to B, and in consideration of the further sum of 2,9361. to be paid to B and to V and B according to their respective rights and interests in the premises, on or before the 25th of March 1844, B GS and V agreed to sell the premises, and that B would at his own expense deduce a good title to the same; and that B and all other necessary parties would, on or before the said 25th of March, on payment by the company of the said sum of 2,9361., at the costs and charges of the company execute and procure to be executed a proper conveyance for conveying the fee simple of the premises; and that the company thereby agreed with B that they would, on or before the said 25th of March, and on the execution of such conveyance, pay the said sum of 2,9361., and until payment of the said sum would pay interest on the same unto B and his assigns; that the 25th of March 1844 had elapsed; that although B before his bankruptcy, and the plaintiffs as his assignees after it, were ready and willing to deduce a good title, and though B and the necessary parties were ready and willing on payment by the defendants of the said sum of 2,9361. to execute a conveyance, and would have done so, but that the defendants discharged B and the plaintiffs from deducing such good title and from executing such conveyance. It then alleged as a breach, that the defendants did not prepare a proper conveyance, nor pay to B or to the plaintiffs the 2,9361., or any part thereof:-The Court of Exchequer Chamber affirmed the judgment of the Court of Exchequer in favour of the plaintiff, on a special demurrer to the declaration. And, held, that assignees of a bankrupt, suing on a deed made to the bankrupt, are not bound to make profert of the deed; that the breach, that the defendants had not prepared the conveyance nor paid the money, was good, since as the deed provided that the conveyance was to be at the costs and charges of the defendants, it lay on them to prepare it; that the execution of the conveyance and the payment of the money were to be concurrent acts, but that the deduction of a good title by B was necessarily a condition precedent to the preparation of the conveyance, as the conveyance could not be properly prepared until the title was deduced; that the averment that the defendants discharged B and the plaintiffs from deducing title was sufficient on general demurrer, as if traversed the averment could not have been proved otherwise than by the production of a deed of discharge, and it was not made a ground of special demurrer that the declaration did not allege the discharge to be under seal; and that it was not necessary to point out the respective interests of B and others in the money to be paid, as the covenant was not a covenant to pay the principal sum to B and the others, according to their respective interests, and the interest to B, but was a covenant to pay to B, both principal and interest. Thames Haven Dock and Rail. Co. v. Brymer, 19 Law J. Rep. (N.s.) Exch. 321; 5 Exch. Rep. 696.

(E) DAMAGES.

RP covenanted with J G not to carry on the trade of a perfumer, &c. within the cities of London and Westminster, or within 600 miles from the same, and bound himself in 5,000l. by way of liquiDIGEST, 1845-1850.

dated damages for the observance of the covenant. The plaintiff below, the executor of J G, brought his action for a breach of the covenant by the defendant carrying on the business in the city of London. Plea, that the indenture was void, because the covenant extended to all England. On demurrer to the plea, judgment was given for the plaintiff. A writ of inquiry having been executed before a Judge, he directed the jury to assess the damages at the whole sum of 5,000l. The defendant tendered a bill of exceptions to the Judge's ruling, and brought a writ of error on the judgment upon the demurrer: -Held, that the covenant was divisible; and that, although void as regarded the distance of 600 miles from London and Westminster, it was good as regarded the cities of London and Westminster themselves.

Held, also, that the jury were properly directed to assess the damages at the whole 5,000l., and not to ascertain the actual damage. Price v. Green, 16 Law J. Rep. (N.S.) Exch. 108; 16 Mee. & W. 346.

The plaintiff and the defendant being attornies and solicitors, carrying on business at Ely Place, in London, in co-partnership, dissolved the partnership by indenture, whereby the defendant covenanted with the plaintiff that he, the defendant, would not thereafter, within the next seven years, directly or indirectly, by himself or in partnership, carry on the business of an attorney or solicitor within fifty miles from Ely Place, nor interfere with, solicit, or influence the clients of the said co-partnership, and if he should infringe the covenant, then that he would immediately pay to the plaintiff 1,000l. as and for liquidated damages, and not by way of penalty:-Held, that the intention of the parties was, that the sum of 1,000l. was to be considered as liquidated damages, and not as a penalty. Galsworthy v. Strutt, 17 Law J. Rep. (N.S.) Exch. 226; 1 Exch. Rep. 659.

