not to be disturbed :-Held, that such provisions were reasonable, and did not invalidate the deed.

This was a demurrer to a plea.

The declaration contained two counts, the first being the common money count, and the second a count on a bill of exchange, accepted by the defendants. The defendants pleaded, first (except as to a specified sum), never indebted; secondly, as to such sum, that "after the accruing of the parcel of the plaintiff's claim herein pleaded to, and after the 11th of October, 1861, the defendants were indebted to the plaintiff and divers other persons, and thereupon a deed hereinafter particularly set forth, bearing date the 14th of May, 1864, was made and entered into by and between the defendants, the persons in the said indenture named, Samuel Ward the elder and Samuel Ward the younger of the first part, Henry Cross Green, Thomas Robert Russell and John Jackson, as and being trustees for and on behalf of all the creditors of the defendants of the second part, and the several other persons whose names or the names of whose firms were written in the first column of the schedule under the said deed written, being respectively creditors, or claiming to be creditors of the defendants, and all other the creditors of the defendants of the third part, relating to the debts and liabilities of the defendants, and their release therefrom, which said deed was and is in the words and figures following." The plea then set out, verbatim, the deed which conveyed to the trustees all the property, debts, claims and rights of the debtors in the most ample terms; "upon trust nevertheless from time to time to sell and dispose of, and realize or collect and receive the said premises hereby conveyed and assigned, as hereinafter mentioned or expressed, and intended so to be, and every part thereof, by public sale and private contract, and in one or more lot or lots, with liberty to sell the same on credit to the said debtors or either of them, or any other person or persons, with or without security for the purchasemoney, or any part thereof, as shall seem expedient; and upon trust, out of the moneys to be received by these presents to pay all costs and expenses of investigating, on the part of the creditors, the affairs of the said debtors, and of proposing,

preparing and executing these presents, and of or occasioned by the carrying into effect the trusts hereby created; and in the next place (so far as the same may extend) to pay, retain and satisfy, rateably and without preference, administering the assets, and distributing joint and separate estates in like manner as in bankruptcy, except in any case where the contrary may be hereby provided for, to and amongst the parties hereto of the third part, including themselves, the said trustees and their partners (if any) so far as they may be creditors as aforesaid, and including all the creditors of the said debtors, the several debts and sums due to such creditors respectively, accounting such creditors in respect of such amount only as upon account fairly stated, after allowing, according to the provisions of the Bankruptcy Law, the value (if any) of mortgage securities, and other such available securities or liens, as shall appear to be the balance due to them respectively from the debtors, subject to the covenant herein contained for verifying the amounts thereof, and to pay the ultimate residue (if any) of the said moneys, after satisfying the whole of the said creditors the full amount of their said debts, with interest hereon, unto the said debtors in like manner as in bankruptcy. Provided always, that no former dividend should be disturbed, and no liability in consequence of such dividend shall be incurred by the trustees by reason or on account of any debt or debts due to creditors as aforesaid, and whereof the trustees shall not have had notice before such dividend shall have begun to be paid." The deed then declared, that the trustees might employ the debtors; that the execution of the deed by a creditor should be no admission by the trustees as to the validity or amount of his debt which they might require to be verified by solemn declaration; that the trustees should have all the powers, &c. of a creditors' assignee, or of creditors under the authority of the Court; that the trustees might give an allowance to the debtors; that questions of administration should be decided by the Bankruptcy Law, and that the trustees should be liable only for their wilful default, &c., and should pay moneys into the bank when amounting to 50l. The deed then contained a release (without

prejudice to mortgages, liens, and remedies against third parties) by the creditors of all debts &c., a covenant not to sue &c., a power to plead the deed in bar, an avoidance of the deed in case of concealment of property, a covenant by the debtors to assist the trustees and execute all necessary deeds &c., a power for one trustee to act on the death or incapacity of the other, and schedules of the creditors. The plea then stated that "a majority in number representing three-fourths in value of creditors of the defendants, whose debts respectively amounted to 107. and upwards, did in writing assent to and approve of the said deed, and the said trustees appointed by the said deed executed the same, and the execution of the said deed by the defendants was attested by a solicitor, and within twenty-eight days from the day of the execution of the said deed by the defendants, the same was produced, left, having been first duly stamped, at the office of the Chief Registrar of the Court of Bankruptcy for the purpose of being registered, and together with such deed there was delivered to the said Chief Registrar an affidavit by the defendants that a majority in number representing three-fourths in value of the creditors of the defendants whose debts respectively amounted to 10%. and upwards, had, in writing, assented to and approved of the said deed, and also stating the amount in value of the property and credits of the defendants comprised in the said deed, and the said deed did, before the registration thereof, bear such ordinary ad valorem stamp duties as were provided by the Bankruptcy Act, 1861, in that behalf, and immediately on the execution of the said deed by the defendants, possession of all the property comprised therein, of which the defendants could give or order possession, was given to the said trustees, and at the time of the execution of the said deed the plaintiff was a creditor of the defendants, in respect of the parcel of the claim herein pleaded to, within the meaning of the Bankruptcy Act, 1861; and all conditions precedent, matters, things, and times by the said deed required to have been performed, and to have happened, existed, and elapsed to render the said deed binding upon the plaintiff and the other creditors, and to render the said deed pleadable as a bar

