objection was, that it was made too late, for although these gentlemen attended the meeting at which the winding-up resolution was passed, they had never raised the difficulty until now. He must, therefore, consider the call of the 9th May 1867, as a valid call. But it was not so much on the ground of the invalidity of the call, as in order to avoid the payment of interest, that the objection had been raised, for it was said that the consequence of nonpayment of the call was, that there must be payment of interest, and, in his opinion, interest must be paid; but the question was, whether it was to be at five or ten per cent. It was said that the latter was the interest to be paid in the event of nonpayment of calls. The articles also provided that the calls were to be made by the directors, but this was not a call made by the directors. This was a call made by the liquidators, and no notice was issued that if the call was not paid in time interest would be required. What was the consequence? In Lintott's case he did intimate his opinion that the articles of association were not abrogated by the resolution to wind-up. But in that case interest at five per cent. only was required. There were various reasons in this case why ten per cent. should not be paid. There had been gross negligence on the part of all parties in the manner in which the affairs of the company had formerly been conducted, and on every principle of equity it would, in his opinion, be unjust that the shareholders should, in consequence of this negligence, be called upon to pay ten per cent. interest, and he was also of opinion that the article as to interest only applied to calls made by directors. The shareholders should have had distinct notice from the liquidators that ten per cent. would be required, and as no such notice had been given, he thought that ten per cent. ought not to be paid. Then what interest was to be paid? Justice required that some interest should be paid, and it had, in fact, been so laid down in Lintott's case and Barrow's case, and in such a case the Act 3 & 4 Will. 4 c. 42 required five per cent. to be paid. Interest at such rate must accordingly be paid from the 1st July 1867. The question had been fairly brought before the court, and therefore the costs of all parties would come out of

the estate.

Solicitors: Tilleard, Godden, and Holme; Jones, Blaxland and Son.

V. C. HALL'S. COURT. Reported by RICHARD MARRACK, S. H. S. LOFTHOUSE, and HENRY C. DEANE, Esq., Barristers-at-Law.

Feb. 27 and March 1 and 2.
WOOD v. SAUNDERS.

Right of drainage from house-Enlargement of
house-Limitation of easement.
A lease contained a demise of a house and grounds,
together with the free passage and running of
water and soil in and to the existing cesspool,
and in and through all the drains then constructed
or thereafter to be constructed through the adjoin-
ing property of the lessor. The cesspool was on
such adjoining property. The lease also con-
tained a stipulation against the enlargement of
the house, or the erection of new buildings, with-
out the consent of the lessor. The lessee subse-
quently purchased the reversion, the conveyance

[V.C. H.

of which contained a similar grant of the right of drainage; and shortly afterwards considerably enlarged the house.

Held, that the right of drainage given by the lease had reference to the house in its then existing state, and could not be extended so as to allow the whole of the drainage from the enlarged house to flow into the cesspool.

By an agreement dated the 28th Aug. 1868, and made between Lewis Bruce Knight Bruce of the one part, and the defendant of the other part, it was agreed that as soon as the defendant had laid out a specified amount in repairing a mansion house known as The Priory, Roehampton, Bruce would grant the defendant, or his nominee, a lease of the said mansion house, and of the grounds and lands held with it. Adjoining land belonging to Bruce, and containing about 34 acres, was, by the same instrument, agreed to be demised to the defendant on building leases.

The defendant shortly afterwards executed a deed of arrangement between himself and his creditors.

By an indenture dated the 9th June, 1870, and made between Bruce of the first part, the trustees of the deed of arrangement of the second part, the defendant of the third part, and the plaintiff of the fourth part, Bruce, with the consent of the trustees and of the defendant, demised to the plaintiff The Priory, gardens, and grounds, "together with the free passage and running of water and soil in and to the existing cesspool, and in and through all the drains, sewers, and water courses then constructed, or thereafter to be constructed, through the adjoining property of the said L. B. K. Bruce, his heirs, or assigns." The lease also contained a covenant by the lessee not to enlarge the house, or erect new buildings, without the consent of the lessor, and a proviso giving him an option of purchasing the fee simple of the estate.

The plaintiff subsequently declared his option to purchase, and accordingly by an indenture dated the 21st May 1872, the estate was conveyed to him absolutely in fee simple. By this indenture the running of water and soil from the Priory to Bruce's adjoining lands was granted in words the same as those contained in the lease of June 1870.

