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Parminter, in that same term, moved in arrest of the plaintiff's judgment; and made three objections: I. That there was no such custom of merchants, as was set out upon the plaintiff's declaration; and that the acceptor of a bill of exchange (afterwards protested for non-payment, and paid to the payee by the drawer, with the interest, exchange, re-exchange, costs and damages) was not by law liable to the drawer, without a previous assignment or indorsement of such bill to him by the payee. II. That the demurrer to the plaintiff's replication, after issue joined, was a discontinuance of the suit.. But it was the defendant's own demurrer; for the defendant having pleaded, that there was no such record of Barrow's outlawry, as the plaintiff had alledged, the plaintiff replied, there was such a record, and thereupon issue was joined. III. That the declaration had not set forth the value of the 4000 dollars, mentioned in the sixth count; nor the value of the 1000 dollars mentioned in the seventh count.

The court, after solemn argument, and time taken to consider, in Hilary term 1747, was unanimously of opinion, as to the first objection, that the plaintiff's action was well brought; that, by the custom of merchants, the defendants were bound by their acceptance; and that an indorsement by the payee was not necessary; and the rather, for that, in the present case, the plaintiff [47] had made title another way, viz. by payment of the money; and therefore gave judgment for the plaintiff in the action.—As to the other two objections, the court was of opinion, they were of no weight.

To reverse this judgment, the defendant Parminter brought a writ of error in parliament, assigning the general errors; but no case was made to support it, nor did any counsel appear for him upon the day appointed for argument.

However, on behalf of the defendant in error it was said (H. Bankes, R. Draper), that the only considerable question in point of law (for as to the justice and equity of the case there could be none) was, Whether the drawer of a bill of exchange, accepted generally by the drawee, protested by the payee for non-payment, and afterwards paid by the drawer, could in his own name, and without a previous assignment or indorsement from the payee, maintain a special action on the case against the acceptor, and receive the money so paid. And it was insisted, that by the rules of law, and the custom of merchants, the defendant in error could maintain such action; and that the proceedings therein were right, and agreeable to the principles of law and justice. For the plaintiff in error had not controverted the fact of the custom, as set forth in the declaration but had admitted, that if the defendant had taken an assignment or indorsement of the two bills of exchange from the two payees thereof, he might have maintained an action in his own name. The acceptance of a bill of exchange amounts to a promise in law to pay; and this action of assumpsit against the acceptor, is founded upon good consideration; namely, of his having effects of the drawer's in his hands, at the time of his acceptance. But a general acceptance, as in the present case, is an admission by the acceptor, that he is debtor to the drawer for so much money; and that he has effects or money of the drawer's in his hands, to answer the payment of such bill. Besides, every bill of exchange imports a command to the drawee to pay; and his acceptance is not only an admission of effects or money in his hands sufficient to pay; but it is an undertaking by the acceptor, as well with respect to the drawer as the payee, to pay the bill; and every undertaker is bound by law to perform his engagement. It was therefore hoped, that the judgment would be affirmed, with exemplary costs.

Accordingly, after hearing counsel for the defendant in error, the plaintiff making default, and no counsel appearing for him, it was ordered and adjudged, that the judgment given in the Court of King's Bench should be affirmed; and that the record should be remitted, to the end execution might be had thereupon, as if no such writ of error had been brought into the house and it was further ordered, that the plaintiff should pay to the defendant £100 for his costs, sustained by reason of bringing the said writ of error. (Jour. vol. 27. p. 286.)