ment is ne fiant made the note payable at the particular place, and that direction 1st. When were not on the instrument itself, but merely at the foot, this even presentwould be a fatal misdescription of the instrument. But the courts, or at least some of the Judges, differed as to the effect of an acceptance payable at a particular place, or a memorandum at the foot of the instrument, that it should be there payable. The Court of King's 2 Hen. Bla. 509. the same distinction is taken. In Price v. Mitchell, 4 Campb. 200. Gibbs, C. J. ruled accordingly; he said, I am of opinion that the words at the foot of this promissory note are only a memorandum where payment may be demanded; had they been inserted in the body of the note, they certainly would have formed a part of the contract and evidence of a presentment for payment at Vere's, Smart, and Co's. would have been necessary to charge the defendant. I find this distinction taken in Bayley on Bills, last edition, p. 96. If a note be made payable at a particular place, and that place be mentioned in the body of the note, presentment for payment must be made at that place, but where the place is mentioned in the margin, it does not appear that such presentment is necessary; several cases are referred to, which seem to sanction the distinction. Indeed, where the direction to the place of payment is mentioned in the margin or at the foot of the note (as here) the inspection and perusal of the instrument, I think, show that this was not intended to be any condition to the absolute promise to pay contained in the body of the note. His Lordship refused to save the point, and the plaintiff had a verdict. Richards v. Lord Milsingtown, Holt C. N. P. 364, in notes. This was an action by the indorsee against the maker of a promissory note. The note was in the common form; but in the margin, and underneath the name of the maker was written, payable at Bruce and Co's." The declaration did not state that the bill had been presented at Bruce and Co's.; and no evidence of that fact was tendered by the plaintiff's counsel.Gibb, C. J. the words "payable at Bruce and Co's." are not introduced in the body of the bill; they are only inserted in the margin. It is a mere memorandum, not coupled with or qualifying the promise. Look at this instrument; and the promissory note is perfect without it. I say nothing as to any other case, I find I had already determined this point in Price v. Mitchell, and I feel disposed to preserve my own consistency; it would be difficult to say in most cases, that what is law as regards bills of exchange, should not be law as respects promissory notes. 1 Exon v. Russell, 4 M. & S. 505.Where the indorsee declared against the maker of a promissory note, and alleged, CHITTY ON BILLS. that he promised to pay, &c. and made the same payable, and to be paid according to the tenor and effect at the house of Messrs. B. and Co. London, and upon production of the note at the trial, it appeared that the address at the house of Messrs. B. and Co. was not a part of the note, but only a memorandum at the foot of the note. Held, that this was a variance. Lord Ellenborough, C. J. the plaintiff has taken upon himself to aver that such is the import of the note; he has therefore not truly stated the note, for he has stated that it was made payable at a particular place. Therefore he ought to have been nonsuited upon the ground that he has misdescribed the note as payable at a particular place, which it is not, the address being no part of the contract, but a memorandum. Bayley, J. the plaintiff takes on him to aver it to be part of the note, that it is made payable at a particular place. It is a misdescription of the instrument declared upon. But in Pannell v. Woodroffe, Sittings after Hilary Term, 1818, at Westminster, before Abbott, J., payee against maker of a note. The declaration stated that the defendant made his promissory note bearing date, &c. by which said note the defendant three months after the date thereof, promised to pay to the said plaintiff or order the sum of 1007. value received, and made the said note payable at 32, Castle Street, Holborn. And then and there delivered the said note to the said plaintiff, by means, &c. (stating the liability and promise to pay according to the tenor and effect of the note, but not averring any presentment for payment.) The place of payment was not mentioned in the body of the note, but only by way of memorandum at the bottom; whereupon E. Lawes, on the authority of the above case of Exon v. Russell, contended, that the first count was open to the objection of variance, but Abbott, J. overruled the objection. Lawes, in Easter Term, moved for a rule for a new trial or in arrest of judg ment, on the ground that the note given in evidence varied from the special statement of it in the declaration, and that that statement importing a special place of payment, the count was bad for want of an averment of presentment. But the court held that the declaration did not import any special or limited promise to pay at a particular place, and that this was distinguishable from that of Exon v. Russell. I h case cessary. ment is ne 1st. When Bench held that such direction does not qualify the contract of the present- acceptor, and that consequently it is not necessary to allege or prove compliance with such direction. And it was decided, that if a person accept a bill, payable at his bankers, and the holder neglected to present it, and eight months after it was due, the bankers having cessary. Huffan v. Ellis, 3 Taunt. 