a second in

THIS was an action by the plaintiff, as the in- In an action by dorsee of a bill of exchange, against the de- dorsee, against fendant, as the drawer and indorser.

the drawer of

a bill of ex

order, proof

The bill was drawn upon one Stevenson, payable change, payin London, and purported to have been accepted able to his own by Stevenson, payable at Spooner and Atwood's; that the bill it had been indorsed by the defendant to Harrison, purported to and by Harrison to the plaintiff.

have been ac

cepted, when it

tiff, does not

The declaration contained four counts, the first was indorsed two counts alleged an acceptance by Stevenson. to the plainThe third count alleged an acceptance by Stevenson supersede the in London, and a presentment there, and that after necessity of due search and inquiry there, Stevenson could not actual acceptproving an be found. The fourth count alleged, that when the ance. bill was delivered to the plaintiff, it had a writing The plaintiff upon it, purporting to be the acceptance of Steven- in such case, son, and that he could not be found, of which the must either allege and prove defendant had notice, &c.

an actual acceptance, or

charge the drawer with having drawn the bill upon a non-existing person.

It

1817.

SMITH

บ.

It appeared that on the 8th of September, when the bill became due, it was presented at Spooner and Atwood's in London, and dishonoured. On the 9th, BELLAMY. notice of the dishonour was sent to the plaintiff's bankers at Pontefract, who received it on the 11th, and that the latter gave notice to the plaintiff, who resided at Nottingley, a few miles from Pontefract, on the 12th; and that notice was sent on the same day by the plaintiff to Stevenson, who lived at Hull, and also to Bellamy and Harrison. It appeared that when the bill was indorsed by Harrison, the acceptance, purporting to be that of Stevenson's, was upon the bill.

It was objected on the part of the defendant, that it was necessary to shew, either that Stevenson had accepted the bill, or that the bill bore the acceptance purporting to be his, when it came out of the hands of the defendant; and also, that a presentment in London was not sufficient.

Denman for the plaintiff contended, that there was evidence to go to the jury, upon which they might presume, that the bill came out of Bellamy's hands with Stevenson's acceptance upon it; and that a presentment in London was sufficient, since the bill was made payable in London by the drawer. At all events, the evidence supported the fourth count; and the defect, if there was one, was upon the record.

You must declare

Lord ELLENBOROUGH. - You either on the acceptance as a genuine one, in which

case you must prove a presentment to that person for payment, or you may charge the defendant with having drawn the bill on a non-existing person, whereby the drawer himself is liable, or having given the acceptor a name, it may be alleged, that due search has been made after him, and that no such person can be found; but there is no third mode of proceeding. In order to render the act of Stevenson available, it must first appear that he was the acceptor of the bill.

Plaintiff nonsuited.

Denman and Phillips for the plaintiff.

Scarlett and Richardson for the defendant.

1817.

SMITH

V.

BELLAMY.

ROBERTS and Others v. JACKSON and Others.

THIS

was an action of indebitatus assumpsit, for A broker who work and labour, &c.

procures a charter-party for a vessel to

Rio Janiero, where a gross

voyage out

The plaintiffs were ship-brokers, and the action was brought against the defendants, as the owners of the ship Quebec, for procuring a charter-party sum is to be for the ship, and for the expences of the charter- paid for the party. The plaintiffs claiming five per cent. upon and home, is the whole voyage out and home, and the defend- entitled on a ants contending that the plaintiffs were entitled quantum meto no more than five per cent. on the outward cent. on the voyage, and two and a half per cent. on the home-gross sum ward voyage.

although the

payment of

tingent on the

The plaintiffs, at the instance of the defendants, part be conhad procured the ship to be chartered to Mr. arrival of the

Bonelli, vessel home,

1817.

ROBERTS

V.

JACKSON

Bonelli, from London to Rio Janeiro and back. By the terms of the charter-party, the plaintiffs were to be and Others paid as follows; by a bill on Bonelli for 500l., drawn at the end of ten weeks from the clearance of the and Others. vessel outwards; by a bill for 300l. more, after the vessel had completed her delivery upon the outward voyage; and the remainder by bills, depending on the event of the vessel's return. On the whole, the freight amounted to the sum of 1600. Evidence was adduced to shew, that where ships are chartered to Mogadore, to the Mediterranean, to Quebec, America, the usual practice was, for the broker to charge five per cent. on the gross sum paid. There was no evidence as to the usual charge for a vessel chartered to Rio Janeiro. It was stated that the duty of the broker, in respect of the homeward cargo, was to report the ship inward, and to collect the freight; and that he was considered to be entitled, whether the ship was lost or

not.

Lord ELLENBOROUGH in summoning up to the jury said, the only question is, whether the plaintiffs are entitled to five per cent. on the gross sum of 1600%. for the whole of the voyage, or to two and a half only upon the homeward voyage. The allowance and custom of trade is the only medium, in the absence of a special contract, to ascertain what is due. It is to be lamented, that in such cases, no special contract is made, which would obviate all difficulty upon the subject. The question is, what the plaintiffs deserve for their trouble, and they deserve what is usually allowed in the trade.

1817.

ROBERTS

It has been stated in evidence, that when a gross sum is to be paid for the whole voyage, five per cent. on that sum is usually paid. My difficulty is, and Others whether the rule applies to this case, since part was payable after the arrival of the vessel home- and Others. ward, and therefore, the case involves the contin

gency of the arrival of the vessel.

The jury found a verdict for the plaintiff, giving five per cent. on the gross sum.

Gurney and Tindal for the plaintiff.

Marryatt for the defendant.

V.

JACKSON

KING'S BENCH.

SITTINGS AT WESTMINSTER.

NICKSON V. JEPSON.

THIS was an action for goods sold and delivered. The defence was, that the time of credit had not expired, at the time when the action was brought. It appeared, that when the goods were ordered, the plaintiff engaged to give three months credit; and agreed that if the defendant, at the end of that period, wished for further time, he would take his

months, if he wished for further time. Unless the vendee give such a of the first three months, the vendor may bring his action immediately. Q 2

bill