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THAM

V.

GROVES.

1826. rupt should issue, that the plaintiff should resume his HICKENBO- Possession. By another deed, Mr. Hickenbotham demised the furniture to Hodgson, who was to be at liberty to purchase it on certain terms set forth in the deed; and this deed also contains a clause that the plaintiff shall resume the possession of the furniture, if Hodgson should commit any act of bankruptcy, on which a commission should issue. But those were private contracts between these parties, and being unknown to the world, they will not help the plaintiff, if you think that these goods were in the order and disposition of the bankrupt. For two years the bankrupt lives in the house as the owner of it, his name is put up as the master of it, and he acts as such. It is true, that he told one of his servants that he had it as a ready furnished house, and also that many customers knew that, but many did not. But although the customers of the house might be aware of the fact, it does not follow that the world at large knew it; and those persons who did know it were all debtors of the house, and not creditors; and three or four of Hodgson's creditors prove that they gave credit to him as the owner of the property. The case cited was that of a house, which was a private dwelling; and what is most important, it was found as a fact, that the real ownership of the property was public and notorious. If that was known, nobody could be deceived, which is most material. When the first commission was superseded, there seems to have been nothing to prevent the plaintiff from claiming the goods, unless he felt that there was a difficulty about the reputed ownership; but instead of doing that, the plaintiff himself takes out a second commission against Hodgson, and under a warrant granted by the commissioners under that commission, he gets possession of the goods. This is a strong fact. Why should he have recourse to process under a second commission, if he were not conscious that he had put himself in such a situation as to let Hodgson appear as owner of the goods. This, however, is not conclusive, but is a strong fact for your consideration. But if you

think the reputed ownership made out, the plaintiff is still entitled to damages for the breaking of the house.

Verdict for the plaintiff, damages 40s. for the break-
ing of the house; and the Jury found that
Hodgson was the reputed owner of the goods.

Scarlett, F. Pollock, Brougham, and Law, for the plaintiff. Gurney, Denman, C. J., Curwood, Campbell, E. Lawes, and Alexander, for the respective defendants.

[Attornies-Pope, and Walls.]

In the case of Muller, Assignee of Meek, v. Moss, 1 M. & S. 335, there was an agreement between the bankrupt and the defendant, by which the bankrupt agreed, on payment of a certain sum, to convey to the defendant a dwelling house, and to deliver possession of all the household furniture and stock; and that after formal possession should be delivered to the defendant, the bankrupt should be allowed to remain in

possession for three months with-
out paying rent. This agreement
was notorious in the neighbourhood,
and on the exchange at Liverpool,
on the day after it took place. The
money was paid by the defendant,
and a formal delivery made to
him, and the bankrupt left in pos-
session according to the agree-
ment. The bankruptcy occurred
during the three months; and it
was held, that this was not a re-
puted ownership in the bankrupt.

1826.

HICKENBO

THAM

v.

GROVES.

BEFORE MR. JUSTICE LITTLEDALE.

(Who sat for the Lord Chief Justice.)

FARQUHAR and Others v. SOUTHEY and Others. ASSUMPSIT by the plaintiffs as indorsees of two bills of exchange, drawn by a person named Leader, and accepted by the defendants. The bills were each for 5007. one of them was dated June 3d, 1822, and payable three

Dec. 16th.

An acceptor of

a bill is not dis

charged by the bill not being

presented for

payment for

three or four years after it becomes due,

He is only discharged by payment of the bill, or by a distinct and direct agreement by the holder to discharge him.

1826.

FARQUHAR

v.

SOUTHEY.

months after date; the other was dated June 16th, 1823, and payable at four months after date.

It appeared that Leader, the drawer of the bills, and the defendants had both kept accounts at the house of Messrs. Marsh & Co. as their bankers, up to the time when that house stopped payment, in the year 1824, when the defendants and Leader each opened an account with the plaintiffs. Leader generally owed the plaintiffs money, as they discounted bills for him, but sometimes his cash balance was as large as 10007.; Leader paid these bills to the plaintiffs, who placed the amount to his credit, and charged him interest; but they did not call on the defendants, as acceptors, to pay them, till the month of May, 1826.

The defence was, that these were accommodation bills, and that the plaintiffs had discharged the acceptor by taking interest from the drawer, and by letting so long a time elapse before they called on the defendants; and the case of Ellis v. Galindo (a), was relied on.

The witness who was called to prove that they were accommodation bills, stated that there were dealings in trade between Leader and the defendants; and that sometimes they drew on him, and he accepted for their convenience, and sometimes they did so for his.

