handed over to them. This, for some reason which was not explained, the defendant refused to do.

Mr. Hall, who was called as a witness on the part of the plaintiff, stated that his firm would have delivered the iron pursuant to the order, at any time before the 14th of February, upon the document being handed over to them.

The learned judge intimated an opinion that the plaintiff had a complete cause of action on the dishonour of the cheque; and that the refusal of Messrs. Hall & Co. to deliver the iron upon the mere presentment or shew. ing them the order, even supposing it might afford the defendants a remedy by a cross-action, clearly was no defence on the present occasion: and he accordingly directed the jury to find for the plaintiff; reserving leave to the defendant to move to enter a verdict for him on the sixth issue, or a nonsuit.

The jury accordingly returned a verdict for the plaintiff, damages 20007.

Keating, on a former day in this term, accordingly obtained a rule nisi to enter a verdict for the defendant on the sixth issue, or a nonsuit, or to reduce the damages,— the court reserving leave to the plaintiff to enter judgment non obstante veredicto on the sixth issue, if necessary.

Alexander and Gray shewed cause. The learned judge correctly told the jury that the plaintiff's cause of action was complete upon the dishonour of the cheque. The sixth plea is clearly a bad one; it tenders an issue which is altogether insensible and immaterial. [Jervis, C. J. The first question is, what does that plea mean? Then, is it proved? And, if proved, is it an answer to the action?] The plea was not proved; and it clearly is no answer. The declaration states correctly the legal effect of the contract,-that, in consideration that the plaintiff, at the request of the defendant, would

1853.

BARTLETT

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BARTLETT

v.

HOLMES.

sell to the defendant the said 1000 tons of pig-iron so
held as aforesaid by the said Messrs. Hall & Co. at the
disposal of the plaintiff as aforesaid, and would indorse
over to the defendant the said warrant or document in
writing, so as to enable the defendant to receive the said
1000 tons of iron as aforesaid from the said Messrs. Hall
& Co. instead of the plaintiff, he the defendant then pro-
mised the plaintiff to pay him a certain sum.
The plea
was not proved. The warrant was duly indorsed, and it
was by the defendant's own laches that he failed to ob-
tain the iron. [Jervis, C. J. The question, in truth,
turns upon the meaning of the words "on the presen-
tation."] The presentment of the order is a thing
wholly within the defendant's control. [Cresswell, J.
If the defendant can make out that Hall & Co. required
him, as a condition precedent to the delivery of the iron,
to do something which he was not bound to do to entitle
him to obtain it, he makes out his plea.] No doubt.
The evidence of Mr. Hall shewed that his firm were
ready to deliver the whole of the iron at any time before
the 14th of February, if the order had been duly pre-
sented. The case clearly falls within the rule laid down
in the notes to Pordage v. Cole, 1 Wms. Saund. 320 b,
that, "if a day be appointed for the payment of money,
or part of it, or for doing any other act, and the day is
to happen, or may happen, before the thing which is the
consideration of the money, or other act, is to be per-
formed, an action may be brought for the money, or for
not doing such other act, before performance; for, it ap-
pears that the party relied on his remedy, and did not
intend to make the performance a condition precedent."
And that rule was acted upon in a recent case in this
court,-Dicker v. Jackson, antè, Vol. VI, p. 103,-which
is very similar to the present case. On the morning of
the 15th of February, the plaintiff had a perfectly good
right of action against the defendant for the 20007.; and

nothing that has occurred since can operate to defeat that right. The refusal of Hall & Co. to deliver the iron clearly makes no difference. It may be that the defendant might have a remedy by cross-action against the plaintiff; but in such an action, the damages would depend upon a variety of circumstances,-the state of the market, amongst others. Besides, the defendant has his remedy in equity against Hall & Co., upon the principle laid down in Pooley v. Budd, 14 Beavan, 34, 48. There, A., who sold 500 tons of iron stacked on his wharf to B., in consideration of a bill accepted by a third party, gave an acknowledgment, engaging to deliver it to the bearer, he (A.) "having been paid for the same." B. mortgaged the iron, and, the bill having been dishonoured, A. refused to deliver the iron. The mortgagee proceeded in equity to make A. responsible for the iron: and it was held, that A. had no ownership or property in the iron so stacked, and was a trustee; and therefore a demurrer for want of equity was overruled. So, here, Messrs. Hall & Co. having notice of the claim of Holmes, a court of equity would declare them trustees of the iron for him, as in that case. [Williams, J. It was urged at the trial, that, assuming the sixth plea not to be a valid plea, the non-delivery of the iron might, in order to avoid circuity of action, be given in evidence in reduction of the damages,-upon the principle laid down by the court of Exchequer, in Mondel v. Steel, 8 M. & W. 858.] Here is an express contract to pay 20007. on a certain day : how can that be satisfied by payment of a less sum?

