1833. guineas admitted the right of the assignees, by which he is precluded. The assignees, as holders, have all the GREENWOOD. right upon the bill as such. Ex parte In the matter of BAILLIE and another. All questions open on rehearing. [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. 1833. Ex parte In the matter of BAILLIE As to jurisdiction, as a creditor has a summary remedy GREENWOOD. 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? 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. Sir John Cross said he was not prepared to give his This petition stood over, from my unfortunately differing from my learned colleagues. [His Honor here stated the facts of the case.] If the This petition was heard in 1832, when three of the judges (Sir George Rose not being in Court), after a full hearing, decided that the certificate was a bar, but that the statute of limitations did not apply, as it was a case of fraud. Nothing is done for twelve months, and then an application is made for a special case, and, when that could not be settled, a petition for a re-hearing was presented by Greenwood, in order to obtain the decision of the Court on the question of fraud, so as to enable him to have the special case settled for the purpose of appealing. When the re-hearing came on, Sir George Rose stated that the original order made was invalid for want of parties, and that the assignees must, therefore, begin de novo. In this I am unable to concur. error were apparent on the face of the petition or order, the Court of Appeal could rectify it immediately. If the objection were not so apparent, and required to be urged by counsel in argument, it is too late: Greenwood has repudiated being trustee for any one. Now it is proposed to rescind the order, and dismiss the original petition, on the ground of a jus tertii; an objection not taken by Greenwood or his counsel, but by the Court. And, unless there be any imperative inflexible rule to prevent it, justice demands that this case should be again re-heard. The Court ought not to surprise parties with objections of its own. The parties desired a re-hearing as to the question of fraud, and to that they ought to be confined, and the assignees ought not now 1833. Ex parte GREENWOOD. In the matter of BAILLIE and another. Jan. 31, 1834. 1834. Ex parte GREENWOOD. In the matter of BAILLIE and another. Feb. 20, 1834. to be dismissed the Court upon a point of form. It is alleged that the drawer has an interest in the bill, and we are called on to presume this fact; but as the parties who could furnish evidence of the real facts have been dead so many years, I can only consider the case as it appears before us. Upon Cox's death his representatives handed the bill over to the assignees, from which it clearly appears they considered they had no interest in it, yet we are called upon to presume a jus tertii after this lapse of time. When this matter was under discussion in this Court in 1832, the only defence suggested by the affidavits of the respondent, or urged by his counsel at the bar, was the answer given to the application made by the assignees before the petition was presented; namely, that Greenwood had received the dividends in question in ignorance of the fact that Parker had received payment of the bill in his lifetime; and that, as the five first dividends had been received, without fraud, more than six years before the application to refund, the respondent was entitled to avail himself of the legal defence afforded by the statute of limitations; and that the last dividend, therefore, amounting to three guineas, was all that the assignees were entitled to, and that that sum had been tendered to them and refused; and that, if not protected to the full extent by the statute, he was at least entitled to retain the three first dividends received before the date of his own commission, under which he had obtained his certificate. In the course of the argument it was suggested to the counsel by me, whether the respondent might not be considered as holding the dividend in trust for Cox, who had taken up the bill for the honour of one of the drawers, which was assented to at the time, and followed up by the remark, that, in that view of the case, Cox |