No. CCCXXXVIII Title to Orders. No. CCCXXXVIII. A Certificate of the Nomination of a Curate as a Title for Obs. By the 33rd canon, it is ordained, that no person shall be admitted into sacred orders, except he shall exhibit to the bishop a presentation of himself to some ecclesiastical preferment then void in the diocese, or a certificate that he is provided with some church within the diocese where he may attend the cure of souls. If a bishop ordains any person without any of these titles, he must maintain him until he shall prefer him to some ecclesiastical living, under the penalty of being suspended from giving orders for the space of one year, Gibs. Cod. 161. To the Right Rev. Father in God Lord Bishop of These are to certify to your Lordship that I (rector) rector (or " vicar") of in the co of do hby nominate and appoint A. B. to perform the office of a curate in my church of afd and do promise to allow him the yearly sum of £ for his maintenance in the same and to continue him to officiate as curate in my sd church until he shall be provided with some other certain place where he may exercise his ministerial functions unless on account of any fault by him committed he shall be lfully removed from performing the office of a curate in my sd church by your Lordship or your successor And I hby solemnly declare that I do not fraudulently give this certificate to intitle the sd A. B. to receive holy orders but with a real intention to employ him in my sd church according to what is before expssd As witness my hand this day of No. CCCXXXIX. On Land, CHARGES. No. CCCXXXIX. Charge of a Bond-debt on Land, by Indorsement on the Bond. Obs. The ad valorem stamp being impressed on the bond accompanying the deposit of deeds, the common deed stamp only will be necessary upon this instrument, see BONDS and MORTGAGES. Know all Men by these Prests That I the within-named (obligor) having deposited the title deeds of or relating to my No. CCCXXXIX. On Land. Annuity, &c. by way of further Charge, see post, VOL. I. CHARTER PARTIES, CLAUSES IN DEEDS, COMMON FORMS, See post, INDEX TO PRECEDENTS. U U Composition. Modes of ar rangement between a debtor and his credi. tors. Deed of inspection. Deed of composition. COMPOSITION. 1. Modes of Arrangement between a Deed of Inspection. tate. 2. Assignment for a Composition by 3. Assent of the Creditor expressed or 4. Terms of the Contract to be strictly complied with by Debtor. 5. When Securities can be retained. 9. Assignment of a Person's Property 10. No preference in Payments under a Trust Deed. 11. Stamp on a Composition Deed. SECT. 1. Creditors may enter into any arrangements with a debtor which best suit the convenience of the parties; and the courts may will construe all composition contracts so as to give full effect to them. The mode of effecting such an arrangement must depend upon the circumstances of the case. When a debtor wishes only for time, a simple agreement to that effect may be sufficient; but the more usual mode in this case is to execute a deed called a Deed of Inspection, by which a debtor is enabled to carry on his business for the benefit of the creditors under the inspection of trustees. Another mode of effecting an arrangement is by the creditors agreeing to accept a composition, or a part of their respective debts, in satisfaction of the whole; and the instrument by which this is effected is called a Deed of Composition; frequently a memorandum of an agreement to accept a composition is drawn up at the meeting of the creditors, as a preliminary to a more formal deed. In both these deeds, it is usual to insert a covenant, called a Letter of Licence, whereby the creditors agree to give the debtor, for a certain time, liberty to pursue his affairs without the danger of being arrested or sued. Sometimes this Assignment of covenant is given by a separate instrument. The last and most frequent mode of effecting such an arrangement, is by the debtor conveying or assigning his estate to trustees, for the benefit of the creditors, which may be done by one or by separate instruments, according to the nature of the transaction. Sometimes debtors who are not traders voluntarily adopt this mode of paying their debts, in which case the creditors are usually not parties. Letter of licence. debtor's estate. Assignment for a composition by deed or parol. 2. Every agreement between a debtor and his creditors ought to be by deed; and if the instrument is to operate as a release or discharge at law of a specialty debt, it cannot be otherwise, Lowe v. Eginton, 7 Price, 604; 6 Petersd. Abridg. 2. At law, an agreement not under seal to accept a less sum in satisfaction of a greater one than is due, is Composition. not binding, Co. Litt. 212, b.; Pennel's Case, 5 Co. 117; although followed by acceptance of payments, Heathcote v. Crookshanks, 2 T. R.; Fitch v. Sutton, 5 E. 230; unless there be some new and sufficient consideration, Steinman v. Magnus, 11 E. 390; but an agreement not under seal is not of itself evidence of the consideration, 7 T. R. 350, n. See AGREEMENTS, Pref. sect. 7. 