1820. ROWE v. YOUNG. Wood B. who the holder is, may be by an action. Common sense and common justice, and the convenience of mankind, all concur in telling one, that a man, who has agreed to take an acceptance payable at a specified place, should be bound to have recourse to that place for payment before he can sue the acceptor. It has been argued, that the Defendant should not have demurred, but should have pleaded, that he 1st Question. was ready to pay at the appointed place, but nobody came to receive payment. That, I conceive, was not necessary; because the first act to be done (which is a condition precedent) is the presentment of the bill for payment at the appointed place; and the Plaintiff must shew that to maintain his action; and so was the determination in Sanderson v. Bowes. But, considering the presentment and payment to be concurrent acts, the party who brings the action (not he who defends it) must shew, that he has done what is necessary on his part to maintain that action, namely, that he has been ready with his bill to present, and, thereon, to receive payment at the appointed place. In answer to the arguments raised from forms of pleading, I say, that the Defendant may avail himself of this objection in different shapes; 1st, as in this case, by demurrer; 2dly, he may plead the general issue, and, for want of proof of presentment, apply for a nonsuit; or, 3dly, he may plead specially, that he was ready at the appointed place to pay, and that no presentment was made, or, generally, that the bill was never presented at the appointed place. It has been argued, that presentment for payment need not be averred, and that it never is averred in a declaration against the acceptor; and I agree, that, where the acceptance is general, it is so; and the reason is this, because the acceptor is always liable: his acceptance operates as a promise to pay, not only at the time when the bill is due, but at all times afterwards when requested, or on demand; and the bringing the action is in law a request or demand. But, where place is of the essence of the contract, as in the case in question, though it be not necessary, to aver presentment at the day, it is necessary to aver presentment at the place on some day before bringing the action. One who is indebted promiseth to pay it upon request: in an action upon the case upon that promise, the party needs not to express the assumpsit 1820. ROWE v. YOUNG. Wood B. with the request, it being an old debt; but otherwise it is, where there is such a promise without any duty precedent (a). In debt or detinue, the very bringing of the action and demand of the writ is a demand and request (b). Acceptance after the time of payment elapsed, and a promise then to pay according to the tenor of the bill, is good, and amounts 1st Question. to a promise to pay the money generally (c). Arguments have been drawn from forms of pleading in actions on bonds or obligations and other actions in debt, and it is contended that it lies on the Defendant to plead either a tender or that he was ready to pay and bring the money into court. These rules are not applicable to this case: this is not an action of debt or indebitatus assumpsit on an antecedent debt. It is well established, that an action of debt will not lie on the acceptance of a bill of exchange, it is an action on the custom of merchants for damages only without any antecedent debt. As to debt on bonds or obligations, they create an immediate debt, and the Defendant must shew that he has done all that was necessary on his part to perform the condition, and that it was the fault of the obligee that it was not completed. But, when the Plaintiff brings an action for a demand dependent on a condition precedent on his part to be performed, there, he must aver performance to maintain the action, as in Sanderson v. Bowes. 2d Question. In answer to the second question proposed by your Lordships, I am of opinion, that this bill having been so accepted as aforesaid, such acceptance is, in law, to be considered as a qualified acceptance to pay the same at the said house of Sir John Perring and Co., bankers, only; and, that it is not a general acceptance to pay the same with an additional engagement or direction for the payment thereof at that house, for the following reasons. It is the custom of merchants and opulent persons to keep their monies at bankers, and to accept bills to be paid at their bankers, that they may not be under the necessity of keeping money at their own houses, or entrusting money to their servants in their absence to take up acceptances, or of carrying money about their persons to answer such acceptances, if demands (a) 4 Leon. 2. Pulmant's case. (b) Per Jones J. Godb. 403. Hern & Stub's case. should 1820. ROWE ບ. YOUNG. Wood B. should be made upon them personally. Such special acceptances are conveniences to both holder and acceptor. But this object, so far as respects the acceptor, would be totally frustrated, if, at the election of the holder, he, the holder, could reject the appointment of the place of payment in the acceptance as mere surplusage, and demand payment wherever he pleased. What authority is there either in law 2d Question. or common sense to say, that a promise (and an acceptance is a promise) to pay at a particular appointed place by name, is to be expanded (for that I think is the phrase) into a promise to pay in every corner of the kingdom where the acceptor may happen to be, as well as at the particular appointed place. The acceptor is under no previous obligation to pay; he owes no debt to the holder prior to his acceptance; his acceptance is the only thing which constitutes the compact between him and the holder. The expression of one particular place, according to a well known maxim, is the exclusion of any other. There is no law or custom of merchants to justify such an expansion, or rather I should say, expulsion of men's words and meanings. I