the objection was disallowed by the court. And in this case WINDHAM, J., said, that, if he had mentioned only diversa bona, yet it had been well enough, as a man cannot be supposed to know the certainty of his goods when his house is burnt; and added, that, to avoid prolixity, the law will sometimes allow such a declaration." It might be difficult in many cases for a man to know with certainty the number of his creditors,-as, for instance, in the case of endorsees of bills of exchange. In Norman v. Thompson, 4 Exch. 755,† a plea of composition averred that the defendant offered and agreed with the plaintiff and divers of the said other creditors (the plea having previously stated that the defendant was indebted to the plaintiff and divers other persons) "to pay to them respectively, and that the plaintiff and the said lastmentioned other creditors agreed together to accept, a certain composition for the payment of the defendant's debts, was held sufficient. "Precedent and practice ought to have great weight in the consideration of all points arising upon the propriety of forms, and in all legal instruments.". Per Lord ELDON *in Smith v. Doe d. The Earl *758] of Jersey, cited 11 Price, 193. Under this act, there is a special reason why the general averment should be held sufficient. The 226th section requires the trustee or inspector, or two creditors, to certify that the deed has been signed by six-sevenths in number and value of the creditors whose debts amount to 107. and upwards. [CRESSWELL, J.-And s. 237 requires an account of the debts of the trader to be appended to the certificate, together with the names, residences, and occupations of his creditors.] That section gives the creditors ample means of ascertaining that which it is contended should have appeared on the face of this plea. Perfect information could not be furnished by the plea some of the creditors execute by power of attorney, which would not be in the custody or power of the defendant: Hibbert v. Knight, 12 Jurist, 162. The plea alleges that the deed was subscribed by divers, to wit, two hundred of the defendant's creditors: the videlicet may be rejected,-Nash v. Brown, 6 C. B. 584 (E. C. L. R. vol. 60), 6 D. & L. 329; and then the plea shows the impracticability of setting out all the names. [CRESSWELL, J.-The numbers are not material.] A date may be assumed to be material upon demurrer, when if truly stated, it would support the pleading,-Ryalls v. Bramall, 5 D. & L. 753. [WILDE, C. J.-In that case you would be put to proof of the precise number.] The plaintiffs are under no hardship; for, if they had taken the right course, they might have discontinued without costs: Wollen v. Smith, 9 Ad. & E. 505 (E. C. L. R. vol. 36).

Channell, Serjt., in reply.—It is important that the plaintiffs should find upon the face of the plea a distinct and positive allegation of an actual suspension of *payment. [WILDE, C. J.-Was not the *759] execution of the deed a sufficient suspension? See s. 211. Is it not enough that certain facts are alleged which distinctly amount to

a suspension?] It may be so. But the question here is, whether the defendant was not bound to take upon himself to aver a suspension in point of fact, to give a foundation to the whole proceeding,-not what evidence would support an allegation of suspension.

WILDE, C. J.-It seems to me that the plea in this case, though not perfectly correct in all its parts, may still be sustained. Its validity depends upon the construction of the 224th section of the Bankrupt Law Consolidation Act, 1849, 12 & 13 Vict. c. 106, which provides that a deed which has been executed by a certain number of persons under given circumstances, shall, as against a person in the position of these plaintiffs, have the same force and validity as if it had been executed by him. The question is, whether the deed has been executed in such a manner as to make it available against the plaintiffs as if they had actually signed it. The first objection to the plea is, that the several creditors who executed it are referred to, but their names are not set out, and therefore the plea does not give the plaintiffs the means of ascertaining whether or not the conditions of the act are complied with by the signature of the deed by six-sevenths in number and value of the creditors. Now, the rule of pleading is clear, that, where undue prolixity will arise from the setting out of names, dates, and amounts, they may be dealt with in a general form. This part of the statute relates to arrangements entered into with creditors of an insolvent trader; and it may reasonably be inferred in such cases that the creditors would be numerous. It may, I think, be generally predicated in such cases that it would be inconvenient and unnecessary *to set [*760 out the names of all the creditors and the amount of their respective debts, more especially as the statute which gives the parties the means of ascertaining by whom the deed has been executed, and the amount of their respective debts, viz., by the certificate of the trustee or inspector, under s. 226, and the account annexed thereto, verified by the oath of the trader, as provided by s. 227. It seems to me, therefore, that this is a case in which the allegation the absence of which is complained of would lead to unnecessary prolixity, without any additional convenience or security to the plaintiffs, and consequently that it falls within the general rule referred to.

