another class or form of bills of exchange not noticed in your Lordships' questions, but to which I must beg leave to advert, because I conceive the considerations belonging to it to be fit to be submitted to your Lordships' attention on the present occasion. I mean, my Lords, bills made payable to the order of the drawer, or which is the same in effect, to the drawer or his order. If a bill so drawn be indorsed to another, without value, the indorsee becomes a mere agent of the drawer, and, of course, can never sue him upon the bill. If indorsed for value, either in the first, or any subsequent instance, the rights of the holder against the drawer do not differ from those arising on a bill drawn in favour of a person therein named. But the remedy of the holder, to whom such a bill may be returned for nonpayment against the acceptor, is, in some respects, different; the drawer of such a bill may, in this event, sue the acceptor by a special declaration, setting forth the indorsement and return of the bill, and, thereby, entitle himself to recover, in addition to the principal sum, the expence of exchange and re-exchange paid by him to the indorsee, which is the usual mode in the case of foreign bills and, if he sue in this form, he must allege and prove a presentment and protest for nonpayment. But the drawer may strike out his indorsement, and treat the bill as having remained continually in his own hands unassigned, which is the usual practice in the case of inland bills; and, in such an action, I apprehend, it is not necessary to aver or prove a presentment for payment, the bill being accepted generally. I take this to be law, because, in all the numerous actions which have been brought upon bills of this description, I have never known a presentment for payment actually proved at the trial, nor the want of such proof, or of the averment, ever made a ground of objection in any stage of the proceedings. In the case of such a bill, therefore, it is obvious, that if the indorsee take an acceptance, qualified as to the place of payment, so as to render the proof of a presentment at that place necessary to the maintenance of an action by the drawer against the acceptor, he will, thereby, cast an additional burthen upon the drawer, if the latter can be compelled to take up the bill; and, I conceive, the law will not allow him to do this. I have detained your Lordships with the expression of my sentiments thus at length 1820. ROWE v. YOUNG. Abbott C. J. 3d Question. 1820. ROWE V. YOUNG. Abbott C. J. 1st & 2d Ques tions. length upon the third question, because my opinion upon the first and second questions, to which, with your Lordships' permission, I shall now revert, depends very mainly upon the opinion which I entertain on the third question. I consider an acceptance qualified as to the place of payment, to be followed by the consequences that I have mentioned, where the holder consents to receive it; and, if I am right in this, then the holder must, of necessity, have a right to refuse such an acceptance, because he cannot be compelled to take an acceptance, which may deprive him of his recourse against the drawer; and this seems to have been the opinion of those learned judges, who, in the decided cases, to which your Lordships have been referred, considered an acceptance like the present to be a qualified acceptance. If, then, the holder may refuse such acceptance, or if, consenting to take it, he loses his recourse against the drawer, I must say, I am, entirely, at a loss to discover, how it can have happened, that, in no one of the thousands and tens of thousands of bills which have been accepted in this form in England in the course of the last thirty years, any holder of the bill has ever refused to take such an acceptance, or any drawer contended, that he was discharged by the holder's consent to take it. I say, my Lords, that neither of those things has happened, because I have never heard of them either in or out of a court of justice. Upon this consideration, I am satisfied, that, according to the usage and custom of merchants, these words "payable at, &c." are not understood to furnish a qualification, or to import, that the acceptor will cause payment to be made, if the holder will present the bill at the place appointed, but not elsewhere, or otherwise. And I am particularly desirous to seek the meaning of these words in the usage of merchants at the Exchange, rather than in Westminster Hall; because a difference of opinion as to their meaning has, for some time, prevailed, not only among the judges now present, but, also, among some of those revered persons, who are, now, no more. I must, however, add, that the words themselves are not apt words of condition or exclusion; and that, if their meaning be doubtful, they are to be interpreted most strongly against the person using them, that is the acceptor; and the most strong interpretation against him is that which excludes, and not that which admits, the qualification. Much was offered at your Lordships' bar by the learned counsel for the plaintiff in error, as to the inconvenience which may ensue from the interpretation, which I put upon these words; especially, in the case of a gentleman or a lawyer, who should be suddenly called upon for payment at a distant place, after having provided and left funds in the hands of his banker to discharge his acceptance. But this supposed inconvenience appears