remember cases of this sort. A person has given a promissory note payable at a particular time, and has signed it; and, after he has signed it so that he has completed the instrument, he has put upon the side or bottom of the note a memorandum of a particular place where it will be paid. In such a case, the particular place is no part of the note, and does not control its general operation: it is no variance in a declaration to omit such a memorandum: it may, perhaps, amount to evidence of an additional engagement that it shall be paid at that place. But, here, the acceptance is only one single continued sentence, at the end of which, probably, stands the signature of the acceptor. In answer to the third question proposed by your Lord- 3d Question. ships, I am of opinion, that, if A. draw a bill on B. in favour of C. for 100l., and C., without the previous authority or subsequent assent of A., take an acceptance of the bill for the whole of the 100%., but an acceptance qualified as to the time or place of payment, C. could, notwithstanding such acceptance, maintain an action upon the bill against A., unless the qualification as to time or place produces a damage or injury to A., for the following reasons. If the holder, without such previous authority or subsequent assent of A. VOL. II. 1 T the 1820. ROWE YOUNG. Wood B. 3d Question. 4th Question. the drawer, enlarge the time of payment by the acceptor, that may injure the drawer and operate to discharge him: or, if he take an acceptance payable at a distant place, so that, if the bill be dishonoured, notice cannot be given to the drawer so soon as it might if the acceptance had been general, that may injure the drawer and discharge him as for want of due notice. But, in the case of a bill drawn on a person in London, and accepted payable at a banker's in London, I should think such special acceptance would not operate to discharge the drawer, if due notice was given to the drawer of the nonpayment, because, in such a case, the special acceptance does the drawer no injury. In answer to the fourth question proposed by your Lordships, I am of opinion, that, if A. were debtor to C. in 100%. previous to his so drawing upon B. in favour of C. to the amount of 100%., C. could not, upon A.'s refusing his assent to an acceptance qualified as mentioned in the above 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 1007. Least I should have mistaken this question, I will take the liberty of offering some reasons or explanations. If C. take the draft of A. upon B., for a debt due from A. to C., C. is bound to use his endeavour to get it accepted and paid, and, if it be not honoured, is bound to return it to A. in due time, and to deliver it up to A., and, that being done, it is the same, then, as if no bill or draft had been given; and C. may then maintain his action against A. for his original debt. If the bill have been left for acceptance, and B. have written a qualified acceptance upon it, which C. does not chuse to take, he should inform B. that he will not take an acceptance so qualified, and require a general acceptance; and, if that be refused, he should strike out what was written, and return the bill to A. as an unaccepted bill, in which case, C. may resort to his original debt against A. If C., without A.'s previous authority or subsequent assent, accepts and assents to B.'s acceptance, so qualified as to time or place as materially to alter the condition of the drawer, in that case, he can only resort to B., the acceptor, according to the terms of his acceptance, and A. will be discharged from his debt to C., for which he gave the bill; and B. will be dis charged, charged, as against A., from his original debt, for which he gave his acceptance, and can only be sued on his special acceptance. GRAHAM B. The general question proposed by your lordships is, whether the words of this acceptance form a condition precedent, and whether such expressions constitute a qualified acceptance, or a general acceptance with an additional engagement or direction for payment at the house mentioned. If these words do constitute a condition precedent, it was necessary before action brought to demand payment at the place mentioned, and to aver in the declaration that the plaintiff had so done. When a man accepts a bill, it is the most solemn, because it is the most public recognition of the drawer's right to demand the amount of it from him. The acceptance is an obligation to pay all over the world, and the question is, whether generally speaking, in the intention of the acceptor and the understanding of the holder, the words "payable at Sir J. Perring and Co's," contract this general obligation to an engagement that the acceptor will pay the drawer there and no where else, (as some seem to think,) or, at least, not till it be proved that a demand was made there in vain. In my apprehension, such an acceptance is no qualification of the general liability of the acceptor. It is a substitution of the banker's for the person and abode of the acceptor, for mutual convenience; and means only to charge the drawer and indorsers in transitu, that the holder, instead of calling upon the acceptor, should make his demand at the banker's. No demand is necessary against the acceptor, he is liable without demand; but, to charge the drawer, you must prove a demand on the acceptor, or on the persons whom he has identified with himself for that purpose. The question, then, will be, does a man mean to impose a condition, or to suggest, for mutual convenience, a place, where, with least trouble to both, the money may be had? But this question, of daily occurrence, simple as it may seem and of easy solution to some, is rendered complicated and difficult by great and conflicting authorities. As to the balance of authority, I think it cannot be doubted, from the case of Smith v. De la Fontaine, in 1820. ROWE V. YOUNG. Graham B. 1st & 2d Ques tions. |