ment, it is said, is set out in the same words and letters as the bill produced. But that is not enough; for it must be set out the same in substance and in legal operation, which is not done here. The bill in the declaration is in substance and legal operation a bill for so much English money; and the bill, when produced, appears to be for the same amount Irish currency. There is, therefore, a fatal variance between the declaration and the proof. HOLROYD J. The declaration in this case should have stated that the bill was drawn for Irish currency, or it should have contained such facts from whence the Court might draw that inference. Even if it had stated that the bill was drawn in Ireland, it perhaps might not be sufficient; but even that has not been done here. I am, therefore, of opinion, that this is a fatal variance, inasmuch as the real import of the bill has not been correctly stated in the declaration. BEST J. The defendant in this case is entitled to a Honsuit, inasmuch as the plaintiff has given no evidence of the bill stated in the declaration; and the defendant is clearly warranted in saying, that he never promised to pay that bill. For from the evidence it. appears, that he promised to pay, not that bill, but another, one-twelfth less in amount. 1819. Jan. 25th, CAMERON and Others, Assignees of LAING, a Monday, The ing before the act of bank ruptcy cannot principal sum exchange, so as be added to the due on a bill of constitute a good petitiondebt, unless ining creditor's TROVER for certain goods and chattels, bills of ex- Interest accruchange, &c. Plea, not guilty. At the trial before Abbott J. at the sittings after last Trinity term, the only question was, as to the bankruptcy of Laing. petitioning creditor's debt was an acceptance by the bankrupt of a bill of exchange, drawn for 967. 17s. 10d., due on the 18th of January, 1810. This bill, together with the interest due upon it, up to the time of the act of bankruptcy, amounted, altogether, to 1017. 14s. 8d. At the trial, Marryat for the defendant contended, that the interest could not lawfully be added to the principal, so as to make a good petitioning creditor's debt. The learned judge overruled the objection, and the plaintiffs subsequently obtained a verdict. Marryat, in Michaelmas term last, obtained a rule nisi for a new trial, and renewed his objection, on the ground, that interest was no part of the debt, but only in the nature of damages, and he cited Hume v. Peploe (a); and now, Scarlett, Gurney, and Barrow shewed cause. The distinction is, that interest accruing before the act of bankruptcy shall be allowed to form part of the petitioning creditors' debt, but not that which accrues afterwards. Interest, by the general usage of merchants, is (a) 8 East, 168. terest be specially made payable on the face of the bill. VOL. II. X given 1819. CAMERON against SMITH. given upon bills of exchange; and that usage forms part of every contract of this description. If the bill in this case had been to pay 967. 17s. 10d., with interest, there would be no doubt on the point. For it was decided, by the cases of Herries v. Jamieson (a), that debt would lie for interest. Then, if debt will lie for it, it cannot be contended with success, that it will not form a part of a valid petitioning creditor's debt. It is upon this principle, that the court of error allows interest upon bills of exchange. Besides, interest, as appears from the precedents, is allowed by the commissioners of bankrupts in these cases. Marryat and Littledale, contrà. In the case cited, the interest is part of the contract, and is expressly stipulated for by the parties at the time. It is then calculated according to the contract, and not awarded, as here, as damages for the breach of it. The calculation of the interest, up to the date of the commission, will be found to exist only in those cases where the securities specify that interest shall be paid. In all other cases, it is the uniform rule of the commissioners not to allow interest. It is clear, that damages cannot form a good petitioning creditor's debt: as, for instance, if a man have a good ground of action for damages against the bankrupt, for a libel, he cannot, till after he has obtained judgment, prove the amount of those damages under the commission. Interest is here of the same nature; it is the compensation in damages for the breach of the contract to pay the note. The rate at which it is to be paid is to be ascertained by the jury; (a) 5 Term Rep. 555. and and cases may occur, in which the jury would give no interest at all. In Ex parte Marlar (a) Lord Hardwicke took the distinction between contracts which express, and those which do not express interest; and decided, that the commissioners ought to allow interest in the former, but not in the latter case. As to the allowance of interest in the court of error, that is done under the provisions of 3 Hen. 7. c. 10., which gives the Court the power to award damages at their discretion. But this very case has lately come before the Court of Common Pleas, in the late case Ex parte Burgess, sent by the Lord Chancellor for their opinion; and they were of opinion, that the interest could not be added. to the principal, so as to form together a valid petitioning creditor's debt. ABBOTT C. J. The distinction which has been pointed out in the argument, between the cases where interest is reserved, on the face of the bill itself, and those where it is not, had not at first occurred to my mind. I find, however, that the distinction has been recognized by Lord Hardwicke, in the case Ex parte Marlar (b); and the reason there given is, that where interest is not expressed in the body of the note, the jury on the trial do not give the plaintiff interest, but by way of damages only; and, therefore, that as commissioners of bankrupt cannot award damages, they cannot allow such creditors to prove for the interest due upon the notes. The rule laid down in that case has been ever since followed in practice; and the result is, that where a creditor is possessed of a bill, 1819. CAMERON against SMITH. 1819. CAMERON against SMITH. which does not express interest in the body of it, he is only allowed by the commissioners to prove for the principal money. The question, too, has been very recently before the Court of Common Pleas; and that court expressly decided, that the interest ought not to be added to the principal, to make a good petitioning creditor's debt. That case is precisely in point; and, upon these authorities, I am quite satisfied that this is not a good petitioning creditor's debt, and that this commission, cannot be supported. There must, therefore, be a new trial. BAYLEY J. I am of the same opinion. The first impression on my mind was, that the interest might be added to the principal to make a good petitioning creditor's debt; but, upon further consideration, I am quite satisfied, that the distinction is between those cases where there is an express undertaking by the party to pay both principal and interest, and those where he undertakes to pay the principal only. In the latter casc, the interest is no part of the debt, but only in the nature of damages. The case of a bond is different; for there the penalty is the debt, and the principal money due, and the interest thereon, may be considered as part of the penalty. Although by the usage of trade interest is allowed on a bill, yet it constitutes no part of the debt, but is in the nature of damages, which must go to the jury, in order that they may find the amount; and it is competent for them either to allow five per cent. or four per cent., according to their judgment of the value of money, or they may even allow nothing, in case they are of opinion, that the 'delay of payment has been occasioned by the default of the holder. |