statutes for the limitation of actions and suits, the benefit of which statutes the plaintiff claimed. The defendant John Pryce Drew alleged that John Watkins Fray had, in 1824, mortgaged his said estate in fee for 8001. and interest; and that after Fray's death, Thomas Drew, in 1842, paid the mortgagee the amount due to him; and in 1845 took a transfer of the mortgage. The bill alleged that Thomas Drew, in an action of ejectment, obtained in 1845 possession of the estate, and retained it to the time of his death; and after that event, the defendant John Pryce Drew and his co-executor had been in possession or receipt of the rents and profits of the estate, claiming to be mortgagees in possession; and that they had rendered an incorrect account, shewing a balance due at Ladyday, 185, to the estate of Thomas Drew, of the alleged securities, after deducting the rents and profits, of 1774 148.7d. The defendant John Pryce Drew alleged, that Fray in 1834 conveyed his estate, subject to the existing mortgage, to trustees, who were not made defendants, for the payment of his debts; and that in 1835 the said trustees mortgaged the estate for 3001, and interest. The plaintiff alleged that no such deed was ever executed, and that if it were, that the trusts were satisfied, and that nothing was due on the alleged mortgage. The plaintiff, after the institution of this suit, took the benefit of the acts for the relief of insolvent debtors, and the assignees were made defendants to the suit by order of revivor. Mavis, Q. C., and Hubert Lewis were for the plaintiff, and contended, that the conduct of Thomas Drew and his representatives had been very improper in first obtaining possession of the estate, and in after wards throwing every obstacle which they could in the way of the plaintiff to prevent inquiries being made, and that the accounts which they had sent in were, as they knew, all wrong. It was for the defendants, the mortgagees, to shew that the charge for bills of costs was properly obtained by them, and that it was not positively set up by the answer. The charge for bills of costs bore no interest, none being mentioned in the memorandum; and that if the accounts were properly taken, it was evident there would be a surplus after paying the incumbrances. The deaths of the trustees and executors in the lifetime of the testator gave the administratrix a right to see the real estate applied for payment of debts in accordance with the will. [They referred to Yates v. Crompton (2 P. Wms. 308); Bainbrigge v. Moss (6 De G., Mac., &G. 292); Moore v. Edwards (4 Ves. 23); Johnson v. Drac (2) Beav. 60); and Faulder v. Stewart (11 Ves. 296,302).7 a F. H. Colt, for the heir-at-law, supported the plaintiff's case. The testator had directed an absolute conversion of his estate into personalty. The legal personal representative had a right to come alone for decree of redemption law to join. (Auston v. Martin, 29 Beav. 523). on the refusal of the heir-atBao, Q. C., and F. O. Haynes appeared for the mortgagee, but were not called upon. Sir J. STUART, V. C.-I will not trouble you, Mr. Bacon, for I do not know of any authority which would justify me in holding that a bill of this kind can be sustained by a person in the position of the plaintiff. The bill is filed for redemption, and it is against not only a mortgagee, but all other persons, except one, who have an interest in the equity of redemption. Isay all who have an interest in the equity of redemption, leaving out of view the creditors of the testator, of whose assets this equity was a part; and the bill seeks to redeem a freehold estate mortgaged by the testator, who by his will devised this equity of redemption to trustees, upon trusts to pay his debts. That those trustees might have redeemed I think is tolerably clear, and also that, if they refused to redeem, on a good case properly made, a person having an interest in the equity of redemption might have a right to redeem, if the suit in other respects were properly framed. The plaintiff had, when the bill was filed in 1856, a beneficial interest in the fifth part of the equity of redemption, subject to the payment of the testator's debts. No decree was made in the suit as it was originally framed, but the case comes on now after the plaintiff has taken the benefit of the Insolvent Debtors Act, and by that act all her beneficial interest passed to the assignees in insolvency, who do not come to redeem, and who are not joined in the suit; nor do they appear in the character of defendants. The plaintiff, who has lost her beneficial interest by her insolvency, had acquired, before the bill was filed, a legal interest, by having been appointed administratrix, with the will of the testator annexed. The trust estate is not represented by any trustee before the Court, but it has descended to the heir-at-law of the testator, who is now before the Court as a defendant, having refused to join as co-plaintiff, and he has a beneficial interest in one-fifth of the equity of redemption. The institution of the suit is now asserted by a legal personal representative against all the persons having a beneficial interest-the persons