1812.

WINSTANLEY

against GAITSKELL.

and delusive pretences, will not interfere in such case.
But the Court have never said that it is the same thing
where the excuse arises out of a legal impossibility.
Such was the case of Wood v. Mitchell, where the de-
fendant was under sentence of transportation ; and there
the Court permitted an exoneretur to be entered on the
bail-piece. That, however, is not prayed in this case,
but only an enlargement of the time. But as long as the
principal is without the reach of his manucaptors, so
that they cannot take him, and is in the hands of other
persons under custody of the law, and a return by them
is made, such as the Court will allow, the Court cannot
but contemplate such a case as an exception to the rule
propounded in Wynn v. Petty. This case, therefore, is
to be distinguished as a case of legal impossibility as
contradistinguished from moral impossibility. Here the
defendant is in the custody of the law, and not of the
party who is to bring him up, and the law will not allow
him to be taken out of that custody at the peril of his
life.
Per Curiam,

Rule absolute.

HOARE and Others against Cazenove and

Another.

Friday, Nov, 27th.

IN

N an action by the indorsees of the bill of exchange The acceptors hereinafter set forth against the acceptors, the de- of exchange,

of a foreign bill claration contained the usual averments, (the 1st count who, after pre

sentment to the averring that the bill was presented for payment to the drawees for ac

ceptance, and

refusal by them to accept, and protest for non-acceptance, accept the same for the honour of the first indorsers, are not liable on such acceptance, unless there has been a presentment of the bill to the drawees for payment, and a protest for non-payment. dd 2

drawees

1812.

HOARE

against CAZENOVE,

drawees and refused, the 2d count omitting that averment,) and charged that the bill having been refused acceptance by the drawees, and being thereupon duly protested for non-acceptance, the defendants, having notice thereof, accepted the bill for the honour of the first indorsers. The defendants pleaded the general issue ; and at the trial before Lord Ellenborough, C. J. at Guildhall, after Hilary term 1811, a verdict was found for the plaintiffs for 8161. subject to the opinion of the Court on the following case :

The bill of exchange stated in the declaration was drawn by S. Hanbury at Hamburgh, on the 23d of July 1810, upon Penn and Hanbury of London, in favour of Quevremont Balleydier and Co., for 8001. sterling, at 130 days after date. It was specially indorsed by Quevremont Balleydier and Co, to Perier Freres: by them to F. Farmbacher, all of whom reside abroad; by F. Farmbacher to Greffuhle Freres and Co., who reside here; and by the latter to the plaintiffs, who are bankers in London. The first of the set of bills was transmitted, with the first special indorsement only, to the defendants to procure acceptance: and they accordingly presented it for acceptance to Penn and Hanbury, who refused; whereupon the defendants caused a protest to be duly made for non-acceptance. The second of the set of bills was afterwards transmitted, indorsed so as to pass the property to Greffuhle Freres and Co., with a reference upon the face of the bill to the defendants in case of need. Greffuhle Freres and Co. applied to the defendants for the first bill, and to know if it had been accepted : upon which the defendants delivered the first bill to them with the following acceptance by themselves; “accepted under protest for the honour of the

first

1812.

HOARE

against CAZENOVE.

first indorsers." The bill became due on the 3d of December 1810, but was not presented to the drawees, Penn and Hanbury, for payment; nor was it proved to have been protested for non-payment. The defendants refused to pay the bill, in consequence of orders from the first indorsers. If the plaintiffs were entitled to recover, the verdict was to stand; if not, a nonsuit was to be entered. This case was argued in Michaelmas term 1811, by Scarlett for the plaintiffs, and Taddy for the defendants; and the Court reserved it for further consideration.

