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of difficulty; and that is, as to what has been said of the understanding and usage of merchants with respect to the question under consideration. If qualified acceptances as to place have hitherto circulated on a settled and general understanding, that place does not operate by Dallas C. J. way of limitation as to payment, as far as concerns your Lordships' first question, which points to the usage of merchants, I am bound to admit, that I ought to have answered differently; and, further, that, if so, the greatest part of my observations fall to the ground. Looking, also, to your Lordships' second question, the consequence would, I apprehend, be the same, that is, as to the legal effect; for a bill of exchange, being altogether the creature of mercantile usage, recognized, however, by the law, such usage would constitute the law as applicable to such an instrument it is not to be overlooked, that it has been asserted by high authority, that, in circulation and practice, supported by mercantile opinion and understanding, a conditional acceptance does not operate as I conceive it to do: Not meaning to doubt that such information has been given; still, if the decision is to turn on this single ground, I could wish the fact in some way or other to be regularly ascertained. I will take the law from the learned judges, whose office it is to expound the law; but, if the law is to depend upon fact, and fact on testimony, I desire, if possible, to have testimony through the regular channel. This creates a difficulty with me, subject to which, I will only in conclusion add, that, for the reasons which I have given, I adhere to the answer, which I have humbly presumed to submit.

tions.

Abbott C. J. ABBOTT C. J. In answer to the first and second ques1st & ad Questions proposed by your Lordships, I am humbly to acquaint your Lordships, that I think the defendant in error was not bound, in order to entitle himself to sue the plaintiff in error, who is the acceptor of the bill in question, to present the bill for payment at the banking-house of Sir John Perring and Co., nor to aver in his declaration that the bill had been so presented; for, I think, the acceptance is not to be considered in law as a qualified acceptance to pay the bill at the house of Sir John Perring and Co.; but, as á general acceptance to pay the same, with an additional

direction

direction to the holder to call for payment at that house, instead of calling at the house of the acceptor, as he would otherwise do.

may

These two questions, my Lords, appear to me to depend entirely upon the meaning and import of the words "payable at Sir John Perring and Co.'s, bankers." There can be no doubt that the drawee may qualify, because he refuse his acceptance. The question is, whether he is to be considered as having done so by this expression? I conceive, that the true meaning and import of all phrases is to be sought in usage, rather than in a strict and literal interpretation of the words of the phrase; and, that, in mercantile instruments, the usage of trade and commerce is that to which we are to resort. Your Lordships well know, that there are many words and phrases in all languages, of which the meaning varies with the subject and occasion to which they are applied. I shall take leave to postpone the delivery of the grounds of my opinion on these two questions, until after I have troubled your Lordships with my opinion on your Lordships' third question, and the reasons of that opinion.

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tions.

My Lords, I understand the expression "take an ac- 3d Question. ceptance," as used in this third question, to mean consent to such an acceptance; and, so understanding it, I am of opinion, that C. could not, in the case proposed, maintain an action upon the bill against A., upon refusal of payment by the acceptor. There is not, I apprehend, any doubt or difference of opinion upon so much of this question as supposes an acceptance qualified as to time: and, in my humble opinion, a qualification as to the place of payment has the same effect as a qualification as to the time of payment.

I conceive, my Lords, that, in estimation of law, all bills are to be considered as drawn for value, if not actually in the hands of the drawee at the time of drawing, (which seems to have been usually the case in the infancy of those instruments), at least intended by the drawer, and expected by the drawee, to be placed in the hands of the latter before the maturity of the bill. And a person, who draws a bill under such circumstances, may be permitted to elect for himself the time and place of payment; because, if the drawee should refuse to pay, according to such election, he

would

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would be able to sue him for the sum which constitutes the value of the bill, either immediately, if the value has been previously received, or so soon as it shall be received according to the intention upon which the bill is drawn. By an intention to place value in the hands of the drawee, Imean an intention to place it in the course of some mercantile transaction between the parties, such as the consignment of merchandize in pursuance of orders of the drawee, constituting the relation of seller and buyer; or a consignment for sale on account of the consignor, constituting the relation of principal and factor or agent; and not a mere promise to provide for the bill at maturity, by the transmission of money or other bills for that special purpose. The latter practice has, indeed, prevailed to a great extent in modern times; and bills of exchange have become rather instruments for raising money, or postponing payment of debts by a fictitious credit, than instruments of real mercantile transactions. But, notwithstanding such practice, I apprehend, they are to be considered in courts of law as founded upon real and mercantile transactions, according to their primitive object and use; because, if they are to be considered as founded upon other transactions, or to be governed by other principles, they will cease to be according to the usage and custom of merchants, upon which usage and custom alone their validity in the law of England depends; and which is referred to in every declaration in an action upon a bill of exchange; and, if the drawer of a bill has a right to elect in this manner the time and place of payment, I think it cannot be competent to any holder of the bill to substitute a new election of his own, and to consent to any variation in these particulars, without the assent of the drawer, either precedent or subsequent. The holder cannot consent to an enlarged time of payment, because, in the interval, the drawee may fail, and he cannot be allowed to enforce the drawer to prolong the credit beyond the period that he himself may have chosen, nor can he consent to abridge the time, because, by so doing, he will obtain an earlier recourse against the drawer, than the drawer intended to give. A bill of exchange is ordinarily addressed to the drawee at his usual place of trade or residence, and it is to such a bill that I understand your Lordships' question to refer; this address, however, is intended only as a direction to the payee or holder as to the place where the drawee may be

