Hickling and Another v Hardey
| Jurisdiction | England & Wales |
| Judgment Date | 07 February 1817 |
| Date | 07 February 1817 |
| Court | Court of Common Pleas |
English Reports Citation: 129 E.R. 125
IN THE COURT OF COMMON PLEAS, AND OTHER COURTS
S. C. 1 Moore, 61.
[312] HlCKLINU AND ANOTHER V. HARDEY. Feb. 7, 1817. [S. C. 1 Moore, 61.] If a buyet pays for goods by a bill which the drawee refuses to accept, and afterwards desires it may be again presented, and it will be honoured, the holder is not bound again to present it,--Nor to return the bill.--Whether the seller of goods, suing for the price, and producing the Defendant's bill for the price protested for 11011-; acceptance, is bound to prove that it was duly presented for acceptance and refused, quaere. The Plaintiff declared on a bill of exchange, drawn by the Defendant on Brown for non-acceptance, and for goods sold and delivered. Upon the trial of the cause at Guildhall, at the sittings after Michaelmas term 1816, before Gibbs C. J., the Plaintiff went upop, and proved, his case for goods sold and delivered, which were oranges sent from St. Michael's to London, but his witness, on cross-examination, admitted that the Defendant had remitted to the Plaintiff from St. Michael's a bill drawn on Brown, in London, for the amount; but that Brown had said he would not accept it, because the goods were not packed according to order; but that the Defendant afterwards said, that the goods were properly packed and approved, and if the Plaintiff would again present the bill, Brown would accept it. The witness could not prove that the bill had been regularly presented to Brown for acceptance, and refused, either on the first occasion, or subsequently, but he produced the bill, from the Plaintiff's custody, unaccepted. For the Defendant it was objected, that before the Plaintiff could recover the price of the goods sold, he must account for the bill, (by receiving which the debt had priraa facie been extinguished,) with the same precision as if this were an action on the bill j and Hebilen v. Hartsink (4 Esp. 46) was cited, where Lord 126 LEVY V. LORD HERBERT 7 TAUNT. 318. Kenyon, C. J. held, that if bills are given, they must be presumed to be paid, unless the contrary be shewn. Gibbs C. J., recollecting the case of Bishop v. Rowe (3 Maule & Selw. 362), [313] reserved the point, but did not promise a rule nisi, and the jury found a verdict for the Plaintiff. Best Serjt. had in this term obtained a rule nisi to set aside the verdict, and enter a nonsuit, against which Copley Serjt. now shewed cause. Best, in support of his rule...
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