Forster and another against Surtees and Others
| Jurisdiction | England & Wales |
| Judgment Date | 06 July 1810 |
| Date | 06 July 1810 |
| Court | Court of the King's Bench |
English Reports Citation: 104 E.R. 236
IN THE COURT OF KING'S BENCH
forster and another against surtees and others. Friday, July 6tb, 1810. Where by agreement between the plaintiffs, bankers at Carlisle, and the defendants, bankers at Newcastle, the plaintiffs were weekly to send to the defendants all their own notes and the notes of certain other banking houses; and the defendants were in exchange to return to the plaintiffs their own notes and the notes of certain other bankers, and the deficiency, if any, was to be made up by a bill drawn by the defendants in favour of the plaintiffs at a certain date; Held that the notes so sent by the plaintifts to the defendants constituted a debt against them, which the defendants might pay by a return of notes according to the agreement, but if they made no such return, or a short return, and gave no bill for the balance, such balance remained as a debt against them, which was prove-able by the plaintiffs under a commission of bankrupt issued against the defendants, on an act of bankruptcy committed after the time when the bill for the balance, if drawn, would have been due and payable; and that the plaintiffs could not maintain an action, to recover damages as for a breach of contract against the defendants who had obtained their certificates. The plaintiffs declared in assumpsit, and stated that, before the making of the promise by the defendants aftermentioned, the plaintiffs were bankers at Carlisle, and the defendants were bankers at Newcastle-upon-Tyne; and that it was the usage and practice agreed upon between them for their mutual accommodation and advantage, that the plaintiffs should weekly on Saturday forward to the [606] defendants for their use all the bank notes issued payable on demand by the defendants as such bankers, or by any other banking house in Newcastle-upon-Tyne, Northumberland, Durham, Yorkshire, or Berwick-upon-Tweed, which should in the week next preceding such Saturday, or on that day, have come to the plaintiffs' possession : and that the defendants, having received such notes, should on or before Friday weekly forward to the plaintiffs for their use all the bank notes issued payable on demand by the plaintiffs as such bankers, or by any other bankers carrying on that business in Cumberland or Westmoreland, which should on such Friday, or other earlier day of forwarding the same, be in the defendants' possession: and if on such Friday or earlier day the bank notes so to be forwarded by the defendants to fhe plaintiffs for their use'should amount to a less sum than the bank notes forwarded on the Saturday next preceding to and received by the defendants for their use, deducting from such amount any sums for which the plaintiffs might have or had, in stating their account on such Saturday with the defendants, made themselves debtors to the defendants as hereafter mentioned, there was a further usage and practice agreed upon and observed as aforesaid, for the ends aforesaid, that the defendants should together with the last-mentioned bank notes, if any, on such Friday or earlier day to be forwarded, and forwarded by them as aforesaid, forward to the plaintiffs a bill of exchange drawn by the...
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