At the dates of the above mentioned lease and grant, the greater part of the drainage from the Priory was received by three cesspools, situate under the ground belonging to the house. The remaining drainage was carried by two drains across the grounds in front of the house, and discharged into au open ditch or moat. This ditch was on the adjoining land belonging to Bruce. It was about 450ft. long, 9ft. wide, and from 2ft. to 24 ft. deep, and was about 150yds. distant from the Priory House.

Before The Priory was purchased by the plaintiff it had been used as an ordinary private residence, and was capable of accommodating about twenty-five persons. After the plaintiff had purchased it he very much enlarged it, and turned it into a private lunatic asylum, in which state it held, altogether, about 150 persons. The immediate result of the enlargement of the house, and of the great increase in the number of its inmates, was that considerably more drainage was discharged into the moat. The plaintiff, at a later date, and after filing his bill, made alterations in his system of drainage, whereby the amount of soil and water sent into the moat was considerably

reduced, and appeared not to exceed the amount which used to be sent in when the house was a private residence. Before these alterations, however, complaints were made of the state of the moat, and the plaintiff was summoned by the Board of Works for the Wandsworth district, for permitting the ditch to be a public nuisance. The summons was heard, and ultimately dismissed on the 20th June 1873. On this occasion the defendant gave evidence in support of the summons; and in the course of the proceedings he said, in answer to a remark by the presiding magistrate, that if the magistrate could not abate the nuisance he (the defendant) would have to do so. The plaintiff's evidence went to show that this was a serious threat by the defendant that he would stop up the plantiff's drains; it being also, as stated by the plaintiff, subsequently repeated. The deThe defendant denied that his reply to the magistrate could possiby be supposed to be more than a joke, and he denied that he had ever repeated it, or ever had any intention of stopping up the plaintiff's drains. The plaintiff filed his bill on the 24th June 1873, praying for an injunction to rest rain the defendant from cutting or interfering with the plaintiff's drains, or preventing the free passage of water and soil into the moat. An injunction was granted by Wickens, V.C., in July 1873, but without prejudice to any question in the suit, and without prejudice to any proceedings at law or in equity which the defendant might be advised to take against the plaintiff, respecting the soil or sewage, which the latter might send into the moat, beyond that authorised by the grant to the plaintiff. The case now came on as a motion for decree.

A good deal of evidence, beyond that already mentioned was gone into as to the other proceedings which had been taken by various sanitary authorities, on account of the state of the moat; and as to the question whether the moat was, in fact, a nuisance; also as to the extent of the alterations made by the plaintiff in the drains which conveyed soil and sewage water into the moat. But it will be seen that the Vice-Chancellor's decision did not proceed upon any of these matters. The defendant in his answer denied, as before mentioned, that he had ever seriously threatened to stop, or intended to stop, the plaintiff's drains. But he contended that the plaintiff had no right of drainage into the moat, and that, even if he had, his user of it was excessive, and since it was impossible to prevent this excessive user without destroying the whole of the easement, the defendant was entitled, if thought fit, to stop up the drains which discharged themselves into the moat; at any rate until the plaintiff had reduced the volume of drainage passing into the moat to its original amount.

Lindley, Q.C. and Atkinson, for the plaintiff, argued that the words of the lease entitled the plaintiff to send into the moat any amount of drainage which could be passed by the drains which were in existence at the date of the lease. They admitted that the subsequent grant could not confer a larger easement than was given by the lease. But even if the plaintiff was limited in the user of the easement there had not, as they submitted, been any excessive user; since there had been no overflow from the moat until the outlet from the latter had been stopped up, in compliance with an order of the local magistrates.

[V.C. H.

Greene, Q.C. and Warmington for the defendant. --The plaintiff's user of his easement was excessive, and the authorities show that such conduct on his part puts an end to the easement so long as the excess continues:

Luttrell's Case, 4 Rep. 86a;

Cawkwell v. Russell, 26 L. J. 34. Ex. ;

Sharpe v. Hancock, 3 L. T. Rep. 57; 7 Man. & Gr. 354.

