every creditor as a creditor in value in respect of such amount only as, upon an account fairly stated, after allowing the value of mortgaged property and all other such available securities or liens from the defendant, appeared to be the balance due to him. The plea, then, after a general averment of performance by the defendant of the covenants on his part, proceeded to aver, that the said parties of the second part on and at all times after the making of the said deed assented to the same, and acted as such trustees; that thereby and thereupon the said deed became and was as effectual and obligatory upon the plaintiffs as if they had duly signed the same; that the said deed and certificate. still remained in full force; and that, by reason of the matter aforesaid, and of suing the defendant in this action, the said defendant, theretofore, and after the commencement of this action, to wit, on, &c., became and was released and discharged from the said causes of action in the introductory part of the plea mentioned, and from the plaintiffs right to sue for the same,-verification.

To this plea the plaintiffs demurred specially, assigning for causes, amongst others,-that the plea is uncertain and insufficient, in that it states that the defendant was indebted to the parties of the second part to the deed therein mentioned, and to divers other persons, in divers sums respectively, without mentioning or giving their Christian or surnames, or stating how many they were, or offering any excuse [*750 whatever for such *omissions, and without stating or mentioning the amount of the respective sums in which the defendant was so indebted,—that the plea is uncertain and insufficient, in that it states that the said deed contained certain other provisos, declarations, and agreements in the said deed set forth, and it is nowhere stated in the said plea what those provisos, declarations, or agreements, or any of them, are, and that the same should have been fully set forth in the plea, that the plaintiffs might have an opportunity of traversing or pleading to them,—that the plea is further uncertain and insufficient, in that it is nowhere stated in the said plea what were the respective Christian and surnames of the creditors who executed the said deed themselves, or of the other creditors who executed the said deed by their agents, and also in that the Christian and surnames of such agents ought to have been set forth in the plea, or an excuse alleged; that the plea is also insufficient, for, that the deed ought to have been set forth in the plea, or pleaded according to its legal effect, that it should have been a plea in bar of the action generally, and not to the further maintenance, and that it is argumentative, and sets out conclusions of law. The defendant joined in demurrer.

Channell, Serjt. (with whom was Unthank). in support of the demurrer.--The deed relied on in the plea is sought to be brought within the 224th section of the Bankrupt Law Consolidation Act. 1849, 12 & 13 Vict. c. 106, which enacts "that any deed or memo

randum of arrangement, now or hereafter entered into between any such trader and his creditors, and signed by, or on behalf of, six-sevenths in number and value of those creditors whose debts amount to 107. and upwards, touching such trader's liabilities, and his release therefrom, and the distribution, inspection, conduct, management, *and mode *751] of winding up his estate, or all or any of such matters, or any matters having reference thereto, shall (subject to the conditions hereinafter mentioned) be as effectual and obligatory in all respects upon all the creditors who shall not have signed such deed or memorandum of arrangement, as if they had duly signed the same; and such deed or memorandum, when so signed, shall not be, or liable to be, disturbed or impeached by reason of any prior or subsequent act of bankruptcy; provided, always, that every creditor shall be accounted a creditor in value in respect of such amount only as upon an account fairly stated, after allowing the value of mortgaged property and other such available securities or liens from such trader, shall appear to be the balance due to him." The 225th section enacts that no such deed or memorandum of agreement shall be effectual or obligatory upon any creditor who shall not have signed the same, until after the expiration of three months from the time at which such creditor shall have had notice from such trader of his suspension of payment, and of such deed or memorandum of arrangement, unless such trader shall, within such time, obtain from the court an order or certificate of the said court, declaring or certifying that such deed or memorandum of arrangement has been duly signed by or on behalf of such majority of the creditors as aforesaid; and it shall be lawful for the court within the district of which the trader shall have resided or carried on business for six months next immediately preceding his suspension of payment, to make such order or certificate on the petition of any such trader, and to exercise jurisdiction in and over the matters of any such application; and no creditor who shall not have had fourteen days' notice of any intended application for such order or certificate as aforesaid, shall be bound thereby." Section 226 enacts, "that, when the trustees or inspector under any such deed or memorandum of arrangement, or, if there shall be *752] no such trustee or inspector, when any two of the creditors shall be satisfied that six-sevenths in number and value of the creditors whose debts amount to 107. and upwards, have signed such deed or memorandum, it shall be lawful for such trustee or inspector, or for such two creditors, as the case may be, to certify the same to the court in writing; and such certificate shall be filed with the registrar of the court, and shall thereupon be primâ facie evidence in all courts of law and equity that such deed or memorandum of arrangement has been so signed." And the 227th section enacts "that every such certificate as last aforesaid, shall have appended thereto a full account of the debts of such trader, together with the names, residences, and occupations

