8. And we do further order and direct, that a book or books be kept in the offices of the Associates of the Courts of Queen's Bench, Common Pleas and Exchequer, in which book or books shall be entered the names of the several causes, against which shall be placed adhesive stamps of the value required during the different stages, and it shall be the duty of the Associate, or of such one of his clerks as he shall direct to do it, to cancel such stamps in the manner hereinbefore provided, immediately after they are placed in such books. Given under our hands, at the Treasury Chambers, Whitehall, this 15th day of December, 1865.

RUSSELL.

E. H. KNATCHBULL-HUGESSEN.

We do hereby signify our concurrence in the before mentioned Rules and Regulations.

A. E. COCKBURN, Lord Chief Justice of the Court

of Queen's Bench.

W. ERLE, Lord Chief Justice of the Court of

Common Pleas.

FRED. POLLOCK, Lord Chief Baron of the Court of
Exchequer.

16th December, 1865.

Exchequer Reports.

HILARY TERM, 29 VICT.

1866.

SPENCER and EDWIN HEWETT v. CECILE DEMETT.

DECLARATION for goods sold and delivered.

Jan. 17.

Proof of a

debt under an

Plea. The defendant, for defence on equitable grounds, adjudication

says that, after the accruing of the plaintiff's claim, and after the passing of the Bankruptcy Act, 1861, and before this suit, the defendant committed an act of bankruptcy, and became bankrupt within the meaning of the statutes in force concerning bankrupts, and thereupon a petition for adjudication of bankruptcy against herself, the defendant, was duly filed by the defendant in the Court of bankruptcy, according to the said statute, and such proceedings were had in the matter of the said petition, that the defendant was by the said Court duly adjudged bankrupt, and thereupon, and after the commencement of this suit, but before the plaintiffs declared therein, at a certain sitting duly appointed by the said Court of Bankruptcy in that behalf, the plaintiff Edwin was duly appointed by the said Court to be, and became, the assignee of the estate and effects of the defendant under her said bankruptcy, and the plaintiffs then and there duly proved the debt and claim for which this action is brought under the said petition, and elected to take the benefit of such petition, with respect to such debt and claim, whereby the defendant was

in bankruptcy cannot be

pleaded in

bar as an equitable de

fence to an action for the

same debt.

1866.

SPENCER

V.

DEMETT.

and is in equity discharged from the said debt and claim of the plaintiffs, and their said proof of their said debt is still in force and effect.

Demurrer, and joinder therein.

Holl, in support of the demurrer.-The plea is framed upon the 182nd section of the Bankrupt Law Consolidation Act, 1849 (12 & 13 Vict. c. 106), which provides that the proving a debt under a petition for adjudication in bankruptcy by any creditor shall be deemed an election by such creditor to take the benefit of such petition with respect to the debt so proved. But that enactment is similar in terms to the 14th section of the 49 Geo. 3, c. 121, upon which it was decided, in the case of Harley v. Greenwood (a), that proof of a debt under a commission in bankruptcy cannot be pleaded in bar to an action at law brought for the same debt. There Bayley, J., in his judgment points out the inconvenience and injustice which would result if the creditor should be barred of his remedy at law in consequence of having proved his debt. The reasoning applies equally to an equitable as a legal plea. Until the final examination it cannot be known whether the bankruptcy may not be superseded. The defendant might have objected to the proof on the ground that this action was pending; or she might have applied to the Court of Bankruptcy to expunge the debt, or to this Court to stay the proceedings. The case of Elder v. Beaumont (b) is distinguishable. That was an action on a covenant by a debtor to pay the premiums on a policy of insurance on his life, which was assigned to the plaintiff as a security. There was a plea on equitable grounds, that the plaintiff proved part of the principal debt under the defendant's

(a) 5 B & Ald. 95.

