[40] MAILLARD v. THE DUKE OF ARGYLE. June 9, 1843.

In assumpsit by A. against B., B. pleaded, as to the sum of 2501. parcel, &c., that he made the promises jointly with C. and D.; that before the commencement of the suit C. and D. for themselves, and B. delivered to A. divers bills of exchange amounting to 2501.; which bills were so delivered by C. and D. to A., and by A. taken and received for and on account of the said sum of 2501. parcel, &c. and in payment thereof; that A. afterwards indorsed the bills to E., who at the time of the commencement of the suit was and still is holder thereof for value.-Held, on special demurrer, that the plea was not double, inasmuch as the word "payment," taken with the context, did not import payment in satisfaction.

Assumpsit, for work and materials, goods sold and delivered, money lent, money paid, and money found due on an account stated.

Plea, as to the sum of 2501., parcel of the moneys in the declaration mentioned, -that the defendant made the said promises in the declaration mentioned as to the said sum of 2501., parcel as aforesaid, jointly with Richard Brown and T. Rolph; and that after the making thereof, and before the commencement of the suit, to wit, on the 15th of December 1842, the said Brown and Rolph, for themselves and the defendant, delivered to the plaintiff divers bills of exchange for sums amounting in the whole to the sum of 2501., to wit, one bill of exchange, bearing date, to wit, the day and year last aforesaid, for the sum of 501., payable at one month from the date thereof, drawn by the said Brown upon and accepted by the said Rolph, and by the said Brown indorsed in blank; two other bills of exchange bearing date respectively, to wit, the day and year last aforesaid, for 501. each, payable at two months from the dates thereof respectively, and respectively drawn by the said Brown upon and accepted by the said Rolph and by the said Brown, then respectively, indorsed in blank; and two other bills of exchange, bearing date respectively the day and year aforesaid, for 501. each, payable at three months from the dates thereof respectively, and respec-[41]-tively drawn by the said Brown upon and accepted by the said Rolph, and by the said Brown then respectively indorsed in blank, which several bills of exchange were so delivered by the said Brown and the said Rolph to the plaintiff, and by him then taken and received for and on account of the said sum of 2501., parcel as aforesaid, and in payment thereof; and the said Brown and Rolph respectively then became and were and still are liable to pay the said several sums of money in the said bills of exchange respectively specified, according to the tenor and effect thereof; that the plaintiff afterwards, and before the commencement of the suit, to wit, on the day and year last aforesaid, indorsed the said several bills of exchange respectively to divers persons to the defendant unknown; and that such persons respectively and not the plaintiff, at the time of commencing the suit, were, and still are, the holders thereof respectively for value, and entitled to sue the said Brown and Rolph respectively thereon. Verification.

Special demurrer, assigning, among other causes, that the plea contained no legal answer or defence to so much of the declaration as it was pleaded to, inasmuch as it disclosed no agreement on the part of the plaintiff to accept the liabilities of the said Richard Brown and T. Rolph on the bills of exchange therein mentioned in lieu of the liability of the defendant in respect of the said sum of 2501., parcel, &c., as aforesaid, nor any agreement on the part of the defendant; that the plea was double in this, to wit, that in stating that the said bills were taken and received for and on account of the said sum of 2501., parcel, &c., as aforesaid, and in payment thereof, and in afterwards stating that the said bills were, at the time of the commencement of the suit, in the hands of indorsees for value, other than the plaintiff, the plea disclosed two defences to the said sum of 2501., parcel, &c., to wit, that the said bills were given for [42] and on account of the sum of 2501., and at the time of the commencement of the suit were outstanding in the hands of the indorsees for value other than those of the plaintiff; and also that the said bills were taken in payment (which, if it meant any thing, must mean-in extinguishment and satisfaction) of the said debt; that the plea was uncertain, and did not state with sufficient particularity and certainty how, or for what purpose, the said bills were delivered; that the plea was repugnant, and contained two statements wholly at variance with, and inconsistent with, each other in this, to wit, that it stated therein that the said bills were taken C. P. XII.-26

