plaintiff had taken the assignment of the lease he would have a law suit, at the end of the term, with the Dean and Chapter, whether they would give him a lease on any other terms than with the description in the margin of the former lease." RULE DISCHARGED. STAREY against BARNES,-7th June. 1806. TOMKINS versus WHITS Bankrupt.Stat. 7 Geo. I. c. 31, does Bill of exHeld change. Drawer 4. draws a bill of exchange on B. and indorses to C. who indorses to D. for a good consideration; B. accepts but not pay; after the bill is due, A. becomes bankrupt; that this is within the words of the statute 7 Geo. I. c. 31, Debitum in and may be proved under A.'s commission. Q. Whether it be debitum in presenti solvendum in futuro. Semble, it is a credit given for the security of a bill of exchange to one who becomes bankrupt, and therefore within the express words of the statute. THIS was an action by the indorsee against the drawer, upon a bill of exchange drawn by the defendant on one Gardener, at two months dated accepted by Gardener payable to the defendant or order, and indorsed by him to one Warwick, who was agent to Burnes and indorsed by Warwick to the plaintiff. The defendant became bankrupt on the 21st of November, and a commission of bankruptcy was taken out against him dated the 4th of November. There had been another bill by Warwick which was dishonoured on the 18th of the same November, and the giving up of that bill was the consideration to Warwick for the bill in question. At the trial Gardener proved the bill, and that it was given in exchange by Warwick for a bill accepted by Starey and drawn by Warwick. Plea of bankruptcy. At the trial before Lord ELLENBOROUGH, in the SL and indorser. presenti. STARES versus BARNES 1806. STAREY versus PARNIS. . sittings after Michaelmas term, 1805, his lordship ruled that the bill, not being dishonoured till after the bankruptcy, it could not be proved under the commission against the defendant, this not being debitum in presenti, and a verdict was taken for the plaintiff. In Hilary term, 1806, MARRYAT for the plaintiff, obtained a rule to shew cause, why there should not be a new trial, upon the ground, that this was proveable under the commission, and cited M'Cartey v. Barrow, Ex parte Adney,† Rucker v. Francis. PARK and WIGLEY now shewed cause." The cases in the books maintain the distinction taken at nisi prius, that there 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 non-acceptance, and in Cowley v. Dunlop S where that case is cited the question turned upon the counter securities. And so in Milford v. Mayor; see also Balingshall and Another v. Gloster ** Almost all the cases in the books, of proving under commissions of bankrupt debita in præsenti solvenda 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 contin'gency of the failure of the drawer. There are no other circumstances to shew, that the plaintiff could have proved under the commission upon any other ground than merely that of the bill." Lord ELLEN BOROUGH, C. J." In M'Cartey v. Barrow, they say that the drawing is the thing." PARK. "That expression is used only in answer to an argument put by the counsel, but the court proceeded upon the particular circumstance of the refusal: to accept." Sir VICARY GIBBS, contrà. "The plaintiff Starey was a bona 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 to carry 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. c. 31, 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 also Ex parte Adney." Lord ELLEN BOROUGH, C. J." It occurred to me, at the trial, that this was an undertaking to pay in case of the default of the acceptor, and not a debitum in presenti solvendum in futuro. The drawing does not give an immediate debt to the indorsee, but it is a promise to pay on the omission 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 and contingent only, 1806.' STAREY versus BARNES. 1806. STAREY versus BARNES. and I own that my mind is not relieved from that difficulty. But I feel great respect for, and bow 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 I feel it best to go by. The words of the 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 bonâ fide, &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 is become bankrupt; upon good and valua 'ble consideration;' according to Cowley v. Dunlop, it is a good and valuable consideration, the exchange of one bill for another; bonâ fide;' 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 debitum in presenti. 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 I overturned M'Cartey v. Barrow, which was recognized in Francis v. Rucker.† LAWRENCE, J. and LE BLANC, J. assented. RULE ABSOLUTE. * Ambler, 672. SUTTON against WEELEY.-8th June. 1806. 13 Eliz. C. 7. 4 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. worked, and of the earth and soil whereof the bricks were 3.1. made; held, that by such manufacture on his own land he was not a trader within the statutes of bankruptcy. THIS was a feigned issue directed by the Lord Chan SUTTON ver sus cellor on a petition in the matter of the defendant's bankruptcy, to try the question whether the defendant WEELEY. had been a trader within the bankrupt laws, at any time between the 26th day of September, 1796, and the 1st day of January, 1803, the plaintiff in such issue asserting the affirmative. The cause came on to be tried at the last assizes for Esser, 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 enter. ed 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, he 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 Weeley 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-kila was erected, and from which the brick earth had been procured, as devisee thereof for the term of his own life, for his own use and benefit, under the |