1820. ROWE V. YOUNG. Burrough J. Ist Question. tiff in error. The first case, to which I have occasion to (a) Holt, N. P. C. 366. note. (c) 7 East, 385. appears 1820. ROWE ພ. YOUNG. Ist Question. appears to me to be, that they are more, for they are part of the acceptance. His lordship then says, "the acceptor of a bill of exchange is liable universally;" the observation on this is, that he is so, if he accept generally, but not otherwise; for his obligation and the extent of it must depend on the acceptance itself. His Lordship then proceeds Burrough J. to say, "this very point was brought before the Court some time ago, when the judges were all of opinion, that such words form no part of the contract, and did not require to be set out in the declaration." If I thought this to have been an opinion deliberately formed by that excellent and able man, I should have hesitated before I declared myself persuaded, that it is not tenable. It appears to me, that it cannot now be contended, that such words are no part of the contract of the acceptor. When his Lordship says, "this point was brought before the Court some time ago," I presume, he means to refer to the case of Smith v. De la Fontaine, in Lord Mansfield's time. That case was probably introductive of the confusion which has existed on this subject. The next case is Ambrose v. Hopwood (a), where the Court of Common Pleas held, that, in an action on an acceptance, like that in the present case, the declaration must aver, that it was presented at the place where the person, by whom it was made payable, resided. In a subsequent case (b) in this house, it was holden to be sufficient to alledge the bill to have been presented to the persons themselves. Still the case of Ambrose v. Hopwood shows it to have been the opinion of the Court of Common Pleas, that the declaration must aver a presentment consonant to the acceptance; and the acceptance throughout is treated as a substantial part of the contract. In Callaghan v. Aylett (c), the acceptance was nearly like the acceptance in this case. The bill was there accepted payable at Messrs. Ramsbottoms, bankers, London. The declaration alledged an acceptance generally. At the trial it was objected, that this was a variance; and, that there was no proof of a presentment at the place. A verdict was taken for the Plaintiff, and these points were reserved for the opinion of the Court. On argument, the Court of Common Pleas held, that this 1820. Rowe v. YOUNG. Burrough J. was a qualified acceptance, to which the holder (he having acquiesced in it) was obliged to conform, and directed a nonsuit. Then follows in order of time the case of Fenton v. Goundry (a). In that case the acceptance was in this form, "payable at C. Sikes, Snaith, and Co." And the bill was addressed to the defendant at "No. 54, Lower Shadwell, Wapping." It seems, that, in this case, the idea of the expansion of the promise to pay first arose. One would think, there had been a precedent independent general engagement, and that something expansive was added to it. The acceptance is one act: to call it an expansion of the promise, is, in substance, to make it a general engagement, and pleadable as such. It is the promise itself. It is one entire engagement; and the legal effect of it is, "I accept or agree to this bill, but you must go first to Sikes, Snaith, and Co. for the money." This makes it a qualified or conditional engagement. In that case a learned person, who argued for the Defendant, says, "where something is to be done by both parties at the same time, the Defendant, who is sued for a breach of his part of the engagement, must show, that he did all that lay upon him to do, and that the Plaintiff did not perform his part, which prevented the Defendant's performance" (b). I conceive, the facts of that case do not warrant this observation; for the presentment is solely the act of the holder; and the payment is not to be made by the party himself, for no one expects to find the acceptor behind the banker's counter: therefore, there is nothing to be done by both parties at the same time; for the parties, from the nature of the engagement, are not to be present at the same time. This is an argument, which probably had much weight; but I conceive, that the foundation of it fails. In deciding the case, the Lord Chief Justice appears to have said (c)-"It has become a frequent practice, in order to avoid the inconvenience to the holder of not having his bill honoured, when he calls for payment at the party's ordinary place of residence, to intimate his other house of residence for the purpose, if I may so express it, which is at his banker's, where he engages, as it were, to be found at the usual hours of business." I am (a) 13 East. 459. (c) 13 East. 