first for his bill of 881. 14s., then for Benjamin's bill for 801., then for his own of 251.; that other incumbrancers followed him, and that the Oriental Bank Corporation came last. From this decision the defendants, the Oriental Bank Corporation, and the plaintiff, Calisher, severally appealed. Sir R. Baggallay and Mr. Freeman, for the Oriental Bank Corporation.-The Master of the Rolls has postponed our security to all the other charges, even those which are subsequent to ours in point of date, because he held that as our notice was left at the office of Messrs. Hopkinson & Sons on the 7th of December, the day before the proceeds of the commission were transferred to Forbes' account, it was totally ineffectual and void. His Lordship believed that he was following the decision of the present Lord Chancellor when Vice Chancellor in Buller v Plunkett, 1 Jo. & H. 441; s. c. 30 Law J. Rep. (N.S.) Chanc. 641. But even if that case be law, and we contend that it is not, it did not go so far as the Master of the Rolls has gone here. In that case the Vice Chancellor held that notice to a party, who might become a trustee or stakeholder before the fund came under his control, is wholly ineffectual. That was not the case here. On the 7th of December the proceeds of the commission were in Messrs. Hopkinson's hands, although they had not been transferred to Forbes' account. They were, therefore, when our notice was delivered, inchoate trustees and had the fund under their control. It follows that as our notice was effectual and as it was first in point of date, we ought to have priority over all the other incumbrancers. But if that is putting our case too high, it must at least be held that our notice, which was left after office hours on the 7th, was a valid notice on the morning of the 8th. We then are as to notice exactly in the same position as the other incumbrancers, and the priorities must be settled by the dates of the charges. In that case we come third, after Rubinstein and Calisher. Mr. Swanston and Mr. Kisch, for the plaintiff on the second appeal.-We must come before Rubinstein. Our original bill, which covered further advances, was in March, 1869. The renewed bill in August represents the original bill and takes its place. We had no notice of Rubinstein's charge or of any other charge when we discounted the third bill for 251. We are entitled, therefore, to add that to our first charge, as also the value of Benjamin's bill which we purchased. As to the Oriental Bank Corporation, the Master of the Rolls was quite right; the notice left on the 7th, though after business hours, must be held to have been given on the 7th and not on the 8th: that was decided in Papillon v. Brunton, 5 Hurl. and N., 518; s. c. 29 Law J. Rep. (N.S.) Exch. 265; and that being so it was wholly ineffectual Buller v. Plunkett (supra); Webster v. Webster, 31 Beav. 393; s. c. 31 Law J. Rep. (N.S.) Chanc. 655; Somerset v. Cox, 33 Beav. 634; s. c. 33 Law J. Rep. (N.S.) Chanc. 490; Yates v. Cox, 17 W. R. 20; Boss v. Hopkinson, 18 W. R. 725. [THE COURT intimated that they were not prepared to allow the amount of Benjamin's bill to be added to the plaintiff's first charge.] Then as to the rest, its real date is the 2nd of August, the date of the second bill; the first debt which was prior to ours was gone, and ours was incurred on the 4th of June, it follows that we have properly the first charge. Mr. J. W. Chitty, for Messrs. Hopkinson & Sons. LORD JUSTICE JAMES said that the only substantial question which arose in this suit was with regard to the effect of the notice which was left at Messrs. Hopkinson & Sons' office by the Oriental Bank, after business hours on the 7th of December. In his Lordship's opinion it was really the same thing as if it had been left at the same time with all the other notices, which were poured in on the morning of the 8th as soon as the doors of the Bank were opened. That being so, it must be taken that all the notices were given on that morning at the same time, and then, according to the authorities, the priorities of the various incumbrancers would depend upon the dates of their securities. Now beyond all doubt Calisher's charge was first in point of date, and in his Lordship's opinion it covered the further advances, for they were made without notice, as his Lordship thought, of the subsequent charges, but it would not extend to the third bill of exchange, the one which he had obtained from Benjamin, for Forbes had never intended to charge his commission with that in favour of Calisher; besides it was probable that Calisher had acquired it after the 8th of December, and therefore could get no priority in respect of it, as he had on that day notice of the other incumbrances. Calisher therefore came first, Rubinstein second, and the Oriental Bank third. The order of the Master of the Rolls