Page images
PDF
EPUB

doubt appears to have existed, but that a presentment at the place specially designated in the acceptance was necessary, in order to make the drawer liable upon the dishonour of the bill by the acceptor.

Still less did the doubt ever extend to cases where the drawer directed by the body of the bill that the money should be payable at a particular place. In such a case all the courts at Westminster agreed that the presentment must be made at the place specially designated in the bill itself. This had been decided in the Court of King's Bench in the case of a banker's promissory note, which was made payable at a place named in the body of the note. Sanderson v. Bowes. (a) The same doctrine was also laid down in the case of Roche v. Campbell (b), where the action was brought by the indorsee of the note against the indorser. Now, no distinction as to this point can be taken between the drawer of a bill of exchange and the indorser of a promissory note. As to their liability to the holder, they stand precisely in the same situation. It is the acceptor of the bill and the maker of the note who are primarily liable to the holder and the drawer of the bill, like the indorser of the note, does not become liable until there has been a due presentment made to the party liable in the first instance to pay. The law, therefore, which applies to the indorser of the note, will also govern the case of the drawer of a bill.

Such then being the state of the drawer's liability, at the time the statute was passed, it must still remain the same, unless that statute has made an alteration therein. But it appears to us that the statute neither intended to alter, nor has it in any manner altered the liability of drawers of bills of exchange, but that it is confined in its operation to the case of acceptors alone. The title

1832.

GIBB

V.

MATHER.

(a) 14 East, 500.

(b) 3 Campb. 247.

VOL. VIII.

Q

of

1832.

GIBB

V.

MATHER.

of the act is to regulate acceptances of bills of exchange; and after reciting that it had been adjudged, that where a bill is accepted payable at a banker's, the acceptance thereof is not a general but a qualified acceptance, but that a general practice and understanding had prevailed amongst merchants, that such acceptance was a general acceptance, it proceeds to enact, that, after the passing of that act, such an acceptance shall be deemed and taken to be, to all intents and purposes, a general acceptance of such bill, unless the acceptance is restricted to payment at the particular place by the words and in the manner directed in the act.

The very reference in the statute to the adjudication by law, imports that the legislature intended the statute to apply to those cases only in which doubts had previously existed, and which had been adjudged in law; not to cases like the present, which were free from doubt at the time of passing the act. Again, the enactment comprehends in terms the case of acceptors, and acceptors only, and is silent altogether upon the subject of the liability of drawers and indorsers. It foresees the inconvenience which is cast upon acceptors by the enactment that an acceptance of a bill payable at a particular house shall thenceforth be considered as a general acceptance; and it gives the acceptor the power of protecting himself against such inconvenience by the use of restrictive words in his acceptance. But the inconvenience is as great to the drawer as to the acceptor. If the drawer has directed his money to be paid at a particular place, and after an acceptance made payable at that place the bill should be returned to him dishonoured without a presentment to the house where it is made payable, it is as great a hardship upon him, as the act had contemplated and provided for in the case of the acceptor. If then the statute had intended the enactment to apply to the case of the drawer,

we

we cannot but think the same protection would have been given to the drawer which has been given in terms to the acceptor of the bill.

One argument advanced on the part of the Plaintiff below is, that the acceptor has varied in his acceptance from the original terms in which the bill was drawn; and as the drawer has been contented to take back the bill with such varied acceptance, it must now be considered as a general acceptance under the operation of the late statute. But the answer to this argument seems to be that the direction contained in the body of the bill is not altered or varied by the terms of the acceptance, any further than was necessary for the benefit of the drawer and of all subsequent parties. The drawer directed the drawee to pay the money in London, the drawee accepts, specifying the particular house in London at which he intends to pay the bill. Without such specification the acceptance might be useless from its generality; and the form of the bill implies that the drawer expected and intended the drawee to make it.

We, therefore, think that as no presentment was made at the house of the bankers in London, where the acceptor had undertaken to pay it, the liability of the drawer never arose, and, consequently, that the judgment which has been given for the Plaintiff below must be

Reversed.

