1833. Ex parte GREENWOOD. In the matter of BAILLIE and another. Nov. 7. Mr. Montagu was not called upon to answer the objection. Per Curiam:-There is no such rule in bankruptcy (a), and a petition may be re-heard at any time, especially under such circumstances as in this case. Sir John Cross did not concur, thinking, that after the lapse of time, and the special case having been prepared, the re-hearing was precluded. Objection overruled. Mr. Swanston then objected, that the petition of rehearing did not specifically state the ground upon which the re-hearing was asked. Per Curiam :-Petitions of appeal and of re-hearing need not state the grounds; if they do, the party is limited to the special grounds stated. Objection overruled, Sir John Cross dissentient. Mr. Montagu and Mr. Quin for the petitioner. Sir George Rose, upon the petition being opened, said, that the order was defective upon the face of it, it not appearing that the drawer of the bill had been served or appeared upon the original hearing, and that the proof (a) See ex parte Dewdney, 15 Ves. 479. Ex parte Roffey, 19 Ves. 467. Ex parte Baker, Mont. & M. 279. Ex parte Bolland, Mont. & M. 327. Ex parte Tindall, Mont. 379. 1833. Ex parte could not be expunged in his absence, as he was, upon the payment of the bill, entitled to all the dividends, unless it were an acceptance for the drawer's accommoda- GREENWOOD. tion, which does not appear upon the petition; and even if it had so appeared he would be a necessary party. THE CHIEF JUDGE:-There are two points; 1st, that no question on the merits can be raised in the absence of the drawer; and, 2dly, that the petition does not state such a case as warranted the order, as it did not appear that it was an accommodation bill. Primá facie, therefore, Parker, as indorsee, upon payment of the bill became trustee for the drawer, and the only way that can be answered is by shewing that it was an accommodation acceptance. I think, upon that question the drawer ought to be heard, which is the essential question now raised. It seems to have been overlooked by the Counsel and Court upon the original hearing, or, if mentioned at all, it certainly was not pressed by counsel. Mr. Swanston and Mr. Richards in support of the order : This objection, even supposing it would have been valid upon the original hearing, is now too late, the objection of want of parties being a preliminary objection. The only grounds of opposition relied on were the statute of limitations and the certificate. This objection supposes an interest in the drawer; but the bill is in the possession of the assignees, which is conclusive, as no demand could be made upon the bill without the possession, and they must therefore be considered as the owners. If the bill were outstanding the objection might perhaps be good. But Greenwood by the tender of the three In the matter of BAILLIE and another. 1833. Ex parte GREENWOOD. In the matter of BAILLIE and another. All questions open on rehearing. guineas admitted the right of the assignees, by which he is precluded. The assignees, as holders, have all the right upon the bill as such. [THE CHIEF JUDGE:-But then, as mere holders, the assignees would not have any right to make this application, as the Court would have no jurisdiction. It does not appear for what purpose the bill was given up by Cox. If because he had no interest, that is quite different to its being given up because the drawer had no interest. It was taken up by Cox, as stated by the assignees, for the honour of the drawer, who became entitled to all the dividends; and Greenwood, as representative of the holder, who proved, would be trustee for the drawer, and the assignees, having paid the dividends to Greenwood, could not recover them back. The whole question is open upon the re-hearing, and must be considered as if it were being heard for the first time; for although the present point was not pressed at the original hearing, yet if the Court now sees that the order is erroneous it will rectify it.] It seems that the assignees ought to have taken an assignment. [Sir George Rose :-They would not be in a better situation if they had an assignment; they might have a right of action, but there would be no jurisdiction in this Court. They would not have any greater right than a stranger taking an assignment of a debt.] It is not an assignment, but a release of all right upon the bill. The assignees claim the benefit of that release, by having the dividends returned which were paid in ignorance. It is not necessary, upon a question between the holder and a person who has received payment of a bill, that every person whose name appears upon the bill should be served. It is improbable that any claim would be made after the lapse of twenty-five years. As to jurisdiction, as a creditor has a summary remedy against assignees to enforce payment, so assignees are entitled to the same summary process to recover back dividends which have been received by a party who ought not to have received them. THE CHIEF JUDGE: It is to be regretted that this objection was not more pressed upon the former hearing, for the argument was upon the merits, that the statute of limitations and certificate barred any demand, by which it appears that Greenwood did not consider he had received them as trustee for any person, nor did he when he tendered the three guineas. The application was on the ground that Greenwood received the dividends in fraud of the bankrupt's estate. If it had been an accommodation bill, then he would have had no right to receive them; but that question could not be decided in the absence of the drawer. There is no allegation in the petition that it was an accommodation bill; and although it is not necessary that the same precision should be observed as in special pleading, yet the petition must state sufficient to lead to the fair inference. Here the only circumstance is the possession of the bill, but the delivery to the assignees might have been with a claim of the dividends, or it might have been the giving up the right which then existed on the bill, which would raise a very different question. The fair inference on the statement in this case is, that it was an ordinary mercantile transaction, and not accommodation. The giving up the bill may be a release as to future dividends, but how can it give a right to recall those which have been paid? 1833. Ex parte GREENWOOD. In the matter of BAILLIE and another. 1833. Ex parte GREENWOOD. In the matter of BAILLIE and another. As it is a re-hearing I will further consider the question. Sir George Rose :— I was not present upon the former occasion; and upon reading the order I looked at the petition to see if it sustained it. The facts are, shortly, that the bill was proved by the holder against the acceptor before it was due, and upon its becoming due was paid by the drawer. But did that give the assignees any right to have the proof expunged? Then it is said that the assignees have got possession of the bill, and that the mere circumstance of possession is to work a total extinguishment and release to the extent of entitling the assignees to have the proof expunged, and to recall the dividends paid before they had even the possession of the bill. But how can it have any such effect? The certificate might be an answer to any claim by Cox, though it might not as against a claim by the assignees. Is it to be a relinquishment to destroy all that has been done, or is it to be only a release and assignment as to future dividends? All the dividends which were paid to Greenwood appear to have been properly paid, and the only effect of any assignment is to give a right to any subsequent dividend. Any other view could not be sustained. Then, if the claim is by the effect of the bill being assigned, the certificate is a good defence, although it might not as between a creditor and the assignees, in consequence of the trust existing in the administration of the bankruptcy. In no view can the order stand, for upon the face of the assignees' petition it appears that the bankrupts were the persons primarily liable as acceptors, and the order ought to be rescinded. |