Morgan v. Whitmore & others.

[Martin, B. The effect of the question was this: "You, the witness, say there was a sale: would you have delivered up those goods?" Is not that admissible?]

It is. [They also cited Wright v. Lainson, 2 Mee. & W. 739; s. c. 6 Law J. Rep. (N. s.) Exch. 197, and Edwards v. Crock, 4 Esp. 39.] Secondly, the receipt and delivery order were rightly rejected, for there was no evidence, independently of the date, of their having been executed at the time of the sale and before the bankruptcy. They do not stand on the same footing as a letter which has been sent by post; and that makes the distinction between this case and Potez v. Glossop, which will be relied on by the other side.

[Martin, B. Surely all that is matter for the consideration of the jury.]

Watson and Hawkins, contra, were not called on.

There is no case

POLLOCK, C. B. The rule must be absolute. exactly like the present. There are, indeed, decisions where letters have been given in evidence, and the date of them has been proved by the letters themselves, in cases where it has been impossible to call a witness to prove the date: here the bankrupt might have been called. The rule, however, for a new trial must be made absolute, on the authority of the cases that have been decided on the subject.

ALDERSON, B. In this case the question was for the jury, subject to the observations that the transaction was fraudulent, and that the date of the documents was false.

PLATT, B. I am of the same opinion, being bound by the decisions on the point. It is for the jury to say if the document existed at the time that it purports to bear date.

MARTIN, B. I concur. The law as to this point was settled in Anderson v. Weston, and has been followed by this court in Potez v. Glossop. In Malpas v. Clements, 19 Law J. Rep. (N. s.) Q. B. 435, Lord Campbell, C. J., said that the case of Potez v. Glossop was decided, and that it must be supposed that, prima facie, a document is written at the time it bears date.

POLLOCK, C. B., added: The case of Malpas v. Clements was founded on Potez v. Glossop, and that again was founded on the authority of Anderson v. Weston, where the court came to the decision with some doubt and hesitation. Anderson v. Weston was decided in 1840. But if that case has had the effect of letting in, by means of one date in a letter, all that was done at the time, it has altered the law of England as it has existed for forty years. I still entertain the opinion I expressed at the trial; but I yield to the authorities that have been cited. But, if the case should again come before me, I shall invite a bill of exceptions, so that the opinion of a court of error may be expressed on the point. Rule absolute.

White & another v. Mullett.

WHITE & another, Assignees of CALLIS, a Bankrupt, v. MULLETT.1 Trinity Term, May 3, 1851.

Bankruptcy Order and Disposition- True Owner - IntestacyOrdinary-Jus tertii.

An owner of goods suffered them to be in the possession of C., and died intestate. After his death, C. retained them in his order and disposition until he became a bankrupt, subsequently to which the defendant sold them at the desire of the bankrupt.

The intestate's goods having remained unadministered, and the ordinary having made no claim to them:

Held, that the goods were in the order and disposition of the bankrupt, with the consent of the true owner; and that the defendant, in an action of trover, by the assignees of the bankrupt, for the goods, was not at liberty to set up the title of the ordinary as the true owner.

TROVER by the assignees of Callis, a bankrupt.

Pleas-First, not guilty; second, that the plaintiffs were not possessed; and other pleas.

At the trial, before Platt, B., at the London sittings in Hilary term last, it appeared that one Mitchell, having become tenant of a public house, and proprietor of the furniture and fixtures, conducted the business entirely through the agency of, and in the name of, one Callis. Mitchell having died in 1849, intestate, the business continued to be carried on for some time as before by Callis, until he committed an act of bankruptcy. The defendant, with knowledge of the act of bankruptcy, and at the desire of the bankrupt, sold the goods in question as the property of the bankrupt. No letters of administration had been taken out, and the ordinary had made no claim to the goods.

For the defendant, it was contended that the assignees were not entitled to recover, as the right of property in the goods was vested in the ordinary, and that he was the true owner; and, therefore, that they were not in the order and disposition of the bankrupt with the consent of the true owner. The learned judge overruled the objec tion, and the jury having found that the defendant sold the goods as the property of Callis, and that the goods were in his order and disposition with the consent of Mitchell, the intestate, he directed a verdict for the plaintiffs, reserving leave to the defendant to move to enter a nonsuit.

Miller, Serj., having, on the 28th of January, obtained a rule nisi for a nonsuit or for a new trial on the ground of misdirection, —

E. James (Bramwell with him) now showed cause. The defendant is not at liberty to set up the jus tertii, namely, the right of the ordinary to the goods as the true owner when the ordinary himself makes no claim to them. (He was then stopped by the court.)

1 20 Law J. Rep. (N. s.) Exch. 291.

White & another v. Mullett.

Miller, Serj., and Corrie, in support of the rule. The goods cannot be said to have been in the order and disposition of the bankrupt at the time of the bankruptcy with the consent of the true owner; for Mitchell, having died intestate at the time of the bankruptcy, the ordinary was the true owner of the goods, and no consent on his part was proved. The defendant is not estopped from saying that the goods at the time of the bankruptcy were not the goods of the assignees, as he did not sell them as the property of the assignees, but as the property of the bankrupt.

[Pollock, C. B. Suppose the bankrupt had asked the defendant to pay him the proceeds of the sale of the goods. The defendant could not have refused to pay him. The defendant cannot set up the jus tertii until there is a tertius.]

