*744] *communicated by the plaintiffs led to the apprehension of the delinquent?] In substance it did. [WILLIAMS, J.-Suppose a murderer were already in custody for larceny,-would a person who gave such information as caused his detention and conviction for the murder lose the reward offered, because the guilty person was already in custody?] Clearly not. Smith v. Moore is an authority on that point. [BYLES, J.-The plaintiffs had the boy in custody, and knew enough to justify them in detaining him, before the publication of the advertisement.] No doubt: but still it is submitted that they gave such information as led to the recovery of the property and the conviction of the thief, and therefore are entitled to the reward. Thatcher v. England, 3 C. B. 254 (E. C. L. R. vol. 54), is an answer to the suggestion that the superintendent should have been made a party to the action. [WILLIAMS, J., referred to the observations made by Lord Campbell, in Gerhard v. Bates, 2 Ellis & B. 476, 488 (E. C. L. R. vol. 75), upon Williams v. Carwardine and that class of cases.]

Joyce, in reply.-There is clearly no consideration to support the promise. The plaintiffs did nothing in consequence of the advertisement: the culprit was already in custody. În Smith v. Moore, the offender had not been apprehended on the charge at the time of the publication of the advertisement. Whatever ambiguity there may be in the plea, is cured by the replication.

ERLE, C. J.-I am of opinion that our judgment upon this demurrer must be for the plaintiffs. The advertisement issued by the defendant contains a promise of a reward to whomsoever would give such information as should lead to the recovery of the property and the apprehension of the thief. The plaintiffs in their declaration allege that they did give such *information as led to the re*745] covery of the property and the apprehension and conviction of the thief. The defendant by his second plea denies that the plaintiffs gave such information. It may be a question upon that plea whether the circumstances entitle the plaintiffs to recover the promised reward. The third plea alleges, that, before the publication of the advertisement, the plaintiff's apprehended the boy, and kept him in custody until after the publication of the advertisement, and that, although they were before the said publication informed of all the facts, and knew where the defendant was to be found, they, contrary to their duty, neglected to inform the defendant of such apprehension, and the defendant published the advertisement in ignorance of that fact. I construe this plea as charging the plaintiffs with a breach of duty. Accordingly, the plaintiffs reply to it, that they, being policemen, and having apprehended the boy in the declaration mentioned under circumstances of suspicion, detained him, and within a reasonable time, in pursuance of their duty, informed their chief superintendent of all the circumstances which had come to their knowledge concerning the theft, and that the superintendent, after the publication of the advertisement, and within a reasonable time in that behalf, gave notice to the defendant. If that replication be true, it affords a complete answer to the alleged breach of duty and fraudulent pretence alleged in the plea.

WILLIAMS, J.-I am of the same opinion. The third plea in substance amounts to this,-that, before the issuing of the advertisement,

the thief was already in custody on suspicion (not saying that he was in custody upon the charge in question), that the plaintiffs had the means of informing the defendant of the fact, and ought to [*746 have done so, and that the defendant was thus led to take a step which but for their neglect of duty he would not have taken. The replication simply answers the allegation of neglect of duty. Without giving any opinion as to what evidence would be required to support the second plea, I agree with my Lord that the third plea, so understood, is well answered by the replication.

WILLES, J.-I am of the same opinion. The third plea in substance alleges that the plaintiffs conducted themselves fraudulently in concealing the fact that the boy was in their custody, until after the reward was offered. I think that charge is completely answered by the replication. The circumstance of the communication having been made to the defendant through the superintendent has not (as was suggested by Mr. Joyce) made the superintendent the person, or one of the persons, giving the information. It clearly appears from the cases referred to by Mr. Macnamara (all of which were cited in Thatcher v. England, 3 C. B. 254 (E. C. L. R. vol. 54)), that it is the person who gives the first information who is entitled to the reward. It is then said that the plea may be supported upon another ground, viz. that it shows that it is impossible that the allegation in the declaration that the plaintiffs gave such information as led to the apprehension of the thief, can be true, inasmuch as they had him already in custody, and consequently the condition which was to entitle them to the reward had not been performed. If the averments in the plea do amount to that, then, undoubtedly, the plea is good, and the replication no answer. I must say I am very unwilling to read a plea in any other sense than that which it clearly appears to have been intended to bear. To set up that defence in the ordinary manner, would be to *traverse the giving of the information, as is done [*747 in the second plea. We must examine this plea to see if it contains an argumentative denial of that allegation. Now, it is a clear principle of pleading, that, where a party, instead of averring or denying any material facts which it is necessary to aver or to traverse, thinks fit to set out evidence, unless the evidence so set out conclusively establishes the fact alleged or denied, the plea fails: and properly so. That rule is not confi ed to common-law pleadings; and it is one which I apply with satisfaction to this plea. For the purpose of testing the plea, I will put a case which is not excluded by it, and which if true would show that the allegation in the declaration is true. I will suppose that the boy was apprehended upon another charge, or upon imperfect information on this charge. If the decision in Hogg v. Ward, 3 Hurlst. & N. 417,† be correct, information alone would not be enough; the grounds of suspicion must be such as a reasonable man would act upon. One would have thought it enough if the policeman bonâ fide believed the information to be true; but so is the decision in Hogg v. Ward. Now, add the fact that the magistrates issued a warrant, under which the policemen apprehended the boy and took him to Woolwich. It is clear, that, in that case, the defendant would have been liable; and that is not excluded by the third plea. As a plea of fraud or breach of duty, it is clearly answered