must be varied accordingly. LORD JUSTICE MELLISH was also of opinion that the notice left at Messrs. Hopkinson & Sons' office after business hours only operated as a notice to them from the time when in the ordinary course of business it would be opened and read, and that was nine o'clock on the morning of the 8th of December. This case was not like the one cited in the Exchequer, the case of Papillon v. Brunton. There the relationship of landlord and tenant existed between the parties, and would make a notice left by the tenant at the landlord's house, or at the place of business of his agent, good notice from the day on which it was served; besides, the jury in that case found that the landlord's agent ought to have had some one at his office to receive and open the letter taining the notice on the day on which it arrived, and that was the same thing (as was remarked by Mr. Baron Bramwell) as finding that it arrived within the ordinary business hours. That being so, his Lordship agreed with the Lord Justice as to the priorities of the incumbrancers, and the order would be so drawn up. con Solicitors-Messrs. E. J. Sydney & Son, for plaintiff; Messrs. Fuller & Saltwell, for the Oriental Bank; Mr. T. Russell Kent, for Rubinstein; Messrs. F. Richardson & Sadler, for Hopkinson & Sons. The Bankruptcy Act, 1861, ss. 153, 154, 192-Inspectorship Deed-Companies Act, 1862, ss. 75, 77—Transferor and Transferee of Shares Bankruptcy of TransfereeCalls-Proof-Plea. A claim by the transferor of shares in a limited company, to be indemnified out of the estate of his bankrupt transferee against calls made on the transferor after the transfer, is not a debt proveable under the Bankruptcy Act, 1861, ss. 153 and 154: and a plea of the effect of an inspectorship deed under s. 192 of that Act is no defence to a creditor's suit in equity to administer the estate of the transferee. The bill in this suit was filed by John Holmes, on behalf of himself and all other creditors of Frederick Symons (deceased) against Walter Symons, James Russell Miller, and Hannah Miller, the administrators of Frederick Symons' estate. The facts of the case were these: previously to December, 1863, the plaintiff applied to the directors of the Contract Corporation (Limited) for an allotment of ten shares to himself, and ten to Robert White. In December, 1863, the plaintiff, on the part of himself and Robert White, instructed Messrs Castello, brokers, to sell the shares. They accordingly sold them to Frederick Symons for 2001., for (as was ultimately agreed) the 30th of March, 1864, as the settling day. On that day the plaintiff and Robert White executed each for himself a transfer of the shares, and delivered the same to the Messrs. Castello, with the letters of allotment, and the banker's receipts for the money paid thereon; but the share certificates had not then been issued. On the 3rd of April, 1864, the Messrs. Castello duly completed the sale and transfer of the shares to Frederick Symons; who thereupon became liable to indemnify the plaintiff and Robert White against all payments to be incurred by them respectively on account of the shares. The transfers, however, did not contain any contract or covenant of indemnity. Frederick Symons did not execute the transfers, or get them re gistered at the office of the Contract Corporation. In April, 1866, the Corporation was ordered to be wound up compulsorily. The plaintiff and Robert White remained on the list of contributories, and a motion to remove them therefrom was dismissed. On the 11th of July, 1866, Frederick Symons executed a deed of inspectorship in accordance with sec. 192 of the Bankruptcy Act, 1861. The deed was made between Frederick Symons of the first part, Charles Fitch Kemp and Thomas Shepherd Richardson, the inspectors, of the second part, and the creditors therein described of the third part. It provided (inter alia) that the estate should be administered in accordance with the principles of the then bankrupt law in England; and as it was intended that the provisions thereby made should be taken and accepted by the creditors in lieu of, and substitution for, their several bills, claims, or demands in respect whereof dividends would become payable under the deed; anl as it was essential to the interests of the creditors, and for the better realisation of the estate, that the debtor should not be harassed by any proceedings thereafter to be commenced or prosecuted by any of the creditors in respect of any such debt, claim, or demand, it declared and agreed that if any of the creditors should, at any time thereafter, whilst that deed was in force, commence or prosecute any action, suit, or other proceeding against the debtor in respect of any such debt, claim, or demand as aforesaid, that deed and the provisions therein contained should operate and have the same