415, in the House of Lords, 10th April, 1810. Bayl 98. An averment that a bill accepted payable at a banker's was when due presented to the bankers for payment, according to the tenor and effect of the bill, and of the acceptors acceptance thereof, and that as well the bankers as the acceptors refused payment, shall be supported after judgment on a sham plea. And it shall be intended that the bill was presented for payment to the acceptor himself, at the house of those persons, semble. For evidence of those facts would be admissible under such an allegation, and not repugnant to it. Fenton v. Goundry, 13 East, 459 has often been so determined. I know there 2 Campb. 656, 7. Bayl. 97. Drawer are conflicting cases, but I shall not require against acceptor of a bill, the declaration this proof. stated that the defendant accepted the bill payable at Sykes and Co's., and thereby became liable and promised to pay according to the tenor and effect of the bill, and of his acceptance. There was no averment of the presentment for payment to Sykes and Co., nor of any demand upon the defendant other than the common allegation, that defendant, "although often requested," had not paid the bill. The defendant demurred specially, and assigned for cause the want of an averment of a due presentment for payment, and after argument the court (Le Blane, J. absente,) held, that the place mentioned in the acceptance was only an intimation to the holder where the acceptor was to be found, that it formed no part of the contract that the bill should be presented there, and that the acceptance, though stated to be payable at a particular place, bound the party to pay the bill generally and universally; the court, however, being desirous of looking into the case of Callaghan v. Aylett, which was cited, gave judgment misi for the plaintiff, but they did not mention the case again in the course of the term, and the judgment therefore stood for the plaintiff. Lyon v. Sundries and another, 1 Campb. 423. Indorsee against acceptor declared on generally, but it appeared in evidence that the bill was accepted payable at a particular place, objection on this account; per Lord Ellenborough. How can you make the words, "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, when 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. Head and another v. Sewell, Holt C. N. P. 363. In an action against the acceptor of a bill of exchange made payable at a particular place by a memorandum at the foot of the bill, it is not necessary to prove a presentment or a demand at that place, but the acceptor is generally and universally liable. Gibbs, C. J., after thirty-five years, in which I have never known this objection to prevail, I cannot admit the necessity of this proof in an action against the acceptor, where the bill is accepted "payable at a particular place," as in the present case it is not necessary to prove a demand at that place. He is generally and universally liable upon such acceptance; it Rowe v. Williams, Holt C. N. P. 366. in Trinity Term, 1816. This came before the King's Bench upon a special demurrer to a declaration upon a bill of exchange. That case was precisely the same as Fenton v. Goundry, ante, 254. It was an ac tion against the acceptor of a bill accepted "payable at Sir John Perring and Co's,” and there was an averment of the presentment when it became due at Sir John Perring and Co's. The counsel, in support of the demurrer, cited Gammon . Schmoll, (post, 257,) but the court of King's Bench refused to hear the case argued; saying, that they considered the point as having been determined in their judgment in Fenton v. Goundry. Mr. J. Holroyd read a MS. note of the case of Smith v. De la Fontaine, (Bayl. 128,) tried before Lord Chief Justice Mansfield, in 1785; in which. his Lordship held, that words accompanying an acceptance "payable at a particular place," or the words, "accepted, payable at, &c." were not words restricting or qualifying the acceptor's liability, but rendering him generally and universally liable, and that it was not necessary to prove a demand at the particular place in an action against such acceptor. Lord Ellenborough added, "that whatever cases might be adduced in favour of or