behoof of the said Thomas Adams; and thereupon, in consideration that the plaintiff would lend and advance to the said Thomas Adams moneys of her the plaintiff, he the defendant promised the plaintiff, upon the said Thomas Adams giving the plaintiff an authority to receive the amount from the defendant, to repay to the plaintiff any such sums as she the plaintiff might so lend and advance, from and out of the first money which he the defendant should receive on account of the said Thomas Adams, to wit, from and out of the first moneys to be by him. thereafter received on account of the aforesaid *rents and moneys, as and when he should receive the same, and to hold himself res[*57 ponsible to the plaintiff for the same: Averment, that the plaintiff, confiding in the said promise and undertaking of the defendant, did afterwards lend and advance to the said Thomas Adams divers large sums of money, in the whole amounting, to wit, to 581. 88.; and the said Thomas Adams did thereupon give to the plaintiff an authority to receive the said amount from the defendant, who then had due notice of the premises: and the defendant afterwards received, on account of the said rents and moneys, 201., and paid the same to the plaintiff; but afterwards, and before he received any further portion of the said rents and moneys, the defendant purchased of the said Thomas Adams all his interest of and in the said rents and moneys, and took an assignment of the same from the said Thomas Adams, and thereby disabled himself from performing his said contract with the plaintiff according to the said terms thereof, and had ever since received as they became due the said rents and moneys in his own right, and the plaintiff had never yet been paid the residue of the said sum of 581. 88., or any part thereof, out of the said rents and moneys, or otherwise.

Fourth plea, that, at the time of the said alleged purchase by and conveyance to him of the said interest of the said Thomas Adams of and in the said rents and moneys, he had not due notice and did not know that the plaintiff had advanced to the said Thomas Adams any further or other sum than the said sum of 201. so paid by the defendant to the plaintiff as aforesaid, or that the said Thomas Adams had given to the plaintiff an authority to receive any such further or other sum; and that the said Thomas Adams had not then given to the plaintiff any such authority.

[*58

The plaintiff demurred to the fourth plea,-one ground of demurrer stated in the margin being, "that, as the *defendant's contract was absolute, he was not discharged or excused on account of want of notice by or to him of the facts mentioned in the plea.' The defendant joined in demurrer; and the case was argued in Hilary Term last, before Cockburn, C. J., Cresswell, J., and Williams, J. Holl, in support of the demurrer. (a) The proper construction of the

(a) The points marked for argument on the part of the plaintiff, were,-

"First, that, as the first count of the declaration discloses an absolute contract on the defend

contract declared on, is, not that the defendant contracted to repay the advances out of money received on account of Adams,-these being mere words of description: but it imports an absolute undertaking to repay the advances out of moneys to be received for rents under the will. The defendant, by purchasing Adams's interest, has put it out of his power to perform his contract. [CRESSWELL, J.-The declaration charges that the defendant promised to repay to the plaintiff the advances made by her to Adams, out of moneys to be received by him on account of Adams, that money was advanced upon the faith of that promise, and that the *defendant repaid the plaintiff 201., but *59] afterwards, and before he received any further portion of the rents and moneys, by purchasing Adams's interest therein, disabled himself from performing his contract with the plaintiff. To this the defendant pleads, that, at the time of the purchase, he had no notice or knowledge that the plaintiff had advanced Adams more than 207., or that Adams had given her an authority to receive more. If the defendant had had such notice, in all probability he would not have purchased on the same terms. The equity of the case is against the plaintiff, whatever the strict law may be. COCKBURN, C. J.-Does the defendant by having purchased Adams's interest, cease to receive the moneys "on account of Adams?"] Even if the contract means that the advances are to be repaid out of moneys to be received on account of Adams," the effect would be, that, upon an authority being given by Adams, there was an equitable assignment of his interest, and a contract at law to carry out that equitable assignment. In the notes in 2 White & Tudor's Leading Cases, 575 (to Row v. Dawson, 1 Ves. sen. 331, and Ryall v. Rolls, 1 Ves. sen. 348), it is said: "In equity, an order given by a debtor to his creditor upon a third person, having funds of the debtor, to pay the creditor out of such funds, is a binding equitable assignment of so much money. Nor is it necessary, as it would appear by some of the decisions at law, that the party receiving the order should, in some way, enter into a contract: Burn v. Carvalho, 4 Mylne & Cr. 702, 703." In M'Gowan v. Smith, 26 Law Journ. Ch. 8, A. owed B. money upon a contract: the money was payable by instalments: B. gave an order upon A. for payment of a portion of such money to C.: A., at the request in writing of B., made two payments under the order to C., but refused to be personally bound by the terms of it: B. became insolvent, and some money was still due to C. *under the order: C. filed a bill against A. and the assignees of B. for an account and pay

