issued against the defendant, and, consequently, is not. barred by his certificate. The plea is, that the cause of action arose before the bankruptcy, Charlton v. King (a); but no action could at that time have been maintained upon the note. The defendant had been guilty of no, default; the debt was not payable, at all events, for it. depended upon the contingency of notice being given by the plaintiff: that such debts cannot be proved, has been long decided; Hancock v. Entwisle (b), Utterson v. Vernon (c). Nor is the note to be considered as conclusive evidence of debitum in præsenti. Neither is the case within the principle of the 7 G. 1. c. 31.; that was intended to apply to cases relating to trade, and to allow the proof of bills payable at some specified day. The provision as to the rebate of interest makes that quite apparent. S. M. Phillipps contrà. The question in this case turns upon the 7 G. 1. c. 31., and that statute made the debt proveable. It was debitum in præsenti. The note is expressed to be "for value received." It was not a debt upon contingency, within the meaning of the cases cited. In them, either the amount of the debt was not ascertained, or the time of payment was uncertain, and did not depend upon the will of the creditor. Here the amount to be paid was ascertained, and the creditor, by giving notice, might at any time fix the day of payment. ABBOTT C. J. We have decided, on more than one occasion, that the expression "value received," in a note, imports," received from the payee." The note (a) 4 T. R. 156. (6) 3 T. R. 435, (c) 4 T. R. 570. in 1826. CLAYTON against GOSLING. 1826. CLAYTON against GOSLING. in question may, therefore, be read thus: "We acknowledge to owe the payee 2007., and promise to pay him that sum, with interest, twelve months after notice." If so, there is not any contingency as to the debt, for that is admitted to be due. Nor is the time of payment contingent, in the strict sense of the expression; for that means a time which may or may not arrive: this note was made payable at a time which we must suppose would arrive. But no notice was given, and therefore no action could be maintainable at law at the time of the bankruptcy. The statute 7 G. 1. c. 31. was made to remedy such evils, and provides for the proof of debts payable in futuro, and provides also for a rebate of interest. Can, then, such rebate be made here? I think it may. The interest will cease, and then the effect will be the same as if the note had been payable at a certain period after date. The case, then, being free from the difficulties which might have occurred as to the rebate, had the note been payable without interest, I think it was proveable, and, consequently, that the plaintiff's demand was barred by the certificate. BAYLEY J. Where it is matter of contingency whether the debt will ever be payable, or where the amount of it is uncertain, it cannot be proved. But here the note is expressed to be for value received, which, according to Highmore v. Primrose (a), is an acknowledgment of a debt due. The twelve months after notice merely applies to the time of payment, and the 7 G. 1. c. 31. is founded upon the distinction between debts not due and not payable. If interest had not been payable from (a) 5 M. & S. 65. See also Priddey v. Henbrey, 1 B. § C. 674. the the date but from the notice, then, as notice had not been given at the time of the bankruptcy, the amount of the sum to be paid might have been doubtful; but as interest is payable from the date of the note, no such difficulty arises. For these reasons it appears to me that the case falls within the words and the spirit of the 7 G. 1. c. 31., and that the debt was proveable. HOLROYD and LITTLEDALE Js. concurred. Postea to the defendant. 1826. CLAYTON against GOSLING. PRINCE and another against Lewis. Wednesday, The king granted to 4., that he, his heirs and as DECLARATION stated, that the plaintiffs, before and at the time of the committing of the grievances thereinafter mentioned, were and still are lawfully possessed of a certain close called Covent Garden Market, situate, &c. and of a market holden there for buying described, and and selling of all and all manner of fruits, flowers, vegetables, roots, and herbs whatsoever, together with toll, stallage, and other commodities to such market belong signs, should have and hold a market in a place therein wpecified limits there, for the buying and selling of all kinds of vege within certain ing, whereby divers great gains during all the time tables, fruits, aforesaid, until the committing of the said grievances, accrued to and were received by, and still of right ought to accrue and be received by the plaintiffs, to wit, at, flowers, roots, and herbs. the market had The grantee of profit permitted for his own part of the space, within the limits described, to be used for other purposes than those specified in the grant. The remaining part of the space, within which the market was to be held by the terms of the grant, became insufficient for the public accommodation, and there was not, on ordinary occasions, space within the market for carts and waggons resorting thither with vegetables, &c.: Held, that the lord of the market could not maintain an action against an individual for selling vegetables in the neighbourhood of his market, and thereby depriving him of toll, even at a time when there was room in the market, without shewing that on the day when the sale took place he gave notice to the seller that there was room within the market. &c. yet 1826. PRINCE against LEWIS. &c., yet the defendant, well knowing the premises, but contriving and wrongfully and fraudulently intending to injure the plaintiffs, and to deprive them of the profits which they might and ought to have had and enjoyed from and by their said market, &c. erected a new market for the sale of fruits, flowers, &c. near that of the plaintiffs. The second count charged, that the defendant, intending, &c. in a certain public street and highway there near to the market of the plaintiffs, that is to say, in a part of the said public street and highway, there within seventy-two yards of the plaintiffs' market, wrongfully and unlawfully and without any lawful warrant or authority, and without the licence or consent, and against the will of the plaintiffs, exposed to public sale, and sold to divers persons divers large quantities of vegetables, roots, and herbs; and the said persons who so bought the said vegetables, roots, and herbs, and who otherwise would have resorted to the plaintiffs' market, and there have bought the same, were induced to resort to the said last-mentioned street and highway, and there buy the vegetables, roots, and herbs so exposed for sale in the said street and public highway, which they otherwise would not have done, to the great damage of the plaintiffs, and the detriment of their market, by means of which said premises the plaintiffs were annoyed and disturbed in their market, and lost divers large sums of money. The third count stated, that the defendant, in a part of a public street within seventy-two yards of the market, exposed to public sale, and sold divers large quantities of vegetables, roots, and herbs which otherwise would have been brought into and sold at the plaintiffs' market, and divers persons were induced to buy the said vegetables, roots, and herbs so exposed to sale in the said public street and highway, who otherwise would have resorted to the market of the plaintiffs and there have bought vegetables, roots, and herbs, and not in the said street or public highway, to the great damage of the plaintiffs and the detriment of their market. Plea, not guilty. At the trial before Abbott C. J., at the Middlesex sittings after Trinity term 1825, the following appeared to be the facts of the case. King Charles the Second, by letters patent, granted to William, Earl of Bedford, that he, his heirs and assigns, should from thenceforth for ever have, hold, and keep a market within the parish of Saint Paul, Covent Garden, in a certain place there called the Piazza, near the church of Saint Paul, Covent Garden, extending from the said church towards the east 420 feet of assize, little more or less, and from the garden wall of the said Earl, there towards the north, 316 feet of assize, little more or less, as well within the rails as without on every day in every week (except Sunday and the feast of the Nativity) for the buying and selling of all kinds of fruits, flowers, roots, and herbs whatsoever, together with all liberties, free customs, tolls, stallage, and picage, and all other profits to the like market belonging, to hold unto the use of William Earl of Bedford, his heirs and assigns for ever. By act of parliament passed in 53 G. 3. c. lxxi. reciting these letters patent, and that the market had been held, that the Duke of Bedford was seised in fee of the market, and the ground and soil whereon it was then holden, the owners of the market were authorised to take from the seller the tolls then usually taken or collected within the market. The plaintiffs were the lessees of the market under the Duke of Bedford. The defendant resided in James 1826. PRINCE against LEWIS. |