The grant to the plaintiff only gave him a right to send into the moat such, and so much, drainage as had been sent down when The Priory was used as an ordinary dwelling house: (Henning v. Burnet, 8 Ex. 187). In Baxendale v. Murray (L. Rep., 2 Ch. 790) it was held that an easement of discharging dirty water into a stream from a manufactory would not allow the grantee at a later date to increase the pollution of the stream by ciple applies here, and prevents the plaintiff from using a new process of manufacture. That prinsending solid matter into the moat, the drainage previously accustomed to be sent down having consisted of liquid sewage only. The plaintiff has, by his grant, a right to impose a certain burden on the owners of adjoining lands; but he has no right at his pleasure to increase that burden. Would he be entitled, having a right of drainage from a house, to send down the drainage of a town? The defendant would have been justified --had he been so minded-in stopping up the plaintiff's drainage until it was brought within proper limits. But we say that he never had any such intention, and did not, therefore, ever utter any serious threat, as alleged by the plaintiff. The plaintiff has admitted himself to have been in the wrong by altering his system of drainage, and the institution of this suit was wholly unwarrantable. They cited also:

Gale on Easements, Part III. cap. 2;

South Metropolitan Cemetery Company v. Eden, 16 C. B. 42;

Hill v. Cock, 21 L. T. Rep. N. S. 185;

Harvey v. Walters, 28 L. T. Rep. N. S. 343; L. Rep. 8 C. P. 162.

66

Lindley, Q.C., in reply.-The words of the lease gave, and were intended to give, the plaintiff a right of drainage from The Priory, whatever size it might subsequently be. This appears by the wording of the lease, which confers a right of drainage through all the drains, &c., then constructed, or thereafter to be constructed, through the adjoining property of the said L. P. K. Bruce, his heirs or assigns.' Such an easement gives a right to send down all the soil from the house, not merely that held in suspense by the running water. The cases cited on the other side, all refer to defined and limited easements, whereas our grant is general, and those cases, if properly understood, are, in fact, in our favour.

The VICE-CHANCELLOR.-The main point to be decided in this case is the extent of the plaintiff's easement as conferred by the words of the lease; it being admitted that the subsequent conveyance cannot be construed as giving any greater easement than the lease did. Some authorities were referred to by the defendant's counsel in order to show that a grant of an easement, unlike other grants, is not to be construed strictly against the grantor. Those cases, however, were all cases in which an easement was claimed by user, not by grant; and I know of no authority for construing a grant of an easement differently from any other grant. Indeed, the judgment of Willes, J., in a

case of Williams v. James (16 L. T. Rep. N. S. 664; L. Rep. 2 C. P. 577), to which I shall refer again presently, is a direct authority the other way. It follows that the grant of this easement must be construed most favourably to the plaintiff, so far as is compatible with a fair and reasonable construction of it. Now, the lease in question is a demise of a house and grounds, together with the free passage and running of water in and to the existing cesspool, and in and through all drains then or thereafter to be constructed through the adjoining property of the lesscr. The first question is, what is meant by the words "existing cesspool;" and as to that, I take it to be clear that the moat or ditch referred to in the evidence is intended to be thus described; since it would be idle to grant a right of drainage to an existing cesspool on the demised premises, and there must therefore have been an intention to give a right of drainage to the only existing cesspool outside the demised premises, namely, to this moat. The defendant contended that the words in the lease did not include or refer to the moat, and on this point of construction, therefore, I decide against him. The next question is, what is the extent of the easement thus granted. In order to determine this I must look at the lease generally, so as to ascertain the way in which the parties contemplated the property being used. Now the lease provided that the property should remain in the condition in which it then was, and that no new buildings should be erected without the licence of the lessor; and the latter's consent for the erection of larger buildings, if it had been asked for, might have been refused, or if given might have been qualified by some stipulation as to the amount of drainage to be sent into the moat. It follows that, in my view, the easement was not general and unrestricted, but only to be enjoyed in limited manner—that is, with reference to the buildings in existence at the date of the lease. I am consequently of opinion that the plaintiff has not made out a right to send into the moat all the drainage of the house in its enlarged state; and I do not assent to the argument that his enlargement of the house was immaterial so long as he did not enlarge the size of the drainage pipes. The rule on this point is the same as in the case of a right of way, as to which I agree with the remarks of Willes, J., in Williams v. James (16 L. T. Rep. N. S. 664; L. Rep. 2 C. P. 577), where he says: "The use must be the reasonable use of the land

for the purposes of the land in the condition in which it was while the user took place." I do not mean to say that small alterations of the house, causing a slight increase in the amount of drainage sent down, could not be made. But here there has been a large increase of the accommodation formerly provided, and the house is not now used as a private dwelling house, any more than if it had been turned into a factory; the consequence being a very great increase of the amount of water and soil to be got rid of. Having said this, I have substantially disposed of the case, and do not propose to go into the question of the defendant's alleged threat, or of the various proceedings before the magistrates; since whichever way I decided them they would not affect my judgment. I hold, then, that the defendant was wrong in contending that the plaintiff had no right of drainage into the moat, whilst the plaintiff was wrong in claiming an easement greater than that to which

[Q. B.

he is entitled. I shall, therefore, give no costs to either party, or any inquiry as to damages, but simply an injunction to restrain the defendant from cutting off or stopping up the plaintiff's drains through the adjoining property into the existing cesspool-such cesspool being, in the judgment of the court, the moat or ditch in the plaintiff's bill mentioned-having regard to the extent to which it was used for that purpose prior to the date of the lease.

