a tender), though the obligee or feoffee be absent; for he is speaking of a tender, which would not be an excuse without such notice, which is, therefore, a tender by the one in the absence of the other; and he immediately adds, "but, in both these cases, if, at any time the obligor or feoffor meet the obligee or feoffee at the place, he may tender the money." The forms of declaring, not only upon awards, but upon other instruments for the nonpayment of money at a particular place, are confirmatory of this doctrine. In Rastell's Entries are three precedents; two in debt on bills obligatory for money to be paid at particular marts or fairs (6), and the other for rent, payable at a particular place on particular feasts (c). The declarations did not contain any allegation of presenting the bills for payment, or any demand of the money at the marts, fairs, or place; but to one of those declarations, one upon some of the bills obligatory payable at different marts or fairs, the Defendant pleaded, that he was at the fairs ready to pay the Plaintiff, if the Plaintiff had been there, and would have delivered to him the bills aforesaid, and, that neither the Plaintiff, nor any for him, was then there to receive the same, with an allegation that he has been always since ready to pay, and a profert of the money into court. A bill of exchange, in an action against the acceptor, stands, I think, upon the same footing as a bill obligatory, or any other engagement for the payment of money, so far as regards the necessity of alleging in the declaration, or of proving at the trial, a presentment of the bill or a demand of the money. In an action against the acceptor, where he accepts generally, such allegation is never made, nor such proof required or given: though such a presentment is, no doubt, usually made in fact in such cases, before the action is brought, yet, the nature of the instrument itself (viz. a bill of exchange) has not rendered such an allegation or proof necessary, except where the action is brought to charge the drawer or indorser. The nature of the instrument, therefore, cannot, as it seems to me, make such allegation or proof more necessary where the acceptor adds a place for payment, than in other cases where the obligor or promisor adds a place for payment. 1820. ROWE V. YOUNG. Holroyd J. Ist & 2d Ques tions. 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 Ellenborough and my brother Bayley in Fenton v. Goundry, both of them acceded to and confirmed this reasoning, as will be seen in 13 East (a). Their opinions, in that case, upon this point, appear to me to be material in showing, that the case of Saunderson v. Bowes, which was determined by the same judges very shortly afterwards, was determined on grounds not at all inconsistent with their opinions in their decision in Fenton v. Goundry. My brother Bayley, too, upon another occasion, at Nisi Prius, in Hilary term, 1809, in Wild v. Rennards (b), held the same doctrine, that if a promissory note is made payable at a particular place, in an action against the maker, there is no necessity of proving, that it was presented there for payment; and, in Michaelmas term 1810, in Nicholls v. Bowes (c), Lord Ellenborough held the same. But, it is said, that the decision in Saunderson v. Bowes (d), in Michaelmas term, 1811, by the Court of King's bench, and the decision of Bowes v. Howe (e), in Trinity term, 1813, by the Court of Exchequer chamber, which is founded thereon, are inconsistent with this doctrine. The above precedents in Rastell were not known or, at least, not brought forward in either of those two cases; and, if those two cases were not distinguishable from the present, but were so much in point as, at first, they may appear, it might be for consideration, whether those cases were not still open to a revision, like the decisions which for a time prevailed in favour of actions upon legacies, and of actions against femes covert with separate maintenances. But, when those two (a) 470 & 472. (d) 14 East. 500. cases cases come to be looked at and considered, they are, as it appears to me, very distinguishable from the present, and also from Fenton v. Goundry, on this very point. In the present case, and in Fenton v. Goundry, the instrument declared on, a bill of exchange, was payable at a certain time. In Sanderson v. Bowes, and in Bowes v. Howe, the instrument declared on (a promissory note) was not payable at a particular time, but generally, entirely at the pleasure of the holder of the note, and so Lord Ellenborough observes (a), where he distinguishes Sanderson v. Bowes, from cases where money was to be paid, or something to be done at a particular time, as well as place. The cases of Sanderson v. Bowes, and Bowes v. Howe, were both cases of promissory notes of the Workington bank, payable on demand to bearer at the Workington bank. The notes being made payable to bearer, not at any specific time, but merely on his, the bearer's demand, the promisers could not comply with the above-mentioned rule laid down in Co. Litt. (b), of giving notice when they would pay the money at their bank, as they could not know who the bearer was, till the money was demanded. Nor was it to be paid but upon demand, which might, therefore, be deemed a condition precedent, quite consistently with my reasoning, and also, with Lord Ellenborough's and my Brother Bayley's, as applicable to cases where the money was to be paid at a time and place certain; and, if the demand thus became in those two cases a condition precedent, the place as well as time of the demand must necessarily form a part of that condition, and may require to be averred, as it was in those two cases decided. 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. In answer to the third question proposed by your Lord- 3d Question. ships, I think, that if A. draw a bill upon B. in favour of C. for 100l., and C., without the previous authority or subsequent assent of A., take an acceptance for the bill for the whole of the 100%., but an acceptance qualified as to the (a) 14 East, 504. (b) Co. Litt, 211. a. VOL. II. R time 1820. Rowe บ. YOUNG. 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 Holroyd J. be paid in such manner as he has required, that is to say, 3d Question. 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, 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 avert such possible injury. The holder may either receive or refuse a qualified acceptance. If he refuse, he must give due notice; and, if the bill be a foreign one, he must also protest it, in order to charge the drawer. If he do not refuse, but do receive the qualified acceptance, in that case, by assenting to the qualifications imposed by the acceptor in varying the time and place, he becomes party to a fresh and different contract with the acceptor, to which the drawer was neither party nor privy: the contract is an entirely new one, assuming a new shape; the bill is converted into, and becomes a different or new bill, having a different tenor and effect from the old one, viz. such as the qualifications of the acceptance, either as to time or place, have engrafted into it. C., by taking a different security, viz. this qualified acceptance, instead of having the one which the drawer had a right, or had reason to expect, and which C. was to require should be given him, has, I think, no right to maintain an action against the drawer upon this bill, the nature and effect of which has been altered by his having taken this qualified acceptance of it. In Boehm v. Garcias (a), (sittings after Michaelmas term, 1807,) it was held by Lord Ellenborough, that the drawer has no right to vary the acceptance from the terms of the bill, unless they be unequivocally and unambiguously the same; and, therefore, where an action was brought against the drawer on a bill. (a) 1 Campb. 425. note. drawn drawn at Lisbon, payable in effective, and not in Vals reals, where the drawers offered to accept it, payable in Vals denaros, (another sort of currency, which was refused,) Lord Ellenborough held, that the Plaintiff had a right to refuse this acceptance, though the Defendant proposed to shew, that Vals denaros were sufficient to answer what was meant by effective; and wherever the holder may refuse the acceptance by reason of its being qualified, (as he may, I think, wherever the same is qualified, either as to time or place,) he cannot, I think, if he take the acceptance, sue the drawer upon the bill. 1820. ROWE บ. YOUNG. Holroyd J. 3d Question. In answer to the fourth question proposed by your Lord- 4th Question, ships, I think, that if B. was debtor to C. in 100%., previous to his so drawing upon B., in favour of C., to the amount of 100%., C. could, upon A.'s refusing his assent to an acceptance, qualified as mentioned in the third 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%. 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 expences, &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 upon 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%., 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 R 2 |