469. satisfied, satisfied, that this observation is ill-founded. No one believes it to be the acceptor's place of residence, nor, that he will be at all found there. The truth is, it is to avoid the inconvenience of keeping funds in his own house, that he makes the bill, by his acceptance, payable by, or at his banker's, which is not his house of residence, nor considered as such; but, where he has cash or credit. It cannot but be observed too, that there was floating in his lordship's mind, that the obligation to pay by the acceptor was general and universal: this is true of a general acceptance; but if it be urged as applicable to a special, qualified, or conditional acceptance, I cannot agree to it: for, though the party, who calls for the acceptance, may refuse to take it, if it be not general; yet, if he do accept it, and assent to its being special, he must pursue his remedy according to the terms of the contract itself: for, an acceptance is as much a contract, as is a policy of assurance or a charterparty. Both the other learned Judges, in that case, appear to speak with considerable doubt on the subject; the Court hinted at a further consideration of the question, for judg ment nisi only was given; but, as the reporter says, no further notice was taken of it. After this case, in Gammon v. Schmoll (a), the Court of Common Pleas gave judgment on a question precisely similar to the present, on a full consideration of Fenton v. Goundry, and all the preceding decisions. That Court held, first, That the acceptance was a contract. Secondly, That the introduction in it of the words Payable at Batson's, London," qualified the contract; and, that it was a condition precedent. Thirdly, That the holder must show in pleading, that he has complied with it. One of the learned Judges (6), who concurred in this opinion, observed, that the reasons given in Fenton v. Goundry show, that the judges were very doubtful as to this point. The case of Huffam v. Ellis (which I have before alluded to) came before this house on error. The bill was accepted, payable at Kensington, Styan, and Adams'; and, it was averred in a declaration by an indorsee against the drawer, that the bill was presented to the house using the name, style, and firm of Kensington, Styan, and Adams. This house held, that this was a sufficient averment to satisfy (a) 5 Taunt. 344. S.C. 1 Marsh. 80. (b) Chambre J. the words, "payable at Kensington, Styan, and Adams." The case of Bowes v. Howe (a), is a case of great weight. It was subsequent to all the cases on this subject, which have been brought before the courts, except Gammon v. Schmoll; and that was in the following year. Bowes v. Howe was an action by one, who held a promissory note by assignment or indorsement against the makers. The note was made payable at Workington Bank. The declaration averred, that the Plaintiffs in error (the makers of the note) became insolvent before the action, and wholly declined and refused to pay it at Workington Bank. The Plaintiff below had judgment, which was reversed in the Exchequer Chamber. The Lord Chief Baron, Sir Archibald Macdonald, delivered the judgment of the Court. He held that the question was, whether the allegation in the declaration dispensed with the necessity of presenting the notes (for there were counts on many other notes) at Workington Bank? And, that it was clear that a demand was necessary unless dispensed with; and that the allegation was not sufficient to enable the Plaintiff below to maintain his action. The words at " Workington Bank," were in the body of the note; the words "Payable at Sir John Perring and Co.'s" are, in the case before this house, in the body of the acceptance; and, I am of opinion, that there is no solid distinction between that which is incorporated in a note, and that which is incorporated in an acceptance. It is proper to advert to the case of Head v. Sewell (b), which arose before Lord Chief Justice Gibbs at nisi prius. He held, in the case of such an acceptance as the present, that it was not necessary to prove a presentment at the place mentioned in the acceptance; and, following up the language of some of the cases, said, that the acceptor is generally and universally liable. It seems to me to be most strange, after the cases in his own court, (one of which was not more than two years before) which were directly contrary to this opinion, that nothing further should have been done in this case of Head v. Sewell; that it should not have been brought before the Court. I am persuaded, that there must have been some circumstance in that case, which the reporter has not noticed. The case of Richards v. Lord Milsington (c), need only be mentioned shortly. That was (a) s Taunt. 30. (b) Holt N. P. C. 363. (c) Id. 364. note. an |