Exch. of Pleas, and that the party taking it, and suing on it, had notice of

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such dishonour.-Joinder in demurrer.

To the eighth plea, the plaintiff replied de injuriâ. 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 an 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 of the non-acceptance, to enable the drawer to pay the bill, from the neglect to do which a fresh promise arose; that it was no answer to an action for such breach, to shew that there had been a previous breach of such promise; that the plaintiffs might waive the first breach, and bring an action on the second breach; that the remedy for the first breach having expired, was no answer to an action on the second breach; that the Statute of Limitations ran from the time when the cause of action mentioned in the declaration accrued, and not before; and that the plea was double.-Joinder in demurrer.

There was also a special demurrer to the replication, assigning for causes, that the traverse de injuriâ was inadmissible, because the eighth plea relied on matter of discharge by laches, and shewed a release to the defendant by operation of law, and did not consist of matter of excuse. -Joinder in demurrer.

The case was argued at the sittings after last Michaelmas Term (Nov. 26 and 27) by

Crompton, for the plaintiffs.-The pleas demurred to afford no answer to this action. The contract of the drawer of a bill of exchange is, that the drawee not only shall accept the bill, but shall pay it at maturity; and therefore a cause of action accrues to the holder on its

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non-payment when due. No doubt the drawer may be Exch. of Pleas, sued upon the breach of his contract by the non-acceptance by the drawee; Mitford v. Mayor (a); but no case can be cited to shew that he must be so sued, and that the holder may not take advantage of the subsequent breach by non-payment. Dunn v. O'Keefe (b) is an authority to shew, that a drawer who has had no notice of the non-acceptance may yet be sued by an indorsee for value who had no knowledge of the dishonour. But the argument for the defendant must be, that a right of action having once vested by the non-acceptance, the Statute of Limitations runs from that period, even against an innocent indorsee. The rule of law which compels a party who takes a qualified acceptance to give notice of that fact to the drawer, (Sebag v. Abitbol (c); Bayley on Bills, 253, 5th edit.), clearly implies that he is to have a right of action against the drawer on non-payment of the bill; for such notice can only be required for the purpose of preserving a right to sue on the non-payment. [Parke, B.-The reason of the notice in that case is, that, inasmuch as the acceptance is not in the form which had been stipulated for by the drawer, he is entitled to be informed of that fact; and the notice may constitute some evidence of his having assented to the acceptance in a qualified form. Alderson, B.-Why is notice given of non-acceptance? because the contract is then broken; then if so, can it be broken again?] The breach of contract by non-acceptance may be waived, and the drawer may be sued on the non-payment. Marius, in his "Advice concerning Bills of Exchange," p. 19, (4th edit.), says, "If a bill so made payable [after sight] be omitted to be presently upon refusal protested for non-acceptance, all that time which shall run out between the private presenting of the bill and protesting thereof is lost time, and is not to be ac

(a) 1 Dougl. 55. (b) 5 M. & Selw. 282; S. C. in error, 6 Taunt. 305. (c) 4 M. & Selw. 466.

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Exch. of Pleas, counted as part of the number of days mentioned in the bill of exchange, except the party on whom the bill was WHITEHEAD drawn do, of his own free will, acknowledge to have seen the bill from the first day it was privately presented to him." And after saying that if a bill is refused acceptance, it shall be protested for non-acceptance, and thereupon the drawer and indorser must give security for payment, with damages and costs, if it be not paid by him to whom directed, at the time limited in the bill; he adds, (p. 28), "But if a protest be returned for want of payment, and if you have had security already given you on the protest for non-acceptance, or for want of better security, then, upon receipt of your protest for non-payment, you may only acquaint the drawer (or party that took up the money) therewith, and tarry out the same proportion of time at which the bill was made payable, to be accounted from the time it fell due, before you demand your principal money, with the re-exchange and charges, of the party that drew the bill, or his surety; who, according to the law of merchants, are bound, jointly and severally, to repay the same upon the protest for non-payment." These passages are adopted as law into Comyns' Digest, tit. "Merchant," (F. 8), (F. 9), and shew clearly that the holder has a right to retain a bill after acceptance has been refused, and to sue the drawer on non-payment at maturity. So also, where a bill has been accepted suprà protest, for the honour of the drawer, and has been presented for payment to the drawee, and to the acceptor for honour, the drawer may be sued for the non-payment: Hoare v. Cazenove (a); Williams v. Germaine (b). are precedents in 1 Wentw. 302, and 2 Chitty on Pleading, 100, of declarations by the first indorsee against the first indorser, after protest for non-acceptance, and also for non-payment. See also another precedent, similar in

(a) 16 East, 391.

