Joshua Rowe Plaintiff in Error v. Isaac Young Defendant in Error [1820] UKHL 2_Bligh_391

UKHL

Joshua Rowe Plaintiff in Error v. Isaac Young Defendant in Error

[1820] UKHL 2_Bligh_391

REPORTS OF CASES HEARD IN THE HOUSE OF LORDS, UPON APPEALS AND WRITS OF ERROR, And decided during the Session , 1820.

1 Geo . IV.

ENGLAND.

WRIT OF ERROR FROM THE KING'S BENCH.

No. 12

Joshua Rowe Plaintiff in Error v. Isaac Young Defendant in Error

1820 .

If a bill of exchange be “accepted, payable at the house of P. & Co.” it is a qualified acceptance restricting the place of payment, and the holder is bound to present the bill at that house for payment in order to charge the acceptor of the bill. If he brings an action upon the bill against the acceptor, he must in his declaration aver, and on the trial prove, that he made such presentment; and for want of such averment the declaration was held bad on demurrer;

The defendant in error was indorsee and holder of a bill of exchange, which the plaintiff in error, residing at Torpoint, had accepted, “ payable at Sir John Perring & Co.'s bankers, London.” payable at Sir John Perring & Co.'s bankers, London.” The bill, when it became due, was not presented at that banking-house for payment. But Mr. Young, having failed to make such presentment, nevertheless brought an action against Mr. Rowe in the Court of King's Bench.

In the first count * , upon which the whole question, both technically and materially, turns, the

Footnote

* Which was the only count in the declaration upon the bill of exchange; all the others were counts for money for goods sold and delivered, and upon an account stated.

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“payable at, &c. that is to say, at the house of certain persons using in trade, &c. the names, style, and firm of Sir J. P. &Co. bankers, London .”

In a subsequent part of the same count it was averred, that Rowe, “by reason of the premises, and according to the custom of merchants, became liable to pay the money specified in the bill according to the tenor and effect of the bill, and of his acceptance .” No allegation of a presentment at Sir John Perring & Co.'s for payment was contained in the first count. To this declaration, upon the ground of this omission in the first count, a demurrer was filed on behalf of Rowe, the defendant in the action * .

The Court of King's Bench overruled the demurrer upon argument, or rather upon the statement of it, and gave judgment for the plaintiff Young.

Against this judgment a writ of error was brought in the House of Lords, assigning for error the want of averment in the first count, that the bill was presented for payment at the house of Sir J. Perring. The case was twice argued † before the House at

Footnote

* For thirty years before the argument of this case, the Court of King's Bench had been in the habit of holding an acceptance payable at a banker's to be a general acceptance.

† By the Attorney-General and Mr. Wylde for the plaintiff; and by Mr. Holt , for the defendant in error. The arguments are omitted on account of their length; and if it could have been done with propriety, in a work professing to be a record of important decisions in the House of Lords, the whole case would have been omitted, on account of the increased expense

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1. Whether, in this case, the bill of exchange

Footnote

which double reports of the same case inflict upon that part of the profession who are, or who conceive that they are, obliged to take both sets of reports. In ancient times, when business was less extensive, it was the practice of advocates to attend all the courts indiscriminately; and, having taken notes of what they heard in the course of their practice, to publish indiscriminately what they so collected. But of late years division of labour has been the consequence of increased business, and reporters, as well as advocates, usually confine themselves to a particular court. Formerly, reporters of cases in Chancery and the King's Bench made no scruple of reporting cases in the Common Pleas or Exchequer; but since the time when periodical reports of cases in the Common Pleas and Exchequer have been begun, and gentlemen have devoted themselves to attendance in those Courts for the purpose of reporting, no reporter in other courts interferes with the department which they have selected. The case now reported arose in the King's Bench, was removed by writ of error into Parliament, and appears in the ordinary reports of the Common Pleas. If this circumstance had furnished a sufficient reason to exclude a case so important in the principle of decision, so full of acute reasoning and deep research, comprising in the elaborate opinions, delivered by the Judges, so many valuable discussions on doctrines of law, and refined criticisms on points of pleading, not applicable merely to the case under consideration, but of universal application, from the pages of a work where the first inquiry would be made for such a case, it would have been, to the Editor most especially, a great relief to have been spared the unpalatable task of consideration whether such a case, under such circumstances, ought or ought not to be reported.

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2. Whether, the said bill having been so accepted as aforesaid, such acceptance is in law to be considered as a qualified acceptance to pay the same at the said house of Sir John Perring & Co. bankers, London; or, as a general acceptance, to pay the same with an additional engagement or direction for payment thereof at that house?

3. Whether, if A . draw a bill upon B , in favour of C , for 100 l . and C , without the previous authority or subsequent assent of A , take an acceptance of the bill for the whole of the 100 l . but an acceptance qualified as to the time or place of payment, C . could, notwithstanding his taking such acceptance, maintain an action upon the bill against A .?

4. Whether, if A . were debtor to C . in 100 l . previous to his so drawing upon B , in favour of C , to the amount of 100 l. C . could, upon A .'s refusing his assent to an acceptance qualified as mentioned in the above question, maintain an action upon the original debt against A , without delivering to A . the bill so accepted, in case, at the time the bill was drawn, B . was also indebted to A . in a like sum of 100 l .?

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There was a difference of opinion among the Judges, and they delivered successively the opinions which are printed in the Appendix to this Report. After the Judges had delivered their opinions, the Lord Chancellor and Lord Redesdale spoke to the following effect:

17th July.

Lord Chancellor :

—The writ in this case was brought on a judgment in the Court of King's Bench, in an action of assumpsit. That action was commenced by special original in Easter Term, 1816. The declaration consisted of a count on a bill of exchange, two counts for goods sold and delivered, three money counts, and an account stated. The breach contains an averment of a special request of payment in the usual form. The error is limited to the first count of the declaration, and that count is thus expressed:

Joshua afterwards, to wit, on the same day and year aforesaid, at Gosport, that is to say, at London aforesaid, in the parish and ward aforesaid, upon sight thereof, accepted according to the said usage and custom of merchants, payable at Sir John Perring &Co.'s bankers, London , (that is to say,) at the house of certain persons using in trade and commerce the names, style, and firm of Sir J. Perring &Co. bankers, London ; and the said James, to whose order the said sum of money in the said bill of exchange specified was to be paid, afterwards, to wit, on the same day and year aforesaid, at London aforesaid, in the same parish and ward aforesaid, by his certain indorsement in writing, made and indorsed on the said bill of exchange, according to the usage and custom of merchants, ordered and appointed the said sum of money in the said bill of exchange mentioned, to be paid to the said Isaac, and then and there delivered the said bill of exchange so indorsed to him the said Isaac, of which indorsement the said Joshua afterwards, to wit, on the same day and year aforesaid, at London aforesaid, in the parish and ward aforesaid, had notice, by reason of which said premises , and according to the said custom of merchants , he the said Joshua then and there became liable to pay the said Isaac the said sum of money specified in the said bill, according to the tenor and effect of the said bill of exchange, and of his said acceptance thereof , and of the said indorsement so made thereon as aforesaid; and being so liable, he the said Joshua, in consideration thereof, afterwards, to wit, on the same day and year aforesaid, at London aforesaid, in the parish and ward aforesaid, undertook, and then and there faithfully promised the said Isaac, to pay him the said sum of money mentioned in the said bill of exchange, according to the tenor and effect of the said bill of exchange, and of his said acceptance thereof , and of the said indorsement so made thereon as aforesaid.

“For that whereas one James Meagher, on the 20th December 1815, at Gosport, to wit at London, in the parish of St. Maryle-bow, in the Ward of Cheap, according to the usage and custom of merchants, from time immemorial used and approved of within this kingdom, made and drew a certain bill of exchange in writing, bearing date the same day and year aforesaid, and then and there directed that bill of exchange to the said Joshua, by the name and addition of Joshua Rowe, Esquire, Torpoint, and thereby required the said Joshua, two months after the date thereof, to pay to his the said James's order 300 l . for value in account, and then delivered the said bill of exchange to the said Joshua, which bill of exchange he the said

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To this count there was the following demurrer:

it be collected from, the first count of the declaration, that the said bill was ever presented or shown for payment thereof , either when it became due and payable, or before or since, at the said Sir J. Perring & Co.'s bankers, London aforesaid.”

“And the said Joshua, by John Wells Bozon, his attorney, comes and defends the wrong and injury when, &c. and says, that the said first count of the said declaration, and the matters therein contained, in manner and form as the same are above stated and set forth, are not sufficient in law for the said Isaac to have or maintain his aforesaid action thereof against him the said Joshua, and that he the said Joshua is not bound by the law of the land to answer the same, and this he is ready to verify; wherefore, for want of a sufficient first count of this said declaration in this behalf, the said Joshua prays judgment, and that the said Isaac may be barred for having or maintaining his aforesaid action thereof against him, &c.; and the said Joshua, according to the form of the statute in such case made and provided, states and shows to the Court here, the following causes of demurrer to the said first count of the said declaration, that, although it is stated and alleged in and by the said first count of the said declaration, that the said bill was accepted by the said Joshua, and made payable at Sir J. Perring & Co.'s bankers, London, yet it is not alleged or stated in, nor can

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Then there is a rejoinder and replication.

The demurrer afterwards came on for argument in the Court of King's Bench, when the Court gave judgment in favour of the defendant in error, that is, by their judgment they asserted that it was unnecessary to state and allege, (that is the substance of it,) in and by the first count of the declaration, that the bill was accepted by Joshua; in fact, that it was not necessary it should be stated, or capable of being collected from the first count of the declaration, that the bill was ever presented or shown for payment thereof, either when it became due and payable, or before or since, at Sir J. Perring & Co.'s bankers, London.

The writ of error, therefore, raises this question: whether it was or not necessary in this first count of the declaration to allege, or state expressly, or to allege or state in substance and effect, so that it might be collected from the first count of the declaration, that the bill had been presented, and shown to the plaintiff in error, either when it became due and payable, or before that time, or since, at Sir J. Perring & Co.'s bankers, London? The question, stated in another way, may be thus: whether the acceptance, as set forth in this first count of the declaration, is to be considered a general acceptance, making the party accepting liable to pay every where, together with what in some cases is called an

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It has been correctly stated at the bar, that the Court of King's Bench has been of late years in the habit of holding this to be a general acceptance, with what they call an expansion, or a direction, or an engagement, which introduces not a qualified promise, but a sort of courtesy; a kind of accommodation between the parties, in addition to the effect of the general acceptance; which accommodation or courtesy, however, they decide that the holder of the bill is not at all bound to attend to. On the other hand, the Court of Common Pleas are in the habit of holding that this is a qualified acceptance; that the contract of the party is to pay at the place specified; and, as in matter of pleading, they deem it a qualified acceptance, the proof must accord with the declaration. They require the plaintiff to aver and prove the presentment at the place stipulated.

The principles of law, as applied to promissory

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The decisions of the Court of King's Bench as to bills accepted, payable at a given place, cannot easily be reconciled with their decisions as to promissory notes, with similar qualifications; and it

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The first question is, whether this is a qualified acceptance? Upon that the twelve Judges have given their opinion, and a great majority of them are of opinion that it is a qualified acceptance. Some of the Judges have given an opinion that it is a general acceptance, with an expansion, direction, or engagement, for the convenience of one or other of the parties; that the acceptance in this case meant, that if the party chose to go to Sir John Perring & Co.'s he would probably there get payment of the bill.

The next question is this: supposing it to be a qualified acceptance, was it necessary to aver the presentment, and to support that averment by proof? Now, upon that question, a great majority of the learned Judges, including those who thought it was a qualified acceptance, say that it is not necessary to notice it as such in the declaration, or to prove presentment; but that it must be considered as matter of defence, and that the defendant must state that he was ready to pay at the place, and must bring the money into Court, and bar the action by proving

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I think I may venture to state, having with great pains read every case upon the subject, that a person may draw a bill of exchange as we are in the habit of drawing a promissory note, payable at a particular place. By the acceptance of such a bill, the acceptor promises to pay at that particular place, and the drawer binds himself to the same qualified contract, in default of payment by the acceptor. But it seems there is a great objection to the doctrine, that if a bill is drawn in general terms the acceptor may alter the contract by giving a special acceptance. The only material question appears to me to be, whether the acceptor has in fact accepted specially. I cannot imagine, that because the contract of A . the drawer is general, it is from thence to be reasoned, that I, the acceptor, having an option to undertake, or altogether refuse, the engagement, cannot qualify my acceptance. May I not say to

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I am ready to express my full assent to the doctrine, that where a bill is drawn generally, considering that it is an address to the person who is to accept it generally, because it is drawn generally, it is the duty of the acceptor who intends to give a special acceptance, to accept in such terms that the nature of his contract may be seen in the terms he has used; that the acceptance may clearly appear to be qualified or special, which he insists is not general.

Then the first question in this case will arise upon the words, whether this is or is not a qualified acceptance. I really do not know how it is possible to say that this is not a qualified acceptance, I mean independently of the cases which have been decided. If a bill is drawn upon a person resident in London, and he accepts it according to the usage and custom of merchants, payable at his bankers in London, putting for the moment the usage of merchants, and the effect of decided authorities, out of the question,

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I cannot, after the maturest consideration, think that the words used do not clearly show that it was the intention of the party who gave this acceptance to come under an engagement which may be represented as a contract, to pay the bill at Sir J. Perring & Co.'s London, and not to be liable elsewhere.

Then it is said, that the word “accepted” forms the general engagement; and that the words “payable at Sir J. Perring & Co.'s” cannot qualify and cut down the general engagement; and cases are cited which maintain a distinction between words of qualification in the body of a note, and words of qualification in the margin, or at the foot of the note. There are such cases of distinction between words in the body of the instrument, which have been held to form part of the contract, and words at the foot, or in the margin, which have been considered and held to constitute only a memorandum. I do not mean to disturb those cases; but I do not understand how it is, that from those cases it is to be inferred, that when the acceptor, uno flatu , writes the words, “accepted payable at such a house,” the word “accepted” is to be taken to express the whole of the acceptor's contract; and although the sentence is not complete till the whole is written, the latter words are not to be taken as part of it, but are

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It appears to me that this is a qualified contract for payment at the place specified.

The argumentum ab inconvenienti has been strongly urged. The mode of reasoning was not quite analagous to the usual modes of reasoning in the courts below. Nor does the argument itself as presented rest on clear probabilities. The case is put in this way: Suppose a bill were drawn on each of the twelve Judges of England, just before they left town to proceed on their circuits, and they had acepted the bills payable at their respective bankers. If it be law that such an acceptance renders them liable to pay any where, the holders of those bills might, undoubtedly, if they pleased, arrest the Judges at their respective circuit-towns, a little to the inconvenience of the administration of justice. It is said no man would think of arresting the Judges. I hope nobody would think of arresting the Judges; but I can feel for mercantile men as well as for Judges. It is a hardship that men should be exposed to the inconvenience of unexpected demands, which are not regulated by their contracts, but by a construction given to their contracts, which they never intended, and have not expressed.

