1820.

ROWE

V.

YOUNG.

Bayley J. 1st Question.

required by Plaintiffs so to pay the same. The second stated, that differences had arisen, and were referred; that the arbitrator awarded; that, on a balance of all accounts between the parties, there was due and owing from Defendant to Plaintiff 617. 10s., which he directed to be paid on 10th of June, between 11 and 1, at the house of one G. H., Plaintiff's attorney, whereof Defendant had notice; yet Defendant did not pay the same, or any part thereof, at the time and place appointed for the payment thereof as aforesaid; nor hath he since paid the same, but hath wholly failed, and made default, whereby an action hath accrued, &c.— Now, upon what principle do these declarations omit to state attendance at the place, or demand at the place? Clearly upon this, that the money awarded to be paid became a debt from the Defendant; that he was under a general obligation to pay, and not confined to time or place; and that, therefore, attendance at time and place was not part of the Plaintiff's title; but readiness to pay at time and place was matter only of defence. Mr. Caldwell, indeed (a), lays it down, that where the money is to be paid at a certain time and place, the Plaintiff must aver that he attended there at the time appointed, and remained until the period within which payment was to be made; but this position is evidently founded on a mistaken notion of the case of Phillips v. Knightly (b): there, according to Fitzgibbon, the Plaintiff was, upon receiving the money, to give the Defendant a covenant of indemnity; there were, therefore, to be two concurrent acts, viz. the payment of the money, and giving of the covenant; and the Plaintiff could not sue for the money without showing a readiness, on his part, to give the covenant, which he had not done. This case, therefore, is not at variance with the established precedents, and I have only noticed it, that a mistake in a useful book may be corrected. Another class of cases, which I will mention, are cases of rents. Rent is reserved in some cases generally, and then the proper place for the payment, the place appointed by law, is the land out of which it issues. In some cases it is expressly made payable at some other place: and yet, in either case, is there a precedent, either in debt on the reddendum, or in covenant, of an averment, that

(a) p. 194.

(b) Fitzg. 53. 1 Barnard. 84.

the

the Plaintiff was at the time and place to demand it. The
declaration, in such cases, is always general, that on such a
day so much of the said rent became due and in arrear,
and that Defendant, although often requested, had not paid.
So, in covenant upon a mortgage-deed to pay the mortgage-
money, on a given day, in Lincoln's Inn Hall, or in any
other place; or in debt upon a single bill to pay money for
a past consideration, at a given place, the declaration never
alleges attendance or demand by the Plaintiff; but, merely
alleges non-payment by the Defendant. Now, what can
be the principle of all these cases? What but this, that the
money to be paid is a debt from the Defendant; that it is due
generally and universally; that it will continue due, though
there be a neglect on the part of the creditor to attend at
the time and place to receive; that it is matter of defence on
the part of the Defendant to shew that he was in attendance
to pay, but that the Plaintiff was not in readiness to receive;
and that defence will, generally speaking, be in bar of
damages only, not in bar of the debt, and must be accom-
panied with a bringing of the debt into court. The instances
in which this is made matter of defence will throw light
upon the point. Most of those instances occur in demands
for rent; but no distinction in principle can be drawn
between cases of rent, and cases of other debts.
mention some of these cases.
ing 10. (a) yearly at Easter,
covenants each bound in 201.
Easter, and, therefore, the 201.
pay at the day on the land, and no one attended to receive;
and the plea was held good. In Kidwelly v. Brand (b),
rent of land at Lomer was reserved, payable at Hide: and
the question was, whether the landlord could re-enter for
non-payment of rent without demand; it was adjudged,
(though there are cases since to the contrary,) that he might :
the reason given is, that the rent being made payable at a
place off the land, it lost its character of rent, and became
like a sum in gross, and then it was the tenant's duty to
offer it, not the landlord's to demand; "Lessee ought to
offer it for his own indemnity, as the obligor ought upon an
obligation, or as the grantor of an annuity ought to offer
the annuity at the day, to excuse himself of damages."
(b) Ploud. 69. Dyer, 68. a.
$
Bushin

(a) 22 H. 6. 57. Pl. 7. VOL. II.

I will - Lease for years, renderand for performing of Non-payment of rent at claimed. Plea, ready to

1820.

ROWE

YOUNG.

Bayley J. 1st Question.

1820.

ROWE

ข.

YOUNG.

Buskin v. Edwards (a) corrects that case, by shewing that a payment due from a tenant still remained a rent, though made payable at the Royal Exchange in London. The propriety of what is said in Plowden, in case it had been a sum in gross, is not questioned. The inference, then, Bayley J. to be fairly drawn from the case in Plowden, corrected 1st Question. as it is by the case in Croke Elizabeth, is this, that if a sum in gross be made payable at a certain time and place, and the sum is properly a debt from the person who is to pay it, it is his duty to attend at the time and place and offer it, but it is not the duty of the person who is to receive it to demand it; and yet the offer is essential to protect him, not against payment of the sum itself (which, as being due, ought to be paid) but against damages.

