under or on the back of the bill. (u) If the drawee accepts the bill either verbally (v), or in writing, he makes himself liable to pay it. If he refuses to accept it, and it be of the value of 20%. Stra. 1000. or upwards, and expressed to be for value received, the payee or indorsee may protest it for non acceptance; which protest must be made in writing, under a copy of such bill of exchange by some public notary; or if no such notary be resident in the place, then by any other substantial inhabitant, in the presence of two credible witnesses; and notice of such protest must within fourteen days after be given to the drawer (w).

But in case such bill be accepted by the drawee, and after Protest for acceptance, he fails or refuses to pay it within three days after non-payment. it becomes due, which three days are called days of grace (x),

member of such corporation or copartnership. By 9 Geo. 4, c. 14, no writing rendered necessary by this act is liable to stamp duty. As to joint-stock companies within sixtyfive miles of London, see 1 Vict. c. 73. In a recent case, Paulett v. Nuttall, in the queen's bench, a motion was made to enter a suggestion on the roll pursuant to 7 Geo. 4, c. 46, s. 13, in order to issue execution against the defendant, late a partner in a bank, when it was held that a scire facias must be first brought, under which the rights and liabilities of the parties might be discussed.

(u) By 1 & 2 Geo. 4, c. 78, s. 1, if any person shall accept a bill of exchange, payable at the house of a banker or other place, without further expression in his acceptance, such acceptance shall be deemed to be a general acceptance of such bill; but if the acceptor shall, in his acceptance, express that he accepts the bill payable at a banker's house or other place only, and not otherwise or elsewhere, such acceptance shall be deemed to be qualified, and the acceptor is not liable to pay it, except in default of payment, when such payment shall have been duly demanded at such banker's house or other place. By s. 2, no acceptance of any inland bill of exchange, shall be sufficient to charge any person, unless such acceptance be in writing on such bill, or if there be more than one part of such bill, on one of the said parts.

(v) But see 1 & 2 Geo. 4, s. 2, in the last note.

(w) By 2 & 3 Wm. 4, c. 98, bills of exchange expressed to be payable in any place other than the residence of the drawee, if not accepted on presentment, may be protested in that place, without further presentment to the drawee, unless the amount be paid to the holder on the day on which such bills would have become payable, if duly accepted.

(x) By 6 & 7 Wm. 4, c. 58, bills of exchange need not be presented to the acceptors for honour, or to the referees, until the day following the day on which they become due; and if the place of address of such acceptor or referee on such bill be elsewhere than where such bill shall be payable, then it shall not be necessary to forward the bill for presentment for payment to such acceptor for honour or referee until the day following the day on which it shall become due; and if the following day be a Sunday, Good Friday, or Christmas-day, then on the day following such days respectively. Three days' grace are allowed on promissory notes as well as bills of exchange; Brown v. Harraden, 4 T. R. 148.

By 39 & 40 Geo. 3, bills and notes becoming due on Good Friday are payable, and may be noted and protested on the day preceding, in the same manner as bills and notes becoming due on Sunday or Christmas-day.

Lord Raym. 993.

Salk. 127.

The same as to promissory

notes.

the payee or indorsee is then to get it protested for non-payment in the same manner, and by the same persons who are to protest it in case of non-acceptance; and such protest must also be notified within fourteen days after to the drawer, and he, on the production of such protest, either of non-acceptance or non-payment, is bound to make good to the payee or indorsee the amount of the bill, and all interest and charges to be computed from the time of making such protest. If no protest be made or notified to the drawer, any damage accruing by such neglect shall fall on the holder. The bill, when refused, must be demanded of the drawer as soon as conveniently may be, or the law will imply it paid. If the bill be an indorsed bill, and the indorsee cannot get the drawee to pay it, he may call upon either the drawer or the indorser; or if it has gone through many hands upon any of the indorsers, and such indorser so called upon may call upon any previous indorser; but the first indorser can only resort to the drawer.

What has been said of bills of exchange is applicable also to promissory notes, that are indorsed over and negociated from one hand to another (y); only that in this case as there is no drawee, there can be no protest for non-acceptance (x). In case of non-payment by the drawer, the several indorsees of a promissory note have the same remedy as upon bills of exchange against the prior indorsers. (2)

By 7 & 8 Geo. 4, c. 15, the same provision is made as regards proclamation days and fast and thanksgiving days; and where bills and notes become payable on the day preceding Good Friday or Christmas-day, notice of the dishonour need not be given until the day next after such Good Friday or Christmas-day; and when Christmas-day shall fall on a Monday, notice of the dishonour of notes payable on the preceding Saturday need not be given until the Tuesday next after such Christmas-day. By s. 3, Good Friday, Christmas-day, and proclamation days and days of fast and thanksgiving, are to be considered as to bills and notes as Sunday.

(y) By 3 & 4 Anne, c. 9, and 7 Anne, c, 25, promissory notes are put on the same footing as bills of exchange.

