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1862.

THOMPSON

CLARK

COCKBURN, C. J., said he was of a different opinion, and thought that a “legal mortgage” meant a“ first mortgage,” for a second mortgage was not, properly speaking, a “ legal mortgage," as it conveyed no legal interest.

Evidence therefore was admitted that, as above stated, the defendant had said it was to be a first mortgage. And at the close of the case,

COCKBURN, C, J., left it the jury whether the parties bad in effect so agreed; in which case, he said, the defendant would be liable.

Verdict for the plaintiff (a).

(a) H. James moved, M. T., but took nothing.

Coram Mellor, J.

ASHPITEL (Executor of James PETO) v. BRYAN,

London Sittings.

Trinity Term. ACTION by the executor of one James Peto, against the Defendant

having acdefendant, on a bill of exchange dated 22nd May, 1857, cepted a bill drawn by one John Peto, upon and accepted by the de

curation in the fendant for 3761., payable to the order of the drawer, John name of a per

son deceased, Peto, and indorsed by him to the testator, James.

and handed it,

indorsed in that Common counts for money lent by the testator, and an

name to a third account stated with him.

party, held

liable to that Pleas: 1. That John Peto did not indorse the bill. party; and held

no defence Issue.

that the con2. That it was drawn and indorsed for the accommoda- sideration was

goods, assets of tion of James Peto, and without consideration, &c. the deceased, in

the possession 3. That the bill was made and indorsed in the name of of the indorsee, John Peto after his decease, and that the defendant was

condant and that the

understanding that the indorsee should take out administration to his estate in the absence of evidence of an express agreement to that effect.

as on an

1862.

ASHPITEL

JAMES I

BRYAN

afterwards induced to accept it by the fraud of James Peto.

Issue. (Executor of 4. That John Peto died intestate and indebted to the

°defendant and divers persons, and possessed of certain

goods, stock in trade, &c.; and that after his death it was arranged that the defendant should take to the goods for the benefit of the estate of John Peto; and that the bill was drawn by one Collins, by procuration for John Peto, upon and accepted by the defendant, and indorsed by Collins, by procuration of John Peto, and handed over to James Peto, on the understanding that the bill should form part of the assets of John Peto, and that James should take out administration to John, and that the amount should be divided among his creditors. That the defendant took to the goods and gave the bill in pursuance of that arrangement, and that James might sue on the bill as administrator of John, and not otherwise, and on no other consideration; that James had not taken out administration to John; and that the defendant is liable to pay the lawful administration of John. Issue.

Replication to the first, and the 4th pleas, by way of estoppel, that the bill was drawn and indorsed before the bill was accepted by the defendant, and that he had knowledge of all the facts at the time.

Rejoinder, that before the drawing, indorsing and accepting, as James Peto and Collins knew, John had died; and that afterwards, by the procurement of James, and without authority from John, the bill was drawn and indorsed; and that James knew that the drawing and indorsing were false and fictitious (a).

(a) As both upon the pleadings the case was that of a bill drawn by and the facts it appeared that John, the indorsee in the name of a ficthe supposed drawer, was dead be- titious or non-existing person ; and fore the drawing by procuration; and as all parties knew of the fact, the his death, of course, would have re- acceptor clearly would be liable at voked any authority, had it ex- the suit of a second and innocent isted, even if all parties had not indorsee ; Gibson v. Minet, 1 H. known of the death as they did; Bl. 569; Gibson v. Hunter, 2 H.

Garth for the plaintiff.

1862. Hawkins and R. Clarke for the defendant.

ASHPITEL

(Executor of James and John Peto were brothers, and had carried on JAMES Pero) business separately on the same premises; one as currier,

BRYAN the other as harness manufacturer.

The case for the plaintiff was that the bill was drawn by procuration of Collins, for goods sold to the defendant by James Peto.

