1818. In Re BURGESS. tained. But here the question is, whether the interest on this bill is due, quasi a debt;-it could not be so considered until it had been ascertained to be so in the nature of damages. In Doran v. O'Reilly (a), interest formed part of the contract. If this interest were allowed to the petitioning creditor, it would give him an undue advantage over the general creditors. The true distinction is between debts which are legal, and those which may become so, and it is quite clear, that commissioners of bankrupts cannot award damages. As to the statute 9 & 10 W. 3. it merely directs that a party shall be entitled to recover interest when it becomes due, and cannot apply to bills where interest was not due before; and even then, it can only apply to interest which may be recoverable by law, and not by way of damages only. There has no case been decided as to this point since that statute passed, nor was it the intention of the Legislature to introduce any new law thereby, but left the question as to what interest should be recoverable, and what not, precisely in the same situation as it was before. Such interest, therefore, must be left to the Jury, because it is in the nature of damages, and not a legal debt, and as such damages are unliquidated, they cannot be proved under a commission, until they are reduced to certainty by a verdict. Besides, in Ex parte Cocks (b), interest out of the surplus of a bankrupt banker's estate was refused, on his promissory notes payable on demand, as not being debts carrying interest, either by contract or on the face of them; and the Lord Chancellor there said, "he had always understood the rule in bankruptcy to be, that debts carrying interest by contract, and no other, should be entitled to interest." (a) 5 Dow. 133.317. (b) 1 Rose's Cas. Bankruptcy, And in Ex parte Williams (a), it was decided, that where there is a surplus of the bankrupt's estate, creditors are not entitled to interest upon debts, unless it has been provided for by contract, either express or implied, and that interest is computed and given on bills of exchange, in an action at law in the nature of damages, not strictly as interest, and for a breach of the contract, not in pursuance of it. Mr. Serjt. Hullock, in reply.-Although Commissioners of Bankrupt have established the rule, that creditors on bills and notes have no right to prove interest on them, unless it be expressed in the body of such instruments, still such practice is not founded on legal principles, although they may have been established by equitable decisions. Interest is in the nature of a debt, and may be claimed in the same action in which the subject-matter may be recovered. If an action ex contractu be brought, it furnishes the criterion of the plaintiff's demand, and entitles him to any damages he may have sustained for the breach of contract. It is quite clear that interest in this case might be recoverable in indebitatus assumpsit, as it was payable according to the nature of the contract on the face of the bill, and therefore constituted a part of the debt. The case of Ex parte Champion (b) shews that it was not actually necessary to prove that interest was due by a general course of dealing, but distinguished actual contracts from those which were not so, and did not exclude the proof of interest, although it was not expressed in the body of the security. The judgment of the Court in Blaney v. Hendricks (c), is precisely in point. The case of Vernon v. (a) 1 Rose's Bankruptcy Cas. 399.— -(b) 3 Brown's Chan. Cas. 436.- -(c) 2 Sir W. Bl. 761. 1818. In Re H 1818. In Re BURGESS. Cholmondeley (a), there cited, and in which it was held that a Jury might give interest on a writ of inquiry of damages, has been since over-ruled. This case is distinguishable from Lee v. Lingard (b), as interest became due on the bill by the contract of the parties, and the usage of merchants. If therefore a bill be dishonoured, the party is immediately liable to pay interest by law, which may be recovered as constituting part of the original debt, and if such bill be not immediately paid when it become due, there is clearly a forbearance. The stat. 9 & 10 W. S. is peremptory and compulsory, and there has been no decision to controul its effect since it was passed. If a protest and notice be not duly given, a Jury can have no discretion whatever, as no interest could then be recovered by law. But if such protest and notice be duly given, then legal interest accrues. That statute therefore must govern the present case; and as the bill had been duly protested, the interest due thereon must, be considered as forming part of the petitioning creditor's debt. The following certificate was afterwards sent by the Lord Chancellor. "This case has been argued before us; we have consi"dered it, and are of opinion that, under the circum stances above stated, the said Daniel Cropper had not, "at the time of suing out the said commission against "the said Sambrook, Burgess, a good and sufficient debt, "as petitioning creditor, to support the said commis AN INDEX TO THE PRINCIPAL MATTERS. ABATEMENT. See PRACTICE, 2. 4. ABSTRACT OF TITLE. See COVENANT, 2. ACCEPTANCE OF BILLS OF See BANKRUPT, 2. 3. 8. 11. 13. ACCEPTANCE OF LEASE. See BANKRUPT, 7. ACCOMMODATION BILL. ACCORD AND SATISFAC- TION. See COVENANT, 4. VOL. II. AC ETIAM. See BAIL, 1. OUTLAWRY, 1. 2. ACKNOWLEDGMENT. See FINE, 2. ACTION. See ADMINISTRATOR, 2. ACTION ON THE CASE. ACT OF PARLIAMENT. STATUTES. ADJUSTMENT. See LIEN, 1. ADMINISTRATOR. See BARON AND FEME, 1. PRACTICE, 2. REPLEVIN, 1. 1. In an action for use and occupation, charging the defendant in his own character, who was an administrator of the original lessee, for rent due after the intestate's death:-Held, that although the defendant had taken possession, yet, having proved that the premises had been productive of no profit to him, and that eight months after the death of the intestate, he had offered by parol to surrender them to the plaintiffs such proof constituted a good defence to the action. Remnant v. Bremridge, H. 58 G. 3. Page 94 2. The property of an intestate was assigned to assignees previous to his death; the plaintiff administered, and applied to the defendant for payment for goods sold him by the intestate, in the name of the assignees, and afterwards brought an action in his character of administrator :Held, that such action was well brought. Brandt v. Heatig, E. 58 G. 3. - 184 1. An affidavit entitled in the name of the plaintiff, against B. and another, as defendants, is defective, as it should have described such defendants by their chris 1. A. in Holland, commissioned B. in London, to purchase and ship tobacco of the best quality, B. employed C. as his broker for that purpose, who accordingly made a purchase from D. On the arrival of the tobacco in Holland, it turned out to be of a very bad quality, when A. brought an action and recovered against B Held, that B..was entitled to recover from C. the whole of the damages he had sustained in the action brought against him by A. although he had received a bought note from C. in which the tobacco was not described as of the best quality. Mainwaring v. Brandon, H. 58 G. 3. 125 2. If one of two trustees orders a broker to purchase stock, standing in their joint names, and undertake to procure his cotrustee to join in the transfert Held, that the broker was not warranted in making the sale, unless such co-trustee authorised or concurred with the other in |