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1812.

Dudlow

against WATCHORN

writ of ca. sa. issued, but that no such writ duly issued.] The insertion of the word duly cannot enable the party to take advantage of an irregularity in the practice : if the writ itself had appeared to be bad on the face of it, objection might indeed have been taken to it; but the objection cannot be shewn by pleading other matter, as in the rejoinder. The case of Praed v. The Duchess of Cumberland (a) is in point to shew that the rejoinder is a departure from the plea. There, to debt on bond given to secure an annuity, the defendant pleaded that there was no such memorial of the bond as is required by the annuity act; the replication set forth a memorial, containing the names of the parties, &c. and the consideration for which the annuity was granted : the defendant rejoined, that the consideration was untruly stated in the memorial: and this, on demurrer, was held to be a departure. (Bayley, J. The ground on which that judgment was affirmed in error (b) was that the rejoinder introduced a fact which went to vitiate the deed granting the annuity, and not to shew that there was no memorial of the bond.] In Elliot v. Lane (c), which was in scire facias against bail, they pleaded that there was no ca. sa. against the principal. The plaintiff replied by shewing a ca. sa. and a return of non est inventus : the defendant rejoined that the ca. sa. did not lie four days in the office: and this, on demurrer, was held to be a departure; though by the practice of the Court the proceedings were on that account irregular, and might have been set aside. Here indeed the plea is that no ca. sa. was duly issued; but as the writ issued was legal on the face of it, the party might have been taken by

(a) 4 Term Rep. 585.

(6) 2 H. Blac, 280 -4.

(c) 1 Wils, 334.

the

1812.

Dudlow

against WATCHORN.

the sheriff by virtue of it. The case of Fisher v. Pimbley (a), which will be relied on contrà, turned upon this distinction. To an action on bond conditioned to perform an award, the defendant pleaded no award. The replication set out an award: the rejoinder stated the whole award, in which was recited the bond of submission, by which it appeared upon the face of the award that it was not warranted by the submission; and upon demurrer, the plea of no award was held to be sustained by such rejoinder.

Bowen, contrà, was stopped by the Court.

Lord ELLENBOROUGH, C. J. The argument for the plaintiff would be irresistible, if the allegation had been, as in the case of Elliot v. Lane, that there was no writ of capias ad satisfaciendum issued against the principal; but here the allegation is that none was duly issued, which refers to the purpose for which it is professed to be issued, that of charging the bail, and is equivalent in effect to saying that no ca. sa. was sued out in the manner required by the practice of the Court to charge the bail. Then the rejoinder shewing in answer to the replication setting out a ca. sa. sued into Middlesex, that it was issued into a wrong county, and therefore could not operate to charge the bail, sustains the bar, that no ca. sa. had duly issued, instead of being a departure from it. We must take notice of the practice of the Court in a case like this, where it is the very subject-matter of dispute, and is put in issue. For what purpose is the issuing of the ca. sa. at all in this instance, except as matter of practice?

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GROSE, J. agreed.

1812.

DUDLOW

against WATCHORN.

BAYLEY, J. alleging that no writ of capias ad satisfaciendum was duly sued out and returned or filed, &c. means that it was not so sued, returned, and filed as to enable the plaintiff to charge the bail: and if it be shewn not to have issued according to the practice of the Court for that purpose, it is shewn not to have been duly issued, &c.

Judgment for the Defendants.

sonable expec

own account

Rucker and Others against HILLER.

