Queen's Bench.-Marshal v. Lamb.-Exchequer.-Lockhart v. Barnard. In the Queen's Bench. Before the Right Honorable THOMAS LORD MARSHAL V. LAMB. BANKRUPTCY-FRAUDULENT PREFERENCE. payment made to a creditor by a bankrupt, after an act of bankruptcy committed, although the preferred creditor takes no benefit by such preference, is a fraudulent preference and void. THE question in this case was, whether a payment made by a bankrupt was a fraudulent preference. It appeared that the bankrupt borrowed 7001. from the defendant on a mortgage of his wife's estate, and also of his sister's estate, and a policy of insurance belonging to the bankrupt himself. He covenanted to pay the mortgage money; and after committing an act of bankruptcy, he took the money to the creditor who received it and gave up the title deeds. This suit was brought by the assignee against the mortgagee for the amount of the payment, when a verdict was obtained for the plaintiff. A rule for a nonsuit or new trial having been granted cause was now shewn. In the Exchequer. Before the Right Honorable SIR FREDERICK LOCKHART V. BARNARD.-Nov. 3, 1845. Where an advertisement offers a stated reward to any person who will give such information as may lead to the early apprehension of a thief, and such information is given jointly by two persons, both must sue for the reward. The information entitling to the reward in such a case must be communicated with the view of being acted on, and Semble, may be given either to the party advertising the reward, or to his agent, or to any person authorized to apprehend the criminal. ASSUMPSIT. The declaration alleged that the defendant caused to be printed and published a certain advertisement, stating that a certain parcel, &c., containing certain bank notes and bills of exchange, had been lost; and that the defendant, by that advertisement, promised to whomsoever would give such information as might lead to the immediate recovery of 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 100l. 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 assignees 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 1007.: 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 to repay it. The payment, therefore, was emphatically a payment of the bankrupt's debt, in order to release the property of his friends, which they had mortgaged for his benefit; and the defendant did receive twenty shillings in the pound out of the bankrupt's estate, to the prejudice of other creditors, although it was no benefit to him, for he would have been as well off, if he had kept the mortgage deeds. He is preferred quoad the bankrupt's intention; and although the motive for giving that preference was ultimate advantage to the bankrupt and his own family, and not to the creditor, we think the preference fraudulent and the payment void. Rule discharged. the early apprehension of the said J. R. in the declaration named, &c.; concluding to the country: thirdly, a plea (which was afterwards abandoned by the defendant's counsel) to the effect, that J. R. was not the only guilty party. At the trial before Alderson, B., it appeared that the defendant had sent a parcel by coach from Bedford to London, containing bills of exchange and bank notes to a considerable amount. The parcel not arriving at its destination, the defendant published a handbill, containing an offer of 100l. to any person who should give such information as might lead to the immediate recovery of the parcel if lost, or the early apprehension of the guilty party if stolen. It was then proved, Exchequer.-Lockhart v. Barnard. that, soon after the publication of this handbill, one J. R. offered the plaintiff 107., one of the missing notes in payment for some goods sold, who, suspecting it to be forged, (not stolen,) communicated his suspicion to a neighbor of the name of Cheshire, who, in his turn, informed the plaintiff that J. R. had also given notes to him and another person in the neighborhood. The plaintiff and Cheshire having afterwards heard of the robbery, communicated the above facts to some neighbors, and, after they had conversed about it, the plaintiff proposed to go for a constable, but one of the parties present of the name of Robinson, said he had better go, and went accordingly. He and the constable succeeded in tracing out and apprehending J. R., but the plaintiff was the only person who could identify him as being in possession of any part of the stolen property; and he was ultimately convicted and transported. On this state of facts, two objections to the plaintiff's right to recover were made by the defendant's counsel: first, that the information which led to the conviction of the thief ought to have been given either to the person offering the reward or to an agent of his, or to some officer of justice; secondly, that the information having been given by the plaintiff and Cheshire jointly, both ought to have sued. Alderson, B., directed the jury to find for the plaintiff on the first and third issues, and on the second, left it to them to say whether the plaintiff communicated his information to the constable first, or whether he first communicated it either to Cheshire or Robinson, in order that they might communicate it to the constable; in either of which events they should find that issue also in favor of the plaintiff: but, if the plaintiff only communicated his information to Cheshire for the purpose of setting farther inquiries on foot, and they both afterwards communicated it to the constable, then the defendant was entitled to the verdict on that issue. The jury found the first and third issue, as directed by the judge; and, as to the second, said that they considered that the information given to the constable, and which led to the apprehension of the felon, was given to Robinson by the plaintiff and Cheshire jointly; whereupon the judge ordered the verdict to be entered on that issue for the defendant, reserving leave to the plaintiff to move to enter a verdict on it for himself. The information given by the plaintiff to Cheshire in the first instance, was the information which led to the apprehension of the criminal, within the terms of the advertisement; and, if so, the non-joinder of Cheshire is immaterial. Were this not so, the original informer might be deprived of his reward by any person to whom he happened to disclose the information carrying it in his own name to the party advertising. Neither does it make any difference that the plaintiff, at the time he gave that information, did not suspect the theft: Williams v. Carwardine, 4 B. & Adol. 621. Then the case of Lancaster v. Walsh, 4 Mee. & W. 14, is an authority that it is sufficient, if the information be given to a constable; and the reason of that case applies here, for, where a felony has been committed, private individuals are armed by law with the same powers as a constable to bring the felon to justice, and are, indeed, bound to exert themselves to do so. POLLOCK, C. B.