2nd. As to the residue, never indebted. 3rd. As to the residue, set-off. Replication to the third plea, being a replication upon equitable grounds, that, before the defendant became indebted to the plaintiff, and whilst the plaintiff's ship was at sea, and earning the freight mentioned in the declaration, and before action, the plaintiff agreed with Early and Smith, in consideration of 1,500l. then lent by them to the plaintiff, to assign to them the said freight then expected to be earned by the plaintiff, to be received by the said Early and Smith towards satisfaction, as well of the said sum of 1,5001. as of a large sum of money then due and owing from the plaintiff to the said Early and Smith. And the plaintiff says, that the sum so due from him to the said Early and Smith exceeds the amount of the debts in the said money counts mentioned; of all which premises the defendant, before and at the time of the commencement of this suit, and before any of the said debts or freights in the said money counts mentioned became due or payable, had notice; and the plaintiff says that he brought this action, and is prosecuting the same as a trustee only for the said Early and Smith, for their account and benefit under the agreement aforesaid. Demurrer, and joinder in demurrer. Lush, Q. C. (Honyman, with him), for the defendant, in support of the demurrer. The replication does not allege that the assignment to Early and Smith was before the debts, which the defendant seeks to set off, were incurred: therefore, it does not show any equity in the plaintiff to deprive the defendant of his set-off. [He was here stopped by the Court.] assignees, debts due to him from the assignor: but here the debtor has done nothing which ought in Equity to place him in a worse position than that which he would have occupied if no assignment had been made. A cogent reason why we should adopt this view is, that a different rule would enable a creditor, by simply assigning his claim, to take away from his debtor his right of set-off. WIGHTMAN, J.-I am of the same opinion, for the same reasons as those given by my Lord. BLACKBURN, J.--I certainly think that the plaintif has made out no case to show that Equity would interfere here to deprive the defendant of his legal right of set-off. The principle upon which the defendant's answer to the plaintiff's argument is based, was deter mined as long ago as the case of George v. Claggett, 7 T. R. 359; the effect of which decision is well given by the Court of Exchequer, in their judgment in Isberg v. Bowden (8 Exch. 852). The replication is bad, inasmuch as it does not show that the defendant had notice of the assignment, before he contracted the debts which are the subject of the set-off. J. Brown (Watkin Williams, with him), for the 9 & 10 Vict. c. 66, s. 1, so that the time during which plaintiff, in support of the demurrer. At the time of the assignment, no freight had been earned, and therefore there were no mutual debts, and no set-off. The plaintiff and defendant were at that time merely parties to a contract one with the other. At the time of the assignment there was no equity of set-off in the defendant's favour: Whitehead v. Walker, 9 M. & W. 506; De Pothonier v. De Mattos, E. B. & E. 461; COCKBURN, C.J.-I am of opinion that our judg- the wife is so maintained is to be excluded in computing whether the husband has become irremoveable by resi dence under that section. On appeal from an order of two justices, dated the 6th December, 1861, adjudging the last legal settlement of Mary Gardner, a pauper lunatic, to be in the parish of St. George's Bloomsbury, and ordering the guardians of that parish to make certain payments, the Middlesex Court of Quarter Sessions confirmed the order, subject to the opinion of this Court upon a case by which the following facts appeared. Mary Gardner was the lawful wife of John Gardner, whose settlement was in St. George's Bloomsbury, but who, at the time the order complained of was made, had resided more than six years in the parish of St. Mary, Islington, continuously, without personally receiving any relief. In the month of May, 1858, Mary Gardner became a lunatic, and her husband not being able to bestow proper care upon her, or support her properly in that condition, applied to the overseers of the parish in which he was residing, by whom Mary Gardner was forthwith removed to the workhouse, and, after a few days, transferred to a lunatic asylum, where she remained till the month of June, 1860, at the expense of St. George's, Bloomsbury. Having afterwards, on the 7th September, 1861, become a second time lunatic, she was