Alsager and Another, Assignees, of Richard Parker, a Bankrupt v Close
| Jurisdiction | England & Wales |
| Judgment Date | 22 November 1842 |
| Date | 22 November 1842 |
| Court | Exchequer |
English Reports Citation: 152 E.R. 600
EXCH. OF PLEAS.
S. C. 12 L. J. Ex. 50.
alsauer and another, Assignees, of Eichard Parker, a Bankrupt v. closk. Exch. of Pleas. Nov. 22,"l842.-Where a bill of exchange for 16001. was deposited with the defendant by a bankrupt, as an indemnity to a third person against a bond which he had executed to the petitioning creditor, under tlie 1 & 2 Viet., c. 110, s. 8, and the defendant refused to deliver up the bill oil the demand of the assignees of the bankrupt, although they shewed him the bond in a cancelled state; and he afterwards obtained 8001. on the bill:-Held, in trover by the assignees for the bill, that the obtaining money on the bill was an actual conversion of the bill, for which the bankrupt, if no bankruptcy had intervened, might have sued, and therefore that the case was within the i)2nd section () Lord Abinger, C. B., Parke, B., Alderson, B., and Eolfe B. 10 M. SW. 577. ALSAGER V. CLOSE 601 of the Bankrupt Act, 6 Geo. 4, c. 116, and the depositions under the fiat were conclusive evidence of the bankruptcy.-Held (by Lord Abinger, C. B.), that the case would have been within that section, even if there had been no evidence of a conversion except the demand and refusal.-Held also, that the production of the bond by the assignees to the defendant in a cancelled state was prima facie evidence that it was cancelled with the consent of the obligee.-Held also, that inasmuch as there was a conversion of the whole bill, 16001. was the proper measure of damages, although 8001. only remained due on the bill. [S. C. 12 L. J. Ex. 50.] This was an action of trover, brought by the plaintiffs as assignees, to recover a bill of exchange for 1600. The defendant pleaded, first, not guilty ; secondly, that Richard Parker was not a bankrupt pursuant to the statutes, &c.; and, thirdly, that the plaintiffs were not possessed of the bill as of their own property as assignees : on which issues were joined. The defendant also gave notice of disputing the petitioning creditor's debt, the trading, and the act of bankruptcy. At the trial, before Lord Abinger, C. B., at the London Sittings after Trinity term, it appeared that the action was brought to recover a bill of exchange for ,1600, which had been deposited by the bankrupt with the defendant as an indemnity to Messrs. Margetson and Leake against a bond [577] which they had executed, jointly with the bankrupt, to John Parker, the petitioning creditor,:under the stat. 1 & ~2 Viet. c. 110, s. H. The plaintiffs having demanded possession of the bill, the defendant promised that he would give it up if the bond were cancelled and surrendered. Another demand was afterwards made, and the bond was on that occasion shewn to the defendant with the seals torn oft'; but he refused to give up the bill, and said he should hold it for Margetson and Leake. No evidence was given by whom or in what manner the bond was cancelled. The defendant afterwards discounted the bill, and raised 800 upon it. The plaintiffs tendered in evidence the depositions taken under the fiat in bankruptcy. This evidence was objected to for the defendant, on the ground that this was not a case in which the bankrupt could have brought any action if his bankruptcy had not taken place, and therefore not within the 92nd section of the 6 Geo. 4, c. 16. The Lord Chief Baron, however, received the evidence. The plaiatiffs also produced the bond in its cancelled state, but its reception in evidence was resisted, unless evidence were given of the intent of the cancellation, or of its having been made with the knowledge of the obligee. His Lordship overruled the objection, and received the bond in evidence : and the plaintiffs...
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