of the Crown, but there was no express enactment that the Crown should be liable to toll in other respects. Goods not included within the exemption having been imported into the harbour for Government purposes, Held, that the Crown was not liable for duties in respect thereof. Case stated by justices under the 20 & 21 Vict. c. 43. An information was laid under an act of Parliament (6 Geo. 4, c. cxvi), intituled "An Act to amend and enlarge the Powers and Provisions of several Acts relating to the Harbour and Bridge of the Borough and Town of Weymouth and Melcombe Regis, in the County of Dorset," charging that the respondent had refused to pay the sum of 2s. 6d. wharfage duties on ten tons of block stone, brought into the harbour of the said borough on the 22nd October. At the hearing the appellants and the respondent duly appeared. It was proved by witnesses called by the appellants, that the stone described in the information was, on the 22nd October, brought by a barge into the harbour of Weymouth, for the use only of her Majesty's Government on the Nothe: that it was brought there from Portland for such use, and delivered there by the respondent's orders, to persons in the employ of the Government, for the use of the said works: that the respondent, as one of her Majesty's officers, took charge of it on behalf of the Government: that the sum of 2s. 6d. would be the amount of wharfage dues payable in respect of the said stone so brought into the harbour, if any were payable: that the collector, on the 29th October, 1863, demanded of the respondent payment thereof, and that he refused to pay it: that such demand was made of him as commanding officer of the Royal Engineers, then taking charge of the stone. The respondent did not cross-examine the appellants' witnesses, nor was any witness called on his behalf. It was contended on behalf of the respondent, that he was not liable for the wharfage dues claimed, inasmuch as the act of Parliament did not give the appellants any right to petty customs or wharfage dues in respect of stone brought into the harbour of the said borough for the use of her Majesty's Government works; and that by her Majesty's prerogative the stone was exempt from such dues in such a case. The said justices, being of that opinion, dismissed the information and complaint. The question for the opinion of the Court was, whether the said justices were right in dismissing the said complaint. Lush, Q. C. (Joseph Brown with him), for the appellants. The respondent is liable for the dues in question, and the justices should have ordered payment accordingly. It will be argued on the other side that the stone, the subject of the duties demanded, was designed for the purposes of the Crown, and that the Crown is exempt from liability to pay duties. There is, however, nothing in stat. 6 Geo. 4, c. cxvi, under which the claim is made, which justifies those representing the Crown in resisting these payments. Sect. 2 vests the customs, wharfage duties, &c., to be taken, in the mayor and corporation of Weymouth; and by sect. 4 they are empowered to demand payment of the said customs, &c. from the owners and custodians of commodities imported into the harbour. Sect. 21 imposes tolls in respect of a bridge connected with the harbour, while by sect. 23 the Crown in certain instances is exempted from toll, as also by sect. 29, which refers to the duties on coal, &c. brought into and landed in the port. Sect. 34 relates to the borrowing of money for the repair and improvement of the harbour, and sects. 35 and 36 dedicate the rates and duties to be raised by virtue of the act to the payment of the sums borrowed, and to the keeping in repair the said harbour and bridge. There being, then, certain specified exemptions contained in the statute in favour of the Crown, the maxim "expressio unius est alterius exclusio" must apply; and the Crown is there fore, liable in all save the matters excepted, although the rule of construction of acts of Parliament, no doubt, formerly was, that the Crown was not bound unless expressly named. There being, therefore, certain specified exemptions in the statute in favour of the Crown, immunity can only be claimed in respect of the matters excepted. [He referred to the General Turnpike Act, 3 Geo. 4, c. 126, s. 32, which exempts from toll "any horses or carriages attending his Majesty or any of the royal family, or returning therefrom."] (Rex v. Wright, 1 Ad. & El. 434; Merchant Shipping Act, 17 & 18 Vict. c. 104, s. 4; Railways Clauses Act, 8 & 9 Vict. c. 20, s. 92; Reg. v. The War Department, 28 J. P. 428). Moreover, the expenses of the improvement and repairs of the harbour in question are defrayed from private funds, in like manner as the formation and subsequent expenses of a railway; and the Crown is no more entitled to claim the free use of the one than the other. Sir R. P. Collier, S. G. (Dowdeswell with him), for the respondent.