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1806.

TOMKINS

versus War

plaintif had taken the assignment of the lease he would have a law soil, 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.

versus

.. Starey against BARNES.—7th June. 1. draws a bill of exchange on B. and indorses to C. who in. Bankru

7 Geo. I. c. 31, dorses to D. for a good consideration; B. accepts but does Bill of exnot pay; after the bill is due, A. becomes bankrupt; Held change. Drawer

A. becomes bankrupe ; ne and indorser. that this is within the words of the statute 7 Geo. I. c. 31, Debitun in and may be proved under A.'s commission,

presenti. Q. IVhether it be debitum in presenti solvendum in futuro. Semble, it is a credit given for the security of a bill of ere

change to one who becomes bankrupt, and therefore within the express words of the statute. THIS was an action by the indorsee against the Stars drawer, upon a bill of exchange drawn by the de.

BARNES. fendant 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 plaintif. 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 bad 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

No. XXXIV, N. s. 3L

1806.

> STAREY

tersus PARNIS,

sittings after Michaelmas term, 1805, bis lordship ruled that the bill, not being dishonoured till after the bankruptcy, it could not be proved under the coininission 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'Carley v. Bar. row, * Ex parte Adney,t Rucker v. Francis. I

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,ll 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. Mayur; 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 securily 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 could have proved under the commission upon any other ground than merely that of the bill." · Lord ELLEN BOROUGI, C. J.“ In MCartey v. Bar. "row, they say that the drawing is the thing."

* 3 Wils. 16. + Cowp. 460. 1 Ambl. 672., || Str. 949. 3 IVilson, 16. $ 7 Term. Rep. 575. q Dougl 54, 55. •** 1 Law Journal, by Morgan and IV.

1806.

STAREY

versus BARNES,

· 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 defendart, 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 Harri. son* 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 ad. mitted 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 Er parte Adnry.

Lord ELLENBOROUGH, C. J. " It occurred to me, at the trial, that this was an undertaking to pay in case of the defuult of the acceptor, and not a debitum in presenti solvendum in futuro. The drawing does not give an iminediale 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 inay 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,

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180

STAREY

versus BARNE).

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 lo 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 bona 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 ; ' bona 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.t

LAWRENCE, J. and LE BLANC, J. assented.

RULE ABSOLUTE.

* Ambler, 672.

1806,

SUTTON

ver stks WEE LES

Sutton against Wesley.--8th June. A brick-maker in a large way making bricks for sale became by Bankrapt.. devise tenant for life of the land on which the kiln was Trading. Stat.

13 Eliz. c. 7. worked, and of the earth and soil whereof the bricks were 5:1. 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,

cellor on a petition in the matter of the defendant's bankruptcy, to try the question whether the defendant bad been a trader within the bankrupt laws, at any time between the 26th day of September, 1796, and the Ist 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, da. mages 1s. costs 40s. subject to the opinion of the court on the following case: The defendant in the year 1793, 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 bis then name of John March. When he so opened the kiln, be had no interest in the estate froin which the brick earth was dug, the same being the property of one Samuel Wreley. 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 Weelty, 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 bis own life, for his own use and benefit, under the

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