1832. Ex parte wood in error, both parties being ignorant of their respective rights at the time the payments were made. Any error which has arisen was from the laches of the assignees in not requiring the production of the bill In the matter when they paid the dividends. BOLTON of BAILLIE Supposing, however, that Greenwood was not entitled and another. 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 18. 3d. in the pound was made, but which has not been claimed. In January 1811 a second dividend of 18. 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 1s. 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, 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 BOLTON. In the matter 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 which Sir John Cross did not agree special case upon 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. rehearing in bankruptcy is A petition of not limited to six months. Upon an appli cation by assignees to expunge a proof exchange by the upon a bill of the acceptor, holder against because the bill had since been paid by a third party, the drawer must be served, notwith standing the assignees have the bill in their possession. VOL. I. 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 preliminery 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. |