1820.

ROWE

v.

YOUNG.

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 Richardson J. of the drawer, must, I think, have the effect of discharging 3d Question. 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 and 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 payent, 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. In answer to the fourth question proposed by your Lord- 4th Question. ships, 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 acceptance offered by B., to which A. is supposed to have refused his consent. Such an acceptance, so

offered

1820.

ROWE

V.

YOUNG.

Garrow B.

Burrough J.

offered by the drawee, but refused by the payee, because the drawer refuses his consent, is to be considered as no acceptance at all; the bill becomes a dishonoured bill, and consequently the payee has an immediate remedy against the drawer, either upon the bill, or upon the original debt.

GARROW B. concurred entirely with Best J. and Richardson J., both in their opinions, and the reasons given by them for those opinions; and referred to them as containing his own views of the case; observing only, in addition, 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.

BURROUGH J. In answer to the first question proposed 1st Question. by your Lordships, 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 accept it by parol, or in writing. He may accept 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 or 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 him, upon the bill becoming due, and of his keeping money by him to pay it, but 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 alledged to have been accepted according to the usage and custom of merchants: yet the doctrine

of

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 to which I cannot subscribe. The effect of such doctrine is, that, notwithstanding a well-known place is pointed out where the money may be obtained, the holder shall be at liberty to arrest the acceptor the moment the bill becomes due, and to turn a special and qualified undertaking into a general one, having very different consequences. It seems, however, to be now conceded, that this doctrine cannot be supported. But, then, it is said, that this special qualified acceptance makes no difference as to the averments in the declaration, except as to the statement of the acceptance. As I understand the acceptance stated in this declaration, I am of opinion, first, that it imports that there is a fund in the hands of the banker to answer the amount of the bill; and, secondly, I say, that this acceptance means to impose and does impose on the holder an act to be done by him, namely, to present the bill at the bankers for payment: If payment is not made on application, the acceptor's contract is broken, and not till then. But the holder must state in his declaration the title to his action, which is, that the bill was presented and not paid, and so his cause of action has arisen against the acceptor.

The case of Bishop v. Chitty (a) 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, I admit, amounted to an acceptance, and it was, indeed, 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 burthen 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 in has elapsed. Smith v. Abbott (b) is an instance of a conditional or contingent acceptance, and in which it was incumbent on the plaintiff to state in his declaration and to prove at the trial, that the contingency

1820.

ROWE

V.

YOUNG.

Burrough J. 1st Question.

had

1820:

ROWE

บ.

YOUNG.

Burrough J. Ist Question.

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 refused it. The Court said also," it will affect trade, if factors are not allowed to use this caution, when bills are drawn before they have an opportunity to dispose of the goods. A man, who is drawn upon at ten days sight, may accept for thirty, though the other might protest the bill." So, in this case, I say, it will affect trade, if a man is, at all events, contrary to his intention, to be deemed to have accepted generally: or, if his acceptance in this form is to be so construed, as to make him liable to be held to bail as soon as the bill becomes due. The fallacy, in this case, seems to me to consist in supposing, that the acceptor has engaged for a personal payment at the bankers. This appears to me to be contrary to the intention and the effect of the acceptance, to be collected from the words of it. Suppose the acceptance to have been in this form. "Accepted to be paid by me, if, on application to Messrs. Perring and 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 (a), 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 Plaintiffs 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; be

(a) 2 Wils. 9.

cause

cause 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 acceptance, he would have established a prima facie case; for he might have urged on the plea of non assumpsit, that the objection (if any) was on the record. As this record is, the question arises on a special demurrer. I am of opinion, however, that the declaration is substantially defective. First, because a material averment is omitted, namely, the presentment of the bill for payment at the bankers, Sir John Perring and Co., which is matter in the affirmative, and, I think, that it lay on the Plaintiff to aver it. Secondly, because the cases referred to in support of the assertion, that the answer was to come on the part of the Defendant below, do not support that assertion. The cases supposed were covenant to pay money at a certain place on a certain day: (ex. gr.) to pay to the Plaintiff in an action of covenant 100l. on the 1st of August, at or in the common dining-hall of Lincoln's Inn. It is said, that, in a declaration on such a covenant, the Plaintiff's breach is good, "that the Defendant did not pay the money on the day at or in the common dining-hall aforesaid, but neglected and refused so to do." I admit that this is so, but it is so, because the Defendant covenants to do the act personally to the Plaintiff at that place; and the breach is, that he did not do it at the day and place, but neglected and refused so to do. This is good in a declaration, which is to be certain to a certain intent in general; and it implies, that the Plaintiff was there ready to receive, — the parties having agreed to time and place. If this acceptance had amounted to an engagement by the acceptor to pay personally at Sir John Perring and Co.'s, the case alluded to might have had some weight. But this acceptance is not so, nor, from the language of it, can it be taken to be so meant; but, as appears to me, the contrary was intended, viz. that Sir John Perring and Co. the bankers were, in the first instance, to be looked to for the money; and that the acceptor was to be resorted to in case of nonpayment by them.

more im

I will now, shortly, advert to the cases mediately applicable to the subject; and the weight of those cases appears to me to be in favour of the Plain

1820.

ROWE

ข.

YOUNG.

Burrough J.

1st Question.