for and on account of the said sum of 2501., parcel, &c., and also that they were taken in payment thereof; whereas it was impossible that the said bills should have been taken for and on account of the said sum of 2501.; in which case the original liability of the defendant would revive on the dishonour of the said bills; and also in payment of the said sum of 2501.; in which case the original liability of the defendant would, on the delivery and acceptance thereof, be utterly extinguished and discharged; that the plaintiff could not safely take issue on the plea; that it was an informal plea of accord and satisfaction, &c.

Joinder in demurrer.

Byles Serjt. in support of the demurrer. This plea is both double and uncertain. It alleges that five bills were delivered by Brown and Rolph to the plaintiff, and were received by him "for and on account of the said sum of 2501., parcel," &c., and in payment thereof. Had the plea stopped there, it might have been good, so far as this objection is concerned; but it proceeds to state that the bills were outstanding in the hands of third persons, holders thereof for value. Where a bill of exchange is given for a debt, it may be received in one of two ways. Where it is delivered merely on account of the [43] debt, if the bill be not paid, the original debt revives; but when it is given in satisfaction of the debt, the original debt will not revive, notwithstanding the nonpayment of the bill; for the transaction amounts to a sale of the bill. If any meaning can be given to the words here, the plea imports that the bills were delivered in satisfaction of the debt; and if so, it is double. There have been two decisions on the words "for and on account of." In Kearslake v. Morgan (5 T. R. 513), which was assumpsit for goods sold, &c., a plea that the defendant, the payee of a promissory note, indorsed it to the plaintiff "for and on account of" the debt, and that the plaintiffs "accepted and received the note for and on account of" the said debt, was held good on general demurrer. The point was recently before this court in Mercer v. Cheese (ante, vol. iv. 804). There, to assumpsit for work and materials, &c., the defendants pleaded that the promises were made by them jointly with T. M.; and that before action brought the plaintiff, for and on account of the sum due, and of the promises of the defendants and T. M., drew a bill on T. M., which he accepted and delivered to the plaintiff, who received the same for and on account of the said sum, and of the said promises. It was held that the plea was good, as raising a primâ facie defence; and that it lay on the plaintiff to shew that the bill was overdue and unpaid, or had been negotiated. These two cases, therefore, are authorities, that if the present plea had stopped at the words "for and on account of," &c., it would have been good. The question is, whether the plea, by proceeding to allege that the plaintiff received the bill in payment of the 2501. does not raise two defences on the record. In Sard v. Rhodes (Tyrwh. & G. 298, 1 M. & W. 153), which was assumpsit on a bill of exchange for 431., the question turned upon an allegation in the plea, that the defendant had de-[44]-livered a promissory note for 441. to the plaintiff "in full satisfaction and discharge" of the bill, and the plaintiff then received the said note "in full satisfaction and discharge" of the bill. It was held that the plaintiff's only remedy was upon the note. Parke B. there says to the plaintiff's counsel, "Your agreement is, to take the note for better or worse." Supposing that this plea had contained the two allegations, that the bills were received for and on account of the 2501., and also that they were taken "in full satisfaction and discharge," it is clear that the plea would have been double. [Tindal C. J. What you have to make out is, that the words, "in payment thereof,” taken with the context, amount to an averment of satisfaction.] If the words may admit of two meanings, inconsistent with each other, the plea is bad for uncertainty. It is submitted, however, that the words, taken in connection with bills payable to bearer, mean satisfaction. [Maule J. The question is, whether the sentence is to be so understood when it is capable of another construction.] This being a special demurrer, if the words may be understood in two senses, they should be taken in that most unfavourable to the party pleading them; and, primâ facie, the words in payment mean in satisfaction. [Maule J. Those words serve to explain the word delivery," and shew that the bills were delivered to the plaintiff, not as a bailee or messenger, but in payment for and on account of the 2501. Cresswell J. Could you plead the delivery of a bill for a smaller sum, in payment of a larger sum?] Not in payment, but in satisfaction. [Cresswell J. If that be so, then it shews that here, the word payment cannot mean-in satisfaction.] The plaintiff is not bound to prove that the words mean satisfaction; it is sufficient if they may bear that signification;

