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Ex parte EMMETT.

THE time for presenting a Petition against a Bankrupt's Certificate expired this day, Saturday the 11th. A Creditor, who lived in the Country, had sent up a Petition against the Certificate, on the ground of Fraud in obtaining it, together with an Affidavit in support of it; but the Petition was not properly signed.

Mr. West moved, that the Petition may be received on Monday the 13th, and considered as if lodged on the 11th.

1815.

11th November.

Motion on Sa

turday the 11th, the last day for

presenting a Petition against a Bankrupt's Certificate, that a Petition prepared, but not properly signed, might be ordered to be received on Monday the

Sir Samuel Romilly, [Amicus Curia] said, the Practice 13th, and consiwas against allowing such a Motion.

The VICE-CHANCELLOR :

The Court is very strict on these occasions. The Creditor ought to have been prepared before with a proper Petition.

Motion refused.

Note. Mr. West afterwards made the Motion before The Lord CHANCELLOR, who refused to grant it, unless a Precedent could be adduced. None was found.

dered as present

ed on the 11th,

refused.

11th and 15th November.

Er parte HENSON in the matter of ELIZABETH WATSON, THOMAS NELSON, GEORGE NELSON, and GEORGE COOKE, Bankrupts.

Charge by a Bill IN and previously to the Month of April 1812, Henson

Broker in the

carried on the Trade of a Bill-broker, in the Town of Country of 10s. Nottingham, and had dealings with Thomas Nelson, of the same place, who carried on the Business of a Hosier, in Partnership with the other Bankrupts Elizabeth Watson, George Nelson, and George Cooke, under the firm of J. and T. Watson, Nelson and Co. in Love Lane, in the City of London.

per cent. Commission, in respect of a Bill payable in London,not usurious.

In the said month of April Henson lent to the said Thomas Nelson, a Bill of Exchange for the Sum of 8497. dated the 15th February 1812, and payable six months after date, and which Bill of Exchange the said Thomas Nelson procured to be discounted, and when due, the same was regularly paid.

In the month of May 1812 the said Thomas Nelson, in part payment of the said Debt, delivered to Henson a Bill of Exchange for the sum of 500l. drawn by him upon his said Partners in London, the said Messrs. J. and T. Watson, Nelsons and Company, and accepted by them, payable at their House in Love Lane in the City of London aforesaid, six months after date, to Messrs. John Heath and Son, or order, who indorsed the same to Henson, for a valuable and full considera

tion.

4

At the time of receiving the said last-mentioned Bill, Henson transacted business with Messrs. Stephen Barber and Sons, of London, Bankers, whom he employed as his Agents, and Henson at that time apprehended, and calculated, that it would be necessary for him to remit or transmit the said last-mentioned Bill to them, in order that they might present it, and receive the money due thereon when at maturity; and he likewise expected that agreeably to similar dealings with them they would charge him five shillings per cent. Commission, beside Postages, and he therefore claimed to have ten shillings per cent. Commission allowed him by the said Thomas Nelson, upon the said Bill of Exchange.

Before the said last-mentioned Bill was at maturity, Henson closed all his accounts with the said Messrs. Barber and Sons, and as he did not afterwards open any other account with any other Banker or Agent in London, he negociated the said Bill at Nottingham, with a Mr. John Hawkesly, then of the said Town, but since deceased, and to whom he upon that occasion paid or allowed so much money as he would have expended and been put unto in case his connection with Messrs. Barber and Sons had continued; and they had presented and received the amount of the said Bill for his use.

Thomas Nelson agreed thereto, and such Commission was allowed to Henson accordingly.

The Bill of Exchange when at maturity was accordingly duly presented for payment, to the Firm of J. and T. Watson, Nelson and Co., but the same was dishonored, and remained unpaid at the time of the Bankruptcy of that Firm.

1815.

Ex parte

HENSON.

1815.

Ex parte HENSON.

On the 12th day of January 1813 a Commission of Bankruptcy issued against Elizabeth Mason, Thomas Nelson, George Nelson, and George Cooke, and they were declared Bankrupts under the same; and Assignees were chosen.

Henson applied to the Commissioners under the Commission, and offered to prove the amount of the Bill of Exchange for 500l., accepted by the Bankrupts, and remaining due and unpaid at the time of their Bankruptcy, but the Assignees resisted such proof, and the Commissioners rejected the same, upon the ground, that the allowance of ten shillings per cent. Commission upon the Bill, was usurious.

Since the application made by Henson to the said Commissioners to receive his proof of the Bill of Exchange, he received from Heath and Son a Dividend or Composition of ten shillings in the Pound, upon the said sum of 500l., so that the sum of 250l. Principal Money only remained due and owing to him thereon.

The Petition, after stating these facts, which were supported by Affidavit, Prayed, That the Petitioner might be at liberty to prove the said sum of 250l. as a Debt under the Commission against Watson and Co. and that the Commissioners might be ordered to admit such Proof, and that the Petitioner might be paid Dividends thereon pari passu with the other Creditors.

Mr. Cooke, for the Petition :

A Country Banker may take a Discount upon a Bill, nd a Commission. A Bill-broker must be considered

on the same footing as a Country Banker. The question is, whether the charge of 10s. was a colourable charge, or a bona fide transaction. Bankers vary in their charges for Commission,-some, charge more than 108. and some less. He referred to Aurioll v. Mills (a); Hammond v. Yea (b); Masterman v. Cowie (c); Baynes v. Fry (d); and Ex parte Jones (e).

Sir Samuel Romilly, contra :—

The taking of this 10s. Commission is usurious. He exacts 10s. per cent., though his own Banker only charged him 5s. per cent.; the Security is then taken for forbearance of a Debt, at more than 5 per cent. and is therefore usurious.

The VICE-CHANCELLOR:

Many cases have decided, that if a Sum claimed for Commission is bona fide claimed, and not done colourably, with a view to avoid the Statute, it is not usurious. The case to the contrary, of Benson v. Parry (f), determined at Nisi Prius by Chief Justice Eyre, has been long over-ruled. If it is a Country transaction, and the Commission usual, and not unreasonable, it is not usurious. In Baynes v. Fry (g), and in Ex parte Jones (h), a larger Commission that than here claimed was allowed. In the late case of Kensingtons, in the King's Bench, the Jury did not consider the Commission charged as usurious, and the Court would not grant a new Trial. That was a Town transaction, but if it had

(a) 2 T. R. 52.

(b) 1 Bos. & Pull. 151. (c) 3 Campb. 488,

(f) See 15 Ves. 120, where that case is alluded to.

(d) 15 Ves. 120.

(g) 15 Ves. 120.
(h) 17 Ves, 332.

(e) 17 Ves. 332.

1815.

Ex parte HENSON.

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