In Re Bonacina Le Brasseur v Bonacina - Thomson Reuters

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[1912] 2 Ch. 394 Page 61912 WL 17417 (CA)(Cite as: [1912] 2 Ch. 394)me that it ought not. The learned judge has treatedthe "privata scrittura" as a document whichdeserves as little consideration from the Court asthe debtor's promise to pay received from the Courtof Common Pleas in the decision of Heather & Sonv. Webb [FN32], the principle of which he holds togovern the present case. I am unable to concur inthis view. The effect of the "privata scrittura" as alegal obligation must be determined by the law ofItaly; and, as I understand the evidence adduced inregard to that law, this "privata scrittura" created inand by itself as against Bonacina a valid and legallyenforceable obligation from the time of itssignature by Bonacina on October 15, 1906, fiveyears, I think, after he had obtained his discharge inthe English bankruptcy, of which, until afterBonacina's death, the appellant knew nothing. InHeather & Son v. Webb [FN33] the claim of theplaintiff was in respect of an old debt provable inthe defendant's bankruptcy, and the mere promiseof the debtor to pay, notwithstanding his previousdischarge in bankruptcy, inasmuch as there was noconsideration for the promise, could not create anynew obligation according to the law of England. Ifthere had been a valuable consideration for thepromise, the judgment of the Court, as is shewn bythe later case of Jakeman v. Cook [FN34], wouldhave been different.FN32 2 C. P. D. 1.agreement between creditor and debtor in Jakemanv. Cook [FN37]; and being such, as it appears tome, the claim of the appellant cannot rightly betreated as a claim in respect of a debt provable inthe bankruptcy of Bonacina according to theBankruptcy Act, 1883 This appeal, therefore,should be allowed.FN35 4 Ex. D. 26.FN36 1 Manson, 391; 70 L. T. 244.FN37 4 Ex. D. 26.RepresentationSolicitors: White & Leonard; Le Brasseur &Oakley.(G. A. S.)(c) Incorporated Council of Law Reporting ForEngland & WalesEND OF DOCUMENTFN33 2 C. P. D. 1.FN34 4 Ex. D. 26.The doctrine of consideration as it exists with usis peculiar to our common law; it is not to be foundin the law of Italy or, so far as I am aware, in thelaw of other Continental countries which derive theprinciples of their jurisprudence in regard tocontractual obligations from the Roman source.The "privata scrittura" in the present case, beingbased upon the moral obligation to pay a just debt,created, according to Italian law, as new *404 andvalid a legal obligation as the contract of a debtorfor good consideration to pay a debt from whichthe debtor had been released by a discharge inbankruptcy was held by the Court of Exchequer tohave created in the case of Jakeman v. Cook.[FN35]See also the judgment of Vaughan WilliamsJ. in In re Aylmer. [FN36] The interpretation andthe obligation of the "privata scrittura" are, as EveJ. stated in his judgment governed by the law ofItaly--the proper law of the contract; but, if this beso, the claim to which it gave rise was a new claimas new as the claim created by the post-bankruptcyCopr. © West 2004 No Claim to Orig. Govt. Works
(1876-77) L.R. 2 C.P.D. 1 Page 11876 WL 18594 (CPD), (1876) 25 W.R. 253(Cite as: (1876-77) LR 2 C.P.D. 1)*1 Heather & Son v. WebbDivisional CourtDCLord Coleridge, C.J., and Lindley, J.1876 Nov. 16Bankruptcy--Liquidation by Arrangement--Absence of Notice of Proceedings to Creditors--Subsequent Promise to pay Debt barred byBankruptcy--32 & 33 Vict. c. 71, ss. 49, 127.To a statement of defence, setting up that thedefendant was discharged from the claim by anorder of discharge obtained by him as the result ofproceedings for liquidation by arrangementsubsequent to the accrual of the claim, the plaintiffsreplied that they had had no notice of theliquidation proceedings until long after they hadbeen concluded, and that the defendant had notinserted the names of the plaintiffs as his creditors,or their debt in any list, statement, or document,forming any part of the proceedings, and thatsubsequently to the close of the proceedings thedefendant had promised to pay the claim:--Held, a bad reply.STATEMENT of claim incorporated theparticulars set forth in the special indorsement onthe writ, which were in respect of work done by theplaintiffs for the defendant, in the year 1873.The 2nd paragraph of the statement of defencestated that proceedings for liquidation byarrangement under the Bankruptcy Act, 1869, hadbeen taken by the defendant, that a trustee had beenappointed in whom the estate and effects of thedefendant became vested, and that the discharge ofthe defendant had been *2 duly granted by a specialresolution of the creditors, and thereupon thedefendant obtained from the Court of Bankruptcyan order and certificate of discharge from all debtsand liabilities in the prescribed form; and thedefendant further said that the plaintiffs' cause ofaction, if any, occurred before the defendant's saiddischarge.Reply to the 2nd paragraph of the statement ofdefence, that the plaintiffs had no notice of theproceedings in bankruptcy or liquidation at anytime during the said proceedings, nor did theplaintiffs become aware of the same until long afterthe said proceedings were concluded, and that thedefendant did not insert the names of the plaintiffs,or either of them, as among his creditors, or thedebt, or any part thereof, sought to be recovered inthis action, in any list, statement, document, orpapers, forming part of the said proceedings, norgive, or cause to be given, any notice of anymeetings, as required by the said Bankruptcy Act,1869, and that since the close of the saidproceedings the defendant promised and agreed topay the full amount of the plaintiffs' claim.Demurrer to the reply and joinder.Ridley, for the defendant. The 127th section of theBankruptcy Act, 1869, makes the registration bythe registrar of the resolution of creditorsdischarging the debtor conclusive evidence that allthe requisitions of the Act in respect of suchresolution have been complied with. Consequentlythe fact that the plaintiffs had no notice of theliquidation proceedings, and that the debt was notinserted in the list, affords no ground of reply to thedefence. With regard to the subsequent promise topay the debt, the effect of the 49th section of theBankruptcy Act, 1869, is different from that of thesections of previous Acts in pari materiâ. The effectis not only to bar the remedy, but to destroy thedebt. Such debt cannot, therefore, afford a goodconsideration for the subsequent promise to pay.The ratio decidendi of the cases, in which it washeld that a debt barred by bankruptcy could berevived by a subsequent express promise, was thatthe remedy only was gone, but the debt continuedto exist, and so there was such a moral obligation topay it as would afford a sufficient consideration tosupport the express promise. [He cited 6 Geo. 4, c.16, s. 131; 5 & 6 Vict. c. 122, ss. 37, 43 *3 ; 12 &13 Vict. c. 106, ss. 200, 204; 24 & 25 Vict. c. 134,ss. 161, 164; Kirkpatrick v. Tattersall [FN1]; Jonesv. Phelps. [FN2]]FN1 13 M. & W. 766.FN2 20 W. R. 92.Willis, for the plaintiffs. It is submitted that thefailure to take any of the proper steps to give noticeof the liquidation proceedings to the plaintiffsprevents the discharge from affecting them. The127th section was not meant to cover such a defectas this. It was meant to cover irregularities ofprocedure, but not to cause creditors to be boundby proceedings to which they could not possibly beCopr. © West 2004 No Claim to Orig. Govt. Works
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