Herbert against Sayer
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1844 |
| Date | 01 January 1844 |
| Court | Court of the Queen's Bench |
English Reports Citation: 114 E.R. 1512
IN THE QUEEN'S BENCH
S. C. 2 D. A& L. 49; 13 L. J. Q. B. 209; 8 Jur. 812. Referred to, Kitson v. Hardwick, 1872, L. R. 7 C. P. 480. Followed, Jameson v. Brick and Stone Company, 1878, 4 Q. B. D. 208. Applied, Cook v. Whellock, 1890, 24 Q. B. D. 659; Cohen v. Mitchell, 1890, 25 Q. B. D. 267. Referred to, In re New Land Development Association and Gray, (1892) 2 Ch. 144. Explained, In re Clark, (1894) 2 Q. B. 395. Applied, In re Ball, (1899) 2 Ir. R. 313; In re Bennett, (1907) 1 K. B. 149.
herbert against sayer. 1844. Under stat. 6 G. 4, c. 16, ss. 63, 127, and stat. 1 & 2 W. 4, c. 56, s. 25, an uncertificated bankrupt may acquire property, and the benefit of his assignees, and may sue in respect of such property *6r contract. And a plea shewing the bankruptcy, &c. constitutes no defence, unless there be an allegation that the assignees have interfered. The same is true in the case of a party who has twice been bankrupt and obtained his certificate but has not paid fifteen shillings in the pound, in respect of property acquired since the certificate. Held by the Court of Exchequer Chamber, reversing the judgment of the Court of Q. B. By the Court of Q. B. : De injuria may be replied, in an action by the indorsee of a bill of exchange against the acceptor, to a plea that the bill was accepted for the accommodation of the drawer, to be deposited with R. as a collateral security for a debt from the drawer to E.; that R. took it on those terms; that the drawer, before maturity, paid R. part of such debt, and tendered the residue, which R. refused to accept; and that R. afterwards indorsed the bill to plaintiff, in order that plaintiff, conspiring and colluding with R. to defraud defendant, might recover as a trustee for R.; such plea being in excuse arid not in discharge. [S. C. 2 D. & L. 49 ; 13 L. J. Q. B. 209; 8 Jur. 812. Referred to, Kitson v. Hardwick, 1872, L. R. 7 C. P. 480. Followed, Jameson v. Brick and Stone Company, 1878, 4 Q. B. D. 208. Applied, Cook v. Whdiock, 1890, 24 Q. B. D. 659; Cohen v. Mitchell,l8QQ, 25 Q. B. D. 267. Referred to, In re New Land Development Association and Gray, [1892] 2 Ch. 144. Explained, In re Clark, [1894] 2 Q. B. 395. Applied, In re Ball, [1899] 2 Ir. R. 313; In re Bennett, [1907] 1 K. B. 149.] Assumpsit on a bill of exchange, drawn by Thomas Spence, 9th June 1842, on defendant, for 301., at three months, accepted by defendant, indorsed by T. Spence to Thomas Rogers, and by T. Rogers to plaintiff. Plea 4. That defendant accepted the bill at the request of Spence, and without ever having received any consideration or value whatever for his acceptance, and for the accommodation of Spence, and in order that he might deposit the same with Rogers aa a collateral security as after mentioned, and for no other purpose whatever: that, after defendant had so accepted, to [966] wit 9th June 1842, Spence indorsed and delivered the bill to Rogers and Rogers, then took and received the same, as a collateral security for the payment of the sum of 251. then due to Rogers as the balance of a certain other bill of exchange for 501. then in his possession, and of which he wag the indorsee and holder, to wit a hill drawn by Spence upon and accepted by one Matthew Foster, at three months, payable to Spence's order, and which bill Spence indorsed to one George Baker, who indorsed the same to Rogers: .80. *M7. HERBERT V. SAYER 1513 the residue of the last mentioned bill, to wit 251., having been paid to Rogers by the said Speoce before the indorsement to Rogers of tbe bill in the declaration mentioned : and that tbe bill in the declaration mentioned was delivered to and received by .Rogers for such purpose as in this plea mentioned, and no other purpose, or consideration, or value whatsoever. That, after Rogers had taken and received the bill in the declaration mentioned, and whilst the same was in his custody and possession, and before the same bad become due or payable, to wit 9th July 1842, Speuce paid to Rogers, who then accepted *nd received the same, a certain sum of money, to wit 151., in part payment of the said balance of 251. then remaining due and payable to Rogers on the bill for 501.; and then there remained due, in respect of the last mentioned bill, a certain small som of money, to wit 101., and no more. That afterwards, and whilst the bill in (he declaration mentioned whs in the custody and possession of Rogers for auch purpose as aforesaid, and before the same had become due or payable, to wit 1st September 11342, Spenee tendered and offered to Rogers a certain sum of money, as nd being the balance then [967] remaining due on or in respect of the bill for 501., and also for or in respect of any interest or damages which might have accrued, or eon Id be claimed, by Rogers on or in respect of tbe last mentioned bill, to wit 111.; which last mentioned sum was tbe full amount to which Rogers was at the time of the said tender entitled upon or in respect of the bill for 501., to secure the payment of which the bill in tbe declaration mentioned was deposited with Rogers, as in this plea Aforesaid; and which tender and offer of Spenee Rogers then wholly refused to accept or receive, and then wrongfully kept and detained the bill in the declaration mentioned, and wholly refused to deliver up tbe same either to Spence, or defendant, or any other person, although he was then to wit on, &c., requested by Spenee and defendant so to do. That, after the tender had been so made to and refused by Rogers, and after Rogers bad so wrongfully refused to deliver up the bill, to wit, &o., Rogers indorsed the bill in the declaration mentioned to plaintiff, and plaintiff then took and receired tbe bill in the declaration mentioned with full knowledge and notice of the premises. Verification. (This plea led to an issue of fact, but is here set out for the purpose of rendering tbe sixth plea intelligible.) Plea 6. That defendant accepted the bill in the declaration mentioned for tbe accommodation of Spence, and without ever having received any consideration or value for tbe acceptance thereof, and for the purpose, and in the manner and form, as in bis, fourth plea above alleged : that Spence deposited the bill [968] with Rogers, who received the same, for the purpose and in the manner in the fourth plea in that behalf alleged, and for no other purpose, consideration or value whatever. That Spence paid to Rogers tbe sum of money in the fourth plea in that behalf mentioned, to wit 151., in part payment of the said balance of 251., in manner and form as, and at the time, in tbe fourth plea alleged. That Spence tendered and offered to Rogers the said sum of money in tbe fourth plea in that behalf mentioned, being the balance remaining due to him upon...
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