me to be quite plain upon the evidence, that there was a mistake, and that is coupled with the intention, which certainly existed on the part of the plaintiffs, to go on; no opposition was made to the order of Court, but the thing slipped out of the mind of the person who ought to have served the notice of trial. They were wrong in not being more alive to their duty; but then, what is done when the error was discovered? An offer is made to pay the costs, and put the issue in the same situation. The defendant chose to stand upon the strict rule, and the judge at chambers could not do otherwise than he did, and refused the plaintiff's application. It seems that there was an error as to the day on which the notice ought to have been given, and that there has been a strong opposition of the defendant to have the thing set right. It appears to me that there has thus been error on both sides, and the proper course on this occasion will be to make no order at all.

VICE-CHANCELLOR KNIGHT BRUCE'S COURT.

JOHNSON V. KERSHAW.-April 26 and 27. Debtor and Creditor-Composition Deed-Frame of Suit. A., being indebted, (among other Creditors, to C.), makes an Assignment of all his Property to Trustees for the Benefit of all Creditors who, within a given Time, should execute the Deed. Before the Expiration of the given Time, B. agrees with A. and the Trustees, that, in Consideration of an Assignment to him of all the Property of A., he will pay all the Creditors who should be named in a Schedule 8s. in the Pound on their Debts and Covenants; that he will satisfy all the Creditors of A. who should not be included in the Schedule; "and indemnify the Trustees from all such Creditor's Claims to the Amount of 1500l. C., within the Time limited by the first Deed, demanded Payment of his Debts, and B. entered into Correspondence with him on the Subject, offering a smaller Sum, which was agreed upon between them, but no definite Agreement was fulfilled between them; and C. filed his Bill against the Trustees and B. and A., claiming full Payment of his Debt:-Held, that, in a Suit so constituted, C. was not entitled to the Benefit of the attempted Agreement between him and B. for the smaller Sum; nor was the true Construction of the two Deeds that he was to be paid in full; and as he claimed such Payment, the Bill must be dismissed, with Costs, as against the original Debtor, and without Costs as against the Trustees, (they having interfered in the second Deed in a Manner inconsistent with their Office under the first Deed).

George Wood was indebted in 3451. to Mary Anne Johnson, the wife of Thomas Johnson, and the widow and administratrix of J. C. Wales, deceased, formerly the partner of George Wood. The latter having become embarrassed in his circumstances, and not having paid the 3457., by an indenture of assignment, dated 16th March, 1844, made between himself of the first part; J. Kershaw, D. Ainsworth, and J. H. Hawes, called the trustees, of the second part; and such creditors of George Wood whose names were subscribed thereto, of the third part, all the stock in trade, wares, merchandise, fixtures, household and other goods, leasehold estates, debts, monies, securities, books, papers, and writings, &c., were assigned to the trustees, upon trust for sale, and division of the produce, after deducting expenses, &c., unto and amongst all and every the creditors of the said debtor who should come in and execute the deed, or otherwise signify their assent thereto, and also prove their debts in a particular manner, within three calendar months from the date thereof; and the parties of the third part released the debtor from all liability in respect of the several debts. Before the expiration of three months, namely, on the 1st April following, the trustees sold the trust estate