who created a trust estate and a mortgagee-and I am not aware that there is any authority for the proposition, that if the legal estate is vested in a trustce upon trusts for the payment of debts, and that that trustee neglects his duty, that the legal personal representative, having no beneficial interest, can maintain a suit. Any person having a beneficial interest may maintain a suit of this kind. But the contention, that the legal personal representative can do so, is not, I think, supported by any authority; and, moreover, I think there are strong objections upon principle. I have asked for a description of the decree that I ought to make, and which would do justice to the mortgagee in a suit constituted as this is, and I have asked in vain; for there are no statements in the bill as to the condition of the assets, and which would make out that the duty had devolved upon the legal personal representative to come forward and discharge the duty which was expressly imposed upon a trustee, who having his equity of redemption devised to him in trust to sell, and pay the debts, his duty was perfectly intelligible. The constitution of a trust of this kind makes the creditors cestuis que trust, and they might resort to the trustee. No doubt, an administratrix may have an interest in the assets, and have a right to sue the trustee for the performance of the trusts by him. But that is not the frame of this suit at all. This is a bill to redeem, and the primary purpose of the suit is to redeem the mortgagee, and to obtain possession of that interest in the estate which is supposed to be valuable, even after all the debts shall have been paid. If this were an administration suit, what would be the course of the Court? Why an inquiry would be directed whether it would be fit and proper that the trustee should redeem; and whether, if he did not redeem of his own motion, this Court would allow the parties beneficially interested to use the trustee's name for the purpose of redemption; still that would be subsidiary to the great purpose of redemption. But the only question here is, whether the legal personal representative alone is entitled to maintain a bill of this kind. It occurred to my mind, during the argument, that, inasmuch as under the insolvency the insolvent debtor has an interest in the surplus of the estate, she might, on a case properly made out of refusal by the trustee, maintain this suit; and Lord Alvanley at one time entertained an opinion of that kind. The question was discussed in the case of Spragg v. Binkes (5 Ves. 583), which has not been referred to, where the equity of redemption belonged to a person who was an insolvent debtor, and who sold the interest which he had in the estate, and the assignee filed a bill to redeem. Now, in a suit so constituted, the plaintiff came into court with one circumstance, which does not exist in this case-the plaintiff was not an insolvent. The opinion of Lord Alvanley was one of first impression, but he ultimately dismissed the bill with costs. That case came afterwards before the Court, under the title of Troughton v. Binkes, and is reported in 6 Ves. 573, and it met with the same result. Where there is a bill to redeem, the Court makes a decree in such a shape as that if the redemption sought for is not effected the decree will operate as a foreclosure; and that follows from the principle that the Court will do justice as between the mortgagor and mortgagee. But a more shadowy and unsubstantial claim to redeem than that made by the present plaintiff cannot possibly be conceived. No doubt she is administratrix, but she is also an insolvent debtor, and when a person in that position appears as plaintiff, unless the bill states what means there are for effecting redemption, and gives some ground to shew that the person who has a primary right has neglected to use it, the greatest injustice might be done, if I were to make a decree in the terms asked. The very existence of this suit is no light matter to all who have been made parties to it, and one of the persons interested in the equity of redemption is out of the jurisdiction. The present plaintiff sues as legal personal representative, but states nothing as to what assets she possesses. Now, if she has no assets, what a farce it would be to direct that the mortgagee should have his accounts taken at the instance of an insolvent debtor, who happens to be the legal personal representative. There is nothing to shew how justice could be done to the mortgagee, for it would be ridiculous to say that this insolvent debtor could be foreclosed. I asked what decree could be framed, and the answer I received was not at all satisfactory. I am of opinion, that neither upon principle or authority can I make any decree in favour of this legal personal representative, who has not the primary right to redeem. The bill must, therefore, be dismissed with costs, which the mortgagee is entitled to add to his debt. Malins, Q. C., asked to be allowed to amend the bill. Sir J. STUART, V. C.