1820. ROWE ข. YOUNG. Bayley J. 3d Question. 4th Question. In answer to the third question, I submit, that a distinction is to be taken between an acceptance qualified as to time, and an acceptance qualified as to place. If C. take from B an acceptance qualified as to time, giving B a longer time for payment of the bill than the bill itself specifies, I consider it as quite clear that C could not sue A upon the bill. The holder of a bill has no right to give the drawer time. If he do, he does it at his peril. English v. Darley (a) establishes, that indulgence to the acceptor after the bill is dishonoured, discharges the drawer and indorsers, and there are many other cases to the same effect: if so, indulgence to him before the bill is due must have the same effect. An acceptance qualified as to place, will, or will not, take away from C the right to maintain an action against A upon the bill, according as such acceptance does, or does not, throw upon A an additional burthen, or cast upon him any prejudice. If the bill be payable at a place where the drawer lives, his house is prima facie the place at which it is to be paid, but the usage of merchants warrants the drawer in naming any other house at the same place for payment. If the drawee has no house at the place where the bill is made payable, the holder has a right to require from him an acceptance specifying some house in particular in that place, for its presentment. This doctrine is laid down by Holt C. J. in the case cited by my Brother Holroyd (b). But, if naming a particular house casts upon the drawer any new burthen or prejudice, the holder, by allowing such house to be named, has done, as to him, what he was not warranted in doing, and the drawer is discharged. The question, then, is, Does the qualification as to place. cast on the holder a new burthen or prejudice? and, if it oblige him to prove at his peril, in an action against the acceptor, what upon a general acceptance he would not be bound to prove, it does cast upon him a new burthen. In answer to the fourth question, I am of opinion, that C would not be at liberty to maintain an action against A on his original debt, without delivering to A the bill so accepted; because A has by the bill offered to C a credit upon B, and C has consented to that credit: and Chas no right to double payment from A and B. Kearslake v. (a) 2 B. & P. 61. (b) Ld. Raym. 575. Morgan Morgan (a) is an authority in point, to shew, that, if a debtor pay his creditor, by a note or bill, which the creditor takes on account of his debt; such taking of a bill will be an answer to an action brought by the creditor against his debtor for that debt, unless the creditor gives up such bill. WOOD B. In answer to the first question proposed by your Lordships, I am of opinion, that, in this case, the bill of exchange mentioned in the first count of the declaration, being therein alleged to have been accepted according to the usage and custom of merchants, "payable at Sir John Perring and Co., bankers, London," that is to say, at the house of certain persons using in trade and commerce the name, style, and firm of Sir John Perring and Co., bankers, 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. It is clear, that the drawee of a bill of exchange, if he choose to accept it, may do it generally, or may make a special or qualified acceptance. The holder may refuse to take a special or qualified acceptance; but, if he do take it, he is bound by it, as that constitutes the contract between him and the acceptor. There are many cases which might be cited to prove this position, but I will only trouble your Lordships with one. In Petit v. Benson (b), a bill was drawn upon the Defendant, who accepted it by indorsement, in this manner, "I do accept this bill, to be paid half in money and half in bills;" and the question was, whether there could be a qualification of an acceptance, for it was alleged that his writing upon the bill was sufficient to charge him with the whole sum: so that the question here must have been, whether the words "to be paid half in money and half in bills" would not be rejected, and the acceptance stand as a general acceptance? "But 'twas proved by divers merchants, that the custom among them was quite otherwise; and that there might be a qualification of an acceptance; for he that may refuse the bill totally, may accept it in part. But he, to whom the bill is due, may refuse such acceptance, and protest it, so as to charge the first drawer; and, though there be an acceptance, yet, after (a) 5 T. R. 515. (b) Comb. 452. that, 1820. ROWE V. YOUNG. Wood B. 1st Question. 1820. ROWE V. YOUNG. that, he hath the same liberty of charging the first drawer as he before had :" that is, although there be an acceptance written, if he refuses to take it, he may strike it out and charge the first drawer. It is observable that the case says, the custom was proved by several merchants: at that Wood B. time, it was usual to set out the custom of merchants in the 1st Question. declaration, and to prove it by witnesses, which accounts for the words " 'twas proved by divers merchants;" but it was afterwards, in the same reign (a), held, that the court was bound to take judicial notice of the law merchant; and, therefore, it is not usual now to set out the custom, but to allege that, according to the custom of merchants, such an one drew a bill, and such an one, according to the custom of merchants, accepted, &c. As there may be a qualified acceptance, is the acceptance in question a qualified acceptance? What makes a qualified acceptance? Why, the words used by the party in his acceptance. Do the words "payable at Sir John Perring and Co.'s bankers, London," mean nothing? Are they mere surplusage? If so, then this bill ought to have been presented for payment at Torpoint. To make such constructions would, I conceive, be contrary to the usage of merchants, and