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![handle is hein.slavery/ssactsengr0567 and id is 1 raw text is: 152 WILKES V. JACKS PEAXE 9.
[267] Thursday, December 19th.
WILKES AND OTHERS V. JACKS.
(It is no excuse for not giving notice to the indorsee of a bill of exchange that
the acceptor had no effects.)
Assumpsit on a bill of exchange drawn by Vaughan on Eustace and Holland,
and indorsed by the defendant.
The bill was dishonoured by Eustace and Holland, but no notice of such dis-
honour given to the defendant. The plaintiffs' counsel attempted to cure this
-negligence by shewing that Vaughan [268] the drawer had no effects in the hands
of Eustace and Holland.
But Lord Kenyon was of opinion that this circumstance would not avail the
plaintiffs. That rule only extended to actions brought against the drawer, the
indorser was in all cases entitled to notice, for he had no concern with the accounts
between the drawer and acceptor (a).
The plaintiff then proved a letter of the defendant's acknowledging the debt,
and promising to pay it, on which evidence he recovered a verdict.
Friday, December 20th.
GRANT V. JACKSON, BART. AND OTHERS.
(An admission in an answer to a bill filed by other creditors against the defendant
may be read as evidence against him. If several are sued and one plead his
bankruptcy, upon which the plaintiff enters a nolle prosequi as to him, he may
still give evidence of the admissions of such defendant made before he obtained
a certificate. Costs paid to a defendant in equity ought to be allowed to the
plaintiff in his costs at law. Comme semble.)
This action was brought on a bill of exchange for £100, drawn in the year 1768,
by Hesenclever and Co. on the behalf of the American Company, of which company
it was admitted the defendants were surviving partners. Hesenclever was also a
defendant, but having pleaded his discharge under [269] a commission of bankruptcy,
the plaintiff had entered a nolle prosequi as to him.
as a mixed case of loan and remittance. Had the banker told down the money, or
tendered bank notes, and had A. put them into his pocket, or swept them into his
hat; and then said,- But I want to send money to London, will you take part of
the money back and give me bills ? and the banker had accordingly done so and
given these bills, I cannot see that there would have been any colour for calling it
an usurious transaction. It was proved by the witness that the banker asked,
How will you have the money ? which short question includes, whether he
would have it in cash or in cash notes, or in account, or whether he had any desire
to have part of it remitted for him to London.-In the concluding part of his
judgment his Lordship added, The transaction is always before a jury. It is for
them to say whether it is a device, or a fair agreement on good consideration;
whether if there be any overplus after the five per cent. taken for discount, it is
properly referrible to some lawful collateral consideration or not ; if it be so referrible
we should do the grossest injustice, if instead of distributing the transaction into the
parts of which it is composed, we were by a strict literal construction upon evidence
to pronounce the contract to be what in substance it is not, a contract for mere
loan and forbearance.-On the whole of the case, I see no ground sufficient to say
that the verdict is wrong. I thought the transaction so far doubtful at the trial
that I wished the jury to consider whether the giving these bills on London was
not a mere cover for an usurious contract. I said, that if the bills were drawn at a
longer date than is usual in the course of business, it ought to be construed as device;
had they determined the other way I should not have quarrelled with their verdict;
but I think there is no sufficient reason for granting a new trial. In Parr v. Eliason,
1 East, 90, an agreement on discounting a bill that the party should take in part
-payment another bill which had time to run as cash, although the full discount was
taken, was held to be usurious. See also Hutchinson v. Piper, 4 Taunt. 810.
(a) V. Brown v. Maffey, 15 East, 215, acc. So though the indorser is acquainted
with the insolvency of the drawer and acceptor, he is nevertheless entitled to due
notice of dishonour. Esdaile v. Sowerby, 11 East, 114, and the cases cited in note (a),
p. 116.](ViewImageLocal?handle=hein.slavery/ssactsengr0567&div=1&collection=&method=preview&ext=.png&size=3)