Ex parte William Hopton Wyld John Hopton Wyld, a Bankrupt
| Jurisdiction | England & Wales |
| Judgment Date | 21 December 1860 |
| Date | 21 December 1860 |
| Court | High Court of Chancery |
English Reports Citation: 45 E.R. 770
BEFORE THE LORDS JUSTICES. BEFORE THE LORD CHANCELLOR LORD CAMPBELL AND THE LORDS JUSTICES.
S. C. 30 L. J. Bk. 10; Jur. (N. S.), 294; 3 L. T. 794; 9 W. R. 421.
770 EX PARTE WYLD S DE Ct. F. & J. MJ. [642} -Ea; ^arte william hopton wyld. In the Matter of john hopton wyld, a Bankrupt. Before the Lords Justices. Nov. 14, 15. Before the Lord Chancellor Lord Campbell and the Lords Justices. Dec. 5, 21, 1860. [S. C. 30 L. J. Bk. 10; 7 Jur. (N. S.), 294; 3 L. T. 794; 9 W. R. 421.] A. accepted a bill of exchange, but became bankrupt before it fell due. On its coming due, B. paid it for the honour of A., but there was no protest of the bill for non-payment, nor did B. make any formal statement that he paid it for the honour of A. B. then claimed to prove for the amount of the bill. The question whether he was entitled to prove was by him and the assignees referred to arbitration, without any such authority as is required by sect. 153 of the Bankrupt Law Consolidation Act. B. never repudiated the reference, but argued the case on its merits before the referee, and took up the award, by which the referee decided that there was no right of proof. Held, that, whether an award under such a reference could have bound the estate of the bankrupt or not, B. having taken the chance of having a decision in his favour, could not object to the validity of the award on the ground of the non-compliance with the requisitions of the Act. Par the Lard Justice Turner. The reference being unauthorized, this award could not have bound the estate nor the Commissioner. Pur the Lord Justice Knight Bruce. Apart from the award, B. would have been entitled td prove. This was a petition by William Hopton Wyld for the allowance of a proof against the estate of the bankrupt for 772, 4s. Gd. On the 22d of May 1857 Messrs. Otarcl & Co. of Cognac, in Franco, drew upon the bankrupt for value a bill of exchange for the above sum, payable at three months, and indorsed it to their agent Mr. Levaux. It was accepted by the bankrupt, but his bankruptcy took place before it became due. It became due on the 25th of August 1857, and on the 27th William Hopton Wyld paid it for the honour of the acceptor. There was no protest of the bill for non-payment and no formal declaration or statement of its being paid for the honour of the acceptor ; but it was in the usual course noted for non-payment. In December 1857 the Petitioner applied to the [643] Commissioner to be allowed to prove for the- amount of the bill, but the proof was objected to by the assignees upon the grounds that the bill had not been protested and that the bankrupt's estate had a set-oft" against the Petitioner. In consequence of these objections the Commissioner refused to admit the proof, but allowed a claim to be entered. The question of set-off became the subject of an action at law and was decided in favour of the Petitioner, who then renewed bin application for the admission of the proof. The assignees opposed on the ground that the bill had not been protested, and it was thereupon agreed between the assignees and the Petitioner that the question whether the Petitioner was entitled to prove as the holder of the bill should be referred to arbitration. This agreement was not made in conformity with the provisions of the statute, it was not authorized by any meeting of creditors, nor was it sanctioned by the Commissioner. The arbitration however proceeded, the Petitioner attended by counsel and contended in favour of his right to prove, and in the result the arbitrator awarded that the Petitioner was not entitled to prove as holder of the bill. The Petitioner took up the award, and finding it adverse made a further application for the admission of the proof, and the Commissioner having refused to admit it he appealed from that decision. Mr. Bacon and Mr. Coleridge, for the Petitioner. This proof is resisted on the technical ground that protest was necessary. We contend that protest is not necessary for the purpose of proving against the estate of the acceptor, though it is necessary as against other parties to the bill, and that we...
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