for that renders the plea uncertain. [Maule J. A bill cannot be said to be paid until it reaches maturity, and is duly honoured.] That [45] is only the popular meaning of the word. [Maule J. Payment is not a technical word; it has been imported into law proceedings from the exchange, and not from law treatises. When you speak of paying in cash, that means in satisfaction, but when by bill, that does not import satisfaction, unless the bill is ultimately taken up. You may support a plea of payment, by shewing that a person agreed to accept a horse from another in satisfaction, and the same as to goods, provided the agreement was, to take the articles as money (a).] There is another objection to the plea. It contains no allegation that the bills belonged to the defendants, Brown and Rolph, who delivered them over to the plaintiff, or that they had any authority from the defendant for so delivering them over; all that is stated is, that the bills were drawn by Brown and accepted by Rolph. [Maule J. If Brown joins that is enough: it is sufficient if, among them, they have a title to the bills.]

Channell Serjt., contrà, was stopped by the court.

TINDAL C. J. I do not see why we should go out of our way, and give a forced construction to the word payment as used in this plea. In Stedman v. Gooch (1 Esp. N. P. C. 5) Lord Kenyon says the law is clear, "that if, in payment of a debt, the creditor is content to take a bill or note payable at a future day, he cannot legally commence an action on his original debt until such bill or note becomes payable, and default is made in the payment; but that if such bill or note is of no value, as if, for example, drawn on a person who has no effects of the drawer's in his hands, and who therefore refuses to accept it, in such case he may consider it as waste paper, [46] and resort to his original demand and sue the debtor on it ;" thereby implying that the word "payment" does not necessarily mean payment in satisfaction and discharge, but may be used, as there, in its popular sense.

Per curiam. Judgment for the defendant.

Byles Serjt. applied to amend, by taking issue on the plea; which was granted on the usual terms.

TURNLEY v. MACGREGOR. June 14, 1843.

In case, by A. against B., the declaration stated that C. had requested A. to advance him 25001. on the security of an assignment of the benefit of a claim which C. alleged he had against the government; that A. was willing to advance the said sum; that C. had referred A. for information on the subject of the said claim to B. as being, and as in fact B. was, an officer in the service of government, and as being able, from the means of knowledge possessed by him, to afford such information; that A. applied to B., and that the latter falsely and fraudulently represented to A. that the claim was entertained by government, and was sure to be paid; whereupon A. advanced the said 25001. to C. upon an assignment of the said claim. Plea, that B. was not an officer in the service of government, nor able, from the means of knowledge possessed by him, to afford information, modo et formâ.-Held that both branches of the plea were bad; the first as being a traverse of an immaterial allegation; and the second, because it was a traverse of matter not alleged in the declaration.-Another plea stated that the representation was not in writing signed by B., according to the 9 Geo. 4, c. 14, s. 6, and that it was verbal only, and made after the passing and coming into effect of that act.-Held bad, as amounting to the general issue, being an argumentative denial of the representation charged in the declaration.-Quære, whether the representation set out in the declaration, was a representation relating to the credit or ability of C. within the 9 Geo. 4, c. 14, s. 6?