In this very case, (a circumstance which has been little considered) the acceptor lives at Torpoint. Is it a matter of no consequence to the acceptor living at Torpoint, and having his money in London, where the payment is demanded? At Torpoint, perhaps, he cannot pay, probably not without inconvenience. In London he has left a fund in the

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There is another consideration which does not appear to me to have been sufficiently weighed. If the acceptor promises to pay at his bankers in London, and the holder calls upon him in Northumberland, the payment is not the same. He presumes that the demand is to be made at the bankers in London, and the funds are deposited there. But if the acceptor is unexpectedly to meet the demand in a distant place, the cost of the exchange and remittance backwards and forwards must be added. Take the case of a gentleman leaving Calcutta and coming to reside in London. Upon his departure he gives a bill of exchange in Calcutta, to be paid there six months after he departs. He arrives in London, not bringing funds to pay that bill; he finds the bill sent home by another ship, and he is arrested the moment he lands. The sum which he pays here,

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Then, it is said, the admission of such special acceptances will be extremely inconvenient; and it was with a view to see what the balance of convenience and inconvenience would be, that the third and fourth questions were proposed to the Judges by order of the House. The objection urged is, that it may vary the right of the holder against the drawer and previous indorsers, unless he, the holder, gives notices, and does all the acts requisite to preserve their liability. The answer to that objection, as it seems to me, is plain: If once it be admitted that a man may by law accept specially, it is in consequence of the law that these difficulties arise. By deciding that no man shall accept specially a bil which is drawn generally, the difficulty is avoided. But if the law be, that although a bill is drawn generally, it may be accepted specially, it is the effect of the law to impose a duty upon the holder of giving notice to the drawer and previous indorsers, if he intends to keep alive their liability. That inconvenience certainly is not quite so large as if the acceptor refused to accept at all.

Again, it is objected that the rule in question will create great difficulty as it regards the indorsee; that some indorsees become so before and some after acceptance: if he becomes an indorsee before, he may find a special acceptance when he expected to have a general acceptance. But when the bill is indorsed

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This being a case in which the law is unsettled, we must resort to principle. If on principle a qualified acceptance may be given, the question is, whether the acceptance in this case is qualified? If it be an acceptance in which the contract of the party is to pay at Sir John Perring & Co.'s, then I state it to be, in pleading, a settled rule, that the plaintiff must declare according to the contract; he must aver all that the nature of that contract makes necessary. If so, how can it be said it is not to be shown by the demand in the declaration, but must be left to be brought forward by the defence? It appears to me that such a doctrine cannot be maintained.

With respect to the cases which have been cited of bonds, they differ altogether from a contract of this nature. Upon a bond the action is brought for the penalty. It must be, therefore, matter of defence to show that the sum due would have been paid at a particular place provided, for that will appear in the condition of the bond, when the defendant prays oyer of it. The defence consists in alleging performance of that part of the condition,

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There is another set of cases in which it is said that if there is an antecedent debt the acceptance must be taken to be general. Between the acceptor and the holder there is no antecedent debt. There may be an antecedent debt between the drawer and the acceptor of the bill. I wish it could be asserted in all cases. Accommodation bills have ruined great numbers of men. With respect to the acceptor, it is not true that he must be antecedently the debtor. All the cases of qualified acceptance show the contrary. A man may accept to pay half the bill in money and half in goods. He may accept to pay out of the produce of a cargo consigned to him when that cargo shall arrive in England. In the case of a consignee his acceptance is almost universally qualified. Upon the expectation of cargoes coming from the West Indies, or other places, bills are accepted by consignees, payable in London *

In every view of this case, I must state it as my

Footnote

* The Lord Chancellor, in the course of his speech, stated, that he did not profess to go through the whole case, or to notice all the arguments. The analogies, of rent payable on the premises, of awards directing money to be paid and received at a place, of bills and notes payable on demand, where no demand is held necessary, are omitted here. On the two first classes, see the arguments for the analogy, in the opinion of Bayley, J. and against it, in the opinion of Wood, B. post . in the Appendix. As to the latter case, where demand is part of the contract, yet proof of demand held unnecessary, see Birks v. Trippett , 1 Saund. 33, a.; and the opinion of Bayley, J. quà supra quà supra .

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The question is, what is the law settled, or to be settled, upon the contract as set forth in the first count of this declaration? I have already stated in a few words what my opinion is, and I sincerely believe it to be founded in clear principles of law. At the same time, I cannot but recollect that I am differing from those whose opinions I greatly respect. I do it with reluctance: But my duty is to express my own opinion.

Lord Redesdale :—I most fully concur in the opinion expressed by my noble and learned friend * . It appears to me, that some of the learned Judges have totally forgotten acceptances for honour, which are not uncommon acceptances. If a person accepts, for the honour of the drawer, payable at a banker's

Footnote

* The Lord Chancellor.

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Another part of the question which has been adverted to by the noble and learned Lord appears to me of infinite importance; I mean, the acceptance of a bill payable at a different place from the residence of the acceptor. This bill is accepted by a man resident at Torpoint, payable in London, at a certain banking-house. What is it that is asserted to be the effect of his acceptance? that he engages to have money both at Sir John Perring & Co.'s and at his own residence at Torpoint. If he accepted simply, he would engage only to have the money at Torpoint * ; but, it is said, that because he accepts with this addition he engages to have the money at both places: this is making him engage for two things instead of one, and it seems to me that it

Footnote

* Quœre Quœre , Whether, under a general acceptance, he would not be generally liable; that is, in all places wherever he may happen to be resident when the bill becomes due, and is presented for payment. See Rumball v. Ball , 10 Mod. 38; and Bayley on Bills, 3d edition, 187. I was apprehensive that my note of this passage was incorrect; but, upon collation with other notes, it is confirmed. The expression intended, perhaps, was, that he would have accepted payable at Torpoint .

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If it be the true doctrine of law that presentment at a place specified in the acceptance is not necessary, such a doctrine might furnish the means of unfair and fraudulent advantage in dealings between mercantile people residing at different places. Take the case stated by the noble and learned Lord, of a bill accepted, payable in India. Suppose a person accepts a bill payable in India, and leaves funds for the purpose of answering that bill, which is made payable in six months. He comes to London, and there the bill is demanded of him; because his acceptance, according to the proposed doctrine, is general, and the words, “ payable at Culcutta ,” do not qualify that acceptance; the consequence of that would be, that the holder of the bill would gain the whole expense of the remittance from India to England, and we know perfectly well that makes a very considerable difference. In a recent appeal * , argued before this House, it is a question whether, in an account of that description, the expense of remittance from India to England is or is not to be allowed; and it is part of the subject of appeal from the decision of the Court of Session in Scotland that

Footnote

* Graham v. Keble , see ante , page 126.

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It appears to me, therefore, perfectly clear, that if it be law, that the acceptance of a bill payable at a specified place is not a conditional acceptance, it may be used for the purpose of gross fraud, to make the acceptor pay that which he did not mean to pay, a sum which the other parties to the contract never expected him to pay. Many cases might be put as to the West Indies, and other places which were alluded to by some of the learned Judges, and into which it is not necessary to enter.

If the words which have been added to this acceptance are to be taken as nothing in favour of the acceptor, how is it that they have any operation in favour of other parties? If they are not a condition annexed to the acceptance, how is it, that with respect to the drawer of the bill, for the purpose of making a demand against him, and with respect to the indorser, for the purpose of making a demand against him, the holder of the bill must show the the application to Perring & Co. in order to entitle him to bring his action?

It is said that this should be shown by plea. The majority of the Judges have been of opinion that it is a qualification of the acceptance, but that the defendant is to take advantage of it in pleading. To do that he is obliged to bring the money into Court; that is to say, he is to do the very thing which in the case of an acceptance in India, for instance, he

Footnote

* By the judgment since given, the cost of remittance has been in part allowed.

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Upon these grounds it appears to me that it is infinitely better to hold that these words amount

Footnote

* Quœre Quœre 1. Whether the defendant might not plead readiness, &c. and bring into Court the sum expressed in the bill, according to the rate of exchange, either at the time when the bill became due, or at the time of paying the money into Court. Suppose, for instance, a bill drawn upon a party resident in Ireland, for 1,300 l . which he accepts, payable at Dublin; and afterwards, the acceptor, being in England, is sued for the amount. If, according to law, and the practice of the Court, he might plead that he was ready to pay at Dublin, &c. and pay into Court 1,200 l . that being the supposed rate of exchange; the objection, so far, is obviated.

Quœre Quœre 2. Whether, for the purpose of this argument, there is any difference between remittance and exchange, since the mode of remittance is by exchange. Or if there be any further incidental expenses, as a fair commission to the banker or merchant furnishing the bill, might, or might not, that also become the subject or part of a special plea; and the real value of the sum expressed in the bill, according to the rate of exchange, minus those incidental expenses, be paid into Court? If issue were taken upon such a plea, might not the proceeding be in a course similar to that which takes place in an action upon a bill returned protested from a foreign country? As in the cases of Auriol v. Thomas , 2 T. R. 52, upon a bill; and Pollard v. Herries , 3 B & P. 335, upon a note, viz. by assessment of a jury. See Kearney v. King , 1 B. &a. A. 301, as to the necessity of setting forth in the declaration, in what country, and currency, a bill is drawn, though it is not necessary to state the value of the currency. Simmonds v. Parminter , 1 Wils. 185, 1

b. B. P.

c. C. 43.

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Judgment reversed.

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APPENDIX.

Rowe v. Young .

Best , J.

1st Question;

1st branch.

Best , J. The words “payable at Sir John Perring & Co. bankers, London,” qualify the general term “accepted,” and render a presentment of the bill at the house of Sir J. P. & Co. necessary; (provided the acceptor had funds at that house on the day on which the bill became due, and Sir J. P. & Co. would have paid the bill;) but I do not think that it was necessary to aver in the declaration, that the bill was presented at that house for payment. If the acceptor would avail himself of the want of presentment of the bill at Sir John Perring's, he must plead to the action brought on it, that he had funds in the hands of Sir J. P. & Co. sufficient to take it up on the day when it became due, and that Sir J. P. & Co. would have paid it, had it been presented at their house; and he must pay the amount of the bill into Court.

The first point to be settled is, whether the terms used amount to such a qualified acceptance, as makes the bill payable only at the bankers? or whether they are to be considered merely as giving notice to the holder, that if he will call at the bankers, he may obtain payment without having the effect of compelling him to present the bill at the bankers? or imposing any other duty on him than what is required from the holder of a bill, by a general acceptance.

The holder of a general acceptance must present his bill at the residence or place of trade of the acceptor: the qualified acceptance produces no other effect than that of changing the place of presentment from the compting-house of the acceptor, to the house of the acceptor's banker.

The drawee of a bill may accept it specially; and such acceptance may narrow his responsibility below what it would have been if he had accepted the bill according to its tenor. Special acceptances are recognised by a long series of decisions; from which it appears, that the drawee of a bill may limit his responsibility by any conditions which his own circumstances, or the situation of the drawer's funds may render expedient.

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Are the words “accepted payable at Sir John Perring & Co.'s bankers, London,” sufficient to express a special acceptance, making the bill payable at that house? They all form one short sentence; the words “payable at” following immediately after the word “accepted,” without any break; and as the word “accepted” raises an obligation in the writer to pay the bill when due, the words which follow “accepted” must be considered as confining the obligation to pay at the house of Sir J. P. & Co. What rule of construction allows us to say, that the first of several connected words is to be considered as forming the contract, and that the remaining words, although they seem to express a qualification of such contract, are to have no effect? With what justice can we hold a man to the obligatory part of the instrument which he has executed, and refuse him the advantage of the qualification which he has immediately annexed to it.

It has been said at the bar, that the acceptor is to be presumed to be the debtor of the drawer; that the debtor is liable to his creditor every where; that this liability cannot be narrowed, except by clear and express terms; and that the terms used by this acceptor are not sufficiently clear to narrow his responsibility. I deny that, under the circumstances in which the trade of the world is now conducted, a drawee is to be taken as the debtor of the drawer; but, if he is to be so taken, the drawing a bill for his debt, if it be accepted, restrains the

Footnote

* Str. 1152;

† 2 Wils. 9.

‡ 11 Mod. 190.

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It is well known to be the practice of the consignors of goods, to draw on the consignees for the expected proceeds of such goods as soon as the goods are sent. The bills so drawn are often presented before the goods get to the hands of the consignees, and generally before they are sold. The special acceptances, in some of the cases to which I have referred, were evidently made under these circumstances. In those cases, the drawee is no debtor of the drawer; nor can what is said as to the narrowing of a general liability down to a particular liability have any reference to them.

But, suppose the drawee to owe the drawer money, for which the former is liable to be proceeded against at any time and place, and without notice. When the one has drawn, and the other accepted, a bill, the general right to sue which the drawer befere had, is, in consideration of the acknowledgment of the debt, and the security given for it by the acceptance, restrained: and the drawer can have no action until the bill is arrived at maturity, and the drawee (if able to pay) has been requested to pay it. I know, as against an acceptor, it is not necessary to aver a prior presentment of the bill; but, although such averment and proof be not required, I cannot persuade myself, that you may arrest an acceptor who has been always ready to pay his bill, without any notice of the person, in whose hands it is. The opinion, that an acceptor may be sued at any time and place, and without any other demand than the writ, has arisen from inattention to the forms of pleading. I shall, presently, endeavour to explain this matter. I am aware, that there is great authority for this doctrine; but no authority, save that of your Lordships, will ever convince me, that it is part of the mercantile law of England. If this be the law, no merchant in the city of London can secure himself against arrests and the costs of vexatious actions. Having money constantly in his house equal to all that he has to pay, and even carrying a like sum with him wherever he goes, will not protect him. According to this doctrine, the debt may be

Page: 419 ↓

As to the objection of want of precision in the terms used; let it be recollected, that this is a mercantile contract and, that the loosest of all mercantile contracts is the acceptance of a bill of exchange. By the use of the single vague term “accepted,” the drawee engages to pay the bill when it arrives at maturity: there is nothing like precision, nothing like a clear and unequivocal expression of obligation in this term, yet the acceptor is bound by it. Will you require more clearness and precision in the qualification, than in the contract to which it is annexed? But the words, however inartificial, are only capable of one meaning; nor would any man reading the bill, and not puzzled by the decisions of Westminster-Hall, think of putting any other construction upon them, than, that the payment which the acceptor binds himself to make, is to be made at the house of his bankers, and no where else . Suppose, instead of using the word “accepted,” the drawee had written “when this bill becomes due, I undertake that it shall be paid at the house of Sir J. P.& Co., bankers;” could any man contend that, according to these words, he would have to be ready to pay it at any other place, than the house of Sir J. P. & Co.? The word “accepted” imports, that, when the bill becomes due, the acceptor undertakes that it shall be paid; surely, the words, “at Sir J. P. &Co.'s” must have the same meaning, when added to the word “accepted,” as, when added to other words, meaning nothing more or less than is expressed by the word “accepted.” It has been asked at the bar, how long the acceptor is to leave the amount of the bill in the hands of his banker? I answer, that he is never to remove it. By his special acceptance, he has charged that money with the payment of the bill at his bankers: he has, therefore, no power

Page: 420 ↓

With respect to the cases of Smith v. De la Fontaine † , Fenton v. Goundry ‡ , and the nisi prius decisions which followed those cases; I am far from saying, that the judgments of the Courts upon those cases were wrong; on the contrary, for the reasons which I shall presently offer, I should have concurred in those judgments, although not on the grounds stated by the judges who decided them. As to the nisi prius cases, I think it would have been much better for the law, if the crude opinions of judges at nisi prius had never been allowed to be quoted to those who are sitting in bank. Of Smith v. De la Fontaine , we have only a very short and very imperfect report; it does not appear that Lord Mansfield, or the court of K. B. looked at the acceptance as a written contract, and considered what was the true legal construction of it. They proceeded upon some supposed understanding of the mercantile world, and did not give themselves the trouble of coming to any understanding on the subject. Lord Ellenborough and the rest of the judges seem to have taken the same course in Fenton v. Goundry . Where a construction is to be put on a

Footnote

* 2 H. Bl. 509.

