willingness to pay. And Lord Tenterden, in speaking of a formal protest, must be understood as speaking of such formal declaration before a notary as is before mentioned. And this is confirmed by the marginal note of the reporters, which represents the decision to have been, that the party for whose honor the bill is paid, is not liable, "unless formal protest of payment to his honor be made before payment of the bill." Lord Tenterden is represented, in the note of counsel, as saying, "You have not complied with the custom of merchants, by protesting your bill in time." This seems to point to an omission of something which, according to the usual course, the plaintiffs would have to do; and is more properly applicable to the omission of the notarial declaration which they ought to have made before payment, than to any omission of drawing up the protest for non-payment, supposing such omission to have taken place. Protesting the bill for non-payment was a thing to be done, not by the plaintiffs on the 8th of August, but by the holders on the 30th of July. It is no where stated, in express terms, at what time the protests for non-payment, in the case of Vandewall v. Tyrrell, were drawn up or extended. There is no doubt the bills were protested for non-payment, on the 30th of July,-the day they became due: and, probably, the protests were drawn up before the payment; for, it appears that the payment was made on the 8th of August, in order to prevent the bills being sent to Jamaica, under protest, by the packet which sailed on the 9th. The brief for the plaintiffs states that "the bills, on being dishonored, were regularly protested by the holder and indorsee, Mr. Simon Taylor, of London, for non-payment. The bills of exchange and protests are as follows." Then it sets out the bills and protests for non-payment. It afterwards states that the plaintiff applied "to the notary who had originally protested the 1851. GERALOPULO v. WIELER. 1851. GERALOPULO v. WIELER. bills," to prepare the extension of "the act of honor;" and he prepared it on the same sheet of paper as the original protest." There seems no doubt, from these circumstances, that the protests for non-payment had been extended before the payment, and were, on the 8th of August, in the hands of the holder, Simon Taylor, who was about to send them to Jamaica the next day. We have minutely examined this case, because it has sometimes been referred to as affording the high authority of Lord Tenterden to a proposition which introduces an inconvenient and anomalous exception to the general rule with respect to notarial instruments, that a duplicate made out from the original, or protocol, in the notarial book, is equivalent to an original made out at the time of the entry in the book. It appears, on this examination, that that case decides only, in conformity with general law, that a subsequent declaration cannot qualify a previous act, but that, in order to have such effect, the declaration must precede or accompany the act; and, in conformity to the law-merchant, that, in case of a payment for honor, the declaration must be formally made before a notary. There is, therefore, nothing in that decision, which establishes any exception to the general rule, or prevents its application to the present case. And we are of opinion, that, the bills having, in fact, been duly protested, and the declaration that the payments were made for honor duly made before notaries, and these facts recorded in the usual way in the notarial registers before payment, the duplicates produced at the trial were originals, and equivalent in all respects to the duplicates which were sent to Moscow; and that it was not necessary to prove the contents of the last-mentioned duplicates. Taking this view of the first question raised in argument, it becomes unnecessary to determine the second question, whether the contents of the protests forwarded to Moscow, might be proved by secondary evidence, inasmuch as, in whatever way that question might be decided, our determination of the first question would entitle the plaintiff to have the rule discharged. Rule discharged. 1851. GERALOPULO v. WIELER. NEWNHAM V. STEVENSON and Another. Feb. 20. is not to put THIS HIS was an action upon the case. The declaration The effect of bankruptcy contained counts,-first, for distraining for more upon a fraudurent than was due,-secondly, for an excessive distress, lent preference, -thirdly, for selling within five days,-fourthly, for the goods in selling the goods for less than they were reasonably tion as if they worth,-fifthly, a count in trover. The defendants pleaded not guilty "by statute," and, the bankrupt, to the count in trover, not possessed. the same situa were actually the goods of so as to vest them at once, At the trial, the plaintiff abandoned the last two by the bank counts. ruptcy, in the assignees, in any election on The goods distrained had been the property of Saun- dependently of ders, a trader, and were seized by the sheriff