Lessees covenanted that they would pay all taxes, charges, rates, or rent-charges in lieu of tithes that then were or should at any time thereafter during the demise be taxed, charged, assessed, or imposed upon the demised premises, except the land tax and property tax:-Held, that the lessees were bound to pay all rates then imposed on the lessees in respect of their occupation, e. g., church-rate, highway rate and poor-rates, and all other rates which might be imposed on the land itself.

A declaration stated that the defendants had covenanted not to cut down or lop any tree under a penalty of 20%. for each tree so cut down or lopped over and above the value of such tree, and averred as a breach that the defendants lopped divers, to wit, twenty trees, of the value of 80%., and then and thereby the defendants became liable to pay a large sum, to wit, 10., being the value of the said trees to the plaintiff, and also the further sum of 201. for each of the trees so lopped. It was proved that one tree only had been lopped:-Held, that the Judge ought to have directed the jury that the 201. penalty could not be recovered. Hurst v. Hurst, 19 Law J. Rep. (N.s.) Exch. 410; 4 Exch. Rep. 571.

A declaration in covenant, after stating that the defendant and the plaintiff had agreed to enter into partnership as surgeons, &c., stated that the defendant covenanted that he would not at any time

2 G

practise in the profession of a surgeon at No. 28, Dorset Crescent, or within the distance of two miles thereof, measuring by the usual streets or ways of approach thereto, nor reside within the distance of two miles and a half of No. 28, Dorset Crescent, without the plaintiff's consent, nor would attempt to prevail on any of the patients of the defendant or of the partnership to withdraw from the plaintiff, or to employ any other medical attendant in prejudice of the plaintiff, but would in all things endeavour to promote the business and advantage of the plaintiff in the profession of a surgeon as far as it was in the power of the defendant and he could reasonably and properly be required to do, and that if the defendant should in any respect break or infringe this stipulation he should pay the plaintiff 1,000%. as liquidated damages and not by way of penalty: -Held, first, that the distance was to be measured not by the most frequented public ways but by any of the usual public ways; secondly, that the stipulation as to residence was not void as being in restraint of trade or contrary to public policy, and that the declaration was good in arrest of judgment; lastly, that the sum payable was to be considered as liquidated damages and not as a penalty. Atkyns v. Kinnier, 19 Law J. Rep. (N.S.) Exch. 132; 4 Exch. Rep. 776.

A declaration in covenant, after reciting two agreements between the plaintiff and the defendant, stated that by a third agreement, of the 27th of September 1848, between the same parties, the defendant agreed to demise to the plaintiff, on or before the 29th of November, a certain ferry, &c. at a certain rent, and agreed, within fourteen days from the date thereof, to deduce a good title thereto; and that the plaintiff agreed to pay to the defendant, before the 29th of November, 3,1501. upon having a good title deduced. Breach, that the defendant did not, within fourteen days, &c., or at any time, deduce a good title. Second plea, that the plaintiff was not ready and willing to perform all things to be performed, &c. Third plea, that the defendant did deduce a good title to the premises according to the agreement: · The plaintiff, a solicitor and promoter of a company, provisionally registered, for making improvements in Hayling Island, by agreement of the 17th of September 1850 agreed with the defendant, who was the owner of land there, for the demise to the plaintiff of a ferry, land, houses, and premises, and that the defendant should, within fourteen days from the date thereof, furnish an abstract of his title to the premises and deduce a good title thereto, and that the plaintiff agreed to pay to the defendant, on or before the 29th of November, 3,1501. After this agreement a company was formed and provisionally registered by the plaintiff as its promoter, its object being to make a ferry, to erect gas works and bathing-houses, &c., on Hayling Island. On the 10th of November the defendant sent to the plaintiff an abstract of his title, which disclosed a mortgage of the premises to the trustees of the defendant's marriage settlement, one of whom was imbecile. There were also two judgments against the defendant. In consequence of these objections to the title, the association was dissolved by its members, and the 3,1501. was not paid to the defendant: -Held, that the plaintiff was entitled to succeed on

the above issues, and that he was entitled to recover as damages the costs of preparing and entering into the agreement, of investigating the title, of endea vouring to procure a good title, and also of the grant of the lease; but that he was not entitled to recover as damages the expenses of raising the 3,150l. and loss at interest; nor the expenses of preparing the deed of settlement of the company; nor the money expended in forming the company and in registering it provisionally; nor the loss of profits from the granting of the lease and the establishment of the association; nor the profits he would have derived as an attorney in carrying out the objects of the association; nor the other advantages he would have derived from his time, trouble, &c. bestowed in the formation of the company. Hanslip v. Padwick, 19 Law J. Rep. (N.S.) Exch. 372; 5 Exch. Rep. 615.

