Sect. 1. Of the chequer, where wager of law is not allowed', or by special custom in the city of London. action of debt on a bill or note. This action may be supported by the payee of a promissory note against the maker, when expressed to be for value received', and by the payee of a foreign or inland bill of exchange expressed to be for value received against the drawer, and by the first indorsee against the first indorser, who was also the drawer of a bill payable to his own order. In Bishop v. Young 6, (the most recent decision on the subject,) the court said, "We do not say how the case would stand, if "the action were brought by any other person than "him to whom the note was originally given, or against any other person than him by whom it was "signed and made, or if the note itself did not ex(6 press a consideration upon the face of it." Therefore it is still uncertain, whether in respect of the want of privity between the parties, an indorsee can support an action of debt against the drawer of a bill or maker of a note. Debt is not sustainable on a collateral engagement, as on a promise to pay the debt of another'; and, it has been holden, that debt cannot be supported on a bill of exchange by the payee against the acceptor'; therefore bail in error is not necessary upon a judgment in debt against the acceptor of a bill; first, because Id. ibid. The City of London's case, 8 Co. 126 a. 3 Bishop v. Young, 2 Bos. & Pul. 78.—Bayl. 162.—Selwyn 4th ed. 363. n. 69. Bishop v. Young, 2 Bos. & Pul, 82, 3, 4.-Hodges v. Stoward, Skin. 346. 0. -, Exchequer, A. D. 1817. Bishop v. Young, 2 Bos. & Pul. 78. 84. 7 Anonymous, Hardr. 486.-Com. Dig. tit. Debt, B.-Purslow . Baily, 2 Ld. Raym. 1040.--Hodsden v. Harridge, 2 Saund. 62 b. 8 Bishop. Young, 2 Bos. & Pul. 80. 82, 83.-Anonymous, Hardr. 485.--Simmonds v. Parminter, 1 Wils. 185.-Browne v. London, 1 Mod. 285.-Gilb. Debt, 364.-Com. Dig. tit. Debt, B.-Avonymous, 12 Mod. 345.-Bayl. 94.-1 Taunt. 540.-2 Campb. 187. n, a. Webb r. Geddes, 1 Taunt. 540. action of debt on no privity of contract exists between those parties; Sect. 1. Of the and, secondly, because in an action of debt on simple a bill or note. contract, the consideration ought to be shewn, which is not stated in a declaration on a bill, and an acceptance is only in the nature of a collateral promise or engagement to pay, which creates no duty. In Rumball v. Ball3, the plaintiff recovered in an action of debt on a promissory note, and in another reporter it is said, that debt will lie against the maker of a note, but not against an indorser *. In Welsh v. Craig, it was holden that debt would not lie upon a note, but, as it has been observed, it does not appear by, or against, what particular party that action was brought, though from the argument of counsel it may be inferred, that the action was against an indorser 7. Debt is not sustainable on a promissory note payable by instalments, unless the whole be due. 2 1 Rol. Ab. 597. pl. 4. 10.-Core's case, 1 Dyer, 21. a. Bishop v. Young, 2 Bos. & Pul. 83.-Hodges v. Steward, 1 Salk. 125. pl. 5.-Vin. Ab. tit. Bills, N. But perhaps, the action of debt might now be sustainable by the payee, &c. against an acceptor, first, because with respect to privity of contract it has been holden, that if one deliver money to another to pay over to a third person, the cestuique use may sustain an action of debt against the bailee to recover it, Harris v. De Bervoir, Cro. Jac. 687.; 1 Rol. Ab. 441: 597. 1. 55.-Whorewood v. Shaw, Yelv. 23.; and the acceptance of a bill amounts to a promise in law, to pay the amount of it to the person in whose favour it is drawn; Hussey v. Jacob, 1 Ld. Raym. S8.; and, secondly, because an acceptance is not a collateral engagement, nor is it similar to a promise by A. to pay the debt of B., if B. do not, an argument which was adduced in support of the doctrine, but the acceptor is primarily liable; Bishop v. Young, 2 Bos. & Pul. 83.; and, lastly, because whenever the common law or custom raises a duty, debt lies for it, Anonymous, Hardr. 486. Com. Dig. Debt, A. Hussey. Jacob, Ld. Raym. S8. on which ground Twisden, J. held, that indebitatus assumpsit would lie on a bill of exchange at the suit of the payee against the acceptor. Brown v. Londou, 1 Vent. 152. Anonymous, Holt. 296.-Anonymous, 12 Mod. 345. Hodges Steward, Skin. 346. acc.-Brown v. London, 1 Freem. 14.-1 Mod. 285.-1 Vent. 152. S. C.-Hodges v. Steward, Comb. 204. contra. 'Rumball v. Ball, 10 Mod. 38.; observed on in Bishop v. Young, 2 Bos. & Pul. 84, 1 Mod. Ent. 312. pl. 13. Welsh . Craig, 2 Stra. 680-8 Mod 173. S. C. observed on in Bishop v. Young, 2 Bos. & Pul. 80, 1, 2. Bishop v. Young, 2 Bos. & Pul. 81.-Bayl. 94. n. c. ? Bishop v. Young, 2 Bos. & Pul. 80. 