The defendant is not a wrong-doer as against the assignees; he is a wrong-doer only as against the true owner, namely, the ordinary. [Pollock, C. B. Take the case of Armory v. Delamirie, 1 Str. 505. Suppose in that case the chimney-sweeper's boy who found the jewel had become bankrupt, and his assignees had sued the jeweller, could the defendant have defended himself by alleging that it did not belong to the finder? So, in the present case, if the bankrupt could have sued the defendant successfully, his assignees can do so.]

The bankrupt could not have maintained trover in this case. [Pollock, C. B. No; because the plea of leave and license would be a good plea; but when the assignees bring the action, the plea of leave and license is out of the question.]

Here the property in the goods belonged, not to the bankrupt, but to the ordinary.

[Pollock, C. B. It was the same in Armory v. Delamirie; the defendant cannot defend himself on the title of a party who does not interfere in the matter.]

That would be so if this were an action for money had and received.

[Pollock, C. B. And the same rule holds in trover, which is merely a substitute for the old action of detinue, as well as in detinue, debt, or assumpsit. His lordship referred to The King v. Walsh, Russ. & Ry. 215.]

The goods were not in the order and disposition of the bankrupt with the consent of the true owner, namely, the ordinary.

POLLOCK, C. B. This rule must be discharged. It is a well-established principle, that where a party receives property from a bankrupt, as his property, after the fiat, and sells it as the bankrupt's, the assignees may recover the value. If the bankrupt in this case had not been a bankrupt, he conld have sued the defendant, and the latter could not have set up the title of the ordinary, unless he had the leave of the ordinary to do so. The assignees are entitled to say to the defendant, "As against us you had this property as the prop erty of the bankrupt, and sold it without our authority."

ALDERSON and PLATT, BB., concurred.

Blair v. Jones.

MARTIN, B. As the bankrupt stated the goods to be his property, and employed the defendant to sell them, and an act of bankruptcy had been committed at the time of the issuing of the fiat, the assignees were clearly possessed of the property as against the bankrupt, for at the time of the act of bankruptcy there was an assignor in existence in contemplation of law. Oughton v. Seppings, 1 B. & Ad. 241; s. c. 8 Law J. Rep. K, B. 394, is in point. There a sheriff's officer had wrongfully seized under a fi. fa., against A., a horse belonging to B. The horse was sold by the sheriff, and the money paid over to the officer. B. brought an action against the officer for money had and received to recover the amount. It appeared that the horse had belonged to her husband, but that, after his death, she had provided for its keep. No letters of administration were produced. It was held that this was sufficient evidence against a wrongdoer to entitle her to recover in an action for money had and received. I think, therefore, that the learned judge at the trial was right, and that this rule must be discharged. Rule discharged.

Where an award, being defective, is referred back by the court to the arbitrator, who hears fresh evidence and makes a second award, the arbitrator's charges for the first award are to be borne equally by each party.

THIS was a rule calling upon the plaintiff to show cause why the taxation of the costs of the reference in this case should not be reviewed, under the following circumstances:

A cause and all matters in difference having been referred to certain arbitrators, they made an award, which, being considered by this court informal and defective, was by rule of court referred back to the arbitrators. The arbitrators having thereupon heard fresh evidence and made a second award, and the master having proceeded to tax the costs, the plaintiff made an item of charge against the defendant of 671. 7s. 6d. for payment to the arbitrators for the first award. This item the master allowed to the plaintiff, but, entertaining doubts on the subject, referred the parties to the court. The particulars of the charges of the arbitration were not stated by the arbitrators.

Mellish now showed cause. The master was right in the view he took of this case; the plaintiff was entitled to the costs of the first award. The master proceeded on the ground of the transaction being one reference and one hearing only.

1 20 Law J. Rep. (N. s.) Exch. 295.

Awde v. Dixon.

[Alderson, B. The question is, whether the first costs have been thrown away, or whether they have been useful, with reference to the second award.]

[The master stated that it was not usual to examine the particulars of an arbitrator's charges.]

[Alderson, B. The charges for stamps, and for meeting to settle the award, would certainly be a loss.]

The arbitrator cannot be compelled to deliver items of his charges. [Alderson, B. The master has not considered the matter in the point of view in which the court regard it. He has allowed all the charges of the first and also of the second award, whereas the costs of the defective award have been actually thrown away.]

That was because the parties called fresh evidence.

[Alderson, B. As between the two parties, the loss ought to be equally divided.]

Spinks, in support of the rule, was not called upon.

Per curiam. The matter must go back to the master, who will divide the costs equally between the two parties.

Rule absolute.

AWDE V. DIXON.2

Trinity Vacation, June 23, 1851.

Promissory Note - Liability of Maker - Limited Authority.

The defendant agreed to join his brother in making a promissory note on the representation that one R. would also join, and that he, the defendant, should not be responsible unless R. also joined. The defendant signed the note jointly with his brother; R. refused to sign, and the brother, without the defendant's knowledge, delivered the note to the plaintiff for

value:

Held, that the defendant was not liable on the note.

ASSUMPSIT by the plaintiff as payee against the defendant, as the maker of a promissory note.

Pleas― First, non fecit. Second, that the note was the note of the defendant and Richard Dixon; that the defendant subscribed the note as maker, and delivered it to R. Dixon for the accommodation of R. Dixon, and on the terms only that the note should be subscribed by one Robinson as a joint maker, with the defendant and R. Dixon, and that R. Dixon should not deliver the note to any person without Robinson having first signed the same as maker; that before the note was delivered to the plaintiff, Robinson refused to sign the note; that R. Dixon delivered the note to the plaintiff without Robinson

1 POLLOCK, C. B., ALDERSON, PLATT, and MARTIN, BB.

2 20 Law J. Rep. (N. s.) Exch, 295.