case henry PARMINTER plaintiff thomas simons defendant in error d February  Mews dig two see bill of exchange Act Vict c sacred scripture see also bill of  exchange Act S and bank of England v Vagliano a c per Lord Herschell at p the  drawer of a bill of exchange accept general by the drawee and protest by the  payee for non payment and afterward pay by the drawer may in his own name and  without any previous assignment or endorsement from the payee maintain a  special action on the case against the acceptor every bill of exchange import  a command to the drawee to pay and his acceptance be not only a admission of  money or effect in his hand sufficient to pay but be a undertake by the  acceptor as well with respect to the drawee as the payee to pay the bill  strange Thomas simons the plaintiff in the original cause and defendant in  error for many year before and in the year transact business with the  plaintiff par brown er p minter and his partner one Laurence barrow who be  merchant and then reside at bilboa in Spain and during the course of their  deal several foreign bill of exchange have be at different time negotiate  between they upon which and other account they become indebt to the defendant  in a considerable sum of money in June and September the defendant in order to  receive satisfaction for part of his debt draw two foreign bill of exchange  accord to the custom of merchant upon Parminter and barrow at bilboa the first  for dollar Payable at usance to the order of John evangelist clear and   at  Madrid and the other for dollar Payable at usance to the order of Mr Manuel de  la quintan which bill be afterward and before they become Payable present to  and duly accept accord to the custom of merchant by Parminter and barrow at  bilboa but they afterward refuse payment of these bill they be duly protest in  the usual form by clear and quintan respective for non payment and the bill  and protest be send back by clear and quintan to England and the money demand  of the defendant as the drawer which money he be oblige to pay he accord do  pay to clear and quintan respective who have not endorse the bill or either of  they together with the interest exchange reexchange cost and damage on both  the bill which amount to between forty and fifty pound in easter term the  defendant for the recovery of pound due to he for what he have so pay to clear  and quintan on the brown say bill of exchange as also for what be due to he on  the balance of his general account with Parminter and barrow sue out a special  original writ in a plea of trespass on the case against they returnable in the  court of king bench on the morrow of the holy Trinity then next follow upon  the return of the original writ he sue out a capias ad to answer against both  Parminter and barrow returnable the last return of the same Trinity term  Parminter be then in England be arrest and put in bail but as this be a joint  action against Parminter and barrow as partner in trade the defendant can not  declare against Parminter alone and barrow be then in Spain he be oblige to  award a alias and pluries capias against barrow and for want of his appearance  proceed to outlawry against he and he be accord outlaw the exigent be  returnable the last return of Hilary term and in the same term judgement of  outlawry be enter up against he the defendant in error therefore in the same  Hilary term file his declaration against Parminter and thereby after state the  outlawry against barrow declare that the say Henry Parminter and Laurence  barrow be indebt to he in pound for work and labour do and in pound for money  lie out expend and pay and in pound for money lend and in pound for money have  and receive by Parminter and barrow for the use of the say simons the  declaration then proceed as follow videlicet and whereas the say Thomas simons  on the that day of June in the year of our Lord at London aforesaid in the  parish and ware aforesaid accord to the usage and custom of merchant make his  bill of exchange in write his own hand be thereunto subscribe bear date the  same day and year and direct the say bill to the say Henry and Laurence then  be reside and use commerce at bilboa in foreign part to wit in Spain and  thereby request the say Henry and Laurence at usance to pay that his first  bill of exchange at Madrid in Spain aforesaid to the order of John evangelist  clear and company dollar four thousand in gold or silver as to the exchange  know to they that day value in account with the say gentleman as by advice  which say bill of exchange afterward to wit on the that day of August in the  year aforesaid at bilboa aforesaid the say Henry and Laurence who etcetera  accept accord to the usage and custom of merchant and the say Thomas simons in  fact say that a usance between London aforesaid and Madrid in foreign part to  wit in Spain aforesaid be and from time whereof the memory of man be not to  the contrary have be two month and that the say Henry and Laurence who  etcetera do not nor do either of they pay to the say John evangelist clear and  company the say money contain in the say bill of exchange nor any part thereof  but refuse and neglect to pay the same whereupon afterward to wit on the saint  day of September in the same year the say John brown evangelist clear and  company have make no order concern the payment thereof the say bill of  exchange at the request brown er p of the say John evangelist clear and  company be protest at Madrid aforesaid accord to the usage and custom of  merchant upon the nonpayment of the say content thereof by reason whereof he  the say Thomas simons accord to the usage and custom of merchant become liable  to pay to the say John evangelist clear and company the say content of the say  bill of exchange together with the interest exchange and reexchange cost and  damage which shall accrue from the delay and retardment of the payment thereof  and be so liable he the say Thomas simons afterward to wit on the saint day of  January in the year aforesaid at London aforesaid in the parish and ware  aforesaid pay to the say John evangelist clear and company the say content of  the say bill of exchange and the sum of pound S of lawful money of great  Britain for the interest exchange and reexchange cost and damage which do  accrue from the delay and retardment of the payment thereof of which say  premise the say Henry and Laurence who etcetera afterward to wit on the that  day of January in the same year at London aforesaid in the parish and ware  aforesaid have notice and by reason of the premise and by force of the usage  and custom of merchant they the say Henry and Laurence who etcetera become  liable to pay to the say Thomas simons the say content of the say bill of  exchange and the say sum of pound S so pay by the say Thomas simons to the say  John evangelist clear and company as aforesaid and be so liable they the say  Henry and Laurence who etcetera in consideration thereof