2) differed from the present case, inasmuch as the release there was only conditional on the plaintiff's taking a further step in the cause, the objection was withdrawn.]

This deed professes to be made with all the creditors, but non-assenting creditors could not sue upon the covenant in it. This is distinctly stated, by Lord Westbury, C., in Ex parte Cockburn (4). And the decision in The Chesterfield and Midland Silkstone Colliery Company v. Hawkins (5) is to the same effect. Again, the deed is unreasonable, because the release is in consideration not of the payment of the composition, but of the bare promise to pay it. And it is too general, for it applies not only to debts but to contracts, to the discharge of which the composition would not be applicable.

Holker, in support of the plea. In this case the non-assenting creditors could sue on the covenant, which is not made with the executing and non-assenting creditors only, as in The Chesterfield and Midland Silkstone Colliery Company v. Hawkins (5), but with all the creditors, of whom the plaintiff is stated in the plea to be one. What was said by Lord Westbury, C., in Ex parte Cockburn (4) was not necessary to the decision. The plaintiff could sue on this covenant because he is one of a class which is distinctly described. There is no uncertainty here, for id est certum quod certum reddi potest. The Sunderland Marine Insurance Company v. Kearney (6) is a direct authority in my favour. There, by a policy of insurance under seal, in which Kearney was stated to be the owner of the ship insured, the defendants covenanted to make good all loss sustained; and it was held that a person who was not named in the policy, but was, in fact, jointly interested with Kearney, might be joined with him as a co-plaintiff in an action on the covenant.

[POLLOCK, C.B. - The only question is, whether the description of the persons with

(4) 33 Law J. Rep. (N.S.) Bankr. 17. (5) 3 H. & C. 677; s. c. 34 Law J. Rep. (N.S.) Exch. 121.

(6) 16 Q.B. Rep. 925; s. c. 20 Law J. Rep. (N.S.) Q.B. 417.

whom the covenant is made is not too vague. If a man covenants severally with the members of a firm, no doubt they would be sufficiently named in the deed to enable each of them to sue. MARTIN, B.-Debts may be disputed; and in order to ascertain whether a particular person is named in this deed, it might be necessary to try an action to decide whether he was a creditor or not.]

The creditors can easily be ascertained. Whittaker v. Lowe (7) shews what creditors are to be included. The judgment of Blackburn, J., in Dingwell v. Edwards (8) is an authority that the creditors could sue, and so is that of Bramwell, B., in Dewhurst v. Jones (9). The objection was not allowed to invalidate the deed in Stone v. Jellicoe (10). As to the objection respecting the adequacy of the consideration, Johnson v. Barratt (11) shews that it is groundless; and Hazelgrove v. House (12) shews that the words of the release are not too wide, as their effect must be restrained by the words of the whole instrument so as to apply only to debts and claims which had accrued at the time of execution.

M'Intyre replied. -The deed in The Sunderland Marine Insurance Company v. Kearney (6) was a deed-poll. In the other cases cited this point was not raised. Cur. adv. vult.

POLLOCK, C.B. (Jan. 18.) - In this case, which was argued yesterday, the argument turned upon the point raised in Ex parte Cockburn (4), before Lord Chancellor Westbury. We have found a case, lately decided in the Court of Common Pleas-Lay v. Mottram (1) - which we cannot distinguish from this. There the Court held a plea similar to that pleaded here to be good. We think that we are bound by that decision, and on the authority of that case we give judgment for the defendant.

Judgment for the defendant.

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