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not accommodation bills, the money received by the Defendant was more immediately the eftate of Stock, because he has fo much lefs in the acceptors hands in confequence of the tranfaction. This cafe has been argued on an analogy which does not in fact exift; viz. between the effect of this deed, and the proceedings under a commiffion of bankruptcy, though a commiffion happened to be the foundation of the agreement. A commiffion is a tranfaction between creditors only, the eftate of the bankrupt is completely taken out of him, and he has no intereft but in the actual furplus of that estate after all debts paid: here, on the other hand, the infolvent had an intereft in every thing beyond 8s. in the pound. It is on the ground of uncertainty that the rule has been allowed to prevail, that a bill holder may prove against every body who is a party to the bill, for until the dividends are afcertained, it is impoffible to know what fatisfaction he will have. But here a certain liquidated fum is given, and the creditor thinks it for his intereft to confider the whole as the debt of the drawer, and to accept 8s. in the pound as a fatisfaction: this is the fubftance of the inftrument; by this the debt is discharged and gone, and the effects are abfolutely releafed. Suppofe that the Plaintiff had paid 20s. in the pound, there can be no doubt, but that he would have become the purchafer of the bills, and would be entitled to take them out of the hands of the holder and use them according to the relation in which he might ftand to the acceptor. If it be fo on payment of 20s. in the pound, can we diftinguish the prefent cafe from that? The creditor has thought fit to accept 8s. in the pound in lieu of 20s., and though this could not be pleaded on a parol agreement, yet on a deed it may, and the difcharge is as effectual as if 20s. in money had been paid. I am therefore of opinion that this cafe has been argued on the ground of an analogy which does not exift, and admitting every thing advanced to be true with refpect to the rule where debts are to be proved under different commiffions, yet even there if a party has proved his debt under one commiffion, and taken a dividend, he cannot prove the whole debt under another. The bufinefs is generally managed by not taking a dividend under any commiffion till the debt has been proved under all, and there is no poffibility of fetting the matter right, but by calling the parties to an account. Here the debt is not only reduced to 8s. in the pound, but actually discharged, fo as to entitle the Plaintiff to ftand in the

VOL. I.

U

place

1798.

STOCK

V.

MAWSON.

1798.

STOCK

V.

MAWSON.

place of the Defendant. The difficulty however recurs whether it does not lie with the acceptor to bring this action, and whether the money in difpute muft not be confidered as his: if my Brothers can fatisfy me on this point, I fhall have no hesitation on the reft of the cafe.

BULLER J. The nature of the contract and deed on which this question arifes decides the cafe. Stock was indebted to feveral perfons: the creditors fued out a commiffion, but for the purpose of avoiding expence, and getting as great a fatisfaction as poflible, they came to an agreement that Stock fhould provide fecurity for 8s. in the pound, and that they would give up the remainder of their debts and make him a new man. If there was any fort of furprise by one creditor upon another, it is no new cafe to fay that it was a fraud: one creditor is induced by another, to come into the compofition, and they all agree by deed to take an equal dividend; now this is not effected by one of them referving a fecret advantage. It is faid that the Defendant has not taken more than Ss. in the pound out of Stock's effects, but I fay that he does get the furplus out of Stock's effects. Thefe were part of the bills which by agreement the Defendant was to restore, they came into his hands from Stock, and were to be delivered, back to him, on payment of 8s. in the pound. By the mode of stating this account, the Defendant decides against himself; to give a foundation for the argument, he should have pursued this method: he should have faid, I have 1113l. 1985 d. due to me on one account, and 1107l. 5s. 5d. on another; he should not have added the two together, but fhould have claimed a dividend on the former fum only, and have treated the latter as a debt fatiffied by the bills which he held in his hands; by not doing this he has committed a fraud on the reft of the creditors, who expected to be put on an equal footing with him, and had a right to know his fituation. Whether an agreement by parol to accept a smaller fum in fatisfaction of a larger can be pleaded or not, I do not know it was formerly confidered that it could not, and was fo decided in Coke (a). I think however that there are fome late cafes to the contrary, and one in particular in Lord Manf field's time, who said, that if a party chofe to take a smaller fum, why should he not do it? There may be circumftances under

(a) Pinnel's cafe, 5 Co. 117. where it was held that payment of a leffer fum at the time and place mentioned in the condition

13

cannot be a fatisfaction for a greater; but if paid before the day or at another place it may. Vide alfo Cumber v. Wane, Sir. 426.

which

which fuch an agreement might not only be fair but advan-
tageous;
it may
be of more importance to a man to take 10S.
to-day than 20s. to-morrow, If we look to the deed it is im-
poffible to fay that the word "bills" in the deed does not extend
to the bills in this cafe. What other bills are there? Suppofing
(as we muft) that thefe bills were drawn for value, until the
acceptors pay them they are indebted to the drawer to their
amount, and if Stock pays 8s. in the pound in fatisfaction of his
debt, is he not to have the bills in order to recover from the
acceptors? If indeed they were accommodation bills only, then
unless they are to be delivered up to the Plaintiff, the acceptors
will be bound to pay, and will have an action against Stock,
who will thus be called upon for more than 8s. in the pound.
Whichever way the cafe be ftated, the Defendant has received
more than 8s. in the pound.

