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1812.

HOARE against CAZENOVE.

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

branch

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 absolutely 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

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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,

as

1812.

HOARE

against CAZENOVE.

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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 under-
stood 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 pro-
ceedings thereupon, is too obvious, to warrant us in dis-
pensing 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

the

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 demand has been made duly without effect, as far as such evidence may be available to him for purposes of ulterior resort. Upon the whole, therefore, we are of opinion that the postea must be delivered to the defendants.

1812.

HOARE against CAZENOVE.

IN

DOE, on the Demise of GIGG and Others,
against BRADLey.

Friday, Nov. 27th.

nement of

which testator was possessed for the re mainder of a

term of years,

to his daughter

S. K.'s children

to be equally divide

divided between them,

share and share

alike, and to

the survivor of children: Held that the chil

them and their

N ejectment for lands at Axminster, in the county of Devise of a teDevon, which was brought on the joint and several demises of Robert Gigg, John Goss, and Dorothy, his wife, Henry Gigg, William Wakely, and Susannah, his wife, James Gigg, Nathaniel Stoker, and Ann, his wife, Charles Swetland Gigg, and Sarah Gigg, (the demises being laid on the first of July 1808,) a verdict was taken for the plaintiff at the trial, before Chambre, J., at Exeter, subject to the opinion of the Court on the following case: Charles Swetland being possessed of a tenement in Axminster, called Serts, (the premises in question,) for the remainder of a term of 4900 years, had at the time of making his will, and of his death, two daughters, Susannah Staple and Sarah Knight, and two grand-daughters, the issue of Sarah Knight: viz. Joan, the wife of 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

called

dren of S. K.

took an abso

lute interest in

the premises,

share and share

alike, subject to a survivorship

between them

1812.

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,

and

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