Ashpitel, Executor of James Peto v Bryan
|England & Wales
|14 June 1864
|14 June 1864
|Court of the Queen's Bench
English Reports Citation: 122 E.R. 179
IN THE COURT OF QUEEN'S BENCH AND THE EXCHEQUER CHAMBER
Affirmed Exchequer Chamber, 5 B. & S. 723 (with note).
ashpitel, Executor of James Peto, against bryan. Tuesday, January 20th, 1863.- Estoppel. Bill of exchange. Acceptor. Denial of indorsement.-Declaration by the executor of B. upon a bill of exchange purporting to be drawn by A. and accepted by the defendant, and indorsed by A. to B. Plea, that A. did not indorse the bill. It appeared that A., who was possessed of goods, being the stock in trade upon his premises, died intestate and indebted to the defendant and other persons; and it was arranged between B. and the defendant, who were two of his next of kin, that the defendant should take possession of the goods and accept a bill of exchange for their value, purporting to be drawn and indorsed by A. The goods were accordingly delivered to the defendant, and the bill declared upon was drawn and indorsed to the plaintiff by procuration in the name of A., and accepted by the defendant. Held, that the defendant could not be allowed to set up as a defence to the action that the bill was not indorsed by A. [Affirmed in Exchequer Chamber, 5 B. & S. 723 (with note).] This was an action by the plaintiff, as executor of James Peto. The first count of the declaration stated that, in the lifetime of James Peto, on the 22d May, 1857, John Peto, by his bill of exchange, since overdue, directed to the defendant, required the defendant to pay to his order 3761. 2s. 3d., at sixty days sight, and the defendant then accepted the bill, and John Peto indorsed the same to James Peto in his lifetime, but the defendant had not paid the same. There were also counts for goods sold, money paid and money lent by Jamea Peto in his lifetime; and on accounts stated between James Peto, in his  lifetime, and the defendant; and a count upon accounts stated between the plaintiff, as executor of James Peto, a ad the defendant. First plea, to the first count. That John Peto did not indorse the bill as alleged. Second plea to the same. That the bill was drawn, indorsed and accepted, for the accommodation of James Peto, and without value or consideration, &c. Third plea to the same. That the bill was made and indorsed in the name of John Peto after his decease, and the defendant was induced to accept the bill after the decease of John Peto through the fraud of James Peto, deceased, who, in his lifetime, always held, and the plaintiff has always held, and still holds, the same, without any value or consideration. Fourth plea to the same. That John Peto, in his lifetime, carried on a trade, and was possessed of goods, being his stock in the said trade, of the value of 3761. 2s. 3d., and, before the drawing, indorsing or accepting of the bill, died intestate, and indebted to the defendant and other persons; and, at the time of the drawing, indorsing and accepting of the bill, it was intended and expected by the next of kin of John Peto, of whom the defendant and James Peto were two, that Jamea Peto should apply for and obtain letters of administration of the estate and effects of John Peto, and by and out of the said estate and effects pay the debts of John Peto, and it was proposed by James Peto that the defendant should take and convert to his own use the said stock in trade as if the same had been sold and delivered to him by John Peto in his (a) See Beard v. Perry, 2 B. & S. 493, 180 ASHPITEL V. BRYAN 3 B. & S. 478 lifetime, and that the defendant should accept a bill of exchange for 3761. 2s. 3d., purporting to be drawn and indorsed by John Peto, and that James  Peto should procure himself to be appointed administrator ; and thereupon James Peto caused and procured the bill of exchange in the first count mentioned to be drawn and indorsed in the name of John Peto, deceased, and the defendant accepted the same with the intention and belief, and for the sole consideration, that James Peto should and would so apply for and obtain letters of administration, and become and be duly qualified and empowered, as administrator, to adopt, ratify and confirm, and would, as administrator of the estate and effects of John Peto, deceased, ratify and confirm the said transaction, as a sale and purchase to and by the defendant of the said stock in trade at and for the price of 3761. 