Carter against Downish
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1794 |
| Date | 01 January 1794 |
| Court | Court of the King's Bench |
English Reports Citation: 89 E.R. 492
IN THE COURT OF KING'S BENCH
case 108. caetee against downish. Hilary Term, 3 & 4 Jac. 2, B. R. Roll 831. To covenant on a deed whereby the defendant agrees to pay certain bills of exchange, a plea that the plaintiff, according to the custom of merchants, indorsed the bills ta A. who indorsed them to B. and that he, the defendant, paid part of them to B. and tendered the remaitider to the plaintiff, is good, although the custom is not specially stated, nor the tender pleaded with an encore pres; for the custom of merchant?^ is part of the common law, and the Courts will take notice of it without being specially pleaded; and encore pres is not necessary in covenant when damages and not debt is in demand.-S. C. 3 Mod. 226. S. C. Garth. 83. The Judges ought ta take notice of the law of merchants ò being part of the common law. Error in the Exchequer Chamber of a judgment in the King's Bench, where the plaintiff declared in covenant of a deed, reciting that the plaintiff had covenanted to deliver one thousand kintals of Newfoundland fish, or so much as should be made in that season, the defendant covenanted that he the defendant would pay such bills of exchange as should be drawn on the plaintiff his executors administrators or assigns in the dwelling house of Robert Aylewin merchant in London, and alledges that there was a bill drawn payable to them at forty days sight; that the same was presented, accepted, and not paid, &c. The defendant pleaded, that within the forty days after [128] the bill was shewn, the plaintiff by indorsement on the bill according to the custom of merchants appointed the payment to Mr. Herbert Aylwin or his order, and that he indorsed it to one Tassel; that the defendant within forty days did pay to Tassel one hundred pounds, part thereof, and afterwards tendered in the house of Aylwin, the three hundred pounds residue, which was refused. Et hoc paratus est (b) 2 Show. 441, 494. Skin. 255. 3 Mod. 86. 1 Lutw. 878. (c) Yelv. 74. Noy. 129. Cro. Jac, 206. l SHOW. K. B.129. MICHAELMAS TERM, 2 WILLIAM AND MARY. IN B. R. 493 verificare, &c. Demurrer, and joiner in demurrer. Judgment for the plaintiff in B. R. and the defendant brings a writ of error. General error assigned. I argued for the plaintiff here, that this plea was good. The exceptions taken to it were two. First, because we do nob sec forth a particular custom to warrant our indorsement. Secondly, because we do not...
To continue reading
Request your trial