1820. DRAKE บ. ROGERS. what does he acknowledge? Not the receipt of the money, but of the draft. That leaves the objection where it was, namely, whether it is necessary on principle and on the decided cases, that the memorial should express the time when the draft is payable: and there are cases directly in point. First Berry v. Bentley: then Poole v. Cabanes; and that case is much stronger than the present, for there it appeared on the memorial, that the draft was duly honored; but the third objection taken was, that the consideration was not sufficiently stated in the memorial. Gibbs produced an affidavit that the annuity had been regularly paid seven years; that the party who drew the draft was dead; and then insisted that this objection ought not to be made, when the only person, who could disprove it, was dead: upon which the Court were about to discharge the rule, when Lawes observed that the last objection appeared on the memorial itself, where it was stated that part of the money was paid by a banker's check, without setting forth the time when the check was payable, and referred to Berry v. Bentley. Gibbs then said a banker's check was always considered as money, and that the payment in Berry v. Bentley was made by a promissory note. But the Court thought that was immaterial, and the rule was made absolute, the defendants agreeing to return the principal on taking an account before the Master. It appears to me from these two cases, and also upon principle, that it is necessary to state in the memorial at what time a bill or draft given as part of the consideration was payable. But, before coming to a decision, I will look into O'Callaghan v. Ingilby. Cur. adv. vult. The Court on the next day made the rule absolute, but imposed on the Defendant the condition of return ing the principal on taking an account before the Prothonotary. 1820. DRAKE Rule absolute. บ. ROGERS. tiff as HALE v. SMALL and Others. May 10. Held, that evi- in a cause of bankrupt describing the Plaintiff as dealer in cattle, seeking his trade of living A COMMISSION of bankrupt described the Plain"Edward Hale, of West Worldham in the county of Southampton, dealer in cattle, using and exercising the trade of merchandise, by way of bargaining, exchange, bartering and chevisance, seeking his trade of living by buying and selling." The Plaintiff, in order to try the validity of the commission, sued the De- a commission fendants (assignees under the commission) in trespass for taking his goods. At the trial before Wood B., (Winchester Spring assizes, 1820) evidence of a dealing in hops was tendered, to prove the trading of the Plaintiff; the evidence was objected to, but admitted, and was by buying and selling. the only evidence of a dealing. Verdict for the Defendants. This was the third trial; the first verdict having been given for the Defendants, the second for the Plaintiff, and the last new trial having been granted on the ground that the Plaintiff might have been taken by surprise, by evidence of a dealing in hops, after being described in the commission, as a dealer in cattle. Onslow Serjt. had obtained a rule nisi to set aside this verdict and have a new trial, on the ground, among other objections, that under the terms of this commission, the evidence tendered at the trial was improperly admitted. Pell 1820. HALE V. SMALL. Pell Serjt., on shewing cause, cited Ex parte Herbert (a), as in point, and contended, that it was not necessary to state in the commission any specific manner of dealing, but merely to pursue the words of the statute, which this commission had done, by describing the Plaintiff as one who gained his living by buying and selling. There might be a convenience in giving the bankrupt notice, by specifying some trade; but he would be as little assisted by the common description of dealer and chapman, as by the mention of a trade which he did not exercise. A decision had been pronounced by the Lord Chancellor in this very case, in which his Lordship had refused to amend or set aside the commission. Onslow, in support of his rule, urged, that the Lord Chancellor's decision in this case, only proved that he would not amend a commission, which in fact he never did, after it had been acted upon; but it did not follow that the commission was valid because the Chancellor would not amend it. It would be of mischievous consequence if a false description or no description of the party were given in the commission, and an extraordinary departure from the usual form. DALLAS C. J. In this commission the Plaintiff is thus described," of West Worldham in the county of Southampton, dealer in cattle, using and exercising the trade of merchandise, by way of bargaining, exchange, bartering and chevisance, seeking his trade of living by buying and selling." He is described not only as a dealer in cattle, but as a person gaining his livelihood by buying and selling. It is necessary now to consider whether the expression "dealer in cattle," is descriptive of the bankrupt's person, or of his trade, and if it (a) 2 Ves. & B. 399. be be descriptive of his trade, whether it may not be rejected as surplusage. It was contended, that evidence of a trading ought not to have been admitted under such a description; and when this came before the Court on a former occasion, they thought it might be a surprise upon the party, if the Defendants were to set up evidence of a trading in hops, as the only trading on which the bankruptcy rested, after having described the Plaintiff as a dealer in cattle. They did not go the length of saying, that the commission was therefore invalid, but thought grounds were laid for sending the case down to a new trial, lest there should have been any surprise on the Plaintiff. I still think that it may be a source of inconvenience to describe a party as acting in one capacity, and then to offer evidence of his acting in another and a different capacity. When the cause was sent down a second time for trial, all objection on the ground of surprise was removed; for it was known, that evidence would be set up to establish a dealing in hops; and the only question now is, whether the description of a dealer in cattle having been inserted, and the expression of dealer and chapman having been omitted, the statement that the party gained his living by buying and selling is sufficient. How then does the matter stand on reason and principle? what clearer information does the party receive from the expression dealer and chapman, than would be conveyed to him by the description used in the statute (a), namely, a person gaining his livelihood by buying and selling. My Brother Park expressed himself in these terms, when the question was last raised in this court. "The general statement that the bankrupt got his living by buying and selling, will admit the finding of any particular trading."(b) Here, if 1820. HALE บ. SMALL. (a) 13 Eliz. c. 7. 5. I. (b) 3 B. Moore, 58. the 1820. HALE V. SMALL. the term dealer and chapman, or in the absence of that, if the term buying and selling would entitle the Defendants to prove any trading, then the question is, whether the naming a particular trade would operate to exclude such general proof. In Ex parte Herbert, the Lord Chancellor held, that the general allegation of buying and selling was sufficient to render the commission valid; and the only difference between that case and the present is, that there the question was, as to the sufficiency of the general words, here the question is as to the admissibility of general evidence under those words. It appears to me, therefore, that the words dealer in cattle are descriptive of the person only, and as such not material, while the words buying and selling as descriptive of a trader, are sufficient to render the commission valid, and to admit evidence to prove any act of trading. BURROUGH J. The language of the act is, " any merchant or other person using or exercising the trade of merchandise by way of bargaining, exchange, rechange, bartry, chevisance, or otherwise in gross or by retail, or seeking his or her trade of living by buying and selling." (a) The expression dealer and chapman does not exist in any of the acts touching bankrupts, and only found its way into commissions, to enable the parties to prove a general trading. But I am still of opinion, that some description of the person is necessary; "Esquire" would be sufficient, if using trade by buying and selling were added; but some description is necessary; and when that has been formally given, there is no objection to letting in evidence of any kind of trading. A man has been described as a waterman, in which capacity he was not subject to the bankrupt laws: but (a) 13 Eliz. c. 7. S. I. that |