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1820.

ROWE

ข. YOUNG.

Park J.

thereby avoid any injury, which he may, otherwise, sustain by the want of it in seeking his remedy against B. for the recovery of that debt.

PARK J. With respect to the first question proposed by your Lordships to the Judges, I have no difficulty in stating 1st Question. it to be my humble opinion, that, as the bill of exchange now under discussion is alleged to have been accepted according to the usage and custom of merchants, payable at a particular banker's in London, the holder was bound to present it at that house for payment; and to aver in his declaration, that the same was presented at that house for payment.

To come to that conclusion, it appears to me to be only necessary to consider, who the parties to the contract are; and what contract the defendant on this record has entered into. The Plaintiff, or the payee, it is true, originally took a bill drawn upon the Defendant generally: but, when the Defendant had that bill presented to him for acceptance, he said by his acceptance, I do not choose to enter into this general engagement, for, my avocations may, at the time when the bill shall become due, call upon me to be in some distant part of the kingdom; and, therefore, both for your convenience and mine, I will specially accept it, payable at a particular banker's, or where my strong box or money is; and there you shall go for your money, and not follow and arrest me at a place where I have none: this is the defendant's contract. I admit that the holder might refuse to take such an acceptance; but, having taken it, can he enforce the contract against the contractor, without showing, that the contractor has not complied with his own conditional acceptance? May not the acceptor justly say, if the holder should attempt to enforce it contrary to the acceptor's engagement, non hæc in fœdera veni? I think he may; for, that the acceptor has a right to make a special acceptance differing from that which the drawer had wished to impose upon him, as to time, place, or amount, is admitted by those who argue for the Defendant in error. This has ever been considered as law from the time of Marius, who wrote in the 16th century on bills of exchange. (a)

(a) Mar. p, 17. 4th ed.

The

The law upon these points, both as to the right of the drawee to make a special acceptance, and, as to the right of the holder to refuse it, is well stated, as your Lordships will find, in Petit v. Benson. (a) If, then, the drawee nay refuse to enter into any other than a special acceptance; when he has made it, and it is received by the holder, surely, it becomes as much the original contract of the acceptor, as if he had written a promise to pay on certain conditions; or had promised to pay at a certain banker's, and no where else. The true sense of the case seems to be, and the principle is, that, whenever the place, at which the contractor is to perform it, forms a part of his express contract, and the duty is not merely collateral to it, it is necessary both to aver and prove a failure in that precise point on the part of the Defendant. Thus, in 1 Rolle's Abridgment (b), it is said, “If a place of payment is limited by the condition, the party is not bound to pay in any other place." Here, the duty is created by the instrument itself, with certain limits and qualifications. No duty, to be perfected by the acceptor, arose anterior to the very instrument itself; and the acceptor can only be answerable to the extent of his engagement, by his qualified acceptance.

If we were to speak of the convenience of this or that practice, there can be no question, that it would be most convenient, that the presentment of the bill at the place where it is made payable should be deemed a condition precedent; for, it would be very inconvenient, that acceptors, such as the original Defendant, should be made liable to answer every where, when it is notorious that they have made provision at a particular place, where alone they engage to pay. There is no antecedent duty as against the Defendant, save that arising on the bill ; and, therefore, the instrument or bill must be looked at for the purpose of seeing what the duty is.

I do not think, my Lords, that this case has been fitly compared to the case of bonds; for, there, the penalty creates the debt, and the party is liable upon it, but is to discharge himself from the penalty by bringing himself within the terms of the condition: that, therefore, must be

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Park J.

1st Question:

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matter of defence. But, where a suit is in assumpsit upon a contract, the plaintiff must show, that he has done every thing which lay upon him to do, in order to bring himself within the contract, and entitle him to sue upon it. Now, here, by the terms of this acceptance, a promise is made by the acceptor to pay at Perring and Co.'s; the Plaintiff, 1st Question. who sues, then must bring himself within those terms by showing, that he made a demand at the place where the Defendant said he would pay; and he cannot be made liable beyond the extent of his contract. Where a defendant contracts generally to pay a sum of money, he is liable to a creditor every where: but, where a person binds himself to pay at a particular place, he is not liable at any other place, till default be made at the particular place. For, otherwise, suppose a bill drawn upon one just before going the circuit, (and this case is put by one of the most learned judges who ever adorned the Court of Common Pleas, I mean Mr. Justice Chambre (a),) which will fall due during the absence of such drawee; such a person living in chambers leaves no servant on his departure, excepting, perhaps, a laundress; what can be done in such a case, except to deposit the money with a banker, and make the bill payable at that banker's? Otherwise such person would be liable to be arrested at any place in the course of his journey, where he might have no money, which, indeed, he would be the less likely to have after making provision at his banker's. I agree with that learned judge, that it is a great convenience to the public to maintain these special acceptances.

