1320. ROWE V. YOUNG. Graham B. 1785, what Lord Mansfield's opinion was. His great experience and knowledge of mercantile transactions and high character, carry with them strong evidence of the prevailing opinion. Saunderson and others v. Judge (a), in 1795, was an action on a promissory note (and, for the present, I make no distinction between notes and bills) against the indorser. 1st & 2d Ques- Sharp the maker promised to pay to Wilkinson or order; and, at the foot of the note, there was a memorandum, that he would pay it at the house of Saunderson and Co., with whom he had a cash account. Wilkinson indorsed to Judge, he to Sanders and Co., and they to Saunderson and Co. Sharp, before the note became due, absconded, and Saunderson wrote by the post to Judge, giving him notice of the non-payment. The declaration was in the general tions. form, without stating the memorandum or any thing tanta- (a) 2 H. B. 509. (b) 1 Campb. 423. taken 1820. ROWE ข. YOUNG. Graham B. tions. taken by Mr. Park, and I am free to say, that the words of Lord Ellenborough carry conviction to my mind, and form the foundation of my opinion. "How can you make the words payable at Hankey and Co's more than a mere memorandum? The acceptor of a bill of exchange is liable universally. This very point was brought before the court some time ago," (alluding probably to Saunderson v. Judge, 1st & 2d Quesof which Mr. Park said he had some impression on his mind), "when," says Lord Ellenborough," the judges were all of opinion that such words formed no part of the contract, and did not require to be set out in the declaration." It is difficult to believe, I had almost said impossible, that the case should have rested there, if that had not been the opinion of all the judges of the King's Bench; and, as proof, in the very next year (1809), at the Hilary term sittings, Mr. Justice Bayley held, in the case of a promissory note (a), that, in an action against the maker, there was no necessity to prove that it was presented where payable. These authorities are followed by the decision in Fenton v. Goundry, on the fullest consideration of Callaghan v. Aylett, then lately determined in the Common Pleas. I cannot help adding the two decisions at Nisi Prius of Lord. Chief Justice Gibbs (b); these, together with the common form of declarations, make a weight of authority, which it is difficult to counterpoise. But, it is said, in order to diminish the weight of these authorities, that the Court of King's Bench have not always been consistent. And first, it is said, that, in Parker v. Gordon (c), they have recognized the propriety of an application at the place of payment. But that was an action against the drawer; and it is universally true, that to charge the drawer, you must prove a demand on, and refusal by, the acceptor or his substitute. If, therefore, he says, "I accept payable at my banker's," he says, "it is there I am to be called upon for payment; that is my house, there it is where I am to be found, and I authorise you to consider me as personally present there for the purpose of payment:" and, if so, the holder may be presumed to know the banking hours. (a) Wild v. Rennards, 1 Campb. 425. n. (b) Head v. Sewell, Richards v. Milsington, Holt, N.P. C. 363,364. (c) 7 East, 386. 1820. ROWE v. YOUNG. Graham B. 1st & 2d Ques tions. And, if the holder were not bound to this, he should have gone, as Lord Ellenborough says (a), "a step further," and proved a demand on the acceptor, for, otherwise, no demand is made on the acceptor. Secondly, it is said, that they have impaired, if not contradicted, the case of Fenton v. Goundry, by that of Sanderson v. Bowes: this argument or assertion is founded on the supposed perfect analogy between bills of exchange and promissory notes. I perfectly agree, that, in some cases, place may be essential, and may be rendered so by the terms and occasion of the acceptance. A case may be put, of a man, who, remitting all his property to England, and taking his departure from India, accepts a bill for 5000l. at six months, payable in London: he loses his passage: it could never be said, in such a case, that the acceptor engaged to pay in India, or at the Cape of Good Hope, on his way home. The case of bankers issuing notes payable at their banks, as in Sanderson v. Bowes, may be one of these cases; but I deny the alleged analogy between bills of exchange and promissory notes. The maker of a promissory note may express his own terms. He is, as it were, drawer and acceptor; the note must be taken as he issues it. But, in the case of bills of exchange, the drawer has a right to an unqualified acceptance, and an indorser in in transitu is entitled to the same right. If these acceptances were construed as special, and as qualifying the general liability of the acceptor, who is bound to pay, it would hurt the credit of bills. The acceptor is the person whose credit principally supports the bill; he is considered as always liable; but, if an accidental or careless omission to call at the place appointed destroy the acceptance of the bill, the confidence attached to the acceptance is gone, and the credit depends on the punctual observance of the terms of the condition. The proof of a demand and refusal is not easy, and, in many cases, might fail, or