to me to rest almost wholly in suggestion and imagination. If a bill addressed to a person at his place of abode be accepted generally, I appréhend, the holder may, if he will be perverse or foolish enough to do so, take out a writ against the acceptor, as soon as the bill becomes due, without calling at his house for payment, in like manner as any other person may do, who is a creditor for goods sold for the ordinary supply of a family; so that the supposed inconvenience is equal in both forms of acceptance, but, in practice, it can rarely happen in either; because the holder, who neglects to present his bill, loses his recourse against the drawer, which no prudent man will choose to do. And, if an acceptance in the form of the present, mentioning a banking-house, is to be deemed a qualified acceptance, I apprehend, the same interpretation must be given to the words, if a house of any other description be mentioned, such as the house of any agent or friend, or even the house or place of business of the drawee, if he happen to have two and the bill be directed to one of them, or if he be about to change his place of trade or residence, before the bill will become due; or, if the bill be addressed to him at his only place of residence or business, without the addition of his place of abode, as “to A. B., merchant, London." There is, also, my Lords, another ground, upon which, it seems to me, as at present advised, that I might answer your Lordships' first question in the negative; and that is this: Admitting a place of payment to be specially designated by the acceptance, I apprehend, that the money is, nevertheless, due generally from the acceptor, and, that, in an action against him, his readiness to pay at the place appointed should be advanced by him as matter of defence by a special plea averring that fact, and bringing the money into court for the plaintiff's use, as in the common case of a plea of ten 1820 RowE v. YOUNG. Abbott C. J. 1st & 2d Ques tions. der, 1820. Rowe v. YOUNG. Abbott C. J. tions. der, (unless indeed he can excuse himself by shewing, that the money has been lost by the intermediate failure of his banker, which is a point of so much doubt, that I hope to be excused from giving an opinion upon it at present); and, according to the ordinary rules of pleading, a plaintiff need not allege any matter the want whereof furnishes a ground 1st & 2d Ques- of special defence only, and not a general answer to his demand or general defeasance of his right, unless it be the case of a condition precedent, the effect whereof is to postpone the demand until the matter of the condition be per formed; and, I have already observed to your Lordships, that the words "payable at the house of Sir J. P. and Co." do not appear to me to be proper words of condition. But I hope to be excused from expressing myself with confidence upon this point, by reason of the difficulty there may be in drawing an effectual distinction between the designation of a place of payment in the acceptance, and the designation thereof in the body of the bill itself, or in the body of a promissory note payable upon demand to the bearer, as was the case of Sanderson v. Bowes, and one or two others which have been cited at your Lordship's bar, and in which it was decided, that a presentment of the note at the place therein designated, was a condition precedent to a right of action for the money. If the like question shall ever arise again, I shall consider it with the utmost deference and respect to the great learning and talents by which those decisions were pronounced, though, at present, I am not, entirely, satisfied, that, even in the case of such a note, a readiness to pay at the appointed place is not properly matter of defence alone. It is, I hope, sufficient for me to say at present, that the words of the instrument now in question are not precisely the same, and that they are found in an instrument of a different character, namely, in a bill of exchange; wherein a time certain is appointed for the payment, and of which, as before observed, I think the acceptance must be considered as given, in pursuance of an antecedent duty to the drawer, assignable by the custom of merchants, and not as creating a new duty in itself, which, in the case of Sanderson v. Bowes, the promissory note was considered to do. 4th Question. In answer to your Lordships' fourth question, I shall not trouble your Lordships further than to say, I am of opi nion, that an action could not be maintained under the circumstances therein mentioned, or, rather, that the delivery of the bill by the drawer to the payee, such bill still remaining in his hands or outstanding, would furnish a defence to the action according to the case of Kearslake v. Morgan (a), because, if the drawer could be compelled to pay the original debt under circumstances furnishing a right of action against his drawee and thereby taking his funds out of the hands of the drawee, he might, in the result, be found to pay the amount twice; directly by himself, and indirectly through the medium of his drawee. I shall be understood, my Lords, to speak of a case wherein the holder has consented to take the qualified acceptance. I have clearly intimated, that, in my opinion, he may refuse to do so; and, if he does refuse, he may, in my opinion, treat the bill as dishonoured, and sue the drawer upon it. 1820. ROWE ข. YOUNG. Abbott C. J. 4th Question. |