Whitehead and Others, Assignees of Benbow, a Bankrupt v Walker
| Jurisdiction | England & Wales |
| Judgment Date | 31 January 1842 |
| Date | 31 January 1842 |
| Court | Exchequer |
English Reports Citation: 152 E.R. 214
EXCHEQUER OF PLEAS.
S. C. 1 Dowl. (N. S.) 600; 11 L. J. Ex. 168. See further, 10 M. & W. 696.
whjtehead and others, Assignees of Benbow, a Bankrupt v. walkkk. Exch. of Pleas. Jan. 31, 1842.-The holder of a bill of exchange, on non-acceptance, and protest and notice thereon, has an immediate right of action against the drawer, and does not acquire a fresh right of action on the non-payment of the bill when due. The Statute of Limitations, therefore, runs against him from the former and not from the latter period.-To an action of assumpsit by the fourth indorsee of a foreign bill of exchange against the first indorser, alleging for breach nonpayment by the drawee, the defendant pleaded, that before the bill became due, and after the indorsement to the third indorsee, and before the indorsement to the plaintiff the bill was refused acceptance, and was protested; that the third indorsee and the plaintiff, at the time of the indorsement to the latter, had notice of the non-acceptance and protest; and that the defendant had not due notice of the non-acceptance or of the protest:-Held, on special demurrer, that a replication de injuria to this plea was good. [S. C. 1 Dowl. (N. S.) 600; 11 L. J. Ex. 168. See further, 10 M. & W. G96.] Assumpsit by the indorsee against the indorser of a foreign bill of exchange. The declaration stated, that heretofore, to wit, on the 8th of August, 18.'i4, and before fche Bankruptcy of Beribow, in parts beyond the seas, certain persons made their bill of exchange in writing, directed to Messrs. Grayhurst and Company, and thereby requested them to pay to the defendant, ninety days after sight, 7211. Os. .'id., value received : that the defendant indorsed the said bill to W. Swainson, who indorsed it to Willis & Co., who indorsed it to Benbow; and that the said Grayhurst & Co. had sight of the said bill, but had not paid the same. Seventh plea. That before the said bill became due, or had been presented for payment, and after the indorsement of the same to Willis & Co., and before the indorsement to Benbow, the said bill was presented to Grayhurst and Co. for thuir acceptance; that Grayhurst & Co. refused to accept the same; that thereupon the bill was protested for non-acceptance; and that Benbow, as well as Willis & Co., at the time of the indorsement to Benbow, had notice that [507] the said bill had been so presented, and had been so refused, and protested for non acceptance. Verification. Eighth plea. That before the said bill became due, or was presented for payment, and 4fter the indorsement to Willis & Co., and before the indorsement to Benbow, the bjll was presented to Grayhurst & Co. for their acceptance, but that they refused to acqept the aame, and the bill was thereupon protested for non-acceptance ; and that the defendant had not due notice of the non-acceptance of the bill, or of its having 9M. &W.508. WH1TEHEAD V. WALKER 215 been 130 protested ; and that Benbow, as well as Willis & Co., at the time of the said indorsement to Benbow, had notice that the bill had been so presented for acceptance, and refused and protested for non-acceptance. Verification. Ninth Plea. That before the said bill had become due, or had been presented for payment, and after the indorsement thereof to Willis & Co., and before the indorsement to Benbaw, the bill was presented to G-rayhurst & Co. for their acceptance, and was refused acceptance; that the bill was thereupon, arid before the indorsement to Benbaw, duly protested for non-acceptance, whereof the defendant afterwards, and before the indorsement to Benbow, had notice, whereby an action then accrued to Willis & Co. to recover the amount of the bill from the defendant; that Benbow, as well as Willis & Co., at the time of the indorsement to Benbow, had notice that the billihad been so presented for and refused acceptance, and protested for non-acceptance ; and that the cause of action in this plea mentioned did not accrue to Willis & Co. at any time within six years, and before the commencement of this suit. Verification. -To the seventh plea, there was a general demurrer; the ground of demurrer stated was, that it waa no answer to an action for non-payment of a bill of exchange to shew that it was dishonoured when presented for acceptance, [508] and that the party taking it, and suing on it, had notice of such dishonour. Joinder in demurrer. To the eighth plea, the plaintiff replied de injuria. To the ninth plea he demurred specially : the causes assigned were, that the cause of action was for non-payment of the bill, whereas the plea answered a cause of action for non-acceptance; that there is ati implied promise on the part of the drawer and indorsers of a bill of exchange, that it shall be paid as well as accepted; that it was the duty of the drawer and indorsers, on notice...
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