† Bayley on Bills of Exchange, 3d ed. p. 129. note b .

‡ 13 East, 459.

Page: 421 ↓

2d Branch.

As to the second branch of the first question; I am aware, that both the King's Bench and Common Pleas seem to agree, that, if the terms of an acceptance are obligatory on the holder to present the bill at the banker's, such presentment must be averred in the declaration. With the greatest respect for those who were Judges of the King's Bench, at the time when those cases were decided, I must say, much confusion seems to have prevailed amongst them on this subject. Lord Ellenborough, in his judgment in the action on the promissory note made payable at a particular place * , answers his own argument in Fenton v. Goundry : nor can I subscribe to the propriety of the distinction taken between the effect of the same words in a note and a bill. In an acceptance, the words form a part of the original contract of the acceptor, as much as they form part of the original contract of the maker in a note. In the Common Pleas, the question of pleading does not seem to have been much considered. It was scarcely put to that Court by the argument at the bar, that the question of want of presentment ought to have been made matter of defence. If presentment at the banker's be not a condition, the performance of which must precede the payment of the bill, there is no necessity for averring such presentment in the declaration. By a general acceptance, the acceptor undertakes to pay the bill in London; but it has never yet been thought, that before you can recover against the acceptor, you must show a presentment on the day the bill became due. I cannot distinguish between the time of payment and place of payment, or discover any other difference between a general acceptance and a special acceptance payable at a banker's, than that, in the former case, the acceptor undertakes to have the money to take up the bill at his house of

Footnote

* Sunderson v. Bowes , 14 East, 500.

Page: 422 ↓

2d Question.

Upon the second question, I submit, that such an acceptance is to be considered in law as a qualified acceptance, to pay the same at the house of Sir John Perring & Co. and not a general acceptance to pay the bill, with an additional engagement or direction for the payment of the same at that house. I have stated the grounds on which I have formed this opinion, in my answer to the first question.

3d Question.

The third question, whether the taking it without the previous authority or subsequent assent of A . would prevent C . from maintaining an action against A ? seems to me to depend on the nature of the qualification in the acceptance. A qualification which may prejudice the drawer, would discharge

Page: 423 ↓

Footnote

* Mutford v. Walcot , 1 Ld Raym. 575.

Page: 424 ↓

4th Question.

In answer to the fourth question, I submit, that if A , on receiving notice from C , that the bill was accepted with a qualification as to the time or place of payment, refuses his assent to such acceptance, C. may treat the bill as not accepted, and proceed on it against A , without delivering up the bill to A . If the drawer will not assent to the acceptance; which the person on whom he draws thinks proper to put to the bill, he cannot complain if proceeded against as the drawer of a bill which the drawee has refused to accept. The bill is necessary to maintain the action against the drawer; and, therefore, the holder must be allowed to retain possession of it. A . having previously given such a bill for a debt due from A . to C . the latter is not obliged to declare on the bill, but may bring his action for the original debt.

I hope that what I have stated as legal answers to the questions proposed, will be found to secure complete justice to all the parties to a bill, and to promote the convenience of those who are engaged in these negociations. By allowing acceptances to be made payable at their bankers, merchants are relieved from the risk attendant on keeping large sums of money in their own houses. By holding that such an acceptance does not make presentment at the banker's a condition precedent, a just debt cannot be lost through accident or the negligence of clerks in not presenting the bill at the proper time and place; nor is a holder obliged to incur the expense and trouble of a presentment, when he is certain that no provision is made for payment: whilst, on the other hand, by allowing the acceptor to plead his readiness to pay, and bring the money into Court, you prevent, by the penalty of costs, vexatious arrests and unnecessary actions. By allowing holders and drawers of bills to object to acceptances which may prejudice their right, but preventing either from refusing an acceptance, which, though not strictly according to the tenor of the bill, cannot possibly affect their interest, the rights of parties are secure, whilst their caprice is made to give way to the convenience of others.

The counsel, both of the plaintiff and the defendant, have enlarged upon the inconvenience to commercial men which is

Page: 425 ↓

Richardson , J.

1st and 2d Questions.

Richardson , J. * —This is the case of a bill of exchange, drawn by a person at Gosport, upon a person at Torpoint, requiring him, in general terms, to pay, at two months after date, a sum of money to the order of the drawer, which the drawee has accepted, payable at the house of trade of certain bankers in London. The question is, what effect does such an acceptance produce on the holder, as to the conduct to be pursued by him before he sues, and as to the averments to be inserted in his declaration, when he sues upon the bill? It has not been, and, I think, cannot be denied, that the drawee of a bill of exchange is at liberty to qualify his acceptance, as by annexing a condition, or by enlarging or diminishing the time of payment; and, as he may enlarge or diminish the time, so he may, by his acceptance, fix the place of payment; and, in all such cases, I think it follows, that, as he is no otherwise party to the bill than by his acceptance, the holder is bound to sue him according to his acceptance; for the acceptance is the only evidence of contract as to him. The time or place of payment

Footnote

* The statement of the record, and the four questions with which the learned Judge prefaced his observations, are omitted. The two first questions he consolidated.

Page: 426 ↓

Page: 427 ↓

Footnote

* Rast. 158. b .

† Rast. 175 a .

Page: 428 ↓

Footnote

* Rast. 322. b .

† Thompson's Entries, 159, pl. 167. et seq.

‡ 2 Modus Intrandi, Pl. Gen. 234.

Page: 429 ↓

Footnote

* Freeman, 148.

† Sir Tho. Ray. 418.

‡ 3 Taunt. 397.

§ 5 Taunt. 344.

|| 14 East, 500.

¶ 16 East, 110.

** 5 Taunt. 30.

Page: 430 ↓

Page: 431 ↓

Richardson , J.

3d Question.

I have one other observation only to make on this part of the case. It may be said, that unless the holder be bound to demand payment at the place appointed, he may demand it at some other place, where the acceptor is not prepared with funds. I answer, that if such a case should occur, I think the acceptor would be entitled to a reasonable time to draw his funds to that place. For this, the case of Halsted v. Vauleyden ( * ), is an authority, where (the defendant having by deed acknowledged that he owed to the plaintiff 111 l . and covenanted that the same should be paid by C . at Rotterdam, in Holland, on the first demand that should be made) it was held, on a special verdict, that the plaintiff might make his demand at Dort, which is ten miles from Rotterdam, or in England; but that in such case the defendant ought to have a reasonable time to pay, regard being had to the distance.

Footnote

* l Rol Ab. 443 pl. 5. 20.

Page: 432 ↓

In answering the third question proposed by your Lordships, I think it necessary to distinguish between a qualification as to time, and a qualification as to place. Any qualification as to time, whether the time of payment be thereby accelerated or retarded, which the holder permits to be introduced into an acceptance without the concurrence of the drawer, must, I think, have the effect of discharging the drawer. I think it must have such effect, because it necessarily varies, and must be intended to prejudice his situation, as to the time when he may be called upon to pay on the acceptor's default, and as to the time when he must resort to his remedy over against the acceptor. As to place, I think it is not every qualification of place which may be introduced into an acceptance, without the privity of the drawer, that will necessarily discharge the drawer; but to produce that effect, I think the qualification must be such as must vary, and may be intended to prejudice his situation. For instance, if a bill drawn upon a person in the Temple, be by him accepted, payable at the banking-house of Messrs. Child & Co. at Temple-bar, this, I think, would not have the effect of discharging the drawer. But, if such bill were accepted, payable at Dublin or Amsterdam, this, if taken without the privity of the drawer, would, I think, discharge him: because it would necessarily vary, and might reasonably be intended to prejudice his situation, as to the time when he could receive notice of the acceptor's default, and as to his remedy over against the acceptor. It may be difficult to lay down prospectively a precise rule, applicable to all cases, for defining the degree of distance from the residence of the drawer, at which he may be permitted by the holder to appoint, by his acceptance, the place of payment, without discharging the drawer. I should say, that to produce that effect, the distance must be such as would probably delay the drawer in his receipt of notice of the acceptor's default of payment, or throw some increased difficulty upon him in his remedy over against the acceptor.

4th Question.

In answer to the fourth question proposed by your Lordships, I think that in the case put, C . might maintain an action against A , upon the original debt, without first returning to A . the bill drawn by him, C. having first cancelled the qualified accepttance offered by B , to which A . is supposed to have refused

Page: 433 ↓

Garrow , B.

Garrow, B . observing that it was well known in the mercantile world, that the Governor and Company of the Bank of England had determined to discount no bills which were not accepted, payable at a banker's, concurred with Best J. and Richardson J. in their opinions and reasons; and referred to them as containing his own views of the case.

Burrough , J

1st Question.

Burrough, J .—In answer to the first question, I submit, that the usage and custom of merchants does not require that the drawee shall accept a bill of exchange in any given form. He may may accept it by parol, or in writing, he may except it generally; and, if he does so, he is, in the language of some of the cases, generally and universally liable: or, he may accept it specially; and then he is liable according to the tenor of the bill and his acceptance thereof. Whatever the acceptance may be, if an action be brought against the acceptor, the declaration must truly state the acceptance; for, the acceptance contains the terms on which he has agreed to the bill. I am of opinion, that the acceptance is a contract which must be construed, as all other contracts are, according to the intention of the party contracting, to be collected from the nature and words of the contract itself. The acceptance, if special, binds him sub modo , and not generally There is neither hardship nor illegality in this. In the present case, the intention appears to me to have been to do away with the necessity and trouble of a personal application to the acceptor, upon the bill becoming due, and of his keeping money by him to pay it, and to substitute a much more convenient course in the first instance. No holder of a bill, when he goes to the banker's shop, expects to find the acceptor behind the compter: on the contrary, he knows he shall not find him there. On the face of this count, the bill is alleged to have been accepted according to the usage and custom of merchants: yet the doctrine of the case of Smith v. De la Fontaine , and other subsequent cases, is, that the acceptor, notwithstanding a special acceptance, is generally and universally liable. This is a doctrine

Page: 434 ↓

The case of Bishop v. Chitty * in no way assists the case of the defendant in error. The underwriting of the order for the payment of the money in that case amounted to an acceptance, and it was declared on as such: the possession of the bill, with the order for payment of it, were, in my judgment, sufficient to throw on the plaintiff the burden of proof, that he had presented the order, and could not obtain payment of it. It was there holden by Lord Chief Justice Lee, to be the plaintiff's loss; for, he said, it was to all purposes a draft, which is always considered as actual payment when a reasonable time to receive it has elapsed. Smith v. Abbott † is an instance of a conditional or contingent acceptance, according to which it was incumbent on the plaintiff to state in his declaration, and to prove at the trial, that the contingency had happened. The acceptance was “to pay when goods consigned to him,” (and for which the bill was drawn) “were sold.” The Court held, that the acceptance was within the custom of merchants; and said, that the plaintiff might have

Footnote

* Str. 1195.

† Str. 1152.

Page: 435 ↓

“Accepted to be paid by me, if, on application to Messrs. Perring & Co. my bankers, when the bill becomes due, it shall not be paid by them;”

there is nothing in the usage and custom of merchants to show that such an acceptance would not have been good. But whether an acceptance be good or bad within the custom, if the party, who leaves the bill for acceptance, receives it back without objection, he must abide by it. If he cannot recover according to the custom, it is his own fault. The acceptor can only be liable to an indorsee on an acceptance within the custom. In my judgment, the acceptance in the case before the House is in effect such as I have supposed; that this was the intention of the party, I think there can be no doubt; the words of the acceptance appear to me to manifest it. In Julian v. Shobrooke * , the defendant had accepted a bill on account of the ship Thetis, when in cash for the ship's cargo. It appears in the report of that case, that the acceptance was so stated in the declaration, and that the plaintiff averred in his declaration (as I think he was obliged to do) that, on the day when the bill became payable, the defendant was in cash for the said ship's cargo. This the plaintiff must have been bound to prove at the trial; because it was part of his case, and it consisted of matter in the affirmative. In the present case, the defendant in error must contend, that if the cause had gone to trial, on proof of the

Footnote

* 2 Wils. 9.

Page: 436 ↓

I will now shortly advert to the cases more immediately applicable to the subject; and the weight of those cases appears to me to be in favour of the plaintiff in error. The first case, to which I have occasion to refer, is Smith v. De la Fontaine * . In that case, Lord Mansfield is reported to have

Footnote

* Holt, N. P. C. 366. note.

Page: 437 ↓

Footnote

* 2 H. Bl. 509.

† 7 East, 385.

‡ 1 Campb. 423.

Page: 438 ↓

Footnote

* 2 Taunt. 61.

‡ 3 Taunt. 397.

† Huffam v. Ellis , 3 Taunt. 415.

Page: 439 ↓

Footnote

* 13 East, 459.

† 13 East, 465.

‡ 13 East, 469.

Page: 440 ↓

Footnote

* 5 Taunt. 344. S. C. 1 Marsh. 80.

† Chambre, J.

‡ 5 Taunt. 30.

Page: 441 ↓

Footnote

* Holt, N. P. C. 363.

† Id. 364, note.

Page: 442 ↓

2d Question.

As to the second question I am of opinion, that the acceptance is, in law, to be considered a qualified acceptance, that the bill shall be paid at the house of Sir John Perring & Co. bankers, London, and not as a general acceptance to pay the same, with an additional engagement or direction for the payment at that house. The acceptance is an entire contract; the holder, who receives it, must take it as it is, (if he does not dissent from it,) and it must be construed as it was meant, if the intention can be discovered, and the words are sufficient to effectuate it. I feel no doubt as to the intention, and can discover no legal ground to prevent its being carried into effect.

3d Question.

As to the third question proposed by your Lordships, I am of opinion that this must be considered, first, as to the time, secondly, as to the place. And first, as to the time; if B . accept a bill drawn on him at three months, and, by his acceptance, make it payable at four months, and thereby lengthen the time of payment, I think C . could not maintain an action against A ., if this be done without his previous authority, or subsequent assent. And if it was accepted payable at a shorter time than three months, without such authority or assent, I think the law is the same; because the drawer might be liable to be called on sooner for the money than by the terms of his bill he had a right to expect. Secondly, as to the place; the question, as it appears to me, is, whether the variation is material? A general acceptance would have an implied relation to the drawee's place of abode. If the drawee accept it payable at his bankers in the same place, I am of opinion, that would not be material, and that a drawee may, within the custom of merchants, well appoint another

Page: 443 ↓

4th Question.

