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
part, and levy by distress for the residue. The Plaintiff replies
non est factum, as to the acquittances, and denies the levy
by distress. In an action of debt (a) against executors, the
declaration states that the testator, by his bill obligatory,
acknowledged to owe to Plaintiff 177. 10s., to be paid in
three half years, that is to say, 6l. 10s. at Storebrich fair
next, and the rest at other fairs, averring when the fairs
were held, and concluding, that testator and executor have
not paid, although often requested. The Defendant pleads
ne unques executor. The Plaintiff replies. The Defendant re-
joins. The Plaintiff there had a verdict, and judgment. To
an action of debt for rent (b), the Defendant pleads, that he,
on the said day, &c., for the space of half an hour before sun-
set of the said day, was at the same common dining-hall of
Thavies Inn, situate, &c. ready, and offered to pay the
Plaintiff the said 31. rent, which he was bound to pay on
that day, according to the form and effect of the said.
indenture; and that neither the Plaintiff, nor any one
authorised by him, was then there to receive; that he has
always since been ready to pay, and brings the money into
court. The replication states, that the Plaintiff receives
the money, and for damages, protesting to the readiness.
and offer to pay, replies a subsequent demand and refusal
(not alleged to be at the place). The rejoinder denies the
demand. To an action of debt for rent (c), the Defendant
pleads (after oyer of the writing) that he, on the day in the
condition mentioned, for the space of an hour before sunset,
and after, was at the said mansion-house in the said con-
dition specified, ready to pay the said 40%., according to
the form and effect of the said condition; and that neither
the Plaintiff, nor any one lawfully authorised by him, was
then there to receive; semper paratus, and profert in curiam.
The Plaintiff replies, that he was there to receive, and
traverses that the Defendant was there ready to pay. The
Defendant rejoins, whereupon issue is joined. In Mar-
shall v. Wisdale (d), to an action for 10. rent, the
Defendant pleads a tender of 97., and that he paid the

(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.
(b) 3 Taunt. 397.

(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,
a demand at that place was considered as a condition prece-
dent to the holder's right to sue upon them. I have felt
the weight of these authorities, and it has not been without
much consideration that I have felt myself at liberty now
to dissent from them. But, considering that the general
question, upon which so much difference of opinion has
prevailed, is now before this court of ultimate resort for a
final decision, which must operate as a general rule in all
future cases, it is very important, that that rule should be
founded on true principles, and, as far as is consistent with
such principles, that it may be practically convenient. For
this reason I have ventured to enquire into the grounds of
these decisions. In the cases which occurred in the Com-
mon Pleas, I do not find that the point on which my opinion
is founded, (namely, that where money is to be paid, at a
specified place, it is matter of defence, and, that it is there-
fore incumbent on the Defendant, to show that he was ready
at the place to pay,) was fully brought before the consider-
ation of the Court: no authorities, at least, appear to have
been cited in support of it. In the case of Saunderson v.
Bowes, in the King's Bench, which was followed by the
cases of Dickinson v. Bowes, and Bowes v. Howe, with
deference, I think, that the Court fell into a mistake in sup-
posing, as they seem to have done, that the rule requiring
the Defendant to show, by way of excuse, that he was ready
with his money at the place appointed for payment, (which
rule they admitted in the case of bond under penalty,) was
confined to such cases where a penalty was to be excused, and
where the Defendant was called upon to plead the condition,
of which he wished to avail himself. I humbly apprehend
that there is no such distinction; and that I have shown by the
precedents and authorities before cited, that the same rule
equally applies to the cases of single bills, without penalty;
and indeed, as I conceive, to all cases where the contract
is to pay money at a particular place. It may be suggested,
that, if the doctrine, which I have ventured to express, be
applicable to the acceptances of bills of exchange, it is ex-
traordinary that no case has occurred, or, at least, that none
has been cited, where such a plea has been pleaded by an
acceptor.
To this I should answer, that probably no case
has occurred where an acceptor has been sued without a
previous

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.