Allcard v Wesson
| Jurisdiction | England & Wales |
| Judgment Date | 02 June 1852 |
| Date | 02 June 1852 |
| Court | Exchequer |
English Reports Citation: 155 E.R. 1153
IN THE COURTS OF EXCHEQUER AND EXCHEQUER CHAMBER
S C 21 L J Ex 281 affirmed, 8 Ex 260
AijLCAHD v wesson. June 2, 1852 -A plea of a certificate granted by a Commissioner in bankruptcy to a petitioning trader, under the 221st section of the 12 & 13 Viet c 106, is bad, unless it avers "that the resolution or agreement has been carried into effect, and the creditors of the trader have been satisfied."- Semble, also, that such certificate is binding on those persons only who are creditors at the time of the petition, and have had notice of the sittings of the Court, as required by the Act, and therefore, where a petitioning trader, being the acceptor of a bill of exchange, gave the requisite notice to the drawer of the bill, whom he supposed to be the holder, the certificate was invalid against an indorsee without notice, who was in truth the holder, notwithstanding the trader had no means of ascertaining that fact [S C 21 L J Ex 281 affirmed, 8 Ex 260 ] Assumpsit on a bill of exchange, drawn by J Plews upon, and accepted by, the defendant, and by J Plews indorsed to the plaintiff Plea, puia dairein continuance, that, more than six calendar months next previous to the presentation and filing of the petition of the defendant to the Court of Bankruptcy as heremaftei mentioned, and thence continually to such presentation, &c, thq defendant was a trader, daalei, and chapman, to wit, a pianofotte key hammer Ex Div XJ- 37 1154 ALLCARD V WESSON 7 EX 76* rnaka,r, within and subject to the powers and provisions of "The Bankrupt Law Consolidation Act, 1M9," and, dining all that time, the defendant resided and car-[f54]-ned on his business as such trader within the London district of the Court of Bankruptcy , and as such tradet, the defendant then became and was indebted to divers persons ot true and just debts, who then became and weie creditors of the defendant, and so lemained and continued up to the time of the ptesentation to the Court of Bankruptcy, by the defendant, of the said petition, and the filing thereof, and thereupon, and whilst the defendant was such trader, and whilst he was so indebted, and after the accepting of the bill of exchange as in the declaration mentioned, and the accruing of the causes of action in respect thereof, and after the coming into operation of "The Bankrupt Law Consolidation Act, 1849," and whilst the bill was outstanding, and whilst the defendant was liable theieon to the holder thereof, to wit, on &c, the defendant became and was unable to meet Ins engagements with his creditors, and did thereupon then duly, and according to the powers and provisions of "The Bankrupt Law Consolidation Act, 1849," and in tuannei and form aa therein directed, present a petition in wilting to her Majesty's Court of Bankruptcy in London, being the Court within whose jurisdiction the defendant had so previously resided and carried on his business as a tiader for six calendar months previously to his presenting such petition and the filing thereof, and the petition was and is in the form contained in the Schedule A a to the said Act annexed [The plea then set out the petition, and stated that it was filed in the Court of Bankruptcy, that the date of the tiling was indorsed thereon, that the petition was signed by the defendant, m the presence of the sohcitoi irr that matter, and was duly prosecuted by the defendant, that there was filed therewith an affidavit of the defendant, in the form of Schedule A b , and that thereupon the Court of Barrkruptcy granted to the defendant protection from process against his person or property until a certain day, whrch had not elapsed at the commencement of this suit, and [755] appointed an official assignee] That the Court of Bankruptcy did, after granting such protection, to wit, on &c, duly and according to its course of practice in that behalf, and the powers and directions of the said Act, appoint a private sitting to he held irr the matter of the said petition, at a certain then future day and place, to wrt, on Ac That, fourteen days before the said private sitting was held, notice of the same was given in writing to every person whom the defendant then knew to be then a creditor of the defendant, or whom he had any means of knowing was then such creditor , arid, amongst others, to J Plows, so then being the drawer of the bill in the declaration mentioned such notices being given in manner and form as required by the statute, to wit, by each of the notices being therr sent by post, addressed to each of such crerlrtors at his last knowrr place of business That the defendant did not, at the time when such notices, or any of them, were given and sent, know, nor did the Court of Bankruptcy or the official assignee know, that J Plews had indorsed the bill to any other person whatever, or that J Plews was not their the holder thereof, or who was then the actual holdar of the bill or entitled to the proceeds theieof other than and except J Plews, or the address, description, or locality of such holder That the defenrlarrt did, ten days before the day appornted for the said private sitting of the Court, to wit, orr &c , duly, and according to the foim, rules, arid course of practice of the Court of Barrkruptcy, file in Court a full account of his debts and of the consideration thereof, and the names, residences, and occupations of his then cieditors, and, amongst others, a full abcount of the debt and cause of action in the declaration mentioned , that is to say, by stating in such account, that J Plews, of &c , was a ciedrtor for 371 for goods, and had a hill due the 6th of August, 1851, for the said sum, and also a full account of his the defendant's estate and effects, &c , and did also therein set forth such proposal as he was then able to make [756] for the future payment or compromise of such debts or engagements, to wit, a proposal, to the effect that the defendant would pay l|is creditors a composition of seven shillings and sixpence in the pound on their respective debts, payable in equal proportions of two shillings and srxpence each, at thiee, six, and nine months, from the 1st of August, 1851 , and the defendant did, at the s$me time when he did so hie such account, furnish the official assignee with a copy oi such account, arid at the pnvate sitting of the Court so appointed, to wit, on &c , and after the said bill became due and payable, and before the commencement of thrs suit...
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