In answer to the fourth question, I am of opinion, that, in the case comprehended in this question, C . the payee, could not maintain an action against A . the drawer, without delivering, or offering to deliver, up the bill to him; for, whilst the bill remains in C .'s hands, the drawer's remedy is suspended; and, when the drawer has the bill returned, it will appear that the drawee has not complied with the requisition in it, and the drawer is restored to his original situation. I do not think, that the debt owing from B . to A . in any way varies the case, as between A . and C ., for C . receives the bill from A .; and, until C. has agreed to an acceptance materially different from the terms required by the bill, the transaction rests between A . the drawer, and C . the payee.

Holroyd , J.

1st Question.

Holroyd , J.—As to the first question, I am of opinion, that, in this case, the bill of exchange mentioned in the first count of the declaration, being therein alleged to have been accepted according to the usage and custom of merchants, payable at Sir John Perring & Co. bankers, London, (that is to say, at the house of certain persons using in trade and commerce, the names, style, and firm of Sir John Perring & Co. bankers, London,) the holder was not bound to present it at that house for payment, and to aver in the declaration that the same was presented at that house for payment.

As, in my way of considering the subject, the second question appears to me to be involved in the first, I shall state my opinions on the second question, before I give my reasons for either.

2d Question.

On the second question, I am of opinion, that the said bill, having been so accepted as aforesaid, such acceptance is in law to be considered not as a qualified acceptance, to pay the same at the said house of Sir John Perring & Co. bankers, London; but as a general acceptance to pay the same, with an additional engagement or direction for the payment thereof at that house. Though the allegation in the declaration has not treated the acceptance simply as a general acceptance, but has stated the place of payment as a part of it; yet, as the allegation is, that the defendant accepted the bill according to the usage and custom of merchants , payable at Sir John Perring & Co.'s,

Page: 444 ↓

1st Question.

In considering the first question, therefore, which will also dispose of the second, I shall, in the first place, consider what is in law to be now deemed the effect of this acceptance, according to the usage and custom of merchants. If it be in law to be considered not as a qualified, but as a general acceptance, according to the usage and custom of merchants , with an additional engagement or direction for payment at the specified house, it will stand, then, in my opinion, as if a mere general acceptance were stated in the declaration; and in an action against the acceptor upon a mere general acceptance, although he may be ignorant in whose hands the bill is, and, consequently, know not to whom to go to pay it, yet the constant course of proceeding in such action has always been not to allege a presentment to the acceptor for payment, nor to prove it at the trial.

The history of the cases before that of Callaghan v. Aylett , and the grounds upon which those cases, as well as the case of Fenton v. Goundry , were decided, appear to me decisive upon the two questions. The doubts, which have arisen upon the effect of these acceptances, appear not to have been entertained until after that point had been decided as a point free from doubt, both by judges and jury, for a period of nearly twenty-six years; those decisions taking as their basis the generally received and known usage among merchants, as to the effect of these acceptances, both previous, and up to, and during all that period of time. The case of Smith v. De la Fontaine , according to the note which I have of the case, was decided in the year 1785, first upon a trial by jury before Lord Mansfield (to whom, Lord Ellenborough says, in Fenton v. Goundry , the law of bills of exchange was as familiar as to any udge who ever sat on the bench), and, afterwards, by the whole Court of King's Bench, who were so clearly of opinion, that the making of the acceptance to be payable at Messrs.

Page: 445 ↓

Two cases, besides that of Callaghan v. Aylett , had indeed intervened, but they were both of them against the drawer, and appear to me to be not material to the present questions. One of them, Parker v. Gordon * ,is in the King's Bench; the other, Ambrose v. Hopwood † , is in the Common Pleas.

Footnote

* 7 East, 385.

† 2 Taunt. 61.

Page: 446 ↓

The acceptances were similar to the present: the one was a determination, that, in order to charge the drawer , a presentment at the place out of the usual banking-house hours was insufficient: and the other, that a presentment to the bankers, without saying at that place, was insufficient for that purpose; and, in neither case, did there appear to have been any presentment to the acceptor himself, personally, at all.

The case above referred to, of Callaghan v. Aylett * , was a case which was decided by the Court of Common Pleas, (Mansfield, C. J. being absent), in Hilary term 1811, so lately as the very term next before the decision in Fenton v. Goundry ; but the cause had been tried before him, and a verdict had been given for the plaintiff, subject to the opinion of the Court as to the necessity of proving that the bill had been presented at the bankers for payment. As far as can be collected from both the reports of that case, the Court do not, on that occasion, appear to have had the case of Smith v. De la Fontaine laid before them; or to have considered, whether there was any known, established, declared, or generally received understanding or usage upon the subject among merchants. But they appear to have decided in that case entirely upon the dry construction and effect of the acceptance, as a mere engagement to pay the bill at a particular house named by the acceptor; treating it as a mere naked question of construction, arising from the words, independently of any inquiry as to the usage and custom among merchants respecting it. The case of Gammon v. Schmoll has, indeed, been since decided by the Court of Common Pleas, (Mansfield, C. J. being then also absent), in which that Court appear to have decided again, upon the mere construction of the words alone, that the acceptance contained a condition precedent.

2d Question.

In now considering the question, whether the acceptance in the present case be a general or a qualified acceptance, it appears to me, that, upon a question of this nature, it is an important inquiry and consideration, whether there was any, and what, generally received, declared, or known usage and custom among merchants; more especially, if any such had been ratified and confirmed in judicature by judges and jurors; and that alone appears to me to be in itself decisive of the

Footnote

* 2 Campb. 549; S. C. 3 Taunt. 397.

Page: 447 ↓

But even if this supposed generally received understanding, usage, and custom, is to be considered as unascertained and uncertain, and that the effect of this acceptance is, for its construction, to be taken from itself alone; still I cannot but think, that it is to be deemed only as a general acceptance to pay, with an additional engagement or direction for the payment at the specified house. In this view of the question, the legal principles and rules of construction, as well as the nature

Page: 448 ↓

Let us consider the nature of an acceptance in itself. The bill is brought merely for acceptance, that is to say, for a declared assent, that the acceptor will pay it according to the usage and custom of merchants. A mere declared assent by the drawee to pay, or any thing amounting thereto, is, in law, an acceptance. By the first word, “accepted,” which is the thing which the very bringing of the bill requires the drawee to do, and which the drawer has a right to expect that the drawee will do, if he has effects in hand, which his acceptance of the bill implies:—I say, by the very first word, “accepted,” the drawee has declared his assent to pay the bill; and, as I think, to pay it in such manner as the drawer has required, unless that which is added so qualifies this assent, as to be inconsistent with an assent to pay it as required. If it be not thus inconsistent upon the face of it, the holder is not to suppose that it was meant to do away or alter the effect of what the acceptor had before written and signified; and, if the acceptor did so mean, he should have so expressed himself, or should have stated, that he would not accept the bill as required, (that is, to pay it according to the usage and custom of merchants,) but that, though he would not so accept it, he would engage to pay it at such a particular place, if the holder would take that engagement.

The words of the acceptance are those of the drawee only, and not of the drawer or of the holder, and are to be taken, although according to the intent, yet where that is not sufficiently ascertained, most strongly against the person using those words. The maxim of law, verba fortius accipiuntur contra proferentem , and Lord Bacon's observations thereon, appear to me very applicable to this case, supposing this to be considered as a mere question of construction. He says that this rule “is author of much quiet and certainty, and that in two sorts; first, because it favoureth acts and conveyances executed, taking them still beneficially for the grantees and possessors; and, secondly, because it makes an end of many questions and doubts about the construction of words; for, if the labour were only to pick out the intention of the parties, every judge would

Page: 449 ↓

1st and 2d Questions.

For these reasons, I am of opinion, that the acceptance in question, so as aforesaid alleged in the declaration, is to be considered, not as a qualified, but as a general acceptance to pay, with an additional engagement or direction for the payment thereof at the specified house; and, consequently, that the holder was not bound to present it at that house for payment, and to aver, in the declaration, that the same was presented at that house for payment.

But supposing that this acceptance be to be considered as a qualified acceptance to pay the bill at the specified house, still the first question proposed to us involves a further question; for it would not, in my opinion, from thence follow, that the holder was bound to present it at that house for payment, and aver in the declaration that it was so presented; for I still

Footnote

* Reg. 3.

Page: 450 ↓

The acceptance, even taking it to be a qualified acceptance, is still, I think, an undertaking to pay the bill at a particular time and place, absolutely and at all events, and not subject to any expressed or implied condition, which must previously be performed by the holder. Upon a promise or undertaking, either to pay a bill of exchange or money, or to do any other particular act, whether at a particular time and place or not, the very non-feasance alone is a breach of the contract, and the promisee need do no more in support of his action for such breach than to prove the promise: the non-feasance being a negative, the feasance, or that which in law is an excuse for it, is matter purely of defence, and the onus probandi thereof lies upon the defendant. The person, therefore, so promising or undertaking, in order to defend himself, must either establish, that he has done the thing according to his engagement, or he must excuse his non-performance. It is not sufficient for a defendant, in his excuse, to say, that the plaintiff was not present at the time and place to demand and receive the money; but he must, in order to defend himself, allege and prove, that he did all in his power towards the performance, and that his not doing more was owing to the refusal or default of the. plaintiff He must establish either a tender and refusal, or that he, the defendant, was ready at the time and place to pay, but that the plaintiff did not come, nor was present to receive. The circumstances excusing the non-performance, and throwing the fault on the plaintiff, are matters in defence. This appears, I think, by Lord Hobart's opinion in Baker v. Spain * , and by the resolution of the Court of Common Pleas, there cited, in Bushby 's case, as to the payment of rent, which is payable on the land. So Littleton says † , “Also upon such case of feoffment in mortgage, a question hath been demanded, in what place the feoffor is bound to tender the money to the feoffee at the day appointed, &c.? And some have said upon the land so holden in mortgage, because the condition is depending upon the land. And they have said, that if the feoffor be upon the land there ready to pay the money to the feoffee at the day set, and the feoffee be not then there, then the feoffor is quit and

Footnote

* Hob. 8.

† Litt. s. 340.

Page: 451 ↓

Footnote

* 211, a.

† Ante, in the opinion of Richardson, J. pp. 427, 428.

Page: 452 ↓

In either case, such allegation or proof is, I think, not requisite on the part of the plaintiff; but, if the defendant, or his bankers, or any one for him, had his money ready at the time and place, and would have paid it if the bill had been then and there presented for payment, it is matter of defence, and may be pleaded by him; which removes, I think, the hardship and mischief which, it is supposed, may result from not requiring an allegation and proof of presentment for payment at the specified place to be made and given by the plaintiff. Independently of the question of general or qualified acceptance, Lord Ellen-borough and my brother Bayley, in Fenton v. Goundry , both of them acceded to and confirmed this reasoning, as will be seen

Footnote

* 175.

Page: 453 ↓

Footnote

* 470 and 472.

† 1 Camp. 425. note.

‡ 2 Camp. 498.

§ 14 East, 500.

|| 5 Taunt. 30.

¶ 14 East, 504.

Page: 454 ↓

For these reasons, therefore, I think, even if the acceptance, as stated in the first count, be to be considered as a qualified acceptance, that the holder was not, in the present case, bound to present it at the house for payment, or aver in the declaration that the same was so presented.

3d Question.

In answer to the third question proposed by your Lordships, I think, that if A . draw a bill upon B . in favour of C . for 100 l . and C . without the previous authority or subsequent assent of A . take an acceptance for the bill for the whole of the 100 l ., but an acceptance qualified as to the time or place of payment, C . could not maintain an action upon the bill against A .

In the case put by this question, the drawer has a right, I think, or at least may be considered as having reason to expect, either that his bill, if accepted, will be accepted to be paid in such manner as he has required, that is to say, according to the tenor and effect of the bill, and the usage and custom of merchants; or, that due notice will be given by the person taking the bill from him, according to such usage and custom, in case the bill be not so accepted. He may be injured, if the bill be not so accepted as he has required ( primâ facie primâ facie , at least, it is, I think, to be so considered); and, in default of such acceptance, he has a right, I think, to due notice of such default, in order that he may take such steps as he may think proper to

Footnote

* Co. Litt. 211. a.

Page: 455 ↓

4th Question.

In answer to the fourth question proposed by your Lordships, I think, that if A . was debtor to C . in 100 l . previous to his so drawing upon B . in favour of C . to the amount of 100 l ., C . could, upon A .'s refusing his assent to an acceptance, qualified as mentioned in the third question, maintain an action upon the

Footnote

* 1 Campb. 425, note.

Page: 456 ↓

The bill itself, having been dishonoured, has become no satisfaction for the original debt; the right of action upon the original debt, therefore, remains: and though, if A . pay or tender to C . the original debt, with the expenses, &c. incurred upon the dishonoured bill, he will be entitled to have that bill delivered up again to him; yet, until A . has so done, the right to the bill, as it appears to me, which was given by him to C . as a security for, or in order to discharge that debt, remains in C . who may, I think, bring an action, either upon the original debt, or upon the bill; or may bring an action, including both those causes of action, in case they be of such a nature as to be capable of being joined together in one action. The original debt is not extinguished, but the right of action upon it remains, or is revived by reason of the dishonour of the bill; and C . I think, has a right to retain the bill, which was given to him as a security, or for the discharge of his debt, and to use it either as a ground of action in itself, or as a medium of proof for establishing his original debt: and the circumstance of B .'s being also indebted to A . in a like sum of 100 l . appears to me to make no difference as to C .'s rights of action; for A . only by doing what by law he is bound to do, (namely, by payment of his debt, &c. to C .) may entitle himself to the possession of the bill, and thereby avoid any injury, which he may, otherwise, sustain by the want of it in seeking his remedy against B . for the recovery of that debt.

Park , J.

1st Question.

Park , J. With respect to the first question, as the bill of exchange is alleged to have been accepted according to the usage and custom of merchants, payable at a particular banker's in London, I am of opinion that the holder was bound to present it at that house for payment; and to aver in his declaration that the same was presented at that house for payment.

To come to that conclusion, it appears to me to be only necessary to consider who the parties to the contract are; and what contract the defendant on this record has entered into. The plaintiff, or the payee, it is true, originally took a bill drawn upon the defendant generally: but when the defendant had that bill presented to him for acceptance, he said by his

Page: 457 ↓

Footnote

* Mar. p. 17. 4th ed.

† Comb. 452.

‡ Tit. Condition, p. 444, 1. 7. and p. 445. 1. 52.

Page: 458 ↓

If we were to speak of the convenience of this or that practice, there can be no question that it would be most convenient that the presentment of the bill at the place where it is made payable should be deemed a condition precedent; for it would be very inconvenient that acceptors, such as the original defendant, should be made liable to answer every where, when it is notorious that they have made provision at a particular place, where alone they engage to pay. There is no antecedent duty as against the defendant, save that arising on the bill; and, therefore, the instrument or bill must be looked at for the purpose of seeing what the duty is.

This case has not been fitly compared to the case of bonds; for there the penalty creates the debt, and the party is liable upon it, but is to discharge himself from the penalty by bringing himself within the terms of the condition: that, therefore, must be matter of defence. But where a suit is in assumpsit upon a contract, the plaintiff must show that he has done every thing which lay upon him to do, in order to bring himself within the contract, and entitle him to sue upon it. Now here, by the terms of this acceptance, a promise is made by the acceptor to pay at Perring & Co.'s; the plaintiff, who sues, then must bring himself within those terms, by showing that he made a demand at the place where the defendant said he would pay; and he cannot be made liable beyond the extent of his contract. Where a defendant contracts generally to pay a sum of money, he is liable to a creditor every where; but, where a person binds himself to pay at a particular place, he is not liable at any other place, till default be made at the particular place. For, otherwise, suppose a bill drawn upon one just before going the circuit (and this case is put by one of the most learned judges who ever adorned the Court of Common Pleas, I mean Mr. Justice Chambre * ), which will fall due during the absence of such drawee; such a person living in chambers leaves no servant on his departure, excepting, perhaps, a laundress; what can be done in such a case, except to deposit the money with

Footnote

* In Gammon v. Schmoll , 5 Taunt. 350.

