ment; and 1st, by

by such party, it should seem that the defendant might Sect. 2. Of paysafely pay the money into court, in order to prevent and to whom it further costs'.

So a payment made to a bankrupt, or his order, without notice of his being so, will, in all cases, discharge the person making it: and it has been holden, that if a debtor, not having notice of the bankruptcy of his creditor, give him his acceptance in discharge of the debt, he may afterwards pay such acceptance to the holder of the bill, although between the time when he accepted and the time when the bill became due, he heard of the bankruptcy, the giving, indorsing, or accepting a bill of exchange, being considered as an immediate payment within the meaning of the statute of James, which protects bona fide payments made to a bankrupt, provided the bill be honoured when due 3.

So also a payment made by a bankrupt to a person not having notice of the bankruptcy or insolvency, and being a bonâ fide creditor for goods sold, or by the bankrupt's having drawn, negotiated, or accepted a bill of exchange in the usual or ordinary course of trade and dealing, is protected by the statute 19 G. 2. c. 324. We have already considered some of the

There may be peril in paying a man who is known to have stopped payment, but that affords no defence to an action for a debt justly due to him. Verdict for the plaintiffs.

1 Foster v. Allanson, 2 T. R. 479.-14 East. 588.-2 Ves. jun 104.

5, 6.

21 Jac. 1. c. 15. s. 14.; and see 46 Geo. 3. c. 135. s. 1. and post. Bayl. 143, 4.-Cole v. Robins, 3 Campb. 186.

Wilkins v. Casey, 7 T. R. 711-Ante, 154.-Bayl. 143.; and see Foxcraft v. Devonshire, 1 Bla. Rep. 193.-3 Campb. 185.

*By this statute it is enacted, that 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 assignce or assignees of such bankrupt's estate, any money which before the suing forth of such commission was really and bona 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

may be made.

decisions upon this act'. It has been doubted whe ther promissory notes, or checks on bankers, are within this act3. It has been held, that payment of a bill to a creditor by a bankrupt under an arrest, after a secret act of bankruptcy, is a payment in the course of trade; but if the payment be intended as a fraudu lent preference it will not be valid. If the holder of a bill give time to the acceptor, upon condition that he should allow interest, and he afterwards pay the bill, having previously committed a secret act of bankruptcy, this is not a payment in the usual course of trade within the meaning of the statute. So where A. having recovered a verdict against B. who afterwards committed an act of bankruptcy, and A. not having had notice thereof, took a bill drawn by B. on C. for the amount of the sum recovered, payable at a distant period, which bill was afterwards paid: it was determined that this payment was not protected by the statute, and consequently that A. was liable to refund the money received by him to the assignees of B'. And where bankers having accepted bills for the accommodation of a trader, he, after committing an act of bankruptcy, but before a commission is sued out, lodges money with them to take up the bills, which do not become due till after a commission is sued out,

the same shall know, understand or have notice, that he is become a bankrupt, or that he is in insolvent circumstances."

See also 46 Geo. 3. c. 135, post, 363. In Harwood v. Lomas, 11 East. 131. it was doubted whether payments of promissory notes

are within this act.

I Ante, 153 to 156.

2

Harwood v. Lomas, 11 East. 131.

3 Holroyd v. Whitehead, 5 Taunt. 444.-1 Marsh. 128.

Cox v. Morgan, 2 Bos. & Pul. 398.-Ex parte Farr, 9 Ves. 515.— Sed vide Southey v. Butler, 3 Bos. & Pul. 237.; but see Blogg V. Phillips, 2 Campb. 129.-Cullen, 238, 9.—Bayly v. Schofield, 1 M. & S. 338.

Singleton. Butler, 2 Bos. & Pul. 283.-Southey v. Butler, 3 Bos. & Pul. 237.

Vernon v. Hall, 2 T. R. 648.; and see 1 Montg. 311, 312, 313, 2 Ves. 550.-Cullen, 234.

'Pinkerton v. Marshall, 2 Hen. Bla. 334.

ment; and ist, b

and are then regularly paid by the acceptors', it was Sect. 2. Of payheld, that they were bound to refund this money to and to whom it the assignees, and that they neither had a right of set- may be made. off under 5 Geo. 2. c. 30. nor could protect themselves under 19 Geo. 2. c. 32. as having received the money in payment of bills of exchange in the ordinary course of trade. And where bankers, after a secret act of bankruptcy of the acceptor paid a bill for him, accepted payable at their house, and he afterwards remitted the money to them, it was decided that they were liable to refund; because the bankrupt was not liable to them on the bill, and his repayment to them was only in satisfaction of a loan, which is not a payment protected by the statute. So if bankers pay a check drawn upon them by a trader after a secret act of bankruptcy, they cannot retain money received to cover such check 3.