again removed to an asylum; and the order in question of the 6th December, 1861, was made for payment of the expenses connected therewith. The question for the opinion of this Court was, whether the period between May, 1858, and June, 1860, during which the said Mary Gardner was in the lunatic asylum, was to be deducted in calculating the number of years which John Gardner had resided in St. Mary, Islington, under the 9 & 10 Vict. c. 66, s. 1. If the Court were of opinion in the affirmative, the order was to be confirmed; if in the negative, the order was to be quashed. Metcalfe, in support of the order. The order was properly made on the place of the pauper's settlement under the 16 & 17 Vict. c. 97, as the husband (whose status the wife has) had not resided for five years in St. Mary, Islington, within 9 & 10 Vict. c. 66, s. 1, so as to become irremoveable. The period during which the person whose status is in question receives relief from any parish is by that section to be excluded in computing the five years, and in the present case Mary Gardner received relief from May, 1858, to June, 1860, which by the operation of the 4 & 5 Will. 4, c. 76, s. 56, must be considered as relief received by the husband. He referred to the 16 & 17 Vict. c. 97, sects. 95, 97 & 67. Poland, contrà, contended that the expense of the wife's confinement in the lunatic asylumn was not relief within the 9 & 10 Vict. c. 66, so as to prevent the husband becoming irremoveable. He commented on the 16 & 17 Vict. c. 97, sects. 67, 68, 105 & 132; 12 & 13 Vict. c. 103, sect. 4; and 13 & 14 Vict. c. 101, sect. 5. COCKBURN, C.J.-I am of opinion that this order should be confirmed, on the ground that the order adjudging the settlement of the pauper lunatic to be in St. George's, Bloomsbury, and ordering that parish to pay the expenses of her maintenance, is a good order. By the 16 & 17 Vict. c. 97, the expense of maintaining a pauper lunatic confined in an asylum is to be borne by the parish from which the pauper has been sent to the asylum, unless two justices shall adjudge the settlement of the lunatic to be in another parish, and order the payment of the expenses by that parish. Here the justices have adjudged that the settlement of the pauper lunatic is in St. George's, Bloomsbury, and there is no doubt that is the fact; but then the Act provides that where the pauper is irremoveable from the parish from which such pauper is sent to the asylum, no order shall be made on the parish in which the pauper's settlement is adjudged to be. Then it is said that the pauper was irremoveable from St. Mary, Islington, in the present case, because her husband was irremoveable from that parish; on the other hand, it is said, that although her husband had resided above five years in St. Mary, Islington, yet he was removeable, because, in order to make up the five years, it would be necessary to include the period during which he was receiving relief. No doubt, so far as he was personally concerned, no relief was received, but relief was received by his wife, if the expense of her confinement in the lunatic asylum can properly be so considered, and by the 4 & 5 Will. 4, c. 76, s. 56, relief to the wife is relief to the husband. That brings us, therefore, to the question, whether the expense of her confinement was relief. I think it was, and for this reason, that the husband being unable to maintain his wife, and the pauper lunatic being unable to maintain herself, relief from the parish was required, and but for this Act enabling her to be removed, the parish would have been compelled to maintain such pauper at the charge of the parish, and no one could dispute that so long as that expense was defrayed by the parish it would be relief. It would be the duty of the husband to support his wife, whether sane or insane, if it was within his means: if he could not do so, he must have recourse to the parish. Then the Act says that, under such circumstances, the parish is to obtain an order for the removal of the pauper to a lunatic asylum, and the parish removing such pauper is to bear the charge, unless it obtains an order on another parish in which the settlement is adjudged to be; but it appears to me that all this maintenance is only in substitution of that relief which the one parish or the other would be bound to afford to the pauper, and, therefore, that it is to all intents and purposes relief, as much as if it were afforded within the precincts of the parish, whether in the parish workhouse or elsewhere. It follows, therefore, that as the time during which the wife was in confinement must be deducted, the order must be confirmed. WIGHTMAN and BLACKBURN, JJ. concurred. 