Page: 459 ↓

But, it is said at the bar, if you can show that you had your money at your banker's, you would have a complete defence. Is it, then, no vexation to be causelessly arrested? Is a lawsuit no vexation? Is it nothing to be 20 l . or 30 l . out of pocket, though you gain your cause? And this evil is only met by the trifling inconvenience of an obligation on the plaintiff to call a witness to prove a presentment. Indeed, if we speak of inconvenience, it is all the other way; for, instead of the trifling inconvenience arising to a holder from the necessity of calling one witness to prove a presentment, every banker must, if the other view of the case be adopted, keep a number of clerks to go daily to all parts of the town, for the purpose of receiving payment of bills. So greatly was this inconvenience felt, that the Bank of England will not discount any bill that is not payable at a banker's.

But we have been told at the bar that the weight of authority is against the plaintiff in error. Let us examine the cases, and see whether the decisions in the Court of King's Bench, and one or two at nisi prius , before Lord Chief Justice Gibbs, carry with them the same weight of reason as those decided by the Court of Common Pleas sitting in bank; or, whether the Court of King's Bench has, in this respect, been consistent with itself.

The first case is Smith v. De la Fontaine , of which there is a short note in my brother Bayley's Treatise on Bills of Exchange * : however, a more full account is given of it in a note to Mr. Holt's nisi prius oases † , which is taken from a manuscript of my brother Holroyd; and there seems no doubt, that in 1785 Lord Mansfield at nisi prius , and the Court of King's Bench afterwards, decided, that words similar to those here used were not words restricting or qualifying the acceptor's

Footnote

* p. 129, note b. 3d ed.

† P. 366.

Page: 460 ↓

Two very modern cases have been quoted to your Lordships to show that Lord Chief Justice Gibbs concurred with the decision of the Court of King's Bench in Fenton v. Goundry ; namely, the cases of Head v. Sewell , and Richards v. Lord Milsington ¶ . I will speak of Head v. Sewell first. It is sufficient to observe, that it was only a nisi prius case: next, it is so singular a case, that either the note is incorrect, or the

Footnote

* l Cambp. 422.

† 13 East.

‡ 7 East, 385.

§ Lord Ellenborough, C. J. & Grose, J.

|| 1 M. & S. 28.

¶ Holt, N. P. C. 363.

Page: 461 ↓

But I find the King's Bench, in Sanderson v. Bowes † , which was confirmed by an unanimous judgment in the Exchequer chamber ‡ , deciding diametrically opposite to the case of Fenton v. Goundry: and every word of the judgment of that great and eminent judge Lord Ellenborough is, in my mind, conclusive in favour of the plaintiff in error. Agreeing, as I do, with the learned editor of the Treatise on Bills of Exchange § , that it is difficult to reconcile in principle with the case of Sanderson v. Bowes , that of Fenton v. Goundry ; and Sanderson v. Bowes , being the last in decision, ratified by the decision of the twelve Judges of England, and most agreeable to good sense, reason, and convenience, I think that it ought to prevail. The only

Footnote

* 4 Camp. 200.

† 14 East, 500.

‡ Bowes v. Howe , 5 Taunt. 30.

§ Bayley on Bills, 185, note I. 3d ed.

Page: 462 ↓

Having thus shown the inconsistency of these decisions, and that Sanderson v. Bowes has not only had the judgment of the King's Bench in favour of that opinion, which I presume to deliver, but the confirmation, as to this point, of the whole Exchequer Chamber, can I hesitate in saying, that the strong current of authority is in favour of the plaintiff in error, when I add, the authority of Judges Heath, Lawrence, and Chambre,

Footnote

* 2 Burr. 669.

† 4 T. R. 148.

‡ 5 Taunt. 30.

§ 3 Camp. 247.

Page: 463 ↓

On these authorities, and upon the principles of common sense and understanding, I am of opinion, on the first question, that the holder was bound to present this bill at Sir John Perring's house for payment, and to aver that it was so presented.

2d Question.

As to the second question, viz . whether such an acceptance is to be considered in law as a qualified acceptance, I answer, that the whole of my reasoning, with which I have troubled your Lordships, is founded upon the affirmative of that proposition. All the text writers upon bills of exchange are clear on this point. I take it, that any acceptance varying from

Footnote

* In Gammon v. Schmoll , 5 Taunt. 353.

Page: 464 ↓

3d Question.

The third question, in my view of the case, is not of difficult solution. Marius supposes ¶ , that if the holder take from the acceptor an acceptance, even for a part only of the money drawn for, he may do so, provided he protests and gives notice to the drawer, and the bill is not thereby void; nor, according to what he says in page 21, does it prevent the holder from having recourse against the drawer. This is stated in the case of so material a change as a defalcation of part of the sum drawn for. But to the case put by your Lordships, I answer, that, if the qualification, either as to time or place, works neither injury nor inconvenience to the drawer, the holder is not prevented (in case of non-payment) from his remedy against the drawer, because he has taken such qualified acceptance. In the case out of which this question arises it neither produces the one nor the other: but it is a custom productive of great convenience to every one concerned in trade, and without which qualification bills of exchange are not discountable.

4th Question.

As to the fourth question, I am of opinion, that C . could not maintain his action for the original debt against A . the drawer, without delivering up to him the bill so accepted. Because, having once accepted such bill in lieu of and in satisfaction of his debt, he cannot recover for the original debt without

Footnote

* PP. 17, 21.

† b. 2. ch. 10, s. 21.

‡ Id. s. 28.

§ p. 481. 4th ed. fol.

|| Bayley on Bills, pp. 85, 86. 3d ed.

¶ p. 17.

Page: 465 ↓

Bayley , J.

1st Question.

Bayley, J. In answer to the first question, I submit that the effect of such an acceptance is this, that to entitle the holder to sue the drawer or indorser, it casts an obligation upon him to present the bill at Sir John Perring & Co.'s for payment, and to aver in his declaration, that the same was so presented; but that, as against the acceptor himself, the holder is not bound so to present it; that he is under no obligation to aver any such presentment in his declaration; and that the only consequence of his neglect to present is this, that the acceptor may set up any loss he has sustained thereby as matter of defence. This question is raised upon a demurrer to the plaintiff's declaration. The point, therefore, is not whether a neglect to present may not, even as against an acceptor, in some cases, constitute a defence, but whether the presentment is or is not an essential part of the plaintiff's title. A presentment is a demand at the place of payment, and to determine this point, the rules which the law has laid down as to cases in which a demand is or is not necessary, must be considered. One of these rules I take to be this, that where a man engages to pay upon demand what is to be considered his own debt, he is liable to be sued upon that engagement, without any previous demand; and that a tender or readiness to pay must come by way of defence from the defendant; but that if he engage to pay upon demand what was not his debt, what he is

Footnote

* 5 T. R. 513.

Page: 466 ↓

Footnote

* 1 Saund. 33. a.

† See 1 Wms.'s Saund. 33. a. note 2.

Page: 467 ↓

Footnote

* Lutw. 558.

† PP. 318. 322, 323.

Page: 468 ↓

Footnote

* p. 194.

† Fitzg. 53. 1 Barnard. 84.

Page: 469 ↓

Footnote

* 22 H. 6. 57. PI. 7.

† Plowd. 69. Dyer, 68. a.

‡ Cro. El. 415. 535.

Page: 470 ↓

In Brooke's Abridgment * is this position:—

“In debt for rent, tender on the land and refusal of plaintiff is no plea, for he shall answer to the debet ; but the contrary in avowry; for there is to be a return, and there ought not to have been distress if tender was made.”

Now what is the meaning of this passage? evidently this, that in debt it is no plea in bar of the action; it is a bar of damages only, not of the debt: and, therefore, he must answer to the debet by bringing the money into the court upon the tender, which in the case of a plea in bar to an avowry he need not do. Brownlow v. Hewley † is an authority to show that, upon a plea of tender on the land at the day in an action of debt, the rent must be brought into court; and Horne v. Lewin ‡ to show, that upon a plea in bar to an avowry it need not be brought into court. In Osborn v. Beversham § , in debt for rent, the plea was readiness at time and place, and ever since, and profert of the money. To this plea there was a demurrer, grounded on two objections. 1st, Non obtulit , for when time and place are certain, semper paratus without an obtulit is no plea. 2d, It is pleaded in bar generally; it should have been in bar of damages only; and the Court thought both objections good. Levinz makes a query on the first ground, because the rent is demandable, ( i.e . Plaintiff should have demanded it,) “otherwise,” says he, “of a sum in gross, which is payable without demand.” In Crouch v. Fastolfe || cited yesterday, by my brother Richardson, to debt

Footnote

* Dette, pl. 216.

† 1 Lord Raym. 82.

‡ Id. 639. Salk. 583.

§ 1 Vent. 322. 3 Keb. 800. 2 Lev. 209.

|| S. T. Raym. 418.

Page: 471 ↓

I now come to apply these principles to bills of exchange The acceptor is, by the law and custom of merchants, considered as the principal debtor; the drawer and indorser as sureties only, liable on his default, and not otherwise. His engagement is general, that he will pay; that of the drawer and indorsers is conditional, namely, that if due diligence be used, they will pay, if the acceptor does not. The engagement of the acceptor is, either that he has effects in hand, or that he is secure of having them by the time the bill becomes due. In the language of the Lord Chief Justice Eyre, “The theory of a bill of exchange is, that the bill is an assignment to the payee of a debt due from the acceptor to the drawer, and the acceptance imports that the acceptor is a debtor to the drawer, or at least has effects of the drawer's in his hands.” The acceptor, therefore, has, or ought to have, in his hands, or under his control, the fund by which payment ought to be

Footnote

* Lib. Plaeit. 150.

† Lord Raym.644.

Page: 472 ↓

If a bill be addressed to A . in Bedford-square, and he accept it generally, in an action against the drawer or indorser presentment must be alleged and proved: in an action against A . presentment need not be alleged or proved. If A . have changed his residence, and accepted it payable at his new abode, does this make any difference?—presentment need not be averred in the one case—need it be averred in the other? If the necessity exist, there must be some reason for it. What is that reason? Though I am putting the case where the bill is still payable at the party's own house, and this is the case where the biil is made payable at a banker's, does this make any difference; does it vary the character or situation of the acceptor, so as to put him in the situation of a surety only instead of a principal, and if due diligence be not used, exonerate him from all liability, and enable him to keep the money to himself? The form of the acceptance in this case is material. The declaration states it thus:

he the said Joshua accepted, according to the said usage and custom of merchants, payable at Sir John Perring & Co.'s, bankers, London; that is to say, at the house of certain persons using in trade and commerce the names, style, and firm of Sir John Perring & Co,. bankers, London.”

“Which bill of exchange,

Page: 473 ↓

By whom the bill is to be paid at Sir John Perring & Co.'s, whether by the defendant, or by Sir John Perring & Co., the acceptance does not state; whether Sir John Perring & Co. were bankers for the defendant is not stated. In the first place, it is not in a form to require Sir John Perring & Co. to pledge their credit for the payment of the bill; it is at most only an authority to them to pay; and, unless Sir John Perring & Co. choose to make themselves responsible, they can never be sued for the money. Why it is to be paid there; whether, because Sir John Perring & Co. were the defendant's bankers, or because he was an inmate or member of that house, is not stated. I will take it, however, for granted, for the sake of argument, that it is made payable there, because Sir John Perring & Co. were the defendant's bankers. Sir John Perring & Co. then, are to be agents for the defendants in this transaction. Will making the bill payable at an agent's change the situation of the acceptor, and make it incumbent on the holder, in an action against the acceptor, to aver and prove presentment at such agent's, when they would not be bound to aver or prove presentment at the acceptors? That such presentment will generally be made there can be no doubt, because, otherwise, the security of the drawer and indorsers will be lost; but though presentment is in fact made, there may be cases in which the party may fail in proving it. The party presenting the bill may remove out of the reach of the holder, or may die. Is it right, or is it law, that because the holder fails in that link of evidence he is to lose his debt? Before the necessity of such averment is established I wish to draw your Lordships attention to the consequence. If the effect of such an acceptance be to make this averment and proof essential, it follows, that the holder has a right to object to this burthen, and reject the acceptance, Right to reject is admitted in Bishop v. Chitty , Callaghan v. Aylett , and in Gammon v. Schmoll * . Will this

Footnote

* Per Chambre and Dallas, Js.

Page: 474 ↓

Page: 475 ↓

I have troubled your Lordships so much at length on the principles which, in my view, govern this case, that I shall address the house but shortly on the decisions. The point came first before the Court (as far as we can learn from printed reports) in Smith v. De la Fontaine: that case was tried before Lord Mansfield, in 1785, and from that time to the year 1806 the question does not appear to have been agitated. Then came Callaghan v. Aylett , in 1811, in which the decision was adverse to that of Smith v. De la Fontaine . The case of Callaghan v. Aylett was in the same year followed by that of Fenton v. Goundry; and I will only excuse the Court of King's Bench for coming to a decision on that case, (adverse as it was to the decision in Callaghan v. Aylett ) at the moment, because Lord Ellenborough (and that learned person, while at the bar, had most extensive experience in cases of bills of exchange) laid the foundation of his judgment in Fenton v. Goundry on the invariable usage, to which he adverted in energetic language: on that ground only the Court of King's Bench did not take time to consider in that case.

The case of Fenton v. Goundry was followed by that of Gammon v. Schmoll which I will only notice on account of the case of inconvenience there put by Chambre, J., and to the case put by him I will add one or two other supposed cases. A bill is brought to me for acceptance just as I am setting off for the circuit; I tell the holder that I am going to be absent from town, and that I can only accept the bill payable at my bankers: he refuses this acceptance, on the ground that it will give him additional trouble and inconvenience; and the bill is consequently dishonoured. Suppose the case of a bill drawn in the West Indies, on a merchant in England, who accepts it payable at a banker's: the merchant finding the bill not debited to him, supposes there may have been some neglect on the part of the holder, but finds the bill protested for non-acceptance; that the person who presented it for acceptance

Page: 476 ↓

Many of the principles now insisted on may seem at variance, I admit, with the decision in Sanderson v. Bowes , and the other cases on promissory notes. I could distinguish those cases from Fenton v. Goundry ; for in the latter case, the acceptance payable at the place was no part of the original conformation of the bill itself; but, in the former cases, the words restrictive of the payment were incorporated in the original form of the instrument. But I do not wish to answer those cases on these grounds; for I am free to confess that I doubt the propriety of those decisions, although I was myself a party to them; and I think it more manly to say, that I consider my opinions in those cases erroneously formed, than to attempt to distinguish those cases from Fenton v. Goundry , by the use of nice and subtle differences. I hope, therefore, that the case of Sanderson v. Bowes will not be followed as a precedent; for, as far as I can judge, the principles for which I have been contending apply to promissory notes as well as bills of exchange The case of Bishop v. Chitty * , proceeded partly, and I think, principally, on the ground that there was actual laches on the part of the holder, and laches which prejudiced the acceptor. In that case, the acceptance was, “Messrs. Caswell and Mount, pay this bill when due, for Thomas Chitty;” it was, therefore, in a form entitling the holder to call upon Caswell and Mount to pledge their responsibility for the payment of the bill. In the case before the Court the holder has no right to call upon Sir John Perring & Co. to pledge their responsibility for payment; nor can they be sued if they refuse to pay it: there is no privity between them and the holder: this principle is established in the case of Williams v. Everett † . In Bishop v. Chitty , the bill fell due on the 2d of January, and Caswell and Mount paid till the 19th of that month, and the bill was not presented till the 21st: Lee, C. J. held, that it was the loss of the plaintiff; for this acceptance was in the nature of a draft,

Footnote

* Str. 1195.