CRIMINAL LAW.

[See the various titles of Criminal Offences; also Felony-Indictment-Misdemeanour-Pleading.]

Power of transportation and imprisonment altered, 9 & 10 Vict. c. 24; 24 Law J. Stat. 70.

CROWN CASES RESERVED, COURT FOR.

The Court of Criminal Appeal, constituted under the statute 11 & 12 Vict. c. 78, has no power, on a case stated by the Judge, to review the propriety of a judgment given by him for the Crown on a demurrer to an indictment. Regina v. Faderman, 19 Law J. Rep. (N.s.) M.C. 147; 1 Den. C.C. 565.

On a case reserved, the question stated in the case upon the facts there stated can only be argued; and if any material fact has been omitted, applica tion should be made to the Judge to insert it. Regina v. Smith, 2 Car. & K. 882.

Semble that the recorder of a borough has power to reserve questions of law under the 11 & 12 Vict. c. 78. Regina v. Masters, 18 Law J. Rep. (N.S.) M.C. 2; 1 Den. C.C. 332.

CRUELTY.

Cruelty to animals more effectually prevented by 12 & 13 Vict. c. 92; 27 Law J. Stat. 182.

CURRENCY.

A, resident in Amsterdam, being the owner in possession of a plantation in British Guiana, by an instrument executed in her behalf by her attorney in London, in 1817 sold the plantation, cum annexis, to B for 100,000 guilders "Holland currency," and 30,000l. sterling, taking, as part of the consideration money, a first mortgage on the plantation for the 100,000 guilders. By the terms of this mortgage it was stipulated that the 100,000 guilders were not to be paid during the lifetime of A, but upon her death to her lawful descendants (if she had any), and if not to the nephews and nieces of J B; and it was specially provided that if, at any time the interest,

at the rate of 51. per cent. should not be punctually paid every year at Amsterdam, and that if, by such default, A should be obliged to appoint an attorney to demand the same in the colony, the interest in that case should be at the rate of 61. per cent. and a further charge of 101. per cent. for commission. A intermarried with E, and the interest on the mortgage not having been paid as stipulated, an attorney was appointed at British Guiana to recover the arrears. In 1828 A died without issue or lawful descendants, leaving E, her husband, surviving, at which time the interest on the mortgage was still in arrear. In the year 1836, C & Co. purchased the first mortgage, and all the interest therein, which the parties claiming title under the limitation in the mortgage deed to the nephews and nieces of J B had. The consideration money paid by C & Co. was considerably less than the amount of the first mortgage and interest thereon. Upon the passing of the act for the abolition of slavery C & Co. received from the Compensation Commissioners, in respect of this mortgage, a sum more than sufficient to repay them what they had paid for the mortgage, but much less than was due upon the mortgage for principal and interest. The plantation was sold in 1838 at the suit of B, and all creditors having claims were summoned to render their claims, and upon C & Co. claiming priority under the first mortgage, the Supreme Court of Demerara and Essequibo held, that the second mortgagee was preferent over the first, as under the Anastasian law, which they declared prevailed in British Guiana, an assignee for a valuable consideration of a debt or chose in action secured by deed could not recover more than the amount of the consideration money actually paid to the assignor with legal interest from the time of payment, and that the sum received by C & Co. from the Compensation Commissioners was more than sufficient to pay off, and must be held to extinguish the whole debt upon the first mortgage: Upon appeal, it was held by the Judicial Committee of the Privy Council (reversing the decree)-first, that in the absence of any fraud by C & Co. in the purchase of the first mortgage, and of any authority to shew that the lex Anastasiana prevailed in British Guiana, or could be applied to a case so circumstanced, the amount of the consideration money given by C & Co. was not to enter into question between them and the second mortgagee; secondly, that the term, in the mortgage deed, "Holland currency," coupled with the fact of Amsterdam being the place mentioned for payment, meant Dutch currency, and not colonial currency; thirdly, that the clause for varying the interest from 51. to 61. was not confined in its operation to the lifetime of A, but that circumstances might have rendered it inequitable to increase the rate of interest after A's death, or during some portion of the time after that event. Macrae v. Goodman, 5 Moore P.C. 315.