Solicitors for plaintiffs, Lemprière and Co.
Solicitor for the defendant, A. G. Dilton.

Common Law Courts.

COURT OF QUEEN'S BENCH, Reported by J. SHORTT and M. W. McKELLAR, Esqrs., Barristers-at-Law.

Saturday, April 24.

BALDWIN (app.) v. WHITE (resp.) Watch houses-County police stations-Extension of boroughs into counties-5 & 6 Will. 4, c. 76, 8. 84.

The Municipal Act 1935, s. 84, enacts a penalty on summary conviction for refusal to give up to watch committees of boroughs all watch houses within their boroughs, the expenses for which had been provided for by previous Acts.

By a local Act of 1873, the borough of Brighton, which was incorporated in 1854, was extended to include East Preston, in which were a police office and cells, forming part of a police station which had been provided for the county by the quarter sessions in 1870, under the powers of the County Police Acts, the first of which was passed

in 1839.

Held, upon a case stated in a summary conviction of the superintendent of the county police station, for refusing to give up these offices and cells to the Brighton Watch Committee, that sect. 84 of the Municipal Act applies only to such watch houses as those the expenses of which had been provided for by earlier Acts, and not to county police stations authorised by subsequent Acts.

THIS was a case stated by the stipendiary magistrate and justice of the peace for the borough of Brighton, for the opinion of the court, pursuant to 20 & 21 Vict. c. 43.

Upon the complaint of the respondent, the appellant was summoned for that he at Preston, in the said borough, on the 5th Jan. 1874, being then and there the person having the charge, control, and possession of a building, part whereof had been theretofore used as a watch house, to wit, the police office and cells, did refuse to give up such part thereof from the hour of four in the afternoon until the hour of nine in the forenoon, for the use and accommodation of the constables appointed for the said borough, under the Act 5 & 6 Will. 4, c. 76, 8. 84.

A charter of incorporation was on the 1st April 1854 granted to the borough of Brighton, declared to be co-extensive with the parish of Brighton, and constables were thereupon and have been since appointed by the watch committee for the said borough, according to the provisions of 5 & 6 Will. 4, c. 76.

66

By a local Act, to be cited as The Brighton

Borough Extension Act 1873," which received the Royal assent the 7th July 1873, it was enacted, "that from and after the 31st Oct. 1873, the said borough should extend to and include part of the parish of Preston, in the county of Sussex (which parish adjoins Brighton parish)" in such Act referred to as East Preston.

In East Preston there existed, at the passing of the said Brighton Borough Extension Act, and at the date when the offence of which the appellant was summoned was alleged to have been committed, a station of the East Sussex County Constabulary. This station consisted of a residence for the superintendent of a district of the county comprising other parishes besides Preston, and for two other constables with families, or five single constables, a police office and cells, and other buildings.

This station and these buildings were provided about three years before the passing of the said local Act of 1873 by the justices of East Sussex in quarter sessions, under the powers of the Act 3 & 4 Vict. c. 88, and the other Acts relating to the county police. The cost thereof and of other police stations provided for the county from time to time was raised at interest by charges on the county police rates, the principal being repayable by twenty annual instalments, of which some have been paid off and some remain unpaid.

The appellant was the superintendent of the county constabulary, residing at and having charge of the said station at East Preston at the time when the offence was alleged to have been committed.

On the 3rd Nov. 1873, a notice signed by the mayor of the said borough, was, pursuant to 5 & 6 Will. 4, c. 76, s. 84, fixed on the door of the Town Hall and every church within such borough. The following is a copy of such notice :

Borough of Brighton.

The Brighton Borough Extension Act 1873, and the Municipal Corporations Act. Whereas, pursuant to the powers contained in the above Municipal Corporations Act, the watch committee of the said borough have appointed a sufficient number of men to act as constables for preserving the peace by day and by night, and preventing robberies and other felonies, and apprehending offenders against the peace within the limits of the borough, as extended by the Brighton Borough Extension Act 1873. Notice is hereby given, that the constables appointed as aforesaid will, on Saturday, the 8th Nov. 1873, begin to act in and for the said extended borough as constables, in conformity with the said Acts; and I hereby appoint George White, the chief constable of the said borough, the person to whom all watch houses and watch boxes within the said extended borough, and all arms, accoutrements, and other necessaries provided at the public expense for any watchmen, constables, patrol, or police therein, shall be given up for the use and accommodation of the constables so appointed as aforesaid. Dated 1st Nov. 1873.

