« ForrigeFortsett »
Queen's Bench.-Marshal v. Lamb.—Exchequer.-Lockhart v. Barnard.
In the Exchequer.
POLLOCK, C. B., and the rest of the Barons. BANKRUPTCY--FRAUDULENT PREFERENCE. I Lockhart v. BARNARD.—Nov. 3, 18-15. payment made to a creditor by a bankrupt, after an act of bankruptcy committed, although the pit- Where an advertisement offers a stated reward to ferred creditor takes no benefit by such preference, any person who will give such information as may is a fraudulent preference and void.
lead to the early apprehension of a thief, and such The question in this case was, whether a
information is given jointly by two persons, both
must sue for the reward. payment made by a bankrupt was a fraudu- The information enuilling to the reward in such a lent preference. It appeared that the bank case must be communicated with the view of being rupt borrowed 7001. from the defendant on a
acted on, and mortgage of his wife's estate, and also of his
Semble, may be given either to the party advertising
the reward, or to his agent, or to any person au. sister's estate, and a policy of insurance be
thorized to apprehend the criminal. longing to the bankrupt himself. He covenanted to pay the mortgage money; and af- Assumpsir. The declaration alleged that the ter committing an act of bankruptcy, he took defendant caused to be printed and pnblished the money to the creditor who received it and a certain advertisement, stating that a certain gave up the title deeds. This suit was parcel, &c., containing certain bank notes and brought by the assignee against the mortgagee bills of exchange, had been lost; and that the for the amount of the payment, when a ver- defendant, by that advertisement, promised dict was obtained for the plaintiff. A rule to whomsoever would give such information for a nonsuit or new trial having been gran- as might lead to the immediate recovery of ted—cause was now shewn.
the said parcel if lost, or to the early appreLORD DENMAN, C. J., (after stating the cir- hension of the guilty person if stolen, a recumstances of the case, said: If the property ward of 1001. The declaration then averred, in the mortgage had belonged to the bankrupt, that the plaintiff gave such information as the payment by him would not have been a did lead to the early apprehension of the fraudulent preference, because the assignées guilty person, to wit, one J. R., who was tried would have had the mortgaged property; and and convicted, &c., of all which the defendant it is indifferent to them, whether they have had notice; and that, by reason of the prethe property free from the mortgage (suppo- mises, the defendant became liable to pay to sing it to exceed in value the amount of the the plaintiff, when he should be thereunto mortgage), or the property subject to the mort- requested, the said sum of 1001.: and laid as gage and the amount of the mortgage money a breach the non-payment of that sum. To in cash ; but here the property, except the this declaration the defendant pleaded, first, policy, belonged to others. Yet the defen- non-assumpsit: secondly, that the plaintiff dant was a creditor of the bankrupt, because did not give such information as did lead to the money was lent to him, and recovenanted the early apprehension of the said J. R. in to repay it. The payment, therefore, was the declaration named, &c.; concluding to the emphatically a payment of the bankrupt's debt, country: thirdly, a plea (which was afterwards in order to release the property of his friends, abandoned by the defendant's counsel) to the which they had mortgaged for his benefit; and effect, that J. R. was not the only guilty the defendant did receive twenty shillings in party. At the trial before Alderson, B., it the pound out of the bankrupt's estate, to the appeared that the defendant had sent a parcel prejudice of other creditors, although it was no by coach from Bedford to London, containing benefit to him, for he would have been as well bills of exchange and bank notes to a considoff, if he had kept the mortgage deeds. He erable amount. The parcel not arriving at. is preferred quoad the bankrupt's intention; its destination, the defendant published a and although the motive for giving that pre- handbill, containing an offer of 100l. to any ference was ultimate advantage to the bank- person who should give such information as rupt and his own family, and not to the cred- might lead to the immediate recovery of the itor, we think the preference fraudulent and parcel if lost, or the early apprehension of the the payment void. Rule discharged. Iguilty party if stolen. It was then proved,
