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Laing v. Barclay, 3 Stark. 41. Gantt v. Mackensie, 3 Campb. 51. By one writer it is said, that re-exchange and damages on a dishonored bill from Jamaica, are 8 per cent., besides all expenses. On a bill from the Leeward Islands, 10 per cent. ; and from Demerara and Berbice, 25 per cent. Glen on

Bills, 269. (n.) 2d Edit.

317

CHAPTER XIV.

OF BANKRUPTCY.

Trading-trafficking in bills.

Act of bankruptcy-denial to holder of bill.
Petitioning creditor's debt on bills.
Amount of.

Nature and time of accruing of.

Proof of bills and notes.

What bills and notes may be proved.
Time of holder's becoming party to.
Accommodation bills.

In general.

Proof by the party accommodating against the estate of the party accommodated:

Cross bills.

In general.

Where there are cross bills, and a cash account, and both parties become bankrupts.

Under several commissions, and amount of proof.

Where the bills have been deposited as a security. Where there are several bills, and one is paid in fullproof reduced.

Interest.

Expenses and re-exchange.

Election.

Set-off.

Bills and notes of which the bankrupt is the reputed owner.

Trading-by trafficking on bills.] A person drawing and redrawing bills of exchange for profit, has been held to be a

trader within the meaning of the bankrupt laws (21 Jac. 1. c. 19., now 6 G. 4. c. 16. s. 2.) One Wilson, an army agent in London, drew on Johnson, another agent in Dublin, to the amount of 280,000l., and Johnson drew on Wilson to the amount of 290,000l.; but there was no commission money on either side. It was proved by various merchants, that drawing and redrawing bills to such an amount, and a continuation of it was a trafficking in exchange; and such a trafficking as would make a man liable to a commission of bankruptcy. The jury asked the judge, whether such a drawing and redrawing was in point of law a trading. The judge said it was not so much a point of law as of fact, to be determined by them on the usage of merchants; and if they paid credit to that evidence, this was a trading. The jury found, that Wilson was a trader, and the verdict was acquiesced in. Richardson v. Bradshaw, 1 Atk. 128. (See also Inglis v. Grant, 5 T. R. 530.) Upon this case Lord Mansfield observed, that a very material circumstance was, that Wilson kept other people's money; Hankey v. Jones, Cowp. 747; and it is said by Lord Eldon, that Lord Mansfield would not have held that drawing and redrawing bills would alone make a man liable to the bankrupt laws, independent of the circumstance in Richardson v. Bradshaw, that Wilson held other men's money and made profit by it. Ex parte Bell, 15 Ves. 356. But a person who draws bills on his own account, and for his own convenience, and not to make profit thereby, is not a trader. Thus, where a clergyman engaged in draining lands, drew bills to a large amount, for the payment of which he provided by remitting cash to the acceptors, allowing his bankers a quarter per cent. for paying them, and in some instances paying a quarter per cent. for getting them discounted, and in other cases borrowing accommodation bills to a large amount; he was held not to be a trader. Lord Mansfield distinguished this case from the above cited case of Richardson v. Bradshaw, for there Wilson had large sums of other people's money in his hands, and made a profit by the drawing and redrawing of himself and Johnson; but here the bills were drawn by a person, merely for the purpose of improving his own estate, and he paid discount on what he drew. Hankey v. Jones, Coup. 745. Merely discounting bills of exchange will not constitute a person a scrivener within the bankrupt laws. Thus, where a clerk in the Custom House frequently took debentures for merchants, and received the money for them, which he kept in his possession, taking a commission on the receipt ; and, with the money so received, discounting bills and notes for his own benefit, Lord Kenyon held, that this did not constitute him a scrivener. Hamson v. Harrison, 2 Esp. 555.

A banker is liable to be made a bankrupt. 6 G. 4. c. 16. s. 2. A person acting as a banker, though not keeping an open shop,

is subject to the bankrupt laws. Ex parte Wilson, 1 Atk. 217. An agent to a regiment is not a banker. Id.

Act of bankruptcy-denial to holder of bill.] Where a trader denied himself to the holder of a bill, at nine o'clock on the morning of the day on which it became payable, but in the course of the same day procured money, and paid the bill before five o'clock; it was held, that the act of bankruptcy was complete by the denial in the morning, and that it was not purged by the subsequent payment. Colkett v. Freeman, 2 T. R. 59. If a trader denies himself to a person, who desires that he may be told that a certain bill of exchange, mentioning the parties to it, is dishonored, and that he wishes to see him in consequence, such denial is an act of bankruptcy without further proof of the party's being a creditor, if the jury believe that the bankrupt so considered him. Bleasby v. Crossley, 2 C. & P. 213.

