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cuted upon any of the lands, &c, before such time 1806. as he shall become bankrupt shall not be relieved upon:
veu "pon; Hovit such judgment for any more than a rateable part with and Others the other creditors. The cases cited do not apply, for BROWNING. Bradley v. Clark is a case of payment to a carrier, and the stalute is in favour of debts for goods sold and delivered, bills, &c. Then, as to the words in the ordinary course of trade; Copland v. Stein, is on the same fouting, the payment not being protected by the express words of the statute. So l'ernon v. Hall, was not a payment in the usual and ordinary course of trade; but a payment on a loan ; there being time given in that case. In Hunter v. Potts, and Sill v. Worswick, the party had notice of the bankruptcy.:'
Lord ELLENBOROUGH, C. J. - How do you read the words ' in the usual and ordinary course of trade ?"
Jervis. “ There is nothing unusual in a trader's being sued."
Lord ELLENBOROUGH, C. J. “But is it not the object of the act to protect inadvertent acts of payment by the bankrupt to his creditors? There are many qualifications; it must be in the ordinary course of trade, and it must also be without notice of the bankruptcy; and the statute has been very strictly con. strued in the case of the carrier.”
Jervis. " It is very usual for creditors to go to a bankrupt and demand their money, and threaten him with a process of law, and if the threat of process will not avoid the payment, so neither ought the suing of process. After the judgment in Cox v. Morgan, it is not necessary to trouble the court with much argument on this part of the case. It has been argued for the plaintifs, that it is not material whether the payment NO. XXIX. N. S,
1806. is after the assignment, under the commission or not; Hovit because the act of parliament vests the property in and Others the assignees from the bankruptcy; but the commisBROWNING. sion would at least be notice of the bankruptcy, under
the act; because it is inserted in the gazette.” · Lord EulenBOROUGH, C. J. “ The creditor is not bound to take notice, that he is a bankrupt : he is bound to take notice of the act of parliament; but not of the commission und r it. It is a question entirely for the jury; but they may presume that he knew it by the publication in the gazette."
Jervis. " In Neale v. Collingham,* there was no notice ; but in that case the comission was sued out and the assignment made previously to the attachment, and the ground of the decision was, that the commission was sued out before the attachment. He noticed the cases of Solomons v. Ross,t and Joliffe v. De Ponthieu, which are all cited in Sill v. Worsæick.” On the other points he did not think it necessary to ad- . duce any arguments.
SEDGWICK, in reply." Here is no personal application to the bankrupt, and as to the case of a mere menace vitiating the payment, it cannot occur where there is an attachment: for that is merely the altaching of the money in the hands of a third person, and that money may be attached without the knowledge of the bankrupt bimself. And, if such a payment were allowed, a person having money of the bankrupt's in bis hands might permit judgment to go by default, in the inferior court, where the proceedings are very expeditious and the bankrupt be stripped of all his property.”
Lord ELLENBOROUGH, C. J. “ If it were neces.
*1 H. Blac, (n.) 132. + 4 Term Rep. (11.) 188.
11 H. Bl. (n.) 131.
sary nuw to decide the question upon which the court of 1806. Common Pleas differed in opinion, in the case of Cox Hoviz v. Morgan, from the great deference which I should and Others pay to the learned judges who presided there, I should BROWNING, have been anxious not to have decided upon that case without the most mature deliberation, considering that the judgment of the majority is fortified by authorities, and the actual practice of legal courts, though I should have inclined in favour of the opinion of the single judge, Mr. Justice Chambre. But it is not at all necessary to consider, here, whether the case of Cox v. Morgan is rightly decided. The present case is one which is to be brought within the limitations of an act of parliament, under which alone the payment is to be protected. By that act it must be a payment by the party, the bankrupt himself. He must be conscious of the act, which is to be his own act, or if not, it must be under some general authority for the express purpose of making ordinary payments. But can a proceeding against another person, and of which he, the bankrupt, is not conscious at the time, be a payment in the ordinary course of trade. Indeed I think it cannot be a payment by the bankrupt at all, unless we can recur to the compulsion of law and suppose that be has authorized every thing which the law compels to be done."
