Action by Trustee under a Scotch Sequestration Registered in Statement London Bankruptcy Court for Debt due to Sequestered of claim Estate. by trustee of Scotch tion. 1. The plaintiff is trustee of the sequestrated estate of the sequestralate partnership or firm of Messrs. W. & Co., engineers, of G., and of the several estates of the partners of the said firm, by virtue of an act and warrant made in the Scotch Sequestration on the 1875, and duly registered day of in the London Bankruptcy Court. 2. The defendant is an engineer, carrying on business in London, under the style of B. & Co. 3. Previously to the agreement hereinafter mentioned, a claim had been made by the plaintiff against the defendant for moneys alleged to be due from the defendant to the firm of W. & Co., which claim was disputed by the defendant, and the plaintiff and the defendant had entered into negotiation for the compromise and arrangement of such claim. 1875, and the 4. On the day of 1875, in consideration that the plaintiff would compromise the above claim, the defendant offered the plaintiff, in writing, to agree to admit a liability of £500. 5. On the day of, 1875, the plaintiff wrote to the defendant, with reference to the said offer, a letter in the words and figures following : "T. B., Esq., London. "Dear Sir, "12, St. V. Place, G., 1875. "W. & Co.'s Seqn. "I have the pleasure of informing you that at a meeting of Commissioners, held on the 22nd instant, I was authorised to accept the offer contained in your letters of the 21st of and 15th of 30th and I now beg to "(1) You are to pay me £500 sterling as early as possible, but at latest £250 on or before January, 1876, and £250 within three months thereafter. "(2) On receipt of the £500 I am to release you from all claims at the instance of the estate, but if you do not carry out your obligations under this agreement, my M Claim by trustee of Scotch sequestration. Defence to statement of claim that de fendant's creditors accepted composition. whole claim is to revive. I, of course, am not to be bound to do anything to assist you in obtaining delivery of the machines. "Yours truly, (Signed) "N. S." 6. The defendant accepted the terms contained in the said letter of the 25th day of -, 1875. The defendant also knowingly induced the plaintiff to believe that the defendant had accepted the same, and to act on the said belief, and to give time to the defendant; and the plaintiff did so believe, and did act on the said belief, and gave time to the defendant accordingly. 7. All reasonable times have elapsed and all conditions been fulfilled necessary to entitle the plaintiff to sue. 8. The plaintiff, as trustee as aforesaid, and without prejudice to his original claim, should it become necessary to enforce it, claims : (1.) £500 due under the letter of 25th 1875. (2.) £21 58. 3d. interest thereon, as appears by particulars endorsed on the writ. (3.) Interest on the above at 5 per cent. per annum until judgment. DEFENCES AND REPLIES. Defence (Statement of Claim not given) that the Defendant's 1. On the 24th day of May, 1875, the defendant duly filed a petition for liquidation of his affairs by arrangement or by (not given) composition with his creditors, under the provisions of the Bankruptcy Act, 1869, and a special resolution was duly passed by a statutory majority of the said creditors, that a composition of 28. in the £ should be accepted in satisfaction of the debts due to the creditors from the defendant, that such composition be payable within a month after the registration of the resolution of the second meeting, and that H. B. be appointed trustee in the interim for the receipt and distribution of the composition. 2. The resolution was afterwards duly confirmed by a statutory majority of the said creditors at a subsequent general meeting, duly held in accordance with the provisions of the said Bankruptcy Act, 1869. 3. The plaintiff's name and address, and the amount of the Defence debts due to him, were duly inserted by the bankrupt in the continued. statement of his assets and debts, and all things required by the Bankruptcy Act and rules were done, so as to make the said proceedings valid and binding on the plaintiff; and the defendant paid to the said trustee the amount of the composition on the debts due to the plaintiff and the plaintiff's right to sue in respect of any of the claims in respect of which he is suing in this action has been extinguished by the said proceedings in liquidation. Reply. The plaintiff says that the defendant did not pay to the said Reply. trustee, within the time limited therefor or at all, the amount of the composition on the debts due to the plaintiff, and the plaintiff never has been paid the said composition, although the time for the payment of the same to the trustee and to the plaintiff had elapsed before the commencement of this action. Defence that the Defendant's Affairs were Liquidated by 1. On the Arrangement. ment. day of, 1877, after the time when the Defence of plaintiff's claim is alleged to have accrued, the defendant being liquidation by arrangeunable to pay his debts, filed his petition in the County Court of H., holden at N., and having jurisdiction in that behalf, praying for liquidation of his affairs by arrangement or composition. 2. Thereupon a special resolution of the defendant's creditors was duly passed at a meeting duly holden of the defendant's creditors that the defendant's affairs should be liquidated by arrangement, and that a person named should be appointed. trustee of the defendant's estate. 3. This special resolution was registered in the said Court on the day of, 1877, and the said person was duly appointed as trustee. day of 4. Such proceedings were had in the matter of the said liquidation, that on the 1877, the defendant duly obtained his discharge under the said liquidation, and the defendant duly obtained his certificate of such discharge in the Defence of said liquidation duly given by the registrar of the said Court liquidation all things necessary in that behalf having been fulfilled. by arrange ment. 5. The plaintiff's causes of action in the statement of claim Statute of mentioned (if any) did not, nor did any part thereof, accrue within six years before this suit. Limita tions. Reply. Reply. 