the plain sense and meaning of words. Acceptance imports a promise; and the acceptance in question is a promise to pay at a particular place, that is to say, at a banker's in London. An acceptance is an actual promise to pay, (per Curiam, in Mitford v. Walcot (b)). There are two conflicting decisions of the Courts of King's Bench and Common Bench upon the point in question, viz. the case of Fenton v. Goundry, in K. B., and the case of Gammon v. Schmoll, determined by the Court of C. B. On those cases I will not trouble your Lordships with my comments: but I must observe, that there is a very material case of Sanderson v. Bowes, which, though my brother Bayley does not seem now to think so, I hold to be good law. In that case, a promissory note was made payable at a banking-house, and the Court held presentment at the bankinghouse a condition precedent to the maintenance of the action. I cannot distinguish the case in question, in principle, from this of Sanderson v. Bowes, where the Defendant promised (a) W. 3. (b) 12 Mod. 410. to 1820. ROWE V. YOUNG. Wood B. to pay at the banking-house at Workington, to one R. Nelson or bearer. The Court of King's Bench on demurrer held, that it was necessary to present the note for payment at the banking-house at Workington, which seems to me to be contrary to the former decision of that court in the case of Fenton v. Goundry, which was the case of a bill of exchange accepted payable at a particular bankers (like the accept- 1st Question. ance in this case). The distinction which the Court of K. B. took, was, that the acceptance was no part of the original conformation of the bill itself, but that the words in the note (in Sanderson v. Bowes) restrictive of payment at the place named, were incorporated in the original form of the instrument which alone created the contract and duty of the party. Try this case by that principle; what alone creates the contract and duty of the acceptor? Why his acceptance. There is no antecedent debt due from the acceptor to the holder. What is incorporated in the original form of the acceptance? The place of payment. It is true, that acceptance is a subsequent act to the first conformation of the bill: it is a subsequent contract between the acceptor and holder; but, it is the only contract which there is between them. It is, in point of law, a promise of the acceptor to pay the bill at a specific place. The declaration states, and incorporates in the acceptance as there stated, the very words "payable at Sir John Perring and Co.'s, bankers," and the promise alleged is to pay according to his said acceptance. The Plaintiff by his declaration does not reject these words as surplusage, but considers them as forming part of the acceptance. Suppose, instead of a note, a bill had been drawn on Bowes and Co., and they had accepted it payable at their banking house at Workington, and subscribed the acceptance, can it be contended, that, in one case, the holder is bound to present at the place, and, in the other, not? I say, therefore, as was said in Sanderson v. Bowes, that a demand by the holder of payment of the bill at the specific place was a condition precedent, in order to give himself a title to receive the money. As to the second branch of the first question, viz. Whether the Plaintiff is bound to aver in the declaration, that the bill was presented at the house of Perring and Co. for payment? I take it to be a condition precedent that it should be presented for payment at the appointed place; and, if so, with out 1820. Rowe ບ. YOUNG. Wood B. 1st Question. out doubt, the Plaintiff cannot maintain his action without averring performance of that condition precedent, and so the Court of King's Bench held in Sanderson v. Bowes. It is not necessary, as between the holder and acceptor, that the holder should aver presentment on the day when the bill becomes due; because the acceptor is liable at all times afterwards, whenever it shall be presented at the appointed place. His liability is not confined to any day; his liability is to pay any time after the bill becomes due, if presented at the appointed place. The presentment on a particular day can only be material to charge the drawer. It has been argued, that presentment need not be averred, but, that it is matter of defence. I think, that it may be matter of defence although not averred; and, that, at the trial, the Plaintiff ought to be called on to prove it; otherwise, after verdict, it might be presumed, that it had been proved to be presented according to the acceptance. If a bill directs the payment at a certain place, it ought to be paid there without other demand than at the place, though the acceptor lives at a place remote (a). The place where a bill is to be paid is so important, that, if it be directed to a person generally, and he will not accept it to be paid at a certain place, the holder may protest it. If a bill be accepted at Amsterdam, and no house named where the payment is to be, the party need not to acquiesce in it, but may protest the bill; but, if he will acquiesce, it is well enough (6). Then, according to the doctrine contended for, although the law requires a place of payment to be named; yet, when it is named, you are not obliged to resort to it for payment. The mischief to the commercial world, and to all who have any concern with bills, would be very great, if the holder were not bound to present for payment at the appointed place; but, on the contrary, might, at once, without any presentment, bring an action against the acceptor. The acceptor would have no means of avoiding an action (and, perhaps, an arrest); for his acceptance may have been in circulation, and may be in the hands of persons of whom he knows nothing: so that he cannot tell to whom to send or tender his money, or how he is to get discharged; and the first notice which he has of (a) Com. Dig. tit. Merchant, 200. who |