Case. The declaration stated that before and at the time of the committing of the grievances thereinafter mentioned, one Sir Joseph Abraham Douglas had re-[47]quested the plaintiff to advance and pay to him the said Douglas the sum of 25001., upon the security of an assignment by the said Douglas to the plaintiff, of the benefit

(a) Vide Barclay v. Gooch, 2 Esp. N. P. C. 571; Nightingall v. Devisme, 2 W. Bla. 684, S. C. 5 Burr. 2592; Jones v. Brinley, 1 East, 1; Taylor v. Higgins, 3 East, 169; Fitch v. Sutton, 5 East, 230.

of a certain claim which the said Douglas had then alleged to the plaintiff that he the said Douglas then had against Her Majesty's government, for a large sum of money, to wit, a sum of between 19,0001. and 20,0001., and which claim the said Douglas had then alleged to the plaintiff to be a just claim, and to have been entertained by the said government, and to be sure to be paid; and thereupon the plaintiff, before and at the time of the committing of the said grievances, was willing to advance and pay to the said Douglas the said sum of 25001. upon the security of such assignment as aforesaid of the benefit of the said claim, if, on inquiry of the defendant before advancing and paying the said sum on such security, it should appear from the representations of the defendant, that the said claim was well founded and was entertained, and would be satisfied by the said government; of all which premises the defendant before and at the time of the committing of the said grievances had notice; that also before and at the time of the committing of the said grievances, the said Douglas had referred the plaintiff for information on the subject of the said claim to the defendant, as being, and as in fact the defendant before and at the time of the committing of the said grievances was, an officer in the service of the said government, to wit, at the Board of Trade, and as being able from the means of knowledge possessed by him to afford such information; and thereupon the plaintiff, to wit, on the 1st of February 1842, applied to the defendant for such information as aforesaid, and then informed the defendant that such application was made with reference to the validity of the said claim and the sufficiency of the said security; whereupon, and before the commencement of the suit, to wit, on the day and year [48] last aforesaid, the defendant, craftily intending to deceive the plaintiff in this behalf, and to induce him to advance the said sum of 2500l. to the said Douglas on the said security, falsely and fraudulently represented to the plaintiff that the said claim was entertained by the said government, and that although not actually admitted, the same claim was sure to be paid, and that the amount thereof ought to have been paid long before, and that it was a disgrace to the said government that payment thereof had been so long delayed, and that the amount of the said claim would be paid in a few months from the time of the making by the defendant of the said representations, and, as he the defendant believed, within a period not exceeding three months from the time last aforesaid; and that he the defendant did not know why payment had been delayed so long, unless the then recent exchequer-bill fraud, and the change in the government, had occasioned that delay; and that the treasury would take notice of a charge on that claim, as had been done in a case of his, the defendant's, while he was a consul abroad: the declaration then averred, that thereupon afterwards, to wit, on the 24th of February 1842, the plaintiff advanced and paid to the said Douglas, upon the security of an assignment by the said Douglas to the plaintiff of the benefit of the said claim, the sum of 25001., and the said Douglas then made, and the plaintiff then accepted, such assignment as a security for the repayment of the said sum of 2500l., with interest thereon at and after the rate of 51. per centum per annum; that the plaintiff was induced to advance and pay as aforesaid the said sum of 25001. to the said Douglas upon such security as aforesaid, and to accept the said assignment as such security, by the representations so made to him as aforesaid by the defendant; and that he the plaintiff advanced and paid the same sum to the said Douglas upon such security as afore[49]-said, and accepted the said assignment as such security as aforesaid, upon the faith of the said representations, and believing that the same were true; whereas in truth and in fact, and as the defendant at the time when he made the said representations as aforesaid well knew, the said claim was not then entertained by the said government, nor was the same, although not actually admitted, then sure, or likely, to be paid within a few months from the time of the making by the defendant of said representations, or within a period not exceeding three months from the time last aforesaid, or at any other time, and the defendant had no reason for believing, nor was it then true, that there was then any intention on the part of the said government to satisfy the said claim, or pay any sum of money in respect thereof at any time; and whereas in truth and in fact, and as the defendant at the time of making the said representations well knew, the officers of the said treasury would not take notice of a charge on the said claim; that although the period of three months next after the time of the making by the defendant of the said representations elapsed long before the commencement of this suit, and although the plaintiff had always since the making of the said assignment, been ready and willing to receive payment from the