to this action, were performed, and did happen, exist, and elapse before the commencement of this suit, and nothing was done or happened or existed to the contrary thereof in that behalf; and all conditions in the said statute having been performed, and all things in the said statute happened necessary in that behalf, the plaintiff became and was and is bound by the said deed as if he had been a party thereto, and had duly executed the same.” To this second plea there was a de

murrer.

Field (Holl with him), in support of the demurrer. This deed is bad. By one of its clauses the trustees are empowered to sell the property to the debtor himself on credit, and without security. Such a power as this destroys the equitable remedy against the trustees for breach of trust, and is on that accouut distinguishable from the recent case of Coles v. Turner (1), which will be relied on by the defendants. Such a clause is unreasonable and vitiates the deed. Next, there is inequality in the distribution amongst the creditors. The deed does not provide for distribution amongst all the creditors. The trustee may sell and divide the next day, and there is no liability in consequence of creditors afterwards coming in, of whom the trustee had not had previous notice.

the

Quain, in support of the plea.--First, it is said that the deed is bad because it gives a power to the trustees to sell to the debtors with or without security. But the argument on the other side assumes recklessness in the trustees; the Court, however, will make no such assumption; trustees must exercise reasonably the power given to them, but if they do so, the Court will not interfere. As to authority, the case of Coles v. Turner (1) is decisive. The only difference between that case and the present is, that here we have the words "to the debtor," but this very point was put by counsel in argument, and answered in that case. Secondly, it is said the deed is bad because it provides that the trustees are not to be accountable if they, before notice of any creditor, pay dividends, and that snch creditor is to come in without disturbing them. But this is the method of administering in Chancery-Broadbent v. Thornton (2)-and in Bankruptcy.

(1) Ante, 169; s. c. Law Rep. C.P. 373.
(2) 4 De Gex & Sm. 65.

Field, in reply.-First, it is impossible to see how the first clause is consistent with bona fides. Secondly, the case of Broadbent v. Thornton (2) is not in point; there the creditor knew of the deed and other matters, but lay by.

ERLE, C.J.-I am of opinion that our judgment should be for the defendants on the demurrer. By this deed, no doubt, very ample powers are given to the trustees; and if they combined with a portion of the creditors to defraud the others, perhaps the Court of Bankruptcy or a Court of Equity could interfere. But we must not assume wilful waste; and if there be not, they may sell to the debtors. The power is the same as that in Coles v. Turner (1), which governs the present case. As to the other clause, as to not disturbing the dividends, the same observations apply; we are not to assume an intention to defraud.

WILLES, J.—I am of the same opinion; and I do not see how we can, consistently with Coles v. Turner (1), decide otherwise.

BYLES, J.-I am of the same opinion. As to the first point, Coles v. Turner (1) is in point; as to the second point, the stipulation is a reasonable one.

MONTAGUE SMITH, J.-I am of the same opinion.

Judgment for the defendants.

Attorneys-Miller & Miller, agents for J. Suckling, Birmingham, for plaintiff; R. Bastard, agent for F. Marriott, Manchester, for defendants.

Practice-Pleading after Two o'clock on Saturday-Rule, E. T. 1856-Signing Judgment-Acquiescence in Judge's Order.

Notwithstanding the rule of Easter Term, 1856, that if service of pleadings be "made after two o'clock, p.m., on Saturday, the service shall be deemed as made on the following Monday," when a defendant has all Saturday to plead, the plaintiff cannot regularly sign judgment by default until the opening of the office on the morning of the following Monday.

Where a Judge has made an order at Chambers out of term, to set aside a judgment by default on an affidavit of merits,

and on payment of the plaintiff's costs, the defendant, by complying with such order, for the purpose of getting rid of the judgment, does not so acquiesce in the order as to prevent his applying to the Court in the next ensuing term to alter its terms.