Exchequer.---Lockhart v. Barnard. that, soon after the publication of this hand- | The information given by the plaintiff to bill, one J. R. offered the plaintiff 101., one Cheshire in the first instance, was the informof the missing notes in payment for some ation which led to the apprehension of the goods sold, who, suspecting it to be forged, criminal, within the terms of the advertise(not stolen,) communicated his suspicion to a ment; and, if so, the non-joinder of Cheshire neighbor of the name of Cheshire, who, in his is immaterial. Were this not so, the original turn, informed the plaintiff that J. R. had also informer might be deprived of his reward by given notes to him and another person in the any person to whom he happened to disclose neighborhood. The plaintiff and Cheshire the information carrying it in his own name having afterwards heard of the robbery, com- to the party advertising. Neither does it municated the above facts to some neighbors, make any difference that the plaintiff, at the and, after they had conversed about it, the time he gave that information, did not susplaintiff proposed to go for a constable, but pect the theft: Williams v. Carwardine, 4 one of the parties present of the name of Ro- B. & Adol. 621. Then the case of Lancasbinson, said he had better go, and went ac- ter v. Walsh, 4 Mee. & W. 14, is an authorcordingly. He and the constable succeeded ity that it is sufficient, if the information be in tracing out and apprehending J. R., but given to a constable; and the reason of that the plaintiff was the only person who could case applies here, for, where a felony has been identify him as being in possession of any committed, private individuals are armed by part of the stolen property; and he was ulti-law with the same powers as a constable to mately convicted and transported. On this bring the felon to justice, and are, indeed, state of facts, two objections to the plaintiff's bound to exert themselves to do so. right to recover were made by the defendant's counsel: first, that the information which led POLLOCK, C. B.-No rule ought to be to the conviction of the thief ought to have granted in this case. I quite concur in the been given either to the person offering the direction given by my brother Alderson, and reward or to an agent of his, or to some officer think that the jury have come to a correct of justice; secondly, that the information conclusion. The question is, what is the having been given by the plaintiff and Che- meaning of the words “such information as shire jointly, both ought to have sued. Al- may lead to the early apprehension of the derson, B., directed the jury to find for the guilty party?" In the case of Lancaster v. plaintiff on the first and third issues, and on Walsh, which has been referred to, it was dethe second, left it to them to say whether the cided, that material information given to a plaintiff communicated his information to the constable was within the meaning of such a constable first, or whether he first communi- handbill as this; and, although I am not precated it either to Cheshire or Robinson, in pared to say that there may not be cases where order that they might communicate it to the the doctrine of that case might be extended constable; in either of which events they to other parties than constables, it is clear should find that issue also in favor of the that there are no circumstances in the present plaintiff: but, if the plaintiff only communi- case to render it one of them. The plaintiff cated his information to Cheshire for the pur- here communicates his information to Chepose of setting farther inquiries on foot, and shire, who, in return, communicates some to they both afterwards communicated it to the him; on which the two, taking their joint constable, then the defendant was entitled to information into consideration, deem the matthe verdict on that issue. The jury found /ter so serious as to call for farther inquiry, the first and third issue, as directed by the and afterwards jointly communicate it to judge; and, as to the second, said that they Robinson to be communicated to a constable. considered that the information given to the I think, therefore, that the jury were perfectly constable, and which led to the apprehension right in coming to the conclusion, that the of the felon, was given to Robinson by the information which led to the detection of the plaintiff and Cheshire jointly; whereupon the felon was not given by the plaintiff alone, but judge ordered the verdict to be entered on by him jointly with Cheshire. that issue for the defendant, reserving leave to the plaintiff to move to enter a verdict on PARKE, B.-I am of the same opinion, and it for himself.