In Brook's Abridgment (b) is this position: "In debt for rent, tender on the land and refusal of plaintiff is no plea, for he shall answer to the debet; but the contrary in avowry; for, there is to be a return, and there ought not to have been distress if tender was made." Now what is the meaning of this passage? evidently this, that in debt it is no plea in bar of the action; it is a bar of damages only; not of the debt: and, therefore, he must answer to the debet, by bringing the money into the court upon the tender, which in the case of a plea in bar to an avowry he need not do. Brownlow v. Hewley (c) is an authority to shew that, upon a plea of tender on the land at the day in an action of debt, the rent must be brought into court; and Horne v. Lewin (d) to shew, that, upon a plea in bar to an avowry, it need not be brought into court. In Osborn v. Beversham (e), in debt for rent the plea was readiness at time and place and ever since, and profert of the money. To this plea there was a demurrer, grounded on two objections. 1st, Non obtulit, for, when time and place are certain, semper paratus without an obtulit is no plea. 2d, It is pleaded in bar generally; it should have been in bar of damages only; and the Court thought both objections good. Levinz makes a query on the first ground, because the rent is demandable, (i. e. Plaintiff should have demanded it,) "otherwise," says he, "of a sum in

(a) Cro. El. 415. 535.
(b) Dette, pl. 216.
(c) 1 Ld. Raym. 82.

(d) Id. 639. Salk. 583. (e) Vent. 322. 3 Keb. 800. 2 Lev. 209.

18

gross,

gross, which is payable without demand." In Crouch v.
Fastolfe (a), cited yesterday by my Brother Richardson, to
debt for rent there was a plea of attendance at the day and
place, that the Defendant was ready to pay, and that no
one came to receive. To this plea there was a demurrer,
because tender was not alleged, but it was resolved to be
well enough, and adjudged for the Defendant. A precedent
of such a plea is in Thompson's entries (b): however, in
Horne v. Lewin (c) a paratus without an obtulit was held in-
sufficient. It is immaterial to the point which I am consider-
ing, whether there ought to be a tender or not, and quite
sufficient for my view of the subject if with a tender it would
be a bar of damages. Now what are the legal conclusions
which I draw, and the legal positions which I consider as
resulting from the authorities with which I have troubled
your Lordships? They are these, that, if a man, in respect
of
any debt which he owes, engage to pay it upon demand,
or engage to pay at a given time and place, it is not a neces-
sary part of the Plaintiff's title to make such demand or at-
tend at such time and place; that he is not bound in his
declaration to state any such demand or attendance; that a
neglect to demand or attend will not bar his right to the
debt and enable the Defendant to keep it; but, that the De-
fendant may shew readiness on his part to exonerate him-
self from any damages.

I now come to apply these principles to bills of exchange. The acceptor is, by the law and custom of merchants, considered as the principal debtor; the drawer and indorser as sureties only, liable on his default, and not otherwise. His engagement is general, that he will pay; that of the drawer and indorsers is conditional, namely, that if due diligence be used, they will pay, if the acceptor does not. The engagement of the acceptor is, either that he has effects in hand, or that he is secure of having them by the time the bill becomes due. In the language of the Lord Chief Justice Eyre, "The theory of a bill of exchange is, that the bill is an assignment to the payee of a debt due from the acceptor to the drawer, and the acceptance imports, that the acceptor is a debtor to the drawer, or at least has effects (c) Lord Raym. 644.

(a) S. T. Raym. 418.
(b) Lib. Placit. 150.

1820.

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YOUNG.

Bayley J.

1st Question.

1820.

ROWE

v.

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Bayley J. 1st Question.

of the drawer's in his hands." The acceptor, therefore, has, or ought to have, in his hands or under his control, the fund by which payment ought to be made; and it is his duty so to apply it. The drawer or indorsers have no control over the fund, and consequently no duty with respect to it. This difference of situation and character between the drawer and indorsers and acceptors, has produced a settled distinction in the manner of suing them. The action against drawer and indorser invariably shews that due diligence has been used; the action against the acceptor invariably omits it. In an action against the drawer and indorsers, the declaration invariably avers presentment of the bill, its dishonour, and notice thereof to the defendant. In an action against the acceptor no such averments are made. Every bill is to be properly presented for payment; and, in an action thereon against the drawer or indorser, a presentment according to the usage and custom of merchants, must be averred and proved. In an action thereon against the acceptor, presentment (generally speaking) need not be averred or proved. This is clear, settled, undisputed law. Not that, in practice, such presentment is likely to be omitted: the risk of losing the responsibility of the drawer and indorsers generally secures it but if there were to be an omission, that is no reason why the acceptor, who has, or ought to have, funds to discharge it, should keep those funds to himself, or should refuse so to apply them.

-

If a bill be addressed to A, in Bedford-square, and he accept it generally, in an action against the drawer or indorser, presentment must be alleged and proved: in an action against A, presentment need not be alleged or proved. If A have changed his residence, and accepted it, payable at his new abode, does this make any difference? presentment need not be averred in the one case -need it be averred in the other? If the necessity exist, there must be some reason for it. What is that reason? Though I am putting the case where the bill is still payable at the party's own house, and this is the case where the bill is made payable at a banker's, does this make any difference, does it vary the character or situation of the acceptor, so as to put him in the situation of a surety only instead of a principal, and if due diligence be not used,