-I will not give leave to amend in this case. Note for reference-Mitf. Eq. 81. VICE-CHANCELLOR WOOD'S COURT. Nuisance-Jurisdiction-Injunction. Where persons for their own convenience, and in order to dry an extremely dangerous and inflammable material, brought it in large quantities upon property in a densely populated neighbourhood, and after protest by the owner of adjoining valuable property, the Court, at his instance, granted an interim injunction to restrain them from permitting the material to remain upon the property, and from bringing any more of it there, the plaintiff undertaking forthwith to indict them for the nuisance, and to abide by any order as to damages. Quare, whether an indictable offence? This was a motion for an injunction to restrain an alleged nuisance. The plaintiffs were tanners and leather factors at Bermondsey. They carried on their business for the most part in wooden sheds, and their stock and premises were insured in various insurance offices to a sum amounting in the aggregate to about 80,0001. The defendants had recently purchased at a salvage sale about 2000 tons of jute, wetted at a fire which had occurred on the wharf where it was lying; and since the 19th December, 1864, they had brought about 400 tons of it, and placed it in heaps, in wooden buildings and otherwise, upon property adjoining the premises of the plaintiffs. Their intention was to dry it by throwing it about, and spreading it on hurdles. This, as the plaintiffs alleged, would take at least twelve months. The jute, owing to the damp, was heating rapidly, and it appeared that one insurance office had given the plaintiffs notice that, in consequence of the proximity of the jute, they should treat their policy as void; and the Royal Insurance Office had, since the 24th December, kept a fire engine and men on the premises of the plaintiffs. A summons had been granted by one of the magistrates of the Southwark Police Court against the defendants, under his summary statutory powers, but upon the hearing it was dismissed for want of jurisdiction. After complaint by the plaintiffs, the defendants promised to remove the jute, but meaning thereby, as they alleged, merely as it dried. They did, in fact, remove part of the jute, but they had subsequently brought more upon the property in its place. The evidence on the part of the plaintiffs clearly proved the great difficulty of extinguishing jute when on fire, and the secretary of the Royal Insurance Company stated, that of the nine large dock fires which had occurred within the last seven or eight years, eight had arisen from jute; and that the losses so occasioned amounted to upwards of 1,500,000l. Two fires had, in fact, already occurred by the ignition of other portions of the jute in question. Evidence was also given of danger arising from spontaneous combustion taking place, as in the case of cotton and other vegetable fibres, after being wetted. This was, however, contradicted by Dr. Taylor, on the part of the defendants; and he stated, that there was no well-authenticated instance that jute, either wet or dry, would spontaneously ignite, after being imported into Europe. It was proved, however, that it would, like hay, ignite, if originally stacked too green. It appeared, that the danger of the jute taking fire was greatest when it was nearly dry. When wet, it would not ignite at 1200 degrees Fah renheit. The defendants had taken great precautions to prevent fire; and they stated, that no more jute was intended to be brought in place of that to be taken away, as it dried, so that the whole would be removed in a short period, and that it would be difficult to find a place better adapted than the premises for drying the jute; and that it would also put them to very serious loss to remove it in its present state. Under these circumstances, the present bill was filed for an injunction to restrain the defendants from bringing any more damp jute upon the premises adjoining those of the plaintiffs, and from permitting that which had been already brought from remaining there. tiffs, in support of the motion, cited Crowder v. Tinkler W. M. James, Q. C., and Winterbotham, for the plain (19 Ves. 617). Hinde Palmer, Q. C., and Boyle, for the defendants, -[They referred to Anon. (2 Ves. 393; S. C., 3 Atk. 726); The Attorney-General v. Cleaver (18 Ves. 217); Land Rioon v. Hobart (3 My. & K. 169); Blakemore v. ticated instance of spontaneous ignition of this substance remains, to a certain degree, in doubt. But as regards the facility of ignition, and the enormous loss which ensues from the difficulty of extinguishing it when once ignited, we have the fact that a million and a half of property has been destroyed in seven years, and we have recently had two fires occasioned by this very material. The question is, how far this might or not be indictable at common law. The only authority cited by the plaintiffs was the case about gunpowder, before Lord Eldon. I was anxious to know whether this doctrine had been carried any further, with regard to any other material. It must always be a question of degree, and therefore, primâ facie, one would have said, that with a parity of reason there should exist a parity of decision. Jen. 21.-Sir W. P. WOOD, V. C.