force and effect as an order of discharge which had taken effect under the Bankruptcy Act, 1861; and that declaration and agreement might be pleaded and used in bar of or as a defence or answer to every such action, suit, or other proceeding in like manner and with the same effect as an order of discharge under the Bankruptcy Act, 1861, might be pleaded and used in case the debtor had been adjudicated bankrupt on the day of the date of that deed, and the debtor had obtained his order of discharge under such adjudication. And it was further agreed that that deed and everything therein contained should be construed so as to give effect to such intention, and so that the administration of the estate thereunder should be in accordance with the said law of bankruptcy and the rules and practice of the Court of Bankruptcy in England, or as near thereto as the circumstances would admit of, anything therein contained to the contrary notwithstanding. Frederick Symons, in his accounts delivered to the registrar with the deed, entered the names of the plaintiff and Robert White as creditors for the aggregate sum of 2007., as the amount of his liability on the shares, and for no other sum. The plaintiff and Robert White did not, nor did either of them, execute or assent to the deed. The plaintiff had been forced to pay and had paid for calls to the liquidator of the Contract Corporation between the 24th of September, 1867, and the 25th of May, 1870, sums amounting to 9701. Frederick Symons died in August, 1870, intestate; and letters of administration of his estate and effects were on the 17th of November, 1870, duly granted to the defendants. The plaintiff then applied to them for indemnity against the payments aforesaid; but they declined to entertain the application on the ground that his claim was barred by the inspectorship deed. The bill in the suit prayed a declaration that the intestate and his estate were liable for the amount of the calls aforesaid; for an account of what was due to the plaintiff and the other creditors, and the application of the estate of the intestate in payment of their claims, for a receiver and an injunction. The defendant, Walter Symons, put in a plea in bar to the bill, which was [omitting the formal parts] as follows: non "That the conditions necessary to make the deed of inspectorship of the 11th of July, 1866, binding on assenting creditors, under the provisions of the Bankruptcy Act, 1861, were fulfilled that the plaintiff was at the time of the making of the deed creditor of Frederick Symons within the meaning of the Bankruptcy Act, 1861, in respect of the claim sought to be established by the bill; and that all conditions were per : formed necessary to render the plaintiff bound by the deed, as if he had been a party thereto, and had executed the same. Then followed an averment of the truth of all the matters and things so pleaded. The validity of the plea depended on the construction of the Bankruptcy Act, 1861, sections 153 and 154, and the Companies Act 1862, sections 75 and 77. By the Bankruptcy Act, 1861, section 153, it is enacted that "If any bankrupt shall at the time of adjudication be liable by reason of any contract or promise to a demand in the nature of damages which have not been, and cannot be, otherwise liquidated or ascertained, it shall be lawful for the Court acting in prosecution of such bankruptcy to direct such damages to be assessed by a jury, either before itself or in a court of law, and to give all necessary directions for such purpose; and the amount of damage when assessed shall be proveable as if a debt due at the time of the bankruptcy; provided that in case all necessary parties agree, the Court shall have power to assess such damages without the intervention of a jury or a reference to a court of law." And by section 154, that "If any bankrupt shall at the time of adjudication be liable by reason of any contract or promise to pay premiums upon any policy of insurance, or any other sums of money, whether yearly or otherwise, or to repay to or indemnify any person against any such payments, the person entitled to the benefit of such contract or promise may if he think fit apply to the Court to set a value upon his interest under such contract or promise, and the Court is hereby required to ascertain the value thereof, and to admit such person to prove the amount so ascertained, and to receive dividends thereon." By the Companies Act, 1862, section 75, it is enacted that "The liability of any person to contribute to the assets of a company under this Act, in the event of the same being wound up, shall be deemed to create a debt (in England and Ireland of the nature of specialty) accruing due from such person at the time when his liability commenced, but payable at the time, or respective times, when calls are made as hereinafter mentioned