1858. KIDSON v. TURNER. when that promise is not the actual promise; and in that sense it differs from the plea of non est factum; but for this purpose it may not inappropriately be considered as a general issue. Then it is said that a bond is not comprehended in the words "any contract, promise or agreement." I am of opinion that it is. It would be strange if the legislature had said "You shall not make a new contract, promise or agreement, but you may give a bond." The argument founded on the fact that the 6 Geo. 4, c. 16, s. 131, required the promise to be in writing cannot prevail. The policy of the legislature, for a long period of years, has been to make a comprehensive system by which all bankrupts should be placed in the same situation. Our judgment must therefore be for the defendant. BRAMWELL, B.-I am of the same opinion. The doubt which I entertained arose from this,- that a person may give a bond to another without any consideration whatever, yet, if he has the moral inducement to secure a debt from which he has been discharged under the bankrupt law, the bond is void. It may be, that sound policy requires that the latter sort of bond should not be capable of being enforced. At all events it is not so unreasonable as to justify us doing violence to the words of the Act, if the Act comprehends bonds. That reduces the question to this, is a bond a contract, or a promise, or an agreement within the meaning of the 204th section of the "Bankrupt Law Consolidation Act, 1849." I think that it is a contract or agreement. It has been urged that the intention was only to make void a new contract to pay an old debt, but that argument is done away with by the case of Evans v. Williams. With respect to the permission to plead the general issue; assuming that this is not a case in which the general issue could be pleaded, that is no reason for holding TRINITY TERM, 21 VICT. that it is not within the statute, for the only effect of the WATSON, B.—I am also of opinion that the defendant is entitled to judgment. The word "contract" in the 204th section will embrace all contracts whether under seal or not. The intention was that a bankrupt should be freed from liability to pay the debts from which he is discharged by his certificate. It is argued that the enactment applies only to contracts which require some consideration to support them. But before the statute a promise or agreement to pay an old debt required no consideration, and the contract was valid whether under seal or not. Suppose that, instead of giving a bond, the defendant had covenanted to pay the old debt by a deed which recited his bankruptcy, that would be a contract within the mischief which the statute meant to obviate. Then suppose there was no recital, the covenant would still be within the Act; and if a covenant to pay an old debt is void, why should not a bond be void? It is said that the provision as to pleading the general issue shews that the 204th section does not apply to bonds, but there is the same provision in the 202nd section, and it is clear that a bond is a "contract or security" within the meaning of that section. Both sections have the same object; and the word "contract" is used in its ordinary acceptation, viz. "agreement," whether under seal or by parol. Judgment for the defendant. 1858. KIDSON v. TURNER. VOL. 111.-N. S. RR EXCH. 1858. June 7. THE SOLVENCY MUTUAL GUARANTEE COMPANY v. A declaration THE declaration stated, that by an agreement, made stated, that by an agreement between the plaintiffs, a guarantee Company, and the 22nd December, 1853, between the above Company of the one part, and the defendants of the other part: after reciting that the defendants were butter merchants at Liverpool and had delivered into the office of the Company a declaration in writing, containing a statement of the amount of their business and losses thereon during the three years pany a declara- preceding such declaration, and of such other particulars as were required by the rules of the Company; and that the defendants: after reciting that the defendants had delivered to the Com tion in writing containing a statement of the amount of their business and losses thereon during the three years preceding, and that they were desirous of being guaranteed by the Company in respect of their future annual sales in their business, according to the deed of settlement of the Company and the rules and bye-laws thereof, and that the Company had agreed to enter into the guarantee thereinafter contained upon the terms thereinafter mentioned: It was agreed between the defendants and the Company, that if the defendants should pay the sums thereinafter mentioned, and should comply with the provisions of the deed of settlement, &c., the subscribed funds of the Company should be liable to pay the defendants nine-tenths of their losses in respect of goods sold by them during the term of three years and one month from the 1st of December 1853, unto the 31st of December 1856, and during any further period the defendants should contribute to the funds of the Company and the Company should consent to receive further payments: but subject always to the provisions contained in the deed of settlement, &c., and also to the provisions thereinafter contained and indorsed thereon. That one of the provisions indorsed by the plaintiffs on the agreement was, that every guarantee upon gross annual returns should, from the expiration of the original term, be treated as a renewed contract, unless either the member interested therein, or the board of directors, should give two calendar months' notice of an intention not to renew the same. The declaration then alleged that the defendants agreed to pay the Company 434. 