when in the mean time all reckonings and accounts may be adjusted between the drawer and the drawee' (26). y Sa'k. 127. (26) It is probable, when the ftatute 9 & 10 W. III. c. 17. was paffed, which requires notice of a proteft to be fent within fourteen days, that fuch time was thought a reafonable notice of the bill's being dishonoured; but it is now fully fettled, that if the holder of a bill intends to have his remedy against the drawer or indorfer, he must give him notice without delay of the non-acceptance or nonpayment, and that he expects payment from him. It used to be held, that the reasonablenefs of the notice was a queftion of fact for the jury to determine; but it is now so far a question of law, that the courts will grant new trials till the jury adopt the rule which they have established: which feems to be this, viz. that notice must be given to the drawer or indorfer, by the first or next post, if the time will permit after the difhonour of the bill. 1 T. R. 168. Doug. 497. It might perhaps be more convenient to extend the rule till the poft goes out on the next day, as this would cut off all queftions and litigation upon the poflibility of giving notice on the fame day. The drawer and indorfers are discharged, without fuch due notice, from all actions brought upon the bill; with this exception, if the holder can prove that the drawer had no effects in the hands of the drawee when the bill was dishonoured, he may ftill recover against the drawer, though he omitted to give him notice. For the intent of the notice is to give him the earlieft opportunity of regaining his property out of the hands of the drawee; and he can fuftain no poffible injury by the want of notice, when he has no property in the drawee's poffeffion. 1 T. R. 712. But this reafon does not extend to an indorfer; and therefore the circumstance of the drawee's having no effects is immaterial in an action against him. Ib. So if a bill of exchange is difhonoured by non-acceptance or non-payment, if the holder intends to proceed against a prior indorfer, he muft give him immediate notice. But if he payee in a promiffory note has given no value for it, then in an action against him by the holder, it is not neceffary to prove that payment was demanded of the drawer at the time it was due, or that notice was given him of the drawer's refusal to pay. For from the omiffion of thefe circumstances fuch a payee can fuftain no lofs. 2 Hen. Bl. 336. Proof that a letter was put into the post-office in due time directed to the party, containing an If the bill be an indorsed bill, and the indorfee cannot get the drawee to discharge it, he may call upon either the drawer or the indorfer, or if the bill has been negociated through many hands, upon any of the indorfers; for each indorfer is a warrantor for the payment of the bill, which is frequently taken in payment as much (or more) upon the credit of the indorfer, as of the drawer. And if fuch indorfer, fo called upon, has the names of one or more indorfers prior to his own, to each of whom he is properly an indorfee, he is also at liberty to call upon any of them to make him fatisfaction; and fo upwards. But the first indorfer has nobody to refort to, but the drawer only (27). WHAT has been faid of bills of exchange is applicable alfo to promiffory notes, that are indorfed over, and negociated from one hand to another; only that, in this cafe, as there is no drawee, there can be no proteft for non-acceptance; or rather, the law confiders a promiffory note in the light of a bill drawn by a man upon himself, and accepted at the time of drawing. And, in case of non payment by the drawer, the feveral indorfees of a promiffory note have the fame remedy, as upon bills of exchange, against the prior indorfers. account of the difhonour of a note or bill is fufficient evidence of notice. 