-The rule of construction is thus laid down in Bac. Ab., tit. "Prerogative," E. 5, "But where a statute is general, and thereby any prerogative, right, title, or interest is divested or taken from the King, in such case the King shall not be bound, unless the statute is made by express words to apply to him." This is applicable to the present case, which does not fall within any of the exceptions to the rule; and there is nothing inconsistent with the proposition to be found in Rex v. Wright. Again: in delivering judgment in The Attorney-General v. Donaldson, Alderson, B., says, "It is a well-established rule, generally speaking, in the construction of acts of Parlia ment, that the King is not included, unless there be words to that effect; for it is inferred primâ facie, that the law made by the Crown, with the assent of Lords and Commons, was made for subjects, and nos for the Crown." Then, with respect to the change alleged to have taken place in the construction of acts of Parliament, there was no attempt on the other sile to fix the time at which such change occurred; and there is, in fact, neither authority nor usage to support the proposition. [He cited Willion v. Bark! (Plowd. 236); Br. Ab., tit. "Prerogative du Roy," 112, where it is said, "Le roy ne payera toll ne enstom;" and the following passage in Chitty's Prerogative of the Crown, 376-"The King is not liable to pay taxes, toll, pontage, passage, custom, or poor rates:" Rex v. Cooke (3 T. R. 519), where Lord Kenyon said, "Generally speaking, in the construction of acts of Parliament, the King in his royal character is not included, unless there be words to that effect;" and Westover v. Perkins (2 El. & El. 57).] Next: this is an ancient and public harbour, and is not vested in, or the property of, the corporation, as a railway or a private dock is of the company to which it belongs: and moreover, if the appellants are right in their coutention, the Queen's yacht would be liable to these dues. Lush, in reply.-The case comes within the exceptions to the rule referred to in Bac. Ab. The tolls allowed by the statute in question are collected fr the purpose of keeping the harbour in an efficient and available state, and for the purpose of paying the dela thereupon, which is done for the public benefit; ari although the Crown may be exempted from taxation for State purposes, there is no analogy between such taxation and local dues, such as those in question. [Crompton, J.-It may be that the public derive a benefit from the keeping up and maintenance of this harbour; but the first and principal benefit is to the town of Weymouth itself.] COCKBURN, C.J.-I am of opinion that the justices were right in their decision. From an early period of our history two great principles have been established with respect to the royal prerogative; first, that the Crown is exempt from the payment of tolls; and, secondly, that, except to certain matters of a public character, the Crown is not bound by statute unless specifically mentioned therein. The question arises here, whether these duties can be claimed in respect of stones brought into the harbour by a person employed by, and acting under the Crown. It may be urged that the status of immunity from toll or dues arose at a remote time, when the right to impose such was founded upon a grant from the Crown, and that in such case the Crown never intended to tax itself, and, therefore, it may be well assumed whether the right to tolls or dues have been acquired from the Crown by grant or by statute, the Crown has always contemplated its own immunity. But whether that be the origin of the immunity or not, it has obtained from the earliest times, and it cannot be supposed that it was the intention of the Legislature to make the Crown liable to the payment of those duties where no mention of the Crown is made at all. But even if we were of opinion that the Crown was not entitled to succeed upon the first ground, I should, at all events, hold its immunity established upon the second, viz. that the Crown is not bound unless specifically mentioned in the act of Parliament. In my opinion the principle applies to the case where duties are claimed under a local act. Mr. Lush relies upon the general rule that where certain exceptions are specifically made, it is to be inferred that no others were contemplated. But the passage in Bacon's Abridgment referred to during the argument applies, and we must take it that the exceptions alluded to were inserted merely ex abundanti cautelâ; and that this is so appears from the judgment of Lord Campbell, in Westovery. Perkins-" From time immemorial the Sovereign has been exempt from toll, and where tolls are enforced by statute, there is an implied exemption of the Sovereign's property." There the question arose under the Turnpike Act, but the principle is identical with the present. The prerogative of the Crown, which from the earliest times has been so clearly established by the two rules to which I have referred, would be materially affected by our adoption of the arguments of Mr. Lush, and we should be acting in direct contravention of them if we were now to hold the Crown liable. In coming to this conclusion, I do not so much regard the special enactments of the act to which we have been referred, as to the great principles to which I have adverted, and the high authority which exists upon the subject. CROMPTON, BLACKBURN, and MELLOR, JJ., concarred.