« ForrigeFortsett »
plaintiff" had taken the assignment of the lease he 1806. would have a law suit, at the end of the term, with the Xomkim Dean and Chapter, whether they would give him a «TM<* lease on any oilier terms than with the description in the margin of the former lease."
• Starey against Barnes.—7th June. •
J. draws a bill of exchange on B. and indorses to C. who in- Bankrupt.Stat.
_ _J ° _ 7 060.1.0.31,
dorses to D. for a good consideration; B. accepts but does Bill of ex
not pay; after the bill it due, A. becomes bankrupt; Held change Drawer
that this is within the words of the statute 7 Geo. I. c. 31, Debituru iu
and may be proved under A.'s commission. presontu
Q. Whether it be debitum in presenti solvendum in futuro.
change to one who becomes bankrupt, and therefore within the
express words of the statute.
'P'HIS was an action by the indorsee against the St*be»
At the trial before Lord Ellenborough, in tha
Ibog. sittings after Michaelmas term, 1805, his lordship 6t*ks* ruled that the bill, not being dishonoured till after the rein/j bankruptcy, it could not be proved under the commission against the defendant, this not being debit tun itt prtsenti, and a verdict was taken for the plaintiff".
In Hilary term, 180G, Marry At for the plaintiff", obtained a rule to shtw cause, why there should not be a new trial, upon the ground, that this was prqveable under the commission, and cited M'Curcey v. Bar~ row* Ex parte Adney,\ Ruckerv. Francis.%
Park and Wigley now shewed cause. " The cases in the books maintain the distinction taken at nisi print, that these is a difference, in the case of bankruptcy, between a bill accepted at the time of the bankruptcy and one which is not accepted; in M'Cartey v. Barrow,|| it is evident that the cause was determined upon the n6n-acceptance, and in Cowley v. Dun/op.§ where that case is cited the question turned upon the counter securities. And so in Mi/ford v. Mayrr;% see also Balxngshall and Another v.Gloster ** Almost all the cases in the books, of proving under commissions of bankrupt debita in prxsentt solve nda in futuro, are cases where the bankrupt is liable at all events; but here Barnes was only a collateral security and could only be liable to pay upon the contingency of the failure of the drawer. There are no other circumstances to shew, that the plaintiff coi'ld have proved under the commission upon any other ground than merely that of the bill."
Lord Ellenrorouoii, C. J. " In M'Cartey v. Barrow, they say that the drawing is the thing."
Park. "That expression ia used only in answer 18O6. to an argument put by llie counsel, but the court pro- St *»«*-. ceeded upon the particular circumstance ol the refusal to accept."
Sir Vicary GiBBS.rowrra. "Theplaintiff"Sfr/rrywas a bond fide holder of the bill, and the defendant, upon the non-payment by the acceptor, became liable to the plaintiff with a retrospect, as to the period of becoming indebted, to the time of the drawing of the bill. In M'Cartey v. Barrow, as reported in Wilson, it is clear that the drawer became a bankrupt between the drawing of the bill and the return of it, and that case is therefore directly in point. In ex parte Harrison*it was attempted tocarry the doctrine further,and to apply the principle to a collateral undertaking to pay; but Lord Thurlow said, that, in order to enable the party to prove under the statute 7 Geo. I.e. Si, he should be an indorser. That case appears to have been upon an accepted bail, and Lord Thurlow admitted the principle, and would have applied it in that case if Lewis had been indorser. He nevertheless contended that whether the return of the bill was upon the non-acceptance or non-payment was immaterial. They cited ulso Ex parte Atlnru."f
Lord Ellenborough, C. J. "■ ft opcurred to me, at the trial, that this was an undertaking to pay in case of the default of the acceptor, and not a debitutn in presenti solvendum inJuturo. The drawing does not give an immediate debt to the indorsee, but it is a promise to pay on the oinissiop of the acceptor. It first gives you credit on a particular person, and, if he accepts it, you may go against him. In the original formation of the bill there may be a liability in the drawer to pay; but it is conditional aud contingent only,
1806. and I own that my mind is not relieved from that &,Amtr difficulty. But I feel great respect for, nnd bow
■mat to the authority of the judges who decided the cases that have been cited. However, there is one plain guide in the express words of the statute, which 1 feel it best to go by. The words of tlve statute are, 'whereas merchants, and traders in goods, often sell on credit, and take bills, bonds, and notes payable at a future day, all persons who have given or shall give credit on such securities to any who becomes bankrupt on a good and valuable consideration bondfide, &c.shall be admitted to to prove their debts.' Here the credit was given on such security; for there was an exchange of bills given; 'given to a person who shall become bankrupt;" Barnes \s become bankrupt; ' upon good and valuable consideration;' according to Cowley v. Dun/op, it is a good and valuable consideration, the exchange of one bill for another; 'bond Jide here is nothing to impeach it; there is therefore nothing to take the case out of the plain letter of the statute. I would not impeach the authority of a case which is so highly respectable, and which has been so much recognized in Francis v. Rucker, by Lord Camden, but by no means admitting that this is a debilum in presents, i think it is within the statute, and that there ought to have been a verdict for the defendant."
Grose, J. "I should have hesitated very much before 1 overturned M'Cartey v. Barrow, which was recognized in Francis v. Rucker.-\
Lawrence, J. and Le Blanc, J. assented.
Sutton against Weeley.—8th June. °6"
A brick-maker in a large way making bricks for sale became by Bankrupt..
devise tenant for life of the land on which the kiln was Trading. Stat.
13 t'"liz c 7
•marked, and of the earth and soil whereof the bricks were j_
THIS was a feigned issue directed bv the Lord Chan*
cellor on a petition in the matter of the defendant % vtrrai bankruptcy, to try the question whether the defendant w"l"* had been a trader within the bankrupt laws, at any time between the (46th day of September, 1796, «nd the 1st day of January, 1808, the plaintiff in such issue asserting the affirmative. The cause came on to be tried at the last assizes for Essex, before Mr. Justice Heath, when a verdict was found for the plaintiff", damages Is. costs 40s. subject to the opinion of the court on the following case: The defendant in the year 1795, his name being then John March, and then residing at Wooleigh in Essex, opened and entered with the excise officer of the district in which he resided, a public kiln as a brick maker in his then name of John March. When he so opened the kiln, lie had no interest in the estate from which the brick earth was dug, the same being the property of one Samuel Weeley. And the defendant there carried on the brickmaking business until the decease of the said Samuel Weeletj which happened on the 17th of September, 1796; immediately after the death of the said Samuel Weeley, the said defendant entered into possession of the estate, on a part of which the said brick-kiln was erected, and from which the brick earth had been procured, as devisee thereof for the term of fcis own life, for his own use and benefit, under the