The question in this case was, whether a judgment, signed by the plaintiff for want of a plea, was regular or not. The action was to recover the balance of an account for wages alleged to be due to plaintiff, as ship's cook of the Water Witch, and the defendant's attorneys having sent a cheque by post to the plaintiff's attorneys at Liverpool, Willes, J., on the 2nd of May last, made an order extending the defendant's time to plead "until a day after cheque returned or taken in part payment." The cheque was received back by the defendant's attorneys on Friday, the 4th of May last, in a letter from the plaintiff's attorneys, dated the 3rd of May. The pleas were delivered on Saturday, the 5th of May, after two o'clock, p.m. On that day, between two and five, p.m., and before the pleas had been delivered, the plaintiff signed judgment by default, as for want of a plea.

On the 8th of May a summons was taken out to set aside such judgment for irregularity, with costs, on the ground that the same had been signed before the defendant's time for pleading, under the said order of Willes, J., had expired. This summons was heard, before Byles, J., on the 9th of May, when that learned Judge being of opinion that the defendant's time for pleading had expired before the pleas had been delivered, held that the judgment was regular, and, therefore, he only made an order to set aside the judgment upon an affidavit of merits, and on payment of costs. These costs were taxed at 21. 5s., and were afterwards paid by the defendant.

Early in this term, Sir G. Honyman, on behalf of the defendant, obtained a rule calling on the plaintiff to shew cause why the said order of Byles, J. should not be amended or varied, by directing the judg ment signed by the plaintiff to be set aside, with costs, to be paid by the plaintiff to the defendant or to his attorney, and why the plaintiff should not refund to the defendant or to his said attorney the said sum of 21. 58., the taxed costs paid by him in

Hume Williams now shewed cause.The judgment signed by the plaintiff was regular. By the rule of Easter Term, 1856, it is ordered that "service of pleadings, notices, summonses, orders, rules, and other proceedings shall be made before seven o'clock, p.m., except on Saturdays, when it shall be made before two o'clock, p.m. If made after seven o'clock, p.m., on any day except Saturday, the service shall be deemed as made on the following day, and if made after two o'clock, p.m. on Saturday, the service shall be deemed as made on the following Monday." The pleas in this case, having been delivered after two o'clock on Saturday, are not to be considered as delivered on that day at all; and the defendant's extended time to plead, even if it gave him all Saturday to plead, had therefore expired before the plaintiff signed judgment; but it is submitted that the defendant's time expired at nine o'clock a.m. on Saturday morning, which was a day after the defendant's attorneys had received the cheque back from Liverpool. Moreover, the defendant took the benefit of the order of Mr. Justice Byles, having drawn it up and paid the plaintiff's costs under it; he cannot therefore now be heard against it.

Sir G. Honyman appeared in support of the rule, but was not called upon.

ERLE, C.J.-The rule of practice is thus laid down in 1 Chit. Arch., 11th edit. p. 246: "If the defendant do not plead on or before the day on which the time expires, the plaintiff may sign judgment on the opening of the office on the morning of the following day, unless in the mean time, and before the signing of it, the defendant has delivered a plea." If we apply that rule literally, the defendant had all the day of Saturday to plead, and the plaintiff might have signed judgment on the following Monday, unless in the mean time, and before signing, the defendant had delivered a plea; and that is the general rule. I think that the order of my Brother Willes meant that the defendant should have one whole day to plead after the day on which the cheque had been received back; and that, therefore, the defendant had all Saturday to plead in. Then there is the rule of Court, that pleas must be pleaded on Satur

after that time they are to be deemed as pleaded on the following Monday. The Judgment Office being, however, open on a Saturday after two o'clock, the plaintiff signed judgment, and the pleas were subsequently delivered on that same day. Now, I am of opinion that the plaintiff had no right to sign judgment on that Saturday; the exemption in favour of the clerks after two o'clock on a Saturday leaves the rule of practice as before; and, consequently, the plaintiff had no right to sign judgment until the opening of the office on the following Monday. Then it is said that the defendant took advantage of the order of my Brother Byles, and got the judgment set aside on payment of costs, and therefore that he cannot now have that order altered. But I think that as that order was made out of term, and as unless the judgment had been set aside with due diligence the plaintiff would evidently have issued execution, the defendant's legal advisers did not acquiesce in that order by paying the costs and taking the benefit of it by getting the judgment set aside, and that by coming to this Court, as they did, early in the next term, they came as soon as they could. I therefore think the defendant should have back the costs he so paid; but that is all we now award.

