restriction. The order, as at first made, was properly made, and the ground on which it was made is not displaced by the affidavits. Leave to appear is often given on a statement of circumstances, which would be a conclusive defence as between the original parties to the bill, but which are not so in an action by the holder, unless he is shewn not to be a holder for value. As to this latter point, the evidence which the defendant adduces naturally cannot be so cogent, though it may be sufficient to raise a presumption. In such a case it is an exception occurring in every day's practice, to admit the plaintiff's answer on affidavits, not to displace cogent evidence, but to answer that part of the defendant's statement which is necessarily qualified and doubtful. The plaintiffs' affidavits here fail to do so, and the rule must therefore be made absolute. PIGOTT, B. Primâ facie, the defendant shows a bonâ fide defence, and, if so, he ought to be allowed to set it up, without having the terms imposed upon him of bringing the money into Court. Rule absolute to vary the order by striking out the condition. The Court then delivered judgment on the demurrers. BRAMWELL, B. I think the third plea is bad. The plea is, if I may say so, bad because it is not good, when the pleader might so easily have made it good if he had chosen. To make it good this meaning must be given to it-that the plaintiff's were not the lawful holders of the bills at the time when the action was brought. But this is not the true meaning of the plea, because the payment of the full amount due, which is the ground of the defence stated, has no such necessary consequence. The payment may have been made on account, or for many different reasons, and not as a satisfaction of the bills. But it is further said, that Blakeley by such payment became entitled to be the holder of the bills. Possibly; but it is quite consistent with this that although, if he had insisted upon it, the plaintiffs must have delivered the bills to him, yet he did not so insist, and they continued to have the de facto possession of the bills, and were entitled to the remedies of holders against the defendant. Whether, if the plea had alleged that the plaintiffs 1866 AGRA AND MASTERMAN'S BANK v. LEIGHTON. 1866 AGRA AND MASTERMAN'S BANK v. LEIGHTON. were not, at the commencement of the action, the lawful holders of the bills, it would have been a good plea, I will not say; but I can conjecture the reason why this was not said. The bills may have been purposely left in the hands of the bankers, as a further security in the event of the other discounted bills being dishonoured; so that though, in one sense, all was paid, yet it would not be true. that the plaintiffs were not entitled to sue. I must therefore hold the plea to be bad, because I cannot see that it is good. But I think the fourth plea good, and I understand it thus: "I accepted these bills in payment for goods sold to me at certain prices by the drawers, and which were to be shipped to me by them; and, in fact, all which were to be shipped were not shipped, and of those shipped I only took a portion; and, the whole not being shipped, that portion became valueless to me, and I therefore refused to take the residue." Now, if the plea shews a good answer as to all except the 12007., the price of the goods taken, it is a good plea. Does it, then, shew such an answer? Suppose I order 1000 pairs of stockings and 1500 pairs of gloves to be sent out to me; the stockings are sent, and I take them; but only righthand gloves are sent, and I do not take those. The consideration for the bill might have wholly failed, for I might have rejected all; but since I took a part, I must pay for them. I was not bound to take that part, but, because I did take them, I am bound to pay, not by the original contract, but by the fact of taking them. If this is the meaning of the plea, as I think it is, it is a good plea, and judgment must be for the defendant on the demurrer to this plea, for the plaintiffs on the demurrer to the third. CHANNELL, B. I am of the same opinion. On the third plea I have had some doubt whether it might not be upheld, as alleging that the plaintiffs at the commencement of the suit were not holders of the bills-not saying that they were not in possession of the bills, but that they were not holders with a right to sue. But, on the ground suggested by my Brother Bramwell, I think the plea fails. If upheld at all, it must be on the ground that the plaintiffs were tortious holders of the bills; but it stops short of stating circumstances which require that inference. It does not say that the plaintiffs sue against the will of Blakeley, but only that they sue without his authority; and it is consistent with this averment that Blakeley has not interfered, and that they are therefore entitled to sue. On the demurrer to the fourth plea, the defendant is, I think, entitled to judgment. The substance of the plea is this: "I accepted the bills on the faith of goods being shipped at certain prices; some were shipped, but not all; I did not take to all the goods shipped, but to a portion of them, and for those I am bound at law and in justice to pay, but not for the others." Then the plea is good as to all except the goods appropriated. In holding thus I do not mean to throw any doubt upon the cases which decide that, where the defendant seeks to discharge himself on the ground of a partial failure of consideration, he cannot do so by setting up a partial failure to the extent of unliquidated damages. But here, looking to the language of the plea, the sum