of his creditors, and shall be accompanied by an affidavit by such trader verifying the same; and any omission in such account, or the insertion therein of any debt not really existing, or of any larger amount of debt than that really existing, and which shall appear to the court to have been made through the culpable negligence or fraud of such trader, with intent to defraud any of his creditors, shall deprive him of the benefit of the provisions of this act with respect to arrangements by deed, and of the discharge proposed in any such deed or memorandum of arrangement: provided always, that any omission, insertion, or incorrectness in such account, which shall not have been made through such culpable negligence or fraud as aforesaid, shall not defeat or otherwise affect such deed or memorandum of arrangement." [WILDE, C. J.—Is there any clause in the act making the deed pleadable in bar?] None. This is a case where it is sought to bind a party by a deed which he has not executed; the court will, therefore, look at it with strictness. The creditors are only bound by a deed framed and executed with a due regard to the provisions of the act. The plaintiffs are *entitled to have all the facts accurately and affirmatively stated. [*753 As this could only be binding on the plaintiffs in the event of a certain proportion in number and value of the creditors executing it, the defendant was bound to state the names of the several creditors by whom it was signed, and the amounts of their respective debts. The general rule of pleading applicable to this case is thus stated in Stephen on Pleading, 5th edit. p. 338, Rule 4,-" The pleadings must specify the names of persons,' "The rule relates to persons not parties to the suit, of whom mention is made in the pleading. The names of such persons, viz., the Christian name and surname, or name of dignity, must in general be given, but, if not within the knowledge of the party pleading, an allegation to that effect should be made, and such allegation will excuse the omission of name."(a) It is true the deed shows who are the parties who have executed it: but the plaintiffs are entitled to know who the several persons are to whom the defendant is indebted, and the amount of their respective debts, in order to see that the parties who have executed the deed are in reality the proportion in number and amount required by the statute to give force and validity to the arrangement. [MAULE, J.-There is an averment that the persons who executed the deed are in truth six-sevenths in number and amount of the creditors.] True: but this point arises on special demurrer; and the plaintiffs have a right to have all the names set out, to give him the means of making inquiry. A distinction is taken between setting out a deed or other written instrument by description, and stating a transaction *between the parties on which the action turns. This is [*751 pointed out in Levy v. Webb and Gatty v. Field, 9 Q. B. 431

(a) Buckley v. Rice Thomas, Plowd. 128 a; Rowe v. Roach, 1 M. & Selw. 304; Ball v. Gor don, 9 M. & W. 345 ;† Tigar v. Gordon, 9 M. & W. 347.†