3. The assent of a creditor to a composition contract is necessary to Assent of the creditor, exmake it binding on him; but this assent may be either expressed or pressed or implied, Butler v. Rhodes, 1 Esp. 236; and a verbal promise to ac- implied. cept a composition and execute the deed will prevent the creditor from suing for the original cause of action, Bradley v. Gregory, 2 Campb. 383. So in equity, creditors are in general as much bound by acting under a deed of composition as if they had signed the deed, Ex parte Sadler, 15 Ves. 52; but a creditor is not bound by a composition deed to which he is a party, if he have been induced to sign it by any misrepresentation made to him, Cooling v. Noyes, 6 T. R. 263. strictly complied with by debtor. contract to be 4. If the terms of the composition are not strictly complied with by Terms of the the debtor, the creditor is released from his obligation, Cranley V. Hillary, 2 M. & S. 120; and a court of equity will not relieve the debtor, if he do not strictly perform the agreement, 1 Eq. Ab. 28; Rose v. Rose, Ambl. 332; Mackenzie v. Mackenzie, 16 Ves. 372. So where the creditors had agreed to take a composition, and after the first payment the debtor became a bankrupt, it was held that the creditors were intitled to prove under the commission for the residue, Ex parte Bennet, 2 Atk. 528; Ex parte Vere re Palmer, 1 Rose, 281; Ex parte Peel, ib. 434. ties can be retained. 5. If the composition deed contain no stipulation respecting securi- When securities, a creditor may retain them, provided he deduct the sum to be recovered upon the security, and take a composition for no more than what remains due, Thomas v. Courtenay, 1 B. & A. 1. But where a creditor having received the full amount of his composition, and given the debtor his release, recovered sums on bills formerly given as a security, such sums have been considered as money received to the debtor's use, Stock v. Mawson, 1 B. & P. 286. So where a creditor, after having executed a deed of composition, refused to set the amount of his debt to his name, upon the ground of his having a security, he was held to have bound himself to the extent of his then existing debt, and that he could not recover upon the security, Harrhy v. Wall, 1 B. & A. 103; S. C. 2 Stark. 195; Holmer v. Viner, 1 Esp. 131. Composition. Composition contracts must be fair. Covenant not to sue. Release. Assignment of 6. A fair and equal composition contract, without fraud or contrivance, will be established both at law and in equity; but any secret agreement between a debtor and a creditor, to secure to the latter payment of a sum beyond that secured to the others, is not only voidable but absolutely void at law, Cockshott v. Bennett, 2 T. R. 763; Jackson v. Lomas, 4 T. R. 166; Feise v. Randall, 1 Esp. 224; and courts of equity will not enforce any agreement securing to some creditors who had executed a deed of composition a greater advantage than the other creditors would have under the deed, and without their knowledge, Child v. Danbridge, 2 Vern. 72; Middleton v. Onslor, 1 P. Wms. 708; Manson v. Stock, 6 Ves. 300; Cecil v. Plaistow, 1 Anst. 202; Fawcett v. Gee, 3 Anst. 910; and a debtor may recover back money which he has been compelled to pay in consequence of any private bargain with a creditor, Smith v. Cuff, 6 M. & S. 160; yet any advantage which a creditor may obtain, not in fraud of the other creditors, has been held to be good, Feize v. Randall, 6 T. R. 146; and a preference may be rendered valid in equity by the agree ment being notified to the other creditors and sureties, Jackman v. Mitchell, 13 Ves. 586. By the 6 G. 4, c. 16, s. 133, it is provided, that where, at two successive meetings of creditors, after due notice given, nine-tenths in number and value of those present agree to accept a composition, the Lord Chancellor may supersede the commission. 7. A covenant not to sue the debtor at all is a release, and the covenant may be pleaded in bar of an action; but a covenant not to sue within a given time is not a release, but a covenant, and remedy may be had on the covenant, Carivil v. Edwards, 1 Show, 330; Lacy v. Kinaston, 1 Ld. Raym. 690; S. C. Holt's Rep. 178; S. C. 1 Salk. 575; Dean v. Newhall, 8 T. R. 168. A condition not to sue a debtor within a named time under a penalty does not extend to the executors, unless they are named in the deed, 1 Show. 331. 8. A release of partnership debts executed by one partner concludes the firm, contrary to the general rule, that one partner cannot bind another by deed, Aston v. Booth, 4 B. Moore, 192. If a release is to be given to only one out of two or more joint debtors, it must be expressly so stated, otherwise it will operate as a discharge to both, Solly v. Forbes, 2 Bing. & Brod. 38. As to releases, see further RELEASE. 9. An assignment by a person not a trader, or not subject to the peity in trust, bankrupt laws, of all his property for the benefit of creditors, is valid, although a preference be given to some creditors above others, Estrick v. Caillaud, 5 T. R. 424; and it be made to defeat a creditor when valid. |