ground that it was not alleged to whom plaintiff paid it, or that he paid it to the holder, or that plaintiff thereby became the legal holder thereof: sed per cur. on argument, payment to a wrong person would be no payment; this payment is alleged to have been according to the usage and custom of merchants, and plaintiff would be bound to prove payment to the person entitled to receive. Judgment for plaintiff.

[(a) Action on a note dated 15th July, acknowledging a certain sum to be due the plaintiff with interest from the 1st day of June. Demurrer for uncertainty in not stating what June. Per Curiam. "The count is good. When a day or month is mentioned as antecedent or subsequent to a contract, and the precise day or month is not specified, it means the time nearest to the date of the contract. Here the 1st of June must mean the preceding 1st of June." Whitney v. Crosby, 3 Cain. R. 89.

In Massachusetts it has been held that notes not negotiable, may be declared on like negotiable notes, in an action by the payee against the maker, or the endorsee against his endorser. See Jones v. Fales, ante, P. 7.

In Virginia, a declaration by the assignee of a note against the maker is not sufficient to maintain the action, if it do not state that the defendant failed to pay the money to the payee of the note as well as to the plaintiff. Norvell v. Hudgins, 4 Munf. 496.

In an action of debt by the assignee against the maker of a note, which is authorized by statute in Virginia, the averment that the assignment of it to the plaintiff was for value received, is immaterial. For the assignee without value, can as well maintain the action, as the assignee for a valuable consideration. In such case, where the defendant pleaded the bankruptcy of the assignor, a replication stating that the note was giving to the assignor in trust for the plaintiff, was held to be no departure from the declaration. Marshall C. J. said that the majority of the court were of opinion that "the duty created by the trust, and which was discharged by the assignment, might be considered as constituting a valuable consideration to support the averment, and prevent the replication from being a departure." Wilson v. Codman, 3 Cranch, 193.

But where the payee of a note endorsed it without recourse, and his assignee brought an action against him on the note on the ground that he had received the money from the maker, the court appeared to think the count defective for "not stating the endorsement was for a valuable consideration." Welch v. Lindo, 7 Cranch, 159.

Where the declaration stated the assignment to be for value received, and the assignment produced in evidence contained no expression of a valuable consideration, but was expressed to be "without recourse," the variance was held immaterial. Wilson v. Codman, 3 Cranch, 193.

In an action of debt, under the Virginia statute, against the endorser of a bill, the declaration which was for the principal, interest, damages, and charges of protest, without averring the amount of the charges, was on that account held bad. The court said that it was "material in the action of debt, that the declaration should state the demand with certainty." Wilson v. Lenox, 1 Cranch, 194.]

37

CHAP. X.

Remedy upon a Bill or Note by proving it under a Commission of Bankruptcy, or suing out a Commission thereon.

WHEREVER the holder of a bill or note is entitled to compel a person to pay it, he (1) may, in the event of such person's bankruptcy, prove the amount under his commission; and whatever would be a defence to a suit, (2) will be an answer to such proof.

And a bill or note (3) may be proved before it has become

(1) In ex parte Dewdney, 15 Ves. 495. Lord Eldon C. held that where recovery in an action on a bill would be barred by a plea of the statute of limitations, and all relief in equity would be equally defeated by lapse of time, to which courts of equity, in analogy to the statute of limitations, give similar effect, the bill could not be proved under a commission of bankruptcy; and after reasoning on the inconsistency which would result from a contrary doctrine, his lordship observed, "that consideration, among others, furnishes a ground for concluding that the real meaning of the legislature in those acts (the bankruptcy statutes) requiring the Lord Chancellor to give execution to all the creditors, was, that this species of execution should be given to those creditors, who, if a commission of bankruptcy had not issued, could, by legal or equitable remedies, have compelled payment." See 1 Sch. and Lefr. 48. Where the holder has bought bills or notes for Jess than the money payable upon them, (as in ex parte Lce, 1 P. Wms. 782., where he bought notes for 10s. in the pound,) or where he has discounted them, (as in ex parte Marlar, 1 Atk. 150.) as he might have recovered in an action, so he may prove under a commission of bankruptcy, to the full amount.

(2) As to such objections as arise from the form of the bill or note, vide ante, c. 1., also ex parte Adney, Cowp. 460., and ex parte Tootell, 4 Ves. 372. As to the sufficiency of the stamp, vide ante, c. 3. As to the transfer, vide ante, chap. 5. Acceptance, chap. 6. As to the effect of laches, vide ante, chap. 7. As to the legality of the consideration, vide post, chap. 12.