-No rule ought to be granted in this case. I quite concur in the direction given by my brother Alderson, and think that the jury have come to a correct conclusion. The question is, what is the meaning of the words "such information as may lead to the early apprehension of the guilty party?" In the case of Lancaster v. Walsh, which has been referred to, it was decided, that material information given to a constable was within the meaning of such a handbill as this; and, although I am not prepared to say that there may not be cases where the doctrine of that case might be extended to other parties than constables, it is clear that there are no circumstances in the present case to render it one of them. The plaintiff here communicates his information to Cheshire, who, in return, communicates some to him; on which the two, taking their joint information into consideration, deem the matter so serious as to call for farther inquiry, and afterwards jointly communicate it to Robinson to be communicated to a constable. I think, therefore, that the jury were perfectly right in coming to the conclusion, that the information which led to the detection of the felon was not given by the plaintiff alone, but by him jointly with Cheshire. PARKE, B.-I am of the same opinion, and 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 plea 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 Cheshire to have jointly communicated this information to the constable, they ought both "I have accepted the bill for 2007., and also to join in the action? And, as only one re- the one for 1801. There was another bill for ward is offered for certain information, and 1007. 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 have been justified in finding the general issue also in his favor, although it is not necessary to enter into that at present, as there is no motion before us to set aside the verdict on that issue. ALDERSON, B.-I am quite satisfied that I did wrong in directing the jury to find as they did on the plea of non-assumpsit. ROLFE, B., concurred. Rule refused. Court of Common Pleas. Before the Right Hon. Sir NICHOLAS TINDAL, CAMPBELL V. WEBSTER.-Nov. 7, 1845. EVIDENCE-BILL OF EXCHANGE-PROTEST NOTICE OF PROTEST. A promise made by the drawer to pay a foreign bill of exchange, although such promise be made conditionally, is evidence that protest of such bill has been made, and notice thereof given to him. THIS was an action of assumpsit brought upon "Burlington Hotel, Cork-st. London. Mr. Campbell, that bill; and, as I have not yet received the account you were to have sent me, I have no means of ascertaining anything about it. I have deferred paying that bill until such time as I should hear from you about it. If it should be all right, draw on me again for the amount, and I will pay it so soon as I know something of it. (Signed) "ARTHUR WEBSTER." a foreign bill of exchange for 1007., 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. То 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." could I have wanted it for? I never bought a horse from an artillery officer in my life, and the first horse I bought in Halifax was on the 19th November; I then, as you know, did not pay Mayer for it for a year. As I said to you before, if you send home a cheque for the 501. sterling to England, I will cause the 1001. bill to be paid immediately, and we shall then be square. (Signed) 66 ARTHUR WEBSTER." tested, and that he had had notice thereof. the like effect are the cases of Patterson v. Becher, 6 Moore 319, and Greenway v. Hindley, 4 Camp. 52. There is abundant evidence in these letters from which a promise to pay may be inferred. Many cases have been decided in which the expressions used by the defendant were far less strong than those used in the present case, and yet have been held as admitting the fact of notice of dishonor. Booth v. Jacobs, 3 New. & M. 351; Wilkins v. Jadis, 1 M. & Rob. 41, which is the stronger authority, since Mr. Campbell, the counsel for the defendant, appears to have referred to the law as laid down trial upon that point, although he moved by the judge, as he forbore to move for a new The learned judge told the jury, that, if they thought these letters contained an acknowledgment of liability upon the bill, they might infer, that, within the defendant's knowledge, the bill in question had been proThe jury found for the plaintiff, damages upon other grounds, and was refused a rule. 1057. 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 this verdict, and for a new trial, upon the ground that these letters, if admissible, were evidence only of a waiver of protest and notice, and that, therefore, the learned judge misdirected the jury in leaving this evidence to them in support of the issues above referred to. In moving for the rule, the case of Burgh v. Legge, 5 Mee.& W. 418, was cited. your favor certainly.] Curlewis v. Corfield, 1 Q. B. Rep. 314; Dixon v. Elliott, 5 Car. & P. 437; Horford v. Wilson, 1 Taunt. 12. So, part payment is such an admission as to Brownell v. Bonney, 1 Adol. & Ell. 39. Nodispense with proof of notice of dishonor. of a foreign bill of exchange. Burgh v. tice of protest is, in fact, notice of the dishonor Legge, 5 Mee. & W. 418, is very distinguishable from the present case. There, not only was there no proof of any notice of dishonor having been given, but the conduct of the parties shewed that there never had been. Parke, B., there says, "In the present case there is no proof of any such notice, but rather the contrary, for the defendant applies to the plaintiff for more discount, and says, the other bills would not be paid; and, as to notice, that it would not be worth while to give it, for the drawer had since become bankrupt. The meaning of this rather is that the plaintiff did not send notice of the dishonor, than the contrary." Byles, Serj't, (with whom was Phinn,) shewed cause. The direction of the learned judge was right. Although a protest is necessary in all cases where a foreign bill has been presented for acceptance, and dishonored, in practice it is only begun on that day, (an incipient process which is called noting,) and it may be drawn up and completed at any time before the commencement of the suit. An admission, therefore, of having received such a notice, is, in fact, an admission of the fact of a protest having been made. Now, either a presentment for payment, or protest, 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. Crozon 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 507. 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 50l. 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 Mee. & W. 418. sion. COLTMAN, J.-I am of the same opinion. If an express promise to pay the bill was necessary, 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 received; 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 pay 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 1007. 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. |
