collecting that I am obliged to differ in opinion from those whose judgments no man can respect more than I do,) that this is a contract to pay at Sir John Perring's and Co., which is not the contract stated in the first count of the declaration; for that count wants that averment; and the consequence is, that the judgment of the court of King's Bench must be reversed. I do not think that it will be of the least consequence to the commercial world; for it will be so easy to adopt forms of words which leave no doubt as to what is meant, that I am perfectly sure, if there were any inconvenience arising from the decision, if your Lordships think proper to make it, that those, who do not wish to have the inconvenience have nothing to do but to use two or three words, which will guard them from it. But the question is, What is the law of this day, upon this contract, as set forth in this first count of this declaration ? I have already stated to your Lordships in a few words what my opinion is, and I sincerely believe it to be founded in clear principles of law; although, when I state that I do believe it to be so founded, I cannot but recollect, (and I do that with infinite respect,) that I am differing in opinion with those, whose opinion is infinitely superior to mine. But my duty is not to state their opinion, but to express my own. LORD REDESDALE. My Lords, I most fully concur in the opinion expressed by my noble and learned friend. It does appear to me that some of the learned judges have totally forgotten acceptances for honour. If a person accept for the honour of the drawer, payable at a banker's in London, all the reasoning founded on the supposition, that the acceptor must be debtor to the drawer vanishes; and I do not observe, that the learned judges distinguished between the case of an acceptance 1820. ROWE 2. YOUNG. 1820. ROWE ข. YOUNG. for honour, and the case of a common acceptance. It is impossible to say, if these words were applied to an acceptance for honour, that any of the arguments founded on the supposed prior debt of the acceptor could be maintained. But, my Lords, 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 place different 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 asserted to be the effect of this acceptance? That he engages to have money both at Sir John Perring's and Co., 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 does seem to me, that it must have been his intention to engage for only one, namely, a payment in London; for it is perfectly clear, that payment at Torpoint, and payment in London, are two different things: and, if he be liable to be called upon at both places, his liability is rendered more inconvenient. This might be converted into a most fraudulent transaction, in reference to dealings between mercantile people residing at different places. Take the case alluded to by the noble and learned lord, of a bill accepted payable at Calcutta. Suppose that a person accepts a bill payable in India, and leaves funds for the purpose of answering that bill, the bill being payable in six months; he comes to London, and there the bill is demanded of him because his acceptance is general, and the words "payable at Calcutta" do not qualify that acceptance. The con consequence of that would be, that the holder of the bill would gain the whole expence of the remittance from India to England, and we know perfectly well that that makes a very considerable difference. In an appeal very recently before your Lordships, it was a question, whether in an account of that description, the expences of remittance from India to England are or are not to be allowed; and it is part of the subject of appeal from a decision of the Court of Session in Scotland, that the appellant has not been allowed the expense of that remittance. It appears to me, therefore, that it is perfectly clear, that, if it were to be held, that the acceptance of a bill payable at a different place, is not to be held to be conditional acceptance, it may be used for the purposes of extreme fraud, to make a man pay that, which he did not mean to pay, and which the drawer did not expect him to pay in such a mode. Many cases might be put as to the West Indies, and other places, which were attended 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 be construed, as having no operation in favour of the acceptor, how came they to have any operation whatever in favour of other parties? If they be not a condition annexed to the acceptance, how can it be granted, that the holder of the bill must, in order to entitle him to make a demand either against the drawer or against the indorser, show the bill to Perring and Co.? But, it is said, that this should be shown in the plea: the majority of the judges have been of opinion, that it is a qualification of the acceptance, but that the party is to take advantage of it in pleading. But, in order 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 ought not to be obliged to do, for, in that case, the acceptor must 1820. ROWE บ. YOUNG. 1820. ROWE V. YOUNG. bring the money from India, to be enabled to bring the The House, accordingly, On Reversed the judgment. Best J. Appendix to ROWE v, YOUNG. BEST J. Upon a question of such acknowledged diffiIst Question. culty as that, which is first proposed to us by your Lordships, one, on which the most eminent judges have pronounced directly opposite decisions, I address your Lordships with the utmost diffidence of my own judgment; but my duty to your Lordships prevents me from yielding to the difficulty which I feel; and obliges me to form the best opinion, that a consideration of the question with the greatest attention which I can apply to it, enables me to give. I submit to your Lordships, that the words "payable at Sir John Perring's and Co., bankers, London," qualify the general term " accepted," and render a presentment of the bill at the house of Sir John Perring and Co. necessary; (provided the acceptor had funds at that house on the day on which the bill became due, and Sir John Perring and 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 John Perring and Co. sufficient to take it up on the day when it became due, and that Sir John Perring and 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. Before I discuss this point, I would state, that, in my humble opinion, it imports the holder of a general acceptance to 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. It cannot be disputed, that the drawee of a bill may accept it specially; and that 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 of all the courts of Westminster-Hall, 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. In Smith v. Abbot (a), it was holden that a drawee may accept payable, when certain goods consigned to him are sold; and, in Julian v. Shobrooke (b), when in cash from the cargo of the ship Thetis. In Walker v. Atwood (c), a bill payable at sight was accepted payable three months after acceptance, and this was held to be a good conditional acceptance. If the time of payment may be postponed, the place of payment may be changed. It is another question, whether the holder is bound to take such an acceptance, and whether, if he take it without giving notice to the (a) Str. 1152. (b) 2 Wils. 9. (e) 11 Mod. 190. drawer 1820. ROWE V. YOUNG. Best J. Ist Question. |