-The case I was referred to after the argument, of Reg. v. Lister (1 Dears. & B. C. C. 209; S. C., 3 Jur., N. S., 570), appers to my mind to meet this case so completely, that I have very little doubt that an indictment would be sustainable in respect of the nuisance which the defendants are committing, by bringing such large quantities of inflammable materials upon these promises, and so disposing of them as to create the grecest possible danger to the property which is immediately adjacent, as well as dangerous to the lives The case I have now been referred to, of Reg. v. of all those who may be involved in the calami- Lister, is very recent. It came before the Court of Critous consequences of a fire. The case is one of the minal Appeal. The defendants there had been instrongest possible character that can be conceived as dicted, "for that they unlawfully, knowingly, and willto danger. My difficulty has been, as to how far ingly did deposit in a warehouse belonging to them, courts of law have gone with reference to acts of the near to divers streets and dwelling-houses of her Macharacter such as these defendants have committed. jesty's subjects, divers large and excessive quantities of The case is this:-The defendants purchased 2000 a dangerous ignitable and explosive fluid, called wood tons of a material called jute, wetted at a fire which naptha, and did keep in the said warehouse, and near had occurred at some wharf, and they have put it in a to the said streets, &c., the said fluid in such excessive heap in its wet state upon property which adjoins that and dangerous quantities, whereby the Queen's subof the plaintiffs, and so close to that property that, as jects passing along &c., were in great danger of their one of the witnesses says, if it had been placed for the lives and property, and were kept in great alarm and exis purpose of setting fire to the plaintiffs' pro- terror, ad commune nocumentum." I would only nopets, it could not have been more appropriately ar- tice, that, from the judgment of Lord Campbell, who rand. The defendants, on their part, say that they delivered the judgment of the Court, it appears that led to dry the material, by throwing it about the all those arguments which have been urged before me premises, and they are taking great care to prevent its of the possible evil consequences of holding the waregation. They are, no doubt, very properly taking housing of ignitable materials to be a nuisance were great care to prevent any light being used. But with clearly before the Court, and did not prevail; and regard to this very substance, jute, we have it upon that case seems to me not to go at all beyond the wholly uncontradicted evidence, that within the last danger of the material which I am now dealing with. even years, eight fires of the most calamitous nature Lord Campbell, after stating the indictment, says, have taken place within the bills of mortality, not by "The indictment certainly does not state that any spontaneous ignition, but through the great difficulty noxious effluvia issued from the naptha, or that the of extinguishing it when once it is inflamed. And the air was corrupted by it, or that any bodily harm jute in question here is part of other jute damaged by was done to any of the Queen's subjects; but we a fire at a wharf, as I have stated, and two other par- conceive that the deposit in a heap of such a subcels have already occasioned two fires-one in the stance, in such quantities in a warehouse so situate, mouth of December, and the other in the month of to the danger of the lives and property of the Queen's January. Then they have brought it close to the subjects, is an indictable offence. The law of the plantitis property, which is of considerable value, country would be very defective if life and property and insured at about 80,000l. One of the insurance could be so exposed to danger by the act of another offres, I suppose in consequence of some special with impunity. There is no ground for saying, that, condition in the policy, has given notice that it will according to the doctrine contended for by the proconsider the policy cancelled; and when other po- secutors' counsel, neither brandy nor wine, nor oil, licies expire, probably the offices will say that they nor any ignitable substance, could be kept in the celwill no longer continue them except at a higher pre- lar of a town house, without the owner of the house mum. The plaintiffs, in consequence of the undoubted being liable to a fine and imprisonment. The subcharacter of this jute, are also obliged to have an enstance must be of such a nature, and kept in such gine there day and night for the purpose of doing the large quantities, and under such local circumstances, best they can in the event of any sudden combustion. as to create real danger to life and property. The As to the question, whether this material will spon- well-founded apprehension of danger which would taneously ignite, it seems far from certain that it alarm men of steady nerves and reasonable courage will not although there is no positive evidence that it passing through streets in which the house stands, or will I find this-that it will ignite if it is stacked residing in