6 MAY, 1863. Digby Seymour, Q.C., obtained a rule for a new trial on the ground of the improper reception of secondary evidence. It appeared probable that the original agreement between the plaintiff and the defendant was for the purpose of running the blockade of the Southern States of America, and importing goods. All the defendant's papers were seized at the custom-house of New York, on the charge that he had Secessionist documents in his possession. He afterwards had all his papers returned to him with the exception of this agreement. He more than once asked for it, but it was refused, and he was informed it had been sent to Washington. It did not appear that he had gone to Washington to endeavour to get it, or that he had applied to the authorities there. Under these circumstances the learned Judge admitted secondary evidence of the document, the plaintiff objecting that reasonable efforts had not been used to obtain the original. 4 JUNE, 1863. Sir G. Honyman, and Shaw, showed cause. Digby Seymour, Q. C., and Morgan Lloyd, supported the rule. The following cases were cited: Boyle v. Wiseman, 10 Exch. 647; Alivon v. Furnival, 1 C. M. & R. 277 ; Regina v. Inhabitants of Kenilworth, 7 Q. B. 642. THE COURT (Erle, C.J., Williams, Willes, and Byles, JJ.) were unanimously of opinion that the rule must be discharged. They considered there was ample evidence of the defendant having used all reasonable efforts to obtain possession of the original agreement, and that it would have been utterly useless under the circumstances for him to have gone or applied to the authorities at Washington. C. P. 5 JUNE, 1863. Rule discharged. Bankruptcy Act, 1861-Composition Deed. sa. was issued without the leave of the Court of Bankruptcy. DEMURRER on the ground that the deed was not binding on creditors who were not parties to it. The deed in question was the same deed as came before the Court of Common Pleas in the case of Ilderton v. Castrique (reported unte, p. 167), and decided to be not binding on dissentient creditors. Joyce, for the plaintiff, referred to Thomas v. Hudson, 14 M. & W. 353; Hodgson, for defendants, contended that the deed, having been registered, was a valid deed, protecting the debtor till it had been upset in the Court of Bankruptcy. ERLE, C.J.-The deed is void. A certificate has been given in respect of a void deed. The protection under the statute was to be given by the certificate of a valid deed. WILLIAMS, WILLES, and BYLES, JJ., concurred. years: Held, on demurrer, that the defendant was bound to carry on the business for the three years. DEMURRER.—The declaration set out articles of agreement between the plaintiffs and the defendant for the transfer to the defendant of the business of ILDERTON v. JEWELL and Another. surgeon, and the sale to him of drugs and furniturs for a certain small sum of money paid down, and for one fourth part of the profits of the business for the years 1861, 1862, and 1863, conditioned on their It then alleged, as a breach of the exceeding 3007. agreement, that the defendant, before the expiration of the said period, by his own acts and defaults, incapacitated himself from carrying on the business, and wholly ceased to carry on the same. A deed of arrangement which is not binding upon non-assenting creditors under sect. 192 of the Bankruptcy Act, 1861, does not, from being registered, afford protection from process to the debtor. Action upon a recognisance of bail, in an action against Louis Castrique, in the Mayor's Court, the proceedings in which had been removed into the Common Pleas. The declaration alleged that a judgment had been recovered for 1267., and that the said Castrique had not paid the same, nor been forthcoming at the end of the action, and that the plaintiff was entitled to recover the said sum from the defendants. The plea set out a composition deed, entered into by Castrique with his creditors, before the issuing of the ca. sa. upon the judgment; and alleging that the ca. DEMURRER to the declaration, on the ground that the defendant was not bound to carry on the business during the three years mentioned. W. Harrison, in support of the demurrer, cited] Harrison v. Great Northern Railway Company, Smith v. The Mayor of Harwich, 26 L. J. C. P. 257; Emmens v. Elderton, 4 H. of L. Ca. 624; James v. Cockraine, 7 Exch. 171; and 8 Exch. 556, in Error. Shield, for the defendant. Whittle v. Frankland, 31 L. J. M. C. 81. ERLE, C.J.