of Surrey, their part, other and by him assigned to the plaintiff, by bill of sale, on than their acthe 21st of June, 1849, under a judgment founded upon a warrant of attorney given by Saunders to the plaintiff in the month of February preceding. ceptance of the office of assignee: but, by a transfer which is a fraudulent preference, the property vests in the transferree, subject to be divested by the assignees, at their election, and the title of the transferree is perfect, except so far as it is avoided by the assignees. The commencement of an action of trover, which may be abandoned at any time, and which assumes that the goods came into the possession of the defendant lawfully, cannot, without more, be taken to be an election on the part of the assignees to avoid the transfer. Where, therefore, goods had been transferred by a trader before his bankruptcy, by an instrument which the jury found to be a fraudulent preference, and the transferree had, after the bankruptcy, and after the appointment of assignees, brought an action for an illegal and excessive distress upon the goods which were the subject of the conveyance:- Held, that, the assignees having no otherwise asserted their right to the goods than by commencing an action of trover to recover them,-it was not competent to the defendant to set up their title under "not possessed.' 1851. NEWNHAM v. STEVENSON. After the assignment, the goods remained upon the premises occupied by Saunders; but, on the 11th of September, the plaintiff took possession of the goods, and Saunders and his family left the house. On the 5th of October, whilst the plaintiff was in possession of the goods, the distress was put in; and, on the 8th of the same month, Saunders filed a petition in bankruptcy, upon which he was declared bankrupt; and, on the 22nd, assignees were appointed. It was not proved that the assignees had interfered with, or demanded, the goods of the plaintiff: they had not ratified the act of the defendants; but they had commenced an action of trover against the plaintiff for the conversion of the goods. For the defendants, it was contended that the execution was a fraudulent preference, and an act of bankruptcy; that the property passed to the assignees; and that the plaintiff could not recover. To this it was answered, that the jus tertii could not, under the circumstances, be set up; and that, at all events, the plaintiff, being in possession, might maintain this action. In summing up, Wilde, C. J., told the jury, that, if the warrant of attorney was given voluntarily on the part of Saunders, for the purpose of securing the plaintiff in the event of a bankruptcy, whilst the rest of the creditors would be unsecured, it was a fraudulent transaction, and void; and that, in such case, the bill of sale would confer no property upon the plaintiff, who would not be the owner of the goods, and could not maintain. the action. The jury found that the warrant of attorney was given by Saunders as a fraudulent preference of the plaintiff over the other creditors, in contemplation of bankruptcy and upon this finding a verdict was entered for the defendants. Byles, Serjt., in Michaelmas term last, obtained a rule nisi for a new trial, upon the ground of misdirection. He cited Biggins v. Goode (a) and Wood v. Wood (b). [Talfourd, J. referred to Leake v. Loveday (c).] E. James, Phipson, and Prentice, on a subsequent day in the same term, shewed cause. The first question was, whether the warrant of attorney was fraudulent and void, as being a mere colourable contrivance to protect Saunders's property from his creditors, and so within the 13 Eliz. c. 5. s. 2. It was further contended at the trial, that the warrant of attorney was a fraudulent preference in contemplation of bankruptcy; and that Saunders had committed an act of bankruptcy, to the knowledge of Newnham, by procuring his goods to be taken in execution. [Jervis, C. J. The question is, whether it was competent to the defendants to set up property in the assignees. Maule, J. Whether, under not possessed, in trover, where the plaintiff is actually possessed, the defendant may set up the title of a third person without his authority.] The fraudulent manner in which the plaintiff has obtained possession must not be lost sight of. The assignees of Saunders have brought an action against Newnham for these very goods. [Talfourd, J. There is no trace of any claim on the part of the assignees, upon the learned judge's notes. Maule, J. The question is, whether, under not possessed to trover for goods, the defendant may set up the jus tertii, without shewing authority,-as the majority of the judges in the Exchequer Chamber, in Jones v. Chapman (d), held might be done in trespass to land, under a plea that the close was not the close of the plaintiff; or, in other words, whether a defendant without title can come and take the plaintiff's goods, and then say they are not the goods of the plaintiff, but the goods of a third person, 1851. NEWNHAM v. STEVENSON. |