another of which (a), it was observed by Lord Chief Justice Gibbs, "It would be difficult to say, in most cases, that what is law, as regards bills of exchange, is not law as it respects promissory notes:" but paramount in point of application is what was said by Lord Mansfield in Heylyn v. Adamson (b) and which has been so often mentioned, that I shall content myself with merely referring to it. Such, then, being the similarity, and, in some instances, the identity of promissory notes and bills of exchange, let it be seen what has been determined with respect to promissory notes; premising only, that, here, at least, there is no clashing of authorities: for though the decisions in the King's Bench, as far as respects promissory notes, are denied to have application to bills of exchange, the decisions in the Common Pleas, as to bills of exchange, of necessity include promissory notes; and so far, then, as concerns promissory notes, there is no difference of opinion whatever. What then has been decided respecting promissory notes? In this, the decisions of the two courts agree; namely, that a promissory note, containing in the body of it, a promise to pay at a particular place, requires a demand of payment there, in order to give the holder a cause of action if it be not paid. Now on what grounds of reasoning do such decisions stand? To take one case of the many, - In Sanderson v. Bowes, it is said by Lord Ellenborough, "An action on a note will not lie unless the Plaintiff has demanded payment at the appointed place. And I cannot but say, that it is very convenient that such a condition should be incorporated in the note itself; for it would be very inconvenient, that the makers of notes of this description should be liable to answer them every where, when it is notorious that they have made provision for them at a particular place, where only they engage to pay them;" and, having thus stated the ground of convenience, his lordship added, "then if the request at the place be a condition precedent, it should have been averred, and, for want of such an averment the declaration is bad." Apply this doctrine to bills of exchange. If convenience require that the makers of promissory notes should be liable only where they have expressly made provision to pay, how (a) Richards v. Milsington, Holt, N. P. C. 364. n. 1820. ROWE V. YOUNG. Dallas C. J. 1st & 2d Ques tions. 1820. ROWE v. YOUNG. Dallas C. J. 1st & 2d Ques tions. is it possible, in this respect, to distinguish promissory notes from bills of exchange? Is not the convenience precisely the same in the one case as in the other? — and, being the same, how is it to depend on the form of the instrument? Call it what you will, or make it what you may, it is in payment, in each instance, that the transaction is to end, and the note or bill is the means, and nothing more, by which payment is to be procured; as far, therefore, as to a particular place of payment being pointed out, or a specific place of deposit being established, the reasoning applicable to each is precisely the same, and it seems to me impossible to distinguish between the two. An expression of Lord Ellenborough's has, however, been much observed upon, namely, "that a specification of place is but an expansion of the promise to pay." It will not be supposed that I mean to follow any of the verbal or critical remarks which have been made in this respect, at the bar, or in the courts below. Whatever peculiarity of expression might, at times, belong to this noble and very eminent person, it was, generally speaking, a peculiarity of force adapted to his peculiar vigour and energy of thought. But, to the substance of the expression as authority, it will be necessary to advert, in order to see how it has been understood and explained by those, who have applied it in support of the doctrine of non-restricted acceptance. In Gammon v. Schmoll, the leading counsel at the bar, who was to support the doctrine of universal liability, explained it in this way, "every general acceptor has a double liability, he is in default, first, if the bill is presented to him, personally, wherever he may be, and he does not pay it; secondly, he is in default, if it be presented at his place of abode, and not paid: to these, by a qualified acceptance, he adds the obligation to pay it, if it be produced at the place," that is, the place specified. He must be prepared "with triple funds to pay the bill, as well where his person is, as where his abode is, and also, at the particular place mentioned: this is what Lord Ellenborough means by an expansion of the promise." This is a complication of expansibility which seems to me a strange departure from simplicity of proceeding; and, for myself, I can only say, I would not so understand it, if I could understand it to any other effect; but it is impossible to deny, whatever might be intended. by the mode of expression itself, that in sum and sub stance, But whether every 1820. ROWE v. stance, it does not amount to this. I now come to that, which it is said, however, makes the distinction between bills of exchange and promissory notes, so as to make the reasoning as to the latter inapplicable to the former. And this distinction is said to consist in the form and nature of the respective instruments. First then as to the form. In a promissory note, it is said the words are incorporated in the very body of the instrument, which creates the contract and duty of the party; whereas, in a bill of exchange, they are no part of the bill itself, but distinct as acceptance, and collateral to it. A promissory note is merely the promise of the maker; the acceptance of a bill of exchange is a compliance with the order of the drawer. To a promissory note there are but two parties: to a bill of exchange there are three, and the