1816. A. and Co. guaranteed to B. and Co.payment for any goods which they might supply to C. tain period, at a credit of 2 and 2 months. debted to B. and Co. for goods, and gives them three bills of exchange, in dorsed by A. and Co. who shortly afterwards become GASKELL and Another v. LINDSAY and Another. THIS HIS was an action on a guarantee, given by the defendants to the plaintiffs, by which they engaged to indemnify them for whatever goods they should supply to one David Irvine in his line of within a cer- business, from the 27th of July, 1809, to 27th July, 1810. One of the defendants suffered judgment by C. becomes in- default: Lindsay pleaded his bankruptcy, upon which alone the question arose. It appeared that the dealings between the plaintiffs and D. Irvine were upon the usual terms of credit in the trade, payment, in- viz. two and two months; that is to say, at the end of two months from the time of the goods delivered, come the plaintiffs had a right to call upon D. Irvine for a bill at two months. In the course of their dealings, the plaintiffs received three bills of exchange, drawn and accepted by other parties, but indorsed by the defendants to D. Irvine, and by him indorsed to the plaintiffs in payment of goods. One indebted to B. of these bills became due, and was dishonoured, before the bankruptcy of the defendants; the second bill became due and was dishonoured; but for which they the plaintiffs did not receive notice of the dishonour till after the bankruptcy of the defendants; C. to give them and the third bill did not become due till six weeks bankrupts. One of these bills was dishonoured before, and the other two bills after, their bankruptcy. C. was likewise and Co. before the bankruptcy of A. and Co. for some goods, had a right only to call on a bill at two months, at the after the commission. In addition to the three time of A. and Co.'s commis- bills which were running, it appeared that D. Irvine was still indebted to the plaintiffs for a parcel tion, brought of goods, to the amount of 931. 128. supplied on the sion. Held, that in an ac upon the gua rantee, against A. and Co. their certificate was a good defence, by virtue of the stat, of the 49th G. 3. c. 121. s. 9. 4th of December, 1809, and for which they had a right to call upon him for a bill at two months on the 4th of February, 1810. The defendants' commission was dated on the 6th of February. No notice had been given to them of D. Irvine's default in not giving the bill on the 4th. No bill was in fact demanded or given for the 937. 128. and, shortly afterwards, D. Irvine absconded. The plaintiffs sought to recover the amount of the goods sold, for which the three bills of exchange were indorsed to them by D. Irvine, and likewise the balance of 931. 12s. for which no bill had been received. On the part of the defendants it was contended, that the three bills were clearly barred by the certificate, and Le Blanc, Justice, was of that opinion, inasmuch as they appeared to have been given by the defendants in satisfaction of the gua, rantee. Holt, and Parke, for the plaintiffs, proposed to shew that the three bills had been given by the defendants to D. Irvine for a valuable consideration, without reference to the guarantee, and that they had been indorsed to the plaintiffs, in the common course of trade, in payment for goods supplied to D. Irvine. They called a witness for this purpose, who produced the books of the bankrupts, and was about to read an entry made by one of the defendants (who suffered judgment by default) in which the account between the bankrupts and D. Irvine was stated. It was objected that the entry, having been made by one partner after the bankruptcy, could 1816. GASKELL v. LINDSAY. 1816. GASKELL v. LINDSAY. not bind the other partner. Le Blanc, Justice, was of this opinion. They then contended, that, at any rate, the plaintiffs had a right to recover the 931. 12s. That, for this sum, they were only entitled to receive a bill on the 4th of February; and that the money did not become due, as a cash payment, till near two months after the defendants' bankruptcy: they said, that this was not a debt which could be barred by the certificate, because it was not a debt which could be proved under the commission. It was not a liquidated claim, which plaintiffs could have put into an affidavit; which they could have gone before the Commissioners, and claimed to prove in the ordinary manner. It was a mere right of action against D. Irvine, to recover damages for omitting to give a bill of exchange; this was the extent of the plaintiffs' claim against the principal, Irvine; and of course, therefore, in his default, this was the extent of the collateral engagement of the defendants. The damages in such a case, being for the non-performance of a contract, could not be ascertained without the intervention of a jury, who might give more or less according to the circum stances. Scarlett and Richardson, contra, relied on the 49 Geo. III. c. 121. s. 9. LE BLANC, Justice.-I think the three bills appear to have been given in satisfaction of the guarantee; they are barred, therefore, by the certificate. I think likewise that the 931. 12s. is barred by the certificate, under the statute, which the defendant's counsel rely upon. 1816. GASKELL v. Formerly no debts could be proved under a commission of bankruptcy but such as were debita in præsenti at the time of the bankruptcy. The 7 G. 1. c. 31. extended the right of proof to certain written securities, not due at the time of the commission, but which, being liquidated and ascertained in their quantity at that time, would become due in future. Such debts were admitted to be proved, allowing a rebate of interest. The 5 G. 2. c. 30. allows such demands to constitute a good petitioning creditor's debt.The 49 G. 3. c. 121. s. 9. extends the same right of proof to debts, of which the term of credit had not expired upon the issuing of the commission, and which, therefore, at that time, were not debita in præsenti. In all these statutes the expression is debt; and this word appears to be used in contradistinction to damages, and to point at a demand where the sum, or quantum, is settled and certain, and not, like damages, the subject of enquiry or computation. The expression in the several statutes, ' rebate of interest,' seems to imply this. Vide ex parte Adney, Cowp. 460. Utterson v. Vernon, 4 T. R. 570. Bannister v. Scott, 6 T. R. 489. Hammond v. Toulmin, 7 T. R. 612. The stat. 7 G. 1. c. 31. s. 1. is confined to written securities. 2 Peer. Williams, 306. Swaine v. De Mattos, Strange, 1211. See likewise Chilton v. Whiffin. Goddard v. Vander Heyden, 3 Wils. 262. Pattison v. Bankes, Cowper, 540.; and Parslow v. Dearlove, 4 East, 438. So likewise it has been 1816. GASKELL v. LINDSAY. determined, where goods were sold and delivered upon an agreement to be paid for by a present bill payable at a future day (but which bill never was given or demanded, and seven days after the delivery of the goods the debtor committed an act of bankruptcy,) that this did not create a present debt sufficient to enable such creditor to petition for a commission of bankruptcy against the debtor ; the 7 G. 1. c. 31. s. 1. and 5 G. 2. c. 30. s. 22. being confined to debts due on bills, bonds, promissory notes, and other personal written securities, of the like sort, payable at a future day. Hoskins v. Duperoy, 9 East, 498. See likewise, as illustrative of the general principle in the latter case, Mussen v. Price, 4 East, 147. and Dutton v. Solomonson, 3 Bos. and Pull, 582. So, in Hancock v. Entwistle, 3 T. R. 435, it was determined, that if a demand be payable at all events, though at a future day, it may be proved under a commission but if it rest in contingency whether it will become payable or not, it cannot be proved, unless it be secured by a penalty which is forfeited at law. With respect to debts due at a future day, the 49 G. 3. c. 121. s. 9. is an enlargement of the provisions in the former statute, 7 G. 1. c. 31; and as that statute extended the right of proof to written securities only, payable on a future day, the 49 G. 3. embraces debts of all kinds, written or unwritten, upon good and valuable consideration, for any money whatsoever, which is, or shall not be payable at the time of the bankruptcy, allowing a rebate of interest on the proof. of such debt. |