(E. C. L. R. vol. 58), where Lord DENMAN, in delivering the opinion of the court upon this point, says, "The question reserved for consideration in the first of these cases turned upon the insertion of initials only, instead of the full Christian names; in the second, on the omission of Christian names, and substitution of Mr.' And we are of opinion, that when such omission or substitution is made, not in the description of some written instrument, but in the statement of a transaction between the parties on which the action turns, it is good ground of special demurrer. We must presume that every person has a Christian name; and it ought to be stated, or reason assigned for the omission." [TALFOURD, J.-The last case upon the subject is Kinnersley v. Knott, 7 C. B. 180 (E. C. L. R. vol. 62). MAULE, J.-This rather comes within the 6th division of Rule VII. in Stephen (5th edit., p. 392)," a general mode of pleading is allowed where great prolixity is thereby avoided."] In that case, the plea should have so alleged. The next objection is, that it is not positively alleged in the plea that the defendant made the indenture. [MAULE, J.-Certain words are omitted in copying the demurrer-books, which seems to leave the matter entirely at large. But, is not that cured by the subsequent allegations?] It is pointed out as ground of special demurrer. If the plea does state that the defendant made the deed, then it is open to a further objection, viz., that it is repugnant and insensible, inasmuch as two dates are mentioned. Then, the provisions of the deed are not well stated: there is a primary trust which ought to have been set out. [MAULE, J.—It does not follow that they are charges to which the assignees are subject. WILDE, C. J.-There is nothing in the *act to prescribe *755] what shall be the precise form of the deed. The six-sevenths are to decide it. Can it be material to set out all the trusts? See the inconvenience, the prolixity it would lead to. There might be trusts to carry on the trade, and a variety of other things.] The plea goes on to say, that "the said deed contained certain other provisos, &c., therein set forth." These might be material with reference to the defendant's covenants, and ought to have been set out. The deed does not operate as an absolute release of the debt, but only conditional on the performance of the defendant's covenants. Whether or not the defendant has performed his covenants, may depend very much on the trusts which are not set out. The plaintiffs, therefore, have a right to have them placed on the record. If this deed operated as a release, when did it become so? [MAULE, J.-At once.] The plaintiffs do not Covenant not to sue. This matter was very much considered in the Exchequer Chamber, in a case of Ford v. Beech, 11 Q. B. 852 (E. C. L. R. vol. 63). [MAULE, J.-And in a more recent case in this court, of Gibbons v. Vouillon, 8 C. B. 483 (E. C. L. R. vol. 65). The effect of the deed and of the statute is, that the deed enures as a release, provided the defendant has performed all his covenants, and complied with

all the conditions. It is a sort of penalty,—a forfeiture of the debt.] If so, this ought to have been pleaded in bar, and not to the further maintenance of the action. [MAULE, J.-The deed enures as a release at the election of the debtor: and is therefore properly pleadable in bar of the further maintenance of the action.] There is no averment of any suspension of payment by the defendant in point of fact, but merely that the defendant was indebted to certain persons in divers sums, which he was unable to pay in *full. In the absence of a suspension in fact, the Court of Bankruptcy had no jurisdiction.

[*756 Aspland (with whom was Byles, Serjt.,) contrà.—The plea in question is substantially a good plea under the 224th and 225th sections of the statute. By the first of those sections, the deed is made binding upon the plaintiffs notwithstanding its non-execution by them, provided the defendant has performed all that it was incumbent on him to perform. The plea sufficiently shows that there was a suspension of payment by the defendant, and that the plaintiffs had notice of it. [WILDe, C. J.-The plea states that the plaintiffs had notice from the defendant of the said suspension of payment. If there is no previous mention of suspension of payment, must we not reject the whole ?] The plea, in the previous part, states that the defendant was insolvent, and unable to pay his debts. [WILDE, C. J.-The word "suspension" has a very distinct meaning. The statute speaks of the fact.] It is to be observed that this is not pointed out as ground of special demurrer. The question, therefore, is, whether this general allegation is not sufficient. Besides, it is clearly involved in the allegation of notice. Further, the Court of Bankruptcy has acted: and this court will assume that that court has done its duty in this respect. The question as to the release has been already disposed of by the court. Then, as to the matters of form. It is said there is a repugnancy, inasmuch as the deed is stated to have been made on two different days. As to the day first mentioned, however, it is insensible, and the court will reject it. And in a subsequent part of the plea there is a distinct averment that the deed was made on the 7th of November, 1849. In Stephen on Pleading, p. 404, it is laid down that "No greater particularity is required than the nature of the thing *pleaded will conveniently admit of. Thus, (*757 though generally in an action for injury to goods, the quantity of the goods must be stated, yet, if they cannot under the circumstances of the case be conveniently ascertained by number, weight, or measure, such certainty will not be required. Accordingly, in trespass for breaking the plaintiff's close with beasts, and eating his peas, a declaration not showing the quantity of peas has been held sufficient, because nobody can measure the peas that beasts can eat.' So, ir. an action on the case for setting a house on fire, per quod the plaintiff, amongst divers other goods, ornatus pro equis amisit; after verdict for the plaintiff, it was objected that this was uncertain: but