8 Rudder v. Price, 1 Hen. Bla. 548. CHAPTER VII. OF BANKRUPTCY. IN the preceding chapters, our attention has been principally directed to the consideration of the remedies in cases where the parties to a bill, or other negotiable security, may be supposed to be solvent. In this chapter the rights and liabilities of the parties, and the course of proceeding in the case of bankruptcy, will be treated of. In this inquiry, we shall only consider that part of the law of bankruptcy which peculiarly relates to bills of exchange and other negotiable securities. The subject is to be considered under the following heads: I, What constitutes a trading by being a party to bills. II. The act of bankruptcy in relation to bills. III. The petitioning creditor's debt being holder of bill. IV. The proof of bills, &c. 1st. What bills may be proved. 2d. Who may prove. 3d. Against whom and under what commission. 4th. For what sums. or to what extent the proof may be made. 5th. The time of proof and of claims. 6th. The mode and terms of proof, and remedy for the dividend. 7th. The consequences of not proving, and effect of certificate. V. Of mutual credit. VI. General effect of bankruptcy on the property of the bankrupt and of others. I. WHAT CONSTITUTES A TRADING BY BEING A PARTY TO A BILL. With respect to the trading; drawing and redraw- 1. The trading. ing bills of exchange, for the sake of the profit, is à trading sufficient to subject a party to be made a bank→ rupt, without other circumstances, if it be general and not merely occasional'. This is founded on the 13 Eliz. c. 7. and 21 J. 1. c. 19. s. 2. which enact, "That every person using the trade of merchandise by way of bargaining, exchange, bartering, chevisance, or otherwise, in gross or by retail, may become bankrupts." Instances of this description do not often occur. In the case of Richardson v. Bradshaw, the bankrupt Wilson for several years received money from officers and other persons, and his cashier gave accountable notes for it, and these persons drew from time to time upon Wilson for such sums, payable either to bearer or order, as they thought proper; and this repeated dealing was held to be a trafficking in exchange, and a trading sufficient in itself to subject him to a commission of bankruptcy, upon the principle, that persons of this description make merchandise of money and bills, and gain an extensive credit upon the profits of that course of dealing, in the same. manner as other merchants and traders do by buying and selling, or using the trade of merchandise in gross, or by retail, with respect to other goods and moveable chattels*. On the same principle, borrowing money abroad for the purpose of repaying it in England at a certain rate of exchange, and repaying it by bills upon bankers in London, to whom foreign bills were remitted to make the payment, was held to be a trading'. Richardson v. Bradshaw, 1 Atk. 129.-Hankey v. Jones, Cowp. 745.-1 Mont. 22.-Cullen, 10.-Cook. 52. 2 1 Atk. 128.-Cook. 61. 218. Richardson v. Bradshaw, 1 Atk. 129.-Ex parte Wilson, 1 Atk. 2 Bla. Com. 475. 3 Inglis v. Grant, 5 T. R. 530. 1 Mont. 22 1. The trading, But an occasional drawing and redrawing bills of exchange, though for the sake of profit, as where it is done for the purpose of raising money to improve a person's own estate, or for other private occasions, will not render a person liable to the bankrupt laws'. And the statutes relating to Exchequer Bills expressly provide that a party circulating the same shall not be deemed a trader within the bankrupt laws. 2. Aot of bankruptcy. , II. THE ACTS OF BANKRUPTCY IN RELATION TO BILLS, With respect to the act of bankruptcy; stopping payment, or refusing payment of, or renewing a bill of exchange, does not amount to an act of bankruptcy'. But a denial by a trader to the holder of a bill of exchange actually due, or to his clerk, at any time of the day, when it became due, constitutes an act of bankruptcy, which cannot be avoided by afterwards appearing in public and paying the bill before five o'clock of that day. So if a commission has been issued against a party to a bill, and he afterwards compromises with the petitioning creditor by paying a part of the debt, this will in itself constitute an act of bankruptcy'; and though stopping payment is not of itself an act of bankruptcy, the statutes which protect payments and other transactions taking place after a secret act of bankruptcy, expressly provide that stopping payment shall be equivalent to notice of the act of bankruptcy ; but the mere circumstance of a person's renewing a bill is not deemed stopping payment or notice of insolvency'. Hankey v. Jones, Cowp. 745.-1 Mont. 26.—Cullen, 18.—Coek, 60, 1.-Harrison v. Harrison, 2 Esp. Rep. 555. See the statutes, Cooke, 84. 3 Cullen, 65-Anonymous, 1 Campb. 492. (n). *Colkett v. Freeman, 2 T. R. 59.-Mucklow . May, 1 Taunt, * Ex parte Gedge, 3 Ves. jun. 349.—Cullen, 57. * 1 Campb. 492. ་ |