drawer has rights as well as the acceptor and payee. And to this I agree. But here again, at least, as between the acceptor and the payee, there is no distinction. In each instance, a debt must be pre-supposed, and in each, it is an undertaking to pay; it is said, that in the case of a promissory note the instrument creates the contract; and, no doubt, it does, that is, the contract to pay in the particular manner, but not the antecedent debt; the obligation to pay existed anterior to the note; and, though, in the case of a bill of exchange, the debt had also pre-existence, the precise obligation to pay is created by the acceptance, and, be it promissory note, or be it bill accepted, it is, in each instance, but a promise to pay; and, without such promise the bill itself, as to the acceptor, would be a mere nullity. To advert, however, to the situation of the drawer, (and 3d Question. this brings me to the third question, which your lordships have been pleased to put,) namely, whether, if A. draws a bill upon B. in favour of C., and C., without the subsequent assent of A., takes an acceptance of the bill for the whole sum, but an acceptance qualified as to time or place of payment, C. could, notwithstanding such acceptance, maintain an action on the bill against A. And, first, with respect to time in this the learned judges all agree, that giving time will discharge the drawer. Extending the time mentioned in the bill would be giving more time than the drawer has said by the bill he chooses to give, which, as against the drawer, the payee can have no right to do; and, taking an acceptance at a shorter date, if, in case of non-payment, it would give an immediate action against the drawer, would, thereby, make him liable sooner than he undertook to be; he being liable only in case of non-payment by the acceptor, and this at the end of the stipulated time. I need scarcely add, it would be the same as to place, if place, from its nature, should resolve itself into time. It remains, therefore, only to consider place as unconnected with and independent of time. And, so considered, it may, or it may not, be material to the drawer. Suppose all the parties to live in the same town, whether the bill be accepted at the counting-house, or at the banking-house, can make no real difference to the drawer; in other cases, from distance, it might be material; but, at all events, I think, that if it put the drawer under greater difficulties than he otherwise would be under in point of proof of proper presentment, if bringing an action himself, it is a difficulty which I hold the payee has no right to impose upon the drawer, whose rights. should remain unaltered as ascertained by the bill: whether those rights were altered or not would depend on the particular case. Perhaps, however, it would be more reasonable and convenient than making it depend on situation in each particular case, which might generate innumerable questions and give rise to great uncertainty, to hold, at once, the drawer discharged, the payee having taken such acceptance without notice, and thus acting at his own peril; and thus, all inconvenience would be guarded against, by making it necessary to give notice to the drawer. With respect to the last question, I am of opinion, that, under the circumstances stated, C. could not maintain an action against A. without delivering up the bill, and this for the reasons given by several of the learned judges, and which I do not feel it necessary to repeat. 1820. ROWE v. YOUNG. In the above observations, I may appear to your Lordships to have built much on the decisions as to promissory notes; but, it has been said, these decisions themselves, Dallas C. J. perhaps, in point of law ought not to have taken place. To this I can only answer first, that it is impossible for me to doubt of the validity of these decisions, numerous as they are, recognized and confirmed as they have been by every court, and never, in a single instance, having till this day been drawn into doubt by even a single judge. If the law so settled is now to be considered as unsettled, I know not on what foundation, in point of law, any decision can stand: but, here, disclaiming even those decisions as decisions, and recognizing only the principle on which they proceed, I say, that, if the case of a promissory note were to occur now for the first time, it ought to be decided as those cases have been decided; and further, that, without deriving authority from the decisions as such, the principles on which they have proceeded, and ought still to rest, apply equally, in my judgment, to bills of exchange. On the whole, therefore, my opinion is formed, as to bills of exchange, even without reference to the decisions as to promissory notes; and still less have I referred to the cases, of promissory notes, for the purpose of proving the decisions of the court of King's Bench inconsistent each with the other, but for the purpose of respectfully adopting the decisions of that court where they agree with the decisions of the other courts, and thus affording principles decisive, in point of law, of the same question as to bills of exchange. And here, without repeating what has been said by other judges in answer to the cases put of actions in debt on bond, or demand of rent, I will only further say, that these do not appear to me to be cases analogous to bills of exchange, which depend on peculiar and appropriate grounds of commercial law, altogether distinct and different, and which, it must be agreed, the custom and usage of merchants is to decide. And this leads me to the only point on which (independent of the different opinion entertained by several of the learned judges, and of the very able reasons by which their judgments have been supported) I am bound to say I feel some degree |