accident. The defendants therefore, in my opinion, are liable in this action. 1867 ROOTH บ. Rule discharged. THE NORTH Attorneys for plaintiff: Burt & Stevens, for Cutts, Sheffield. RAILWAY COMPANY. BRAUN v. WELLER. Deed under the Bankruptcy Act, 1861 (24 & 25 Vict. c. 134, s. 192)—Release— Action on Judgment-Time for Pleading-Practice. In a former action by the plaintiff against the defendant, the defendant pleaded never indebted, but afterwards withdrew his plea, on an agreement that judgment should not be signed before the 8th of May. On the 7th of May, the defendant registered a deed under the Bankruptcy Act, 1861, s. 192, containing a release from his creditors, but he did not plead it in the action. On the 8th, the plaintiff signed judgment. In an action brought on the judgment:— Held, that the interval between the registration of the deed and the signing of judgment did not give the defendant such an opportunity of pleading the deed as to disable him from availing himself of it in the second action. Held, also, that the agreement, under which the plea of never indebted was withdrawn, precluded the defendant from pleading any other plea in the former action, and that he might, therefore, now avail himself of the deed. Quare, whether, supposing the defendant had had the opportunity and power of pleading the deed, and had neglected to do so, he could now avail himself of it? (1) SPECIAL CASE, stating the following facts. (2) This was an action brought upon a judgment, recovered by the plaintiff against the defendant in this court. (1) See Staffordshire Banking Company v. Emmott, Weekly Notes, p. 71, February 23rd, 1867; to be reported. (2) The special case was stated after issue joined, but the pleadings were not made a part of the case. The substance of them was as follows: Declaration on a judgment recovered by the plaintiff against the defendant on the 8th of May, 1866. Plea-setting out, with the usual averments, a deed registered under the Bankruptcy Act, 1861, s. 192, which VOL. II. Feb. 12. 1867 BRAUN v. WELLER. The former action, which was for goods sold and delivered, and on accounts stated, was commenced on the 5th of April, 1866. On the 25th of April the defendant pleaded the general issue, but on the 30th withdrew his plea, upon the stipulation that judgment was not to be signed until the 8th of May following. On the 7th of May, a deed, executed by the defendant (as debtor) and assented to by the statutory number of creditors, was duly registered under s. 192 of the Bankruptcy Act, 1861, and by it the creditors of the defendant released him from all debts, demands, and suits. Notice of the registration of the deed was, on the same day, given to the plaintiff's attorney, the plaintiff not being an assenting creditor, and on the following day (the 8th of May) it was gazetted. On the 8th of May the plaintiff signed judgment. The question for the opinion of the Court was stated to be whether the plaintiff was entitled to recover in the present action. Jan. 16. J. Brown, Q.C., for the plaintiff. It appears upon the case that the deed contained a release; the plaintiff contends, therefore, that the defendant cannot now avail himself of it, if he had any opportunity of pleading it in answer to the original action. The dates shew that he had an opportunity: for the deed was registered on the 7th of May, and judgment was not signed till the 8th; the defendant had therefore the whole time up to 11 o'clock on the 8th, when the office opened, and before which judgment could not be signed: Connelly v. Bremner. (1) The substantial question therefore is, whether the case does not fall within the general rule laid down in Bradley v. Eyre, and Bradley v. Urquhart (2), that to an action or a sci. fa., on a judgment, the defendant cannot plead in bar anything which he could have and should have been pleaded in bar to was recovered; and it set out the record (1) Law Rep. 1 C. P. 557. pleaded to the original action. This rule was applied to a plea of a certificate in bankruptcy, in Todd v. Maxfield (1), and so far as s. 161 of the Bankruptcy Act, 1861, is concerned, that case is a direct authority in favour of the plaintiff; for that section does not for this purpose differ from the corresponding section of the two previous acts (6 Geo. 4, c. 16, s. 121; and 12 & 13 Vict. c. 106, s. 200). But further, it was lately held in this court, that the same rule deprived a debtor who had executed a deed similar to the present one, of the protection from process to which s. 198 would have otherwise entitled him : Whitmore v. Wakerley. (2) [KELLY, C.B., referred to Hartley v. Mare (3), and to the discussion of that case on the argument in Staffordshire Banking Company v. Emmott. (4)] In the case of Hartley v. Mare (3), the argument in support of the application by the inspectors turned principally on the fact that the objection was only valid against the debtor, and that his default could not affect the inspectors, who had never had any opportunity to plead the deed. [KELLY, C.B. But the judgment proceeded on the ground that the 198th section deprived the creditor of power to realize his judgment. There is no distinction made in the section between deeds which contain a release, and those which do not, nor between the position of the debtor himself in making such an