against the doctrine laid down by K. B. in Fenton v. Goundry, an invincible argument with him for the opinion there given was, the constant and undeviating usage of merchants; who never considered such an acceptance to be a restrictive acceptance; that it was a mere matter of convenient arrangement, and did not raise any obligation on the part of the holder, to demand payment at the particular place." Upon this judgment a writ of error was brought in the house of Lords; see Holt C. N. P. 366, 7. and 2 Brod. & Bing. 165. ment is ne funds of the acceptors in their hands, became bankrupt, the acceptor 1st. When was nevertheless not discharged from liability by such neglect of the presentholder. Some of the Judges of the court of Common Pleas on the cessary. contrary held, that such a memorandum qualifies the contract of the [ 257 ] acceptor, and that in an action against him as well as any other party, a presentment at the particular place must be alleged and proved. Sebag v. Abitbol, 4 M. & S. 462.1 Stark. 79. S. C. A bill of exchange payable at a bankers in London, which by reason of being mislaid was not presented for payment, but the acceptor was some months afterwards informed of its being mislaid, was held not to be discharged, but that the drawer might set off in an action brought against him by the acceptor, although the bankers at whose house the bill was payable failed in the interval, and the acceptor had at all times up to the failure of the bankers a balance in their hands sufficient to cover the acceptance. Lord Ellenborough, C. J. Laches is a neglect to do something which by law a man is obliged to do, whether any neglect to call at a house where a man informs me that I may get the money amounts to laches, depends upon whether I am obliged to call there, This accept ance, though it might be an authority to the bankers to pay the bill, being made payable at their house, is not in express terms an order upon them to pay, as was the case of Bishop v. Chitty, (2 Stra. 1194. Bayl. 129.) where the language of the acceptance was immediately that of a check upon the bankers. I confess I am unable to see any laches in the defendant upon either ground. The plaintiff is informed that the bill is not to be found, after which there surely was not any occasion for him to keep a fund at the house where it was made payable. How can it be said that the plaintiff, after notice that his bill no longer existed, was bound to keep money at his bankers to answer the bill in perpetuum? It seems to me that after such a notice he was at liberty to withdraw his funds, and therefore whatever loss may happen to him by keeping them there must be his loss, and not the loss of the defendant. Bayley, J. As to other points on which there has been some difference of opinion in the two courts, I shall be very ready to change my opinion if ultimately I should see occasion, but I cannot help feeling considerable difficulty upon that point. If this is to be considered as a qualified acceptance, it follows that the holder would have a right to refuse it, he being entitled to have an unconditional acceptance; and indeed, as I rather think, being bound to require it. And if he take such an acceptance as this, payable at a particular place, it may be a question whether he ought not to give notice to all the parties to the bill, and whether by omitting to do so he does not discharge them. In this view of the question, it becomes an important one, and deserves to be well considered; it is true that the holder is not bound to present the bill for acceptance, but I have always understood, that if he does present it, and a qualified acceptance is given, he is bound to give notice. If then the circumstance of the bill's being accepted, payable at a bankers, is to throw on the holder the obligation to present at the particular place, the consequence will be, that any intermediate indorser who may be called on to pay, and does pay the bill, will in his action, over against another party to the bill, be saddled with the proof of an additional fact, beyond what he would have to prove if the acceptance were a general acceptance. This is a point of view which seems to me to be very important, and I rather think that it has not been presented in this view to the minds of those learned persons from whom we are said to differ. Bule absolute. ac * Callaghan v. Aylett, C. P. 51 Geo. 3. 3 Taunt. 397. 2 Campb. 