(z) By 9 & 10 Wm. 3, c. 17, if any inland bill be lost before it is payable, the drawee must give another of the same tenor to the holder, who, if required, must give security to indemnify him if the bill be afterwards found.

"If a bill or note has been lost before it is due, and was when lost in such a state that the transferee of the finder bona fide and for a valuable consideration might recover on it, the loser cannot succeed in an action upon it at law; nor can an action be maintained for the consideration on which it was given, since the bill operated as payment, and if half of a bill or note transferable by delivery be lost, the holder cannot sue at law upon the other half;" Smith's Commercial Law, 230.

CHAPTER XXXI.

OF TITLE BY BANKRUPTCY.

A BANKRUPT is "a trader who secretes himself or does certain Who may other acts tending to defraud his creditors." The laws of become a bankrupt. bankruptcy are calculated for the benefit of trade, and founded on the principles of humanity as well as justice. To that end, they confer privileges, both on the creditors and on the bankrupt, by compelling the bankrupt to give up all his effects to his creditors, and by giving him in return the liberty of his person, and a certain pecuniary allowance. No person can have a commission (a) of bankrupt awarded against him unless at the petition of some one creditor to whom he owes 100%.; or Petitioning of two to whom he is indebted 150%.; or of more to whom creditor's altogether he is indebted 2007. (b). Buying only, or selling only, will not qualify a man to be a bankrupt; but it must be Trading. both buying and selling, and also getting a livelihood by it, as by exercising the calling of a banker, merchant, grocer, mercer, or in one general word, a chapman (c), who is one that buys and sells any thing; but no farmer, grazier, or drover,

debt.

(a) For "commission" where used in this chapter now read "fiat." By 1 & 2 Wm. 4, c. 56, "An act to establish a court in bankruptcy. The jurisdiction in bankruptcy was transferred to the court of review, subject to an appeal to the lord chancellor and the house of lords in certain cases, see post, p. 281. By s. 12 of the act, the lord chancellor is to issue a fiat instead of a commission, which, by s. 13, must be filed in the court of bankruptcy.

(b) By 6 Geo. 4, c. 16, s. 15, the petitioning creditor's debt must be as explained in the text, but any person who has given credit to a trader upon good consideration for any sum payable at a certain time not arrived at the committal of the act of bankruptcy may so petition or join in petitioning.

(c) The act 6 Geo. 4, c. 16 (which consolidates the laws relating to bankrupts), by s. 2, enacts that the following persons shall be deemed traders. All bankers, brokers, and persons using the trade or profession of a scrivener, receiving other mens' monies or estates into their trust or custody, and persons insuring ships of their freight, or other matters against perils of the sea, warehousemen, wharfingers, packers, builders, carpenters, shipwrights, victuallers, keepers of inns, taverns, hotels, or coffee-houses; dyers, printers, bleachers, fullers, callenderers, cattle or sheep salesmen, and all persons using the trade of merchandize, by way of bargaining, exchange, bartering, commission, consignment or otherwise in gross or by retail; and all persons, who either for themselves, or as agents or factors, for others seek their living by buying and selling, or by buying and letting for hire, or by the workmanship of goods or commodities, provided that no farmer, grazier, common labourer or workman for hire, receiver general of the taxes, or member of, or subscriber to, any incorporated commercial or trading companies established by charter or act of parliament, shall be deemed as such, liable by virtue of the act to become bankrupt.

Cro. Car. 31.

Ibid.

Skinn. 292.

2 P. Wms.
308.

Lord Raym.
443.
La Vie v.
Phillips.

M.GG.3,B. R.

Acts of

bankruptcy.

shall (as such) be liable to be deemed a bankrupt; trade not being their principal but only a collateral object. And no handicraft occupation, (where nothing is bought and sold, and where therefore, an extensive credit for the stock in trade is not necessary to be had) will make a man a bankrupt; but where persons buy goods and make them up into saleable commodities, as shoemakers and smiths, they are within the statutes; for the labour is only in melioration of the commodity, and rendering it more fit for sale. A single act of buying and selling will not make a man a trader, but a repeated practice and profit by it. An infant, though a trader, cannot be made a bankrupt; but a feme covert in London, being a sole trader, according to the custom may. To learn what are the particular acts which are acts of bankruptcy, we must consult the several statutes, and the decisions of the courts thereon (d).