adjoining houses, is enough to shew that en, like hay in the country, where it is collected. something has been done which the law ought to preIt is admitted that spontaneous ignition will then vent, by pronouncing it to be a misdemeanour. ACtake place. It is not yet proved that it will sponta- cordingly, to manufacture, or to keep in large quantibessly ignite, when wetted, after being collected and ties in towns or closely inhabited neighbourhoods, brogat to this country. Of course, there may be a gunpowder, which, for this purpose, cannot be distin greater tendency in it to ignite when recently cut, guished from naptha, is, by the common law of Engand when there is more of the vital principle in it; and, a nuisance and an indictable offence. The docbut that can only be proved by actual experience. It trine is to be found in almost all our treatises on Crown appears, however, that cotton-a material not alto- law, and was acted upon in Rex v. Taylor, Roger Wilgether dissimilar-will, after it has arrived in this liams' case, and Crowder v. Tinkler. We next are to country, ignite. Whether there is any well authen- consider whether the facts found by the jury in this case were sufficient to support this indictment. The jury found that naptha is very inflammable, more than spirit is, and even more than gunpowder itself, passing into a vapour at a heat of 140 degrees Fahrenheit, and if inflamed water would not put out the fire arising from it, unless that water were employed in enormous proportions, relative to the quantity of inflamed naptha, and that without dispute the fire arising and communicating with the quantity kept on these premises, could not be quenched, and would produce very disastrous consequences in the neighbourhood." I vants, workmen, and agents from bringing, or perm ting to be brought, any damp jute upon the premis in the bill mentioned, and from permitting the dan jute which the defendants have placed upon the premises in the bill mentioned, or any part thereof, remain there in such quantities as to occasion dang to the adjoining premises of the plaintiffs, until t hearing of this cause, or until the further order of th Court. Note for reference-Set. Dec. 899. COURT OF QUEEN'S BENCH. HILARY TERM. I think every word of that will apply to this case. do not find that Dr. Taylor, or anybody else, says, that if a fire arose from this 2000 tons of jute, it could be put out before there was a total destruction of the plaintiffs' property. If the plaintiffs' property is [Before COCKBURN, C. J., WIGHTMAN, BLACKBUR liable to be destroyed, together with other property there situate, and if the offence be indictable, they are entitled to come here for the assistance of this I Court; but at the same time I think I must put them under terms of bringing an indictment at once. have simply to balance the question of damage in dealing with an interim matter, and nobody can doubt that the expense of moving this quantity of jute is not to be compared to the expense of 80,0007. of damage which will be done to the plaintiffs if a fire takes place. Now, it is said that this is a mandatory injunction, but I do not think that I should feel great difficulty in a case of this description, even if it were so; but it should be observed that this was done after distinct protest, and after a statement that the jute was about to be removed; for I do not think that the distinct averment of the plaintiffs is met by saying, "We did not tell you this, but we meant to remove it as it was dried de die in diem." One argument which I ought to notice is, that this jute has lain there so long without causing damage. In consideration of that, I think that some reasonable time ought to be given for removing it. The danger appears to be, not whilst it is damp, but when it is approaching a dry state. Then is the moment of very serious danger to all persons who may be concerned. I may take it, I think, that whilst it is actually wet it will not ignite, or if it did, it would not spread with the force that it will do when it is dry. The case is much less strong than any case of warehousing, or anything of that kind. The case in the Queen's Bench was a case of warehousing in the common course of business. The defendants here might have hired any field in the vicinity of London, without going to Salisbury Plain, as was suggested, or they might have taken it to some of those open spaces which occur even in London itself, or certainly to any field in its neighbourhood; but they chose to carry it to this densely populated neighbourhood, to a place where I have a very strong inclination of opinion, though that will have to be determined upon the indictment, that they were not entitled to deposit it. is not for warehousing or for manufacturing, but for their own convenience, namely, to dry an extremely dangerous and inflammable material, that they choose to select this place in a very populous neighbourhood. I think, therefore, that there must be an injunction to restrain the defendants according to the first paragraph of the prayer. It The following was the form of the order :-The plaintiffs, by their counsel, undertaking forthwith to proceed to indict the defendants for the nuisance, and to abide by any order as to damages, order, that, without prejudice to the defendants being allowed fourteen days to remove the jute, an injunction be awarded to restrain the defendants, their ser and MELLOR, JJ.] BAILEY and Others v. EDWARDS.