(3) By 7 Geo. 1. c. 31. 1, after reciting that traders had been obliged to sell their goods upon trust or credit," and to take bills, bonds, promissory notes, or other persons' securities for their moneys, payable at the end of three, four, or six months, or other future day of payment," and that it had become a question whether "such persons giving such credit on such securities,' ," could be let in to prove their debts before the securities became payable, it is enacted, "That all and every person and persons who have given credit, or at any time or times hereafter shall give credit on such securities as aforesaid to any person or persons, who is, are, or shall become bankrupts, upon a good and valuable consideration bona fide for any sum or sums of money or other matter or thing whatsoever which is or shall not be due or paya

due, deducting, on payment of the dividend, a rebate of legal interest for such time as it may then have to run; and it may (under certain (4) restrictions) be proved, though the bankrupt's liability commenced after his act of bankruptcy, and within two calendar months before the date of his commission.

So the money payable upon a bill or note, if of the requisite amount, though not yet due, (5) will be a good petitioning creditor's debt to support a commission of bankruptcy.

And a commission may issue against the drawer of a bill before it becomes due. (6)

And the commission will stand, though the bill when due is paid by the drawee. (6)

ble at or before the time of such person's becoming bankrupt, shall be admitted to prove his, her, and their several and respective bills, bonds, notes, or other securities, promise, or agreements for the same, in like manner as if they were made payable presently, and not at a future day; and shall be entitled unto and shall have and receive a proportionable part, share, and dividend of such bankrupt's estate in proportion to the other creditors of such bankrupt, deducting only thereout a rebate of interest and discounting such securities payable at future times after the rate of five pounds per centum per annum for what he shall so receive to be computed from the actual payment thereof to the time such debt, duty, or sum of money should or would have become due and payable in and by such securities as aforesaid."-And by 2. the bankrupt shall be discharged by his certificate, of and "from all and every such bond, note, or other security as aforesaid."

(4) Vide post, p. 293. to 295., and 46 Geo. 3. c. 135. § 2., post, p. 294. n. (12).

(5) By 7 Geo. 1. c. 31. § 3. it was provided, "That no such creditor (i. e. upon bill, bond, promissory note, or other persons' securities not yet due), shall be deemed or taken to be a sufficient creditor, for or in respect of such debt, to petition or join in any petition for the obtaining or suing forth of any commission of bankruptcy, until such time as such debt shall become actually due and payable." But by 5 Geo. 2. c. 30. § 22., after reciting such provision, it is enacted, "That so much of the said act as disables any such person from petitioning for, or joining in any petition for a commission against any person or persons who have before committed any act of bankruptcy, is hereby repealed: and it shall and may be lawful hereafter, for such person to petition for, or join in petitioning for any such commission of bankruptcy; any thing in the said act contained to the contrary thereof, in any wise notwithstanding."

Note, that in 7 G. 1. c. 31. § 1. the language is, "other persons' securities," (and it is so in the parliament roll) but in 5 G. 2. c. 30. § 22. (which professes to recite the substance of the former) it is, “other personal securities."

(6) Ex parte Douthat, 4 Barnew. and Ald. 67. Douthat owed Wade £148, and in order to pay him drew on Eyre and Miller, in favor of

And it is sufficient, if the money payable to the holder, be, at the time of (7) petitioning, of the requisite amount, though, by reason of the rebate of interest, it was not of that amount at the time of the act of bankruptcy; but it must be of the requisite amount at the time of the petition.

If, therefore, the bill or note be not then due, it would (8) seem that he must be a creditor for such sum as, after deducting the rebate of interest for the time which the bill or note has to run, will leave a debt of the requisite amount.

And upon bills or notes which are due at the time of the

Wade or order, at four months' date: Eyre and Miller acccepted the bill, and paid it when due; but in the interim Douthat committed an act of bankruptcy, and Wade sued out a commission against him, and proved the bill. Case from chancery on the question, whether under these circumstances there was at the date of the commission a good petitioning creditor's debt? the court certified that there was, and their opinion seemed to be founded not on there being a pre-existing debt to Wade, but on the ground that the statutes 7 G. 1. c. 31. and 5 Geo. 2. c. 30. § 22. extended to drawers and endorsers of bills as well as acceptors; and that if such drawer or endorser committed an act of bankruptcy before the bill was due, a commission might at once be sued out thereon.