2 Hen. Bl. 509. But the holder muft remember that this cannot be proved by his own teftimony. (27) The holder of the bill may bring actions against the acceptor, drawer, and all the indorfers at the fame time; but though he may obtain judgments in all the actions, yet he can recover but one fatisfaction for the value of the bill; but he may fue out exe cution against all the reft for the cofts of their respective actions. Bayley, 43. CHAPTER THE THIRTY-FIRST. OF TITLE BY BANKRUPTCY. THE commercial methods, we from thence fhall be eafily led to take into our prefent confideration a tenth method of tranf. ferring property, which is that of X. BANKRUPTCY; a title which we before lightly touched upon, fo far as it related to the transfer of the real estate of the bankrupt. At prefent we are to treat of it more minutely, as it principally relates to the difpofition of chattels, in which the property of perfons concerned in trade more usually consists, than in lands or tenements. Let us therefore first of all confider, 1.Who may become a bankrupt: 2. What acts make a bankrupt: 3. The proceedings on a commission of bankrupt: and 4. In what manner an estate in goods and chattels may be transferred by bankruptcy. I. WHO may become a bankrupt. A bankrupt was before defined to be "a trader, who fecretes himself, or does "certain other acts, tending to defraud his creditors." He was formerly confidered merely in the light of a criminal or offender (1); and in this spirit we are told by fir Edward Coke, Stat. 1 Jac. I. c. 15. § 17. 4 Inft. 277. 2 See page 285. d (1) Throughout the three first ftatutes the bankrupt is uniformly called an offender, and the original design of the bankrupt laws that we have fetched as well the name, as the wickedness, of bankrupts from foreign nations. But at prefent the laws [472 of bankruptcy are confidered as laws calculated for the benefit of trade, and founded on the principles of humanity as well as juftice; and to that end they confer fome privileges, not only on the creditors, but alfo on the bankrupt or debtor himfelf. On the creditors: by compelling the bankrupt to give up all his effects to their ufe, without any fraudulent concealment; on the debtor; by exempting him from the rigor of the general law, whereby his perfon might be confined at the difcretion of his creditor, though in reality he has nothing to fatisfy the debt: whereas the law of bankrupts, taking into confideration the fudden and unavoidable accidents to which men in trade are liable, has given them the liberty of their perfons, and fome pecuniary emoluments, The word itfelf is derived from the word bancus or banque, which fignifies the table or counter of a tradefman, (Dufresne. I. 969.) and ruptus, broken; denoting thereby one whofe shop or place of trade is broken and gone; though others rather choofe to adopt the word route, which in French fignifies a trace er track, and tell us that a bankrupt is one who hath removed his banque, leav- fuch perfons as do make bankrupt,” laws appears to have been to prevent and defeat the frauds of cri- VOL. II. upon upon condition they furrender up their whole eftate to be divided among their creditors. In this repect our legislature feems to have attended to the example of the Roman law. I mean not the terrible law of the twelve tables; whereby the creditors might cut the debtor's body into pieces, and each of them take his proportionable share: if indeed that law, de debitore in partes fecando, is to be understood in so very butcherly a light; which many learned men have with reafon doubted f. Nor do I mean those less inhuman laws (if they may be called fo, as their meaning is indisputably certain) of imprisoning the debtor's perfon in chains; fubjecting him to ftripes and hard labour, at the mercy of his rigid creditor; and sometimes felling him, his wife, and children, to perpetual foreign flavery trans Tiberim : an oppreffion which produced fo many [473] popular infurrections, and feceffions to the mons facer. But I mean the law of ceffion, introduced by the chriftian emperors; whereby, if a debtor ceded, or yielded up all his fortune to his creditors, he was fecured from being dragged to a gaol, "omni quoque corporali cruciatu femoto." For, as the emperor justly observes', "inhumanum erat fpoliatum fortunis "fuis in folidum damnari." Thus far was just and reasonable: but, as the departing from one extreme is apt to produce it's oppofite, we find it afterwards enacted *, that if the debtor by any unforeseen accident was reduced to low circumstances, and would fwear that he had not sufficient left to pay his debts, he should not be compelled to cede or give up even that which he had in his poffeffion: a law, which under a false notion of humanity, feems to be fertile of perjury, injuftice, and abfurdity. f Taylor. Comment. in L. decemviral. Bynkerth. Obferv. Jur. I. 1. Heinecc. Antiq. III. 30. 4. In Pegu and the adjacent countries in East India, the creditor is entitled to difpofe of the debtor himself, and likewife of his wife and children; infomuch that he may even violate with impunity THE |