A Practical Treatise on the Law of Principal and Surety; Particularly with Relation to Mercantile Guarantees, Bills of Exchange, and Bail Bonds (Paperback)

This historic book may have numerous typos, missing text, images, or index. Purchasers can download a free scanned copy of the original book (without typos) from the publisher. 1832. Not illustrated. Excerpt: ... 130. From the above cases, all of which were decided with reference to the first section of the statute 7 Geo. 1, c. 31, corresponding with the 51st section of the present bankrupt act, it appears that the creditor is not entitled, in virtue of the latter provision, to prove his debt under a commission against the surety, if at the time of the issuing of the commission the liability of the surety was still contingent; nor, indeed, if at the time of the issuing of the commission it had ceased to be contingent, the proof in that case being provided for by a different section (a). 131. But, although a person taking the security of a common guarantie does not give credit to the guarantor, in such a sense as brings the latter, in the event of his bankruptcy, within the operation of this section of the statute, yet a person taking a bill from the drawer is obviously a person giving credit upon a bill; and therefore proof may be made at any time against the drawer or indorser of a bill, although they are only sureties for the acceptor; and consequently, a drawer or indorser is discharged by his certificate, although the bill was not due when the commission issued, and there had been no previous default by the acceptor (or principal). Thus, in Starey v. Barns (6), the defendant was sued as the drawer of a bill, and pleaded his bankruptcy and certificate; the bill was at two months, and dated the 15th of September, 1801; it had been accepted. The commission issued against the defendant on the 6th of November, 1801; and therefore the bill not being due at that time, and the defendant being liable upon it only in case of the default of the acceptor, it was urged, on behalf of the plaintiff, that the debt was not proveable, and the certificate not a bar to the acti...