by the replication, and therefore the plaintiffs are entitled to judgment on this demurrer.

BYLES, J.-The question upon this demurrer is, whether the plaintiffs were guilty of a breach of duty in withholding the information they possessed, until after the offer of a reward. I cannot clearly see *748] my way to a different conclusion, and therefore defer to the *judgment of the rest of the Court. And I the rather do this because there is a plea upon the record which more conveniently raises the question in the cause.

Judgment for the plaintiffs.(a)

(a) The issue of fact was not tried, the defendant having become insolvent.

OFFORD v. DAVIES, and Another. June 2.

Held, that a guarantee to secure moneys to be advanced to a third party on discount, to a certain extent, "for the space of twelve calendar months," is countermandable within that time.

But see Bradbury v. Morgan, 31 Law J., Exch. 462.

THIS was an action upon a guarantee

The first count of the declaration stated, that, by a certain instrument in writing signed by the defendants, and addressed and delivered by the defendants to the plaintiff, the defendants undertook, promised, and agreed with the plaintiff in the words and figures following, that is to say," We, the undersigned, in consideration of your discounting, at our request, bills of exchange for Messrs. Davies & Co., of Newtown, Montgomeryshire, drapers, hereby jointly and severally guaranty for the space of twelve calendar months the due payment of all such bills of exchange, to the extent of 6007.: And we further jointly and severally undertake to make good any loss or expenses you may sustain or incur in consequence of advancing Messrs. Davies & Co. such moneys:" Averment, that the plaintiff, relying on the said promise of the defendants, after the making of the said promise, and within the space of twelve calendar months thereafter, did discount divers bills of exchange for the said Messrs. Davies & Co., of Newtown aforesaid, certain of which bills of exchange became due and payable before the commencement of this suit, but were not then or at any other time duly paid, and the said bills *respectively were dis*749] honoured; and that the plaintiff, after the making of the said

promise, and within the said twelve calendar months, advanced to the said Messrs. Davies & Co. divers sums of money on and in respect of the discount of the said last-mentioned bills so dishonoured as aforesaid, certain of which moneys were due and owing to the plaintiff before and at the time of the commencement of this suit; and that all things had happened and all times had elapsed necessary, &c.; yet that the defendants broke their said promise, and did not pay to the plaintiff or to the respective holders for the time being of the said bills of exchange so dishonoured as aforesaid, or to any other person entitled to receive the same, the respective sums of money payable by the said bills of exchange; nor did the defendants pay to the plaintiff

the said sums of money so advanced by the plaintiff as aforesaid, or any part thereof; whereby the sums payable by the said bills of exchange so dishor oured as aforesaid became lost to the plaintiff, and he became liable to pay and take up certain of the said bills of exchange, and did pay and take up certain of the said bills of exchange, and was forced and obliged to and did expend certain moneys in endeavouring to obtain part of certain of the said bills of exchange, and the plaintiff lost the interest which he might have made of his moneys if the said bills had been duly paid at maturity.

Fourth plea, to the first count,-so far as the same relates to the sums payable by the defendants in respect of the sums of money payable by the said bills of exchange and the said sums so advanced,that, after the making of the said guarantee, and before the plaintiff had discounted such bills of exchange, and before he had advanced such sums of money, the defendants countermanded the said guarantee, and *requested the plaintiff not to discount such bills of ex- [*750 change, and not to advance such moneys.

To this plea the plaintiff demurred, the ground of demurrer stated in the margin being, "that the fourth plea offers no defence to that part of the declaration to which it is pleaded, for that a party giving a guarantee [for a definite period] has no power to countermand it without the assent of the person to whom it is given." Joinder.