think that the law has been correctly laid
down by my brother Alderson, in leaving to Byles, Serj't, now moved accordingly.— the jury to say what was the nature of the Common Pleas.-Campbell v. Webster. first communication between the plaintiff and ondly, that the said bill of exchange was not Cheshire, and whether it was made with the duly protested for non-acceptance, in manview of being then acted on, or was only in ner and form, &c. Upon each of these pleas the way of conversation, and was afterwards issue was joined. At the trial, which took communicated by both to the constable. It place before Mr. Justice Earle at the London appears to me, that according to the true con- sittings in last Trinity term, certain letters struction of this advertisement, the informa- from the defendant to the plaintiff were tention must be given with the view of being dered by the plaintiff's counsel, and admitted acted on, and be given either to the person in evidence in support of these issues, as offering the reward, or his agent, or some per- shewing an admission on the part of the deson authorized by law to apprehend the crim- fendant that there had been a protest, and inal. There is, therefore, no objection to the that he had notice thereof. The first letter judge's charge. Then, the second question was as follows: is, whether, assuming the plaintiff and Che
“Burlington Hotel, Cork-st. London. shire to have jointly communicated this in- « Mr. CAMPBELL, formation to the constable, they ought both “I have accepted the bill for 2001., and also to join in the action ? And, as only one re- the one for 1807. There was another bill for ward is offered for certain information, and 1001. presented, about which there was some both the parties concur in giving that inform- history attached, respecting its having been ation, I think they ought to be joined. The presented in place of another. which has been second issue was, therefore, rightly found for cancelled. I do not recollect anything about the defendant; and, indeed, the jury would that bill; and, as I have not yet received the have been justified in finding the generall account you were to have sent me, I have no issue also in his favor, although it is not ne- means of ascertaining anything about it. I cessary to enter into that at present, as there have deferred paying that bill until such time is no motion before us to set aside the verdict as I should hear from you about it. If it on that issue.
|'should be all right, draw on me again for the
amount, and I will pay it so soon as I know ALDERSON, B.-I am quite satisfied that I something of it. did wrong in directing the jury to find as
L (Signed) “ARTHUR WEBSTER.” they did on the plea of non-assumpsit.
The above letter appeared, from the postROLFE, B., concurred.
mark, to have been written after the bill had Rule refused.
been presented for acceptance. The next letter put in evidence was one from the de
fendant to the plaintiff, bearing date the 30th Court of Common Pleas.
August, 1844, about a month after the bill in
question had been presented for payment, and Before the Right Hon. Sir NICHOLAS TINDAL, dishonored : Kn't, and the rest of the Judges,
“Mr. CAMPBELL, CAMPBELL V. WEBSTER.—Nov. 7, 1845.
1 “I have at length received your letter with
the account of the money transactions between EVIDENCE-BILL OF EXCHANGE-PROTEST
us. I find it all correct with the exception
that you have not credited me with a bill for NOTICE OF PROTEST.
501. sterling I drew on the 17th October, A promise made by the drawer to pay a foreign bill 1842. 1, consequently, have not given in
of exchange, although such promise be made con- structions to my agent to pay the bill for ditionally, is evidence that protest of such bill has | 1001. till that matter is set right. been made, and notice thereof given to him.
(Signed) “ARTHUR WEBSTER.” This was an action of assumpsit brought upon The third letter was one from the defenda foreign bill of exchange for 1001., drawn by ant to the plaintiff, written as follows:the defendant upon Messrs. Capron & Co.,
“Durham, October 12, 1844. of London, in favor of the plaintiff. Amongst “Mr. CAMPBELL, other pleas, the defendant pleaded, first, that “Sir,–I cannot conceive how you can say he had not notice of the protest for non-ac- in your last letter that you had explained to ceptance, as alleged in the declaration; sec- me about the 501. bill, and that I was quite
Common Pleas.--Campbell v. Webster. satisfied about it. I remember that there was to render him liable. When called upon for an impression on your mind that I had had payment of the bill, he ought to have objected that money from you to buy a horse, or some- that there was no protest. Instead of that, thing: but the impression is equally strong he promises to pay it. I must, therefore, on my mind that I never had, and what's presume he had due notice, and that a protest more, I am confident I never had. What was regularly drawn up by a notary.” To could I have wanted it for? I never bought the like effect are the cases of Patterson v. a horse from an artillery officer in my life, Becher, 6 Moore 319, and Greenway v. Hindand the first horse I bought in Halifax was ley, 4 Camp. 52. There is abundant evion the 19th November; I then, as you know, dence in these letters from which a promise did not pay Mayer for it for a year. As I to pay may be inferred. Many cases have said to you before, if you send home a cheque been decided in which the expressions used for the 501. sterling to England, I will cause by the defendant were far less strong than the 1001. bill to be paid immediately, and we those used in the present case, and yet have shall then be square.
