hands of or belonging to the assignees under the bankruptcy, or which might become vested in the defendant upon a supersedeas of the bankruptcy being issued, of which the said creditors at such meetings had notice, and which conveyance was accordingly duly made and executed by the defendant to the said P. R. after the said proposal had been accepted by the said creditors: that the plaintiff, before the making and presenting of the petition in this plea first mentioned, and making of the *said offer and of the said agreement, was a creditor of the defendant, within the true intent of the statute, for 270l.; that by means of the premises and by force of the statute, the said offer so proposed, and the said agreement so made as aforesaid, and the last-mentioned order of the Court, became and were and are binding and obligatory on the said creditors of the defendant and upon the plaintiff, as such creditor, for the sum of 2701.: that the defendant and P. R. duly paid the said composition to the other creditors of the defendant, and have always been ready and willing to pay to the plaintiff the said composition on the said sum of 270l. And the defendant now brings into Court the sum of 61l. 2s. ready to be paid to the plaintiff, and says that the said sum of 61l. 2s. is sufficient to satisfy the plaintiff the said composition and all causes of action in respect thereof. Demurrer and joinder. Macnamara (with whom was Lush) argued in support of The plea is bad, because it does not state that the amount of the composition was paid or tendered to the plaintiff before action brought. It is not enough to allege that the defendant and P. R. were always ready and willing to pay the composition. The plea states an accord without satisfaction. In order to make the plea good, it should have averred that the money was paid or tendered to the plaintiff at the time provided for in the offer of composition, viz. within fourteen days after the second sitting: Evans v. Powis (2), Oughton v. Trotter (3). In the notes to Cumber v. Mane, 1 Smith, Lead. Cas. 252 (4), referring to cases in which a debtor has induced a number of his creditors ta accept a composition amounting to less than their *entire demand, it is said: "Nor will the debtor be entitled to the benefit of it, if he neglect to perform accurately what is to be done on his part. Thus he must tender the composition money on the appointed day, for, as Lord ELLENBOROUGH said in Cranley v. (1) In Michaelmas Term, Nov. 12. Before Pollock, C. B., Bramwell, B., Channell, B. and Wilde, B. (2) 74 R. R. 777 (1 Ex. 601). HAZARD t. MARE. [ *439 ] [ *440 ] Hillary (1), the party to be discharged is bound to do the act which is to discharge him." It is not alleged that there was any agreement to accept the substituted liability of P. R. in satisfaction of the defendant's debt; and the 230th section of the Bankrupt Law Consolidation Act, 1849, does not provide for satisfaction by anything short of payment of the composition in cash. Here the discharge was conditional on payment or tender of the composition within fourteen days after the second sitting. The plaintiff was not bound to accept it except within that time, nor could the subsequent payment operate as satisfaction of his debt: Walker v. Seaborne (2), Shipton v. Casson (3), Drake v. Mitchell (4). Hayes, Serjt. (with whom was Griffits), for the defendant: An agreement for a composition after bankruptcy operates as the substitution of a new contract for the original obligation of the debtor. It is true that in Comyns's Digest, tit. Accord B., it is laid down that an accord must be executed, "it is not good if he shows only a tender and refusal." An accord is considered an agreement which, as between debtor and creditor, is not intended to operate unless it is actually performed. Here, however, the body of creditors agree, the forbearance of each being a consideration for the forbearance of the others, and a third person becomes security for the payment of the composition. The 133rd section of the 6 Geo. IV. c. 16, did not interfere with the rights of persons not parties to the agreement: *Tuck v. Tooke (5); and a creditor who held aloof was not bound. That was a defect which the 230th section was intended to remedy. It enacts that every creditor "shall be bound to accept of such composition so agreed to." A strict legal tender of the composition is not necessary. The debtor may not be able to find or make a tender to the creditor. Here it was part of the bargain that all the defendant's effects should be given up to P. R., which is stated to have been done with the knowledge of the creditors, and the bankruptcy was annulled. Therefore, neither the defendant nor the other creditors can be remitted to the position in which they previously stood. (BRAMWELL, B.: The adjudication is to be annulled "upon payment of such sum as the Court shall direct.") That does not refer to the payment of the composition, but of the expenses incurred under the petition and adjudication. In Cork v. Saunders (6), A., being insolvent, by agreement stipulated (1) 2 M. & S. 120. (4) 7 R. R. 449 (3 East, 251). (5) 9 B. & C. 437. (6) 1 B. & Ald. 46. to assign his property immediately, the creditors consenting that the business should be carried on for their benefit until the then next Michaelmas; and it was provided that they would enter into an agreement to release the defendant from his debts on receiving such a composition as the produce of his effects would admit of being paid at that time. The defendant executed an assignment of his effects. At the next Michaelmas several of the creditors who had signed this instrument agreed that the business should be carried on by the trustees for a further time: 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. The COURT relied on the fact that the debtor could not be replaced in the same position *as before the assignment. (BRAMWELL, B.: There the creditor might have compelled the trustees to divide the proceeds; but can it be shown that this agreement could be enforced by a creditor who did not assent to it?) It is a binding statutory agreement. (WILDE, B.: What is meant by the expression "bound to accept of such composition "?) 