JAMES IRELAND, Mayor of the borough of Brighton. There had been no appointment of any constables by the watch committee of the said borough between the time of the said Brighton Borough Extension Act coming into operation. (the 1st Nov. 1873) and the fixing of the said notice, but there was on the 1st Nov. 1873, an efficient body of police who had been appointed by the watch committee previously to the said 1st Nov. 1873, constables of the said borough, as it then existed, and by whom the watching of the extended borough was after the said 1st Nov. 1873 conducted.

On the 5th Jan. 1874, the day on which the

[Q. B.

offence is charged, the respondent, who was chief officer of the Brighton Borough Police, went after the hour of four in the afternoon to the station at East Preston, and saw the appellant, and demanded of him possession of such part of the said station as had been theretofore used as a watch house, in the following words:

I, George, White, the person named by the mayor of the borough of Brighton for that purpose, demand to have given up to me, for the use and accommodation of the constables appointed under the statute 5 & 6 Will. 4, c. 76, that part of this police station which has been heretofore used as a watch house (that is, the police office and cells), every day from the hour of four o'clock in the afternoon until the hour of nine in the forenoon, and it is now four o'clock, and I require you now to give up possession.

The appellant refused to give possession thereof and the complaint on which he was summoned, as before stated, was made against him by the respondent.

The said justice was of opinion that such part of the said station as had been used as a police office and cells constituted a watch house within the meaning of 5 & 6 Will. 4, c. 76, s. 84; and that sect. 84 applied to such part of the said station; and that possession of such part of the said station ought on demand by the respondent, as before stated, to have been given by the appellant; and that he had jurisdiction to convict the appellant of the offence charged in the summons; and he convicted him of such offence, and sentenced him to pay a fine of 17. and costs, or in default to be imprisoned seven days, whereupon the appellant applied for this case.

If the court should be of opinion that the said judgment delivered by the said justice was correct, the said conviction of the appellant is to stand and have full effect; but if the court should be of a different opinion, the said complaint against the appellant is to stand dismissed.

66

Merrifield (with him Mortimer) argued for the appellant. This is in effect a disputed claim to this police office by the county of Sussex and the borough of Brighton, the county being here in the position of appellants against the magistrate's order. The 84th section of the Municipal Act 1835 (5 & 6 Will. 4, c. 76), enacts, That as soon as constables shall have been appointed by the watch committee for any borough, a notice signed by the mayor of such borough, specifying the day on which such constables shall begin to act, shall be fixed on the door of the town hall and every church within such borough; and on the day so specified in such notice, so much of all Acts named in conjunction with such borough in the schedule E to this Act annexed, and of all Acts made before the passing of this Act, as relates to the appointment, regulation, powers, and duties, or to the assessment or collection of any rate to provide for the expenses of any watchmen, constables, patrol or police for any place situated within such borough, shall cease and determine; and all watch houses and watch boxes in any such place, and all arms, accoutrements, and other necessaries provided at the public expense for any watchmen, constables, patrol or police therein, shall be given up to such persons as shall be named by the said mayor in such notice, for the use and accommodation of the constables to be appointed under this Act, and all the property so to be given up shall be deemed to belong to the body corporate of such borough; and in case any person having the

charge, control, or possession of any watch house, watch box, arms, accoutrements, or necessaries as aforesaid, shall neglect or refuse to give up the same, as hereinbefore required, every such offender, being convicted thereof before two justices of the peace, shall for every such offence forfeit and pay, over and above the value of the property not given up, such sum not exceeding 51., as the justices shall think meet; and where there shall be any building in any such place as aforesaid, a part only of which building shall have been heretofore used as a watch house, such part shall be given up every day from the hour of four in the afternoon until the hour of nine in the forenoon, for the use and accommodation of the constables to be appointed under this Act; and if any person having the charge, control, or possession of any such building, shall neglect or refuse to give up such part thereof for the purposes aforesaid, or to permit free access thereto or egress therefrom during any portion of the time above prescribed, every such offender being convicted thereof before any two justices of the peace, shall for every such offence forfeit and pay such sum, not exceeding 5l., as the said justices shall think meet." At the time that Act was passed, the watchmen and constables were appointed locally, and were not in any way connected with the county police, who were first brought into existence by an Act of 1839 (2 & 3 Vict. c. 93), and for whose use and accommodation this police office was constructed. Therefore, although the subsequent charter of incorporation which was granted to Brighton extended to its inhabitants the powers and provisions of the Municipal Act according to the 141st section, the 84th section cannot apply to the buildings here in dispute. [Stopped by the court.]

