1832. Ex parte BOLTON of mation Greenwood had of Parker having proved. Since the first order of dividend, six several dividends were, between 1811 and 1828, declared, and were respectively received by Greenwood. The assignees did not, at the In the matter time of any of the payments, require the production of the bill; and it was not, till within six months of the petition being presented, that they discovered it had been paid to Parker, the bill having remained in the possession of Cox. In 1816 a commission issued against Greenwood, under which he obtained his certificate on the 8th September 1817. As executor of Parker he proved a debt of 2007. under his own commission, in respect of monies due to the estate of Parker to the date of his commission. In December 1831 the assignees applied to Greenwood to refund the amount of the several dividends, which he refused; but tendered to them the last dividend, amounting to 31. 3s. 1d., paid to him after he had obtained his certificate. This was a petition by the assignees of Baillie and Jaffray, praying that the proof made by J. Parker for 1,5147. 78. might be expunged, and that Greenwood might refund to them the several dividends, and pay the costs of the petition. Mr. Swanston and Mr. Richards for the petition :The dividends having been paid in ignorance that the debt was fully paid, Greenwood must refund the amount, and the proof be expunged. Two objections will probably be made to this application; the statute of limitations, and the certificate of Greenwood. The statute of limitations does not, however, apply to BAILLIE and another. 1832. Ex parte of BAILLIE and another. this, which is a case of fraud. The respondent admits that he received the dividends without finding any document amongst Parker's papers shewing he was entitled, In the matter and merely because inadvertently a letter had been addressed to Parker by the solicitor. Even if there had not been any fraud, the statute would not be a bar to any part of this demand; for six years had not run between the receipt of the first dividend by Greenwood and the time he became bankrupt, ex parte Ross, 2 Gl. & J. 46. 330. The payment of a dividend is in the administration of a trust, and therefore may be recalled at any time. (a) The same observations apply as to the certificate being a bar; for the certificate does not release the bankrupt from pecuniary demands in cases of fraud, Mackworth v. Marshall, 3 Sim. 368. That this is a case of fraud appears from the facts, and from the respondent not having applied any of the dividends to the use of the testator's estate. The assignees are, therefore, entitled to the order as prayed. Mr. Montagu and Mr. Quin for the respondents :There are four objections to this application:-1st, the Court has not jurisdiction over an executor, ex parte Crow, Mont. & M. 281, the remedy being by bill or by action; 2dly, the demand is barred by the statute of limitations; and, 3dly, by the certificate; 4thly, the drawer of the bill is not before the Court. This is not a case of fraud, for the utmost which appears is that the dividends may have been paid by the assignees in their own wrong, and received by Green (a) See Galway v. Barrymore, 1 Dick. 163, Burke v. Jones, 2 V. § B. 275. Ex parte Roffey, 9 Ves. 468. 1832. Ex parte wood in error, both parties being ignorant of their re- to the dividends, the amount received prior to his The CHIEF JUDGE:-This is a petition by the assignees, praying to expunge a proof upon a bill accepted by the bankrupts; and that Greenwood, the executor of the creditor, who proved, may refund the dividends received by him. The bill was not due till twelve months after the commission issued, when it was dishonoured by the bankrupts; and, being protested, Cox paid it for the honour of the drawer. The payment of the bill to Parker does not clearly appear, but the assignees produce the bill which they state they received from the executors of Cox, with a receipt endorsed upon the protest; and it may, therefore, be inferred, that it was paid to the holder. Previous to Parker's death in 1807, a dividend of 1s. 3d. in the pound was made, but which has not been claimed. In January 1811 a second dividend of 1s. was declared, and the assignees, in ignorance of the fact that the bill was paid, sent a circular to Parker, who, being dead, his executor received the circular, and claimed the dividend, which was consequently paid to him. In July 1814 a third dividend of Is. 4d. was declared; and, in 1815, a fourth. Greenwood, the executor, became bankrupt in 1816, previous to which he had received two other dividends. He, as executor of Parker, In the matter of BAILLIE July 18. 1832. Ex parte In the matter of Baillie and another. proved about 2007. under his own commission as due to Parker's estate, and he obtained his certificate in 1822; and, in 1828, further dividends were declared under Baillie's commission, which were paid to Greenwood. The assignees have since discovered the fact of the bill having been fully paid in 1807, and they now call on Greenwood to refund the dividends which they paid in ignorance. As these payments were made by assignees to a creditor in respect of a proof, they must be considered as payments made in the administration of a trust, in which all the creditors of Baillie are interested. Upon the principles, therefore, by which courts of equity are governed in the administration of trusts, and in compelling legatees to refund for the benefit of creditors, notwithstanding the lapse of time, or the negligence of the executor, the Court is of opinion that the statute of limitations is not a bar; and that, in such cases, the statute does not apply. The amount of the payments previous to Greenwood's bankruptcy and certificate, although made in ignorance, was a legal debt, which might have been proved under his commission, and may, upon Parker's proof being expunged, now be proved. The certificate is, therefore, a bar. The proof must be expunged. Sir Albert Pell: - In cases of fraud the statute of limitations does not apply, Bree v. Holbeck, Doug. 656. South Sea Company v. Wymondsdell, 3 P. W. 143; and I am of opinion that this is a case of fraud. Greenwood received the dividends as executor, and was bound to apply them to his trust estate, instead of which, in fraud of the trust, he applied them to his own use, consequently the statute is not a bar. I abstain from giving any opinion as to the effect of the certificate; but I am not satisfied how a certificate can be a bar in cases of fraud. Sir John Cross concurred with the C. J. Sir George Rose was absent. The order was, that the proof be expunged, and that Greenwood should refund the dividends received since his certificate, with costs. 1832. Ex parte of BAILLIE and another. Ex parte GREENWOOD.-In the matter of BAILLIE and JAFFRAY. FROM the decision in the preceding case of ex parte Bolton, Greenwood was desirous to appeal to the Lord Chancellor, and a special case was prepared and approved by both parties, and submitted to Sir John Cross for his signature; but the statements did not meet his Honor's approbation, and a considerable time elapsed before he finally determined, when it was returned with an alteration in the statement of one fact with which Greenwood was dissatisfied. This was a petition for a re-hearing, and it prayed that the order might be reversed, or that the fact in the special case upon which Sir John Cross did not agree with the parties might be found by the Court. Mr. Swanston, for the assignees of Baillie and Co., objected, 1st, that following the rule in Chancery, a petition could not be re-heard after the lapse of six months. C. R. Nov. 6, 1833. A petition of rehearing in bankruptcy is not limited to six months. which the re- Upon an appli cation by expunge a proof upon a bill of exchange by the the acceptor, holder against because the bill had since been paid by a third party, the drawer must be served, notwithstanding the assignees have the bill in their possession. |