Tuesday,

June 20. TADDY moved to set aside a nonsuit in this case, and where one

stated that the plaintiffs sued as indorsees of a bill of exchange with exchange against the drawer; and at the trial before Lord a bona fide reaEllenborough, C. J. at Guildhall were nonsuited, for tation of having

assets in the want of proving notice to the drawer of the non-accept- hands of the ance of the bill by the drawee; it appearing that the drawee; as by

having shipped drawer, though he had no effects in the drawee's hands goods on his at the time of drawing the bill, or when it was presented which were on for acceptance, had yet drawn in expectation of funds in the drawee, but time to satisfy the bill; having shipped goods upon his without the bill

of lading or own account, which were on their way to the drawee; invoice; the

drawer is enbut not having remitted to him the bills of lading or in- titled to notice voices; in consequence of which the drawee had returned of the dishothe bill when presented to him, marked no effects." fact is though in

.“

had not come This notification, he contended, dispensed with the ne- to the hands of cessity of giving notice of the dishonour to the drawer; the as it would have been nugatory to give notice. (Reader, the bill was

presented for who was counsel for the defendant at the trial, ob- acceptance, (or

he had rejected served, that the fact had turned out to be that the them), and he

the drawee at

drawee returned it

marked “ NO effects

1812.

drawee had refused to take the goods because they were damaged.]

RUCKER against HILLER.

Lord ELLENBOROUGH, C. J. Where the drawer draws his bill on the bona fide expectation of assets in the hands of the drawee to answer it, it would be carrying the case of Bickerdike v. Bollman (a) further than has ever been done, if he were not at all events entitled to notice of the dishonour. And I know the opinion of my Lord Chancellor to be that the doctrine of that case ought not to be pushed further. The case is very different where the party knows that he has no right to draw the bill. There are many occasions where a drawee may be justified in refusing from motives of prudence to accept a bill, on which notice ought nevertheless to be given to the drawer: and if we were to extend the exception further, it would come at last to a general dispensation with notice of the dishonour in all cases where the drawee had not assets in hand at the very time of presenting the bill; and thus get rid of the general rule requiring notice, than which nothing is more convenient in the commercial world. A bonâ fide reasonable expectation of assets in the hands of the drawee has been several times held to be sufficient to entitle the drawer to notice of the dishonour, though such. expectation may ultimately have failed to be realized. We held this opinion in the case of Brown v. Maffy (b) so lately as in last Hilary term; and cannot rescind our determinations. If we are still supposed to be in an error, the plaintiffs may bring another action, and tender a bill of exceptions.

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1812.

RUCKER

against HILLER.

BAYLEY, J.

The general rule requires notice of the dishonour to be given in due time to the drawer; and it lay upon the plaintiffs to shew that he could not possibly be injured by the want of it. It would be somewhat hard to call upon a drawer towards the end of six years after the bill given; and when he objected that he had no notice of the dishonour, to tell him that he had no effects in the drawee's hands at the time when the bill was presented; though they might have come to his hands the very day after, and the drawer might have settled his accounts with the drawee in the mean time upon the presumption that the bill was paid. Per Curiam,

Rule refused.

HUMPHRIES against CARVALHO.

Tuesday,
June 2d.

1

THE

THE plaintiff declared in assumpsit upon a special Where a

broker sold on agreement made on Saturday) the 21st of Dec. a Saturday cer1811, whereby he agreed to buy of the defendant, and tain goods of the defendant sold to him, five casks of ipecacuanha at to the plaintiff

for a stipulated 13s. 6d. per pound, duty paid, the quality to be ap- price, subject proved on Monday then next, paying for the same at a tift's approval

of the quality discount of 21. 10s. per cent. in 14 days, or by bill at

upon the Mon. 4 months: and then alleged as a breach, that the defend- day following,

and sent the ant did not nor would, though requested on the Monday sold-note to next, &c. the 23d of December 1811, produce the said the plaintiff on

the Saturday,

marked with the words « Quality to be approved on Monday ;” but did not send the bought-note to the defendant then, because he had met and informed him of the contract on the same day; but the plaintiff not baving signified his disapproval of the contract on the Monday, the broker sent the sold-note to the defendant on the Friday, with the words “Quality to be approved on Monday,” struck out; which note the defendant returned within 24 hours, which by the custom of the trade signified his disaffirmance of the contract, as far as in him lay; yet held that at any rate the defendant could no longer disaffirm it after the Monday, when the plaintiff, not baving signified his disapproval, was also bound by it.

casks,

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