The 23rd clause itself is unreasonable, for it makes an ex parte certificate conclusive, although the estate may not have been administered and some creditors may not have received dividends. It is hard against foreign creditors. Its provisions and consequences are very different from the provisions with regard to an order of discharge in Bankruptcy-see sections 140, 141, 159, 168. and 171. of the Bankruptcy Act.

[CROMPTON, J.-This is a deed of inspectorship, and puts the parties in a position to avoid administration in Bankruptcy. Unreasonableness must be considered secundum subjectam materiem.]

The 13th clause in this deed is analogous to the clause which was held unreasonable in Coles v. Turner (5). The concluding part of the 30th clause is also objectionable as dividing the estate among the assenting creditors only, in case the deed be invalid. The 14th clause, too, is bad, as it allows a creditor to prove for part of his debt only, and may mislead other creditors-Holmes v. Viner (6), Britton v. Hughes (7), Forsyth on Composition Deeds, 51, 52.

Again, the deed professes to bind not only all creditors properly so called, but also all persons who would be entitled to prove under an adjudication founded upon a petition at the date of the deed. This is a larger sense than that given to the word "creditors" in the interpretation clausethe 229th section.

[BLACKBURN, J.-The 192nd section provides for debts and liabilities, and in the 144th and 145th sections the word "creditors" is used in a larger sense than in the 229th.]

The process in the case of liabilities is specially provided for by the 172nd section of the Bankruptcy Act, 1849, and partially also by the 150th section of the act of 1861; but no such provision has been made with respect to deeds under section 192. The protection given by the 198th section, also, is only applicable in available cases of debt. Such provisions as those of section 154. (which relates to the proof for premiums on policies of insurance) cannot be applied here, for the creditor could not go

(5) 34 Law J. Rep. (N.S.) C.P. 198.

(6) 1 Esp. 134.

to the Court till after registration. Mare v. Underhill (8) is in the plaintiffs' favour. The 19th clause, taken in connexion with the 30th, enables the inspectors to put a pressure upon non-assenting creditors by the threat of withholding their dividends -Hernulewicz v. Jay (9).—[He also cited Woods v. Foote (10), Leigh v. Pendlebury (11), and Balden v. Pell (12).]

Beresford (with whom was Mellish), for the defendant. As to the 19th clause, before any assenting creditor gets a dividend, there must be a sum set aside for the non-assenting creditor, who can get it when he applies for it; it is clearly dependent on himself. There must be proof in either

case.

[The COURT intimated that they were satisfied on all but the last point.]

The creditors referred to in the 197th section must mean creditors who have proved, for all rights under a deed are there assimilated to rights in Bankruptcy, and therefore in the 192nd section also the word means all who can prove. If it applies only to those who are creditors in respect of liquidated debts, then the 192nd section does not carry out the intention of the legislature, which was to prevent the estate being wasted. In Ex parte Mendel (13) it was assumed that a contract broken before the execution of a deed could have been proved under the deed.

Brown, in reply.--It is unjust that claimants for unliquidated debts, who could not make an affidavit of debt, should be bound without having a voice in framing the deed. It is something quite novel that creditors for liquidated sums should have it in their power to bind those who are creditors in respect of broken contracts or other liabilities, the amount of whose claims in many cases exceeds the amount of the debts properly so called.

Cur, adv. vult. as to the last point.

BLACKBURN, J. (Dec. 1) delivered the judgment of the Court.-The question in this case was, whether a composition deed

(8) 4 Best & S. 566

(9) 34 Law J. Rep. (N.s.) Q.B. 201. (10) 32 Law J. Rep. (N.s.) Exch. 199. (11) 33 Law J. Rep. (N.s.) C.P. 172. (12) 33 Law J. Rep. (N.S.) Q.B. 200. (13) 33 Law J. Rep. (N.s.) Bankr. 14.

was binding on the plaintiffs, who had not assented to it. The same deed had been previously held good by the Court of Exchequer in the case of Strick v. De Mattos (1), and the present case was in substance an appeal from that decision.

A great many objections were raised before us, all of which were disposed of in the course of the argument, except the following one: The deed is expressed to be made between the debtor, his inspectors, and the persons "who at the date hereof are respectively creditors of the said De Mattos, or who would be entitled to prove under an adjudication of bankruptcy against the said De Mattos on a petition filed on the day of the date of these presents, hereinafter called the creditors." And the different provisions of the deed are in favour of the creditors thus defined. It was objected, that many claims can be proved in Bankruptcy which are not strictly debts, and it was contended that the persons who were entitled to prove such claims were not creditors within the meaning of the 192nd section of the 24 & 25 Vict. c. 134. My Brother Willes entertained some doubts whether this objection was not well founded, and in deference to him we took time to consider. His doubts, I believe, are not yet altogether dispelled, though he does not dissent from our judgment. The other members of the Court, including the late Mr. Justice Crompton (whose opinion on the point was very decided), were of opinion,-and on consider ation my Brother Byles and myself still are of opinion,-that throughout the Bankruptcy Act the word "creditor" is used in the sense of a person having a claim which can be proved under the bankruptcy, whether it is upon a debt or not; and we think that in the 192nd section "creditors" must be understood to mean all persons who had at the time of the execution of the deed a claim against the debtor, provable against his estate if he then became bankrupt.