-Judgment for the respondent. purpose of quashing it, an order of W. P. Johnson and J. Dacre, two of the justices of Cumberland, directing an indictment to be preferred against the township of Askerton for the non-repair of an alleged highway. The affidavits disclosed the following facts:-An information on oath having been laid before a justice of the peace, that a certain highway, situate in Askerton, was out of repair, a summons was issued upon the surveyor of highways for the said township, under sect. 94 of the General Highway Act (5 & 6 Will. 4, c. 50). At the hearing of the summons, the attorney for the township denied the liability of the inhabitants to repair the road in question, on the ground that it was not a highway. Thereupon the attorney for the complainant submitted that the justices were bound at once to order an indictment to be preferred under sect. 95, citing Reg. v. Arnould (8 El. & Bl. 550; S. C., 4 Jur., N. S., 162). On the other side it was contended, upon the authority of Ex parte Bartlett (30 L. J., M. C., 65), that, upon the true construction of sects. 94 and 95, it was necessary that the complainant should prove the road in question to be a public highway. After somo discussion, the justices came to the conclusion that they were bound to make the order, which was made and drawn up accordingly. M'Leod shewed cause.-Under sect. 94 of the Highway Act (5 & 6 Will. 4, c. 50), the justices are empowered only to deal with the question whether or not the road is out of repair. If the liability to repair be denied, they have no discretion, but must order an indictment to be preferred under sect. 95. (Reg. v. Arnould). [Blackburn, J.-Suppose the case of an information under the act in respect of the non-repair of a gentleman's private road, and denial of liability on the part of the parish, do you contend that in such case the justices would be bound to order an indictment?] In his judgment, in Reg. v. Arnould, Wightman, J., says, "If the party charged denies the liability, the magistrates are then required to direct an indictment; the words are too strong to admit of doubt;" and further observes, that it would be better if the magistrates had discretion to make provisional inquiry. Ex parte Bartlett is not in point. There the liability was denied, upon the ground that an indictment had already been preferred against the parish, tried, and a verdict of not guilty returned; and the Court, under the circumstances, remitted the prosecutor to his remedy at common law. Hayes, Serjt., in support of the rule. The justices were wrong in making the order. Sect. 95 has application only to the case of an admitted highway, where the liability to repair is denied upon other grounds. Where the liability is denied upon the ground that the road in question is not a highway, the justices should hear such evidence upon the point as may reasonably suffice to shew that they have jurisdiction to make the order. (Reg. v. Heanor, 6 Q. B. 745; S. C., 9 Jur. 105). COCKBURN, C. J.-I am of opinion that this rule should be made absolute. We need not decide whether, on the construction of this statute, it is com [Before COCKBURN, C. J., BLACKBURN and MELLOR, petent to the justices to order an indictment against JJ.] REG. v. JOHNSON and Another.-Jan. 26. Highway, non-repair of―Jurisdiction of justices under the 5 & 6 Will. 4, c. 50, ss. 94, 95. Where, upon information and summons, under sect. 94 of the Highway Act (5 & 6 Will. 4, c. 50), the parish deny their liability to repair a road, upon the grounp that it is not a highway, the justices, before directing an indictment under sect. 95, should hear evidence upon the question of highway or no highway, upon which ques tion their jurisdiction depends. This was a rule for a certiorari to bring up, for the a parish on denial of their liability to repair, and proof that the road is a highway, thereby setting up the immunity of the parish from repairs, that the justices are thereupon and at once bound to make the order. In such case they should have before them, at all events, some evidence upon the question of highway or no highway; but here they exclude the evidence, and proceed to make the order without any such preliminary. It seems to me, therefore, that the magistrates stopped short of taking the necessary steps for ascertaining whether or no they had jurisdiction. BLACKBURN, J.-It is clear that, in any view of the statute, the justices have made an order which they were not justified in making. The road should, at least, have been shewn to be primâ facie an highway, inasmuch as it is to highways only that sects. 94 and 95 of the statute have reference; and for this Reg. v. Heanor is an authority, which shews, that in order to give jurisdiction the road must be a highway. When the road is an admitted highway, and the liability to repair is denied on the part of the parish, then it is clear that the justices may make the order; but where the question of highway or no highway arises, then the justices are not at once to make the order, but before doing so should ascertain whether there is evidence of the existence of such a state of things as to give them jurisdiction. Otherwise this absurdity might well arise, that if any person should think fit to proceed against a parish for the non-repair of what was notoriously a private road through a gentleman's park, the justices upon denial (which would, of course, under the circumstances, be made), that the road was a highway, would be bound at once to direct an indictment. Here the justices have proceeded without any evidence of the road being a highway, and were clearly wrong in doing so. MELLOR, J.