1820. ROWE V. YOUNG. instances. In an action of debt for 281. (a), the declaration stated, that the Defendant, by his bill obligatory, sealed with his seal (profert), at London, acknowledged himself to owe to the Plaintiff 197. 16s. of the money of Flanders, (parcel of the 287.), which 197. 16s. were then and still Richardson J. are of the value of 141. of English money, to be paid to Ist & 2d Plaintiff in the Cold Mart then next following. Then folQuestions. lowed an averment, that the Cold Mart was a certain fair held at London, in the parish and ward aforesaid, from the 10th August, 1501, to the 20th September next following. The declaration then sets out another bill obligatory, for other 197. 16s. Flemish, equal to 14l. English, to be paid at the Paske Mart, with similar averments; and concludes, "yet the said Defendant, although often requested, the said 367. 12s. of Flemish money, nor the said 281. of English money, has not paid to the Plaintiff, but to pay the same to him has hitherto refused, and still refuses." The Defendant pleads, that the Cold Mart was a certain fair held at Bridges in Flanders, in parts beyond the seas, without the realm of England, from a certain day to a certain other day, and that the 197. 16s. were worth only 60s. of English money, and makes a similar averment as to the Paske Mart. He then avers, that he was at the said fairs, called the Cold Mart and the Paske Mart, ready to pay to the Plaintiff 67. of English money, if he, the Plaintiff, had been there, and willing to deliver to the Defendant the said bills; and that neither the Plaintiff, nor any one for him, was then there to receive the said 67.; and, that he has always since been ready to pay, and brings the same into Court; and concludes with traversing, that the markets were held in London; and also traversing, that the 191. 16s. Flemish, were worth 141. English. The replication avers that 197. 16s. Flemish were of the value of 14l. English; and concludes to the country. Whereupon a jury de medietate linguæ is awarded. In an action of debt for rent (b), by the abbot of the monastery of Holy Cross of W., the declaration. shows demise of a manor and lands for a year, rendering 40l. at W. aforesaid, at the four feasts of the year; that the Defendant occupied for the year; and that the 401. is still in arrear to Plaintiff, per quod actio accrevit; and concludes, that Defendant has not paid, although often re(b) Rast. 175. a. (a) Rast. 158. b. quested. quested. The Defendant pleads certain acquittances as to (a) Rast. 322. b. (b) Thompson's Entries, 159. pl. 167. et seq. (c) 2 Modus Intrandi, Pl. Gen. 234. (d) Freeman, 148. 1820. ROWE V. YOUNG. Richardson J. Ist & 2d Questions. 1820. Rowe บ. YOUNG, tions. other 17. for taxes. The plea was held bad, because he did not plead the tender at the place where the rent was agreed to be paid. The Court said, it could not properly be paid any where else. In Crouch v. Fastolfe (a), to an action of debt for rent, the Defendant pleads, that he was Richardson J. at the place on the day, from before sunrise to sunset, 1st & 2d Ques- ready to pay, and that the Plaintiff, nor any one in her behalf, &c. was there to receive; semper paratus, and profert. It was held a good plea, though no tender was alleged. These precedents and authorities, with many others which may be found in our old books of pleadings, and especially in cases of rent, which the law makes payable upon the land, seem to me to be strong evidence of what the law is in cases of contract to pay money at a particular place; and to establish two propositions which may be considered as general rules, though, like other general rules, subject perhaps to exceptions under special circumstances. First, that a demand at the place is not a condition precedent to the creditor's right to sue for the money, nor, of course, necessary to be averred in his declaration. Secondly, that the Defendant may excuse himself, by pleading that he was ready to pay the money at the place appointed; but that, in such plea, he must show that he has always since been ready, and must bring the money into court. The same law appears to me to be applicable to the acceptances of bills of exchange such as this acceptance is, which I consider to be a contract by the acceptor to pay the money at the place by him expressed. I am aware that this opinion is inconsistent, not only with the cases of Callaghan v. Aylett (b), and Gammon v. Schmoll (c); but also with the opinions expressed by the Court of King's Bench in Saunderson v. Bowes (d), and acted upon by the same court in Dickinson v. Bowes (e); and also acted upon by the Court of Exchequer Chamber in Bowes v. Howe in error (f). The two first mentioned cases, were cases of bills of exchange accepted, payable at a particular place; the three latter were cases of promissory notes, expressed in the body of (a) Sir Tho. Ray. 418. (c) 5 Taunt. 344. (d) 14 East, 500. (e) 16 East. 110. (f) 5 Taunt. 30. them them to be payable at a particular place; and, in all of them, previous demand of the money, or, without such circumstances existing as evinced that he was not ready to pay. And this leads me to remark, (though I am aware, that convenience alone is not a legitimate ground of decision, unless it be consistent with law,) that to require the Defendant to aver and prove readiness to pay in the few, if any, cases, where, notwithstanding his readiness, he may be vexatiously sued, rather than to require the Plaintiff, in all cases, to aver and prove an unavailing demand, will, as I humbly conceive, be a more convenient, as well as a more just rule for both parties, and more merciful to Defendants themselves. For if, as the fact is, in almost every case of an action brought against the acceptor of a bill, the Defendant has failed to pay from mere inability; to require proof of the previous demand, will only add the expense of one more witness, sometimes brought from a distant part of the kingdom, to the burden, which the Defendant was before unable to bear: whereas, on the other hand, if an action, without previous demand, should ever vexatiously be brought against an acceptor, who was really ready with his money at the place appointed according to his contract, he, by pleading his readiness, and bringing his money into court, may discharge himself from damages and costs, and the Plaintiff will justly be punished for his vexation by the payment of costs. I have one other observation only to make on this part of the case. It may be said, that unless the holder be bound to demand payment at the place appointed, he may demand it at some other place, where the acceptor is not prepared with funds. I answer, that, if such a case should occur, I think the acceptor would be entitled to a reasonable time to draw his funds to that place. For this, the case of Halsted v. Vauleyden (a), is an authority, where (the Defendant having by deed acknowledged that he owed to the Plaintiff 1117., and covenanted that the same should be paid by C. at Rotterdam, in Holland, on the first demand that should be made,) it was held, on a special verdict, that the Plaintiff might make his demand at Dort, which is ten miles from Rotterdam, or in England; but, that in such case, the Defendant ought to have a reasonable time to pay, regard being had to the distance. (a) 1 Rol. Ab. 443. pl. 5. 20. |