CO129-186 - Public Offices & Others - 1879 — Page 103

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payable. The bill having been dishonoured at maturity, the Respondent was called upon by the bank to take it up, which he did under protest, contending that he had been discharged by the bank's having given up the shipping documents before. payment of the bill. There- upon he instituted a suit against the Appellants in order to recover the amount which he had paid to them under protest.

The case first came before the Chief Justice in the Supreme Court sitting in its original jurisdiction, and the trial took place without the intervention of a jury. In truth, all throughout this case there has been no dispute about the facts, but the Respondent called certain commis- sion agents, merchants, and bank managers to give their opinions as to what was the duty incumbent upon the present Appellants, having received the letter of hypothecation as well as the letter of credit. Their opinions are not given in a very clear manner, and it is not at all necessary to con- sider the effect of their evidence, if evidence it can

be called. Whether it could have been admitted if it had been objected to, or whether it was open to the observations of Mr. Justice Snowden, who afterwards expressed the opinion that it was not admissible at all, it is also unnecessary to consider, because whatever the effect of this evidence may be, or with whatever object it may have been adduced, it cannot control the construction of the written documents. It does not seem to their Lordships that there is any doubt or ambiguity that could give rise to the admissibility of any such evidence. The documents seem themselves to be perfectly clear, the simple question ap- pearing to be whether the present Appellants were bound to hold over the shipping documents under the circumstances, or whether they had a right, if they pleased, to hand them over as they did to obtain the acceptance of im Thurn & Co.

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Their Lordships see no reason to doubt that ac- cording to the true construction of the letter of hypothecation, taken together with the letter of credit, and the form in which the bills were drawn, the Appellants, notwithstanding they had the option of withholding the documents, were justified, if they pleased, in taking the course which they adopted.

The Chief Justice, upon the hearing of the suit, seems to have taken the same view of the written documents as that now expressed by their Lordships; but having admitted the evi- dence of witnesses as to the duty of the bank, he seems to have thought himself controlled by their opinion. Perhaps it would have been better had he adhered to the opinion which he

had at first formed, and which appears to have coincided with that which their Lordships en- tertain, and which was also entertained by Mr. Justice Snowden in the Court below when the case came before it in its appellate jurisdiction.

Under these circumstances their Lordships will humbly advise Her Majesty that this Appeal be allowed, that the decrees below be reversed, and

that judgment be entered for the Defendants, with costs in both the Lower Courts; their Lordships are also. of opinion that the Appellants should receive the costs of this Appeal.