-I am also of opinion that in this case the justices acted upon a mistaken view of the law. I give no opinion whether the true exposition of the sections in question is that which has been thrown out by my Lord; though I may say that it appears quite consistent with the language which the Legislature has thought proper to employ. There are, at all events, dicta, that the justices should enter upon the question, and so satisfy themselves whether the circumstances are such as to give them jurisdiction. In this case the fact upon which their authority depended was denied, notwithstanding which they proceed, without investigation, to direct an indictment; and in this they were manifestly wrong.-Rule absolute. COURT OF COMMON PLEAS. [Before ERLE, C. J., WILLES, BYLES, and SMITH, JJ.] Ex parte MRS. MARY GRAHAM.—May 25. Practice-Order dispensing with concurrence of husband in present and future deeds of conveyance-Part of land contracted to be sold, and part not-3 & 4 Will. 4, c. 74, 8. 91. The 3 & 4 Will. 4, c. 74, s. 91, gives no authority to the Court to grant an order dispensing with the concurrence of the husband in the sale or conveyance of the wife's land, unless the land shall be actually contracted to be sold or conveyed. J. Bridge moved for an order, under the 3 & 4 Will. 4, c. 74, s. 91, dispensing with the concurrence of the husband of the applicant, in a deed of conveyance of a part of certain land devised to her separate use, and contracted to be sold, and also dispensing with his concurrence in any other deed or deeds of conveyance of the remainder of the hereditaments so devised. The following was the affidavit in the case :"1. That I was married to the said John Graham on the 7th December, 1837, at St. Mary's, Carlisle. "2. That my husband left me, and sailed from Liverpool in the month of May, 1849, for the United States of America, and that since that time I have received a few letters from him; the last one received by me from him being dated the 3rd February, 1850, and he was then at Baltimore, in the United States of America. "3. That since the receipt of the last letter of the 3rd February, 1850, I have not heard of, from, or about my said husband, although I have made repeated inquiries of persons with whom I am ac quainted, who had been in the United States of America, and I do not know, and cannot learn, where my said husband is now living, or that he is alive. "4. That I have never derived any support or maintenance from my said husband since he so left me, and that after my said husband so left me I had to support seven children, the issue of our said marriage. "5. That my father, John Stoddart, of Gamelsby, in the parish of Achlen, in the said county of Cumber land, yeoman, by his last will and testatment, dated the 20th November, 1858, devised to me certain heredita ments, by the description of All his field called Mid dle Old Close, in the parish of Achlen, and one day work of meadow in Dales, situate in the said parish Weglan,' to hold the same unto myself, my heirs an assigns for ever, for my own sole and separate us and benefit, and free from the debts, and control, ar engagements of my present or any future husband and that my said father died on the 9th July, 15 without having revoked or altered his said will. "6. That I have contracted with one George Clark fo the sale to him of the said hereditaments, called Or day's work of meadow in Dales,' as aforesaid, but an unable to complete such sale and purchase, by reas of the absence of my said husband; and I am desire. of completing such sale and purchase, and of obtain ing the order of this honourable Court, that the co currence of my said husband in such deed may dispensed with, as well as his concurrence in any cle deed of conveyance of the remainder of the hereditament so devised to me by the will of my said father." The latter part of the application was made with th view of saving expense to the applicant, who was in humble circumstances. PER CURIAM.-We are extremely anxious that th applicant in the present case should be put to as lit expense as possible; but hitherto orders of this kin have been granted only in cases of specific sale or co veyance. We do not appear to have the power spect of the land contracted to be sold, the order wil extending them to contingent or future sales. In r therefore, be granted; but in respect of the remai der, it must be refused.-Order accordingly. COURT OF EXCHEQUER. [Coram POLLOCK, C. B., MARTIN and BRAMWE BB.] THE CHESTERFIED, MIDLAND, AND SILKSTONE CO PANY (LIMITED) v. HAWKINS.