There

(b) 7 B. & Cr. 468; 1 Man. & R. 394.

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principle, in 1 Wentw. 315. And in Auriol v. Thomas (a), Exch. of Pleas, the interest was calculated from the notice of non-payment. Secondly, the replication de injuriâ is good. The sub- WHITEHEAD stance of the 8th plea is, that the drawer was discharged by the neglect of a prior indorser to give him notice of the non-acceptance or protest. That, as against the plaintiff, a subsequent party to the bill, is mere matter of excuse for the non-performance of the defendant's contract by nonpayment. The case is expressly within the authority of Humphreys v. O'Connell (b), where de injuriâ was held a good replication to a plea by the acceptor that the bill was accepted for a gaming debt, and that the plaintiff, before the indorsement to him, had notice of that fact.

Bovill, contrà.-The general rule on this subject, as laid down in all the text-books of authority, is, that although the holder of a bill of exchange is not bound to present it for acceptance, yet if he thinks fit to do so, and acceptance is refused, he is bound to give notice of that fact to all the parties to the bill to whom he desires to resort for payment: Molloy, de Jure Maritimo, b. 2, c. 10; Chitty on Bills, 272, (9th ed.); Bayley on Bills, 252, (5th ed.). And after presentment for acceptance and refusal, a right of action vests immediately, and the holder need not again present the bill for acceptance; Hickling v. Hardey (c); or if he does so, and acceptance is again refused, he is not bound, if payment be also afterwards refused, to protest it for non-payment; De la Torre v. Barclay (d). For by the refusal of acceptance he acquires a complete cause of action against the drawer and the indorsers: Starke v. Cheeseman (e); Mitford v. Mayor. It is at that period, accordingly, that the liabilities of all the parties to the bill are to be determined; and all who take the bill subse

(a) 2 T. R. 52.

(b) 7 M. & W. 370.

(c) 7 Taunt. 312; 1 Moore, 61.

(d) 1 Stark. Rep. 7.

(e) 1 Ld. Raym. 538; 1 Salk. 128; Carth. 509.

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Exch. of Pleas, quently to the non-acceptance and protest, take it with all its infirmities; Crossley v. Ham (a); unless, indeed, in the case of a subsequent holder for value who takes it without notice of the dishonour: here, however, it is admitted by the demurrer that the bankrupt had notice of the non-acceptance and protest before the indorsement to him, and he therefore stands in the same situation as the previous indorsees. It follows from these principles of law, that another new cause of action cannot afterwards arise on the non-payment of the bill; if it could, then a recovery in an action brought on the non-acceptance would be no bar to a subsequent action against the same party on the non-payment. The drawing of a bill of exchange is the creation of a debt; it is evidence of an existing debt from the drawer to the payee: Starke v. Cheeseman; Macarty v. Barrow (b); Bishop v. Young (c); Workman v. Leake (d): and the contract of the drawer is, that another person, the drawee, shall take upon himself payment of such his debt, according to the terms of the bill; and the moment the drawee commits an unqualified breach of that engagement, the debt becomes payable immediately, and the right of action against the drawer is vested. The plaintiffs must contend for the existence of two concurrent causes of action against the same party arising out of the same contract, which is altogether repugnant to legal principles.

Secondly, the replication de injuriâ is bad. The eighth plea amounts to a discharge of the defendant's promise, and not merely to an excuse for the non-performance of it. It shews, in truth, that no implied promise to pay on the part of the drawer ever arose. And the rule is, that whereever the plea amounts to a denial or avoidance of the contract declared on, the replication de injuriâ is inapplicable:

(a) 13 East, 498.

(b) 2 Stra. 949; S. C. cited 3 Wils. 16.

(c) 2 Bos. & P. 83.

(d) Cowp. 22.