The next objection is, that the plea is informal and uncertain, with regard to the execution of the deed. No doubt there is a mistake in the copying of that part of the plea: we must, therefore, look to the rest of it, to see if the execution of the deed is sufficiently averred. If it appears that a deed of assignment was duly executed by the defendant, and that it was signed by six-sevenths in number and value of the creditors, that I apprehend satisfies so much of the statute as relates to the execution of the deed. The statute requires (s. 225) that the creditor who is sought to be affected by it shall have notice of the suspension of payment and of the execution of the deed. If the

trader is desirous that the deed should operate against creditors who do not execute within the time (three months) prescribed by s. 225, he may apply to the court for an order or certificate that the deed has been duly signed by the proper number of creditors. But, to warrant that application, he must give fourteen days' notice thereof to all the creditors, otherwise they are not bound by it. The plea alleges that the deed was signed by the requisite number of creditors, and a certificate thereof obtained after due notice to the plaintiffs. It appears *to me that all the conditions of the statute requisite to make *761] the deed effectual against the plaintiffs have been performed. But it is said that this must depend upon whether or not the court had jurisdiction; and that it could have no jurisdiction unless the defendant (the trader) had been resident within the particular district for six months prior to the suspension of payment. The question is, what is a suspension of payment? The act is divided into several heads. The general scope and object of this part of it I find to be, to further arrangements between traders and their creditors where the former are unable to pay their debts. The general scope and object of the act being thus clear and distinct, I am unable to suggest any good reason why the legislature should not have thought such a case as this a fit one for their interference, as well as the case of an actual and total suspension of payment. The language of the 225th section is equally applicable to the case of a person in the condition of being unable to pay his debts, as to that of an absolute suspension of payment, where there has been no renewal of payment. And, looking to the rest of the provisions of the act, to see what is meant by a suspension of payment, it seems to me clearly to mean suspension in the sense of being unable to pay his debts. What does the plea allege? That the defendant, being a trader, and unable to pay his debts, executed the deed referred to. I think it is impossible to entertain any reasonable doubt that that discloses such a suspension of payment as to give the Court of Bankruptcy jurisdiction.

It is further objected that the several clauses of the deed are not set out in the plea. The statute, however, does not deal with the clauses: but merely refers to the general nature of the arrangements contemplated, leaving the details to the creditors themselves. The language used in the act is manifestly intended to give *the creditors the *762] largest possible discretion in that respect. It would be absolutely impossible to frame a deed with all the provisos and stipulations necessary for the winding up of an estate. To require that would go far to frustrate and destroy the spirit and intention of the act. The same remarks will apply to the argument as to the primary trusts.

The objections to the form of the plea were sufficiently answered in the course of the argument.

Whether the deed has the effect of a release of the estate, as well as

of the person of the debtor, it is unnecessary to inquire. It clearly operates a release of the debtor, and may be so pleaded; and the plaintiffs are in the same situation as if they had actually executed it. For these reasons I am of opinion that the defendant is entitled to the judgment of the court upon this demurrer.