—April 24 and 25,4 May 3. Action on a covenant by one not a party to a ded partes-Executing and non-executing creditors-Ba ruptcy Act, 1861, sect. 192. A deed of composition being made between "the persi whose names are in the schedule, creditors of Hof first part, H. of the second part, and sureties of the third part," and containing covenants on the par "the parties of the first part, and all other, if any creditors of H.," that the deed should, in considerati of a covenant by H., to pay 10s. in the pound, opt as a release of his debts to them, and a covenant to pay the composition at a future day:-Held, First, that on the authority of Ex parte Cockburn Jur., N. S., 573), the non-executing and non-ass creditors could not sue on the covenant to pay the position. June 10, 1865. Secondly, that the non-executing and non-assenting creditors were not in the same position, and the deed was void against a non-assenting creditor. Action for calls. Third plea, a deed of composition executed by the defendant. The second replication to the third plea set out the deed of composition verbatim, as follows: shall extend to prevent the said creditors, parties to or bound by these presents, or any of them, or their or any of their partner or partners, heirs, executors, administrators, successors, or assigns, from enforcing or otherwise obtaining the full benefit and advantage of any charge or lien which they, or any of them, now have or hath upon any estate or effects of the said William Fisher Hawkins, or any person or persons, or "This indenture made the 11th day of March, 1864, from suing or prosecuting any other person or persons between the several persons or parties whose names than the said William Fisher Hawkins, his heirs, exeand seals are subscribed and affixed in the schedule cutors, or administrators, who is, are, or shall or may hereunder written, being creditors in their own right, be, liable or accountable to pay or make good to any of solely or in co-partnership with others, of William the said creditors all or any part of their said reFisher Hawkins, of Belper, in the county of Derby, spective debts, either as indorsees or acceptors of any corn and seed merchant, executing, assenting to, or bill or bills of exchange or promissory note or notes, approving of, these presents, of the first part, the said or as being bound in any bond or bonds, obligation or William Fisher Hawkins of the second part, and Ben- obligations, or other instrument or instruments, or as jamin Ward, of Belper aforesaid, grocer and draper, being liable or accountable for the payment of any and John Crossley, of Belper aforesaid, corn merchant, such debt or debts without having subscribed any bill, of the third part. Whereas the said William Fisher note, bond, or other instrument whatever, or otherwise Hawkins is indebted to the several creditors aforesaid howsoever, as if these presents had not been made. in the several sums set opposite to their respective And this indenture further witnesseth, that in further names in the schedule hereunder written, and is or pursuance of the aforesaid agreement, and in conmay be indebted to divers other persons or corpora- sideration of the premises, the said William Fisher tions in divers other sums; and whereas the said Wil- Hawkins doth hereby for himself, his heirs, executors, lam Fisher Hawkins being unable to pay in full the and administrators, covenant with the said parties sums so owing by him as aforesaid, the said several hereto of the first part, and with all other creditors of parties hereto of the first part have lately agreed to the said William Fisher Hawkins, who are or shall be accept a moiety of their said respective debts, payable bound by these presents, severally and respectively, in the manner and at the times hereinafter mentioned, and their several and respective executors, administrain full payment and discharge of such debts respec- tors, and successors, that the said William Fisher Hawtively, and have agreed to execute to the said William kins, his executors or adminstrators, shall and will pay Fisher Hawkins such release as in hereinafter con- to the aforesaid creditors, severally and respectively, tained; and the said Benjamin Ward and John Cross-or their several and respective executors, administraley have agreed to guarantee the payment of the afore- tors, or successors, the sum of 5s. in the pound upon said composition in manner hereinafter contained; and their several and respective debts so owing by the said whereas it is intended that these presents shall ope- William Fisher Hawkins, upon or before the 15th day rate under the Bankruptcy Act, 1861, sect. 192: Now, of March instant, and the further sum of 5s. in the this indenture witnesseth, that in pursuance of the pound upon the same debts, upon or before the 22nd said agreement, and in consideration of the premises day of August now next, the value of property held and of the covenant for payment of the aforesaid as security being first deducted from the said debts. composition hereinafter contained, the said several And this indenture further witnesseth, that in conparties hereto of the first part, and all other, if any, sideration of the premises, the said Benjamin Warde the creditors of the said