Petitioning creditor's debt on bills—amount of.] No commission shall be issued, unless the single debt of such creditor, or of two or more persons, being partners, petitioning for the same, shall amount to 100l. or upwards, or unless the debt of two creditors so petitioning, shall amount to 150l. or upwards, or unless the debt of three or more creditors so petitioning, shall amount to 2001. or upwards, and every person who has given credit to any trader, upon valuable consideration, for any sum payable at a certain time, which time shall not have arrived when such trader committed an act of bankruptcy, may so petition or join in petitioning as aforesaid; whether he shall have any security in writing, or otherwise, for such sum or not. 6 G 4. c. 16. s. 15. Where a bill does not carry interest expressly on the face of it, and is for a less amount than 100l., interest cannot be added to the sum payable, so as to make up a good petitioning creditor's debt; for interest is in this case considered in the light of damages. Cameron v. Smith, 2 B. & A. 305. In the matter af Burgess, Buck, 412. 8 Taunt. 660. 2 B. Moore, 745. S. C. Where two bills of exchange for 501. were drawn, and issued by a trader before an act of bankruptcy, and did not become due until after such act, but before the petition, it was held that this constituted a good petitioning creditor's debt, though at the time of the act of bankruptcy there was only 100l. due, minus the discount. Brett v. Levett, 13 East, 213. A debt, amounting to 100l., consisting of the notes of the bankrupt indorsed to the petitioner, and bought by him at 10s. in the pound, is sufficient to support a commission. Ex parte Lee, 1 P. Wms. 782.

Petitioning creditor's debt, nature and time of accruing of.] The holder of a bill of exchange, accepted by a trader, before

an act of bankruptcy by him committed, may petition for a commission, although at the time of petitioning the bill is not due, for it is debitum in præsenti, solvendum in futuro, and by 6 Geo. 4. c. 16. s. 15. a person who has given credit to any trader, upon valuable consideration, for any sum which shall not have become payable at the time such trader committed an act of bankruptcy, may be a petitioning creditor. So, also, the holder of a bill may petition for a commission against the drawer before the bill becomes due. Thus, where A. having drawn a bill of exchange for 1481. in favor of B. to whom he was previously indebted to that amount, committed an act of bankruptcy before either the bill was due, or had been presented for acceptance, the court of King's Bench, on a case sent by the Lord Chancellor for their opinion, certified that there was a good petitioning creditor's debt to support the commission. Ex parte Douthat, 4 B. & A. 67. But, when the bill has arrived at maturity, it is necessary in order to constitute a good petitioning creditor's debt against the drawer, to prove that the bill was dishonored by the acceptor, and that the drawer had notice of the dishonor; Cooper v. Machin, 1 Bingh. 426. 8 B. Moore, 539. S. C.; unless in the case of an accommodation bill, when it is unnecessary to prove notice of dishonor to the drawer. Bickerdike v. Bollman, 1 T. R. 435. ante, p. 222. Under the . former statutes relating to bankrupts, it has been held, that where two persons exchange acceptances, and before the bills are at maturity, one of them commits an act of bankruptcy, the other has not a sufficient debt to support a commission. Sarrat v. Austin, 4 Taunt. 200. 2 Rose, 112. S. C. (See Note 61.) A promissory note, though on the face of it purporting to be a present debt, yet being in substance a security for a contingent debt, and upon which, if attempted to be enforced at law, the court of Chancery would have restrained the action, is not a debt sufficient to support a commission. Ex parte Page, 1 Glyn & Jam. 100. Where the petitioner had accepted a bill for the accommodation of the bankrupt, who drew it, and after an act of bankruptcy, paid the amount to the holder, it was held that the petitioning creditor was a mere surety for the bankrupt, and that when he paid the bill, and not till then, he became a creditor of the bankrupt, and that this payment being made by him after an act of bankruptcy, could not create a debt to support a commission. Ex parte Holding, 1 Glyn & Jam. 97. A bill of exchange, which cannot be sued on at law, will not support a commission. Thus, where the drawers of a bill sued out a commission against the acceptor, but it appeared that one of the drawers had given an undertaking to provide for the acceptance when it should become due, Lord Ellenborough was of opinion, that there was no good petitioning creditor's debt, for that if an action had been brought by the drawers on the bill, it would have been an answer that

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