-Judgment must be for the plaintiffs. The intention of the parties must be gathered from the words of the contract, from the surrounding circumstances, and from the nature of the transaction. The defendant has, according to the words of the breach, after being put in possession of the good-will of the business, wilfully put an end to the business. That was a breach of the agreement. He is entrusted with the property of the plaintiffs on the footing that he will carry it on and get for the plaintiffs one-fourth of the profits over 3007. WILLIAMS, WILLES, and BYLES, JJ., concurred. Judgment for the plaintiffs. The 192nd sect. of the Bankruptcy Act, 1861 (24 & 25 Vict. c. 134) directs that a composition deed must be signed by three-fourths in value of the creditors." Proceedings in outlawry being taken against a defendant, he moved to set them aside on the ground that he was protected by a deed under this section. The question in dispute was whether the "three-fourths" included secured as well as unsecured debts. The Court, without deciding either way, made the rule absolute to stay the proceedings in outlawry, leaving the parties to contest the validity of the deed as they thought proper. In this case proceedings in outlawry had been commenced against the defendant. Joyce had obtained a rule nisi to stay the proceedings, on the ground that the defendant was protected by a composition deed entered into with his creditors, under the 192nd sect. of the Bankruptcy Act, 1861 (24 & 25 Vict. c. 134). Henry James now showed cause, and Joyce supported the rule. The question was, whether the words in the 192nd sect., "three-fourths in value of the creditors," applied to secured debts as well as to unsecured ones. The defendant contended that the total amount of debts was 8571., and of that sum 6857. were owing to creditors who had signed the deed. There was, however, a creditor to the amount of 2951., out of which a sum of 250l. was secured; he had signed the deed, appending to his signature a note that he only signed in respect of the difference, 45l., which was unsecured. VOL. II. It was contended for the plaintiff, on the authority of Re Shettle, 1 N. R. 151; s. c. 32 L. J. Bkcy. 37; that secured debtors were to be reckoned, and that if his debt was added, the whole debts would amount to upwards of 1,1007., and that less than three-fourths of that sum was owing to creditors who had signed. The defendants, on the other hand, contended that on the authority of Re Morgan, 1 N. R. 339; s. c. 32 L.J. Bkey. 14; secured debts were not to be reckoned, in which case more than three-fourths in value of the creditors must be taken to have signed; or, that if they were to be reckoned, the creditor for 2957. must be considered to have signed for the whole amount of his debt, and could not limit his signature to the 457. unsecured, in which latter event, also, more than three-fourths in value of the creditors would have signed. THE COURT (Erle, C.J., Williams, Willes, and Byles, JJ.) were of opinion that the decision of the Lords Justices in Re Shettle, was not inconsistent with that of the Lord Chancellor in Re Morgan, as while the former decision was to the effect that both secured and unsecured creditors were included in the words of the 192nd sect., the latter only decided that the secured creditors under such a deed were like creditors in bankruptcy, and could not prove without allowing for the value of their security. In the present case, without expressing an opinion as to the construction of the statute, or the validity of this deed, they would make the rule to stay proceedings absolute, without prejudice to the rights of either party to take steps to contest the validity of the deed. C. P. 8 JUNE, 1863. } Rule absolute. MAYHEW, Appellant, v. WANDLEY, 1 & 2 Will. 4, c. 32—Game. Unlawfully using a highway, the soil of which belongs to a private owner, for the purpose of killing game, is a trespass in pursuit of game within the meaning of the 1 & 2 Wm. 4, c. 32. This was an appeal against a conviction under the Game Act, 1 & 2 Will. 4, c. 32. The facts were that the appellant and five others were pursued and taken on a highway, the soil of which belonged to a private owner. One of the party, whose gun was quite warm, was discovered, having shot a partridge from the high road. The appellant and his companions, when seized, expressed a wish to have the matter arranged. Markby, for the respondent, cited The Queen v. Pratt, 4 E. & B. 860. No counsel appeared for the appellant. ERLE, C. J.