1827.

WILLIAMS

against GERMAINE.

and could not be taken advantage of on general de murrer. If, without proof of such presentment at the trial, the plaintiff was not entitled to recover, then, after verdict in his favour, it must be presumed (as was the fact) that such proof was given; and then the omission in the declaration is aided, according to the cases cited in 1 Wm. Saund. 228. n. (1). As to the other case, ⚫ there is no real difference between the action against the drawer and against the acceptor for his honour.

Parke contrà. The only question for the Court is, whether Hoare v. Cazenove were rightly decided or not; and it is very important to adhere to decided cases on questions of commercial law, for subsequent contracts are made on the faith of them. The only authority cited on the other side, as at variance with that decision, is Beawes Lex Merc.; but that was noticed by Lord Ellenborough, and fully answered; and he assigns very sufficient reasons for the judgment then pronounced by the Court. Then it was said, that Hoare v. Cazenove is not supported by the case of Brunetti v. Lexin'; but the custom there set out on the record agrees with that which is now contended for, and it must be taken to have been proved as laid. A difficulty was also sug gested, arising out of the supposed necessity of presenting to the drawee and acceptor for honour on the same! day; but there is no authority for saying that the pre sentment to both must be on the same day; and the law always allows a reasonable time for the performance of that which it requires to be done. [Bayley J. In Hoare v. Cazenove the acceptance was for the honour of the indorser.] Every indorser is in effect a new drawer; and although that was a bill payable after date, and this

is payable after sight, the principle of the former decision, viz. that the undertaking of the acceptor for honour is conditional only, is equally applicable to both, and cannot be affected by the mode of ascertaining the time of payment. The case, Rushton v. Aspinall (a), disposes of the next point that was made; and the argument as to the effect of the averment, that the bill was duly presented to the defendant, is answered by Everard v. Paterson (b), where, in an action on a bond, conditioned for the performance of an award, so as it was made under the hands of the arbitrators, it was averred that the arbitrators did in due manner duly make their award in writing; and on error this was held insufficient. In the other action against the drawer, Pothier, part 1. c. 5. s.137., is a clear authority for the defendant, even supposing him to be treating of that which is necessary to charge third persons, as has been suggested.

Cur. adv. vult.

The judgment of the Court was now delivered by Lord TENTERDEN C. J. There were two cases argued yesterday of Williams and Germaine the elder, and Williams and Germaine the younger; Germaine the elder being the acceptor of a bill of exchange for the honour of the drawer, and Germaine the younger being the drawer of the bill. The objection taken in arrest of judgment was, that the declaration did not allege that when the bill arrived at maturity, that is, at the expiration of the time after it was exhibited to the drawee, it was ever presented to that drawee for pay ment, or protested for non-payment. In support of the

1827.

WILLIAMS

against GERMAINE.

objection,

1827.

WILLIAMS

against GERMAINE.

objection, counsel relied on a case in 16 East, Hoare v.
Cazenove. That case underwent grave consideration by
this Court, which, at that time, was filled by very
learned Judges, the assistance of one of whom we have
the satisfaction of having at the present, moment. In
the course of the argument much was addressed to us.
to shew that that judgment ought not to have been
given. If we could have been convinced that a judg
ment given even by persons of the description to y which
I have alluded, was founded on a mistake of the law, it
would have been, our duty to have decided contrary to
it; but we ought not to overrule a solemn decision of the
Court unless we perfectly concur in saying that such
judgment was founded on a mistake. It is of great im-
portance in almost every case, but particularly in mer
cantile law, that a rule once laid down and firmly
established and continued to be acted upon for many
years should not be changed unless it appears clearly
to have been founded upon wrong principles. If, how
ever, the matter were new, I am by no means prepared
in my own mind to say I should not have come to the
same decision, although I should have paused before I
pronounced a judicial opinion on the subject, longer
than, having that authority before me, I think it neces
sary to do. Whatever is requisite to enable a person
who has accepted a bill for the honour of another, tov
call upon that person to repay him, and to enable hime
to recover over against such person, may also be reason
ably held necessary to enable another party to recover
against such an acceptor for honour. For if you could
recover against an acceptor for honour by proof of less
than will enable him to recover against the party for
whom he accepts, there would be an inconsistency; for

"

it might be said with some reason, that if the acceptor for honour chose to pay without requiring all the proof from the holder which would be necessary for him to recover against the drawer, the payment would be made in his own wrong, and he would not be entitled to recover over. It seems to me, therefore, that the same rule as to proof which prevails in the case of an acceptor for honour, in suing a party for whose honour he accepts, must also be observed when the holder of a bill sues the person so accepting. The result, as it seems to me, of the decision to which I have alluded is, that an acceptance for honour is to be considered not as absolutely such, but in the nature of a conditional acceptance. It is equivalent to saying to the holder of the bill, keep this bill, don't return it, and when the time arrives at which it ought to be paid, if it be not paid by the party on whom it was originally drawn, come to me, and you shall have the money. This appears to me to be a very sensible interpretation of the nature of acceptances for honour, where the parties say nothing. upon the subject. In an action by the holder against the drawer of the bill, to be sure he has a right to say, if you keep it till its time has run out, you ought to have presented it to the person on whom I drew it, and have

.

seen whether on the presentment he would pay; whereas,

yon forbore to do so, and have relied on an acceptance by some person for my honour made without my authorityce. We think that we are bound by authority, and I am inclined to say by reason, to confirm the decision in Hoare, Cazenove; consequently the rule for arresting the judgment in this case must be made absolute.

voye Rule for arresting judgment made absolute.

1827.

WILLIAMS against GERMAINE.

1827.

Wednesday,

November 21st.

Ladd. v. Arnaboldi

WHITTLE, Assignee of the late Sheriff of ESSEX, against OLDAKER and Two Others.

When the she- THE plaintiff issued a latitat into Essex, against the defendant Oldaker, returnable on Monday next after

riff is ruled to

bring in the

body, proceed

taken on the
bail-bond until
that rule has
expired; and

ings cannot be fifteen days of St. Hilary, the 29th of January. Oldaker was arrested, and gave bail to the sheriff. On the 5th of February bail above was put in. On the 6th an exception was entered, and notice of it given, and the sheriff was ruled to bring in the body. On the 8th

if bail above are justified before that time, the

bail below may,

in an action on
the bond, plead
comperuit ad
diem, and that

notice of justification of the bail before put in was given for the 10th. On the same day a second notice plea is satisfied was given for the 12th, and on that day the bail jusby the produc- tified, and a rule for the allowance was duly served.

tion of the re

cognizance roll, On the morning of that day an assignment of the bailcontaining an

fendant's ap

pearance gene-
rally.
Such roll
may be made

up at any time
before the day
given for pro-
ducing it.

entry of the de- bond was taken, and process issued in this action. A declaration on the bail-bond was delivered on the tenth day of Easter term. The defendants pleaded, inter alia, comperuit ad diem; plaintiff replied nul tiel record, and gave a rule to produce the record on Monday next after fifteen days of the Holy Trinity, when the defendants produced a recognizance roll, wherein, after setting out a bill supposed to have been exhibited by the plaintiff against Oldaker, on Tuesday next after eight days of St. Hilary, the appearance of the defendant was entered generally, and not of any particular day. This roll was not docketed or filed until the 23d of June, when it was docketed and filed as of Hilary term. Upon the production of this roll, judgment was entered for the defendants, that they had produced the record accord