been held as admitting the fact of notice of (Signed) “Arthur WEBSTER.” dishonor. Booth v. Jacobs, 3 New. & M. The learned judge told the jury, that, if
351 ; Wilkins v. Jadis, 1 M. & Rob. 41, they thought these letters contained an ac
which ‘is the stronger authority, since Mr. knowledgment of liability upon the bill, they
Campbell, the counsel for the defendant, apmight infer, that, within the defendant's
pears to have referred to the law as laid down knowledge, the bill in question had been pro
by the judge, as he forbore to move for a new tested, and that he had had notice thereof."
of trial upon that point, although he moved The jury found for the plaintiff, damages
upon other grounds, and was refused a rule. 1051. In Trinity term last, a rule nisi was ob
|[Maule, J.- That makes the case stronger in tained on behalf of the defendant to set aside
your favor certainly.) Curlewis v. Corfield, this verdict, and for a new trial, upon the
1 Q. B. Rep. 314; Dixon v. Elliott, 5 Car.
& P. 437; Horford v. Wilson, 1 Taunt. 12. ground that these letters, if admissible, were evidence only of a waiver of protest and no
So, part payment is such an admission as to tice, and that, therefore, the learned judge
dispense with proof of notice of dishonor. misdirected the jury in leaving this evidence
Brownell v. Bonney, 1 Adol. & El. 39. No
tice of protest is, in fact, notice of the dishonor to them in support of the issues above referred to.
of a foreign bill of exchange. Burgh v. In moving for the rule, the case of a
Legge, 5°Mee. & W. 418, is very distin. Burgh v. Legge, 5 Mee.& W.418, was cited.
guishable from the present case. There, not Byles, Serjit, (with whom was Phinn,) only was there no proof of any notice of disshewed cause.—The direction of the learned honor having been given, but the conduct of judge was right. Although a protest is ne- the parties shewed that there never had been. cessary in all cases where a foreign bill has Parke, B., there says, “In the present case been presented for acceptance, and dishonored, there is no proof of any such notice, but rather in practice it is only begun on that day, (an the contrary, for the defendant applies to the incipient process which is called noting,) and plaintiff for more discount, and says, the other it may be drawn up and completed at any bills would not be paid; and, as to notice, time before the commencement of the suit. that it would not be worth while to give it, An admission, therefore, of having received for the drawer had since become bankrupt. such a notice, is, in fact, an admission of the The meaning of this rather is that the plain. fact of a protest having been made. Now, tiff did not send notice of the dishonor, than either a presentment for payment, or protest, the contrary.” or notice of protest, or notice of dishonor, may be proved by admission. These letters were Dowling, Serj't, contra.—these letters are sufficient evidence of an admission to be left not such an acknowledgment of a liability to the jury. Croron v. Worthen, 5 Mee. & upon this bill as can be admitted to prove the W.5, decides, that a defendant's promise to alleged facts of protest and notice of protest. pay after the bill is due is prima facie evi- If the letter of the 12th October, for instance, dence of presentment. In Gibbon v. Cog- be regarded, the defendant, after mentioning gan, 2 Camp. 188, Lord Ellenborough says, certain transactions between himself and the “By the drawee's promise to pay he admits plaintiff, says, “If you send home a cheque the existence of everything which is necessary for the 501. sterling to England, I will cause Common Pleas.-Campbell v. Webster. the 1007. bill to be paid immediately." It, ledges his liability upon the bill, I think, upon did not appear that the 501. cheque was ever the authorities cited, they must be taken to sent home; the promise to pay, therefore, was amount to an admission on his part that both upon a contingency which has never hap- these requisites have been complied with. pened. It was, therefore, of null effect. The The answer set up now on behalf of the desame observation may be made with respect fendant is, that these letters only amounted to the other two letters. In the cases cited to a conditional promise; but the case of on the other side, the promise was always an Wilkins v. Jadis was far less strong than the absolute one. In the present case, had the present. For these reasons, I think that this declaration alleged that the notice of protest case was properly left to the jury, and this had been waived by the defendant, the letters rule must be discharged. would better have supported an issue taken on such an allegation. Burgh v. Legge, 5 COLTMAN, J.-I am of the same opinion. Mee. & W. 418.