So it has been decided, that the assignees of a bankrupt are entitled to recover back money paid by the bankrupt to the defendant after a secret act of bankruptcy, (though before the date of the commission,) which the defendant had before recovered by judg ment against the bankrupt in an action on a promissory note, reserving interest half yearly given for the balance of an account amongst other things consisting of money lent, such note not being given in the usual and ordinary course of dealing, so as to be protected by 19 Geo. 2. c. 32. even supposing a promissory note to be within that statute, which only mentions bills of exchange 4.

However, by the 46 Geo. 3. c. 135. s. 1. 2. it was enacted, "that in all cases of commissions of bankrupt thereafter to be issued, all conveyances by, all

Tamplin and others, assignees of Visich, a bankrupt, v. Diggins and others, 2 Campb. 312.

2 Holroyd v. Whitehead, 3 Campb. 530, 533.-2 Rose, 145, 5 Taunt. 444.-1 Marsh. 128. S. C.

a Id. ibid.

• Harwood v. Lomas, 11 East. 127.

ment; and 1st, by and to whom it may be made.

Sect. 2. Of pay payments by and to, and all contracts and other dealings and transactions by and with any bankrupt boná 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', and that all and every person and persons with whom the bankrupt shall have really and bonâ fide contracted any debt or debts before the date and suing forth of such commission, which if contracted before any act of bankruptcy committed, might have been proved under such commission, shall notwithstanding any prior act of bankruptcy may have been committed by the bankrupt, be admitted to prove such debt or debts, and to stand and be a creditor under such commission to all intents and purposes whatever, in like manner as if no such prior act of bankruptcy had been committed by such bankrupt, provided such creditor or creditors had not, at the time of such debt or debts being contracted, any notice of any prior act of bankruptcy committed." Since this act, the statute 19 Geo. 2. c. 32. can only come in question where the payment is made within two months before the suing out of the commission 2.

2dly. Within what time payment must be made.

We have already seen that a bill or check should not be prematurely paid; Marius gives particular directions on this point. The general rule with respect to the time allowed for the payment of money, when

2

As to the construction of these words, sec ante, 153 to 156,

2 Campb. 315. in note.

3 Ante, 191, 2.-Bayl. 145, 6.

4 Marius, 4th ed. 31.

what time pay.

made.

a day certain is appointed, is, that the party bound has 2dly. Within till the last moment of the day to pay it'; but it is ment must be otherwise with respect to foreign bills, for as the protest for non-payment of them should be made on the last day of grace', so as to be sent if possible by the post on that day, it follows that the holder may insist on payment on demand, or at least before the hours of business are expired3.

With respect to inland bills it has been much discussed whether the acceptor has not the whole day for payment. On the one hand a bill of exchange has been assimilated to other contracts, in which the party has till the last instant of the day to pay the same: but on the other hand it has been urged that the contract of an acceptor of a bill, or maker of a note, is to pay on demand on the appointed day, and that if payment be not made on such demand, the contract is broken and the holder may treat the bill or note as dishonoured +. The latter doctrine appears now to be established; and, therefore, where the acceptor having said at eleven o'clock in the day that he would not pay the bill, it was decided that the holder might immediately resort to the drawer, so that notice of the dishonour may be given on the same day 5. It is not

'Hudson. Barton, 1 Rol. Rep. 189.-1 Saund. 288. n. 17.Leftley v. Mills, 4 T. R. 173.

2 Tassell v. Lee, 1 Ld. Raym. 743. et post. sed quære, see Vin. Ab. tit. Time, A. 2. pl. 3.-Anonymous, Lutw. 1593.

3 Colkett v. Freeman, 2 T. R. 61.-Parker v. Gordon, 7 East. Rep. 385.-3 Smith's Rep. 358. S. C.

Leftley v. Mills, 4 T. R. 170. arguments of Kenyon, C. J. and Buller, J. disputed by Lord Alvanley, C. J. in Haynes v. Birks, 3 Bos. & Pul. 602.

Ex parte Moline, 1 Rose, 303.-Burbridge v. Manners, 3 Campb. 193.-Hume v. Peploe, 8 East. 169.

Ex parte Mcline, 1 Rose, 303. In this case the point was, the acceptor having said at eleven o'clock in the day that he would not pay the bill, whether the holder could immediately resort to the drawer? The Lord Chancellor was of opinion that he could. Sir Samuel Romilly mentioned Burbridge v. Manners, 3 Campb. 194, S. P.

Burbridge v. Manners, 3 Campb. 193. This was an action on a promissory note for £101. 15s. 5d. dated 11th October, 1810, drawn by J. Finney, payable three months after date, at Fraser and Co.'s, to the defendant, indorsed by him to one Tinson, and by Tinson to the