and effects to Richard Henry Wood, who agreed to pay to the trustees such a sum as would be sufficient to pay to certain of the creditors, whose names were to be specified in a schedule to an indenture to be executed to carry into effect the agreement, 8s. in the pound on the amount of their respective debts, and also to pay and satisfy all the claims and demands of all the creditors of George Wood whose names should not be specified in such schedule, and to indemnify the trustees from the same. According to the agreement, by a deed, dated 1st April, made between the trustees of the first part; George Wood, of the second part; Richard Henry Wood, of the third part; Charles Hurd Wood, of the fourth part; and James Wood, of the fifth part, after reciting the former deed and the agree ment, and that Richard Henry Wood had handed to the trustees promissory notes, securing sums equal to the 88. in the pound on debts due to the scheduled creditors; the trustees assigned to Richard Henry Wood all the property contained in the deed of 16th March for his own use and benefit; and by a further witnessing part, Richard Henry Wood, Charles Hurd Wood, and James Wood, (the two latter sureties for Richard Henry Wood), covenanted with the trustees, that they would "satisfy all and every the creditors of the said George Wood at the date of the said assignment who were not specified in the said schedule thereunder written, and should from time to time, and at all times thereafter, save harmless and keep indemnified the said trustees, and their heirs, &c., and all and every the said creditors of the said George Wood specified in the said schedule; and the said trust funds hereinbefore mentioned to be secured to them of, from, and against all and every debts, claims, and demands whatsoever of all and every such creditors of the said George Wood as aforesaid whose names were not specified in the said schedule thereunder written, and of, from, and against all loss, costs, damages, and expenses which they, or any, or either of them might sustain or be put unto by reason of any claim or proceeding for or by such creditors, or any or either of them. It was agreed, that the indemnity and liability thereto should not extend beyond 15007. in the whole; and it was agreed, that the trustees should keep the deed of 16th March for the mutual benefit of the parties thereto. Johnson and his wife were not enumerated in the schedule of creditors to the deed of 1st April, nor had they executed the former deed. Within the three months they demanded payment from Richard Henry Wood, pursuant to the deed of 1st April, and on the 3rd June he offered to pay, within six months, 250%. in full for the same; but, if payment were not made within six months, Johnson and wife were not to be prejudiced in their rights under the two deeds. This agreement never was fulfilled, and Johnson and wife filed their bill in 1846 against the trustees and Richard Henry Wood and George Wood, stating the foregoing facts, and alleging, that, under the circumstances aforesaid. the plaintiffs were entitled to the full benefit of the trusts and provisions of the two deeds; and, having regard to the same circumstances, the trustees, as such trustees, and Richard Henry Wood, by reason of his having received and possessed the trust estate and effects, and having entered into the covenants contained in the deed of 1st April, were all equally liable to pay the 345l.; and that they ought to be decreed to pay the same, or that an account ought to be taken of the trust estate and effects, and that they ought to be decreed to pay such sum as the Court should think right; that, though George Wood was released by the trus tees and Richard Henry Wood, they all alleged that he had concealed from them his debt to the plaintiffs, and therefore insisted that George Wood was not released; that, within the three calendar months, the plaintiffs had signified their assent to the first deed; that

it was untrue that G. Wood had concealed his debt and liability to the plaintiffs for 3451. The bill then prayed a declaration, that the trustees and Richard Henry Wood, the former under the deed of March, and the latter under that of April, were bound, under the circumstances, to pay the plaintiffs the full sum of 345l., as being the amount due to them at the date of the deed of March, from George Wood, or that their rights against the several defendants might be ascertained by the Court, and directed to be satisfied accordingly. The answer of Richard Henry Wood admitted the deed of March, and said, that, while the arrangements for that deed were in progress, he was desirous that the affairs of George Wood should be finally settled, and he applied to the plaintiffs to come in under the deed and state the amount of his claim, both which they refused, and he denied that the plaintiffs had within three months signified their assent thereto. He admitted the deed of April, but said, that it was not the intention or meaning of himself or the other defendants, that he the defendant should take on himself to pay the plaintiffs their demand, who, by refusing to be parties, or assenting to the assignment, had precluded themselves from all benefit thereof, and would not become entitled thereto upon any other terms than upon their agreeing to accept the dividends thereby provided. That the intention of the deed of April was to wind up the affairs of George Wood, and that the covenant by him and his sureties to pay all other debts except those in the schedule, was inserted by mistake, and ought to be rectified. That, under circumstances set forth in the answer, an agreement was made on the 3rd of June, (but not a definite agreement), that 2501. should be paid to Johnson in satisfaction of his alleged claim by a bill at six months, and thereupon the plaintiffs would assign to defendant the debts and assets of George Wood's late partnership, and give defendant a power of attorney to receive the same, and that defendant should indemnify the plaintiffs from all debts owing by the late partnerships. That, from the plaintiffs requiring other securities than those proposed, the agreement went off, and that a long correspondence ensued thereupon. He denied that the 2507. was agreed to be accepted under the provisions of the deeds, or either of them. He denied that the plaintiffs had assented to either of those deeds, but he admitted that he had not paid the 2501., the plaintiffs having repudiated the arrangement of 3rd of June. He submitted, that, as George Wood had concealed the fact of his debt to the plaintiffs, George Wood was not released; and he submitted, that, if the plaintiff had any claim, George Wood was liable, and not the defendant. Evidence was gone into as to the arrangement of 3rd of June.

Wigram, for the plaintiffs, insisted, that, in the first place, the trustees were liable for a breach of trust in making the assignment they had. The plaintiffs, as all other creditors, had a period of three months within which to come in under the first deed, and the trustees had thought fit to come to some other arrangement and assign the property. That was a plain breach of trust, and for all the consequences they were liable to their cestuis que trust, the plaintiffs among the number, they having signified their assent within the time, for the effect of the negotiations was an assent. The defendant, Mr. Richard Henry Wood, was clearly liable, by reason of his covenant contained in the deed of April.