But, it is said at the bar, if you can show that you had your money at your banker's, you would have a complete defence. Is it, then, no vexation to be causelessly arrested? Is a law-suit no vexation? Is it nothing to be 201. or 301. out of pocket, though you gain your cause? And this evil is only met by the trifling inconvenience of an obligation on the Plaintiff to call a witness to prove a presentment. Indeed, if we speak of inconvenience, it is all the other way; for, instead of the trifling inconvenience arising to a holder from the necessity of calling one witness to prove a presentment, every banker must, if the other view of the case be adopted, keep a number of clerks to go daily to all parts

(a) In Gammon v. Schmoll. 5 Taunt. 350.

of

of the town, for the purpose of receiving payment of bills. Nay, so greatly was this inconvenience felt, that your Lordships are probably aware that the Bank of England will not discount any bill that is not payable at a banker's.

But we have been told at the bar, that the weight of authority is against the Plaintiff in error. Let us examine the cases, and see whether the decisions in the Court of King's Bench, and one or two at nisi prius, before Lord Chief Justice Gibbs, carry with them the same weight of reason as those decided by the Court of Common Pleas sitting in bank; or, whether the Court of King's Bench has, in this respect, been consistent with itself; a mode of discussion, which I can with much more satisfaction recommend to your Lordships' adoption, than a consideration of the weight due to individual judges, all of those who are concerned in these decisions being most highly respectable.

The first case immediately applicable to this is that of Smith v. De la Fontaine, of which there is a short note in my Brother Bayley's Treatise on Bills of Exchange (a): however, a more full account is given of it in a note to Mr. Holt's nisi prius cases (6), which is taken from a manuscript of my Brother Holroyd; and there seems no doubt, that in 1785 Lord Mansfield at nisi prius, and the Court of King's Bench, afterwards, decided, that words similar to those here used were not words restricting or qualifying the acceptor's liability, but rendering him liable generally; and that it was not necessary to prove a demand at the particular place in an action against the acceptor. But how has this been followed up? The first case is that of Lyon v. Sundius (c), a mere nisi prius opinion, before the decisions of either Callaghan v. Aylett, or Fenton v. Goundry. Then came the case of Fenton v. Goundry (d), in which the Court undoubtedly held that doctrine, which is now under discussion; and which treated an acceptance like the present not as a conditional acceptance, but as a mere expansion of the promise to pay. But how is that consistent with the doctrine laid down in Parker v. Gordon (e), by two of the judges (f), who

(a) p. 129. note b. 3d ed. (b) 366.

(c) 1 Campb. 422. (d) 13 East.

(e) 7 East, 385.

(f) Lord Ellenborough C. J. & Grose J.

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were parties to the decision in Fenton v. Goundry? Parker v. Gordon was an action against the drawer; and I, therefore, do not quote the case as an authority, except to show that such words as these were considered as a special acceptance. "If a party (says Lord Ellenborough in the last-mentioned case) choose to take an acceptance at 1st Question an appointed place, it is to be presumed that he will inform himself of the proper time for receiving payment at such place, and he must apply accordingly." And, in Elford v. Teed (a), his Lordship says that the case of Parker v. Gordon was conformable with the doctrine which he had usually held. Lawrence J. says, in Parker v. Gordon, “The party might have refused to take the special acceptance; but if he choose to take the acceptance in that manner, payable at the banker's, does he not agree to take it payable at the usual banking hours?" And Le Blanc J. says, in the same case, "If a party will take an acceptance, payable at a banker's, he must present it at a proper time, according to the known method of conducting the banking business; otherwise the greatest inconveniences to trade would ensue."

Two very modern cases have been quoted to your Lordships to show, that Lord Chief Justice Gibbs concurred with the decision of the Court of King's Bench in Fenton v. Goundry; namely, the cases of Head v. Sewell, and Richards v. Lord Milsington. (b) I will speak of Head v. Sewell first. It is sufficient to observe, that it was only a nisi prius case: next, it is so singular a case, that, either the note is incorrect, or the opinion of the Lord Chief Justice is not delivered with that very learned person's usual accuracy and precision. For, in the year 1816, he begins his observations by saying, that, after 35 years' experience, he had never known the objection to prevail, and, therefore, could not admit the necessity of the proof. What? had he not known of the case of Callaghan v. Aylett, decided in 1811, 5 years before, in the Common Pleas, by Mr. Justice Heath, Mr. Justice Lawrence, and Mr. Justice Chambre, as eminent persons as ever sat on that bench; and which case, in consequence of its having been much opposed the following term in Fenton v. Goundry, made them the common talk in Westminster Hall? Had he not

(a) 1 M. & S. 28.

(b) Holt, N. P. C. 363.

heard

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