1865. JOHNSON V. BARBATT. As to the objection that the deed is unreasonable because the release is absolute, we must consider in what sense the word "unreasonable" is used. If in the sense of "impru dent," that is a matter, not for us, but for the creditors, to determine. If the word is used in the sense of "unequal" or "unjust," sitting as a Judge I can see nothing unreasonable in the release, though absolute. As to the question of tender, that depends on whether the release is absolute or conditional. I am of opinion that it is not conditional: it is expressed to be made in consideration of the covenants and assignment. POLLOCK, C. B.-I entirely agree with my learned brothers upon the points on which they have given judgment, and for the reasons which they have assigned. Cur, adv. vult. The judgment of the Court, on the point on which they took time to consider, was delivered in the following Vacation (Dec. 5), by BRAMWELL, B.-In this case the Court disposed of several points at the conclusion of the argument, and one only remained for our consideration. In answer to the action the defendant pleaded a deed under the 192nd section of the Bankruptcy Act, 1861, which it was said was binding on the plaintiff, a non-assenting creditor, because it was executed by the requisite majority in number and value of creditors, and complied with the other conditions necessary to give it validity under the Act. The point on which we reserved our judgment was this, that although the deed assigned the debtor's property to a trustee for the benefit of the creditors, yet it contained an express reservation to the debtor of a right to keep possession of and use the property until he should make default in payment of the composition of 5s. in the pound; and, in case of default, the trustee was to apply and administer the estate for the benefit of the creditors as if the debtor had been declared bankrupt. It was objected that this stipulation was in violation of the 7th condition of the 192nd section of the Bankruptcy Act, 1861, which requires " that immediately on the execution of the deed by the debtor, possession of all the property comprised therein be given up to the trustees." Upon consideration, we have come to the conclusion that the deed is good. That is manifest when it is considered that there is no necessity for the debtor to make any assignment of his property, and, if there need be none, it cannot be said the deed is bad because it gives the creditors a benefit which they would not have had if there had been no assignment at all. The true and sensible construction of the 7th condition is this, that where the deed in terms provides that the debtor's property shall be given up to the trustees, in order to render the deed binding on non-assenting creditors the property must be given up in accordance with such terms. We therefore think the deed good, and our judgment is for the defendant. Judgment for the defendant. 1865. Nov. 20. GRESTY V. GIBSON. A composition DECLARATION on a promissory note. deed under the Bank ruptcy Act, 1861, made between the debtor of the one part, and all his creditors of the other part, after reciting had agreed Plea. That after action, to wit, on, &c., an indenture was made by and between the defendant and divers of his creditors (so far as material) as follows:-" This indenture, made the 18th May, 1865, between Stephen Gibson, of &c., of the one part, and all the creditors of the said that the debtor Stephen Gibson, of the other part: Whereas the said Stephen Gibson is indebted unto his said creditors in sums of money which he is unable to pay in ful; and it has been agreed that he shall pay to his said creditors a composition of 5s. in the pound upon the amount of their of their debts, several and respective debts, to be accepted by the said creditors in full satisfaction and discharge thereof, such composition to be paid by three instalments, of 2s. at the ral creditors, expiration of a calendar month from the date hereof, and 1s. 6d. at the expiration of four calendar months from the ments in satisfaction and discharge contained a covenant by the debtor with the seve and with each of them respectively, to pay the composition, in consideration of which the creditors released the debtor from all actions, debts, contracts, &c.Held, that the deed was valid and date hereof, and 1s. 6d. at the expiration of seven calendar months from the date hereof. Now this indenture witnesseth that in consideration of the premises and of the release hereinafter contained, he the said Stephen Gibson doth hereby for himself, his heirs, executors and administrators, covenant and agree with the said several creditors, and with each of them respectively, their and each of their executors, administrators, and assigns respectively, that he, the said Stephen Gibson shall and will pay unto the said non-assenting creditors respectively, or to their respective executors, administrators, or assigns, the said composition of 5s. in the pound upon the amount of their several and respective debts, by three instalments, namely 2s. in the pound at the pleadable in bar to an action by a creditor. expiration of one calendar month from the date hereof, 1s. 6d. in the pound at the expiration of four calendar months from the date hereof, and 1s. 6d. in the pound at the expiration of seven calendar months from the date hereof. And this indenture further witnesseth that, in consideration of the premises, they the said creditors do, and each and every of them doth, hereby respectively and absolutely release and discharge the said Stephen Gibson, his heirs, executors, administrators and assigns, and his and their estate and effects, from all actions, suits, debts, sum and sums of money, accounts, reckonings, contracts, agreements, promises, bills, notes, judgments, claims and demands whatsoever, at law or in equity, which they or any of them now have or hath against the said Stephen Gibson, his heirs, executors, administrators and assigns: Provided always, that the said release shall not in anywise prejudice or extend, or be construed to extend, to prevent any of the creditors from claiming or realizing any security for any such debt, claim or demand now held by them respectively, or any of them, or from suing any person or persons other than the said Stephen Gibson liable to payment thereof for the recovery thereof, less the amount received by them, or any of them, under these presents, nor in any way prejudice or affect the rights or remedies of any such creditors, except as against the said Stephen Gibson, to which, but for the signing or agreeing to these presents, they might severally have recourse. And it is hereby declared that this indenture is intended to be a deed within the meaning of the Bankruptcy Act, 1861, and is made expressly for and to be applied for and towards the equal benefit of the whole of the creditors of the said Stephen Gibson. In witness whereof the said parties to these presents have hereunto set their hands and seals the day and year aforesaid."-Then followed averments 1865. GRESTY V. GIBSON. 1865. GRESTY v. GIBSON. that three-fourths in value of the creditors of the defendant, whose debts respectively amounted to 107. and upwards, had in writing assented to and approved of the deed; and that all the statutory conditions necessary to render the deed binding on non-assenting creditors had been complied with. Demurrer, and joinder therein. McIntyre, in support of the demurrer (a).-The deed is made between the debtor of the one part, and all his creditors of the other part; and the debtor covenants to pay "the said creditors" respectively the composition by three instalments. A non-assenting creditor cannot sue on that covenant. The term "all his creditors" is too general a description to make creditors who have not executed the deed parties to it: Ex parte Cockburn (b). Then no creditor can sue upon the covenant unless he has executed the deed: The Chesterfield and Midland Silkstone Colliery Company v. Hawkins (c). There is therefore an inequality between the two classes of creditors. [Bramwell, B.-In Benham v. Broadhurst (d) the covenant was with the executing creditors individually, so that no other creditors could sue on the deed.]-He also argued that the deed was unreasonable because the consideration for the release was only the covenant to pay the composition money, and not its payment, and that the release extended to causes of (a) He took a preliminary objection that the deed, having been made after action brought, should have been pleaded in bar of the further maintenance of the-action, citing Oppenheimer v. Grieves, 7 H. & N. 533. But the Court said that under the 68th section of the Common Law Procedure (c) 3 H. & C. 677. |