Prentice (with whom was Brandt), in support of the demurrer.—A guarantee like this, to secure advances for twelve months, is a contract which cannot be rescinded or countermanded within that time without the assent of the person to whom it is given. [BYLES, J.-What consideration have these defendants received?] For anything disclosed by the plea, the plaintiff might have altered his position in consequence of the guarantee, by having entered into a contract with Davies & Co. of Newtown to discount their bills for twelve months. In Calvert v. Gordon, 1 M. & R. 497 (E. C. L. R. vol. 17), 7 B. & C. 809 (E. C. L. R. vol. 14), 3 M. & R. 124, it was held that the obligor of a bond conditioned for the faithful service of A. whilst in the employ of B., cannot discharge himself by giving notice that after a certain period he will be no longer answerable; nor can the personal representative of the obligor discharge himself by such a notice. (a) Lord Tenterden, in giving judgment in that case, says (3 M. & R. 128): "The only question raised by the defendant's second plea is, whether it is competent to the surety to put an end to his liability by giving a notice which is to take effect from the very day on which it is given. It would be a *hardship upon the master if this could be done. It is said that it would be a hardship on the [*751 surety if his liability must necessarily continue during the whole time that the principal remains in his service; but, looking at the instrument itself, it would appear that it was the intention of the testator to enter into this unlimited engagement. It was competent to him to stipulate that he should be discharged from all future liability after a specified time after notice given. This he ha:, not done." Here, the defendants have stipulated that their liability shall discontinue at the end of twelve calendar months. What pretence is there for relieving (a) And see Gordon v. Calvert, 2 Sim. 253, 4 Russ. 581, where an injunction to restrain proceedings at law upon the bond was dissolved.

them from that bargain? [BYLES, J.-Suppose a man gives an open guarantee, with a stipulation that he will not withdraw it,-what is there to bind him to that?] If acted upon by the other party, it is submitted that that would be a binding contract. Hassell v. Long, 2 M. & Selw. 363, is an authority to the same effect as Calvert v. Gordon. In Pothier on Obligations, Part II., c. 6, § 7, art. 2, p. 442, it is said: "When the obligation to which a surety has acceded must from its nature exist a certain time, however long it may be, the surety cannot within that time demand that the principal debtor should discharge him from it; for, as he knew, or ought to know, the nature of the obligation to which he acceded, he should have reckoned upon continuing obliged during the whole of the time." Again, Part III., c. 6, art. 4, p. 635,-"Regularly, lapse of time does not extinguish obligations: persons who enter into an obligation oblige themselves and their heirs until the obligation is perfectly accomplished. But there may be à valid agreement that an obligation shall only continue to a certain time. For instance, I may become surety for a person upon condition that my undertaking shall not bind me after the expiration of three years."

*E. James, Q. C. (with whom was T. Jones), contrà.—The *752] cases upon bonds for guarantying the honesty of clerks or servants are inapplicable: there, the contract attaches as soon as the clerk or servant enters the service, and it is not separable. This, however, is not a case of contract at all. It is a mere authority to discount, and a promise to indemnify the plaintiff in respect of each bill discounted; and it was perfectly competent to the defendants at any time to withdraw that authority as to future transactions of discount. This is more like the mandatum pecuniæ credendæ treated of by Pothier,-on Obligations, Part II., c. 6, s. 8, art. 1. If so, it is subject to all the incidents of a mandate or authority. [WILLES, J.— Mandatum does not mean a bare authority which may be revoked.] In Story on Agency, the learned author having stated in § 463, that, "in general, the principal has a right to determine or revoke the authority given to his agent, at his own mere pleasure," proceeds in 8464, "The civil law contained an equally broad doctrine. Si mandavero, exigendam pecuniam, deinde voluntatem mutavero, an sit mandati actio vel mihi, vel hæredi meo? Et ait Marcellus: Cessare mandati actionem, quia extinctum est mandatum, finitâ voluntate. The same principle has infused itself into the jurisprudence of modern Europe, as, indeed, it could not fail to do, since it is but an application of a maxim founded upon the natural rights of men in all ages, in regard to their own private concerns, when the law has not interfered to prohibit the exercise of them." "But," § 466, "let us suppose that the authority has been in part actually executed by the agent; in that case, the question will arise, whether the principal can revoke the authority, either in the whole or as to the part which remains unexecuted. The true principle would seem to be, that, if the authority admits of severance or of being revoked as to the part which *753] is unexecuted, either as to the agent or as to third persons, then and in such case the revocation will be good as to the part unexecuted but not as to the part already executed." A mutual agreement to rescind can only be necessary where there is a mutual contract. But,