If an express promise to pay the bill was ne
cessary, then the argument, that the expresTINDAL, C. J.-It appears to me that this sions made use of in these letters only amountrule must be discharged. The action is ed to a conditional promise, might have some brought by the payee against the drawer of a application. But that is not so. All that is foreign bill of exchange, and the pleas upon necessary is, that it should appear by the eviwhich the question in the case turns are, first, dence that an admission was made by the dethat notice of protest was given to the defend- fendant, that he was aware of, and had notice ant; and, secondly, that there was no protest of, protest having been made. The cases of non-acceptance. The question is, whether shew distinctly that letters weaker than these the evidence which was given by the plaintiff have been held to amount to such an admisin support of these issues was properly re- sion. ceived; if properly received, it was for the jury to say whether it was sufficient to satisfy Maule, J.—This rule was obtained on the their minds. Now, the rule upon this subject 11th June; this is the 7th November. Thus is properly laid down by Mr. Justice Rich- five months' delay has been obtained by the ardson in the case of Patterson v. Becher, 6 defendant, which I dare say was all he exMoore, 323, where he says, “ It has been de-pected to obtain, for it is clear that this rule cided in Rogers v. Stevens, 2 T. R. 713, that should be discharged. The case of Burgh v. a promise to pay after a bill or note becomes Legge, upon which the rule was obtained, is due will dispense with proof of presentment very distinguishable from the present case ; and notice of dishonor; so it will dispense indeed, the ground upon which the motion with the proof of protest, as it will amount to was put, that these letters amounted at most an admission, on the part of the defendant, to a waiver of protest and notice, appeared to that the plaintiff had a right to resort to him be almost deserted on the argument to-day. upon the bill.” It appears to me, that if we The case of Patterson v. Becher, 6 Moore look at the letters which formed the evidence 323, is in point for the plaintiff. Here, the in the present case, it is perfectly clear that letter of the 12th October, after referring to the defendant was conscious in his own mind, former circumstances, mentions accounts exboth that there had been a protest for non- isting between the plaintiff and the defendant, acceptance, and that he had received notice; The defendant says that the bill of exchange otherwise he would have known that he had in question will be paid, but insists only on a an available defence upon those grounds; and particular mode in which it shall be paid. then he would not have based his refusal to Now, the only question is, whether this pry on a ground perfectly foreign. Instead amounts to evidence of the defendant's liabil. of mentioning in these letters that these pre- ity upon this bill. This it is; for he says, liminaries had not taken place, the defend- " I will cause the 1001. bill to be paid.” Now, ant is entirely silent upon the subject; and he could not be liable to pay this amount, he promises distinctly to pay this bill, if a unless a protest had been made, and due no. certain item be inserted in his favor in his tice given. The question was, therefore, account with the plaintiff. Since, therefore, properly left to the jury; nor could they, in in these communications, the defendant was my opinion, have drawn a different conclusilent both as regards want of notice of pro- sion.“ In Wilkins v. Jadis the evidence was test and protest, but, on the contrary, acknow-much weaker.