Malins, on the same side, contended, that Richard Henry Wood having entered into the covenant contained in the deed of April, relative to the claims against George Wood, he was bound by it, and as, supposing the plaintiffs had been the parties to that deed, instead of the trustees, and that the covenant had been entered into with them, they would have been entitled to sue him at law, they were entitled in equity to enforce that covenant against him in this suit. It was no

objection that the covenant was entered into with the trustees to do certain acts for the benefit of third parties, that the suit was not instituted by the trustees; for in Tomlinson v. Gill, (1 Amb. 330), which was a case of promise by one Gill, that, if a widow of an intestate would permit him to be joined with her in letters of administration, he would make good any deficiency of assets to pay debts; and it was held by Lord Hardwicke, that the promise was binding, and that creditors of the intestate might file their bill against Gill for satisfaction of their debts, in performance of this promise. The Lord Chancellor is there reported to have said, "The plaintiff is proper for relief here for two reasons: first, he could not maintain an action at law, for the promise was made to the widow; but he is proper here, for the promise was for the benefit of creditors, and the widow is a trustee for them." So, in the present case, the trustees to whom the covenant was given could, but the plaintiff could not, maintain an action, but the plaintiff is their cestui que trust, and has a right to file a bill to enforce the covenant. The authority of this case is recognised by Lord Northington in Griffith v. Sheffield, (1 Eden, 77), and by Sir William Grant in Gregory v. Williams, (3 Mer. 590). In the latter case, the Master of the Rolls, referring to Tomlinson v. Gill, said, "Lord Hardwicke said that it was an engagement that could be made good only in a court of equity; for that it was not made to the creditors: that they could claim, therefore, only through the wife, but that they were entitled to the performance of a promise made to her, because it was to be considered as made to her in trust for them." Thus, the principle had been established by one of the greatest judges of the Court, and plainly acknowledged by another of reputation nearly as high.

April 27.-KNIGHT BRUCE, V. C.-My impression remains, that, as the bill now stands, I cannot, without the consent of the defendants, decree a performance of the agreement of June, 1844. Having read the deeds out of court, and carefully looked at the contents of that of 1st of April, assuming it to be competent to these plaintiffs to sue Richard Henry Wood on his covenant contained in that deed, for the satisfaction of all claims and demands whatever of the creditors of George Wood, and not specified in the schedule to that deed, still, according to the true interpretation of that instrument, looking at the whole contents of it, it does not entitle the plaintiffs to a greater amount of payment or dividend than they would be entitled to claim had the trusts created by the deed of 16th of March been duly performed, they having acceded to that deed, had that deed been executed by them. Still, the question remains, whether they are entitled as against the trustees and Richard Henry Wood, or some or one of them, to the benefit of the deed of March and that of 1st of April; supposing it to be construed as I have said I think it ought to be construed, that question still remains. Russell and Randell, for the trustees. Simpkinson and Little, for George Wood.

Bacon and J. Hamilton Humphreys, for Richard Henry Wood.

KNIGHT BRUCE, V. C.-Whatever may be the general rule, if there be any general rule, with regard to the indulgence shewn to a creditor under a composition-deed who does not claim under an assent to the deed within the time limited by the deed, it does not apply to a creditor who actively refuses, if I may use such an expression, to assent to the deed or to claim under it within the time specified, and who does not afterwards retract that refusal within the time. I am apprehensive, that, upon the evidence in this suit, it is a correct conclusion that the creditor has so conducted himself here. It appears to me, that the negotiations (which ended in a particular agreement) were not based on this-that Mr. Johnson was to claim under the former of the deeds or both of the deeds, but on the footing

that his claim was to be not for a general demand, but for a new and particular right created as he supposed by the second deed,—a claim not of a right by reason of a breach of trust, not a right to a dividend or division, but a claim of a right to be paid in full by Mr. Richard Henry Wood. If that be the true result of the evidence, and if the suit is not so constituted, and the case is not of such a nature as gives the creditor a right under the second deed, according to his construction of it, and I think they are not, and if the suit is not so constituted as to give Mr. Johnson the benefit of the agreement of the 3rd June, I fear the consequence must be that the bill must be dismissed. It must be dismissed with costs as to Mr. George Wood. As Mr. Richard Henry Wood declines to pay the 2507., the bill must be dismissed as against him without costs. As the three original trustees interfered in the second deed, which might mislead parties, and have confused the property, which was inconsistent with their office under the first deed, the bill must be dismissed, without costs, as to them also. As to all the defendants the bill is to be dismissed, without prejudice to the institution of any other suit.