HEATH J. I am of the fame opinion, and fhall bottom myself on the clear intention of the parties. There were three defcriptions of perfons parties to the tranfaction, viz. the debtor, the creditors, and the fureties; and it was agreed that the creditors fhould take 8s.. in the pound in difcharge of all debts. Now in order to induce the fureties to guarantee the payment of the 8s. in the pound it was neceffary to take an account of the Plaintiff's property; in taking which account they muft have confidéred what was in the hands of the acceptors of the bills. If the acceptors were intended to hold the money fubject to further demands, the fureties would not have guaranteed to that extent. It is faid that the Defendant has only purfued his remedy against third perfons; but in my opinion he has taken a double remedy against the eftate of Stock; 1ft, against his effects in his own hands, and 2dly, against his effects in the hands of the acceptors. My Lord's obfervations have satisfied me that there is no analogy between this cafe and the proceedings under a commiffion of bankruptcy. But a queftion has been made whether this action will lie for money had and received to the ufe of the Plaintiff. Now what is a bill of exchange? It is nothing but an order on the drawee to pay fo much out of the effects of the drawer in his hands, and the acceptance is evidence in law that the acceptor has fuch effects, if therefore a perfon receives any thing out of thofe effects, he receives what belongs to the drawer who may recover it in this form of action.

ROOKE J. I am of the fame opinion.

Poftea to the Plaintiff.

1798.

STOCK

v.

MAWSON.

1798.

June 18th.

A prifoner after judgment against him may, not

withstanding the

allowance of a writ of error, be charged in exe

cution.

June 18th.

The Court will not allow a Plaintiff to fign judgment because the Defendant refufes to pay for half the paper books

delivered to the Judges; this cafe

the

rule.

Hil. 35 Geo. 3.

FISHER V. MCNAMARA.

THE Plaintiff in this cafe was proceeding after the allowance of a writ of error to charge the Defendant, then in cuftody on mefne procefs, in execution.

This was oppofed by Marshall Serjt.

But the Court faid that if the Defendant were not charged in execution she would be fuperfedeable (a), and that the Plaintiff therefore was only doing that which for his own fecurity he was obliged to do.

(a) But a Plaintiff may fhew for caufe against a fuperfedeas iffuing, that the Defendant has fued out a writ of error before

the end of the two terms limited by the practice of the Court. 2 Wilf.380, Garres v. Mentall, C. B. R. H. 26 Geo. 3.

FULHAM V. BAGSHAW.

MARSHALL Serjt. oppofed the arguing a demurrer in this cafe, on the ground that the Defendant's attorney had refused to pay for two of the paper books delivered to the Judges according to the rule of Court. Mich. 6 G. 2. Imp. C. B. 352. ed.

4.

The Court at first doubted, but upon inquiry finding that the Court of King's Bench (a) had confidered a fubfequent rule (6) (which had also been adopted in this court) ordering that no judgment fhould be figned for non-payment of iffue money, as controlling the former rule, faid they should follow the fame conftruction, and held the money to be paid for the paper books as coming within that rule, and therefore refufed to allow judg ment to be figned without argument.

Shepherd Serjt. contrà.

#

(a) Fuller v. Oborne, 6 T. R. 477.
(b) Hil. 35 Geo. 3. It is ordered, that after
the first day of next term no judgment fhall

be figned for non-payment of iffue money, but that the iffue money fhall remain to be taxed as part of the costs in the cause.

QUICK & UX. v. Sir W. STAINES Knt. Sheriff.

THIS
"HIS was an action of trover for household goods brought by
the husband and wife in right of the wife as executrix of
her former husband M'Pherfon, under the following circum-
ftances: MPherfon died about nine months previous to the ac-
tion being brought, having made his widow his executrix, who
continued in poffeffion of his goods, and about three months after
hisdeath married the Plaintiff Quick. During those three months
the ufed the goods as her own, and after her marriage with
Quick the goods were treated by them both as his. The De-
fendant having taken thefe goods in execution at the fuit of
perfon who was a creditor both of M'Pherfon and of Quick, but
who claimed them upon the prefent occafion to fatisfy the debt
of the latter, received notice from the Plaintiffs that the effects
which he had taken were the unadministered goods of M'Pherson.

a

EYRE Ch. J., before whom the cause was tried at the Weftminster fittings after Eafter term, being of opinion that a devaftavit had been committed on the part of the executrix, by putting the effects of McPherson into the hands of her fecond husband, directed a nonfuit against the Plaintiffs, with liberty to move to fet it afide and enter a verdict in their favour. Accordingly a rule nifi for that purpose having been obtained on a former day,

Shepherd Serjt. now fhewed caufe. It cannot be denied that the executrix has fuch a property in the goods of her teftator as to enable her to fell and make a good title, though she may render herfelf liable for a devaftavit. Now the executrix in this cafe having firft treated the goods as her own, and the Plaintiff Quick having fince her marriage with him treated them as his, is fufficient to fhew that the had given them up to him, which must have the fame effect as if she had fold them. If by her conduct she did not make these goods her own, what period of time can be stated at which the effects of a teftator in the hands of an executor are to be confidered as converted to the ufe of the executor? In Farr v. Newman, 4 T. R. 621. the Court feemed to confider that if any thing had been done by the executor to raife fuch a prefumption the goods might be confidered as his own: and Lord Kenyon was of opinion, that till the contrary be fhewn the goods must be confidered as the property of him in whofe handst hey are found. Here perhaps it may be contended, that a claim is made by the

U 3

executrix,

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