1. If the allegations in paragraphs 1, 2, 3, and 4 of the statement of defence are true, then the plaintiffs say that they were not included in the list of creditors delivered by the defendant to the registrar of the said County Court pursuant to the provisions of the Bankruptcy Act, 1869. 2. And if the allegations in the said paragraphs are true, the plaintiffs further say that notice of the first meeting of the creditors of the defendant under the said liquidation proceedings was not given to the plaintiffs pursuant to the provisions of the said Act. The plaintiffs neither voted nor proved their debt, nor received a dividend thereon, under the said liquidation proceedings, of which they have been always altogether ignorant. 3. The plaintiffs, as to paragraph 5 of the statement of defence, say that within six years before the commencement of this suit the defendant acknowledged, in writing, that the sum now sought to be recovered was due by him to the plaintiffs. Statement Bills of Exchange («). Payee of a Bill of Exchange against the Acceptor (b). 1. Messrs. A. B., on the 1st day of May, 1876, drew a bill of claim of exchange upon the defendant for £100, payable to the order of the plaintiff one month after date. payee against acceptor. Choice of remedies. (a) Choice of remedies.]—A party suing on a bill of exchange or promissory note seems, since the Judicature Acts, generally, though not always, to have three modes of procedure open to him. He may either (1) issue an ordinary writ, and in due course deliver a statement of claim, or (2) he can specially indorse his writ under Order III. r. 6, and then apply upon proper affidavits under Order XIV. r. 1, for leave to sign final judgment against the defendant, or (3) in a large class of cases he may still proceed against the defendant under the Bills of Exchange Act, 18 & 19 Vict. c. 67. The right of a party to pursue his remedy in a summary way under this Act is specially preserved by the new rules. Order II. r. (b) For note (b) see post, p. 166. 2. The defendant accepted the same. Statement 3. The bill became due on the 4th day of June, 1876, and of claim the defendant has not paid it. The plaintiff claims £100. payee against acceptor. says: "With respect to actions upon a bill of exchange or promissory note commenced within six months after the same shall have become due and payable, the procedure under the Bills of Exchange Act, 18 & 19 Vict. c. 67, shall continue to be used. It has been held on this rule that where the action had been commenced under the Act, the special practice under the Act must be strictly followed, and plaintiff could not sign judgment in default of appearance without filing an affidavit of personal service. He cannot have recourse to Order IX. r. 6, nor can he obtain an order for substituted service under Order IX. r. 2 (Pollock v. Campbell, 45 L. J. Q. B., C. P. & Ex. D. 199; Anon. W. N. 1875, 248.) It must be noticed, however, that the procedure under the Bills of Exchange Act only applies to the initiation of the action. If the defendant obtains leave to defend, then the case goes on and the procedure is exactly the same as in any other action. (Norris v. Beazley, L. R. 2 C. P. D. 80; 46 L. J. Q. B., C. P. & Ex. D. 169, 515.) But even with respect to the initial stages of the action before the defendant has obtained leave to defend, the procedure where the writ is issued under this Act is not altogether unaffected by the new practice. Thus in the case of Oger v. Bradnum (1 L. R. C. P. D. 334; 45 L. J. Q. B., C. P. & Ex. D. 273), it was held that a writ under the Bills of Exchange Act may issue out of a district registry: and in another case where an action had been brought in the Sheffield registry, to which the defendant had appeared both in Sheffield and London, and had obtained leave to defend on paying £40 into Court, which he paid in, not in Sheffield but in London, judgment being signed and execution issued for noncompliance with the condition on defendant's application, it was held that by appearing in Sheffield, he had waived his right to object to the action being brought there, and he was therefore only allowed to defend on further conditions. (Ibbotson v. Whitworth, W. N. 1876, 10.) Act only applies to initiation of action commenced under it. Bills of Exchange Act.]-By this Act the holder or indorsee of a bill of Bills of exchange or promissory note or cheque (Eyre v. Waller, 29 L. J. Ex. 246), Exchange if he sues within six months after the same becomes due and payable, Act. is enabled to issue a special form of writ endorsed as directed by the Act; and unless the defendant obtains leave to defend the action, the plaintiff can, upon filing an affidavit of personal service of the writ, sign final judgment for the amount claimed by the writ together with interest and costs. The peculiarity of the remedy given the plaintiff is seen at a glance. The law presumes that the defendant is liable, and the burden is cast upon him of doing something at the very beginning of the action to obtain a hearing for his defence if he has one. Section 2 of the Act prescribes what the defendant is to do if he wishes to defend the action. "A judge of any of the said Courts (i.e., the superior Courts, though the Bills of Exchange Act is now extended to the County Courts, and in that case it will be the judge of the County Court) shall upon application within the period of twelve days from such service (the service of the writ upon the defendant), give leave to appear to such writ, and to defend the action on the defendant paying into Court the sum indorsed on the writ, or upon affidavits satisfactory to the judge, which disclose a legal or equitable defence, or such facts as would make it incumbent on the holder to prove consideration, or such other facts as the judge may deem sufficient to support the application and upon such terms as to security or otherwise as to the judge may seem fit." Then by the next |