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will be (10) valid; provided the party paid be ignorant of the bankruptcy or insolvency of the bankrupt.
in August, 1805, his note for that sum, payable at twelve months, with interest half yearly. Part only of the money being paid, the defendant, in 1806, arrested Odell for the residue, and in Hilary Term, 1807, obtained judgment, which was affirmed on error the 5th of February, 1808; and the next day (the 6th of February) Odell paid the amount of the damages, interest, and costs. Odell had committed an act of bankruptcy on the 27th of January, 1808; on which a commission issued dated the 19th of February, 1808. In an action by his assignees to recover this money, the only question was, whether the payments by the bankrupt were protected by the 19 Geo. 2. c. 32. The court inclined to think that it was incumbent on the party receiving the money to shew that the payment was protected by the statute. But it being admitted that the note had been given for the balance of an account stated, consisting (inter alia) of money lent to the bankrupt, the court, without expressing any opinion as to whether the statute could be construed to extend to notes, held that this note could not be said to have been given in the ordinary course of trade and dealing. Postea to the plaintiffs.
(10) By 19 Geo. 2. c. 32. § 1. it is enacted, "That from and after the 29th of October, 1746, no person who is or shall be really and bonâ fide a creditor of any bankrupt, for or in respect of goods really and bonâ fide sold to such bankrupt, or for or in respect of any bill or bills of exchange really and bonâ fide drawn, negotiated, or accepted by such bankrupt, in the usual or ordinary course of trade and dealing, shall be liable to refund or repay to the assignee or assignees of such bankrupt's estate, any money, which before the suing forth of such commission, was really and bonâ fide, and in the usual and ordinary course of trade and dealing, received by such person of any such bankrupt, before such time as the person receiving the same shall know, understand, or have notice that he is become a bankrupt, or that he is in insolvent circumstances."
The statute giving this protection to payments by bankrupts, mentions bills, but is silent as to notes.
Whether it extends to notes has not been decided; and it is in terms confined to bills drawn, &c. in the usual and ordinary course of trade.
But all payments by and to any bankrupt bonâ fide made more than two calendar months before the date of his commission, will, notwithstanding any prior act of bankruptcy, be (11) good; provided the party so paid or paying, had not any notice of such prior act of bankruptcy, or that the bankrupt was insolvent, or had stopped payment.
After a foreign bill has been protested for nonpayment, any person may pay it (under protest) for the (12) honour of the drawer or of an indorser; and he is entitled to demand repayment not only from the person for whose honour he made
(11) By 46 Geo. 3. c. 135. § 1. it is enacted, "That in all cases of commissions of bankrupt hereafter to be issued, all conveyances by, all payments by and to, and all contracts and other dealings and transactions by and with, any bankrupt bonâ fide made or entered into more than two calendar months before the date of such commission, shall, notwithstanding any prior act of bankruptcy committed by such bankrupt, be good and effectual to all intents and purposes whatsoever, in like manner as if no such prior act of bankruptcy had been committed; provided the person or persons so dealing with such bankrupt had not at the time of such conveyance, payment, contract, dealing or transaction, any notice of any prior act of bankruptcy by such bankrupt committed, or that he was insolvent or had stopped payment."
(12) Beawes, 2d ed. pl. 50. and vide ante, p. 138.
the payment, but from (13) all other parties who are liable to that person.
Payment of a bill or note should not be made (14) before it has become due ;
If it be, it is at the peril of the person paying.
A check upon a banker was lost, and paid to a stranger the day before it bore date; the banker was obliged to repay the money to the loser. (15)
(13) Beawes, 2d ed. pl. 57., vide ante, p. 138., and Mertens v. Winnington, post, p. 263. n. (3), Hall v. Pitfield, post, p. 263. n. (4), and ex parte Lambert, post, p. 263. n. (5).
(14) Marius, 4th ed. p. 31., who observes, that if the drawee pay a bill before it has become due, and it appear that the payee was merely the factor or agent of the person who delivered it to him, and that person countermand the payment before the maturity of the bill, but after such payment by the drawee the latter may be obliged to repay the money."
(15) See Da Silva v. Fuller, Chitty, 2d ed. 112. n.
SECT. 1. Remedy on Bills or Notes. By Action.
Against whom, p. 265.
Terms, p. 265.
Re-exchange, &c. 278.- In what Form
of Action, p. 284.
By making the Bill or Note Evidence on the Money Counts, p. 286.
By suing for the Consideration on which the Bill or Note was given, p. 291.
On guarantee of Payment, p. 296.
On Bill or Note which is lost or de
stroyed, p. 297.
Form of special Count on Bill, p. 300. What Allegations in a special Count necessary Sufficient Proper proper, p. 304.
UPON a non-acceptance or non-payment, the holder of a bill or note may sue all the persons liable to him on account of such non-acceptance or non-payment, and he may sue them either at the same time or successively.
An indorser, an acceptor for the honour of an indorser or drawer, or the (1) drawer, is, after payment by him, holder; but he holds in his original capacity, not (2) as upon a transfer from the person he has paid.
(1) Louviere v. Laubray, 10 Mod. 36.
The plaintiff drew
a bill upon the defendant, which the defendant accepted, but afterwards refused to pay; upon this the bill was indorsed to the plaintiff, and the question was, Whether he could maintain an action as indorsee? and, per Parker C. J., upon evidence that he had effects in the hands of the defendant enough to answer the bill, and consequently that the acceptance was not upon the honour of the plaintiff, the action is well brought, but if there were no effects, the action would not lie; and the plaintiff recovered.
Symonds v. Parminter, 1 Wils. 185. 4 Bro. Parl. Cas. 604. The plaintiff drew a bill upon the defendant to the order of Cleer and Co., which the defendant accepted, but did not pay; the plaintiff paid it, and brought this action. The declaration stated that the plaintiff drew the bill; that the defendant accepted it, but did not pay it; that the plaintiff became liable, and paid it; by reason whereof the defendant became liable, and promised. The defendant demurred, and afterwards moved in arrest of judgment, and contended that the action would not lie; but the court, after two arguments upon the demurrer, and one on the motion in arrest of judgment, were of opinion that it would, and judgment was given for the plaintiff. The defendant brought a writ of error in parliament, but did not appear at the bar to support it, and the judgment was affirmed.
(2) Bishop v. Hayward, 4 Term Rep. 470. The plaintiff declared upon a note payable to himself or order, indorsed by him to the defendant, and by the defendant indorsed back again to him, and obtained a verdict; a rule was granted to shew cause why the judgment should not be arrested, on the ground that according to the statement in the declaration the plaintiff would be liable upon his indorsement to pay the defendant the