-There were two questions of law in this case. 1st. Was the appellant guilty of trespass, assuming the defendant's creditors. And the creditors, parties that he shot a partridge from the highway? We think to the said deed of the third part, thereby released him that the appellant enjoyed his easement in the soil of from their claims. The plea then averred that the the highway only while he used it for a lawful pur- deed was signed by, or on behalf of, six-sevenths of pose. He made use of it for the purpose of unlawfully defendant's creditors; and that the plaintiff, at the time killing game, and is therefore a trespasser. of the making of the said deed, was a creditor of the defendant, in respect of the cause of action in the declaration mentioned. 2nd. Was there sufficient evidence of appellant's offence? We think it clear that he was jointly engaged with others for the common purpose of killing game, and the offence having been committed, the appellant is jointly liable. WILLIAMS, WILLES, and BYLES, JJ., } concurred. Judgment for the respondent. SPITZER V. CHAFFERS. C. P. 8 JUNE, 1863. Bankrupt Law Consolidation Act, 1849, s. 224. To a deed of arrangement made by a debtor with his creditors under sect. 224 of the Bankrupt Law Consolidation Act, 1849, it was objected that by it he conveyed his freehold and personal estate, except necessary wearing apparel, and except certain leasehold property stated to be held at rack-rent, and to be of no value, to trustees upon trust to pay all costs incurred, and apply the residue to the use of the debtor's creditors, and that it contained a release of their debts on the part of those creditors only who were parties to the deed : Held, that the objections were bad. DECLARATION on two bills of exchange, with money counts. DEMURRER. Hayes, Serjt., in support of the demurrer. 1st. The exception of wearing apparel, makes the deed bad: Cooper v. Thornton, 1 E. & B. 544. March v. Warwick, 1 H. & N. 158, is expressly in point. 2nd. The provision as to the leasehold property does not apply to the plaintiff who has not executed, and it is in the deed only, and not in the plea, that the lease is said to be of no value. 3rd. The direction to pay the costs is objectionable: 4th. The release is confined to the scheduled cre ditors: Legg v. Cheeseborough, 5 C. B. (N. s.) 741. Joseph Brown, contrà. Here the defendant's necessary wearing apparel only is excepted, and this distinguishes the case from March V. Warwick. fi. fa., and Sunbolf v. Alford, 3 M. & W. 248.] The fund to be distributed among the defendant's cre ditors would not have been increased by the addition of the apparel, and leasehold property, as it does not appear that they were of any value. With regard to the leasehold property, it is stated to be of no value, and the minority of the creditors might, under the deed, have called for an assignment. With regard to the costs, they must be provided for, or the defendant will have to put aside part of his estate for that purpose. With regard to the release, every creditor who claimed under the deed would be The case of Legg V. inserted in the schedule. Cheeseborough, went on the peculiar language of the PLEA.—That after the accruing of the alleged [WILLES, J., referred to Comberbach, 356, with causes of action, and after the Bankrupt Law Consolidation Act, 1849, and before the passing of the Bank-reference to the seizure of wearing apparel, under a ruptcy Act, 1861, an indenture was made between the defendant and the several persons, creditors of defendant, whose names were mentioned and set forth in the schedule thereunder. The deed was then set out verbatim. It recited that the defendant had conveyed his freehold estate to trustees to be sold, that he had no copyhold or customary estate, and no leasehold property, except a house held at a rack-rent, which was of no value. It was then witnessed that the defendant thereby assigned and transferred to the said trustees, all his personal estate, except the said leasehold premises, and except the necessary wearing apparel of the defendant and his family, upon the trusts thereinafter mentioned; and the defendant thereby covenanted that he would at any time thereafter, when required by the said trustees, assign to them the said leasehold premises; and it was declared, that the said trustees should stand possessed of the said property, upon trust to pay and discharge all costs which they and the defendant had sustained in all matters referring to the said deed, and incidental thereto, and to the arrangement of the affairs of the defendant, and then to apply the residue to the use of covenant. Hayes, Serjt., in reply, referred to Gardner v. Chapman, 8 C. B. (N. 8.) 317. ERLE, C.J.—I am of opinion that our judgment should be for the defendant. The judgment turns upon the point whether this deed has complied with all the regulations of section 224 of the Bankrupt Law |