*60]

ant's part to repay the plaintiff's advances to Thomas Adams, out of moneys to be received by him on account of Thomas Adams, the defendant was not entitled to notice of such advances, or discharged or excused from payment for want of such notice:

"Secondly, that the defendant could and might and ought to have ascertained for himself whether the authority in the fourth plea mentioned was or was not given :

"Thirdly, that it was consistent with the plea demurred to that an authority might have been given to the plaintiff to receive the whole amount advanced by him from the defendant in general terms, and that a fresh authority was not necessary in respect of each instalment of the advances."

ment and it was held that the order operated as an equitable assignment, and that C. was entitled to an account of the money then due under it, without regard to any payments made by A. [WILLIAMS, J. -You need not have recourse to the doctrine of equitable assignment here; for, there is a statement of consideration,-that the advances were made at the request of the defendant.] The defendant cannot be permitted by his own act to put it out of his power to perform his contract. [COCKBURN, C. J.-His obligation remains as if he were still the recipient of the money on account of Adams. He still receives the money under the will; and Adams is still entitled, except in so far as he has parted with his rights to the defendant.] When the defendant purchased Adams's interest, he ceased to receive the moneys payable under the will on Adams's account, and received them in his own right. The declaration does not state how much he has received; but so much as he has received he was bound to pay over to the plaintiff. Suppose the purchaser of Adams's interest had been a third person; the defendant, though he would still receive the rents under the will, would receive them on account of the purchaser, and not on account of Adams. [CRESSWELL, J.-A creditor proves a debt in bankruptcy, and assigns his interest in the dividends: the assignees would pay the dividends on account of the creditor; and the recipient would receive them on account of the creditor.] Not in equity, after notice of the assignment. [CRESSWELL, J.-We are here dealing with legal rights.] Assuming that the defendant did receive the money on account of Adams, the declaration sufficiently alleges that he so received it. Whatever construction, therefore, the court puts upon the contract, the declaration is good. Then as to the plea. [WILLIAMS, J.-How do you get over the averment in the plea that *Adams did not give the plaintiff an authority to receive [*61 money beyond the 201.?] The contract is an absolute one, to repay the money advanced on Adams giving an authority; and by his own act the defendant has incapacitated himself from performing it. The defendant could not either at law or in equity discharge himself from that obligation: Calvert v. Gordon, 7 B. & C. 809 (E. C. L. R. vol. 14), 1 M. & R. 497; Gordon v. Calvert, 4 Russ. 581, 1 Sim. 253. In Ford v. Tiley, 6 B. & C. 325 (E. C. L. R. vol. 13), by agreement, A. stipulated that he would, as soon as he should become possessed of a certain public-house, execute a lease thereof to B. from the 21st of December, 1855, for fourteen or twenty-one years. At the time of making the agreement, the house was upon lease, which would not expire till Midsummer, 1827; the legal estate being in trustees, first, to pay debts, and then to pay an annuity, and subject thereto, to the use of A. if he attained twenty-four. In June, 1825, after A. had attained twenty-four, but before the outstanding lease had expired, he and the trustees had joined in a lease to C. for twenty-three years. It was held that A. having thereby put it out of his power, so long as the latter

lease of 1825 subsisted, to grant any lease to B., had committed a breach of his agreement, and was liable to an action for such breach, although the first lease had not expired. So, in Lovelock v. Franklyn, 8 Q. B. 371 (E. C. L. R. vol. 55), the plaintiff declared upon a contract by the defendant, then holding land for a term of years, to assign all his interest to the plaintiff, on payment by the plaintiff, within seven years from a day named, of 1407., assigning for breach, that, before the seven years had expired, the defendant assigned all his interest to a stranger: and it was held, on special demurrer, that the breach as laid was a good ground of action, the defendant having incapacitated himself from performing the contract, if called on. [WILLIAMS, J.-Upon looking more closely at the plea, I find it is not a traverse of the allegation in the declaration : it merely states that Adams *had not then,—that *62] is, at the time of the purchase of his interest,(a)—given the plaintiff an authority to receive the money. COCKBURN, C. J.-The plaintiff must show that the contract into which the defendant entered, was one of indefinite duration,-an undertaking on his part to repay advances, whenever made, on her obtaining an authority from Adams.] It is submitted that the defendant has bound himself to repay any advances out of each money he should first receive after the authority given. It is like a continuing guarantee for advances to be made. [WILLIAMs, J. -The defendant pleads that he had no notice of any further advance. What right would he have to withhold the money from Adams, if there had been no assignment?] Having undertaken to repay the plaintiff's advances, he was bound to ascertain whether or not any authority had been given. The effect of the contract was, to preclude Adams, in equity, from dealing with his interest without giving notice to the plaintiff of his intention so to do. The plea, therefore, clearly is no answer to the declaration.

