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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.

1862.

THOMPSON

v.

CLARK.

Coram Mellor, J.

ASHPITEL (Executor of JAMES PETO) v. BRYAN.

ACTION by the executor of one James Peto, against the defendant, on a bill of exchange dated 22nd May, 1857, drawn by one John Peto, upon and accepted by the defendant for 3767., payable to the order of the drawer, John Peto, and indorsed by him to the testator, James.

London Sittings.
Trinity Term.

Defendant cepted a bill drawn by pro

having ac

curation in the

name of a person deceased, and handed it, indorsed in that name to a third party, held liable to that

Common counts for money lent by the testator, and an nam account stated with him.

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

2. That it was drawn and indorsed for the accommoda

tion of James Peto, and without consideration, &c.
3. That the bill was made and indorsed in the name of

John Peto after his decease, and that the defendant was

no defence that the con

sideration was goods, assets of the deceased, in the possession of the indorsee,

and that the

bill was on an understanding

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

1862.

ASHPITEL (Executor of

บ.

BRYAN.

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

4. That John Peto died intestate and indebted to the

JAMES PETO) 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 and the facts it appeared that John, the supposed drawer, was dead before the drawing by procuration; and his death, of course, would have revoked any authority, had it existed, even if all parties had not known of the death as they did;

the case was that of a bill drawn by the indorsee in the name of a fictitious or non-existing person; and as all parties knew of the fact, the acceptor clearly would be liable at the suit of a second and innocent indorsee; Gibson v. Minet, 1 H. Bl. 569; Gibson v. Hunter, 2 H.

Garth for the plaintiff.

Hawkins and R. Clarke for the defendant.

James and John Peto were brothers, and had carried on business separately on the same premises; one as currier, 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 circum

Bla. 288; and the acceptor, in such a case, is considered as accepting to pay to the order of the person who (really) signed as the drawer, i. e. in the case of James, Collins having really drawn and indorsed as his agent; Cooper v. Meyer, 10 B. & C. 469. Ordinarily, a bill payable to the order of a person is payable to him; Smith v. M'Clue, 5 East, 476; and the bill, perhaps, might have been declared as a bill or note made by James payable to his order; Edis v. Bury, 6 B. & C. 433. But it was declared on as a bill drawn by John, which it cannot have been and was not in fact. As against a party who did not know the fact; the acceptor might have been estopped; Drayton v. Dale, 2 B. & C. 293; and no doubt, as against any innocent holder, the acceptor is estopped from disputing the competence of the drawer; Sanderson v. Coltman, 4 M. & G. 208; Braithwaite v. Gardner, 8 Q. B. Rep. 433; Halifax v. Lyle, 3 Exch. 446; and so it should seem as to his existence. The drawing in the name of a fictitious person, if

not with the knowledge of the acceptor, would be a forgery; but even then the acceptor would be estopped from disputing the drawing: though aliter as to an indorsement unless he knew of it; Beeman v. Duck, 11 M. & W. 251. Here, however, the defendant, the acceptor, knew of the facts, and would seem to have been in the same position as if he had made a note payable to the order of James, or as if James had drawn by an agent's hand in the name of John (Burmester v. Hogarth, 11 M & W. 97); or as if John or his administrator had really drawn the bill payable to his order, and had then indorsed to James; in either of which cases it would hardly have been a defence that it was in consideration of goods, the assets of John: that would only show that John's administrator could recover against James; as no doubt, upon the facts, any future administrator of John could recover against the executor of James in respect of the sum in question, as to which James would have been executor de son tort.

1862.

ASHPITEL (Executor of JAMES PETO)

v.

BRYAN.

1862.

ASHPITEL

(Executor of JAMES PETO)

v.

BRYAN.

stances set forth in the special plea; which was proved, in fact, except that it appeared that nothing was said by James, or expressly agreed or mentioned as to his taking Out administration.

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 (b).

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 liable over to any future administrator, vide Foster v. Bates, 12 M. & W. 226; Searson v. Robinson,

Vol. II., p. 351.

(b) 2 B. & C. 293.
(c) Vide ante, p. 184 (a).
(d) Vide supra.

MELLOR, J., said he was so clear upon the point, that, if the plaintiff got a verdict, he should not stay execution.

Hawkins then proposed that the point should be reserved 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.

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

Verdict for the plaintiff (a).

the verdict on the denial of the in-
dorsement. Sed vide ante, p. 185,
in notis.

1862.

ASHPITEL (Executor of JAMES PETO)

บ.

BRYAN.

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