66 It means, Macnamara, in reply: The expression "bound to accept such composition," in the 230th section, may mean bound to accept it if the conditions are performed. Here neither the plaintiff nor even the creditors who accepted the offer were bound to accept the compensation unless tendered within the fourteen days. If this were otherwiso a creditor might be bound to accept it even after the lapse of (1) 2 M. & S. 120. (2) 1 Cr. M. & R. 649. (3) 80 R. R. 762 (4 Ex. 755). (4) 1 R. R. 617 (2 T. R. 763). (5) 11 East, 390. (6) 71 R. R. 745 (15 M. & W. 23). HAZARD MARE. [ *443 ] [444] many years. The defendant's property was not given up to his creditors, but only assigned to indemnify P. R. his surety; and the plaintiff was prejudiced by being deprived of the opportunity of having the defendant's property distributed under his bankruptcy. Bradley v. Gregory (1) and Litt. *ss. 342, 343, show that the amount of the composition should have been tendered. Cur. adv. vult. The judgment of the COURT was now delivered by POLLOCK, C. B.: We think the plaintiff is entitled to judgment. The words at the end of the 230th section of the Bankrupt Law Consolidation Act, 1849, "and every creditor of such bankrupt shall be bound to accept of such composition so agreed to," in our opinion, are only important to bind the non-assenting creditors, but they bind them as much, neither more nor less than the assenting creditors. The question then is, what is the position of the assenting creditors? And, to determine that, the words cited may be left out of consideration. Now, it is to be observed that the only consequence the statute attaches to the agreement to accept a composition (besido the binding of non-assenting creditors) is, that the Court shall annul the adjudication and supersede or dismiss the fiat or petition. The effect of the agreement, as a defence or answer to the original claim, is not expressed, but left as a common law consequence. The statute may be read therefore as if it had been, "if all the creditors agree to accept a composition, the adjudication shall be annulled and the petition dismissed." But if this had been a mere voluntary agreement by all creditors, it is clear that payment or tender, or attempt to pay or tender, would have been necessary to make a defence to the original claim. The agreement set forth in the plea is distinct, that the sum agreed to be paid, and not the agreement to pay it, was to be taken in satisfaction of the original debt. Then Evans v. Powis (2) is in point against the defendant. It is said this leaves the debtor at the mercy of a recusant creditor, whose abode is not known and who avoids a tender. Even if so, we think we ought not to construe the Act of Parliament otherwise than we do. But the objection is imaginary practically such difficulties will not occur. Debtors generally know where their creditors live; and we incline to think that a formal tender might not be required if a reasonable effort to pay were made; or at all events the composition might be (1) 11 R. R. 742 (2 Camp. 383). (2) 74 R. R. 777 (1 Ex. 601). made payable within a time after notice or demand, or some other term might be introduced to protect the debtor. But mischief may be shown to exist to the creditors if the defendant's argument be well founded. Suppose the creditor does not know of the bankruptcy. Suppose he does not know of the composition and brings his action; and suppose further (as may be the case), that the debtor is no party to the offer to compromise but only his "friend," might he not reasonably complain that he brought a fruitless action owing to his debtor giving him no notice. We say a fruitless action because, if the new agreement is a discharge of the original claim, the defendant may set it up without paying money into Court. Or suppose the debt is contested by the debtor or the "friend who offered the compromise, what is the creditor to sue for? Or suppose the parties will not or cannot pay the composition, is the plaintiff to have judgment for the amount of the composition only? Without, therefore, saying that there is no objection to the plaintiff's construction or that the defendant's is open to more, we think that there are at least difficulties in each, and certainly not enough in the plaintiff's to warrant us in adding a term to the statute, as we think the defendant's argument does. Judgment for the plaintiff. RILEY v. BAXENDALE AND OTHErs. (6 H. & N. 445—448; S. C. 30 L. J. Ex. 87; 9 W. R. 347.) A declaration, by the administratrix of J. R., alleged that J. R. was the servant of the defendants, on the terms that the defendants should take due and ordinary care not to expose the said J. R. to extraordinary danger and risk in the course of his said employment; yet the defendants did not take due and ordinary care not to expose, &c., and so carelessly conducted themselves that J. R. was, while employed as such servant, exposed to extraordinary danger and risk in the course of his employment, and was, through the carelessness and wrongful conduct of the defendants, and by being exposed to extraordinary danger and risk as aforesaid, struck by a railway truck and killed: Held, that no such contract could be implied from an ordinary contract of service. DECLARATION. Sarah Riley, administratrix &c. of John Riley, sues Joseph Baxendale and J. H. Baxendale, for that, in the lifetime of the said John Riley and before and at the time of the committing of the grievances, &c., John Riley had become and then was the servant of the defendants, to wit, a porter, on the terms that the defendants should take due and ordinary care not to expose the said John Riley to extraordinary danger and risk in the course of his said employment; yet the defendants did not take due or ordinary care not to expose the said J. Riley to extraordinary danger and risk in the course of his said employment; and so carelessly, negligently and impro HAZARD ጥ. MARE. 1861. Jan. 15. [445] |