549. Bayl. 97. In an action against the acceptor of a bill, it appeared that the bill was cepted, payable at Messrs. Ramsbottoms, bankers, London; and two objections were taken to the plaintiff's right to recover; first, that there was a variance between the acceptance proved, which was a special one, and that averred in the declaration, which was a general one; and secondly, that there was no proof of a presentment for payment at the place where the bill by acceptance had been made payable; a verdict was found for the plaintiff, subject to the opinion of the court upon these points, which were reserved; a rule nisi to set aside this verdict and enter non-suit was obtained; and after cause shown, the court (Mansfield, C. J. absente) held, that a place where a bill is made payable must be considered as part of the contract between the acceptor and the holder. That this was a special and qualified acceptance, binding the acceptor to pay at Ramsbottoms, and not universally. They said it seemed fair, that when a party had provided funds at his bankers for the due satisfaction of a bill, he should be allowed to protect himself from the risk of being arrested upon it by a malicious creditor. They referred to Parker v. Gordon, 7 East, 385, and said it could make no difference (for this purpose) whethes the action were against the drawer or acceptor. Rule absolute. Gammon and another v Schmoll, 5 1st. When The different reasons in support of each side of these opinions will present- be found in the cases in the notes." It was observed that the acceptment is ne- ance of a bill seems to be as much the original contract of the ac cessary. ceptor, as a note in the original contract of the maker ; and as it was admitted that the drawee may make a qualified or conditional acceptance, and thus narrow the liability which a general acceptance would create, it was difficult to say that he might not qualify his contract and liability as to the place of payment, and whether this be done in the Taunt. 344. 1 Marsh. 83. C. P. Hil. Term, 1814. In this case it was held, that if a person to whom a bill is directed generally accepts it payable at a particular place, the holder needs not receive such a qualified acceptance, but may resort to the drawer as for non-acceptance. But that such an acceptance is equivalent to an acceptance payable at the particular place and no where else, and narrows the general liability of the acceptor to a liability to pay at that place only. And that if the holder consents to receive such an acceptance, it interposes in the contract a condition precedent, that the holder shall present the bill to the acceptor for payment at the place specified and therefore declaring on the bill the plaintiffs must aver performance of this like other conditions precedent, by showing a presentment to the acceptor at the place specified, and that whether the action be against the drawer or against the acceptor. Vaughan, Serjeant, argued, that a simple acceptance subjects the acceptor to the largest responsibility that words can create; no presentment any where is necessary, the acceptor is bound to follow the bill and pay the holder if he is within the four seas; he can add nothing which will enlarge his obligation. There is very good reason why the restriction should prevail; suppose the acceptor possessed funds at Bath or in Paris, he is perfectly safe in giving a qualified acceptance if the necessity exists of presenting the bill there, otherwise he cannot venture the bill at all; and if while his funds are stationary he cannot prevent his liability from being ubiquitary, that doctrine will greatly circumscribe the issuing of similar bills. But it is unnecessary to consider the reason of the condition, if a condition be annexed to an acceptance, the condition must be complied with however arbitrary or absurd. The holder is not bound to receive the acceptance with new qualifications thus engrafted on it. But if he does receive the bill thus qualified, he must abide by the qualifications. Chambre, J. I think the case is clear upon rules of plain common sense and understanding, without going through all the cases; a man is not bound to receive a limited and qualified acceptance, he may refuse it and resort to the drawer, but if he does receive it he must conform to the terms of it. The reason given by the court of King's Bench, in Fenton v. y Goundry, shows that they were themselves very doubtful of the grounds of their judgment. It is there said that the meaning was only to point out where the acceptor transacts his business, few people receive an acceptance without previously knowing where the acceptor transacts his business, but if he meant only to point out where he lived, it would be sufficient to write on the bill his name and place of abode; but what is the meaning of these words "accepted payable at?" they have a meaning, they impose a condition, and the person receiving such an acceptance must comply with the condition, and in pleading must show his compliance. It would greatly circumscribe the negotiation of bills of exchange if this were not so, for they would, instead of being of general accommodation, be restrained in their use to such persons in trade as have a fixed place of business, where clerks and servants are always in attendance to pay the bills. Dallas, J. The argument had proceeded on the foundation that