(7) Brett v. Levett, 13 East. Rep. 213. In an action by the assignee of a bankrupt against the sheriff, and verdict for the plaintiff, a rule nisi to set aside the verdict was granted, on a question as to the sufficiency of the petitioning creditor's debt. The debt arose on two bills of exchange, each for £50, drawu by the bankrupt, and transferred to the petitioning creditor before the act of bankruptcy; both were dishonored by the drawee. The act of bankruptcy was on the 28th Dec. 1809, and the commission was dated 8th Feb. 1810. Each bill became due before the petition for the commission, but after the act of bankruptcy. At the time of the act of bankruptcy, therefore, there was not a debt of £100 due to the petitioning creditor, but only that sum minus the rebate of interest for the time which the bills had to run; and it was contended that at that time there ought to have been such debt due. But the court, after referring to 7 Geo. 1. c. 31. 3., which disabled a creditor, by a bill or note, payable at a future day, from petitioning for a commission in respect of such debt, " until such time as such debt shall become actually due and payable," and to 5 Geo. 2. c. 30. § 22., which removes such disability, held clearly, that it was sufficient if a debt of the requisite amount were due at the time of petitioning. Rule discharged. See also the judgment of Lord Kenyon in Glaister v. Hewer, infra.

(8) See 7 G. 1. c. 31. § 1. & 3., and 5 G. 2. c. 30. § 22. & 23. The petitioning creditor must, at the time of petitioning, make an affidavit that £100 is due to him from the bankrupt. But if this debt arise from a bill or note for £100 not then due, the sum then due to him is £100 minus the amount of discount; and if the bill or note be drawn payable at a very distant day, the discount may greatly diminish the sum then payable, and may possibly nearly exhaust it.

petition, interest cannot be taken into the account, unless it is expressly made payable on the face of the bill or note. (9) Where it is so payable it may. (9)

The holder (10) may petition for a commission of bankruptcy, in respect of the money payable upon a bill or note, or may prove the amount under a commission when issued, notwithstanding the bill or note may not have been transferred to him until after the act of bankruptcy committed, provided the bankrupt's liability had commenced before the act of bankauptcy.

For the case of a bill or note being one in which the law admits of the assignment of a chose in action, the assignee becomes a creditor as from the time of the original creation of the debt, and not from that of the assignment.

(9) Cameron v. Smith, 2 Barnew. and Ald. 305. A commission was founded on an acceptance for £96, 17s. 8d. The bill was so long over due that near £5 was due for interest, but no interest was expressly made payable by the bill. The point was reserved whether this debt would support the commission, and, after argument, the court was clear it would not; for, though interest, if expressly reserved constituted part of the debt, if it was not expressly reserved, it constituted damages only, and damages cannot be considered part of the debt.

(10) Glaister v. Hewer, 7 Term Rep. 493. The plaintiff being indebted to Hewer in a sum below £100, and to Wilson on a note for £11, 12s., committed an act of bankruptcy; on which, Wilson, for a valuable consideration, endorsed his note to Hewer to enable him to petition for a commission: the two sums together amounting to above £100. In an action of trover for goods taken by the assignees, brought to try the validity of the commission, the only question was, whether Hewer's were a sufficient debt to support the commission, it not being so when the act of bankruptcy was committed, inasmuch as the whole did not then exist in him. Rooke J. thought it was, and on a rule nisi to enter a verdict for the plaintiff, Lord Kenyon said the statute only required that there should be an existing debt of £100 in the petitioning creditor; this petitioning creditor had such a debt at the time of petitioning, and that is sufficient to support the commission. Rule discharged.

Bingley v. Maddison, Co. B. L. 20. A note was given by the bankrupt in January, which became due in June. The act of bankruptcy was in October following, and the endorsement in November. The endorsee was the petitioning creditor, and sued out the commission. It was contended, that at the time of the bankruptcy the petitioning creditor had no debt, and that therefore the commission could not be supported. But the court said that this was a case in which the law allowed the assignment of a chose in action: that the assignment related to the original debt: that the endorsee always came in under the commission, because the endorsement related to the original debt: that it stood thus upon principle; and that the cases were clear, explicit, and positive, and of the highest nature: they therefore held the commission valid.