(d) By 6 Geo. 4, c. 16, s. 3, if any trader shall depart this realm, or being out of this realm, shall remain abroad or depart from his dwelling-house, or otherwise absent himself, or begin to keep his house, or suffer himself to be arrested for any debt not due, or yield himself to prison, or suffer himself to be outlawed, or procure himself to be arrested, or his goods, money, or chattels to be attached, sequestered, or taken in execution, or make or cause to be made either within this realm, or elsewhere, any fraudulent grant or conveyance of any of his lands, tenements, goods, or chattels, or make or cause to be made any fraudulent surrender of any of his copyhold lands or tenements, or make or cause to be made any fraudulent gift, delivery, or transfer of any of his goods or chattels ; every such trader, doing, suffering, procuring, executing, permitting, making, or causing to be made any of the acts, deeds, or matters aforesaid, with intent to defeat or delay his creditors, shall be deemed to have thereby committed an act of bankruptcy. By s. 4, a conveyance of all a trader's property to trustees for the benefit of creditors is not an act of bankruptcy, unless a commission issue within six months. But such deed must be executed by every trustee within fifteen days after the execution of it by the trader; and such execution must be attested by an attorney or solicitor, and notice given in the Gazette and newspapers within two months. By s. 5, lying in prison twenty-one days and escaping out of prison are acts of bankruptcy. By s. 6, a declaration of insolvency left at the bankrupt office, with a notice in the Gazette, is an act of bankruptcy; but no commission shall issue thereupon, unless it be sued out within two months after the insertion of the advertisement. By s. 7, no commission grounded on such declaration shall be invalid by reason of the declaration having been concerted between the bankrupt and a creditor. By s. 8, a trader compounding with the petitioning creditor is an act of bankruptcy. The 9th & 10th sections provide for the cases of traders, having privilege of parliament, who, in order to be made bankrupt, are to be proceeded against, as in other cases; but they are not liable to be arrested or imprisoned, except in cases by the act made felony. And if, after an affidavit being made by the creditor of his debt, and summons served on such trader, (see now 2 Wm. 4, c. 39, s. 9) he shall not, within one month, give a bond with sufficient sureties to pay such sums as shall be recovered in such action, he shall be deemed to have thereby committed an act of bankruptcy.

By 1 & 2 Vict. c. 110, s. 8, if any creditor or any two or more creditors, being pertners, whose debt shall amount to 100l. or upwards, or any two creditors, whose debts shall

in bank

The following are the proceedings in bankruptcy: There Proceedings must be a petition to the lord chancellor by the creditor, ruptcy. whose debt must be proved by affidavit, upon which a commission (e) is granted to persons styled commissioners of bankrupt. The petition must be accompanied with a bond from the petitioning creditor to the chancellor, in the penalty of 2004 for making the party amends if he does not prove him a bankrupt (ƒ). If the petitioning creditor receives any recompense from the bankrupt for suing out the commission so as to receive more than the other creditors, he forfeits such recompense, together with his whole debt (g).

amount to 1501. or upwards, or any three or more creditors, whose debts shall amount to 2001. or upwards, of any trader within the bankrupt laws shall file an affidavit or affidavits in the court of bankruptcy of such debt or debts, and shall cause such trader to be served personally with a copy of such affidavit or affidavits, and with a notice in writing, requiring immediate payment of such debt or debts; and if such trader shall not, within twenty-one days, pay such debt or debts, or secure or compound for the same, or enter into a bond in such sum, and with two sufficient sureties as a commissioner of the court of bankruptcy shall approve of, to pay such sum as shall be recovered in any action brought for the same, with costs, or to render himself in custody after judgment in such action, every such trader shall be deemed to have committed an act of bankruptcy on the twenty-second day after service of such affidavit or affidavits and notice, provided a fiat in bankruptcy shall issue within two months from the filing of such affidavit, but not otherwise. By s. 39, the filing of the petition of any person in actual custody, subject to the bankrupt laws, and who shall apply by petition to the insolvent court for his discharge from custody, according to this act, is an act of bankruptcy from the time of filing such petition; and has the effect of devesting the real and personal estate of such person out of the provisional assignee. But such person must be declared bankrupt before the time appointed by the insolvent court, and advertised in the London Gazette, for his being brought up to be dealt with according to this act, or within two months from the time of the order, vesting the insolvent's estate in the provisional assignee. (e) As to the first proceedings in bankruptcy, see now also 1 & 2 Vict. c. 110, s. 8, n. (d), p. 280. By 1 & 2 Wm. 4, s. 12, in every case in which the lord chancellor before had power to issue a commission, the same power is given to the master of the rolls, the vice-chancellor, and each of the masters of the court of chancery, acting under any appointment by the lord chancellor, to be given for that purpose, on petition made to the lord chancellor by any creditor, and filing the usual affidavit and bond to issue a fiat in lieu of such commission, authorising the creditor to prosecute his complaint in the court of bankruptcy or elsewhere, before such person as the lord chancellor, master of the rolls, vice-chancellor, or master in chancery, may, by such fiat, nominate and appoint. And the persons so appointed have the same power as if they were special commissioners by commission under the great seal.

(f) By 6 Geo. 4, c. 16, s. 13, the bond is conditioned for proving the debt and bankruptcy, as well before the commissioners as upon any trial at law; and on failure of such proof, or if the commission be sued out maliciously, the creditor suing out the fiat is liable to damages, and the debtor may take an assignment of the bond, and sue for the same in his name.

(g) See the 8th section of 6 Geo. 4, c. 16.