was, that a protest was necessary to entitle the holder to recover interest; and if a contrary opinion has since prevailed, it must have arisen from not adverting to the language of the act of parliament. ABBOTT C. J. If this question had been now agitated for the first time, I should have thought that there was great weight in the argument which has been addressed to the Court on the part of the defendant; but it appears to me to have been settled by the practice of above half a century. In Harris v. Benson, which arose in the 5th G. 2., it was held that the drawer of an inland bill of exchange was not chargeable with interest for want of a protest; and about two years subsequent to that decision, the Lord Chief Justice of the Common. Pleas held, in the case of Rea v. Meggott (a), that a parol acceptance of an inland bill was not binding: both these points depend upon the same clause in the statute 3 & 4 Anne, c. 9. Lord Hardwicke, however, shortly afterward, in the case of Lumley v. Palmer, over-ruled the latter of these decisions, and the Court of King's Bench, upon argument, supported him in that opinion; to which opinion the Lord Chief Justice of the Common Pleas afterwards acceded. From that time to the present, Lumley v. Palmer has been considered to be, and has been acted upon, as law. No question has since arisen on the other part of the clause relating to interest, till the late case in the Court of Common Pleas, which does not, in its circumstances, apply to the present. The practice, however, has been uniform; and I think we are bound by the decision of Lumley v. Palmer, and 1819. WINDLE against ANDREWS. that this case, which arises on the same section of the act, must be governed by the principle there established. This rule, therefore, must be discharged. BAYLEY J. The words of the statute are in favor of the argument for the plaintiff, but the invariable practice is to the contrary. There is no instance of a protest on an inland bill of exchange being given in evidence, and yet it is every day's practice to allow interest. Now that cannot have been done through ignorance of the law, but must have proceeded on the construction of this act of parliament. I think that the uniform practice is right. Before the 9th' and 10th W. 3. c. 17. no protest was ever made on an inland bill of exchange. By that statute the parties were only entitled to make one in the case of an accepted bill; and the 3d and 4th Anne extended that power to the case of a refusal to accept, and then enacted that no acceptance should be sufficient to charge any person, unless in writing, and that the party should not be liable, if the bill be accepted and not paid, to pay any costs, damages, or interest thereupon, unless a protest be made. Now that act gave the holder of the bill a remedy he did not possess before; and by the eighth. section it was provided that nothing therein contained should extend to discharge any existing remedy against the drawer, acceptor, or indorser of the bill. Subsequently to this act, Harris v. Benson was decided upon the question of allowance of interest; and Rea v. Meggott, in the 7 G. 2., upon the parol acceptance; both of which cases were founded upon the literal construction now sought to be given to the 5th section. The The latter of these cases was expressly over-ruled by Lord Hardwicke in Lumley v. Palmer, and from that time to the present the other question has never been raised; but the practice which previously prevailed of not allowing interest in such cases has been changed. I think, therefore, that by the latter cases the decision in Harris v. Benson was virtually over-ruled. The principle is this: the 8th section provides that the act shall not take away any remedy which the party had before. Now before that act, by the common law the defendant was liable for interest. Although, therefore, unless in compliance with the 3 & 4 Anne, the bill was protested, he is not entitled to any remedy under that statute, still the 8th section preserved to him his remedy at the common law, although no protest be made. HOLROYD J. I am of the same opinion. The decision of Lord Hardwicke in Lumley v. Palmer, together with the uniform practice, appears to me sufficient to determine this question. That case was decided after a contrary determination at nisi prius; and the Lord Chief Justice of the Common Pleas, who made that determination, is said to have acceded to the decision. I think, therefore, it would be binding upon us, even if we did not clearly see the principle upon which it proceeded. But I fully concur with my Brother Bayley, in the explanation which he has given of the principle upon which that case was determined. BEST J. It would introduce great inconvenience and uncertainty into mercantile transactions if we were to decide in favour of the defendant. The ob ject 1819. WINDLE against ANDREWS. 1819. WINDLE against ANDREWS. ject of the proviso in the 3 & 4 Anne was clearly this; Wednesday, June 16th. Trover will lie for the misdelivery of goods by a warehouseman, although such mis-delivery has occurred by mistake only. DEVEREUX and Another against BARCLAY and TROVER for oil, plea not guilty. At the trial at Edward Collinson." Soon after this transaction, Collinson, who had in the mean time purchased from Mr. Gamon, a broker, without the defendants' knowledge, some dark sperm. oil of inferior value, then also lying at the defendants' warehouse, sold this latter quantity, about three tuns, to a third person, and gave the following delivery order, dated 3d March, 1818:-"To Messrs. A. and H. Barclay. Please to deliver to Mr. Dale's carts my dark sperm. sperm. oil." The defendants, not being aware that the two parcels of oil both belonged to Collinson, by mistake, delivered the first parcel of oil to the second delivery order, the first delivery order not having been at that time presented to them by the plaintiffs. The plaintiffs, on the 28th March, presented their delivery order, and demanded the oil. Abbott C. J. being of opinion that this mis-delivery, by mistake, did not amount to a conversion, so as to entitle the plaintiffs to maintain trover, directed a nonsuit. A rule nisi for a new trial having been obtained, Scarlett and Manning now shewed cause. The mistake which has occurred is solely imputable to the negligence of the plaintiffs, in not sooner sending their delivery order to the defendants. The conversion must be an injurious act. A mere mis-delivery by mistake will not do. That was so considered by Buller J. in Syeds v. Hay. (a) The case of a warehouseman and a carrier stand on the same ground. Now for a misdelivery by a carrier, trover will not lie, although he may be liable for negligence. Ross v. Johnson. (b) Townsend v. Inglis. (c) Here, too, the property, even supposing a conversion, was not changed, as between Barclay and Devereux, at the time of the conversion, for although by the sale it was changed as between Devereux and Collinson, yet, till the defendants were made acquainted with that sale, the goods, as far as they were concerned, remained the property of Col linson. Gurney and Jones, contrà, were stopped by the Court. 1819. DEVEREUX against BARCLAY, (a) 4 T. R. 264. (b) 5 Burr. 2827. (c) Holt. N. P. 278. |