in handing over the bills to his employers, after he had notice that they had no right whatever to them.

Pulling in support of the rule.-This was not a tortious act of taking, for which trespass would lie, but a voluntary delivery of the bills at the defendant's request, on his telling the plaintiff, that if he did not give them up, he would suffer for it, and be subject to great expense. The bills were supposed to have been obtained from the bankrupt by way of fraudulent preference, so that there was colourable ground for the creditor's endeavouring to get possession of them; and the defendant only expressed his opinion of the consequences which would result from the plaintiff's refusing to deliver them up. The plaintiff was capable of exercising a judgment upon the matter. It might as well be said, that an attorney who obtains payment of a debt not recoverable by law, by sending a letter threatening to put the law in force, obtains the money tortiously. Grainger v. Hill is distinguishable, for there there was a restraint of the person.

Cur. adv. vult.

PARKE, B., in Michaelmas Vacation (Dec. 16), said, after stating the facts and evidence as above set forth-We are all clearly of opinion, that the original taking of the bills did not constitute a conversion; for there was no taking. under such duress as would support an action of trespass. In truth, there was no proof of any duress whatever, because a mere statement that the plaintiff would have the expense of the commission to pay, is not a duress which would vacate a promissory note or bond on the ground of duress; nor is it enough to make the obtaining goods by such a threat itself an illegal act of trespass, so as to render it a conversion. We also think there was no evidence in the original transaction of any fraud committed by the defendant, so as to enable the plaintiff to recover upon

1851.

POWELL v.

HOYLAND.

1851.

POWELL

v.

HOYLAND.

that ground; that is, supposing that if the goods were obtained by fraud, an action of trespass would lie for taking them, which is a very doubtful matter. My impression is it would not, because fraud does transfer the property, though liable to be divested by the person deceived, if he chooses to consider the property as not having vested. But there is no evidence in this case of any fraud in the original transaction. The Court of Common Pleas decided, in Grainger v. Hill, that where a ship's register had been obtained from a captain of a ship by arresting him for a debt, the object of the arrest being to get the register from him, an action of trover might be maintained. There the Court proceeded on the ground that it was an illegal duress,-whether it was so or not is another question;-but they proceeded on the ground that the register was obtained by duress and imprisonment. That differs from the present case, because here there was no duress at all. Therefore, upon the original transaction, we are clearly of opinion that there was no sufficient trespass, and therefore no conversion. It was admitted in argument, and rightly admitted, that unless the original act of taking could be the subject of an action of trespass, it could not be a conversion in an action of trover. There is, however, a part of the case on which we will defer our judgment until we have consulted the learned Judge; that is, whether or not the bills were in the possession of the defendant at the time the explanation was made to him, on the 1st of January, of the circumstance that the plaintiff was clearly entitled to the bills, and that they were delivered to him under a misapprehension. If that took place before the bills were delivered to the defendant's employers, Yates & Co., it may possibly amount to a conversion. If that notice was not given until after the bills got into the possession of Yates & Co., then it was too late, because the defendant was certainly not guilty of a conversion by handing over the

bills of exchange to his employers. There is no doubt, that though the defendant did not receive those bills for himself, but as the agent of Yates & Co., he may be liable in an action of trover, if the facts shew a conversion by him. We will consult the learned Judge on the point, and intimate our opinion next term.

PARKE, B., now said,-We find that my brother Cresswell's ruling did proceed, not only upon the original taking, but also on the ground that there was evidence of a subsequent conversion, inasmuch as whilst the defendant had the bills in his hands the transaction was explained to him, and he was told that he had no right whatever to the bills, and that the property in them belonged to the plaintiff; and notwithstanding that he afterwards handed them over to his employers. It was not quite clear from my learned brother's report, whether, at the time of the communication to the defendant that he had no title to the bills, he had the bills in his possession, or had handed them over to his employers. It turns out that the communication was made whilst he had the bills in his possession, and when he knew that he clearly had no title to them; therefore the handing over the bills afterwards to Yates & Co. was a conversion by the defendant. The result is, that my brother Cresswell's ruling was right, and the rule must be discharged.

1851.

POWELL

v.

HOYLAND.

Rule discharged.

1851.

Jan. 23.

COURTIVRON and Another v. MEUNIER.

A concealment ASSUMPSIT by the plaintiffs, as payees of two promis

by a bankrupt

of his property, Sory notes made by the defendant.

with intent to defraud his creditors, renders his certificate void

under the 5 &

6 Vict. c. 122,

Plea-(by statute 5 & 6 Vict. c. 122, s. 42). That, before the commencement of the suit, the defendant became bankrupt; and that the causes of action accrued to the plaintiffs before the bankruptcy: concluding to the country.

s. 38, notwith--Issue thereon.

standing he

has made a

full disclosure stances to the

of the circum

Commissioner

before his last

examination.

At the trial, before Pollock, C. B., at the London Sittings after last Trinity Term, the following facts appeared:— The defendant having proved his bankruptcy, which took place in August, 1846, and that he had obtained his certificate, the plaintiffs, in answer, proved that, in September, 1846, the bankrupt sent to the lodgings of a person named Renique several boxes containing clothes, bed and chamber furniture, jewellery, trinkets, cigars, &c., the property of the bankrupt, to be taken care of by Renique. About the middle of November, the defendant called to take away the boxes; but, on his declining to pay Renique his charges for keeping them, the latter refused to give them up; and a dispute having taken place between the parties, the goods were seized by the messenger in bankruptcy, who had become aware of the circumstances. These facts were afterwards disclosed to the Commissioner by the bankrupt, before his last examination was passed, and the Commissioner, in consequence, suspended his certificate for twelve months. It was submitted, on the part of the plaintiffs, that the certificate was void, by the 38th section of the Bankruptcy Law Amendment Act, 5 & 6 Vict. c. 122 (a). The learned judge was of opinion that,

(a) "Provided always, and be it enacted, That no bankrupt shall be entitled to the certificate under

this Act, and that any such certificate, if obtained, shall be void, if such bankrupt shall have lost by

under the circumstances, there was no "concealment" by the bankrupt of his property within the meaning of that section, but only an attempt to conceal it; and his Lordship accordingly directed a verdict for the defendant, reserving leave for the plaintiffs to move to enter a verdict for them, if the Court should be of opinion that the facts amounted to a "concealment."

A rule nisi having been obtained accordingly,

Rew now shewed cause.-All the circumstances having been disclosed to the Commissioner by the bankrupt before his last examination, there was no such concealment as to avoid the certificate under the 38th section of the 5 & 6 Vict. c. 122. [Parke, B.-By the 32nd section (a), it is an

1851.

COURTIVRON

V.

MEUNIER.