1832.

GIBB

บ.

MATHER.

1832.

Jan. 31.

claration stated

that the Plain

tiff caused to be left with Defendant a

copy of the

writ of subpana; Held, that a Judge

at Nisi Prius
had authority
under 9 G. 4.

c. 15 to allow
this allega-
tion to be
amended as
follows:

MASTERMAN and Others v. JUDSON.

1. In an action THE declaration stated that Plaintiffs before the comagainst Defendant for not mitting the grievances by the Defendant thereinafter obeying a sub- mentioned, to wit, in Hilary term 1831, &c. before Sir pana, the de- N.C. Tindal, Knight, and his companions, Justices of the Bench at Westminster, impleaded one John Malin in a plea of trespass to the damage of said Plaintiffs of 1007.; and such proceedings were thereupon had that afterwards, to wit, on the sittings at Nisi Prius holden at Hertford, in the county of Hertford, on the 2d of March 1831, before the Honourable Sir John Bayley and the Honourable Sir W. Garrow, Knights, a certain issue before then joined in the said plea between said Plaintiffs and said John Malin came on to be tried by a jury of the county; and also that on the 31st of January, in the year aforesaid, said Plaintiffs prosecuted, out of the Court aforesaid, his Majesty's writ of subpoena directed to said Defendant and others, commanding them and every of them that all other things set aside, &c. they should appear before the justices assigned to take the assizes, &c. at the said town of Hertford, in the said county, on Wednesday the 2d day of March then next, by nine of the clock in the forenoon, and so from day to day until, &c. to testify, &c. in a certain action then in the Court before the said King's Justices depending between said Plaintiffs and said John Malin of a plea of trespass, on the part of said Plaintiffs, and that they or any of them should in nowise omit, under the penalty of every of them of 1007.: which said writ said Plaintiffs, on the 19th of

"a copy of so much of the said writ of subpœna as related to the said Defend ant."

2. In such an action as the above, it is primâ facie sufficient to

allege that the Defendant was

a material witness, and that his absence caused

the Plaintiff to February, in the year aforesaid, caused to be made

e nonsuited, known to and shewn to said Defendant, and caused a without aver

ring that Plaintiff had originally a good cause of action. At all events, such allegation is sufficient after verdict.

copy

copy to be left with said Defendant of so much of the said writ of subpoena as related to the said Defendant, and paid to said Defendant the sum of 10l. for the costs of his attendance as a witness; and although said Defendant could have given material evidence for said Plaintiffs on said trial against said John Malin, yet said Defendant would not appear on trial of said issue, although he had no lawful cause or impediment to the contrary; and by reason thereof, and on no other account whatsoever, said Plaintiffs were nonsuited, and such proceedings were thereupon had, that afterwards, to wit, in Easter term, in the year aforesaid, it was adjudged by said Court that said John Malin should recover against said Plaintiffs 251. 6s. for his costs and charges by him laid out in and about his defence in that behalf: by means of which said several premises said Plaintiffs were not only forced to pay said John Malin said sum of 25l. 6s., together with costs of levying the same, amounting to the sum of 10., but were also greatly hindered and delayed in the recovery of their damages in the plea aforesaid, and did necessarily incur a great expense, amounting to the sum of 100%. in and about prosecuting said suit; which said Plaintiffs are liable to pay, and are by means of the premises otherwise greatly injured, to Plaintiffs' damage of 2001.

At the last Hertford assizes it appearing that the original writ of subpœna (for disobeying which this action was brought) was directed to the Defendant Judson and two others therein named, while the copy served on him was directed to him and John Doe, the latter name not appearing in the original subpœna at all, Lord Tenterden C. J., before whom the cause was tried, caused the record to be amended by the insertion of the words printed above in italics, under the authority of the 9 G. 4. c. 15. which enacts, "That it shall and may be lawful for every court of record holding plea in civil actions, any Judge sitting at Nisi Prius, and any court of Q 3

oyer

1832.

MASTERMAN

JUDSON.

« PreviousContinue »