2s. 3d., and apply the same in payment of the debts of John Peto, and for the purpose of enabling James Peto, deceased, the better to sue for and recover the value of the said stock in trade whenever and so soon as, but not before, he should have become such administrator. And the defendant took and converted the said stock as aforesaid; and which said stock never was, nor was any part thereof, at any time, in the possession, order, disposition or control of James Peto, and there never was any other consideration or value whatever for the drawing, indorsing or accepting of the bill of exchange other than the expectation and intention that James Peto should procure himself to become such sole administrator as aforesaid, and so adopt, ratify and confirm as aforesaid. And James Peto always held, and the plaintiff still holds, the bill without any value or consideration, other than as before mentioned. And James Peto, although a reasonable time in that behalf had elapsed long before his death, never did apply for or obtain letters of administration, nor did he ever become  the administrator of the estate and effects of John Peto, deceased, but wholly neglected and omitted so to do, and the defendant remains and is liable to account to the creditors, and to the lawful administrator of John Peto, deceased, whenever he shall be appointed, touching the said intermeddling of the defendant with the stock in trade of John Peto, deceased, and to pay to the creditors, or to such administrator, the sum of 3761. 2s. 3d., or the value of the stock in trade, less the amount of a certain set off, in respect of certain debts and sum* of money due and owing to the defendant from John Peto in his lifetime, at the time of his death, so far as the same may be lawfully set off. Fifth plea, to the residue of the declaration. Never indebted. Issues were joined on the above pleas; and there was also a demurrer to the fourth- plea, and joinder therein. Second replication to the first plea, setting out the bill of exchange, and averring, among other things, that the bill was indorsed and delivered to the plaintiff at the same time and in the same handwriting at and in which the bill was drawn, and that the drawing and indorsing took place before the bill was accepted by the defendant, of all which the defendant had notice and knowledge at the time of the acceptance, and that, by reason of the premises, the defendant was estopped from denying the indorsement of the bill. There was a similar replication to the third plea; with an averment that, as to so much of that plea as alleged fraud and want of consideration, the plaintiff denied the game. Rejoinder to the second replication to the first plea. That, before the drawing, or indoring, or accepting, of  the bill, as James Peto and George William Collins well knew, John Peto died, and afterwards, and when they well knew of the death of John Peto, George William Collins, by the procurement of James Peto, and without any authority from John Peto, or his executor or administrator, drew and indorsed the bill in the name of John Peto; and James Peto, before and at the time when the defendant accepted the bill, and the same was delivered to him, well knew that the drawing and indorsing were false and fictitious, and therefore the defendant is not estopped as alleged. There was also a demurrer to that replication, and joinder therein. There was a similar rejoinder to the second replication to the third plea. Also a demurrer to that replication, and joinder therein. There were demurrers to the rejoinders, and joinder therein. On the trial, before Mellor J., at the Sittings in London after Trinity Term, 1862, the plaintiff produced the bill of exchange declared upon, of which the following is a, copy:- 3B.&S.471 ASHflTKL, V. BKYAN 181 "376, 2s. 3d. ~^ "London, May 22d, 1857. " At sixty days sight, pay to my oeaer three hundred and seventy six pounds two shillings and three pence, for value r,eojved. " john peto, "Mr. John Bryan, ^ " P- Pr- gb' wm- collins." "Dacre Street, Westminster." g- 13 Indorsed, "Pay Mr. James Pet, (Skhara. " john peto, = " p. pr. gbo. wm. collins." It appeared that Collins made and indorsed the bill in the lifetime and in the presence of James Peto and  the defendant; and that the defendant, on the same occasion, in the presence of Collins and James Peto, accepted the bill. John Peto had died about a fortnight before, and Collins, James Peto and the defendant knew that fact and all the other circumstances relating to the drawing, indorsing and accepting of the bill. From 1851 to 1856, John Peto and the defendant carried on business in copartnership as curriers and army contractors. In 1856, that partnership was dissolved by their bankruptcy. After having obtained certificates John Peto carried on the currier's part of the former business, and the defendant carried on the army contractor's part of the business, on different pacts of their former premises, but not in partnership. Collins was the clerk of John Peto and the defendant, in their partnership business, before their bankruptcy. He then became the clerk of John Peto, in his currier's business, and so continued until the death of John Peto. John Peto died on the 7th May, 1857, intestate, leaving goods, being the stock in trade on bis premises, which were valued by Collins at 3761. 2s. 3d. The defendant's wife was first cousin of John Peto, and niece of James Peto. The plaintiff was nephew and executor of James Peto. After some discussion between James Peto, who had assisted...
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