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1828.

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ditors, from the said firm of Easterby and Co. They do re

lease, but not the estate of Ellill, or the Pullers, of and from MALTBY

all judgments, bonds, bills, notes, and other securities, Carstairs. made, given, or entered into, for securing the payment of

the said debts, &c. which they might be entitled to, against the firm of Easterby and Co, or against the Pullers; subject, and without prejudice, nevertheless, to the claims and demands of the said creditors respectively, under and by virtue of the trusts and provisions hereinbefore contained. Now this proviso certainly contains very general words ; but the question is, looking at the creditors, whose object was the payment of the debts of Easterby and Co., and looking at the whole context of the deed, whether the bills that related to the partnership of Easterby and Co. were to be discharged; and whether these qualifying words would not authorize the Court to say, that if there are other demands not relating to the partnership, it is not the intent of the deed that they should be discharged.” His lordship afterwards (a) sums up the case in these words : “ The first question here is, are these bills of Slade in the hands of the Kensingtons? 'Are they bills for debts due and owing to them respectively from Easterby and Co.? They are not. They are not such bills as are described in the former part of the deed. As they do not fall within even the description of the bills that were to be delivered up, does not the question come to this ?- what they have engaged, or have not engaged, to deliver up by executing this instrument? I am of opinion they meant to discharge all debts due on account of this partnership. Have they, or have they not, by this deed, released any bills of exchange, in respect of any debts due, but by Easterby and Co.? I think they have not. To put it in another way-If they did mean to discharge any other debts, it must be by some other means, and not by any of the clauses or provisions of this deed. This deed, in my judgment, meant to discharge the debts of Easterby and Co. in reference to the mining

(a) 1 Buck, 599.

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concern, It proceeds upon calculations that there would be sufficient to pay every body who had any demands on

MALTBY the mining concern, because the creditors seem to me to have had the caution to say,--should you mean any thing CARSTAIRS. more than to discharge the debts of the mining concern, we beg to have a reservation against names which are other names than those of Easterby and Co., as acceptors, in our possession. And then the question is, was it not competent for them to make that bargain, and for the other party to accept it? My opinion is, that it was competent for the parties to make the bargain they have entered into, and therefore I can see nothing to prevent the assignees of the Kensingtons from taking the benefit of those acceptances of Slade.Those observations, and the general principles upon which they are founded, are expressly applicable to the present case, both as respects Lewis's acceptance, and the conveyance of the Bankside estate; and must decide the present question in favour of the defendants. The construction there put upon the deed is the very construction which the plaintiffs themselves bave put upon it, for they have paid Kensington and Co. money on account of the very demand, which they now contend was released by the deed. By that act they gave judgment against themselves upon this question, and they are estopped from using the only arguments upon which they could possibly rely,

F. Pollock, in reply. The argument last urged, with respect to the payment on account made by the plaintiffs to Kensington and Co., has no weight; because that was a conditional, payment only, subject to the question of the operation of the deed, and the extent of that operation. Looking at the deed altogether, it seems clear that the iņtention of all parties was, to extinguish the debt from Easterby and Co. to Kensington and Co., and that the deed was effectual to accomplish that object. One of the clauses of the deed, as pointed out by. Lord Eldon in his judgment

1828. in Ex parte Carstairs(u), seems quite decisive of the point;

for it is, “ that the several provisions rso proposedi to be MALTBY

made, are respectively intended to be, and shall be accepted CARSTAIRS. and taken, by whom? By the several and respective ete

ditors of the said co-partnership, in full satisfaction and discharge, of what.. Of their respective debts and des mands, as well against Easterby and Co, and the Pullers, or against the estate of the said John Ellill, or against the said Messrs. Atkinson and Mount, respectively." 7*{FON

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Judgment was now delivered by