CUSTOMS. [See REVENUE.]

By indenture under seal, B assigned to A a policy of insurance, as security for a debt due from B to A, and covenanted to pay to the insurance office the annual premium thereon as it should become due. It was in the same deed further agreed, that if B should neglect to pay the premium, it should be lawful for A to pay it, and recover the same from B in an action for money paid. A having paid the premium, upon B's neglect so to do,-Held, that an action of debt lay for the amount. Barber v. Butcher, 15 Law J. Rep. (N.S.) Q.B. 289; 8 Q.B. Rep. 863.

An action of debt lies upon a bond binding the defendant to pay to a party, treasurer of a company, or his attorney, executors, &c., or the treasurer of the company for the time being. White v. Hancock, 15 Law J. Rep. (N.S.) C.P. 186; 2 Com. B. Rep. 830.

The defendant entered into an agreement, in writing, with the plaintiff, by which he was to board and lodge with the plaintiff at a certain weekly sum, and the plaintiff agreed to take, in payment for the board and lodging, certain furniture of the defendant, then in the plaintiff's house. The furniture having afterwards, and before the plaintiff had appropriated it, been taken in execution for a debt of the defendant to another party,-Held, that the plaintiff was entitled to recover, in the ordinary action of debt, for board and lodging, as if the special contract had never existed. Keys v. Harwood, 15 Law J. Rep. (N.S.) C.P. 207; 2 Com. B. Rep. 905.

An action of debt for turnpike tolls lies where the defendant has frequently passed through the gate, misrepresenting facts, which led the collector to believe he was not entitled to receive toll, and consequently demanded no toll at the times the defendant passed through. Maurice v. Marsden, 19 Law J. Rep. (N.s.) C.P. 152.

By a local act of parliament overseers of a parish were authorized to grant the fee simple of certain plots of land to certain parties, subject to the payment to the said overseers and their successors of certain yearly chief rents, and also subject to certain covenants, amongst which covenants were, that the grantee, for himself, his heirs, &c. covenanted with the said overseers and their successors, "that he would duly pay the said yearly chief rent to the said overseers," &c. In an action of debt brought by the overseers against a grantee holding under a conveyance containing such covenant, for arrears of rent,-Held, on general demurrer, that debt would lie.

Quare-Whether since the passing of the statute -3 & 4 Will. 4. c. 27. s. 36. an action of debt lies for the recovery of the arrears of a rent in fee. Varley v. Leigh, 17 Law J. Rep. (N.s.) Exch. 289; 2 Exch. Rep. 446.

The plaintiff was mortgagee under a mortgage from the defendant to him, with a power of sale in the event of non-payment of a certain sum of money, which was further secured by a bond given by the defendant to him. The property was afterwards sold by the plaintiff under the power, but did not produce sufficient to discharge the debt. An account was then stated between the plaintiff and the defendant, charging the defendant with the full amount of the principal and interest, and giving him credit for the net proceeds of the sale. The defendant admitted the correctness of the amount and promised to pay the balance, to recover which the plaintiff brought an action of debt on simple contract for money lent, and on an account stated: -Held, that the debt having been secured by specialty, the action could not be maintained. Middleditch v. Ellis, 17 Law J. Rep. (N.s.) Exch. 365; 2 Exch. Rep. 623.

DEBTOR AND CREDITOR.
[See INSOLVENT DEBTOR.]

(A) CREDITOR, RIGHTS OF.

(B) COMPOSITion Deeds.

(a) When and how far binding.

(b) What Creditors entitled to the Benefit of.
(c) Order of Payment of Debts.
(d) Favouring a particular Creditor.

(C) RECOVERY OF SMALL DEBTS UNDER 8 & 9 VICT. c. 127.

(D) PROCEEDINGS UNDER 7 & 8 Vict. c. 70.

(A) CREDITOR, RIGHTS OF.