15s. in each year during the term of the guarantee: that the agreement so made was a guarantee upon gross annual returns within the meaning of the provision indorsed on the policy, and that no notice of an intention not to renew the guarantee had been given by either party; and alleged as a breach the nonpayment of an instalment of 434. 15s., being the annual premium for the year 1857, and 107. 18s. 9d., an instalment for the year 1858.-Pleas: first, that the sums are claimed in respect of periods after the 31st December, 1856, and that from and after such date the defendants refused to contribute to the funds of the Company. Secondly: that on the 31st December, 1856, by agreement between the plaintiffs and another Company, the plaintiffs' Company became dissolved and were amalgamated with that other Company, and the business, funds and property of the plaintiffs' Company were transferred to that other Company. Thirdly for defence on equitable grounds, a plea stating an agreement to amalgamate, as in the second plea. Held, that the first plea was bad, for the stipulation for notice was part of the contract; and no notice having been given the agreement continued for another three years. Also, that the second and third pleas were bad; since it did not appear that the Company were not empowered by their deed of settlement to amalgamate. 1858. SOLVENCY SOCIETY v. YORK. the defendants were desirous of being guaranteed by the Company in respect of their future annual sales in their business, according to the terms of the deed of settlement of GUARANTEE the Company and the rules and bye-laws thereof; and that the Company had agreed to enter into the guarantee thereinafter contained upon the terms thereinafter mentioned; and that the defendants had contributed to the funds of the Company the sum of 107. Os. 10d., and had further agreed to pay to the Company such further sums as were thereinafter mentioned: It was thereby agreed by and between the defendants and the Company in manner following (that is to say), that if the defendants should pay to the Company the sums thereinafter mentioned, and should fully comply with the provisions of the said deed of settlement and the rules and bye-laws for the time being of the Company; and further, that if the total amount of the sales made by the defendants in any, or in any one, of the years in which the guarantee was thereinafter made to extend, should not exceed 25,000l., then and in such case the subscribed funds of the Company should, according to the provisions of the said deed of settlement, rules, and byelaws, be subject and liable to pay to the defendants ninetenths of the loss or damage to be occasioned to the defendants in respect of any goods sold by the defendants during the term of three years and one month from the 1st of December 1853 unto the 31st December 1856, by reason of any or any one of the purchasers of such goods being duly found and declared bankrupt or taking the benefit of any Act for the relief of insolvent debtors, &c., within such time as aforesaid and during any further period in respect whereof the said member should contribute to the funds of the Company and the Company should consent to receive further payments at the rate aforesaid: but subject always to the provisions contained in the deed of settlement, rules 1858. June 7. THE SOLVENCY MUTUAL GUAF A declaration THE declaration stated, th stated, that by an agreement the 22nd December, 1853, between the plaintiffs, a guarantee Company, and the defendants: after reciting that the defendants had delivered to the Com pany a declaration in writing containing a statement of the amount TRINITY TERM, 21 VICT. were desirous of being guaranteed by the YORK and Ar and had further agreed ams as were therein by and between following (that ag to the Com would fully Sement the one part, and the def reciting that the defenda of their business a" of their business and losses the in each yea upon gros that no r alleged the ye are r such on S say), at Company should the place of business of ys before the time appointed. guarantee so made and entered into ntiffs and defendants was and is a guarantee annual returns within the meaning of the said on so indorsed upon the said policy, and that no otice of an intention not to renew the said guarantee at the expiration of the period of three years and one month has ever been given by the board of directors to the defendants, or by the defendants to the board of directors.—The declaration then averred that the plaintiffs gave to the defendants fourteen days notice to pay certain instalments of the sum of 431. 15s., being the annual premium for the year 1857, and 107. 18s. 9d., an instalment for the year 1858.-Breach: nonpayment. |