-Jan. 13, 1864. Principal and surety-Giving time to principal debtorEffect of composition deed. To an action by the plaintiffs, as indorsees of a bill of change accepted by the defendant, the defendant pleván on equitable grounds, that he was surety for Messrs. F the indorsees of the bill, and that the plaintiffs had d' charged him, by giving time to Messrs. P., by a coz position deed, to which the plaintiffs were parties. B the deed (executed by the plaintiffs without the ass156 knowledge of the defendants) it was recited that Messy P. had made a proposal that they should carry their business under inspectorship, for the benefit all their creditors; that the plaintiffs should be paid in full their claim of 87001., by applying to that pose, in part payment thereof, the proceeds of the sale of property held by them as security for thei claim, and that the residue of the 87001 uncovered by the proceeds, and 10s. in the pound on the rest of their demands, should be paid to the plaintiff's by eight annual instalments; the first to be made on the 31st December, 1860. The plaintiffs covenanted to bind themselves, "subject to the provisions thereinafter contained, not to enforce claims against any parties to the bills in their hands, who, as between themselves and the petitioners, were not then liable on such bills respecticé'y, but that the right of the plaintiffs against all partit the bills in their hands (whether liable or not to the petitioners, as between the petitioners, or any of them. and such parties), should in no way be prejudiced is the event of the proposals made to the petitioners being carried into effect; and also that in such case the plaintiffs should in all respects be entitled to claim the full amount then due to them, after deduction of an sum in the meantime paid to them, notwithstanding the acquiescence in the proposals of the petitioners there, made." The deed then provided for a payment to the creditors generally of 10s. in the pound, &c., and the the creditors, except as mentioned in the proposal, should execute the deed, and who should hold securitie upon which any other person should be liable, shor not be prejudiced as to their rights against such persons, provided that nothing in the deed contained should pr vent the creditors, other than as provided for in the said proposal," from enforcing their claims against the estate of Messrs. P. At the time of the execution of the deed the plaintiffs were holders of the bill of exchang declared upon, which was accepted by the defendant for the accommodation of Messrs. P., and had no noti that the defendant was not liable to Messrs. P., although they knew that some of the parties whose bills were in their hands were not primarily liable to Messrs. P. Time was, under the provisions of the deed. given by the * The report of this case has been unavoidably delayed. plashs to Messrs. P. until an instalment became due, and was unpaid :—Held, that the effect of the deed was to gre time to the principal debtors, Messrs. P., and that the defendant had an equitable defence to the action. First count of the declaration, upon a bill of exchange drawn by John Price, accepted by the defendant, indorsed by John Price to certain persons desigrated by the name and style of T. P. & D. Price, and by them indorsed to the plaintiff. (There were also counts for interest, and upon an account stated). The defendant pleaded never indebted, payment, and pleas in traverse of the acceptance and indorsements. The sixth plea was as follows:-" And for a sixth plea to the first count, for defence upon equitable grounds, the defendant says, that there never was any value or consideration for the acceptance of the said bill of exchange by the defendant, or for the making or indorsement thereof by the said John Price, or for the said John Price, or for the said T. P. & D. Price, holding the same; and that at the time of the indorsement of the bill by the said T. P. & D. Price to the plaintiffs, the defendants and the said John Price were merely sureties on the said bill for the said T. P. & D. Price to the plaintiffs for any value given or to be given by the plaintiffs to the said T. P. & D. Price for the said bill, whereof the plaintiff's had notice when the said bill was first indorsed to them; and they took the said bill from the said T. P. & D. Price on the terms that the defendant and the said John Price should be liable to them on the said bill, as sureties only for the said T. P. & D Price; and after the in- The judgment of the Court was now delivered by dorsement of the said bill to the plaintiffs, and while BLACKBURN, J.