value of such annuity, which value the commissioners shall have power, and are thereby required to ascertain, and the certificate of every bankrupt under whose cominission such proof shall be or might have been made, shall be a discharge of such bankrupt against all demands whatever in respect of such annuity, and the arrears and future payments thereof, in the same manner as such certificate would discharge the bankrupt with respect to any other debt, proved, or which might have been proved, under the commission." Vaughan, Serjt. in shewing cause against the rule, did not contend for any right to hold the defendant in execution for any arrears due before 1st May, 1811, but stated the question to be, whether the plaintiff's remedy for the arrears which had since accrued, was gone? Before the 49 G. S. an annuity debtor could not use his certificate as a bar to an annuity secured by bond, unless there were arrears of the annuity, in which case he might value the bond: nor could he, in the case of an annuity secured by covenant, bar any more than the arrears which had become due, and not those afterwards to accrue: but by the above act of the 49 G. 3. the arrears of an annuity are put upon the same footing as any other debt: and the arrears are so far extinguished, as that the defendant might be discharged out of custody; but by the words of the 16th section of the insolvent act of the 51 G. 3. that all annuity creditors "of any debtor who shall be discharged by that act shall be entitled to be admitted creditors without prejudice to their respective securities,” it seems that the securities for the annuity were intended to have some subsequent operation, or otherwise those words would have been unnecessary; they are farther explained by the 29th section, which limits the operation of the act to such debts as were growing due before the 1st of May, 1811, since which time, the arrears for which the defendant is now in custody, have become due. The question therefore is, whether the act does not leave to the plaintiff the power of holding the defendant in custody for a debt accrued since the 1st of May, 1811. MANSFIELD, C. J. The words " without prejudice to their respective securities" are very obscure, but they may mean, that if a man has any specific security on land, it should not be taken from him, or if he has sureties, that they should not be discharged; that only the person and property of the debtor are to be dis charged 1812. COWLEY บ. BUSSELL. [ 462 ] [463] 1812. COWLEY V. BUSSELL. [ 464 ] charged in this case, in like manner as the person and property of the debtor only are discharged under a commission of bankruptcy. I can put no other sense on the clause than that the defendant is to be discharged. CHAMBRE, J. I think, upon the whole, the intention of the statute is to extinguish the debt as to the principal creditor, although that intention is most imperfectly expressed, and it is not at all happily elucidated by the reference to the numerous bankrupt laws. There is no provision made by this act for ascertaining the value of the annuities, as there is in the bankruptcy statutes; and I cannot venture to say that the commissioners are to take on them, at their own risk, to set a value on the annuities; nor could they adopt the calculations to be made ex parte by any eminent calculator, without rendering themselves subject to incessant litigation. GIBBS, J. Before the act of the 49 G. 3. if any annuity was secured by bond, and the bond was forfeited, it might be proved under the commission, and the annuity became extinct: but if it were secured by covenant, or bond and covenant, though the bond, if forfeited, were proved under the commission, still the creditor might proceed on the covenant after the bankrupt had obtained his certificate: this remedy upon the covenant was taken away by the stat. 49 G. 3. and it is that to which the presunt act alludes. As this was a new case, and no express notice of the defendant's former discharge under the insolvent act had been served on the plaintiff, the Court made the Rule absolute without costs. June 3. In an action against the acceptor of a bill, TH JONES v. BROOKE. HIS was an action upon a bill of exchange drawn on the 1st of July, 1807, by J. R. Leaming, upon the defendant accepted for the at three months after date, for 25l. 12s. payable to the drawer's own order, accepted by the defendant, and by the drawer inthe drawer is not dorsed to the plaintiff. Upon the trial of this cause at the sit accommodation of the drawer, a competent witness to prove that the holder came to the bill on usurious consideration; because he does not stand indifferently liable to the holder and the acceptor: for the holder can recover against him only the contents of the bill; the acceptor is entitled to recover against him both the amount of the bill, and also all damages he may have sustained, including the costs of the action againt himself. tings in Middlesex, after Easter term, 1808, before Mansfield, C. J. the defence was, that the defendant had accepted the bill for the accommodation of the drawer, who had discounted it with a person named Reeves, taking the amount in goods, which were much over-charged in price; that Reeves had held the bill until long after it became due, since which time he had demanded payment of it, and had subsequently indorsed it over to the plaintiff. To prove the usurious interest, the defendant called the wife of the drawer. Shepherd, Serjt. for the plaintiff, objected that the witness was called to get rid of the drawer's own responsibility to the acceptor, who having received from him no consideration for his acceptance, would, if he paid the bill, have an action against Leaming for the amount, as money paid to his use; and, therefore, unless the defendant should previously release him, the witness was incompetent. Mansfield, C. J. reluctantly received the evidence. Shepherd in this term obtained, upon the ground that the witness ought not to have been admitted, a rule nisi to set aside the verdict, and enter a verdict for the plaintiff. Best and Pell, Serjts. in the same term, shewed cause against this rule. This case is decided by the authority of Jordaine v. Lashbrooke, 7 T. R. 601, since which the rule no longer prevails that a person cannot be called to invalidate an instrument to