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place of payment, were conditions precedent, the holder, although prevented by causes which he could not controul, must lose his debt, if the bill were not presented on the day of payment, for the condition could not be performed on any subsequent day; and he must be subjected to the same loss, if the banker fails, for not presenting it at the house of such banker, although the acceptor had made no provision for its payment. Such a rule must always work injustice, and, therefore, cannot be law. The acceptor, if he would avail himself of the non-presentment of the bill, must shew by his plea, that he was ready at the time and place of payment to take it up, but that the holder did not attend; and must bring the amount of the bill into court. On shewing, that a tender of the amount of the bill was prevented by the default of the party to whom it should have been made, the want of tender will be executed. In all cases, a party is excused from doing what he otherwise ought to have done, by shewing that the other party prevented him from doing it. Arbitrators sometimes direct money to be paid on a particular day at Lincoln's Inn hall; and rents, annuities, and other payments are agreed to be paid at certain specified times and places. In actions for the nonpayment of the money in such cases, it is not usual to aver in the declaration, that the Plaintiff attended at the appointed time and place in order to receive his money: and the early books of entries contain pleas, that the party to pay was at the place with his money, and that he who was to receive did not attend.

1820.

ROWE

V.

YOUNG.

Best J.

1st Question.

Upon the second question submitted to us by your Lord- 2d Question. ships, I humbly 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 and 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 your Lordships' first question.

On your Lordships' third question, I beg to say, that it seems to me to depend on the nature of the qualification in the acceptance, whether the taking it without the previous authority or subsequent assent of A., would prevent C. from maintaining an action against A. A qualification which may prejudice the drawer, would discharge him, if taken without his assent such as an acceptance postponing the payment Vol. II.

Р

of

3d Question.

1820.

ROWE

บ.

YOUNG.

of the bill. An acceptance at a different town from that in which the bill was drawn, might have the effect of postponing payment, and also of preventing so early a notice of non-payment as might have been received from the town in which the bill was drawn. Besides, no line can be drawn 3d Question. limiting the distance from the place to which the bill is addressed, at which it might be made payable by the acceptance, beyond the town in which it is drawn. A qualified acceptance, making the bill payable at another town, taken by the acceptor without the assent of the drawer, would discharge the drawer. But I can perceive no prejudice which can arise to the drawer from the holder taking an acceptance which changes the place of payment from the acceptor's counting-house, to the house of his bankers in the same town. I believe that bills so accepted are more easily discounted than those which are accepted generally; and the greatest part of the bills of men in trade are now accepted payable at a banker's. Whoever draws a bill now, knows that, most probably, it will be so accepted. To allow a drawer or holder to make any objection on account of such an acceptance, would be to indulge their caprice, or give them a pretence for calling for their debts before such debts are fairly due. I have considered an acceptance payable at a banker's as merely changing the place of payment from the acceptor's counting-house to the banker's; and not as narrowing a right to demand the money any where, or to sue the acceptor without demand or notice; because I cannot conceive that any such right exists. Bills of exchange are often addressed to a man at a particular house, from which I infer that they are to be presented for payment at such house; and that there he is to prepare himself to pay them. If addressed to him in London, the meaning is, not that the bill may be presented any where in London; but it is presumed that the situation of the acceptor's countinghouse is too well known to render it necessary that it should be mentioned in the address of the bill. There is a case in Lord Raymond, in which Lord Holt is reported to have held, that, if a bill be accepted without mentioning the house at which it is to be paid, the holder is not obliged to receive it (a); that learned judge could not have thought, that mentioning the house, narrowed the holder's right.

(a) Mutford v. Walcot, 1 Ld. Raym. 575.

In answer to your Lordships' fourth question, I have to 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.

My Lords, I hope that what I have humbly stated to your Lordships as legal answers to the questions proposed to us, 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 negotiations. 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.

Your Lordships have been repeatedly told by the counsel, both of the Plaintiff and the Defendant, of the inconvenience to commercial men which is likely to follow the establishment of what is contended for by the opposite party. There

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1820.

ROWE v YOUNG.

Best J.

4th Question.

1820.

ROWE

V.

YOUNG.

Best J.

never was a case more free from apprehensions of this kind. Mercantile men only want certain rules upon these subjects. As soon as your Lordships shall have declared what are the proper rules, all judges will act upon them, and all mercantile men will regulate their transactions according to them. If your Lordships shall say that the acceptor may 4th Question. by his acceptance make his bill payable only at his banker's, but that the words used by this acceptor are not sufficient to express such a qualified acceptance, future acceptors will use terms which express this qualification of their contract more clearly. If drawers apprehend that such an acceptance is likely to occasion a return of their bills as being refused acceptance, they will guard against this by requesting, in the body of their bills, the drawee to accept them payable either at his counting-house or his banker's. Every holder will then know, that he holds their bills subject to their being accepted either generally or specially, and will, thus, be prevented from returning them for want of a sufficient acceptance.

Richardson J.

Ist & 2d Questions.

RICHARDSON J. (having stated the record and the four questions, and having informed their Lordships that he should, with their leave, consider the first and second questions together.) 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 drawer, 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 expressed in an acceptance is as much a part of the acceptor's

contract,

contract, as the like expression of time or place in the body of a promissory note is part of the maker's contract: both, I think, are entitled to equal regard in ascertaining the rights of the parties. What then is the meaning of the terms of this acceptance, " Payable at Sir John Perring and Co.'s, bankers, London?" I think the meaning is the same, as if the acceptor had said, "I undertake to pay this bill at the house of Sir John Perring and Co. bankers, London." I think that it is not a general acceptance with an additional engagement or direction as to the place of payment superadded, but, that it is to be considered in law as an acceptance to a certain extent qualified; and, that the legal extent of this qualification is the same, as it is in other cases, where a man contracts to pay money at a particular place. It is material then to consider, what is the legal effect of a contract to pay money at a particular place? I apprehend it is this; that the debtor shall stand excused of damages and costs, if he is ready to pay the money at that place, according to his contract; but, that the debt is not lost to the creditor by an omission on his part to demand it there, except, perhaps, in cases where it can be shown that such omission has occasioned damage to the debtor. If so, it follows, that it is not necessary, on the part of the creditor suing for the debt, to aver in his declaration, that a demand was made at the place; but, that the Defendant, by way of excuse against damages and costs, must show, that he was ready at the place to pay, but that no one was there on the part of the creditor to receive: and, for this purpose, he must plead a special plea in the nature of a plea of tender, and must bring the money into court. Such, at least, is the general rule, namely, that the money must be brought into court: though I am not prepared to say, that an exception might not arise, if the Defendant, in any particular case, could show, that the money had since been lost by the neglect of the creditor to receive it at the time and place appointed. This, I apprehend, is the law in the case of covenants, and of bonds, with or without penalty, for payment of money at a particular place; and of rent, where a particular place of payment is expressed in the reservation; or, where it is not so expressed; in which latter case, the law makes it payable upon the land. I will mention some

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1820.

ROWE

V.

YOUNG.

Richardson J.

Ist & 2d Questions.

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