A, the owner of estates in the West Indies, upon which B had an annuity charged, empowered B to arrange with a firm in London, to receive the consignments, and, in consideration thereof, to make the necessary remittances and to pay the charges upon the estates. B, as the agent of A, entered into an agreement with D & Co. that they should make such remittances and provide for the charges upon the estates (including B's annuity), and that the produce of the estates should be consigned to D & Co. in repayment of such advances. The

consignments were made accordingly, and D & Co. for some time paid B's annuity, but afterwards refused to continue such payments. The bill was filed by B against A and D & Co. for payment of the arrears of his annuity out of the consignments. On demurrer, by D & Co. for want of equity, held, that D & Co., by the subsequent payments of B's annuity on the footing of the agreement, had given him an interest in the deed, and a right of suit, and the demurrer was overruled, with costs. Kirwan v. Daniel, 16 Law J. Rep. (N.s.) Chanc. 191; 5 Hare, 493.

A creditor, whose debt is collaterally secured by a policy of insurance on the life of one of several debtors, under an agreement that the debt shall not be recoverable during the payment of the premium by the debtors, has a right to enforce payment of the debt upon forfeiture of the policy, notwithstanding his having, subsequently to the forfeiture, obtained a renewal of the policy. Winthrop v. Murray, 19 Law J. Rep. (N.S.) Chanc, 547. (B) COMPOSITIon Deeds.

[See 13 & 14 Vict. c. 106. s. 230.] Bush v. Shipman, 5 Law J. Dig. 239; 14 Sim. 239.

(a) When and how far binding.

The agreement of any one creditor to take less than his debt is a sufficient consideration for a similar agreement by any other creditor; and the assent of all the creditors is not necessary, unless made a condition of the agreement.

A plea, after stating that the defendant was indebted to the plaintiff and divers other persons, averred an agreement for composition between the defendant, the plaintiff and the said other creditors: -Held, that the plea was proved by proof that the plaintiff and all other creditors, except three, agreed to the composition. Norman v. Thompson, 19 Law J. Rep. (N.S.) Exch. 193; 4 Exch. Rep. 755.

A conveyance for the benefit of creditors held not to be revocable by the author as against any creditors with whom such communications had taken place as would give them an interest under the deed, but, at the utmost, to be revocable only as to the surplus proceeds of the estate after satisfying such creditors; and whether the deed was revocable at the option of the author as to such surplus, quære. Griffith v. Ricketts, 7 Hare, 307.

A person in pecuniary difficulties entered into a composition deed, by which he covenanted to pay 1,500l. to trustees, and to effect an insurance on his own life for that amount. He paid 5001., and then effected an insurance for 1,000 only. One of the creditors who had signed the deed brought an action against the debtor for his debt, insisting that the deed was void, in consequence of the breach of cove nant to insure for 1,500l. But it being shewn that the creditor was aware of the amount of the insurance soon after it was effected, and his conduct being considered by the Court as shewing acquiescence in such breach of covenant, he was held not to be entitled to take advantage of it, and was restrained by perpetual injunction from bringing any action against the debtor. Watts v. Hyde, 17 Law J. Rep. (N.s.) Chanc. 409.

(b) What Creditors entitled to the Benefit of. Hop-merchants sold a quantity of hops to a person, who paid a small part only of the purchasemoney, and shortly afterwards entered into a composition with his creditors. The creditors were to execute or assent to the composition-deed within three months, or be precluded from the benefit of it. The vendors retained a lien on the hops according to the custom of the trade, and afterwards sold them for much less than the original purchasemoney, and then claimed to share in the dividend under the composition-deed, for the balance remaining due to them. They had not executed the deed, but had virtually assented to it:-Held, that the vendors were not entitled to receive any dividend under the deed. Bush v. Shipman, 15 Law J. Rep. (N.S.) Chanc. 356; (nom. Buck v. Shippam) 1 Ph. 694.

By a deed by which A conveyed estates, in trust, for payment of his debts, it was provided that no creditor should be entitled to the benefit of the trust, unless the trustees having investigated and allowed his debt, should give him a debenture for it. The trustees gave debentures to three creditors. In a suit by one of the trustees against his co-trustees, the Master was directed to take an account of all A's debts due at the date of the conveyance, and to advertise for his creditors to prove their debts by a day named or to be excluded from the benefit of the decree. The plaintiff and several other creditors proved their debts under the decree :-Held, nevertheless, that only the plaintiff and the debenture creditors were entitled to the benefit of the trust. Drever v. Mawdesley, 16 Sim. 511.