be brought in doubt by contradictory evidence. The case of Sanderson v. Bowes, then, can hardly be said to be impugned by that of Fenton v. Goundry. At all events, the former case may be considered as wanting the weight of the latter; but, it is sufficient to distinguish them by the difference of the subject matter of each case. It is, thirdly, said, this is an order on (a) In Parker v. Gordon, 7 East, 386. the the banker: I grant, that it is an authority to the banker to pay, and, in effect, an order; but we must not, by refinement, stagger prevailing notions. If it be an order on the banker, Bishop v. Chitty is a dangerous precedent: no man of business ever thought that such a note or memorandum converted the bill of exchange into an order on the banker; and, that by not calling at the banker's, he lost the benefit of his acceptance, and took the credit of the banker in the place of the acceptor. As to the cases in the Common Pleas, I shall not oppose to the case of Ambrose v. Hopwood (a) that of Huffam v. Ellis (b), in the King's Bench, and House of Lords; in the latter, the declaration followed the case in the Common Pleas, and the words, according to the tenor, might include the house. In Callaghan v. Aylett, and Gammon v. Schmoll, is to be found the great counterpoise to the authority of the Court of King's Bench; but, I must say, that the reasons given are not such as belonged to the authority of the judges, who are reported to have given them. In Callaghan v. Aylett, Mr. Justice Heath says, "there can be no difference in this respect between an action against the drawer, and an action against the acceptor." But, there is this difference, when the acceptor accepts "payable at the house," he means to limit his ubiquity by saying, that he is to be found there for the purpose of payment; and if the holder do not seek him there, he makes default in calling on the acceptor. If, without such direction, the holder omit to call at the house of the acceptor, he cannot, on account of that omission, charge the drawer or indorsers: but it is too much to say, that, by that omission, he discharges the acceptor, who is at all times liable, though no demand of payment was ever made, even at his house. Mr. Justice Heath avoids the authority of Saunderson v. Judge, by saying that, there "it was a memorandum at the foot of the note, not a part of the instrument.” That leads to nice, I had almost said, frivolous, distinctions; for, according to that doctrine, if I say, "I accept, R. G." and add at the foot of the bill, payable at Messrs. G. and Co.," it is a mere memorandum; but, if I say, "I accept, payable at Messrs. G. and Co.," it is embodied in my acceptance, and forms a (a) 2 Taunt. 61. (b) M. 51 G. 3. K. B. See Bayley on Bills, 98. n. I. 3d ed. 1820. Rowe v. YOUNG. Graham B. 1st & ad Ques tions. 1820. ROWE V. YOUNG. Graham B. tions. me. condition precedent. Does it make a difference, that, in one case, the acceptance is all in one tenor, as "I accept, R. G. payable at my bankers," and that, in the other, I write, "Iaccept, R. G.," and, underneath, "payable at my banker's?" A man, whether he accepts in the former or latter form, means the same thing; for when he writes the words "payable, &c." 1st & 2d Ques- he is usually determined in what place to write, by the room or vacancy on the paper are the minds of men in business to be harassed with such untenable and inseparable distinctions? In Gammon v. Schmoll, Mr. Justice Chambre puts the case of a bill drawn upon a judge just going the circuit. I dare say, it has happened to him as it has happened to But, can it be supposed that any man of character on such or like occasion would make his bill so payable, if he had not cash or credit at his banker's? And who would refuse to call at the banker's? No holder in his senses would forbear to follow the directions of the acceptor, because it is undoubtedly done for his convenience; no man in his senses would refuse an application to the banker of the judge, where he would be sure of his money, for the gratification of coming down to Exeter for the sake of arresting him but, if it turn out that an acceptance, payable at a particular place, is a mere shift, or act of roguery, it would be idle, and, in some instances, (as in directions to obscure corners and streets,) almost impossible, to attempt to find out a sneaking lodger in a garret to satisfy this indispensible condition. What holder, or what attorney, would arrest a man of credit under such circumstances, or would disgrace a judge? Such acceptances will always give credit to bills; and the practice will continue, though your Lordships should decide that they do not qualify the general liability of an acceptor; and, perhaps, the mercantile world will thank your Lordships for not imposing upon them the knowledge of precedent conditions, or a speculation, as to the different positions on a note, by the occupation of which the words "payable at, &c." become either a mere memorandum, or a condition precedent. But cases might be put of vexation; these may all be met by way of defence. It is said, (1 Rolle's Abridgment 444;) and I take it to be law, "If the condition of an obligation be to pay 10l. at a given day at S., he (the obligor) is not bound to pay in any other place ;" and " SO |