† 14 East, 582.

Page: 477 ↓

2d Question.

On the second question proposed for the consideration of the Judges, I shall content myself with saying, that, for the reasons which I have already stated, I am of opinion, that, as against the acceptor, such acceptance is a general acceptance, with an engagement or direction that payment may be ebtained at the banking-house, with this addition only, that, if the

Footnote

* 4 M. & S. 464.

Page: 478 ↓

In answer to the third question, I submit, that a distinction is to be taken between an acceptance qualified as to time, and an acceptance qualified as to place. If C . take from B . an acceptance qualified as to time, giving B . a longer time for payment of the bill than the bill itself specifies, I consider it as quite clear that C . could not sue A . upon the bill. The holder of a bill has no right to give the drawer time. If he do, he does it at his peril. English v. Darley * establishes, that indulgence to the acceptor after the bill is dishonoured , discharges the drawer and indorsers; and there are many other cases to the same effect: if so, indulgence to him before the bill is due must have the same effect. An acceptance qualified as to place, will, or will not, take away from C . the right to maintain an action against A . upon the bill, according as such acceptance does, or does not, throw upon A . an additional burthen, or cast upon him any prejudice. If the bill be payable at a place where the drawee lives, his house is primâ facie primâ facie the place at which it is to be paid, but the usage of merchants warrants the drawer in naming any other house at the same place for payment. If the drawee has no house at the place where the bill is made payable, the holder has a right to require from him an acceptance specifying some house in particular in that place, for its presentment. This doctrine is laid down by Holt , C. J. in the case cited by my brother Holroyd † . But, if naming a particular house casts upon the drawer any new burthen or prejudice, the holder, by allowing such house to be named, has done, as to him, what he was not warranted in doing, and the drawer is discharged. The question then is, Does the qualification as to place cast on the holder a new burthen or prejudice? and, if it oblige him to prove at his peril, in an action against the acceptor, what upon a general acceptance he would not be bound to prove, it does cast upon him a new burthen.

4th Question.

In answer to the fourth question, I am of opinion, that C . would not be at liberty to maintain an action against A . on his

Footnote

* 2 B. & P. 6l.

† Lord Raym. 575.

Page: 479 ↓

Wood , B.

1st Questions.

Wood, B . In answer to the first question, I am of opinion, that the bill of exchange mentioned in the first count of the declaration, being therein alleged to have been accepted according to the usage and custom of merchants, “payable at Sir John Perring and Co. bankers, London,” that is to say, at the house of certain persons using in trade and commerce the name, style, and firm of Sir John Perring and Co. bankers London, the holder was bound to present it at that house for payment, and to aver in his declaration that the same was presented at that house for payment.

It is clear, that the drawee of a bill of exchange, if he choose to accept it, may do it generally, or may make a special or qualified acceptance. The holder may refuse to take a special or qualified acceptance; but, if he do take it, he is bound by it, as that constitutes the contract between him and the acceptor. There are many cases which might be cited to prove this position, but I will only trouble your Lordships with one. In Petit v. Benson † , a bill was drawn upon the defendant, who accepted it by indorsement, in this manner, “I do accept this bill, to be paid half in money and half in bills;” and the question was, whether there could be a qualification of an acceptance, for it was alleged that his writing upon the bill was sufficient to charge him with the whole sum: so that the question here must have been, whether the words “to be paid half in money and half in bills” would not be rejected, and the acceptance stand as a general acceptance? “But ‘twas proved by divers merchants, that the custom among them was quite otherwise; and that there might be a qualification of an acceptance; for he that may refuse the bill totally, may accept it in part.

Footnote

* 5 T. R. 513.

† Comb. 452.

Page: 480 ↓

As there may be a qualified acceptance, is the acceptance in question a qualified acceptance? What makes a qualified acceptance? Why, the words used by the party in his acceptance? Do the words “payable at Sir John Perring and Co's bankers, London,” mean nothing? Are they mere surplusage? If so, then this bill ought to have been presented for payment at Torpoint. To make such constructions would, I conceive, be contrary to the usage of merchants, and the plain sense and meaning of words. Acceptance imports a promise; and the acceptance in question is a promise to pay at a particular place, that is to say, at a banker's in London. An acceptance is an actual promise to pay, [per Curiam, in Mitford v. Walcot † . There are two conflicting decisions of the Courts of King's Bench and Common Bench upon the point in question, viz . the case of Fenton v. Goundry , in K. B. and the case of Gammon v. Schmoll , determined by the Court of C. B. On those cases I will not trouble your Lordships with my comments: but I must observe, that there is a very material case of Sanderson v. Bowes , which, though my brother Bayley does not seem now to think so, I hold to be good law. In that case, a promissory note was made payable at a banking-house, and the Court held presentment at the banking-house

Footnote

* W. 3.

† 12 Mod. 410.

Page: 481 ↓

As to the second branch of the first question, viz. Whether the plaintiff is bound to aver in the declaration, that the bill was

Page: 482 ↓

Footnote

* Com Dig. tit. Merchant, 200.

† 12 Mod. 410. Mitford v. Walcot .

Page: 483 ↓

Page: 484 ↓

2d Question.

In answer to the second question, I am of opinion, that this bill having been so accepted as aforesaid, such acceptance is, in law, to be considered as a qualified acceptance to pay the same at the said house of Sir John Perring & Co. bankers, only ; and, that it is not a general acceptance to pay the same with an additional engagement or direction for the payment thereof at that house, for the following reasons: It is the custom of merchants and opulent persons to keep their monies at bankers, and to accept bills to be paid at their bankers, that they may not be under the necessity of keeping money at their own houses, or intrusting money to their servants in their absence to take up acceptances, or of carrying money about

Footnote

* 4 Leon. 2. Pulmant's ease.

† Per Jones, J. Godb. 403. Hern and Stub's case.

‡ 1 Salk. 129 Mitford v. Wallicot .

Page: 485 ↓

3d Question.

In answer to the third question, I am of opinion, that, if A . draw a bill on B . in favour of C. for 100 l . and C . without the previous authority or subsequent assent of A . take an acceptance of the bill for the whole of the 100 l . but an acceptance qualified as to the time or place of payment, C . could, notwithstanding such acceptance, maintain an action upon the bill against A . unless the qualification as to time or place produces a damage or injury to A . for the following reasons: If the

Page: 486 ↓

4th Question.

In answer to the fourth question proposed by your Lordships, I am of opinion, that if A . were debtor to C . in 100/. previous to his so drawing upon B . in favour of C . to the amount of 100 l . C . could not, upon A 's refusing his assent to an acceptance, qualified as mentioned in the above question, maintain an action upon the original debt against A . without delivering to A . the bill so accepted; in case, at the time the bill was drawn, B . was also indebted to A . in a like sum of 100 l . Lest I should have mistaken this question, I will take the liberty of offering some reasons or explanations. If C. take the draft of A; upon ZL, for a debt due from A . to C ., C . is bound to use his endeavour to get it accepted and paid; and, if it be not honoured, is bound to return it to A . in due time, and to deliver it up to A ., and, that being done, it is the same, then, as if no bill or draft had been given; and C. may then maintain his action against A . for his original debt. If the bill have been left for acceptance, and B . have written a qualified acceptance upon it, which C . does not choose to take, he should inform B . that he will not take an acceptance so qualified, and require a general acceptance; and if that be refused he should strike out what was written, and return the bill to A . as an unaccepted bill, in which case C . may resort to his original debt against A . If C . without A .'s previous authority or subsequent assent, accepts and assents to B .'s acceptance, so qualified as to time or place as materially to alter the condition of' the drawer, in that case he can only resort to B .; the acceptor, according to the terms of his acceptance, and A . will be

Page: 487 ↓

Graham , B.

1st and 2d Questions.

Graham, B . The general question is, whether the words of this acceptance form a condition precedent, and constitute a qualified acceptance, or a general acceptance with an additional engagement or direction for payment at the house mentioned. If these words do constitute a condition precedent, it was necessary before action brought to demand payment at the place mentioned, and to aver in the declaration that the plaintiff had so done. When a man accepts a bill, it is the most solemn, because it is the most public recognition of the drawer's right to demand the amount of it from him. The acceptance is an obligation to pay all over the world, and the -question is whether, generally speaking, in the intention of the acceptor and the understanding of the holder, the words “payable at Sir J.Perring and Co's,” contract this general obligation to an engagement that the acceptor will pay the drawer there, and no where else, (as some seem to think), or, at least, not till it be proved that a demand was made there in vain. In my apprehension such an acceptance is no qualification of the general liability of the acceptor. It is a substitution of the banker's for the person and abode of the acceptor, for mutual convenience; and means only to charge the drawer and indorser in transitu , that the holder, instead of calling upon the acceptor, should make his demand at the banker's. No demand is necessary against the acceptor; he is liable without demand; but, to charge the drawer, you must prove a demand on the acceptor, or on the person whom he has identified with himself for that purpose. The question, then, will be, does a man mean to impose a condition, or to suggest, for mutual convenience, a place, where, with least trouble to both, the money may be had? But this question, of daily occurrence, simple as it may seem, and of easy solution to some, is rendered complicated and difficult by great and conflicting authorities.

As to the balance of authority, I think it cannot be doubted, from the case of Smith v. De la Fontaine , in 1785, what Lord Mansfield's opinion was. His great experience and knowledge

Page: 488 ↓

Footnote

* 2. II. B. 509.

† 1 Campb. 423.

Page: 489 ↓

But it is said, in order to diminish the weight of these authorities, that the Court of King's Bench have not always been consistent. And first, it is said, that in Parker v. Gordon || , they have recognized the propriety of an application at the place of payment. But that was an action against the drawer; and it is universally true, that to charge the drawer you must prove a demand on, and refusal by, the acceptor or his substitute. If, therefore, he says, “I accept, payable at my banker's,” he says, “it is there I am to be called upon for payment; that is my house; there it is where I am to be found, and I authorize you to consider me as personally present there for the purpose of payment:” and, if so, the holder may be presumed to know the banking hours. And if the holder were not bound to this, he must have gone, as Lord Ellenborough.

Footnote

* Wild v. Rennards , 1 Campb. 425. n.

† Head v. Sewell , Richards v. Milsington , Holt, N. P. C. 363, 364.

‡ 7 East, 386.

Page: 490 ↓

Footnote

* In Parker v. Gordon , 7 East, 386.

Page: 491 ↓

Footnote

* 2 Taunt. 6l.

† M. 51 G. 3. K. B. See Bayley on Bills, 98. n. 1. 3d ed.

Page: 492 ↓

Page: 493 ↓

3d Question.

In answer to the third question, I am of Opinion, that if the holder of a bill for acceptance take an acceptance, varying in time or place of payment, where place creates inconvenience, and obstructs or impedes the circulation of the bill, or, when new terms or conditions are introduced, he makes it his own. This is obvious in the case of enlargement of time. So, if the acceptance be payable at Paris, Dublin, or Edinburgh, where the place is evidently made a condition of the payment; in such a case, I think that the drawer would be discharged.

4th Question.

In answer to the fourth question, I am of opinion, that if, in the case put, C . take an acceptance, materially qualified as to time or place, and A . dissent, and C . still keep the bill, he makes it his own, and cannot sue A . on his original debt: but if C . give timely notice to A . and immediately offer to return the bill to A . I think his original cause of action would remain.

Once settle the uniformity of practice, and the evil is over. But, according to the law as laid down by the court of King's Bench, you have a plain simple declaration and proof. According to the law laid down by the court of Common Pleas you have a new form of declaration, and a proof which, in many instances, may be difficult, and may lead to controversy and contradiction.

Richards , C. B.

1st Question.

Richards , C. B., as to the first question, was of opinion that the holder of the bill was not bound to present it at Sir. John Perring's & Co. for payment, nor to aver presentment there.

Page: 494 ↓

As to the second, that the acceptance of the bill in question was not a qualified acceptance, constituting an undertaking to pay the bill at the house of Sir J. P. & Co., but a general acceptance, constituting an undertaking to pay the same every where, with an additional engagement or direction for the payment thereof at that house.

3d Question.

As to the third, that if the payee C . were, without the previous authority or subsequent assent of the drawer A . to take an acceptance qualified as to time or place, by taking such an acceptance he would discharge the drawer A .

4th Question.

At to the fourth, that if A . were to refuse his assent to such a qualified acceptance, C . having received the bill for the debt of 100 l . due from A . could not sue A . for the debt till he had re-delivered the bill to A .

Dallas , C. J.

1st Question.

Dallas, C. J. With respect to the first question, I am of opinion that the holder was bound to present the bill at the banking house of Sir J. P. & Co., and so to aver in the declaration.

2d Question.

1st and 2d Questions.

As to the second question, I think that the bill, having been so accepted, is, in law, to be considered as a conditional acceptance, and not as a general acceptance to pay, with an additional engagement or direction for payment at the house mentioned. And as the case which has given occasion to your Lordships questions has arisen from contradictory decisions in the courts below, and as, in the recent cases, all that could be found of former decision has been brought under the consideration of the respective courts, and their disagreement in opinion has still continued, and continues, (as appears from the answers hitherto given,) it is obvious that the present is a case which can very little depend upon mere authorities; the authorities have, however, been already fully referred to, and my reasons will therefore chiefly and shortly be given upon general grounds. And,-first, I admit the presumption of law to be, (though in the present state of commerce the fact is frequently otherwise,) that the drawing a bill of exchange pre-supposes an antecedent debt, and the acceptance is an admission that such a debt is due. And so considered, it is, no doubt, clear, that the debtor may be called upon to pay without reference to time or place. But if, in the bill itself, the drawer were to name a particular place for payment, instead of such place

Page: 495 ↓

Suppose, however, the case of a partial and qualified or conditional acceptance; and that an acceptance may be such in many respects has been admitted by all the learned Judges in succession: indeed the very questions put by your Lordships

Page: 496 ↓

Footnote

* Wegerstoffe v. Keene , Str. 214

† Walker v. Attwood , 11 Mod. 190.

‡ Comb. 452.