Lord ELLENBOROUGH, C. J. on this day delivered the judgment. This was

an action founded upon a set of bills of exchange for 8001., accepted by the defendants for the honour of the first indorsers. The set was drawn by Samuel Hanbury, at Hamburgh, 23d July 1810, upon Penn and Hanbury of London, and was payable to Quevremont Ballydier and Co., at 130 days after date. The first of the set was transmitted to the defendants, that they might procure acceptance, but Penn and Hanbury refused to accept, and the defendants caused it to be protested for non-acceptance. The second of the set was indorsed to Greffuhle Freres and Co.; they applied to the defendants for the first, and the defendants delivered to them the first, accepted by themselves, for the honour of the first indorsers, that is to say, Quevremont Balleydier and Co. The bill became due the 3d of December 1810, but was not presented to Penn and Hanbury, the drawees, for payment, nor protested for non-payment. In the first count it was stated, contrary to the fact, that it was presented to the drawees

for

1812.

HOARE

against CAZENOVE

for payment, and refused : in the second count this
averment was wholly omitted. The defendants (in con-
sequence of orders from the first indorsers,) refused to
pay it. The question therefore is, whether a present-
ment to Penn and Hanbury, the drawees, for payment,
and a protest for non-payment by them, is, or is not
essential as a previous requisite to the maintaining an
action against these defendants, the acceptors for the
honour of the first indorsers ; and this depends upon
the nature and obligation of an acceptance for the
honour of the drawer or indorser. If an acceptance in
these terms be an engagement by the person giving it
that he will pay the bill when it becomes due, and en-
titles the holder to look to him in the first instance,
without a previous resort to any other person, the
plaintiffs are in that case entitled to recover upon their
second count: but if such an acceptance be in its nature
qualified, and amount to a collateral engagement only,
i. e. an undertaking to pay if the original drawee,
upon a presentment to him for payment, should persist
in dishonouring this bill, and such dishonour by him
should be notified, by protest, to the person who has ac-
cepted for the honour of the indorser, then the necessary
steps have not been taken upon this bill, and the plain-
tiffs cannot recover. And such, after much considera-
tion, we are of opinion is the case. It is remarkable
that no directly adjudged case upon the question is to
be found; although the custom of merchants relative
to this subject, is stated in the case of Brunetti v. Lewin,
in K. B. (affirmed in error in the Exchequer Chamber, in
favour of the original plaintiff, Brunetti,) as reported in
| Lutw, 896. And Lutw. in his report (a), says that he
(a) 899. b.

could

1812.

HOARE

against CAZENOVE.

ment, is not

could not discover that any exception was taken to the va-
lidity of the custom, which he states as shortly this, “that
“ if any merchant, &c. (for the honour of him to whom
“ a foreign bill of exchange was first payable, and who
“ had first indorsed the bill to another,) shall pay the
“ said bill to the last indorsee of it, the bill being before
“ then protested for non-payment, then the merchant to
“ whom the bill was first payable, and who first in-
66 dorsed the bill, shall have an action against the mer-
“ chant who first took upon himself, by writing, to pay
“ the bill, &c. for the honour of the drawer, the bill

having been first protested likewise for non-acceptance,
“ for the value of the bill and all charges," &c. Thus
two protests, i. e. for non-payment as well as non-accep-
tance, were in this case held necessary by the custom of
merchants. The immediate point argued in error ap-
pears to have been whether it was sufficiently shewn,
agreeably to the custom alleged, that payment was in
that case in fact made to the last indorsee, so as to
found the claim of the first indorser, to payment to be
made by the acceptor for honour, within the terms of
the custom; but it certainly was also open to the plain-
tiff in error, to have insisted upon the invalidity of any
part of the custom alleged; of which custom the pro-
test for non-payment previously to the payment to the
indorsee, and the subsequent claim upon the acceptor
for honour, was a material part. In that case the under-
taking for the honour of the drawer was not in the
form of an acceptance upon the bill, but of “a note in

writing for the honour of the drawer to pay the bill

upon return;" but this, “according to Pothier on Bills “ of Exchange, partie 1. cap. 4. Des Avals,” is a mode substituted by “recent usage in the place of a signature

by