(b) 8 E. & B. 353.

bankruptcy, and elected to take the benefit of the petition in respect of the debt; and the question was, whether the whole debt was satisfied so as to render it unjust and against conscience to sue upon the covenant to pay the premiums on the policy intended to secure that debt. At the trial, it appeared that the plaintiff proved for the balance of the debt, but expressly reserved the sum secured by the policy. The Court considered that the averment in the plea must be understood as an election in fact to take the benefit of the petition for the whole debt; and therefore the plea was good on demurrer, but, not being proved, the plaintiff had a verdict. In Ex parte Diack (a) the Court of Review in Bankruptcy intimated that if the proof were on the same bill as that on which the action was commenced they would issue a perpetual injunction to restrain the action; but as the evidence did not render the fact clear, the matter was referred to the Commissioner.

J. Brown, in support of the plea.-The matter stands on a different footing from what it did before pleas on equitable grounds were allowed. No doubt, at that time when a creditor, by proving his debt, elected to take the benefit of a petition in bankruptcy, the proper course was to apply for a stay of proceedings. But the 83rd section of the Common Law Procedure Act, 1854, has enabled a defendant to plead an equitable defence in any case in which, if judgment were obtained, he would be entitled to relief on equitable grounds. Therefore, the question is, whether, as the plaintiffs have elected to prove their debt, a Court of equity would grant the defendant relief by perpetual injunction. Ex parte Diack (a) is an authority to that effect. It is said that there cannot be a perpetual injunction, because the bankruptcy may be superseded; but in that (a) 2 Mont. & A. 675.

VOL. IV.-H. & C.

K

EXCH.

1866.

SPENCER

0.

DEMETT.

1866.

SPENCER

v.

DEMETT.

EXCHEQUER REPORTS.

case application may be made to dissolve the injunction. [Martin, B.-Harley v. Greenwood (a) is directly in point.] In the case of Elder v. Beaumont (b) the Court considered that there would have been a good equitable answer if the plaintiff had proved for the whole debt. [Pollock, C. B. -A Court of equity would only grant relief quousque. An equitable plea must shew that not only the plaintiff is not entitled to maintain his action, but that he never will be.]

Per CURIAM (c).—The plea is bad, and the plaintiffs are entitled to judgment. The defendant, however, may apply at Chambers, on affidavits to set aside the judgment and stay the proceedings, on payment of the costs of the demurrer.

(a) 5 B. & Ald. 95.
(b) 8 E. & B. 353.

Judgment for the plaintiff.

(c) Pollock, C. B., Martin, B., Channell, B., and Pigott, B.

Jan. 31.

The defend

ants, a rail

BAXENDALE and Others v. THE LONDON AND SOUTH
WESTERN RAILWAY COMPANY.

DECLARATION for work done, money paid and

way Company, money received for the plaintiffs' use.

bound by

their act of

parliament to take the same rates and tolls from all persons alike under the same or similar circumstances, charged a tonnage rate upon goods over 1 cwt., and a higher rate for articles under that weight. When several parcels, each under 1 cwt., were delivered to the defendants by one person in a single consignment, at one and the same time, and addressed to the same consignee, the defendants charged a tonnage rate upon their aggregate weight. The plaintiffs, common carriers, sent by the defendants' railway large consignments of goods directed to themselves as consignees, each consignment, consisting of several packages, many of them having the names and addresses of the persons to whom the plaintiffs intended to deliver them. The defendants charged the plaintiffs for each package contained in each consignment according to the weight of the package.-Held, an inequality of charge, and that the plaintiffs were entitled to recover back the excess.

The plaintiffs carried goods from London to the Isle of Wight, using the defendants' railway for the carriage to Southampton. The defendants, whose railway did not extend beyond Southampton, also carried goods from London to the Isle of Wight. The defendants charged the plaintiffs for the carriage of goods from London to Southampton a higher rate in proportion than, under a contract to carry from London to the Isle of Wight, they charged their customers for the carriage between London and Southampton; but for the carriage between the two latter places they charged the plaintiffs and the rest of the public alike. Held, no inequality of charge.