the acceptor is always a debtor to the drawer, but that is by no means universally the case, on the contrary, the case is frequently otherwise. In one of the largest branches of our commerce, that with the West India islands, the acceptor is universally in advance. I put the question if the acceptance had contained the words (and not elsewhere,) whether the acceptor would be liable any where else, and the counsel did not deny the limitation; if so, the question is, whether the words "accepted payable at," do not constitute a contract, and whether they are not equivalent to exrpress words of exclusion; and I think they are. The party need not have received from the acceptor living at Bath a limited contract of acceptance, but he has thought fit so to do, and he must perform his condition. Judgment for the defendant. But Gibbs, C. J. appears in other cases to have decided otherwise; see note, 253, and Richards v. Lord Milsington, Holt, C. N. P. 364, and ante, 253, note. And see the cases and arguments in Rowe v. Young, 2 Brod. & B. 165. * Bayl. 185, n. 1. y In Mitford v. Walcot, Ld. Raym. 575. Holt, C. J. said, "if a bill be payable at London, and the person on whom it is drawn accepts it, but name no house where he will pay it, the party that has presentment is ne body of the bill or by memorandura at the foot, yet if it were intended 1st. When to qualify the contract it should have that operation without regard to the arrangement of the words. In practice it is the invariable course amongst bankers and merchants to present bills accepted payable at a particular place, at such place. cessary. This question was finally discussed and decided in the House of 259 ] Lords, in the case of Rowe v. Young, in which it was held, that if a bill of exchange be accepted payable at a particular place, (as thus, "accepted payable at Sir John Perring and Co. bankers, London,") the declaration in an action on such bill against the acceptor must aver presentment at that place, and the averment must be proved. This decision occasioned the passing of the statute 2 Geo. 4. c. 78, which, after referring to the above decision, and reciting the resulting inconvenience in practice, and that drawees may, it they think fit, qualify their acceptance by a more precise form of acceptance, enacts, That after the ist of August, 1821, if any person shall accept a bill of exchange paya"ble at the house of a banker or other place, without further expressions in his acceptance, such acceptance shall be deemed and taken to be, to all intents and purposes, a general acceptance of such bill; "but if the acceptor shall in his acceptance express that he accepts the bill payable at a banker's house or other place only, and not otherwise "or elsewhere, such acceptance shall be deemed and taken to be, to all "intents and purposes, a qualified acceptance of such bill, and the ac"ceptor shall not be liable to pay the said bill, except on default of "payment when such payment shall have been first duly demanded at such banker's house or other place." (521) In a case of foreign bill, where the course of exchange has altered, the acceptor will only be liable to pay according to the rate of it, when the bill became due; and if the acceptor undertook by his acceptance to pay within a certain period after demand, he may insist on the want the bill is not bound to be satisfied with this acceptance," See also Bayl. 86. It should seem therefore that there is no objection to the holder's receiving a spe cial acceptance stating the place of payment. But in Head v. Sewell, Holt, C. N. P. 335, Gibbs, C. J. seems to have been of opinion, that a special acceptance * 2 Brod. & Bing. 165. (321) In New York it has been held in an action against an acceptor that the holder need not prove any demand of payment at the place where the bill was accepted to be paid, but it is the business of the acceptor to prove that he was ready at the day and place appointed, and that no one came to receive the money, and that he was always ready to pay. Foden v. Sharp, 4 Johns. Rep. 183. See also Lang v. Brailsford, 1 Bay's Rep. 222. Where the cashier of a bank indorses a promissory note, the property of the bank, for the purpose of causing demand and notice to be given, the authority of the bank for the purpose may be implied. Hartford Bank v. Parry, 17 Mass. 95. It is not necessary that the demand or notice should be made by the party to the note or bill: it is sufficient if done by a notary. Hartford Bank v. Stedman 3 Conn. Rep. 489. A parol authority is sufficient to constitute a person agent for the purpose of making a demand on the drawer of a promissory note. Shed v. Bret, 1 Pick. 401. A demand of payment of a note by an agent having any parol authority as a notary or the mere possession of the paper is sufficient; and such agent is competent to give notice of non-payment. Bank of Utica v. Smith, 18 Johns 230. |