Page:The English Reports v1 1900.pdf/797

minter and his partner one Lawrence Barrow, who were merchants, and then resided at Bilboa in Spain; and during the course of their dealings, several foreign bills of exchange had been at different times, negotiated between them; upon which and other accounts, they became indebted to the defendant in a considerable sum of money.

In June and September 1739, the defendant, in order to receive satisfaction for part of his debt, drew two foreign bills of exchange, according to the custom of merchants, upon Parminter and Barrow, at Bilboa; the first for 4000 dollars, payable at usance, to the order of John Evangelist Cleer and Co. at Madrid; and the other for 1500 dollars, payable at usance, to the order of Mr. Manuel de la Quintana. Which bills were afterwards, and before they became payable, presented to and duly accepted, according to the custom of merchants, by Parminter and Barrow, at Bilboa.

But they afterwards refusing payment of these bills, they were duly protested in the usual form, by Cleer and Quintana respectively for non-payment. And the hills and protests were sent back by Cleer and Quintana to England, and the money demanded of the defendant as the drawer; which money he being obliged to pay, he accordingly did pay to Cleer and Quintana respectively, who had not indorsed the bills, or either of them; together with the interest, exchange, re-exchange, costs, and damages, on both the bills, which amounted to between forty and fifty pounds.

In Baster term 1743, the defendant, for the recovery of £1300, due to him, for what he had so paid to Cleer and Quintana on the [44] said bills of exchange, as also for what was due to him on the balance of his general account with Parminter and Barrow, sued out a special original writ, in a plea of trespass on the case, against them, returnable in the Court of King's Bench on the morrow of the Holy Trinity then next following.

Upon the return of the original writ, he sued out a capias ad respondendum, against both Parminter and Barrow, returnable the last return of the same Trinity term. Parminter, being then in England, was arrested, and put in bail; but as this was a joint action against Parminter and Barrow as partners in trade, the defendant could not declare against Parminter alone. And Barrow being then in Spain, he was obliged to award an alias and pluries capias against Barrow; and, for want of his appearance, proceeded to outlawry against him, and he was accordingly outlawed; the exigent being returnable the last return of Hilary term 1744. And in the same term, judgment of outlawry was entered up against him.

The defendant in error therefore, in the same Hilary term, filed his declaration against Parminter; and thereby, after stating the outlawry against Barrow, declared, that the said Henry Parminter and Lawrence Barrow wore indebted to him in £1300 for work and labour done; and in £2000 for money laid out, expended, and paid; and in £1600 for money lent; and in £2000 for money had and received by Parminter and Barrow, for the use of the said Symons. The declaration then proceeded as follows, viz.

And whereas the said Thomas Symons, on the 28th day of June, in the year of our Lord 1789, at London aforesaid, in the parish and ward aforesaid, according to the usage and custom of merchants, made his bill of exchange in writing, his own hand being thereunto subscribed, bearing date the same day and year; and directed the said bill to the said Henry and Lawrence, then being, residing and using commerce at Bilboa, in foreign parts, to wit, in Spain; and thereby requested the said Henry and Lawrence, at usance, to pay that his first bill of exchange at Madrid, in Spain aforesaid, to the order of John Evangelist Cleer and company, dollars, four thousand in gold or silver, as to the exchange known to them that day, value in account with the said gentlemen, as by advice; which said bill of exchange afterwards, to wit, on the 10th day of August in the year aforesaid, at Bilboa afore said, the said Henry and Lawrence, who, etc. accepted according to the usage and custom of merchants and the said Thomas Symons in fact says, that an usance between London aforesaid and Madrid in foreign parts, to wit, in Spain aforesaid, is, and from time whereof the memory of man is not to the contrary, hath been two months and that the said Henry and Lawrence, who, etc. did not, nor did either of them pay to the said John Evangelist Cleer and company, the said money contained in the said bill of exchange, nor any part thereof; but refused and neglected to pay the same. Whereupon afterwards, to wit, on the 21st day of September in the same year, (the said John [45] Evangelist Cleer and company having made no order concerning the payment thereof.) the said bill of exchange, at the request