The case for the defendant was that the goods were the stock in trade of John Peto, and that the bill was given, after his death, to his brother James, under the circumBla. 288; and the acceptor, in not with the knowledge of the acsuch a case, is considered as ac- ceptor, would be a forgery; but cepting to pay to the order of the even then the acceptor would be person who (really) signed as the estopped from disputing the drawdrawer, i. e. in the case of James, ing: though aliter as to an indorseCollins having really drawn and ment unless he knew of it; Beeindorsed as his agent; Cooper v. man v. Duck, 11 M. & W. 251. Meyer, 10 B. & C. 469. Ordi- Here, however, the defendant, the narily, a bill payable to the order of acceptor, knew of the facts, and a person is payable to him ; Smith would seem to have been in the v. M'Clue, 5 East, 476; and the same position as if he had made a bill, perhaps, might have been de note payable to the order of Jaines, clared as a bill or note made by or as if James had drawn by an James payable to his order; Edis agent's hand in the name of John v. Bury, 6 B. & C. 433. But it (Burmester v. Hogarth, 11 M'& W. was declared on as a bill drawn by 97); or as if John or his admiJohn, which it cannot have been nistrator had really drawn the bill and was not in fact. As against a payable to his order, and had then party who did not know the fact; indorsed to James ; in either of the acceptor might have been es- which cases it would hardly have topped ; Drayton v. Dale, 2 B. & been a defence that it was in conC. 293 ; and no doubt, as against sideration of goods, the assets of any innocent bolder, the acceptor John : that would only show that is estopped from disputing the com- John's administrator could recover petence of the drawer; Sanderson against James ; as no doubt, upon v. Coltman, 4 M. & G. 208; the facts, any future administrator Braithwaite v. Gardner, 8 Q. B. of John could recover against the Rep. 433; Halifar v. Lyle, executor of James in respect of 3 Exch. 446 ; and so it should seem the sum in question, as to which as to his existence. The drawing in James would have been executor the name of a fictitious person, if de son tort,

ASHPITEL

BRYAN

1862. stances set forth in the special plea ; which was proved, in

fact, except that it appeared that nothing was said by (Executor of James, or expressly agreed or mentioned as to his taking JAMES Peto) out adininistration.

Collins and the defendant were both called to support the defence, and the evidence of the defendant was that James suggested to him that it would be for the benefit of his brother's estate that he, the defendant, should at once

take to his stock in trade and give a bill for it, as and for . the estate of the intestate ; and, although nothing was

said as to administration, in terms, it was stated by the defendant that James and he would “look after the interests of his brother's children, and manage their affairs."

Before taking out administration, however, James died, · and no one had yet taken out administration to John Peto (a).

At the close of the case for the plaintiff,

Hawkins, for the defendant, objected that the plaintiff could not recover, as it appeared (having been elicited in cross-examination) that the bill was drawn and indorsed in the name of a non-existing person ; but,

Garth, in answer to the objection, cited Drayton v. Dale(6).

MELLOR, J., said the defendant would be estopped (c) from setting up such an objection, as he knew the facts.

Clarke submitted that there was no estoppel, because all the parties knew the facts (d); but,

MELLOR, J., said this would not affect the plaintiff's right to recover, if the fourth plea was not proved.

Hawkins thereupon proposed to tender a bill of exceptions; whereupon,

(a) That the defendant would be Vol. II., p. 351.
liable over to any future adminis. (6) 2 B. & C. 293.
trator, vide Foster v. Bates, 12 M. (c) Vide ante, p. 184 (a).
& W. 226; Searson v. Robinson, (d) Vide supra.

ASHPITEL

BRYAN

Mellor, J., said he was so clear upon the point, that, if 1862. the plaintiff got a verdict, he should not stay execution. Hawkins then proposed that the point should be re- (Executor of

James Peto) served on condition of his undertaking not to carry the case further; to which

Garth consented, and
MELLOR, J., reserved the point on that condition. .

Hawkins then went into evidence in support of his defence, as above set forth in the special plea, calling the defendant for that purpose.

In the course of examining the defendant, after it had appeared that nothing had been said as to James taking out administration to John, but that James said he would look after his late brother's affairs, &c.,

Clarke proposed to ask him whether he had given the bill under the expectation and belief that James would , take out administration to his brother.

Garth objected; but Mellor, J., allowed the question; to which the witness answered that he had given the bill only under that impression, and that he would not have given it except for that belief, because he knew he would be liable to any lawful administration of John.

MELLOR, J., left it to the jury whether the agreement in the 4th plea was proved. They found it a “mere afterthought and pretence," on which the learned Judge was of opinion the plaintiff was entitled to recover.

Verdict for the plaintiff (a).

(a) In M. T. Clarke got a rule (which is pending), on the ground that the defendant was entitled to

the verdict on the denial of the indorsement. Sed vide ante, p. 185, in nolis.

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