Prideaux (with whom was Byles, Serjt.), contrà.(6)—It cannot be permitted to the plaintiff, when one construction of his declaration fails him, to turn round and rely upon a totally different one,-especially since duplicity is no longer a ground of demurrer. The contract *63] *declared upon, was to repay, not all moneys that might be advanced, but all such moneys as the defendant might receive on account of Adams, and be authorized by him to pay over to the plaintiff. There is nothing upon the face of the declaration to show that the two events upon which the defendant's liability to pay over the money depends have happened. The promise, it is submitted, was conditional upon the (a) Cresswell, J., so states, p. 59.

(b) The points marked for argument on the part of the defendant, were,

"First, that the plea is good;-secondly, that the declaration is bad;-thirdly, that the plaintiff has no cause of action against the defendant by reason of the purchase by the defendant of the interest of Adams, or otherwise, under the circumstances in the declaration mentioned; and that the declaration does not disclose any breach of contract or other cause of action against the defendant."

Quare, what information these points give as to the matters intended to be argued?

defendant's receiving the rents on account of Adams, and receiving an authority from him to pay them over. The case in principle very much resembles that of Beswick v. Swindells, 3 Ad. & E. 868 (E. C. L. R. vol. 30), 5 N. & M. 378. There, by the condition of a bond for payment of 4007., it was recited that the obligor was about to marry E. E., linen-draper, and thereby to become possessed of a stock in trade, now hers, and that in consideration thereof it was agreed that he should execute a bond to the obligee to pay the children of E. E. by her late husband 3007. within twelve months next after E. E.'s death, in the event thereinafter specified: and the condition therefore was, that, if S. (the obligor) shall within twelve months next after the decease of E. E., pay to her child or children, &c., 3007., "if upon an account of the stock in trade and effects in the linen-drapery business, if then carried on by the said S.," the same "shall amount to the sum of 4001., but, in case, upon such account to be taken as aforesaid, the said stock in trade and effects shall amount to less than that sum, then, if the said S." shall pay to the child or children, &c., 120l. within twelve months next after the decease of E. E., the said obligation shall be void, &c. Plea, that E. E. died, and that, before her death, and ever since, S. had ceased to carry on the business, and that he had not at or since the time of her death any stock in trade, &c. Replication, that, at the end of twelve months from E. E.'s decease, there were, and still are, children of E. E. by her late husband living: It was held, on demurrer, that, as *the [*64 recited agreement was, to pay in the event after specified, and the condition was, to pay 3007. or 1207. according to an account to be taken of the business, if then carried on, the obligor might discharge himself by pleading that he had discontinued the business. If the argument on the other side be tenable, the defendant would equally have been liable to repay the moneys advanced by the plaintiff, if the assignment of Adams's interest under the will had been made to a third person. Ford v. Tiley and Lovelock v. Franklyn have no application: the contracts there were unconditional, in the one case to grant a lease, in the other to assign; and the defendant was to be liable to a penalty if he did anything to disable himself from performing his engagement. Besides, there fraud was suggested. Then, whatever the construction of the declaration, the fourth plea is a good answer to it. The promise is, to pay a certain amount upon receiving an authority so to do. The record shows that the money was advanced, the authority given, and the amount paid. It clearly could not be a continuing authority. The declaration speaks of one amount and one authority; and the plea shows that that authority has been given and acted upon; and the plea alleges that the defendant had no notice that more was due.

Holl, in reply. The contract clearly contemplates the payment of more than one sum: when it speaks of money to be received under the will, it uses the singular number; when of payments to be made, the N. S., VOL. II.—5