-In this case the plaintiffs sued as they were the holders thereof, and after the said bill indorsees of a bill of exchange accepted by the dehad become due, to wit, on the 17th November, 1858, fendant. The defendant pleaded, as a defence upon by an indenture then made between T. P. & D. Price, equitable ground, that he was surety for Messrs. Price, by their names of Thomas Prothero Price and David the indorsers of the bill, and that the plaintiffs had Price, of the first part: the said Thomas Prothero Price discharged him, by giving time to Messrs. Price by a of the second part; Thomas Greatrex, Charles Lyne, composition deed. At the trial before me a verdict and William Murray Chapp of the third part; the was directed for the defendant on this plea, with leave plaintiffs and one William Williams of the fourth to move to enter the verdict for the plaintiffs on the part: John Parry De Winton, David Evans, John facts proved and admitted on the trial. Power was Evans, and William De Winton of the fifth part; and reserved to amend the plea, if necessary, so that the the several persons whose names and seals were there- question is, whether the facts proved and admitted conunder set in the first schedule thereunder written, stituted a defence in equity, and it is independent of being creditors of the said Thomas Prothero Price the form of the plea actually pleaded. It was at the and David Price, of the sixth part; and the several trial admitted that in 1858 the plaintiffs, without the persons whose names and seals were thereunto sub- assent or knowledge of the defendant, executed a deed, scribed and set in the second schedule thereunder on the effect of which the question principally depends. written, being separate creditors of the said Thomas That deed was between the Messrs. Price, carrying on Prothero Price, of the seventh part. After reciting, business as coal masters, under the firm of T. P. & D. according to the facts, a petition and proceeding for Price of the first part; T. P. Price alone of the second arrangement between the said T. P. Price & D. Price part; some trustees of the third part; the persons and their creditors under the Bankrupt-law Consoli- forming the firm of Bailey, Greatrex, & Co., bankers dation Act, 1849, it was proposed and agreed by the (the present plaintiffs), of the fourth part; another parties thereto, that certain collieries and works of the firm of bankers, Wilkins & Co., of the fifth part; the said T. P. & D. Price should be carried on under in- several creditors of Messrs. Price, who should execute spection for a certain time therein mentioned, and that the deed, of the sixth part; and the separate creditors the plaintiffs and the said W. Williams should be paid of T. P. Price of the seventh part. It recited, that T. a certain sum, to wit, 87001. in full, and a certain com- P. & D. Price having stopped payment, and presented position on the residue of their debt in manner therein their petition to the Court of Bankruptcy, had made mentioned, they thereby engaging not to enforce claims a proposal, which, as modified, had been assented to against any parties to the bills in their hands, who, as by the creditors and the commissioner, and was inbetween themselves and the said T. P. & D. Price, were tended to be carried into effect by the deed. This not then liable deed, and was then in the hands of the plaintiffs and the said W. Williams, and the defendant was then a party to the said bill who was not liable to the said T. P. & D. Price thereon; and that the said proposals of the said T. P. & D. Price in the said deed mentioned have been fully carried into effect; and that the said deed was made and entered into between the plaintiffs and the said T. P. & D. Price without the consent of the defendants. At the trial, which took place before Blackburn, J., at the sittings at Westminster during Hilary Term, 1863, the facts, as stated hereafter in the judgment, were proved, and the verdict was entered for the defendant, with leave to the plaintiff to move; and a rule nisi was subsequently obtained, calling upon the defendant to shew cause why the verdict should not be set aside, and a verdict entered for the plaintiffs for 126l. 6s. 10d., on the ground that the substance of the sixth plea was not proved; with power to the Court to make such amendments, if any, as they might think that the judge should have made at Nisi Prius. Lush, Q. C., and Gibbons (Nov. 3 and 21, 1863) shewed cause against the rule, citing Smith v. Winter (4 M. & W.454); Ex parte Glendinning (Buck's Cas. Bank. 517); and Rees v. Berrington (2 Ves. jun. 540). rule, cited Kearsley v. Cole (16 M. & W. 128); Owen v. Williams should in no way be prejudiced in the event tion:-The proposal was, that T. P. & D. Price, the With that the rights of the plaintiffs and the said W. lowing are the parts of it material to the present quesbeing carried into effect; and the defendant further spectorship, for the benefit of all their creditors; that &D that the said deed was executed by the said T.P. Bailey, Greatrex, & Co. (the present plaintiffs), who Williams, and by divers other creditors of the said T. should be paid in full the sum of 87001. (being the P. & D. Price, and that the said bill in the first count amount of bills discounted for T. P. & D. Price in ref.). Pries and by the plaintiffs, and by the said W. it was recited held various securities for their debt, mentioned |