application, and that of his inspector or trustees. The language of the section is prohibitory of the creditor making any process available. The plaintiff is in the same position as if he had executed a release at common law to the defendant. CHANNELL, B. Suppose the plaintiff had actually executed the release, and then gone on and signed judgment, could the defendant have then claimed the benefit of the deed?] It is submitted that he could not. [KELLY, C.B. Would it not, in such a case, be a fraud on the debtor, and upon the other creditors, that, after being a party to the arrangement, the plaintiff should issue execution against the goods to which the debtor must look for payment of that composi (1) 6 B. & C. 105. (2) 3 H. & C. 538; 34 L. J. (Ex.) 83. (3) 19 C. B. (N.S.) 85; 34 L. J. (C.P.) 187. (4) Weekly Notes, p. 71, February 23rd, 1867; to be reported. 1867 BRAUN V. WELLER. 1867 BRAUN v. WELLER. tion which the plaintiff and the other creditors had mutually agreed to accept?] Great injustice would be done by allowing the defendant to adopt this mode of proceeding, for, if he had pleaded the deed, the plaintiff would, under r. 22 of Trinity Term, 1853, have been entitled to his costs: Chitty Pr. vol. ii. p. 920, 12th ed.; whereas, by his abstaining from raising this defence, the plaintiff has incurred costs which he can neither prove under the deed nor sue the debtor for Willett v. Pringle (1); Ex parte Hill (2); Ex parte Poucher (3); and the plaintiff might be thus affected, although the deed were registered before declaration, and although issues of fact were afterwards tried, and verdict and judgment obtained upon them. [CHANNELL, B. Suppose no case had been stated, and the defendant had been put to plead these facts, in what form would his plea have been framed?] He could have framed no plea which would not have been open to the objection that he might have pleaded it to the original action. No plea could be based on s. 198, for it does not discharge the debt, or the judgment, or execution. [The Court inquired whether the case was to be treated in the same way as if it were a motion by the debtor to direct the sheriff to withdraw from possession in an execution issued upon the former judgment. J. Brown, Q.C., replied, that the question was, whether the plaintiff was entitled to maintain the present action, or whether the defendant could oppose any legal or equitable defence to it. A. L. Smith replied, that the question was, whether the plaintiff could recover the money.] A. L. Smith, for the defendant, relied upon the provisions of s. 198, and contended that the present action was brought in fraud of the act. If there had been any good cause for allowing the former action to proceed, the plaintiff might have applied to the Court of Bankruptcy, under s. 198, for leave to proceed and to obtain execution; but by his omitting to do so, and bringing the present action, he shews that he knew his application would be unsuccessful. (1) 2 B. & P. (N.R.) 190. (2) 11 Ves. 646; 2 B. & P. (N.R.) 191 n. (3) 1 Gl. & J. 385. Hartley v. Mare (1) is in substantial contradiction to Whitmore v. Wakerley (2), and supports the view that the operation of s. 198 is not affected by the fact of the registered deed containing a release. The defendant's reasoning is analogous to that on which it was held that, although ordinarily an action may be brought in the superior courts upon a judgment in an inferior court, yet no action can be maintained on a judgment recovered in a county court, because it would be contrary to the policy and intention of the county court acts. Berkeley v. Elderkin (3); Austin v. Mills. (4) The present attempt is equally in contravention of the Bankruptcy Act, 1861: Admitting that the plaintiff was entitled to go on and obtain judgment, he did so at his peril; he could not obtain execution; and, therefore, he is not entitled to maintain this action. With respect to costs, he could probably have obtained them under the deed; Lewis v. Piercy (5) is an authority contrary to those cited on the other side. Assuming, however, that the defendant ought, if possible, to have pleaded the deed, there was here no sufficient time; and further, on the withdrawal of the plea, it was an implied term of the agreement that no further plea should be pleaded. J. Brown, Q. C., in reply. Cur adv. vult. Feb. 12. The judgment of the Court (Kelly, C.B., Channell and Piggott BB.) was delivered by KELLY, C.B. This is an action upon a judgment, and the form of the question submitted to the Court upon a special case is, whether the plaintiff is entitled to recover; by which we understand that the Court is called upon to determine whether the plaintiff can enforce his judgment by execution against the defendant; and we are of opinion that he cannot. The defendant was indebted to the plaintiff in the sum of 137. 78., and the plaintiff commenced an action to recover this sum, and the defendant at first pleaded the general issue; but afterwards on the 30th of April, 1866, by the consent of both parties the plea was withdrawn, and judgment was to be signed on the 8th of May. On the 7th of May a deed of composition in strict (1) 19 C. B. (N.S.) 85; 34 L. J. (C.P.) 187. (3) 1 E. & B. 805; 22 L. J. (Q.B.) 281. (2) 3 H. & C. 538; 34 L. J. (Ex.) 83. (5) 1 H. Bl. 29. 1867 BRAUN v. WELLER. |