for enforcing such liability; and it shall be lawful in the case of bankruptcy of any contributory to prove against his estate the estimated value of his liability to future calls as well as calls already made." And by section 77, that "If any contributory becomes bankrupt either before or after he has been placed on the list of contributories his assignees shall be deemed to represent such bankrupt for all the purposes of the winding up, and shall be deemed to be contributories accordingly, and may be called upon to admit to proof against the estate of such bankrupt or otherwise to allow to be paid out of his assets in due course of law any moneys due from such bankrupt in respect of his liability to contribute to the assets of the company being wound up." Mr. Greene and Mr. Maidlow, for the defendant. If there had been an adjudication in bankruptcy the plaintiff would have been bound by it. But the deed is equivalent to an adjudication. [Mr. Dickinson.-You do not plead the deed as a release.] We do in effect, as a release and a bar. The deed is set out in the bill, and the plea states (with an averment) that all things necessary to make the deed binding on the plaintiff have been performed. The plea is therefore sufficient, and he must be held bound. The question, then, is whether his claim is one that could have been proved under the deed when it was executed? The claim is either a demand in the nature of damages, under the 153rd section (ubi supra), or a liability by reason of a contract or promise, under the 154th section (ubi supra). If the former, as the Contract Corporation is a limited company, the amount of damage could have been, and could now be, easily ascertained and proved under the deed. proved under the deed. If the latter, the plaintiff should have applied to the Court of Bankruptcy to set a value on it, so as to admit it to proof. [WICKENS, V.C.-What do you say is the force of the words, "If he think fit," in the 154th section ?] No doubt they give an option; but the question still is whether the damages can That case is the converse of this one Here the winding up order precedes the deed, which therefore is a bar— Re Bank of Hindustan, China and Ex parte Wilmot, re Thompson, 36 Re The Land Credit Company of Ire- But for the allegations in the bill that the plaintiff and White had not assented to or executed the deed, the bill would have been demurrable. We say, that on those authorities the plea must be allowed. Mr. Dickinson and Mr. Cutler, for the plaintiff. We waive all objections on the form of the plea. This case, then, is not one between a company and a shareholder, and the authorities cited have no application. In such a case, the Companies Act, 1862, s. 75, gives the statutable assistance required— Warburg v. Tucker, 5 E. & B. 384; 24 Law J. Rep. (N.S.) Q.B. 317 and in error; 28 Law J. Rep. (N.S.) Q.B. 56; E. B. & E. 914; was before the Bankruptcy Act, 1861. It was considered a hard case, and s. 154 was passed in consequence of it. The payment of calls is not like the payment of premiums or the other sums mentioned in that section. There is no authority directly in point under s. 154; but the cases under s. 153 shew that if the credi tor's demand is not asserted under it, he is left to the remedy which he had before the Act of 1861. By s. 154 the proof is extended, and if a creditor avails himself of that extension, he gets the benefit of the bankruptcy but loses his right to go against the after acquired estate In re Penton, 35 Law J. Rep. (N.S.) Robertson v. Goss, 36 Law J. Rep. The plaintiff here has never gone in under the bankruptcy Ex parte Mendel, 1 De Gex, J. & S. 330; s. c. 33 Law J. Rep. (N.S.) Baukr. 14. The plaintiff must shew three things (a.) That there is an express contract, or its equivalent, to indemnify him; and that with respect to it the statute is not to be extended to calls Johnson v. Shapte, 38 Law J. Rep. (N.S.) Q.B. 318; s. c. Law Rep. 4 Q.B. 700. Here the right to the indemnity arose, not from an express contract, but from the relationship of vendor and purchaser which subsisted between the parties, which is equivalent Martin's Patent Anchor Company (Lim.) v. Morton, 37 Law J. Rep. (N.S.) Q.B. 98; s. c. Law Rep. 3 Q.B. 306; Cary v. Dawson, 38 Law J. Rep. (N.S.) Q.B. 300; s. c. Law Rep. 4 Q.B. 568. Mudge v. Rowan, 37 Law J. Rep. (N.S.) Exch. 79; s. c. Law Rep. 3 Exch. 85. (b) The plaintiff must also show that the cause of action in respect of his contract is complete Ex parte Meredith (ubi supra). (c) That the 153rd and 154th sections are for the benefit of the creditors; that they may elect under them; and that they apply to actual bankruptcies and not deeds of this kind Sharland v. Spence, 36 Law J. Rep. (N.S.) C.P. 230; s. c. Law Rep. 2 C.P. 456. We say that on the whole case the plaintiff has made out those propositions; that |