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1837.

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FREER,

clusion, that the judgment of the two Courts BELLINGHAM below ought to be affirmed.

Where two Courts have concurred in a conclusion of fact, from the evidence before them, or sitting in a part of the King's foreign dominions, have concurred in a matter of foreign law in force there, a court of appeal in this country ought to be fully satisfied that their decision is erroneous before it pronounce a judgment of reversal.

Upon the question of fact, whether the bills for 1,5001. were accepted by Freer & Co. on account of their engagement to make consignment to Bellingham & Wallis, for the purpose of covering the advances of Bellingham & Wallis to them, the relation in which Freer & Co. and Bellingham di Wallis stood to each other at the time when the bills were sent by Bellingham & Wallis for acceptance, and were accepted and returned by Freer & Co. to them, is material to be considered.

In the origin of the transaction between these parties, Freer & Co. were in want of pecuniary assistance from Bellingham & Wallis, who were to make advances for their accommodation, and Freer & Co. engaged to consign produce for their security. Freer & Co. having been disappointed in the expected arrival of cargoes, and consequently unable to fulfil their part of the engagement, they accept bills sent to them by Bellingham & Wallis, drawn by the latter in favour of themselves. And it is contended, on the part of Bellingham & Wallis, that these bills must be considered as accepted for their accommodation, and not on account of the default of Freer & Co. to fulfil their engagement. But this view of the case supposes an entire reversal of the situation of

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1837.

v.

FREER.

the parties; and that Freer & Co., who stood in need of accommodation from Bellingham & BELLINGHAM Wallis, when they were in confident expectation of receiving produce, were in a situation to be asked for, and afford accommodation to Bellingham & Wallis when this expectation had failed. The letter of Freer & Co., which covered the acceptances, leads to a very different conclusion; for, immediately after saying, “We return you the three drafts accepted, amounting to 1,5001.,” they add, “You have undoubtedly been disappointed in not receiving consignments from us, and we feel much grieved in consequence. But your disappointment cannot be equal to ours.” Is it not evident from these sentences, following each other, that the bills were accepted on account of the disappointment ? Accordingly, Holt, the partner in the house of Freer & Co., and the only witness in the case, and who was called on the part of the plaintiffs, states in his evidence, that when asked about sending goods upon the defendant's guarantee, he said that he had accepted bills for 500 1., each, and should send, and did send, enough to cover the balance; thereby treating the sum due, after deducting 1,500 l., as the balance remaining to be covered by consignments; which acceptances he

appears to complain had not been paid to the credit of Freer & Co., in the account, as they ought to have been.

On this point, therefore, their Lordships are of opinion, that sufficient evidence was given to justify the conclusion of fact, that the bills were accepted on account of the insufficiency of consignments to cover the balance of advances.

II. The remaining and most material question,

1837.

V. FREER.

is, whether Bellingham & Wallis, by taking the BELLINGHAM acceptances, discharged Noah Freer, the surety,

from his liability to pay the balance?

This question must be decided by the principles of the French law, which differs, in some respects, from the law of England.

There is one rule, however, which is equally recognized by both, namely, That the surety ought not to suffer by the arrangement which has taken place between the creditor and the principal debtor: Nemo ex alterius facto prægravari debet.

But the condition of the surety may be differently affected by the same circumstances under the one law and under the other.

In endeavouring to ascertain the bearing of the French law upon the case, we cannot resort to more satisfactory authority than that of Pothier, in whose writings we not only find the principles of the civil law, upon which the law of France is based, illustrated and explained, but are informed of the extent to which those principles have been admitted, and the modifications which they have undergone.

By the French law, a surety is allowed, in certain cases, to proceed against the principal debtor for his own indemnity, before he has discharged the debt.

Pothier, Traité des Obligations, part 2, chap. 6, sec. 7. art. 2. No. 442, states four cases in which this is allowed :

1. When the surety is sued by the creditor.

2. When the principal debtor is in embarrassed circumstances, en déroute; in which case the surety, though he has not paid, may attach the goods of

1837.

the principal debtor, in order that they may be answerable for the guarantee which he has entered BELLINGHAM into.

v. FREER.

3. When the principal debtor has bound himself to bring the surety a discharge of his guarantee within a time certain, which has expired.

4. When, though the principal debtor has not bound himself to discharge the surety from his guarantee within a certain term, yet, if the obligation has continued a considerable time, the security may compel the principal debtor to procure his discharge. This time has since been fixed by the Code Civil at ten years, where the principal obligation has no fixed time. This rule, however, does not prevail if the principal obligation is such, as in case of guardianship, that it is not of a nature to be extinguished before a determinate period.

In these cases, a surety under the English law, would have no such power to protect himself. It has, therefore, been very fairly argued, that a surety under the French law is not entitled to the same indulgent consideration as a surety under the English law. He cannot, indeed, in all cases, proceed against the principal debtor for his own indemnity, before he has paid the debt; but he may do so if he perceives that the debtor is falling into embarrassment, though he has not paid, or been called upon to pay.

The next thing to be considered is, the relation which subsists between the drawer and acceptor of a bill of exchange. Pothier, Traité du Contrat de Change, part 1, chap. 4, art. 3, No. 91, says, that the contract between the drawer and drawee of a

1837.

BELLINGHAM

FREER.

bill of exchange is considered as a real contract of mandate mandatum solvendæ pecunia, which takes place, and is contracted, by the acceptance of the bill by the drawee. This contract, he says, is tacitly contracted when the drawee is a banker, who has received funds of the drawer for the acceptance and payment of his bills. And further, at No. 92, that he had been assured by all the merchants with whom he had conversed, that it was the constant custom among merchants, that a creditor for a liquidated sum, in a commercial transaction, may, without waiting for the express consent of his debtor, draw upon him a bill of exchange for the amount; and that, in default of paying it, he (the debtor) is chargeable with costs of protest, re-exchange, &c. He says, indeed, that he was surprised to find this practice; but, in justification of it, he adds, that it being the practice of commerce, one merchant who contracts with another a liquidated sum, in a commercial transaction, consents that his creditor may draw for it upon him by a bill of exchange, and, though he has not expressed his assent, is considered to have tacitly agreed to it, according to the rule of law, In contractibus tacité veniunt quæ sunt moris et consuetudinis. But this, he says, must be confined to commercial transactions.

In No. 97, speaking of the rights of action of the drawee against the drawer, to be reimbursed what he may have advanced for the drawer for the payment of the bill, he says, “The acceptor shall not have this action, if the funds have been remitted to him by the drawer, or if he was the debtor to the drawer to that amount or more; but, nevertheless, in this case, the drawee obliges himself to the ac

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