MAULE, J.—I am of the same opinion. The plea is certainly in some respects defective: but, upon the whole, I think its defects are not such as to entitle the plaintiffs to succeed upon this demurrer. There is much weight in the objection as to the omission of the words; and, though I incline to think that omission is remedied by what may be picked up in other parts of the plea, I should not be surprised if another court should hold the form defective. As to the non-enumeration of the names of the creditors, I think the case comes within that series of cases relating to the avoidance of prolixity. If the number of persons constituting a class be small, they might very well be enumerated; but the courts have said, that, as they probably might be numerous, it is enough to describe them in pleading by their general description, in order to avoid prolixity. The 225th section of the statute speaks of suspension of payment as of a thing of which the creditor is to have notice; and then it shall be lawful for the [*763 court to make an order or certificate declaring or certifying that such deed or memorandum of arrangement has been duly signed by or on behalf of the requisite number of creditors. The suspension of payment is not introduced there as a new thing, though the expression is introduced for the first time: the statute speaks of it as of something which the framers consider as having been spoken of before in the 224th section. The circumstances mentioned in s. 224 do, in my opinion, constitute a suspension of payment within the meaning of s. 225. The 224th section speaks of notice to the creditors of the suspension of payment of such trader, and of the execution by him of a deed or memorandum of arrangement. The earlier provisions of the statute (s. 211) show that this means a trader who is "unable to meet his engagements with his creditors, and is desirous of laying the state of his affairs before them." I therefore think the suspension of payment is sufficiently averred in this plea. When a trader who is unable to meet his engagements with his creditors enters into an arrangement of this kind, I think that constitutes a "suspension of payment" within the 225th section. That being so, the objection to the plea on that ground also fails. As to the non-allegation of the trusts of the deed, the answer has been given by the Lord Chief Justice. Though not parties executing the deed, the provisions of the statute having been complied with, the deed is as binding upon the defendants as if they had actually signed it. In effect the six-sevenths are constituted attorneys for the nonassenting seventh. These facts being alleged show that the deed is the plaintiffs' deed. The 224th section of the statute makes a deed exeVOL. IX.-32

cuted in the manner prescribed, subject to the conditions after mentioned, "as effectual and obligatory in all respects upon all the creditors who shall not have *signed such deed or memorandum of arrange*764] ment, as if they had duly signed the same." If the trader does what the act of parliament and the covenants in the deed require him to do, and any creditor shall afterwards sue him in respect of a debt or demand included in the account annexed to the certificate, according to the case of Gibbons v. Vouillon, 8 C. B. 483 (E. C. L. R. vol. 65), the deed shall operate as a release. I therefore think the plea is sufficient. If the deed contain any provisions inconsistent with that construction, that might be shown by way of replication. With regard to the plea being pleaded to the further maintenance of the action, I have already sufficiently intimated my opinion in the course of the argument. Upon the whole, therefore, I concur with my Lord in thinking that the defendant is entitled to judgment.

CRESSWELL, J.-I also think our judgment upon this demurrer must be for the defendant. As to the objection that the Christian and surnames of all the creditors parties to the deed of the third part are not set out, I think the case falls within the rule cited from my brother Stephen's book, which permits certain matters to be alleged in general terms, with a view to avoid undue prolixity. I think the objection as to the inconsistency in the dates arises evidently from a mere clerical error, and is sufficiently cured by the other parts of the plea which have been referred to, and that we may collect from the whole of it when the deed was made. Profert is made, and some of the covenants are set out, and there is a positive averment of the execution of the deed by six-sevenths in number and value of the defendant's creditors. As to the objection to the deed being pleaded as a release,—the defendant *might have placed himself in a difficulty if he had pleaded it as *765] a release by the plaintiffs. It is not a release of the defendant by the plaintiffs. The defendant is not released by the deed, but by the act of parliament, the 224th section of which says that the deed entered into and signed in the manner prescribed, and subject to certain conditions, shall be as effectual and obligatory in all respects upon all the creditors who shall not have signed the same, as if they had duly signed it." Accordingly, the plea, after averring that the deed was executed by the required number of creditors, and showing that the provisions of the statute had been duly complied with, concludes with an averment, that, by reason of the matters aforesaid, and of suing the defendant in this action, the defendant became and was released and discharged from the causes of action in the introductory part of the plea mentioned, and from the plaintiffs' right to sue for the same." I think it is correctly pleaded. As to the suspension of payment, it seems to me that there is no difficulty, inasmuch as the objection arises upon general demurrer only. If the question had been raised by special demurrer, there might

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