in respect of which the set-off is claimed is made by the pleading a definite sum, amounting to 12007. If the plea had gone on to say, "amounting, according to the contract, to 12007.," there would have been no doubt; but, although the language is not so specific as it should be, yet as it says, not "amounting" merely, but "amounting in value and price to 12007.," the sum is made sufficiently definite to take the case out of the rule which does not allow a claim for un liquidated damages to be pleaded to a bill of exchange. As to the set-off, our decision will be in accordance with the rule to be deduced from the case of Cochrane v. Green (1); there the cestui que trust was allowed to set up his trustee's claim against the plaintiffs; here, conversely, we allow the defendant to set up against the trustee's claim the debt due from the cestui que trust. PIGOTT, B. I am of the same opinion. It is consistent with the facts stated in the third plea that the plaintiffs are rightfully in possession of the bills, with the ordinary rights of action of holders; it is therefore bad. But the fourth plea is good. The rule laid down in Bayley on Bills, as to a partial failure of consideration not being a good defence to a bill of exchange, does not apply to cases where the amount to be deducted is a matter of definite computation, but only to cases of unliquidated damages. Looking at the (1) 9 C. B. (N.S.) 448; 30 L. J. (C.P.) 97. 1866 AGRA AND MASTERMAN'S BANK v. LEIGHTON. 1866 AGRA AND MASTERMAN'S BANK v. LEIGHTON. language of this plea, the amount is clearly stated to be a matter of definite computation, and the plea is therefore good. Judgment for plaintiffs on demurrer to third plea; Attorneys for plaintiffs: Uptons, Johnson, & Upton. Νου. 23. WOOD AND ANOTHER V. PRIESTNER. Guarantee, Continuing-Future Debt-Construction. The defendant's son being indebted to the plaintiffs for coals supplied on credit, and the plaintiffs refusing to continue to supply coals unless guaranteed, the defendant gave this guarantee: "In consideration of the credit given by the H. G. C. Co. to my son, for coal supplied by them to him, I hereby hold myself responsible as a guarantee to them for the sum of 1007.; and in default of his payment of any accounts due, I bind myself by this note to pay to the H. G. C. Co. whatever may be owing, to an amount not exceeding the sum of 1007.”:— Held, a continuing guarantee. ACTION on a guarantee. The defendant's son, a coal-dealer, for some time previous to the giving of the guarantee, purchased coals of the plaintiffs, who traded under the name of the Hindley Green Coal Company, settling with them on monthly accounts. On the 10th of June, 1861, he was in debt to them on the March, April, and May accounts, in the sum of about 1701., and some difficulty arising between him and the plaintiffs, they refused to continue to supply him with coals unless he gave security. He paid 97., and accepted a bill of exchange at three months for 617.; and one of the plaintiffs having written out the guarantee sued on, the son procured the defendant's signature to it. The guarantee was as follows:-" Wilmslow, June 10, 1861. In consideration of the credit given by Messrs. The Hindley Green Coal Company to my son, Mr. James Priestner, for coal supplied by them to him, I hereby hold myself responsible as a guarantee to them for the sum of 1007., and in default of his nonpayment (1) of any accounts due, I bind myself by this note to pay to the Hindley Green Coal Company whatever may be owing, to an (1) This word was taken to have been written for payment. amount not exceeding the sum of 1007. (Signed) Wm. Priestner." There was no evidence that the defendant knew the state of accounts between his son and the plaintiffs. The plaintiffs thereupon continued to supply the son with coal on credit until, in June, 1865, he executed a deed of assignment under the Bankruptcy Act, 1861. He then owed the plaintiffs 3497., of which the assets would pay only a very small fraction. The debt due at the date of the guarantee appeared to have been discharged by subsequent payments. The son had since died. The case was tried before Martin, B., at the Lancashire summer assizes, and a verdict was entered for the plaintiffs, leave being reserved to the defendant to move to enter a nonsuit on the ground that the guarantee was not a continuing guarantee. A rule having been obtained accordingly, James, Q.O., and Baylis, shewed cause. The surrounding circumstances may be taken into account to assist the construction of the instrument: Carr v. Montefiore (1); and among those circumstances is the fact, that the plaintiffs had previously supplied the defendant's son on credit, and after the giving of the guarantee, and in consequence of it, continued so to supply him. This shews that the future supply was intended to be secured, and the natural construction of the words is to the same effect. Hoad v. Grace (2) shews that the words "coals supplied" may properly refer to the future. The words "any accounts due," also naturally express a current account, including the future as well as the past. If the plaintiff's construction were not adopted, it would be necessary to say either that the consideration was past, and the guarantee therefore void, which is a conclusion to be escaped, if possible, or else that the guarantee was given for the forbearance of a debt already due, which the words do not at all express. They also cited Kennaway v. Treleavan. (3) Holker, in support of the rule. A guarantee must be interpreted (1) 5 B. & S. 408; 33 L. J. (Q.B.) 256. 1866 WOOD V. PRIESTNER. |