We therefore think that this objection also fails, and consequently that the judgment must be affirmed.

Judgment for the defendant; thus virtually affirming the judg ment in Strick v. De Mattos.

The 53rd section of the Public Health Act, 1848, (which requires certain particulars to be stated for the approval of a local board by any person intending to construct any building) was repealed by the 34th section of the Local Government Act, 1858.

The 101st section of the Kingston-upon-Hul! Improvement Act, 1854, enacts, that in addition to the particulars required by the 53rd section of the Public Health Act, 1848, the person intending to construct any building shall furnish the local board with a plan on a certain scale, and that the plan shall not be carried into execution until approved by the local board.

The 99th section of the Kingston-uponHull Improvement Act, 1854, enacts, that every house to be built or rebuilt at the corner of any street shall have a back yard or back area thereto, if the local board shall deem it right, of such dimensions as they shall determine; and every house to be thereafter constructed on vacant ground, not being at the corner of a street (and not being the site of any house erected thereon immediately previous to such construction), shall have a back yard or other vacant ground and area open from the ground upwards, of not less than 8 feet, extending from the main building for the whole length of such building, provided that within that space or area the pantry, coal-house and privy, not exceeding 9 feet in height, and not covering more than 48 superficial feet of the above area, may be

there constructed.

Under one of the by-laws, which the board were authorized to make by the 34th section of the Local Government Act, 1858, four

teen days' notice was required to be given to them by any person intending to build, together with a plan shewing a section of the building and the space around; during which fourteen days the board should either approve of the plan or alter it, as they should think fit; and any plan not altered during that period is to be considered approved.

On the 21st of October the appellant laid a plan before the board, shewing sufficient spaces at the side of his proposed building, provided the 99th section did not oblige him to leave a certain open space at the back. On the 22nd the surveyor of the board informed him that, as there was not sufficient space at the back, the plan was not approved of by the works committee, but was referred to a sub-committee. The proceedings of the works committee were approved of on the 24th of October, within the fourteen days; and the appellant was further informed, on the 19th of November, that the sub-committee had inspected the site of the building, and that the decision of the works committee of the 21st of October was confirmed. The appel lant, notwithstanding, proceeded with his building.

Held, that the appellant in so doing had committed an offence under the 101st section.

The 97th section of the Kingston-uponHull Improvement Act enacts, that any building built or rebuilt after the commencement of the act, except on the site of a building used immediately before as a dwelling-house, &c., shall not, without the previous consent of the local board, be used as a

dwelling-house, except during such time as there is adjoining to it or occupied therewith a street or a clear open space in and to the full extent of the front thereof, of not less than 20 feet in width.

The 103rd section enacts, that if any sewer, drain, privy, cesspool, ashpit, building or work be made or suffered to continue contrary to any of the provisions of this act, or if any person, without the consent of the local board, make, rebuild, clear out, unstop, or in anywise alter any sewer, &c. which has been ordered by them not to be so made, &c., every person so offending shall for every such offence forfeit a sum not exceeding 5l., and for every day after the first day during which the offence continues, a sum not exceeding 10s.

The appellant having been found, on the facts stated, to have committed an offence under the 97th section,-Held, by Pollock, C.B., Bramwell, B. and Channell, B., that though the appellant was guilty of an offence under the 97th section, he was not liable to the penalty, because "using a building as a dwelling-house" is neither "making" a building, nor "suffering it to continue," within the meaning of the words in the 103rd section.

Held, by Martin, B., that the offence prohibited by the 97th section was clearly intended by the legislature to be subject to the penalty imposed by the 103rd section, and that the appellant was therefore rightly convicted.

[For the report of the above case, see 35 Law J. Rep. (N.s.) M.C. p. 36.]

Interrogatories-Breach of ContractReduction of Damayes.

A defendant who admits that he has committed the breach of contract alleged in the declaration will not, except under very special circumstances, be allowed to interrogate the plaintiff respecting the amount of damage which he has sustained, with a view to paying money into court.

Wright v. Goodlake (1) commented upon.

This was an application for a rule nisi calling on the plaintiff to shew cause why he should not answer certain interrogatories.