WILLES, J.-I am of the same opinion. I think the rule of Easter Term was not intended to alter the rule of practice, as stated in Chit. Arch. in the passage which has been cited.

KEATING, J.-I am of the same opinion; but at the same time I think we ought not to go further than has been stated by the Chief Justice, namely, that the defendant should get back the costs he paid, but not receive costs. When a party has all Saturday to plead in, the plaintiff cannot sign judgment until the following Monday.

MONTAGUE SMITH, J.-I also concur with the rest of the Court; but if I had been at chambers, I should have had a difficulty in making a different order from what my Brother Byles made.

Rule absolute, but without costs.

Attorneys-Nethersole & Speechley, agents for J. W. Carr, Liverpool, for plaintiff; Thomas & Hollams, for defendant.

Shipping-Bill of Lading Excepted Perils-Barratry and Perils of the Seas--Loss of Vessel and Goods from Negligence -Merchant Shipping Act, 1854, s. 299.

The plaintiff shipped goods on board the defendants' vessel, the Black Prince, under a bill of lading, which contained, inter alia, the exceptions of "barratry" and "perils of the sea. The Black Prince, with the plaintiff's goods on board, was lost in a collision with another vessel, the Araxes. In an action on the bill of lading for the loss of the goods, there was evidence at the trial that the collision arose from the Black Prince starboarding instead of porting her helm, as required by the rules laid down by the Merchant Shipping Act, 1854; and a collision occasioned by non-observance of such rules is, by section 299. of that act, to be deemed to have been occasioned "by the wilful default of the person in charge" of the offending ship. The Judge told the jury that if the collision was brought about by the negligence of those on board the Black Prince, the loss would not be a peril of the sea, and that for that purpose he could not distinguish between gross negligence and negligence; and he left it to the jury to say whether there was want of due care on the part of the Araxes, by which care the collision would have been avoided : -Held, that the contravention of the rules of the Merchant Shipping Act, 1854, by those in charge of the Black Prince, in starboarding instead of porting the helm, did not amount to barratry within the exception in the bill of lading.

Held, also, that the direction of the Judge was right, and that, being bound by the case of Lloyd v. the General Iron Screw Collier Company (1), he did right in not directing the jury that the loss of the Black Prince was caused by perils of the sea, within the exception in the bill of lading.

It is no objection to the admissibility of depositions taken under a commission, that the Commissioner did not put any of the written interrogatories or cross-interrogatories which were sent out with the commission,

(1) 3 H. & C. 284; s. c. 33 Law J. Rep. (N.S.) Exch. 269.

NEW SERIES, 35.-C.P.

but took the evidence of the witnesses under a viva voce examination.

And, semble, any irregularity in the mode of taking the depositions cannot be a ground for refusing to admit them at the trial, but can only be taken advantage of by applying to the Court or a Judge at chambers to suppress the depositions.

This action, which was tried, before Erle, C.J., at the London Sittings after last Hilary Term, was brought to recover thirty-seven casks of argols (tartar) shipped, at Messina, in Sicily, by the plaintiff, on his own account, on board the defendants' steamer, the Black Prince, under a bill of lading, signed by the defendants' agent, by which the goods were made deliverable at the port of London, to the order of the plaintiff or his assigns, "the act of God, the Queen's enemies, pirates, robbers, thieves, barratry of master or mariners, restraint of princes and rulers, fire, accident or damage from machinery, boilers, steam, or from other goods by contact, sweating, leakage or otherwise, and accidents or damage of the seas, rivers and steam navigation, of whatever nature or kind soever, excepted."

The declaration alleged a loss of these goods with the Black Prince, in consequence of a collision between her and a steamer, the Araxes, caused by the negligence of the defendants' servants and mariners in the Black Prince.

The pleas were, first, a denial of the bailment; secondly, not guilty; and, thirdly, that the loss was occasioned by the excepted perils in the bill of lading.

The plaintiff took issue on these pleas; and also replied, to the third plea, that the supposed excepted perils consisted wholly of the collision in the declaration mentioned, and that the collision was caused and the supposed perils incurred solely by the gross negligence and improper conduct of the defendants' servants and mariners.

It was proved that, on the night of the 8th of November, 1860, while the Black Prince was off Cape St. Vincent, in the prosecution of her voyage to England, she met and came in collision with the steamer Araxes, and that in consequence of that collision the Black Prince sank and was

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