F. Pollock, in reply, contended on the authority of the

(a) Doug. 250 a. In this case the question was, whether something indorsed on the back of the bill ought not to have been left to the Jury, for them to say whether there had been an agreement to discharge the acceptor. In Anderson v. Cleveland, 13 East, 430 n. Lord Mansfield said, the acceptor of a bill, or maker of a note, always remains liable; the acceptance is proof of his having

assets in his hands, and he ought never to part with them, unless he be sure that the bill is paid by the drawer. And in the case of Adams v. Gregg, 2 Stark. 533, Abbott, C. J. intimated, that he thought a declaration made by A. (who had taken up the bill for the drawer,) that the acceptor should not be troubled, was not sufficient, in point of law, to discharge him.

cases of Dingwall v. Dunster (a), and Atwood v. Crowdie (b), that neither lapse of time, nor receiving interest from the drawer, would discharge an acceptor; and that nothing short of an express agreement that the defendants should be discharged from liability on the bills, would avail the defendants as a defence to the present action.

LITTLEDALE, J.-I think that these must be taken to be accommodation bills; but that there was cross paper passing between the defendants and Leader. These bills, it appears, get into the hands of the plaintiffs, who are bankers, and are discounted by them for Leader. Now these bills, though given for his accommodation, are binding on the ac ceptors; and unless there be something to discharge the acceptor, he is liable. The liability of an acceptor is dif ferent from that of a drawer or indorser. The acceptor is liable at all events, and is not discharged unless the bill be paid, or there be an express agreement to discharge him, or a distinct renunciation of his liability. The defendants

(a) Doug. 235 a. In this case it was held that no laches of the holder, and no forbearance to call on the acceptor for the amount of the bill, will discharge him.

(b) 1 Stark. N. P. C. 483. In this case the bills were drawn by Kent & Co., and accepted by the defendants, payable to Mattingley & Co., and by them indorsed to the plaintiffs. Mattingley & Co. who were country bankers, owed money to the plaintiffs, who were London bankers, and, being pressed by the plaintiffs, sent up the bills in question for account. These bills were accepted for the accommodation of Mattingley & Co.; and before the time when they became due, the cash balance at the plaintiffs' turned in favour of Mattingley & Co.

VOL. II.

but the bills were not withdrawn;
and the balance subsequently turn-
ed much against Mattingley & Co.,
and they failed. Scarlett, for the
defendants, contended, that these
bills were only sent to cover an
existing balance which had been
satisfied just before these bills be-
came due. But Lord Ellenborough
held, that, as the bills were sent on
account, that meant the then float-
ing account; and his Lordship
said, "It is clear that there was a
period when the plaintiffs' lien
ceased to attach, and when the
bills might have been redeemed;
but they were not reclaimed; and
by allowing them to remain in the
hands of the plaintiffs the lien re-
vested, when, upon fresh advances
made, the balance turned in fa
vour of the plaintiffs.

L L

1826.

FARQUHAR

V.

SOUTHEY.

1826.

FARQUHAR

V.

SOUTHEY.

put the case on two grounds: First, that the plaintiffs took interest on the bills from Leader. This is used to shew that they had discharged the acceptor; and, secondly, that there was no claim on the defendants till May last; and from this you (the Jury) are asked to infer that there was an agreement to discharge the defendants. I think that the charging interest by a man's own banker, who had advanced money on securities sent to him to be discounted, proves little as between indorsee and acceptor on the question whether the indorsee meant to discharge the acceptor; and as to the second point, that the plaintiffs did not present the bills to the defendants till May last, it is not at all required that they should do so: however, from this you are asked to infer an agreement by the plaintiffs to discharge the defendants. But why should they discharge the defendants? They had no sort of inducement to do so; and unless you (the Jury) think that there was a direct agreement by the plaintiffs to discharge the defendants, the plaintiffs are entitled to re

cover.

Verdict for the plaintiffs - Damages, 10007.

F. Pollock and Henderson, for the plaintiffs.
Scarlett and Parke, for the defendants.

[Attornies-Macdougall & Co., and Rosser & J.]

BEFORE LORD CHIEF JUSTICE ABBOTT.

Dec. 18th.

REX v. TUCKER.

If A. be in- PERJURY.-The indictment stated, that William Halry, in swearing lett, on, &c., did exhibit his bill of complaint in the Court

dicted for perju

that he did not

enter into a verbal agreement with B. and C. for them to become joint dealers and copartners in the trade or business of druggists; and it appear that in fact B. was a druggist, keeping a shop with which A. had nothing to do; but that A. and C., being sworn brokers, could not trade, and therefore made speculations in drugs in B.'s name with his consent, he agreeing to divide profits and loss with A. and C., this will not support the indictment, as this is not the sort of partnership denied by B. upon oath,

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