Page: 497 ↓

So, it is as to sum, as to time, as to mode of payment; in each of which cases the acceptance, it is admitted, forms the contract between the immediate parties. Is there, then, any difference in this respect, as to place, and as to place only ? In the argument at the bar, (and herein the case seems to me now narrowed to a single point,) it has not been disputed that there may be a conditional acceptance as to place, restrictive of payment, and making presentment necessary at such place, provided it be by words of express and unequivocal import; but it is denied that to make a bill payable at one place is an exclusion of others; and in Fenton v. Goundry , I observe, Mr. Justice Holroyd, who there argued against the restricted liability, seems to have taken the same distinction. “The case has been argued (he said) as if the terms of the acceptance had been payable at Sikes & Co's, only ,” not contending, that if so drawn the payment would not have been restricted; and Lord Ellenborough is made immediately to observe, “Is it more than an expansion of the promise ?” An observation, which his Lordship could not have made, if by the word only the promise had been, in terms, restricted; and, in the same way, in the case of Gammon v. Schmoll , in the Court of Common Pleas, it was not denied at the bar, that if the acceptance had

Page: 498 ↓

Page: 499 ↓

Page: 500 ↓

To wind up, therefore, what I have to observe upon this part of the subject, on the reason and fitness of the thing, on principles of justice and meroantile convenience, and from the

Page: 501 ↓

Deeming, then, presentment at the appointed place to be a condition precedent, I will only further say, that I think it necessary that such presentment should be averred and proved; and, that non-presentment and having funds ought not to come by way of defence, as, in the case of promissory notes, has been decided by all the courts in Westminster-hall , and from which, notwithstanding what I have heard this day, I do not myself feel disposed to dissent. Presentment, according to Lord Ellenborough's opinion in Sanderson v. Bowes , at the appointed place, is a condition precedent; and for want of such an averment the declaration is bad. The argument, therefore, as to this point, resolves itself into the question, whether condition precedent or not? For, admit it to be so, then, in this respect, there is no difference between the two courts, and the cases of promissory notes apply to bills of exchange; while, on the other hand, if it be not a condition precedent, it is of course not necessary to be averred.

Quitting now the general ground, I come next to the analogies which result from other cases mentioned, if not of the same, yet of a similar description. And first as to promissory notes. It is scarcely necessary to advert to what has been said as to the similarity, or the distinction between promissory notes and bills of exchange. In some respects, undoubtedly, they are

Page: 502 ↓

Such, then, being the similarity, and, in some instances, the identity, of promissory notes and bills of exchange, let it be seen what has been determined with respect to promissory notes; premising only, that here, at least, there is no clashing of authorities: for though the decisions in the King's Bench, as far as respects promissory notes, are denied to have application to bills of exchange, the decisions in the Common Pleas, as to bills of exchange, of necessity include promissory notes; and so far, then, as concerns promissory notes, there is no difference of opinion whatever. What then has been decided respecting promissory notes? In this, the decisions of the two courts agree; namely, that a promissory note, containing in the body of it a promise to pay at a particular place, requires a demand of payment there, in order to give the holder a cause of action if it be not paid. Now on what grounds of reasoning do such

Footnote

* In Shuttleworth v. Stevens , 1 Campb. 407.

† Richards v. Milsington , Holt, N. P. C. 364. n.

‡ Burr. 669.

Page: 503 ↓

Page: 504 ↓

“every general acceptor has a double liability; he is in default, first, if the bill is presented to him personally, wherever he may be, and he does not pay it; secondly, he is in default if it be presented at his place of abode, and not paid: to these, by a qualified acceptance, he adds the obligation to pay it if it be produced at the place,”

that is, the place specified. He must be prepared “with triple funds to pay the bill, as well where his person is, as where his abode is, and also, at the particular place mentioned: this is what Lord Ellenborough means by an expansion of the promise.” This is a complication of expansibility which seems to me a strange departure from simplicity of proceeding; and, for myself, I can only say, I would not so understand it, if I could understand it to any other effect; but it is impossible to deny, whatever might be intended by the mode of expression itself, that in sum and substance it does amount to this. But whether every man who accepts a bill of exchange, by his acceptance at a specific place undertakes to pay at every other place if required, and to have a triple instead of a double or a single fund to the amount of the bill accepted; or whether he makes his own situation worse, by making that of the holder, in one respect at least, better, that is, by pointing out to him a definite place of payment, instead of leaving him to search where he, the acceptor, is to be found, when the bill becomes due, it is not for me to pronounce, but for your Lordships to consider. Or why, again, this should be in the case of a bill of exchange and not of a promissory note, is that which I am not able to understand.

I now come to that, which it is said, however, makes the distinction between bills of exchange and promissory notes, so as to make the reasoning as to the latter inapplicable to the former. And this distinction is said to consist in the form and nature of the respective instruments. First, then, as to the form . In a promissory note, it is said, the words are incorporated in the very body of the instrument, which creates the contract and duty of the party; whereas, in a bill of exchange, they are no part of the bill itself, but distinct as acceptance, and collateral to it. A promissory note is merely the promise of the maker; the acceptance of a bill of exchange is a compliance with the order of the drawer. To a promissory note

Page: 505 ↓

3d Question.

To advert, however, to the situation of the drawer, and this brings me to the third question. And, first, with respect to time: in this the learned judges all agree that giving time will discharge the drawer. Extending the time mentioned in the bill would be giving more time than the drawer has said by the bill he chooses to give, which, as against the drawer, the payee can have no right to do; and, taking an acceptance at a shorter date, if, in case of non-payment, it would give an immediate action against the drawer, would thereby make him liable sooner than he undertook to be; he being liable only in case of non-payment by the acceptor, and this at the end of the stipulated time. I need scarcely add, it would be the same as to place, if place, from its nature, should resolve itself into time. It remains, therefore, only to consider place as unconnected with and independent of time. And, so considered, it may, or it may not, be material to the drawer. Suppose all the parties to live in the same town, whether the bill be accepted at the counting-house, or at the banking-house, can make no real difference to the drawer; in other cases, from distance, it might be material; but, at all events, I think, that if it put the drawer under greater difficulties than he otherwise would be under in point of proof of proper presentment, if bringing an action himself, it is a difficulty which I hold the payee has no right to impose upon the drawer, whose rights should remain unaltered, as ascertained by the

Page: 506 ↓

4th Question.

With respect to the last question, I am of opinion, that under the circumstances stated, C . could not maintain an action against A . without delivering up the bill, and this for the reasons given by several of the learned Judges, and which I do not feel it necessary to repeat.

In the above observations, I may appear to have built much on the decisions as to promissory notes; but it has been said these decisions themselves, perhaps, in point of law ought not to have taken place. To this I can only answer—first, that it is impossible for me to doubt of the validity of these decisions, numerous as they are, recognized and confirmed as they have been by every court, and never, in a single instance, having till this day been drawn into doubt by even a single Judge. If the law so settled is now to be considered as unsettled, I know not on what foundation, in point of law, any decision can stand: but, here , disclaiming even those decisions as decisions, and recognizing only the principle on which they proceed, I say, that, if the case of a promissory note were to occur now for the first time, it ought to be decided as those cases, have been decided; and further, that without deriving authority from the decisions as such, the principles on which they have proceeded, and ought still to rest , apply equally, in my judgment, to bills of exchange. On the whole, therefore, my opinion is formed, as to bills of exchange, even without reference to the decisions as to promissory notes, and still less have I referred to the cases of promissory notes for the purpose of proving the decisions of the Court of King's Bench inconsistent each with the other, but for the purpose of respectfully adopting the decisions of that Court where they agree with the decisions of the other Courts, and thus affording principles decisive, in point of law, of the same question as to bills of exchange. And here, without

Page: 507 ↓

Abbott , C J.

1st and 2d Questions.

Abbott , C. J.—In answer to the first and second questions, I think the defendant in error was not bound, in order to entitle himself to sue the plaintiff in error, who is the acceptor of the

Page: 508 ↓

These two questions appear to me to depend entirely upon the meaning and import of the words “payable at Sir John Perring & Co.'s, bankers.” There can be no doubt that the drawee may qualify, because he may refuse his acceptance. The question is, whether he is to be considered as having done so by this expression? I conceive that the true meaning and import of all phrases is to be sought in usage, rather than in a strict and literal interpretation of the words of the phrase; and, that in mercantile instruments the usage of trade and commerce is that to which we are to resort. There are many words and phrases in all languages, of which the meaning varies with the subject and occasion to which they are applied. I shall take leave to postpone the delivery of the grounds of my opinion on these two questions until after I have stated my opinion on the third question, and the reasons of that opinion.

3d Question.

I understand the expression “take an acceptance,” as used in this third question, to mean consent to such an acceptance; and, so understanding it, I am of opinion that C . could not, in the case proposed, maintain an action upon the bill against A . upon the refusal of payment by the acceptor. There is not, I apprehend, any doubt or difference of opinion upon so much of this question as supposes an acceptance qualified as to time: and, in my humble opinion, a qualification as to the place of payment has the same effect as a qualification as to the time of payment.

I conceive, that in estimation of law all bills are to be considered as drawn for value, if not actually in die hands of the drawee at the time of drawing, (which seems to have been usually the case in the infancy of those instruments) at least intended by the drawer, and expected by the drawee to be placed in the hands of the latter before the maturity of the bill.

Page: 509 ↓

Page: 510 ↓

Page: 511 ↓

Page: 512 ↓

Page: 513 ↓

I consider an acceptance qualified as to the place of payment to be followed by the consequences that I have mentioned, where the holder consents to receive it; and, if I am right in this, then the holder must of necessity have a right to refuse such an acceptance, because he cannot be compelled to take an acceptance which may deprive him of his recourse against the drawer; and this seems to have been the opinion of those learned judges, who, in the decided cases to which your Lordships have been referred, considered an acceptance like the present to be a qualified acceptance. If, then, the holder may refuse such acceptance, or if, consenting to take it, he loses his recourse against the drawer, I must say, I am entirely at a loss to discover how it can have happened, that in no one of the thousands and tens of thousands of bills which have been accepted in this form in England, in the course of the last thirty years, any holder of the bill has ever refused to take such an acceptance, or any drawer contended that he was discharged by the holder's consent to take it. I say, that neither of those things has happened, because I have never heard of them either in or out of a court of justice. Upon this consideration, I am satisfied, that according to the usage and custom of merchants, these words, “payable at, &c.” are not understood to furnish a qualification, or to import that the acceptor will cause payment to be made, if the holder will present the bill at the place appointed, but not elsewhere, or otherwise. And I am particularly desirous to seek the meaning of these words in the usage of merchants at the Exchange, rather than in Westminster Hall; because a difference of opinion as to their meaning has for some time prevailed, not only among the judges now present, but also among some of those revered persons who are now no more. I must, however, add, that the words themselves are not apt words of condition or exclusion; and that if their meaning be doubtful, they are to be interpreted most strongly against the person using them, that is, the acceptor; and the most strong

Page: 514 ↓

Page: 515 ↓

4th Question.

In answer to the fourth question, I am of opinion that an action could not be maintained under the circumstances therein mentioned; or, rather, that the delivery of the bill by the

Page: 516 ↓

Footnote

* 5 T.R. 513.

Page: 517 ↓

IN the discussion of the foregoing case three principal questions were made:

l. Whether the modern theory of law is to rest upon the ancient practice as to the acceptance of bills of exchange, according to which the acceptor was antecedently a debtor, or person having in his hands the funds of the drawer: or whether the extensive practice now established in commerce, of drawing bills, to which the acceptor lends his name and credit for the accommodation of the drawer, has altered the theory of law as it is supposed to have existed formerly; and accordingly, whether the acceptor becomes a debtor by and upon the terms of his acceptance only, as a contract then first made by him, without reference to any antecedent debt or debts.

2d. What is the true construction of the contract in this particular case:

3. Whether an action of debt will lie upon such contract or acceptance:

The two first questions have been satisfactorily investigated in the proceedings before the House of Lords in this case.

As to the last question, it was touched slightly, but passed without discussion. It is a question, in an abstract view, seemingly of little importance, but as connected with a consideration of the general principles of commercial jurisprudence, as involving a controversy upon the technical rules of pleading, on which the issue of suits, and the fate of suitors, are made to depend, and peculiarly as exhibiting one among many examples of the progressive change of legal opinions, it is a question well deserving a more studious investigation than the opportunities of the editor will afford * .

Footnote

* This Note was printed three years ago, (Dec. 1820,) at the end of a pamphlet, containing a short report of the case now reported at length. The editor having in that note invited the aid of persons better qualified to discuss the question, the invitation has been accepted, without reference to the previous labours of the editor, by a gentleman who has published “An Analysis of the case of Rowe v. Young .” At the end of that analysis (sect. 3, p. 64), the author discusses this same question, whether debt will lie upon a bill of exchange. To that discussion the editor refers the Profession, that it may be seen in what manner and degree the original argument is amplified, improved, or varied by a different assortment of the authorities and topics of discussion.

Page: 518 ↓

To form a satisfactory opinion, it is material, in the first place, to consider accurately the early cases upon bills of exchange and promissory notes, and to examine the grounds and reasons of each decision. Upon such a review, it will appear that it is little more than a century since it was the solemn decision of an English Court of Justice, that no person but an actual merchant * could draw a bill of exchange. When this notion was removed by more liberal decisions † , it seems to have been doubted whether an action of debt, or indebitatus assumpsit , could lie against any of the parties to, and whether, on the bill or note. Yet in some of the cases it is suggested, that indebitatus assumpsit may be maintained on the bill or note as a contract between the privies to it, or in their names, and that the bill or note may be offered in evidence ‡ . Afterwards it was held in some cases that debt § , in others that indeb . || assumpsit , would lie against the maker of a note (or drawer of a bill), where it was expressed to be for value received. But still the great technical objections prevailed as between the drawer or maker, and payee, where value received was not expressed upon the face of the bill or note; and as between all other parties for a supposed want of privity of contract.

At last, when the extension of commerce impressed upon the Courts the necessity of weighing the convenience of mankind against technicalities, which grew out of an obsolete state of society, and rested, but with much inconsistency of decision, upon grounds which no longer existed; when the custom of merchants, which is the foundation and substance of the law of commerce, began to be considered as a branch of the law of nations—a part of the law of England, and, as such, to be

Footnote

* Lutwyche's Reports, 891, 1585.

† Carth. 82; 2 Ventr. 292; Comberb. 152; 1 Shower, 125; 12 Mod. 336. 380; Salk. 125.

‡ Brown v. London , 1 Freeman, 14; Welch v. Craig , 1 Mod. 285; 1 Vent. 152; Stra. 680; 8 Mod. 373; Salk. 125; 12 Mod. 37. In many of these early cases it does not appear by or against whom the action is brought.

§ Morgan's Prec. 458; Rumball v. Ball , 10 Mod. 38; and Bishop v. Young , 2 Bos. & Pul. 78.

|| Hodges v. Steward , Skinner, 346; 12 Mod. 345; Clarke v. Martin , Lord Raym. 758; 12 Mod. 380; 2 Vent. 292.

Page: 519 ↓

To ascertain what are the circumstances in which an action of debt may be maintained, what is the definition and rule prescribed by the text-writers, is the second object of inquiry §§ .

It is reported in one case to have been held that indebitatus assumpsit will lie in no case but where debt lies |||| . But the matter is accurately defined in a book of great authority, where ¶¶ it is said, that “debt lies upon every express and implied *** contract to pay a sum certain.” A bill of exchange, within the very terms of this definition and rule, is a request and undertaking ††† by the drawer; and when accepted, a contract by the acceptor for the payment of a sum certain

Footnote

* See the argument of Judge Buller, in Master v. Miller , 4 Term Rep. 343, and Pillan v. Mierop , Burr. Rep.; Tatlock v. Harris , 3 T. R. and the several cases of bills drawn payable to the order of fictitious payees. See Gibson v. Minet , 1 H. Blac. 569; and Gibson v. Hunter , 6. B. P. C. with the note prefixed.