which he has set his name. Secondly, the witness was admissible, because the drawer stands indifferent to the event of the suit for if the defendant succeeds, the drawer is liable to an action by the holder, since the verdict obtained upon his own evidence in this action cannot protect him in that; if the plaintiff succeeds, then the drawer is liable to an action by the acceptor, who without consideration accepted the bill for the drawer's benefit. In the action by the holder against the witness, it would only be necessary to prove that he drew the bill, that it was presented for payment, and was not paid. It would be unnecessary to prove notice of the dishonour, because it is admitted that it was an accommodation-bill; and the present defendant would be a competent witness to prove that he held no assets, Staples v. Okines, 1 Esp. 332. The motives that operated on the mind of the acceptor not to pay the bill, could not be admissible in evidence in the case. The witness could not then be heard to disprove out of his own mouth the legality of the consideration; but his admission now given that this was an accommodation-bill, might then be used against him to disVOL. IV. I i pense 1812. JONES V. BROOKE. [ 465 ] 1812. JONES V. BROOKE. [ 466 ] [ 467 ] pense with the necessity of notice of the dishonour of the bill by the acceptor. They also referred to Ilderton v. Atkinson, 7 T. R. 480, Evans v. Williams, ibid. 481. n. Birt v. Kershaw, 2 East, 458. Bickerdike v. Bollman, 1 T. R. 405, and Rich v. Toppins, Peake N. P. 224. S. C. 1 Esp. 177. The circumstance of the release in the last case made no difference. Buckler v. Tankard, 5 T. R. 578. was decided, they said, upon its own particular circumstances, and was distinguishable from this. It was held in Birt v. Kershaw, that the additional obligation on the witness to pay the cost of the action against the acceptor, did not destroy the equilibrium of interest in the event. Shepherd and Vaughan, Serjts. in support of the rule, did not attempt to combat the doctrine laid down in Jordaine v. Lashbrooke; but contended that the witness here did not stand in a state of indifference. He had, they said, an immediate and direct interest to defeat the action against the acceptor, to whom he would be liable, not only for the amount of the bill, but for the costs of the present action; for which the acceptor might recover in a special count; whereas it was hazardous and uncertain whether the holder, if he failed against the acceptor, might ever succeed in the action against the drawer. This objection has not been overruled, but it has never before been taken, either in Ilderton v. Atkinson, or any of the other cases of that class. Shepherd mentioned a MS. case of Carter v. Heppel, in which he was engaged with Mr. Bearcroft, and which was one of the first causes wherein Lord Kenyon, C. J. received the drawer of a bill as a witness in an action on the bill; two objections were made, the first, as in Walton v. Shelly, 1 T. R. 296, that the witness was not competent to impeach the instrument to which he had set his name: the second, that he was an interested witness. A new trial was granted, and on the second trial a release was given, and he had ever thought, that that was the right practice. The drawer does not stand indifferent in this case, for another reason, that he could never set up the usury committed by the first indorsee as a defence against the acceptor; his only possible answer would be, payment: but if the action is brought against the drawer by the holder, the drawer may avail himself of the usury. This differs the case from that of principal and surety. [Mansfield, C. J. observed that in Birt and Kershaw it was held that the acceptor might recover his costs as well as the contents of the bill, and that was the only case in which that distinction had been noticed.] The The case of Buckland v. Tankard was in point with the present case, where it was held by Lord Kenyon, that the witness was properly rejected, because his situation would be bettered by the event of the verdict, inasmuch as, if the plaintiff should succeed, the witness would be put to much greater difficulties to get back his money, than if the plaintiff should be foiled through his testimony; and that reasoning is very applicable to the present case. Dingwall v. Dunster, 1 Doug. 247. The acceptor may be sued at any time, unless he has been expressly discharged. Whittenbury v. Jackson cited in Walton v. Shelly, 1 T. R. 298, is also in point, where a witness who had indorsed an accommodation-note of the defendant's testator to the plaintiffs, being called to prove that he had satisfied the note to the plaintiffs, was rejected by Buller, J. because he was the indorser. The witness is strongly interested in giving the testimony for which he is called. Best replied, that Dingwall v. Dunster was mainly decided on the same ground as Walton v. Shelly, which had since been overruled by Jordaine v. Lashbrooke. Cur. adv. vult. MANSFIELD, C. J. in this term delivered the judgment of the Court. This action is brought against Brooke as the acceptor of a bill of exchange; at the trial, the defence made, was, that this bill was given by the drawer to the indorser on usurious consideration, the latter having taken usurious interest on discounting the bill; and that the bill was accepted for the accommodation of the drawer. An objection was taken to the witness, who was the wife of the drawer; and the objection was overruled, on the ground that it is now the practice to receive persons whose names are on bills of exchange, as witnesses to impeach such bills. And so it is; but here the question is, inasmuch as this was an action against the acceptor, whether she could be received as against the acceptor; the drawer, as it was contended, being interested to defeat the action: the doubt was this; the drawer has an interest to protect the acceptor; for if the holder succeeds against the acceptor, the acceptor will have a right against the drawer, to make the drawer pay, not only the money, but also all damages he the acceptor may sustain by being sued for it; for the drawer of an accommodation-bill is bound to indemnify the acceptor against the consequences of an acceptance made for the accommodation of the drawer: we are therefore Ii2 1812. JONES ข. BROOKE [468] |