Manisty, Q.C. (with him Finlay), for the respondent.-By the 76th section of the Municipal Act 1835, constables are to be sworn, "and the men so sworn shall not only within such borough, but also within the county in which such borough or part thereof shall be situated, and also within every county being within seven miles of any part of such borough," exercise the powers and do the duties entrusted to them. It is but reasonable, therefore, that the borough police should have the use of the offices and cells within their seven miles range of jurisdiction, although the property remains still in the county at whose expense they were built. The words, "any such place," in which the watch houses to be given up are situated, must relate to all boroughs governed by the Municipal Act of 1835, whether then or afterwards incorporated.

Merrifield was not heard in reply.

BLACKBURN, J.-I think this conviction must be quashed. The watch houses are, by sect. 84 of the Municipal Act 1835, transferred to the watch committees of the boroughs mentioned in the schedule; but the section refers only to those watch boxes in any such places as those with which the Acts named in the schedule were in conjunction, and to those the expenses of which were provided by Acts made before the passing of the Municipal Act. Here the county of Sussex had obtained or constructed this office and these cells under Acts which were entirely subsequent to the Act of 1835, and sect. 84 of that Act can have no application to them.

LUSH, QUAIN, and FIELD, JJ., concurred.
Judgment for appellant.

[Ex.

Attorneys for appellant, Burton, Yeales, and Hart, for W. K. J. Langridge, Lewes.

Attorneys for respondent, Tilleard, Godden, and Holme, for Black, Freeman, and Gell, Brighton.

COURT OF EXCHEQUER.

Reported by H. LEIGH and CYRIL DODD, Esqrs., Barristers at-Law.

(Second Division before BRAMWELL and POLLOCK, BB.)

Jan. 27 and 28.

CHECKLAND V. MCNIEL AND ANOTHER.

Pleading Demurrer

Bankruptcy Act 1869 (32 & 33 Vict. c. 71.) s. 94, sub-s. 3-Contracts for sale and delivery of goods-Liquidation by arrangement of affairs of one of the parties toTrustee under liquidation-Action by for breach of contract-Plea, exoneration of defendants by debtor before liquidation-Validity_of-" Dealing" within sect, 94, sub-sect. 3-Bona fidesValuable consideration.

The plaintiff, as trustee under a liquidation by arrangement of the affairs of a debtor, by the first count of the declaration, sued the defendant on a contract made between them and the

debtor, for a breach of the said contract of the defendant in not delivering either to the debtor before liquidation or to the plaintiff as such trustee after the said liquidation, a quantity of iron according to the terms of the contract. The second count charged that it was agreed between the defendants and the debtor as in the first count stated, and further, that before the said liquidation the defendants delivered a portion of the iron under the contract to the debtor, who made default in payment of the price; and afterwards the plaintiff as such trustee elected to take the benefit of the contract, and was ready, &c., to pay in cash the full amount for the portion of iron so delivered as aforesaid, and to pay for the residue thereof in cash on delivery, and to perform the contract, in all things on his part, whereof the defendants had notice, and waived formal tender of such amount. Averment that all conditions, &c., were fulfilled &c. Yet the defendants did not nor would deliver to the plaintiff as such trustee the residue of the said iron, but neglected and refused so to do, and wholly refused any further to perform the said contract on their part, whereby the plaintiff as such trustee lost the benefit of the said contract.

Plea, that after the making of the said agreement and before any breach thereof on the part of the defendants, and before the commencement of the said liquidation, or the filing by the said debtor of a petition for liquidation, and before notice to the defendants of any act of bankruptcy by the said debtor, he exonerated and discharged the defendants from the said agreement, and from any further performance of the same, and the defendants say that the said dealing and transaction was made in good faith.

On demurrer it was held by the Court of Exchequer (Bramwell and Pollock, BB.) that the plea was good, and that the exoneration thereby shewn was a dealing for valuable consideration," between the parties within the protection of sect. 94, subsect. 3 of the Bankruptcy Act 1869.

66

Per Pollock, B.-Whenever anything like mala