William Fisher Hawkins, whe- and John Crossley do each hereby for themselves, ther persons, partnership, or corporations, do hereby their heirs, executors, and administrators, jointly, and for themselves respectively, and for their respective each of them doth hereby for himself respectively, and executors, administrators, and successors, and not one for his respective heirs, executors, and administrators, of them for the act and deeds of the other or others covenant with the said parties hereto of the first part, of them, or for the act and deed of the heir, executors, and with all other the creditors of the said William &c. of the others or other of them, but each and every Fisher Hawkins, who are or shall be bound by these of them doth hereby, for himself or themselves, and presents severally and respectively, and their several for his and their own acts, heirs, executors, and ad- and respective executors, administrators, and sucministrators, only covenant with the said William cessors, that the said William Fisher Hawkins, BenFisher Hawkins, his executors and administrators, jamin Warde, and John Crossley, or some or one of that this present covenant shall operate and enure, them, or the executors or administrators of them, or and may be pleaded in bar as a good and effectual some or one of them, shall and will pay, in manner release and discharge of all manner of actions, suits, and at the time aforesaid, the second instalment of the hills, bonds, writings obligatory, debts, accounts, sum aforesaid composition herein before covenanted to be and sums of money, judgments, extents, executions, paid by the said William Fisher Hawkins, his exccuclaims, and demands whatsoever, both at law and in tors or administrators: provided always, that if the equity, or otherwise howsoever, which they or any of majority in number, representing three-fourths in vathem, their or any of their heirs, executors, adminis- lue of the creditors of the said William Fisher Hawtrators, or successors, now have or hath, or hereafter kins, whose debts shall respectively amount to 107. and shall or may have, challenge, claim, or demand against upwards, shall not, at the time and in manner in that the said William Fisher Hawkins, his heirs, executors, behalf appointed and enacted by the Bankruptcy Act, or admistrators, or any of them, for or by means or 1861, assent to or approve of these presents, or execute on account of all and every or any of the debts to the same, then these presents, and every clause, matter, them, or any of them, respectively due and owing and thing herein contained shall cease and be void. from the said William Fisher Hawkins as aforesaid, or Provided, lastly, and it is hereby declared and agreed of any interest or commission due or demandable for that these presents, and the paramount object, intent, the same, or for or by reason or on account of any and meaning thereof, are, and shall be deemed and other matter, cause, or thing whatsoever in respect of taken to be, for the equal benefit and advantage of all the said debts: provided always, and it is hereby the creditors of the said William Fisher Hawkins, as agreed and declared, that nothing herein contained well those who execute, or consent to or approve of, these presents as those who do not, and that all such | creditors shall stand as nearly as possible upon an equal footing, and the generality of the proviso shall not be restricted by any clause, matter, or thing hereinbefore appearing. In witness whereof, the said parties to these presents have hereunto set their hands and seals the day and year first above written. "WILLIAM FISHER HAWKINS. (L. S.) JOSEPH G. JACKSON, Solicitor, Belper." The replication then added an allegation that the plaintiff did not assent to or execute the deed. Demurrer to the second replication and also rejoinder, that all conditions, matters, and things provided and required by the Bankruptcy Act to be observed, performed, and fulfilled, in order to make the deed valid, effectual, and binding on all the creditors of the defendant as if they were parties thereto, and had duly executed the same, were observed, performed, and fulfilled; and the said deed had before the commencement of this suit became, and was and still is, as valid and effectual and binding on the plaintiffs as if they were parties to, and had duly executed the same. Demurrer to the rejoinder, and joinder in demurrer to the replication. Joinder in demurrer to the rejoinder. The case was argued by Cohen, for the plaintiff.