if not signed before a given time by all creditors within 300%. of the total amount of the debts due, was never signed by the Plaintiff or the Defendants.

A verdict was found for the Plaintiff, with leave for the Defendants to move to set it aside, on the ground that the Plaintiff, by having signed the resolutions of March 9. 1829, was estopped to bring this action.

Taddy Serjt. having obtained a rule nisi accordingly,

Wilde Serjt., who shewed cause, contended, that the Plaintiff having been rejected as a creditor by the Defendants and their trustees, was released from the operation of the resolutions of March 9. 1829. The Defendants could not in the same breath deny him to be a creditor, and yet seek to bind him by resolutions which applied to none but creditors. In all the cases in which a creditor has been held bound by a composition deed or agreement, something has been done under the instrument for the benefit of the creditor; Tatlock v. Smith. (a) Here it is proposed to bind the Plaintiff without any consideration at all. He is remitted to his rights by the Defendants having departed from the contract. Cranley v. Hillarey (b), Boothbey v. Sowden (c), Ex parte Vere (d), M‘Kenzie v. M'Kenzie. (e) The Court here interposed, and called on

Taddy. It is not contended that the Plaintiff's claim is discharged by his being a party to the resolutions of March 1829; but inasmuch as he has thereby induced other creditors to acquiesce in a composition, and has been the occasion of their losing their immediate and separate remedy against the Defendants, his right to sue

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is suspended till the trusts of the composition deed have been executed. This was the principle on which Tatlock v. Smith was decided. There, by an agreement between the defendants and their creditors, all the defendants' stock in trade was placed in the hands of trustees for the benefit of the creditors, and the defendants were to execute to trustees a conveyance of all their estate, in which deed were to be inserted all other usual clauses. The trustees carried on defendants' business, and paid the creditors 10s. in the pound; they then tendered for execution by the defendants a conveyance of all their estate, containing a clause of release, which the defendants objected to as insufficient, and refused to execute the conveyance. The instrument not having been executed by all the creditors, a meeting, at which the defendants were called on to execute was adjourned, that the signature of every creditor might be obtained. It was held, that the plaintiffs, who, as creditors, were parties to the above agreement, could not sue for their original debt, at least, till the conveyance, such as it was, had been executed by all the creditors, and refused by the defendants.

There, as in the present case, the deed was to be void if not signed by all the creditors; and yet it was held, that the Plaintiff's right of action was suspended, though not extinguished. And Boothbey v. Sowden is an authority that the signature by other creditors is sufficient consideration for such an agreement.

In Cork v. Saunders (a), a trader, being insolvent, by agreement stipulated to assign his property immediately, the creditors consenting that the business should be carried on for their benefit until the next Michaelmas, and that then the property should be divided amongst them the insolvent assigned his effects: at the next

:

(a) 1 B. A. 46.

Michaelmas

Michaelmas several of the creditors who had signed that instrument, agreed that the business should be carried on by the trustees for a further time: and it was held, that a creditor who had signed the first agreement, but who had not in any way concurred in the second, could not maintain an action against the insolvent for a debt existing at the time of the first agreement. Lord Ellenborough said, "The plaintiff, by the terms of the agreement, consents that the property of the defendant shall be assigned, and be in the management, exclusively, of the defendant, under the directions of the trustees, until Michaelmas. How can the plaintiff, then, replace the other creditors in the same situation? I should have been inclined to remit him to his original rights, if all the other parties could have been placed in their original situation, but that is impossible. This is an anomalous case, in which the plaintiff cannot stand in his former situation; nor can I say at present that the whole shall be nullified." Bayley J. said, " By the terms of the agreement, it is stipulated that the farming concerns shall be carried on until Michaelmas, for the benefit of the creditors who might concur; and it contains a further stipulation, that the debtor shall assign all his estate immediately: the consequence of which would be that he would thereby divest himself of all means of payment. It is true, that the defendant remains in possession; but as servant only, to the trustees; he has not a single article of property which he can appropriate to the payment of his debts. The plaintiff confides in the trustees, that they will perform the duties reposed in them; this they neglect to do, and they postpone the period at which they ought to sell. The non-division, however, of the property cannot, under the circum

stances, remit the creditor to his original rights. The parties not having provided for that event by the terms of the agreement, it appears to me that their only re

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medy is in equity." And Abbott J. added, "It is said, as the trustees did not sell at Michaelmas, the plaintiff may now sue; but how can the debtor get back his effects? We think, therefore, that the circumstance of the plaintiff's not having concurred in postponing the sale does not remit him to his original right of action."

Here, the creditors cannot be replaced in their original situation, and the Plaintiff, by executing the resolutions, having contributed to place them in their present position, cannot now recede from his contract, though it may turn out that he need not have signed it, and is precluded from resorting to the common fund. He must wait till the engagements contracted by the resolutions have been discharged.

TINDAL C. J. The signature of the resolutions, and the circumstances which followed, do not amount to a bar of the Plaintiff's claim in this action. The Defendants contend, that a party who concurs in resolutions for a distribution of the property of his debtor brings himself within the operation of a subsequent deed by which the debtor's property is assigned for the benefit of the creditors at large, and that his separate right is thereby suspended till the creditors are satisfied, or, at least, placed in the situation in which they originally stood. As a general proposition this is true, but it is not true where the party, by the act of the debtor, is prevented from taking the benefit of the deed. See how the matter stands in this case. The Plaintiff, a creditor of the Defendants, enters, with other creditors, into general resolutions as to the disposition of the debtor's property. Some time afterwards the amount of the Plaintiff's claim is contested, and ultimately the Defendants and the trustees under the deed of assignment determine that the Plaintiff shall not stand in the character of a

creditor

creditor at all; thereby denying him every right with a view to which he signed the preliminary resolutions. He may, therefore, contend that, as far as he is concerned, the resolutions have never been carried into effect at all. I agree that the other creditors are estopped to raise a similar objection, for they have had the benefit of a dividend under the deed: but how can it operate as an estoppel to the Plaintiff, who, by the trustees themselves, has been prevented from deriving any benefit under it? Besides this, the Plaintiff has been put out of the resolutions by an original act of the Defendants and the trustees; for by a letter written on the 27th of February he is expressly told that "Messrs. Woolner's trustees are of opinion that, after the evidence given by Mr. Loft before the commissioners at their last meeting, they would not be justified in allowing Mr. Garrard to rank as a creditor." What is that but a consent on their part that he shall be discharged from any participation in the general resolutions? Although it is a fraud on the other creditors, if a party who has concurred in recommending a distribution of the debtor's property refuses to come in on the same terms with the rest, it can be no fraud where he is prevented from deriving any advantage from the general distribution. Thus in Boothbey v. Sowden, Lord Ellenborough says, "If the plaintiffs could shew that the defendant had refused to give them the notes according to the terms of the agreement, they might be remitted to their original remedy; but I think that remedy is suspended by the agreement, unless an infraction of the agreement on the part of the defendant is proved by the plaintiffs." Here there has been an infraction of the terms of the agreement by the refusal to permit the Plaintiff to proceed under it. The rule, therefore, which has been obtained for a new trial must be discharged.

PARK