found.

found, in order that the bill may be presented to him for
acceptance and payment; and not as a designation of a pre-
cise or definite house or place of payment. And, conse-
quently, a general acceptance of the bill, leaves the bill ac-
cording to its original tenor, and does not add any designa-
tion of the place of payment. Any introduction, therefore, of a
definite and precise place of payment, at which alone the pre-
sentment is to be made, is a departure from the generality of
the bill; and the holder, who consents to take such an ac-
ceptance, does, by that act, consent to narrow what the drawer
had left at large, and to fix a single place for the demand
of that money, which, but for such his act, would be de-
mandable by the drawer, or for his use, anywhere and every-
where. To such a limitation, I humbly conceive, that the
drawer has a right to object, and, consequently, to say to
the holder, that, by so doing, he has taken the drawee for
his own special debtor, in exclusion of the drawer, or, in
common speech, he has made the bill his own.
I am
aware, my Lords, that, upon a refusal to pay at the de-
signated place, the acceptor of the bill becomes a debtor,
generally; but, then, in order to enforce that general obli-
gation, either the person who seeks to enforce it must prove
the refusal; or, at least, (and which, in my opinion, is the
more correct view of such a case,) the party, against whom
the general obligation is sought to be enforced, may, by way
of defence, allege and prove that he was ready with the
money at the day and place appointed, and has at all times.
since been ready with it. I am aware, also, my Lords,
that, in the case supposed by this your Lordships' third
question, which is the case of a bill made payable to a
person named therein, the drawer cannot sue the acceptor
upon the bill, without averring and proving a presentment
for payment by the holder to the acceptor, and a refusal of
payment by the latter; and I am sensible, that, in many in-
stances, it may be a matter of entire indifference to the
drawer, whether he shall prove a presentment for payment
at the place specially designated by the acceptance, or at
the place of abode or usual business of the drawee, to whom
he has addressed his bill. But, though this may be a matter
of indifference in many cases, it will not be so in all; if we
suppose the drawee to live in some street or square in Lon-
don or Westminster, and to designate another place of pay-
meat in some other strect or square, in either of those cities,

the

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3d Question.

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3d Question:

the proof of a presentment at the place designated may be as easy as the proof of a presentment at the place of residence or business: but, if we suppose the drawee to live at London, and to designate Salisbury or Exeter as the place of payment, or vice versa, the proof may not be so easy to the drawer, who may have connections in one of those cities, furnishing an opportunity of finding the witness who made the presentment, and no such connections in the other; for there is frequently no sort of connection between the drawer and ultimate holder of a bill; the latter is often a person wholly unknown to the drawer. This difference may be considered, generally, as varying, and increasing or diminishing, with the distance of the places, though not by that circumstance alone; and, if the effect of such a qualified acceptance be made to depend upon the convenience or inconvenience of the drawee in the particular case, a door will be opened to an infinity of questions, which cannot be answered but by reference to the distance of the places, accompanied also with an enquiry into the particular circumstances and connections of the drawee in respect of the places. And I apprehend, my Lords, that a rule of law, liable to such questions in practice, ought not to be established without an absolute necessity, especially in mercantile cases, which, above all others, require to be governed by plain, prompt, and easy rules. My opinion, however, upon this question is founded less upon considerations of particular convenience, than upon the general principle, to which I have before alluded, namely, that the drawer has a right to have from the drawee, considered as his debtor in the way that I have mentioned, a general and unqualified acknowledgment of his debt and promise of payment, and that no assignee of his demand can, without his assent, permit any limit or qualification at the dictation of the drawee, or by consent between those two persons. All that I have thus taken the liberty to offer to your Lordships in relation to bills addressed generally to the drawee at his place of abode or business, will, I apprehend, apply with increased force to bills, which by their original form and tenor require the payment to be made at some particular place designated therein, because, in these cases, an acceptance substituting another and different place of payment, will be a manifest departure from the declared intention of the drawer. There is, my Lords,