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![handle is hein.slavery/ssactsengr0062 and id is 1 raw text is: WALKER V. MAITLAND
defendant, who were both parties to the bill. Now, in that character, if no bond had
been given, it is clear they would have been liable, in case the formalities stated in
the pleas had been complied with; and if the only object of the bond had been to
give the plaintiff a security of a higher nature, and to make the party liable in case
those formalities had been complied with, I think we should have found it so expressed
in the condition ; and not finding that, I therefore conclude that the parties meant to
engage to pay the bill at all events, as sureties for the acceptor, in case he did not
pay it; and if so, it is clear that the pleas are insufficient, and, therefore, there must
be judgment for the plaintiff.
Bayley J. I have had considerable doubts in the course of this argument; but my
mind has at length come to the conclusion that the pleas are bad, and that the plaintiff
is, therefore, entitled to recover. In this case, Tufnell and King were the drawer
and indorser of the bill of exchange ; and the condition is, that if the bill be not paid
when due, for the payment of which by the acceptor they have become sureties, they
would pay, or cause to be paid, the bill within one month after it became due, and
was not paid by the acceptor. It is, therefore, conditioned for their own acts, in case
of a given event, namely, the non-payment by the acceptor. Now, the acceptor has
not paid the bill in money, nor have Tufnell and King done so. The bond, therefore,
is [170] forfeited, unless the neglect to present the bill to the acceptor, and the want
of notice to the other parties, be considered by the Court as an equivalent to actual
payment. Now, I think this was not the intention of the parties to this bond. If
no bond had been given, laches on the part of the holder would have exonerated
Tufnell and the defendant; and one object of the bond might, therefore, have been
to exonerate the plaintiff from such a risk. It was very easy for Tufnell and King
to ascertain, by enquiry, whether Tyrell had paid the bill; and I think the fair
meaning of the words in this condition was, to throw upon them this obligation.
Holroyd J. I think that the pleas are bad. By the condition of the bond, it appears
that it was given by persons who were parties to the original instrument, and who
would have been answerable, independently of the bond, in case the custom of merchants
had been properly acted upon, namely, by a due presentment and notice of dishonour.
Under these circumstances, the bond was executed; and the only event specified in
the condition, upon which the money was to be paid by Tufnell and the defendant,
is, in case the money is not paid by the acceptor, according to the tenor of the bill.
Now, non-payment by the acceptor, even without presentment, is non-payment,
according to the tenor of the bill; for a presentment is not a material ingredient to
entitle a party to maintain an action against the acceptor. He may, perhaps, plead
as a defence, that he was always ready to pay the bill, and that as soon as he knew
who was the holder of it, he tendered the money ; but a plea, that the bill was not
presented to him, would be no discharge. Here, Tufnell and the defendant, in [171]
case no bond had been executed, would have been discharged by the want of notice
of dishonour. The condition, however, is totally silent as to notice, as the only event
there mentioned is non-payment by the acceptor. I am of opinion, that here there
was no payment by the acceptor, either in fact or in law; and, therefore, that the
defendant still remains liable on the bond.
Best J. concurred.
Judgment for the plaintiff.
WALKER against MAITLAND. Saturday, November 3d, 1821. The under-writers on
a policy of insurance are liable for a loss arising immediately from a peril of the
sea, but remotely from the negligence of the master and mariners.
A rule nisi having been obtained, in Hilary term last, for setting aside the award
in this case, the Court, on cause being shewn, ordered the award to be stated in a case
for their opinion. The material facts stated on the face of the award were the following :
The plaintiff, being owner of the ship Britannia, by a charter-party, bearing date
the 5th day of October, 1818, chartered her to James Wildman to proceed to the
West Indies, there to load a cargo of colonial produce, and to bring home the same
to this country. By the usage of trade in that behalf, the risk of bringing colonial
produce in the West Indies from shore to the ships in which the same is to be conveyed
home to England, is borne by the owners of ships, unless specifically agreed to the
contrary. The plaintiff, to indemnify himself against such risk, with respect to loading
1155
5 B. & ALD. 170.](ViewImageLocal?handle=hein.slavery/ssactsengr0062&div=1&collection=&method=preview&ext=.png&size=3)