Lord TenTeRDEN, C. J., who, after shortly 'recapitulating the facts of the case, thus proceeded. The question for our opinion was, whether the plaintiffs were entitled to recover the surplus of 18611. 3s. 10d. from the defendants. The plaintiffs' claim to recover is founded upon the supposed effect of the deed of arrangement executed for the payment of the debts of Easterby and Co. It appears that Kensington and Co. refused to execute that deed until they received from the plaintiffs a written assurance, that by so doing they should not prejudice their security on the premises lately belonging to the bankrupt Ellill, at Bankside. The greater part of the money now claimed by the plain tiffs was the produce of that security. It was contended, on their part, that this assurance was intended only to relate to the claim on these premises as a security for the cash balance due to Kensington and Co. from Ellill; but we think it is impossible to understand it in this 'narrow view, because the deed has not the slightest connection withi or relation to that fact. If, therefore, the execution of this deed shall have the effect which the plaintiffs now contend for, Kensington and Co. and the defendants, who represent them, may have great reason to complain that they have been deluded. Still, if this be the legal operation of thes deed, we, as a Court of law, are bound to give that effect

(a) '1 Buck, 591.

to it. We are of opinion, however, that the deed has not 1828. that effect. It is material to consider what the situation

MAETBY of Kensington and Co. on the one hand, and of the plaintiffs on the other, was, before the execution of the deed. CARSTAIRS. Nowy Kensington and Co. were the holders of bills of exchange to an amount exceeding 18,000l., drawn by Easterby and Co., and accepted by Ellill, and which had been deposited with them by Atkinson and Mount, as security for money advanced. They had, therefore, a right to prove those bills against the estate of Ellill under his commission. They were also the legal proprietors of the lease of the premises at Bankside, which had been conveyed to them by Ellill, with a power of sale; and they were holders of certain bills of exchange accepted by Slade, and of one bill of exchange accepted by Lewis. The Bankside premises had been conveyed, and the bills of exchange had been deposited, by Ellill, as a security not only for the cash balance that might be due from Ellill, but also for the payment of any bills of exchange bearing his name of which Kensington and Co. might by any other means become the holders. The bills to the amount of 18,0001. were of this description. The Bankside premises and the bills accepted by Slade and Lewis, were placed in the hands of Kensington and Co. as a security: but it does not appear of what precise value those securities might be. If the value of the whole, above the amount of Ellill's cash balance, be taken at 5,0001. or 6,0001., at which it will probably be not under-rated, that would leave them entitled to prove, on the narrowest and strictest view, for 12,000l. or 13,000l. It must, therefore, have been desirable to those who had the management of Ellill's affairs, and an interest in his funds, to relieve his estate from the proof on these bills; and this sufficiently accounts for the desire manifested by the plaintiffs that Kensington and Co. should execute the deed in question. By executing it, they really consented to give up, and did, in fact, give up the bills for 18,0001. The estate was thereby absolutely

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1828. relieved from that proof, and Kensington and Co. took the

chance of the produce of the estate of Easterby, and Co. MALTBY

under the deed, in the place of their right to a dividend CARSTAIRS. under Ellill's commission. The bills, to the amount of

18,0001. had been accepted by Ellill for the accommodation of Easterby and Co. There were various complicated dealings between those parties, and when the deed was made, it was unknown in whose favour the balance would be ultimately found to be. The deed contains a provision for paying to the assignees of Ellill a dividend out of the first portion of the fund, on the money that was then actually received by Kensington and Co., and the other persons therein named, out of the estate of Ellill; and a provision for a payment to be made out of the second or collateral fund of 18,600l. of the balance that might ultimately be found due to Ellill's estate. The deed is of itself of very unusual length, and very multifarious. . There is an abstract of it sufficient for the purposes of this cause in Mr. Buck's report of the case, Ex parte. Carstairs, before my Lord Eldon (a), and I do not think it necessary to repeat the detail of its provisions. It is clear that the great and primary object was the payment of the debts of Easterby and Co., and the relieving them from the pressure of the creditors. It is not clear that the execution of this instrument referred to any claim which did not furnish a direct charge against them. There were many bills of exchange outstanding, which did furnish such a charge against them, and also against some other persons, and Messrs. Puller, who had put their names to bills which had been sent abroad for the debts, or on account of Easterby and Co. These two gentlemen, Messrs. Puller, were to take a part in the whole arrangement, both in the sale and the purchase; and accordingly their names are mentioned in the clause of release by the creditors of Easterby and Co., although neither Atkinson and Mount, nor the estate of Ellill, are mentioned in that clause. They are mentioned in some of the recitals,

(a) i Buck, 560.

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