VICE-CHANCELLOR WIGRAM'S COURT.

GIBSON v. INGO.-Nov. 12. Pleading-Parties-Amendment-Charges. The Plaintiff will not be allowed under an Order at the Hearing, giving Leave to amend, by adding Parties, with apt Words to charge them, to introduce by Amendment a Charge raising a new Issue of Liability as against the original Defendants, but unnecessary for the Purpose of explaining the Presence of the new Party.

This was a bill filed by a mortgagee of a ship to realise his security. An objection having been taken at the hearing that one J. Hopper was a necessary party to the suit, the cause was directed to stand over, with liberty to the plaintiff to amend his bill, by adding proper parties thereto, with apt words to charge them, or by shewing that Hopper was not a necessary party, or with liberty to file a supplemental bill. Hopper was accordingly made a party by amendment; and the amended bill, after charging that Hopper sometimes claimed an interest in the matters aforesaid, or some of them, and that he sometimes claimed to recover from the plaintiff some considerable sum of money by way of demurrage, or damages in the nature thereof, for the detention of the said ship or vessel, in consequence of the certificate of registry being detained by the other defendants, Carter, Bonus, and Simpson, proceeded to charge, by way of amendment, "that the three lastnamed defendants are liable to the plaintiff for such sum as the plaintiff is or may be liable to pay to the said J. Hopper for damages as aforesaid." A motion was now made on behalf of the defendants, Carter, Bonus, and Simpson, that the amended bill might be taken off the file, on the ground that the plaintiff by introducing the latter charge had raised a new issue of liability between himself and the original defendants, and thereby exceeded the liberty given him by the order giving leave to amend.

Chandless appeared in support of the motion. Romilly and Heathfield, contra, contended, that the charge complained of was necessarily introduced to connect the new defendant with the case made by the original bill, and that the old defendants could not be prejudiced thereby, as the amendment merely stated a conclusion of law, without introducing new facts, and pointed merely to relief which might be had under the prayer for general relief. (Milligan v. Mitchell, 1 My. & C. 511).

Chandless, in reply.

Sir JAMES WIGRAM, V. C.-Where, at the hearing of a cause, an objection is taken for want of parties, and the cause is ordered to stand over, with liberty to the plaintiff to amend, by adding parties, with apt words to charge them, all the Court intends by that order is to enable the plaintiff to bring the new party before the Court in order that the original cause may be heard without any variation against the old defendants, in the presence of the new parties. Here Hopper has been made a party to the suit, with apt words to charge him; but the plaintiff has added a charge that the other defendants are liable to the plaintiff for whatever the plaintiff shall be found liable to Hopper. Such a charge is not necessary to enable the plaintiff to make out his case against Hopper. But it is said that the old defendants are not damnified, for that relief in this respect might be had under the prayer for general relief. With respect to the extent of relief to be given under the general prayer, I have no means of judging till the hearing. If the same relief may be had without this charge, then the charge is immaterial; but if the additional charge may have the effect of raising a fresh issue against the old defendants, then that fact is conclusive against its being allowed to stand. It is impossible to deny that a charge, which is a mere conclusion of law, may not affect the relief to be given at the hearing. It is quite enough to say that a charge has been introduced which may make it necessary for the old defendants to put in a new answer, and raise a different defence. I am of opinion that this is a substantial variance from the terms of the order giving leave to amend. The charge must be expunged at the costs of the plaintiff, who must also pay the costs of this application.

STEEDMAN v. POOLE.-Nov. 25.

Notice of Motion for a Day not a Seal Day-Costs of Motion.

Where Notice of Motion to dismiss was given for a Day not a Seal Day, and before the next Seal the Plaintiff filed Replication, the Court, considering the Notice to be irregular, refused to give the Defendants the Costs of the Motion.

The plaintiff having omitted to file replication within the period limited by the practice of the Court, two of the defendants gave notice of motion to dismiss for Saturday the 21st November, or as soon after as counsel could be heard. The motion could not be heard on the 23rd November, that not being a seal day; and before the next seal day, the 25th November, the plaintiff filed replication. Under these circumstances,

Allnut, for the defendant, asked for the costs of the motion to dismiss, on the ground that the plaintiff had not filed replication till after he had been served with notice of motion to dismiss.

Southgate, contra, contended, that the defendants a seal day, and that they were not, therefore, entitled were irregular in giving notice of motion for a day not to the costs of the motion.

Sir JAMES WIGRAM, V. C., refused the motion, on the ground of irregularity in the defendant's notice of motion.