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against CAZENOVĖ.

by the person giving the caution on the bill itself;' and though the mode be different, the effect is for all substantial purposes the same. ·Malyne, p. 273., in his 5th observation, says, if this man, (speaking of the acceptor for the honour of the bill, whom he had just mentioned in his foregoing observation,) if this man at the time doth pay the said bill, because the party upon whom it was directed doth not, yet he is to make, first, before he doth pay the same, a protest, with a declaration that he hath paid the same for the honour of the bill of exchange, whereby to receive the money again of him that hath made the bill of exchange. But it may be said that according to this position in Malyne, though a protest may be necessary to be made against the drawee by the acceptor for honour, to entitle him to recover against the party for whose honour he has accepted, yet that such protest for non-payment is not equally necessary to be made against the drawee, to enable any other holder to recover against the acceptor for honour himself. But the next observation, the sixth in the same page of Malyne, lays down the obligation more generally, and as attaching upon every holder of a bill, whether accepted or not accepted, in whose hands it remains unpaid, up to the time of the appointed payment, i. e. the duty of making a protest for the non-payment of it. His words are these : “ If a bill of exchange be accepted, and nevertheless not paid, and that it be not accepted as aforesaid, and remaineth unpaid, then must you cause the notary to make a second protest, (assuming that the bill had been already protested for non-acceptance,) for the non-payment of it.” In the same work of Pothier, to which I have already referred; part 1. c. 5. s. 131., second




against CAZENOVE.

branch of the section: “When after a protest made for want of acceptance on the part of him upon whom the bill is drawn, a third person has intervened, and has accepted the bill for the honour of the drawer, or some indorser, all agree that at the expiration of the time of grace, the protest ought to be made not only to him upon whom the bill is drawn, and who has refused to accept it, but to the third person, who has accepted it for honour. A bad reason has been assigned to me for the difference, which is, that he, who has accepted for honour, has made himself the debtor of the bill, whereas the person who has been indicated as him from whom the .payment of it is to be received, is not the debtor of it. This reason is a bad one, for when I make a protest to any one of my bill of exchange, it is only in his single quality of person indicated to pay me, and not in the quality of debtor of the bill that I make this protest. He upon whom the bill is drawn, when he has not accepted it, is not debtor of the bill of exchange in regard to me; it is only in the single quality which he has, of being the person indicated to pay it, that my protest to him is made.” I am aware that Beawes in his Lex Mercatoria, p. 421. s. 43. says, “He “ that accepts a bill upon protest, puts himself abso“ lutely in the stead of the first acceptant, and is obliged “ to make the payment without any exception, and the

possessor, (i, e. the holder,) hath the same right and “ law against such an acceptor as he would have had “ against the first intended one, if he had accepted.” The literal sense of these words certainly seems to place this writer at variance with the authorities above cited; and if that were necessarily the case, one would not be disposed very readily to surrender the custom of merchants,




against CAZENOVE.

as alleged on record, and not questioned in error in the case of Brunetti v. Lewin, as it is reported in Lutw., and the positions which are to be found in Malyne and Pothier, (the latter, a most learned and eminent writer upon every subject connected with the law of contracts, and intimately acquainted with the law-merchant in particular ;) to the authority of Mr. Beawes. However, the very positions of Beawes himself are not necessarily contradictory to those above-mentioned, nor does he advert to any question whether a protest be required or not in such a case. In saying that an acceptor for honour “put himself absolutely in the stead of the first acceptant, and is obliged to make the payment without any exception,” &c., he may fairly be understood as representing only the extent of his liability to be equal to that of an original acceptor, when charged upon his acceptance, and not as excluding the necessity of any previous steps, which the custom of merchants may be supposed to require, in order to his being duly so charged. The use and convenience, and indeed the necessity of a protest upon foreign bills of exchange, in order to prove in many cases the regularity of the proceedings thereupon, is too obvious, to warrant us in dispensing with such an instrument in any case where the custom of merchants, as reported in the authorities of law, appears to have required it. And indeed the reason of the thing, as well as the strict law of the case, seems to render a second resort to the drawee proper, when the unaccepted bill still remains with the holder; for effects often reach the drawee, who has refused acceptance in the first instance, out of which the bill may and would be satisfied, if presented to him again when the period of payment had arrived. And


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against CAZENOVE.

the drawer is entitled to the chance of benefit to arise
from such second demand, or at any rate to the benefit
of that evidence which the protest affords, that the de-
mand has been made duly without effect, as far as such
evidence may be available to him for purposes of ulte-
rior resort. Upon the whole, therefore, we are of
opinion that the postea must be delivered to the de-

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Doe, on the Demise of Gigg and Others,

against Bradley.

Friday, Nov. 27th.

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S. K.'s children

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N ejectment for lands at Axminster, in the county of Devise of a te-

Devon, which was brought on the joint and several which testator demises of Robert Gigg, John Goss, and Dorothy, his was possessed wife, Henry Gigg, William Wakely, and Susannah, his mainder of a

term of years, wife, James Gigg, Nathaniel Stoker, and Ann, his wife, to his daughter Charles Swetland Gigg, and Sarah Gigg, (the demises to be equally being laid on the first of July 1808,) a verdict was taken divided be

tween them, for the plaintiff at the trial, before Chambre, J., at Exeter, share and share subject to the opinion of the Court on the following case: the survivor of

them and their Charles Swetland being possessed of a tenement in Ax- children: Held minster, called Serts, (the premises in question,) for the that the chilremainder of a term of 4900 years, had at the time of took an abso. making his will, and of his death, two daughters, Su- the premises, sannah Staple and Sarah Knight, and two grand-daugh- alike, subject to ters, the issue of Sarah Knight: viz. Joan, the wife of a survivorship John Gigg, and the mother of the lessors of the plaintiff, for life. and Sarah, afterwards the wife of Henry Bradley, the defendant. C. Swetland, by his will, duly executed, dated 16th April 1757, gave to his two daughters, Susannah Staple, and Sarah Knight, the said tenement


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Doe, dem.

Gigg, against BRADLEY.

called Serts, share and share alike, during their natural lives, and to their own separate uses; neither of their husbands to have any thing to do with it; with survivorship for life, in case his daughter Susannah Staple, died in the life-time of his daughter Sarah Knight, to Sarah Knight, and after the decease of his two daughters he gave

the said estate of Serts to his daughter Sarah Knight's children, to be equally divided between them, share and share alike, and to the survivor of them and their children ; and he made his said two daughters executrixes of his will. The testator died in March 1760; his two daughters and grand-daughters survived him; and his two daughters, the executrixes, duly proved the will. By indenture dated June 11th, 1771, duly executed between the said John Gigg and Joan, his wife, of the first part, and Sarah Knight, the younger sister of the said John Gigg, of the second part, and William Newberry, yeoman, of the third part, reciting Charles Swetland's will, and that by virtue thereof the said Gigg and his wife, or he in right of his wife, and the said Sarah Knight the younger, would on the death of Sarah their mother become entitled to one moiety of the said premises, and on the deaths of Susannah Staple and Sarah Knight the mother, to the whole thereof, during the remainder of the said term, but it being doubted whether as joint-tenants or tenants in common, it was agreed to assign the whole of the said premises to the said W. Newberry, during the remainder of the said term, upon the trusts after mentioned: and thereupon in consideration of 5s. the said Gigg and his wife, and Sarah Knight the younger, and each of them, granted and assigned all the said premises to the said Newberry, to hold to him and his executors from and after the deaths of Susannah Staple,


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