afterward to wit on  the same day and year at London aforesaid in the parish and ware aforesaid  take upon themselves and then and there faithful promise the say Thomas simons  that they the say Henry and Laurence who etcetera will pay to the say Thomas  simons the say content of the say bill of exchange and the say sum of pound S  so pay by the say Thomas simons to the say John evangelist clear and company  as aforesaid when they shall be thereunto afterward request the next count be  upon the bill of exchange make Payable to Mr Manuel de la quintan dollar one  thousand five hundred and the plaintiff simons lie his damage at pound to this  declaration Parminter plead by leave of the court two plead in bar saint that  there be not any record of the outlawry of the say Laurence barrow upon the  say writ in the plea aforesaid as allege in the say declaration dly that  Laurence barrow in the say declaration name before and at the time of obtain  of the original writ on which the outlawry by the say declaration be suppose  to be obtain and have against the say Laurence barrow and also before and at  the time of the award the writ of exigent and continual from that time  hitherto do dwell and be commorant and be then dwell and commorant in part  beyond the sea and out of the brown limit of this realm to wit at bilboa in  the kingdom of Spain in the say declaration mention and that the county of  Cornwall in this kingdom be and be the shire next to the place where the say  Laurence barrow at the time of the say writ of exigent award have his dwell  and that not any writ of proclamation thereon be award make or direct to the  sheriff of the say county of Cornwall in Trinity term the defendant in error  after hay by leave of the court set forth the original writ in haec word reply  issuably to Parminters first plea and demurrer to his second plea whereupon  Parminter immediate join in demurrer and likewise demurrer to the plaintiff  replication to his first plea and show for cause of demurrer that it appear by  the say replication that the writ upon which it be suppose the say Laurence be  outlaw be not the same writ upon which the say Thomas simons have in form  aforesaid declare against the say Henry but another and variant from the  original writ recite in the say declaration of the say Thomas simons and for  this that the say replication be double uncertain and want form and upon this  the plaintiff join in demurrer the cause be from thence continue till Hilary  term when the demurrer come on to be argue before the court of king bench and  be afterward argue a second time in Trinity term when the court give judgement  for the plaintiff simons on both demurrer in Michaelmas term follow a writ of  inquiry of damage be execute by rule of court before the Lord chief justice  lee when the inquest find damage general for the plaintiff pound the whole  damage lie in his declaration brown er p Parminter in that same term move in  arrest of the plaintiff judgement and make three objection I that there be no  such custom of merchant as be set out upon the plaintiff declaration and that  the acceptor of a bill of exchange afterward protest for non payment and pay  to the payee by the drawer with the interest exchange reexchange cost and  damage be not by law liable to the drawer without a previous assignment or  endorsement of such bill to he by the payee two that the demurrer to the  plaintiff S replication after issue join be a discontinuance of the suit but  it be the defendant own demurrer for the defendant have plead that there be no  such record of barrow outlawry as the plaintiff have allege the plaintiff  reply there be such a record and thereupon issue be join III that the  declaration have not set forth the value of the dollar mention in the six  count nor the value of the dollar mention in the seven count the court after  solemn argument and time take to consider in Hilary term be unanimous of  opinion as to the first objection that the plaintiff action be well bring that  by the custom of merchant the defendant be bind by their acceptance and that a  endorsement by the payee be not necessary and the rather for that in the  present case the plaintiff brown have make title another way videlicet by  payment of the money and therefore give judgement for the plaintiff in the  action as to the other two objection the court be of opinion they be of no  weight to reverse this judgement the defendant Parminter bring a writ of error  in parliament assign the general error but no case be make to support it nor  do any counsel appear for he upon the day appoint for argument however on  behalf of the defendant in error it be say h bank r draper that the only  considerable question in point of law for as to the justice and equity of the  case there can be none be whether the drawer of a bill of exchange accept  general by the drawee protest by the payee for non payment and afterward pay  by the drawer can in his own name and without a previous assignment or  endorsement from the payee maintain a special action on the case against the  acceptor and receive the money so pay and it be insist that by the rule of law  and the custom of merchant the defendant in error can maintain such action and  that the proceed therein be right and agreeable to the principle of law and  justice for the plaintiff in error have not controvert the fact of the custom  as set forth in the declaration but have admit that if the defendant have take  a assignment or endorsement of the two bill of exchange from the two payees  thereof he may have maintain a action in his own name the acceptance of a bill  of exchange amount to a promise in law to pay and this action of assumpsit  against the acceptor be find upon good consideration namely of his have effect  of the drawer in his hand at the time of his acceptance but a general  acceptance as in the present case be a admission by the acceptor that he be  debtor to the drawer for so much money and that he have effect or money of the  drawer in his hand to answer the payment of such bill beside every bill of  exchange import a command to the drawee to pay and his acceptance be not only  a admission of effect or money in his hand sufficient to pay but it be a  undertake by the acceptor as well with respect to the drawer as the payee to  pay the bill and every undertaker be bind by law to perform his engagement it  be therefore hope that the judgement will be affirm with exemplary cost accord  after hear counsel for the defendant in error the plaintiff make default and  no counsel appear for he it be order and adjudge that the judgement give in  the court of king bench shall be affirm and that the record shall be remit to  the end execution may he have thereupon as if no such writ of error have be  bring into the house and it be further order that the plaintiff shall pay to  the defendant pound for his cost sustain by reason of bring the say writ of  error jour vol p brown er p