LAWRENCE, J. “ This is not a payment by the bankrupi, but a payment by compulsion of process, of a sum which the bankrupt might not even know was in the bands of the person in whose hands it was attached; for the loss happened, upon which the noney was received, after the bankrupt was out of the country.”
LE BLANC, J. « This is a very different case from
1806. that of a payment under an arrest, and the words of Hovil iż the statute are applicable to the protection only of pay
ha i and Others ments received from the debtor, and we cannot extend BROWNING. 'the limitations of the act to payments received without
the bankrupt's knowledge and without his even knowing that the garnishee had the money in his hands at the time.”
JUDGMENT for the PLAINTIFFS.
Hovil and others assignees of Wardell, a bankrupt,
against Pack and another.
Bankruptcy. A. commits an act of bankruptcy, and quits England, having, previous Pol rance. Agent.
lo his act of bankruptcy, become indebted, as indorser of a bill of exMoney had and change, to B. which bill is dishonoured and due notice thereof given. received.
In A.'s absence, his wife makes insurances, the broker being still u creditor for the premiums paid by him. B. having sued the drawer and oblained judgment, is induced by A.'s wife to take a bill in part payment indorsed by her for A. and stay execution, upon deposit, ing the policies ; which being done, a loss happens. This bill not being paid, B. the broker, accepts another for the amount, in his farour, upon the policies being delivered to him for A., 'vilh the consent of A.'s wife, and having received the money thereon, pays that bill, and deducts in account wilh A.'s assignees, against whom a commission is issued after such payment: Ileld, that the assignees could not recover of B.; for A.'s wife, and the broker, were their agents, and they could not take the benefit of the policies, effected
by her, wilhout taking the burlhen. Horit and
'HIS was an action of assumpsit, for money had and
received by the defendunt, for the use of the plain"and tiffs, as assignees of Hardell, a bankrupt. The defendAnother, ants pleaded the general issue, and at the trial before
Lord ELLENBOROUGH, C. J. at the sittings at Guildhall, after last Trinity term, a verdict was found for the plaintiff's for 2301., subject to the opinion of the court on the following case :
versus PACK and
. In November, 1902, Wardell, being a trader, indorse 1806. ed a bill of exchange, which would become due on
'Horit and the 8th of February, 1803, and which in the month of Others December, 1802, was indorsed over to the defendant, P for a valuable consideration. On the 27th January, · Another. 1803, Wardell set sail in a ship of which he was the sole owner, with a cargo for the West Indies, having only a few days before committed a secret act of bankruptcy. The bill was refused payment when due, and notice thereof given to the proper parties. In the month of July, 1803, tbe bankrupt's wife caused insurances to the amount of 3,4001. on the ship and cargo, to be effected for the bankrupt by Mr. De Beaume, a policy broker, residing in the cily of London, and who delivered them to Mrs. Wardell, without being paid the premiums. Mrs. Ilardell, soon afterwards applied to the defendants, whose debt was still unpaid, and who had brought an action against the drawer of the bill above mentioned, and obtained judgment hy confession in such action, to take another bill for part of the amount of the first, which she indorsed as attorney for her husband, and stay execution, until such second bill should become due; and, as an inducement to them to do so, offered to deposit the policies with them, as a security for the payment of such second bill. This the defendants agreed to, and the policies were accordingly deposited with the defendants. In July, 1803, the ship and cargo were captured by the French. On receiving intelligence of the capture, Mrs. Wardell applied to the defendants to deliver up the policies, for the purpose of receiving the amount of the subscription, which they refusing to do, without security for payment of their debt, (the second bill having been also dishonoured) De Beaume, at her request, accepted a bill of exchange at one month for 2301., the amount of the defendants' debt, and the policies upon this, were at the request of Mrs, Wardell delivered up to him...