The declaration set out a memorandum of agreement between the plaintiff and the defendant, which, after reciting that the plaintiff was possessed of an invention for deodorizing oleaginous animal, mineral and vegetable matter, provided, amongst other things, that the plaintiff should forthwith, at the cost of the defendant, take all necessary steps to obtain provisional protection and letters patent for the invention; that the letters patent, when obtained, should be assigned to the defendant; that the defendant should use his best endeavours to promote the adoption of the invention by using it in his own manufactory and

(1) 3 H. & C. 540; s. c. 34 Law J. Rep. (N.S.) Exch. 82.

granting licences at fixed royalties; that the defendant should receive all monies to become due in respect of the invention, and keep full accounts of all such monies and all royalties; the monies, after payment of the expenses of obtaining the patent and keeping it in force by payment of future duties to be equally divided between the plaintiff and the defendant. Either party had power to determine the agreement and abandon his interest in the invention on giving certain notice. The declaration then alleged that provisional protection was obtained for the invention, and that the defendant did not give notice of any wish to relinquish his interest in it, and that a stamp duty of 501. became payable on the 10th of July, 1865, under 16 & 17 Vict. c. 5, which the defendant omitted to pay, whereby the letters patent became void, and the plaintiff lost the profits which he would have derived from the patent.

The defendant, after declaration and before pleading, applied at chambers for leave to administer the following interrogatories:

1. Have you ever made or caused to be made any and what quantity of material under the patent the subject of this action? If yea, state the several quantities, and the dates of such manufacture and the places at which it was manufactured.

2. What quantity of such material is now in your possession? If you have disposed of any of it, state in detail what

quantity you have disposed of, and to whom, stating the present address, and when, and for what consideration, and how much of such consideration has been received by you, and when.

3. Have you in your power or possession any and what diaries, documents, or books containing memorandums and entries of the quantities manufactured by you, the dates or other particulars of its disposal, or the prices received for the same, as in the last interrogatory particularly mentioned? If yea, give the name and description of each of such diaries, documents, or books.

4. Did you receive any and what samples of material manufactured by the defendant under the said patent, and when? What has become of the same or any of them? and if yea, how many are at present in your possession or power?

5. Did you continually exert yourself to the most of your ability from the 10th of April, 1862, till the commencement of this action to obtain orders for material manufactured by the said process?

6. Have you been able to obtain a single order? and if yea, state the name and address of the person or persons from whom you obtained such order, and the date and amount of it.

The application was supported by an affidavit, stating that certain samples produced by the invention had been supplied by the defendant to the plaintiff for which he had never accounted.

Channell, B. refused to make the order. The defendant afterwards pleaded to the action, and paid 50l. into court.

J. P. Murphy, in support of the application. The defendant has committed a nominal breach of his contract, and he desires to administer these interrogatories with a view to estimating the sum which he ought to pay into court. The affidavit shews that for a long time the invention has been treated both by the plaintiff and the defendant as valueless, and that samples have been delivered to the plaintiff which have not been accounted for. If they have been disposed of by the plaintiff, the defendant is entitled to an account of the proceeds. If they have not, the defendant is fairly entitled to use the fact as strong evidence that the invention was

valueless. The case of Wright v. Goodlake (1) shews that the defendant is entitled to the rule. There, the plaintiff had published a pamphlet, portions of which had been copied verbatim into the Times, and the action was brought against the printer and publisher of the Times for an infringement of copyright. The defendant was allowed to interrogate the plaintiff as to the number of copies of his pamphlet which he had sold in certain months preceding the infringement complained of. The marginal note to the report of that case is, "A defendant may interrogate a plaintiff for the purpose of ascertaining the damage which he has sustained, so as to enable the defendant to pay the real amount into court."

[MARTIN, B.-The discovery was there limited to the question, how many copies of the pamphlet had been printed? If Wright v. Goodlake (1) is understood to decide that a plaintiff may be called upon to limit the amount of his own damages, the sooner it is overruled the better. I remember that I was once much pressed at chambers to allow a railway company to interrogate a person who had been injured by them, and who was suing them for compensation, as to his age, profession, income, his movements after the accident, the doctors whom he had consulted, and the places to which he had gone. I thought it monstrous, and refused to sanction it.]

The distinction between such a case and the present is, that here the defendant would be entitled to discovery in equity. A person injured in a railway accident can get no assistance in equity.

[CHANNELL, B. I doubt whether a Court of equity would assist the defendant in the discovery which he seeks, unless he were able to aver that he had strictly performed his portion of the contract. But, however much you might be entitled to administer these interrogatories if you were pressing for an account in a Court of equity, they are not ad rem in the present action. There is a further distinction between this case and Wright v. Goodlake (1), that that was a case of tort, this of contract.]