† Lord Raym. 758; 12 Mod. 380; Burr. Rep. 1525; see also 6 T. R. 123; Kessebower v. Tims , B. R. Pasch. 22 Geo. 3.

‡ Tatlock v. Harris .

§ Kessebower v. Tims .

¶ Grant v. Vaughan .

** White v. Ledwick , Bayley on Bills, 16.

†† Ward v. Evans , 2 Lord Raym. 930.

‡‡ Vere v. Lewis , 3 T. R. 182.

§§ See this point of the argument discussed in the note to Eyre v. The Bank of England , ante, vol. 1, p. 606.

|||| Hard's case, Salk. 23; and quære quære , Whether the terms of the proposition are not convertible?

¶¶ Com. Dig. tit. Debt, A. 8.

*** Ibid. A. 9.

††† Collis v. Emett , II. Black. 321.

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That the acceptance is an express , or at least an implied, contract by the acceptor, to pay a sum certain , is assumed by all the Judges and the Lord Chancellor in their arguments § upon the case now reported, and may be proved, if requisite, by a multitude of preceding authorities. The question as to privity of contract, or the communication of the rights and benefit of the contract between the original and adopted parties to a bill of exchange, must also depend upon the principles of commercial law, as applicable to instruments of a negotiable nature. It is almost, if not altogether, identical with the question, whether the acceptor incurs an assignable debt by his acceptance, or what is the nature of his contract. In theory, a bill of exchange is an assignment to the payee of a debt due from the acceptor to the drawer. The acceptance imports either that the acceptor is a debtor, or that he holds effects of the drawer || . Acceptance of a bill imports, and is primâ facie primâ facie evidence, that the acceptor has effects of the drawer in his hands ¶ ; it is an admission of effects. The acceptor by his acceptance gives faith to the bill; and the holder, giving credit to the fact, pays the value on receiving the bill ** . Giving a bill is an assignment †† , or appropriation ‡‡ of so much property, which becomes money had and received to the use of the holder.

Footnote

* Martin v. Chantry , Stra. 1271; Bayley on Bills, p. 4.

† Anon. Bull. N. Pri. 172.

‡ Jackson v. Hudson , 2 Camp. N. P. C. 44.

§ See the arguments passim , and p. 37, the opinion of Wood, B.

|| Dict, of Eyre, C. B. in Gibson v. Minet , 1 H. Blac. p. 602. It may be accepted for honour, but the law in that case implies the same obligation.

¶ Master v. Miller , 4 T. R. 339.

** Burr. Rep. 1675, ( qy .) per Aston, J.

†† Grant v. Vaughan , Burr. per Yates, J.

‡‡ Tatlock v. Harris , 3 T. R. 182.

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Such are the doctrines of law as to the obligation of the acceptor, and the relation between him and the holder considered as payee; doctrines promulgated by judges of various learning, and the highest celebrity in municipal as well as commercial jurisprudence. Upon equal authority is founded the doctrine as to the relation of other parties in a bill of exchange. Every indorser is in contemplation of law a new drawer ‡ And as between indorsee and indorser, though neither of them are actual parties to the original contract, and the whole transaction amounts to no more than money or other consideration passing from the one, and the writing a name by the other, yet this constitutes a mercantile privity, which is recognized by municipal courts, and becomes the foundatian of the remedies which they administer in favour of the indorsee against the indorser § , as well as the acceptor and drawer of the bill. The action in such cases may be either upon the bill as negotiable by the custom of merchants, or an indebitatus assumpsit (which is in the nature of an action of debt) || , for money lent, &c., and the bill, with its acceptance or indorsement, may be given in evidence. But essentially, in both cases, the custom of merchants is the true principle of the remedy and foundation of the action. The distinction sounds more in name than in substance ¶ . For upon what ground but the custom of merchants can the bill be offered in evidence of money paid as between

Footnote

* Bayley on Bills, p. 24.

† Vere v. Lewis .

‡ Smallwood v. Vernon , Stra. Rep. 478; see Bayley on Bills, 47.

§ Kessebower v. Tims , quà suprà quà suprà .

|| Vide ante, p. 519, note ||||.

¶ It was upon a question of this kind that Lord Chief Justice Holt fell into a dispute with the mercantile interest in the City, as to the manner of declaring upon a promissory note before the statute of Anne, as upon a specialty by the custom of merchants, which he said was mere obstinacy, as there was so easy a method by indeb. assumpsit for money lent. See 2 Lord Raym. 758, and Burr. 1525, post. p. 525.

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How far the rigid maxims of municipal law have bent to the necessities of human intercourse appears by the doctrine, no longer disputed, that a bill of exchange, although it be a mere chose in action , yet the common mercantile transfer of it by writing a name, or even by simple delivery, is sufficient to vest the legal as well as the equitable interest in the indorsee or deliveree, and entitles him to sue thereon in his own name * .

This principle of decision has been extended beyond the cases of negotiable instruments. For where a respondentia bond had been given, on which the obligee had made a special indorsement to facilitate assignment, upon an action by an assignee of the bond, De Grey, C. J. held, that “the defendant had promised to pay any person who should become entitled to the money;” and there was a verdict for the plaintiff † .

Upon the strength of these authorities an opinion might, perhaps, without presumption, be hazarded; that all the parties, original and derivative, to the negotiable mercantile instrument called a bill of exchange, are equally, by creation or by adoption, parties to the contract which is, expressly as to some, and by implication at least as to all, for the payment of a sum certain.

If so, the circumstances here concur, which, according to the definition ‡ of Chief Baron Comyns, are requisite to support an action of debt.

It is indeed stated, in a subsequent head of the Digest, that “debt will not § lie against the acceptor of a bill of exchange.” But this doctrine seems to be contradicted by the principle of the rule before stated, and is asserted upon the authority of a case || which was decided in the infancy of commerce, at a time when it was supposed, and seriously adjudged, that no person but an actual merchant ¶ could draw a bill of

Footnote

* See Chitty on Bills, p. 6.

† Fenner v. Mears , Black. Rep. 1272. As to the authority of this case, see the observations of Lord Kenyon, in Johnson v. Collings , 1 East, 98.

‡ Com. Dig. quà sup quà sup .

§ Id. ibid. B.

|| Anon. Hardres, 485.

¶ Lutw. 891, 1585.

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The revolution which has now taken place in judicial opinions, and the liberal doctrines upon this subject, which are now become settled principles of law, and applied daily in practice, seem to confirm the supposition, that there is, according to the law-merchant, which is a part of the law of England, an implied privity of contract between all the parties to a bill, primitive and derivative, or adoptive * .

In all cases of the transfer of negotiable instruments the question seems to be, whether the instrument itself is not by the law-merchant primâ facie primâ facie or presumptive evidence of a consideration passing from hand to hand as the bill passes, but liable to be rebutted by evidence on the general issue, or special plea, that the holder gave no consideration.

An abstract of some of the principal cases cited in the foregoing note are here subjoined, with observations upon some later authorities which appear to bear upon the question of privity.

In Anon. Hardr. 485, held, that the payee cannot maintain debt against the acceptor, and it was said in that case, that the promises of the acceptor no more create a duty than a promise by a stranger to pay, &c. if the creditor will forbear. Upon the clear distinction between the acceptor of a bill, and a mere guarantee, see Jackson v. Hudson , 2 Camp. 447.

In Welch v. Craig , Stra. 680. 8 Mod. 373, held, that debt will not lie upon a note. But it does not appear who was the defendant in the action.

In Morgan's Precedents, 458, is an entry of a declaration in debt by administratrix of payee of note against the maker.

In Rumball v. Ball , 10 Mod. 38, action of debt brought on a note, by payee against maker, and held good.

In Brown v. London , 1 Freeman, 14; 1 Mod. 285; 1 Ventr. 152, held that indeb. assumpsit would not lie against the acceptor of a bill; but Twisden, J. doubted. The ground of this decision is

Footnote

* See Simmons v. Parminter , 1 Wils. 185; Co. Litt. 172.

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In Skinner, 346, it is said that indeb. assumpsit (or debt, qu .) will only lie against the drawer upon a bill importing to have been given for value received.

In Salk. 23, it was held that indeb. assumpsit will lie in no case but where debt lies: That indeb. assumpsit (and therefore, semb . debt * ) lies against the drawer, though not against the acceptor, of a bill of exchange. The reason for this decision is given in Skinner, 346, namely, “for the apparent consideration.” See Vere v. Lewis , infra .

In Salk. 125, and 12 Mod. 37, it is given as general doctrine, that indeb. ass. will not lie on a bill of exchange, as it is said, “for want of consideration, as it is but evidence of a promise to pay, which is but a nudum pactum .” But it is to be observed, that the action was by the indorsee against the drawer, and in the last resolution of the judges, as given both in Salkeld and 12 Mod. it is said, that “the action should have been special on the bill, or a general indeb. ass. for money received to his (the indorsee's) use. See Carter v. Palmer , 12 Mod. 380, a case before the statute of Anne, where, upon a motion in arrest of judgment, a declaration upon a note on the custom, &c. as if it had been a bill, was held bad. But Holt, C. J. said, it might have been taken as evidence of money lent. In Nicholson v. Sedgwick , Ld. Raym. 180, the action (and verdict for plaintiff) being upon a note payable to bearer, the judgment was arrested on the ground of want of privity; but it was said the plaintiff might have maintained the action in the name of the payee, or if it had been payable to order, the (immediate) indorsee might have brought an action against the maker. And it was said to have been resolved in Hodges v. Steward , that the indorsement to the bearer binds the party who immediately indorses to him. In 12 Mod. 345, it is held that the first indorser (payee) striking out the names of all the indorsees of a bill, purporting to have been for value received, may maintain indeb. assumpsit against the drawer. In that action, Holt, C. J. is reported to have said, the action will lie, for the bill was given as a security for money lent, and without

Footnote

* Vide ante, p. 519, note ||||.

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In 12 Mod. 380; and in Burr. Rep. 1525, it is laid down as indisputable, that indeb. ass. for money lent will lie upon a note. See also Smith v. Kendall , 6 T. R. 123. In Clerke v. Martin , Ld. Raym. 758, the action being upon a note payable to plaintiff or order; one count of the declaration was upon indeb. ass. for money lent, and another upon the custom, as on a bill of exchange. The defendant pleaded non assumpsit, and the jury gave a general verdict for the plaintiff with entire damages. Upon motion in arrest of judgment, Holt, C. J. was “ totis viribus against the action.” He said, “that such actions were innovations upon the common-law:” That “it was a new sort of specialty invented in Lombard-street, which attempted, in these matters of bills of exchange, to give laws to Westminster Hall: That the continuing to declare upon these notes on the custom of merchants proceeded from obstinacy, as he had expressed his opinion against them, and since there was so easy a method, as to declare upon a general indeb. ass. for money lent. But as the damages were given generally, it could not be intended that they were given on the count of indeb. ass.” And judgment was accordingly arrested.

So in Grant v. Vaughan , Burr. 1516, it was held that an action for money had and received may be maintained by the bearer against the giver of a cash-note upon a banker, made payable “to ship Fortune, or bearer.”

In Tatlock v. Harris , 3 T. R. 174, the indorsee of a bill recovered against the acceptor upon counts for money had and received, and money paid.

In Vere v. Lewis , 3 T. R. 182, the indorsee of a bill recovered upon the money-counts against the acceptor, although there was no evidence that he had received value for the bill. The Court said the acceptance was evidence that he had received value from the drawers .

In Kessebower v. Tims , B. R. Pasch. 22 G. 3, it was held that the indorsee of a note might maintain indeb. ass. for money lent against the indorser.

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In Bishop v. Young ,2 B. & P. 78. (a decision by the present Lord Chancellor, when C. J. of the C. P.) an action of debt by the payee against the maker of a promissory note, expressed to be for value received, was upon demurrer held maintainable. What the decision might have been as between other parties, the Chief Justice said he would not express.

The case of Barlow v. Bishop , 1 East, 432, has been supposed (Chitty, 470,) to establish a rule, that the plaintiff can in no case recover under the money-counts, unless money has actually been received by the party sued, and for the use of the plaintiff. But in that case the plaintiff had received the note by indorsement from a married woman, and he had therefore no title or interest in the note; which could be no evidence for him of any thing.

If, (as Lord Kenyon observed in that case,) the indorsement had “been in the name of the husband , it might have been available ” as a note indorsed, or as evidence of a consideration to the maker . But the indorsement being in her own name (as the Judge observed) “it was impossible to say that she could pass away the interest of her husband by it;” or, (it might be added,) that the plaintiff could make use of that which belonged to another, as evidence of a demand made by him against the defendant, who might have been sued a second time upon the same demand by the husband, when he had recovered possession of the note. It is indeed observed by the C. J. as reported at the end of the case, “that the plaintiff could not recover on the money counts, as no money passed between the parties.” But if the maker of a negotiable note incurs the same responsibility to the holder as the acceptor of a bill, quære quære , how this extrajudicial dictum is reconcileable with the decision in Vere v. Lewis , ante, p. 525?

In Waynam v. Bend , 1 Camp. 174, the action was by an indorsee against the maker of a promissory note, made payable to T. or bearer . An indorsement being stated in the declaration. Lord Ellenborough said, that though unnecessary, yet as an indorsement was stated in the count, on the note, it must be proved; and that the plaintiff could not recover on the money-counts, as he was not an original party

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In Johnson v. Collings the decision was, that a promise to accept a bill before it was drawn was not in law an acceptance. And as it could not support the count on the acceptance of the bill, so being no acceptance it could be no evidence in support of the general counts for money had, &c. Lord Kenyon merely said, as to the other counts, that there was no evidence to support them.

In Whitewell v. Bennett , the bill produced in evidence varied from that stated in the declaration. A banker's check had been given for the amount by the acceptor to the payee post dated, for the purpose of preventing the receipt of the money, until it should be ascertained, whether a bill of the drawer, in the hands of the acceptor, would be paid. The presumption of law in support of the money counts arising from the acceptance of the bill, was rebutted by the circumstance of post dating the check, by a conversation which took place at the time of the acceptance, and other circumstances; and it was expressly found by the verdict that the defendant, at the time when he accepted the bill, had no effects in his hands.

In Houle v. Baxter , 3 East, 177, a bill being made payable to the order of the drawer, and indorsed by him, the plaintiff, in order to give additional credit to the bill, without the privity of the defendant, the acceptor, indorsed it upon the request of the drawer, and re-delivered it to him. The defendant having become bankrupt before the bill became due, and the plaintiff being obliged to pay the amount to the indorsee,

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Since the decision of this case on appeal, an act has been passed (1 &2 Geo. IV. c. 78), reciting, that the practice and understanding among merchants was contrary to this decision; and enacting, that an acceptance made payable at a banker's, without further expression, shall be deemed a general acceptance; but if it is expressed to be payable at a banker's, or other place only , that it shall be deemed a qualified acceptance, and the acceptor shall not be liable to pay the bill, except in default of payment on demand at the banker's or other place.