action in respect of which the composition would not be payable.

Holker, in support of the plea (a).—Any creditor may sue upon the covenant in this deed. Ex parte Cockburn proceeded on the ground of inequality. In The Chesterield and Midland Silkstone Colliery v. Hawkins the covenant was with the parties who executed the deed and all other creditors bound by it; but no creditors were parties to the deed except those who executed it. [Martin, B.-A person may become a party to a deed either by being named or described in it. Here the plaintiff is made a party because he is included in the description "all the creditors" of the debtor.] It is not necessary that a party should be described in the deed by his name of baptism and surname ; if he is sufficiently designated that is enough to entitle him to sue for breach of covenant: The Sunderland Marine Insurance Company v. Kearney (b), Addison on Contracts, p. 939, 4th ed. The maxim applies "certum est quod certum reddi potest." [Pollock, C. B.—If the parties to a deed were "all the members of a partnership firm on a particular day," that might be a sufficient designation, because there would be no difficulty in ascertaining who were the members of the firm on that day; but can it be easily ascertained who are creditors? A man to whom money is owing may be a creditor in one sense, but if the debtor has a counter claim of larger amount he is not, for he cannot prove his debt.] Creditors holding security are to be reckoned in estimating the requisite majority: Whittaker v. Lowe (c). [Martin, B.-Suppose a person sued upon the deed, and the debtor denied that he was a

(a) The argument was adjourned and resumed in Hilary Term (Jan. 17).

(b) 16 Q. B. 925.
(c) Post, p. 109.

1865.

GRESTY

V.

GIBSON

EXCHEQUER REPORTS.

creditor; is it to depend on the result of the trial whether or no he is a party?] This view is supported by the judgment of Blackburn, J., in Dingwall v. Edwards (a), where the parties of the first part were "all and every the creditors and creditor" of the debtor. In Dewhirst v. Jones (b), where" the creditors" were also parties, Martin, B., in the course of the argument, said :-"I apprehend that a nonexecuting creditor might sue on this deed if he averred in the declaration that he was a creditor."-He also argued that there was no inadequacy of consideration for the release, citing Johnson v. Barratt (c), and Stone v. Jellicoe (d); and that the release was confined to debts the subject of the composition, citing Hazelgrove v. House (e).

McIntyre, in reply.—In Dingwall v. Edwards this point was not raised. The Sunderland Marine Insurance Company v. Kearney was the case of a policy of insurance by deed poll, and the statute 28 Geo. 3, c. 56, only requires the name or names of one of the persons interested to be inserted therein. The distinction in this respect between a deed poll and a deed inter partes has been long established. The maxim "certum est quod certum reddi potest" is only applicable where there is a defined class, not where it is uncertain and can only be ascertained by the result of an action.

Cur. adv. vult.

The judgment of the Court (f) was delivered in Hilary Term, 1866 (Jan. 18), by

POLLOCK, C. B.-This was an action on a promissory

(a) 4 B. & S. 739. 750.

(b) 3 H. & C. 60.

(c) Ante, p. 16.

(e) 35 L. J. Q. B. 1.

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

(d) 3 H. & C. 263.

note, and there was a plea of a deed of composition under the Bankruptcy Act, 1861, made between the debtor of the one part, and "all his creditors" of the other part, and the debtor covenanted with "the said several creditors, and with each of them respectively," to pay the composition by instalments. The question was, whether a non-assenting creditor could sue on that covenant. We reserved our judgment, and have since found a case of Lay v. Mottram (a), which is in point. That was an action on bills of exchange, to which the defendant pleaded a composition deed, which we cannot distinguish from the present, and the Court of Common Pleas held the plea good, and gave judgment for the defendant. On the authority of that case we think the defendant entitled to judgment on this demurrer.

Judgment for the defendant.

(a) 19 C. B. N. S. 479.

1865.

GRESTY

V.

GIBSON.

FINNEY V. FORWARD and Another.

Nov. 8.

THIS

HIS was an action of trover for 133 bales of cotton. In an action The defendant pleaded, not guilty, and not possessed.

After issue joined the defendants took out a summons at Chambers for leave to deliver interrogatories to the plaintiff. The affidavit of the defendants in support of the

application stated that the action was brought to recover the value of 133 bales of cotton. In the month of March, 1865, Messrs. Saunders & Son, of Nassau, in the Island of New Providence, consigned to the defendants 133 bales

VOL. IV.-H. & C.

D

EXCH.

of trover the defendant will not be allowed to interrogate

the plaintiff as

to the nature

of the title

by which he

claims the goods.

1865.

FINNEY

v.

FORWARD.

of cotton, accompanying the same with their draft on W.
F. De La Rue & Co., London, for 24887. 17s. 5d., payable
at thirty days after sight. On receipt of such draft the
defendants caused the same to be presented to the said W.
F. De La Rue & Co. for acceptance, who refused to accept
the same.
The defendants also caused the said draft to be
presented for payment at maturity to the said W. F. De La
Rue & Co., but they also refused to pay it; and thereupon
the defendants caused the said cotton to be sold, on behalf
of the said Messrs. Saunders & Son, in the usual way, for
the best prices that could be obtained for the same. It
was not until some time after the said cotton had been
sold as aforesaid that the defendants had any knowledge
whatever that the present plaintiff claimed to have any
interest in the same, and the defendants are now in entire
ignorance in what way or manner he has any right or title
thereto, his name not having been used or referred to by
Messrs. Saunders & Son on the occasion of their consigning
the cotton as before stated.—There were further affidavits
by the defendants and their attorney that they believed
that the defendants had a good defence to the action on
the merits; that the application was not for the purpose
of delay; and that they believed that the defendants would
derive material advantage from the discovery.

The interrogatories proposed to be delivered (so far as material) were as follows:

1. How and when did you become possessed of or entitled to the cotton, the subject of this action, and where and in whose hands was the said cotton when became possessed of it?

you first

2. When did you part with the possession of the said cotton, and for what purpose, and under what circum

stances, and to whom?

cotton come after you

Into whose possession did the said parted with it? Did you sell or

pledge or otherwise deal with the said cotton, and, if so, to whom, and how?

3. Do you know William De La Rue? What is he, and what is his business, and how and where carried on? Have you not had dealings with him, and, if so, of what kind? Was not the said cotton in his possession, or in the possession of some person there on his behalf, at Nassau, in March, 1865, or about that time? How and when did it get into his or their possession, and for what purpose, and with what object? Was it not entrusted to him by you or by some person who acted by your authority, or derived or claimed title to it from or through you, in order that it might be sent to Liverpool, or to some other port for sale?

4. Has the said William De La Rue, or any other and what person or persons, advanced you money upon the security of the said cotton? Were you indebted to him or them whilst the said cotton was in his or their possession, for the money so advanced, or for any other money in respect of which he or they claimed to hold the said

cotton?

The summons was heard before Martin, B., who declined to make an order, whereupon

Crompton Hutton now moved for a rule calling on the plaintiff to shew cause why the defendants should not be at liberty to deliver to him the above mentioned interrogatories.-The 51st section of the Common Law Procedure Act, 1854 (17 & 18 Vict. c. 125), enables either party, by leave of the Court or a Judge, to deliver to the opposite party interrogatories in writing upon any matter as to which discovery may be sought. The rule in equity is that a party is entitled to a discovery of such facts as relate to his own case, but not to a discovery of the manner

1865.

FINNEY

v.

FORWARD.