said government of the amount of the said claim or any part thereof, and although the plaintiff before the commencement of the suit, to wit, on the day and year last aforesaid, endeavoured to render the said security available, and to cause the said assignment to be noticed by the officers of the said treasury as a charge on the said claims, yet the amount so claimed as aforesaid, and on the security of the said assignment of the benefit whereof the said sum of 25001. was so advanced and paid as aforesaid, had not, nor had any part thereof, been paid by the said government, nor was the same amount, or any part thereof, likely to be paid by the said government, nor did [50] nor would any of the officers of the said treasury take notice of the said assignment as a charge on the said claim, nor has the same or any part thereof ever been admitted, entertained, or in any way recognized by the said government. By means whereof the said assignment, for securing the repayment of the said sum of 25001. with interest as aforesaid, was of no use or value whatsoever to the plaintiff, and he the plaintiff had wholly lost the said sum of 25001. so by him advanced and paid as aforesaid, and all the interest, benefit, and advantage which would otherwise have arisen to the plaintiff from the possession and use thereof, amounting in the whole to a large sum of money, to wit, the sum of 3001., and all benefit and advantage of an available security for the same, and had incurred, fruitlessly and without benefit, divers expenses, amounting in the whole to a large sum, to wit, the sum of 3001., in and about the procuring and obtaining of the said assignment, and in about the endeavouring to render the same, and the security therein expressed, available.

The defendant pleaded, thirdly, that he the defendant was not an officer in the service of the said government, nor able, from the means of knowledge possessed by him, to afford information, in manner and form as the plaintiff had above allegedconcluding to the country.

Fourthly, that the said supposed representation in the declaration mentioned was not, nor was any part thereof, in writing signed by the defendant, according to the form of the statute rendering a written instrument necessary to the validity of certain promises and engagements, made and passed in the ninth year of the reign of His late Majesty King George the Fourth, and that the supposed representations were verbal only, and were made after the making, passing, and coming into effect and operation of the same statute. Verification.

Special demurrer to the third plea, assigning for [51] causes, that the same plea took issue on matter not alleged or implied in the count, in this, to wit, that whereas the count alleged, not that the defendant was able from the means of knowledge possessed by him to afford information, but that the said Douglas had referred the plaintiff to the defendant as being able, from the means of knowledge possessed by him, to afford such information; and although the silence of the count touching the ability, in fact, of the defendant to afford the information which he was referred to as being able to afford, while expressly stating that the defendant in fact was, as well as that the said Douglas had referred to him as being, an officer in the service of government, prevented any implication of any assertion that the defendant was in fact able to afford such information, yet the plea stated that the defendant was not able from the means of knowledge possessed by him to afford such information, in manner and form as the plaintiff had (as the plea stated) alleged, and therein took a traverse which followed neither the words nor the meaning of the allegation to which it purported to be applied that although the plea stated and introduced new matter, to wit, that the defendant was not able, from the means of knowledge possessed by him, to afford information, yet it concluded to the country; whereas the same ought to have concluded with a verification (sed. vide ante, 37 (d) third point),—that the plea tendered an immaterial issue-that the plea, if available in substance in bar of the action, was circuitous, and amounted to a plea of not guilty that the plea shewed no valid defence, since even if it were true that the defendant was not an officer in the service of government as alleged, nor was, when he was referred to by Douglas, able, from the means of knowledge possessed by him, to afford information, still, under the other circumstances stated in the count, and [52] not denied in the plea, the defendant was liable, &c. Joinder in demurrer.

Demurrer to the fourth plea, assigning for causes-that it did not appear in or by the count, nor was it alleged or shewn by the plea, that the action was brought to charge the defendant upon or by reason of any representation or assurance made or given concerning or relating to the character, conduct, credit, ability, trade or dealings