of the Bill or Note, or to some person authorised by him to receive payment.]

[If the proprietor die, payment should be made to his [1] personal representative; if he become bankrupt, to his assignees; if he be an infant, to his guardian; and payment to the [2] infant himself, may be good; as it certainly will if it be be neficial to him.]

[If the proprietor be a married woman, payment should be made to [3] her husband.]

[Payment to a bankrupt will be [4] good, if made bonâ fide, and without notice of the bankruptcy and accepting a Bill drawn by a trader, after a secret act of bankruptcy, [5] will be protected

[1] A bonâ fide payment of a debt to a person who has the probate of a will purporting to be the creditor's, will discharge the debtor, if the creditor be dead, though the will afterwards turn out to be a forgery, and the probate be annulled on that ground; because such payment is made on the authority of the probate: but it is otherwise (per Ashhurst and Buller, Js.) if the creditor be living, because in such case the pro、 bate is a mere nullity. Allen v. Dundas, 3 Term Rep. 125.

[2] See Pothier pl. 166. who observes that payment to an infant will be no discharge of the debtor, unless it appear that the payment were beneficial to the infant: If the money were applied to his advantage, the payment will be good: If not, as where the infant squanders it, the party paying, will not be discharged. So money lent to an infant for necessaries, if duly applied, may in equity be recovered from him. Marlow v. Pitfield, 1 P. Williams, 558. Though it is otherwise at law, 1 Salk. 279, 386. But if an executor pay a legacy to an infant, which the infant's father obtains and dissipates, the executor will be answer able to the infant. Philips v. Paget, 2 Atk. 80. See also Pothier on Obligations, part III. ch. 1. art. 2. s. 1. pl. 504. and s. 2.

[3] See Connor v. Martin ante p. 57, n. (a) and Barlow v. Bishop, ante p. 57, n. [3].

[4] By 1 Jac. 1, c. 15, s. 14, it is provided, "That no debtor of the bankrupt, be hereby endangered for the payment of his or her debt, truly and bonâ fide, to any such bankrupt, before such time as he shall understand or know that he is become a bankrupt."

[5] Wilkins v. Casey, 7 Term Rep. 711. A factor was indebted to

his

tected as such payment, though the Bill do not become due until after the notoriety of the act of bankruptcy. Provided the Bill be paid when due.]

[So payment by a bankrupt to a bonâ fide creditor in respect of a [1] Bill really and bonâ fide drawn, negotiated, or accepted by the bankrupt in the [2] usual and ordinary course of

his principal in £228. 18s. the principal committed an act of bankruptcy, and drew on his factor for £222. 185.; the factor did not know of the act of bankruptcy and accepted the Bills: before they became due, a commission issued, notwithstanding which the factor paid them; the assignees sued the factor for the £222. 18s.; and on a case reserved insisted that though the statute (1 Jac. 1, c. 15.) would protect a payment before notice of the bankruptcy, it would not a mere acceptance. Sed per Lord Kenyon, the statute ought to receive a liberal construction giving goods in exchange would have been a payment, though not in money, and so is giving an acceptance, if the Bill be paid when due: The other judges concurred, and the Defendant had judgment. [1] See 19 Geo. II. c. 32, s. 1, post p. 145. n. [1]. The statute only mentions Bills; whether it may be construed to extend to Notes, has not been decided. See Harwood v. Lomas, infra. [2] Harwood and another v. Lomas, 11 East's Rep. 127. Odell being indebted to the Defendant in £400. gave him, 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 payment by the bankrupt were protected by the 19 Geo. II. 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.

trade

trade and dealing, will be [1] valid; provided the party paid be ignorant of the bankruptcy or insolvency of the bankrupt.]

[And 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 [2] 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.]

[Payment of a Bill or Note should not be made [3] before it has become due; and in one case,

where

[1] By 19 Geo. II. 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.”

[2] By 46 Geo. III. 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."

[3] 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

where 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 [1.]

[After a Foreign Bill has been protested for nonpayment, any person may pay it (under protest) for the [2] 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 the payment, but from [3] all other parties who are liable to that person.]

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."

[1] See Da Silva v. Fuller, Chitty 2d. ed. 112. n.

[2] Beawes, 2d. ed. pl. 50, and vide ante p. 73.

[3] Beawes, 2d. ed. pl. 57, vide ante p. 73, 74, and Mertens v. Winnington, post. p. 148. n. (a) Hall v. Pitfield, post. p. 148. n. (b) and ex parte Lambert post. p. 148. n. [1].

CAP.

CAP. V.

Non-acceptance or Non-payment. Remedy inde. 1 By Action.

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, either at the same time or successively.

An indorser, an acceptor for the honour of an indorser or drawer, or the (a) drawer, is, after payment by him, holder; but he holds in his original capacity, not (b) as upon a transfer from the person he has paid.

So

(a) 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.

(6) Bishop v. Hayward, 4 Term Rep. 470. The Plaintiff declared

L2

upon