—This is not a deed between the debtor and all his creditors, and it is to be remarked, that the consideration for the release given to the debtor does not consist in the payment of the composition, but in the covenant to pay. Hence it must be contended that the deed amounts to an absolute release, for otherwise the plea is not a good legal plea, as the deed would amount to a covenant not to sue until the time for payment has arrived. Now I do not contend that an absolute release to, as such, unreasonable, but it makes a deed of this kind invalid, because it places the two classes of creditors in a different situation. Executing creditors can sue upon the deed; non-executing creditors cannot. (Ex parte Cockburn, 10 Jur., N. S., 573). In that case Gilby v. Copley (3 Lev. 138); Nurse v. Frampton (1 Ld. Raym. 28); Metcalf v. Pycroft (6 Mau. & S. 75); and Berkeley v. Hardy (5 B. & Cr. 355) were referred to, and the Lord Chancellor said it made no difference that the deed was intended for the benefit of all the creditors. The creditor has no relief in bankruptcy, for the 197th section does not apply. In proof that the strict technical rule of law which governs this case is insuperable, the stat. 8 & 9 Vict. c. 108, s. 5, is to be referred to, where it appearing desirable to effect a relaxation of the rule, the interposition of the Legislature was required. (See also the notes to Davidson's Precedents, p. 100; and Com. Dig. 270). Since the case of Ex parte Cockburn was decided, it has been the practice to express the deed as made "with all the creditors." It is to be remarked, that the 192nd section does not say that the debtor shall be as much bound as if all the creditors had assented. There is another objection to the deed, consisting in the schedule appended to it, which raises an estoppel against the debtor in respect of the claims contained in it. Now that gives the creditors whose names are there an advantage over the rest. It is no answer to say the plaintiff might have assented; for first, there is no necessity to tell him of the deed; secondly, the deed must be good at the moment it is re 10 gistered. If the amount be not admitted, there is an estoppel as to the existence of a debt of one kind or another. [He referred also to Abb. Shipp. 171; Storer v. Gordon (3 Mau. & S. 308); and Benham v. Broadhurst (3 H. & C. 474).] The remedy suggested for this difficulty is, that the debtor should execute a deed-poll. Mellish, for the defendant.-It is true as a general rule, that in an indenture inter partes, none but a party to the instrument can sue upon it; and the person who is named as the party is always the right person to sue, even though it appear on the face of the deed that he is not the person beneficially interested. But can it be said that it appears so conclusively here who the parties are, and is the rule of law so irreversible, that we cannot look into the facts? Suppose the deed had said in terms, “Provided always, that if it be necessary to make this deed valid, the non-executing creditors shall be able to sue thereon." The case of these deeds is peculiar, for men are made parties to them against their will. In general, if it is attempted to make a man a party to a deed, he can disclaim. As the matter stands, I wish to raise two questions:-Is the plaintiff not a party to the deed? and, secondly, may not one who is no party be allowed to sue by reason of the act of Parliament? As to the objection founded on the schedule, it is impossible to state the amount of the debts of dissenting creditors How is any one to tell who may be the holder of his acceptances? The sums in the schedule must be assumed to be the correct ones, and therefore none can be prejudiced by their admission. Ex parte Cockbura has not been followed in the courts of law; every case in which "creditors" has been held a sufficient description is in conflict with it. The Lord Chancellor's objection was, not to the creditors being made parties to the deed, but to the way of describing them. Now, that is not the way in which the question is regarded in these courts. (See the case of Dewhirst v. Jones, 10 Jur., N. S., 753). Dewhirst v. Jones is not decisive of the present case, but it stands out a case at variance with Ex parte Cockburn. Where the doctrine laid down by Lord Tenterden in Berkeley v. Hardy has been ap plied, the question has always been, who is the proper party to sue of two parties, where it cannot be both? The act of Parliament does not say that all the creditors shall be parties, for you cannot make a man a party to a deed against his will, but that the deed is to be as valid and effectual as if they were: that includes the power of suing on a covenant. This is a deed to which any creditor may be a party if he chooses; therefore he is legitimately bound, and may fairly take advantage of it. Cohen, in reply.-In the cases cited on the other side, the release is not given in consideration of the covenant, but in consideration of payment; therefore the question did not arise; in case of non-payment. the creditor could go back to his debt. In Clapham v. Atkinson (ante, p. 217) there was no covenant. [He was then stopped.] Cur, adr. vult. On the next special paper day a case was called on. which involved the validity of a deed drawn in the same way, and THE COURT said that the case of The Chesterfică Company v. Hawkins had been so fully and well ar gued on both sides, that it would be superfluous to have the points further discussed; and the counsel as sented to this course. The judgment of the Court (Pollock, C. B., and Martin, B.) was now delivered by MARTIN, B.-The question in this cause is the now very common one, whether a composition deed is effectual to bar a non-assenting creditor. An objec tion to it is taken upon the case of Ex parte Cockbura |