Keating and Phipson, in support of the rule. The sixth plea was proved. Hall & Co. had no right to require the warrant to be delivered up to them before the delivery of the iron. The presentation of the warrant was not like the presentment of a bill or a cheque for payment, where the delivery up of the document and

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the receipt of the money take place at one and the same
instant. Was the defendant to part with his document
of title before he received the iron? [Cresswell, J.
Were Messrs. Hall & Co. not to have the voucher until
the last boat-load was delivered? Jervis, C. J. It was
proved that Hall & Co. were prepared to deliver the
1000 tons of iron, if the order had been given to them.]
They were not entitled to demand it before a single ton
was delivered.] If that were so, what security would the
defendant have had? [Williams, J. The delivery of
the order to Hall & Co. would not have been an abso-
lute parting with it, whilst any portion of the iron re-
mained undelivered.] The word "presentation" is to re-
ceive its ordinary construction, unless there is something
in the nature of the transaction to shew that it was in-
tended to bear a different sense. The meaning of the
word varies, of course, according to the subject-matter.
[Cresswell, J. For instance, to present a petition, means
one thing; to present a gun to or at a man, means some-
thing very different.] In Johnson's Dictionary, to pre-
sent, is defined to mean, "to place in the presence of,"
"to offer," "to exhibit;" in Richardson, "to bring or
place before;" and, in Webster, "to offer," " to exhibit,”
"to lay before," "to point a weapon." Its primary
meaning, it is submitted, is, to place or bring before, to
shew, so that the party to whom the document is presented
may know what it is his duty to do. [Cresswell, J. In
that case, you would have the whole of the iron delivered
before you parted with the order: surely that could never
have been intended.] If delivering up had been meant,
the document would have so expressed it. At all events,
the non-delivery of the iron would go in mitigation of
damages: Poulton v. Lattimore, 9 B. & C. 259, 4 M. &
R. 208; Street v. Blay, 2 B. & Ad. 456; Allen v. Ca-
meron, 1 C. & M. 832; Mondel v. Steel, 8 M. & W. 858.
It was admitted by Hall, that, in March, he did abso-

lutely refuse to deliver the iron. [Williams, J. That was after the breach, and after the commencement of the action.]

JERVIS, C. J. I think this rule must be discharged, being of opinion that the allegation in the declaration which is substantially traversed by the sixth plea, is proved: it is unnecessary, therefore, to consider some of the points discussed. The main point depends upon the sense which is to be given to the word "presentation " in the document which bears date the 23rd of January, 1853. I am of opinion that the word "presentation in that document means, that, before the iron, or any part of it, is to be delivered to the person by whom it is presented, it must be handed over into the keeping and control of the persons who are to deliver the iron. No doubt the word "presentation" has many different significations; and, amongst others, the shewing or delivering up, as the context or the circumstances in which the expression is used may require. In the present case, I think it can only mean the latter. I see no hardship that can result from this construction. Confidence must be placed somewhere with regard to the custody of the document whilst it is being acted upon; and it seems to me to be manifestly more reasonable and convenient that it should in this case be placed in the party who is called upon to act on the order. Upon another ground, this occurs to me to be the proper construction. It was conceded, on the part of the defendant, that Messrs. Hall & Co. would be entitled to have the warrant handed over to them when the delivery of the 1000 tons was completed. Upon what word in the warrant, or in the contract which it evidences, would they be entitled to it at that period? Clearly, upon the construction which fairly belongs to the word "presentation." If so, I see no reason why a different sense should be put upon the

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