(c) Order of Payment of Debts.

A debtor conveyed real and personal estate to a trustee for sale, with a declaration that the proceeds of the sale should be applied by the trustee in discharge of the debts mentioned in the schedule, " and now remaining justly due and owing" by the debtor to the persons named in the schedule, "according to the priority, nature and specialty of such debts respectively:"-Held, upon the construction of the whole instrument, that a bond debt mentioned in the schedule with interest (the principal and interest not exceeding the penalty of the bond) was payable in priority to a simple contract debt. Passingham v. Selby, 2 Coll. C.Č. 405.

(d) Favouring a particular Creditor.

The plaintiff being in insolvent circumstances, and indebted to several persons, in sums partly secured by outstanding bills, entered into a deed of composition, by which composition bills were agreed to be given to the respective creditors by the plaintiff to the amount of 5s. in the pound, and guaranteed by one T M. The creditors severally covenanted not to sue while these composition bills were running, and to release the plaintiff if the same were paid at maturity. They also covenanted severally to indemnify the plaintiff against and in respect of such bills as were outstanding in their hands as his creditors at the execution of the deed. H P and his partner J M were, at the time of the execution of the composition deed, creditors of the plaintiff, and holding acceptances of the plaintiff for part of their

debt. These bills were afterwards negotiated, and the plaintiff was sued upon them and compelled to pay the amount, with costs. He thereupon sued HP on the covenant for not indemnifying and holding him harmless. The defendant pleaded, that before the execution of the deed, it had been agreed between the plaintiff and himself and his partner, that in addition to the composition of 5s. in the pound, the plaintiff should pay in full a portion of his debt to them, and should pay the composition of 5s. in the pound in cash instead of by a bill; and that this agreement was unknown to the other creditors; and that he, the defendant, in part performance of the agreement, had executed the deed to induce the other creditors to believe that he and his partner had received the same composition as the rest :-Held, that the transaction was fraudulent, and that the plaintiff could not sue the defendant upon the covenant to indemnify.

The declaration alleged that the defendant did, on &c. to wit, as such creditor, jointly with J M subscribe his, the defendant's, name and affix his seal to the indenture. The plea stated, that in part pursuance of the agreement stated therein, "he, the defendant, for himself and his partner, made and executed the indenture as in the declaration mentioned:"-Held, that it sufficiently appeared that the defendant had himself executed the deed.

The plea did not state in terms that the agreement was a fraud upon the other creditors :-Held, that the facts sufficiently shewed that the deed was fraudulent, and that it could not be enforced by any of the parties to the fraud. Higgins v. Pitts, 18 Law J. Rep. (N.S.) Exch. 488; 4 Exch. Rep. 312.

Whatever may be the general rule, if there be any, as to extending indulgence to a creditor under a composition deed, who does not claim the benefit of the deed within the time specified in it, that rule does not apply to a creditor who actively refuses to come in under or assent to the deed within the time limited and who does not retract that refusal within the time. Johnson v. Kershaw, 1 De Gex & S. 260.

(C) RECOVERY OF SMALL DEBTS UNDER 8 & 9 VICT. C. 127.

The expression" costs remaining due at the time of the order of imprisonment being made," in the 8 & 9 Vict. c. 127. s. 3, means the costs ordered by the Commissioner of Bankruptcy or other Court mentioned in the act to be paid by instalments or otherwise; and the expression "all subsequent costs," in the same section, means the costs incurred by reason of the debtor's default in payment of the instalments. Ex parte Shuckard re Archer, 16 Law J. Rep. (N.S.) Bankr. 5; 1 De Gex 454.

(D) PROCEEDINGS UNDER 7 & 8 VICT. c. 70.

A certificate of protection duly granted by a Commissioner in Bankruptcy to a petitioning debtor, under the 6th section of the 7 & 8 Vict. c. 70. (for facilitating arrangements between debtors and creditors), is no bar to a subsequent action against such debtor, brought by a creditor who had notice of all the proceedings under the act, for a debt inserted in the debtor's petition.

Such certificate amounts to no more than a pro