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whereas, if they join in suing, each will recover the proportion he may be entitled to. If the guarantee had been given to one having no interest in the subject-matter, but who was merely a trustee for third persons, he might well have sued upon it. That is clear from the class of cases of which the case I referred to is one. There, an officer *of the Palace court entered into a bond, with sureties, to the [*370 knight marshal of that court, conditioned for the due performance of the duties of his office; and (inter alia) that he should take sufficient bail from all defendants arrested, and should obey the lawful orders of the court. Having taken insufficient bail from a defendant arrested in an action in that court, an order was made requiring him to pay the amount of debt and costs in the action, which he disobeyed: and it was held that the knight marshal was entitled, as a trustee for the plaintiff in the action, to recover, in an action on the bond, the full amount of the debt and costs. If, then, one having no interest may sue as trustee, there can be no reason why the parties interested may not sue in the same way. I therefore agree with my Brother Crowder in thinking that there should be no rule.

BYLES, J.-I am entirely of the same opinion. As between the plaintiffs and the defendants, the damages to be recovered under this instrument must be joint; but, as between the plaintiffs themselves, the interest in the fund when recovered is several. The three plaintiffs jointly are trustees for each other severally. Any other construction would render this guarantee altogether nugatory. We are, in effect asked to reverse the maxim "Interpretatio fienda est, ut res magis valeat quàm pereat." Rule refused.

See this case, ante 3 Comm. Bench N. S. (E. C. L. R. vol. 91), 2, and note.

*HART v. MILES. April 23.

[*371

The declaration stated, that, in consideration that the plaintiff would consent to the defendant's retaining possession of two bills of exchange (describing them), and to which bills the plaintiff was then entitled, and of which the defendant was then the holder, but not for value, the defendant promised the plaintiff, that, if he should succeed in procuring the bills or either of them to be discounted, he would apply the proceeds in a given way: averment that the defendant did succeed in procuring the bills to be discounted, but that he failed to apply the proceeds as agreed :-Held, on motion in arrest of judgment, that the declaration disclosed a sufficient consideration for the defendant's promise.

THE first count of the declaration stated that, in consideration that the plaintiff would consent to the defendant's retaining possession of two bills of exchange, one for 25l., and the other for 247. 108. 6d., each drawn by the defendant upon and accepted by the plaintiff, and payable to the defendant's order, and to which bills the plaintiff was then entitled, and of which the defendant was then the holder, but not for value, the defendant promised the plaintiff that, if he should succeed in procuring the said bills or either of them to be discounted, he would pay to Messrs. Sotheron & Richardson the proceeds of such discounting, or a sufficient part thereof, in discharge of another bill of exchange for 451. 58. 10d., or of so much thereof as such proceeds would satisfy; and

the defendant succeeded in procuring the said first-mentioned bills to be discounted, and the plaintiff did all things necessary to have the defendant perform his said promise, and a reasonable time for the defendant so to do elapsed; yet the defendant broke his said promise, in this, that he did not pay the proceeds, or any part thereof, to the said Messrs. Sotheron & Richardson, in discharge of the said bill of exchange for 451. 58. 10d. or any part thereof; by reason whereof the said Messrs. Sotheron & Richardson obtained judgment in an action at law against the plaintiff for the amount of the last-mentioned bill, and damages and costs, amounting to a large sum, to wit, 517. 48. 2d., and issued execution thereon, and caused the plaintiff's goods to be seized and sold in satisfaction of the said judgment, and of the poundage, costs, and expenses of the said execution, amounting in the whole to a large sum, to wit, 647. 28. 10d., and of certain arrears of rent; *and by reason

*372] thereof, the goods of the plaintiff to a much greater value than

the amount of those moneys, were sold under the said execution, for the purpose of raising the said moneys; and thereby the plaintiff was greatly injured in his expectations, and ruined in his business and circumstances, and greatly harassed and impoverished; and by reason thereof also the plaintiff became liable to pay the two first-mentioned bills, and may have to pay the same, and was put to costs and charges in and about endeavouring to procure the holder of those bills not to sue the plaintiff thereon.

The defendant pleaded, amongst other pleas,-secondly, that he did not succeed in procuring the said bills to be discounted, as alleged. Issue thereon.

The cause was tried before Williams, J., at the sittings in London after last term. It appeared that the defendant received the two bills on the 30th of June, 1857, and paid them in to his account at his bankers', where they were entered short, but that, shortly afterwards, he obtained an advance from the bankers, upon an understanding that any bills in their hands belonging to him might be discounted. The execution took place on the 7th of August: and the bills became due in September.

On the part of the defendant, it was submitted that this was a mere naked bailment, and that the defendant was acting as agent for Messrs. Sotheron & Richardson.

The learned judge left it to the jury to say whether the defendant made the agreement upon his own responsibility, whether he did succeed in getting the bills discounted, and whether he knew of the discount before the date of the execution,-telling them, that, if he did know of the discount before that event, there was an end of the case, except as to damages; but that if he did not, he would not be liable.

*373] *The jury returned a verdict for the plaintiff,-damages, 751. Wordsworth, Q. C., now moved for a new trial on the grounds of misdirection, and that the verdict was against evidence; and also in arrest of judgment as to the first count. He submitted that the question of agency ought to have been more pointedly put to the jury, and that they should have been told that the defendant was not responsible for the accidental passing of the bills to his debit by his bankers without his authority. As to the arrest of judgment, he contended that the count disclosed no consideration whatever for the defendant's promise;

and that, and at the utmost, it disclosed a mere bailment, without reward. [WILLES, J.-If there be any consideration, we cannot inquire into the adequacy of it: Haigh v. Brooks, 10 Ad. & E. 409, 4 P. & D. 288.]

CROWDER, J.-I am of opinion that there is no ground for arresting the judgment in this case. Looking at the whole declaration, though it certainly is somewhat vague, I think it may be supported, and that the consideration stated is sufficient. The statement is that, in consideration that the plaintiff would consent to the defendant's retaining possession of two bills of exchange (describing them), to which bills the plaintiff was then entitled, and of which the defendant was then the holder, but not for value, the defendant promised, &c. It is clear that the bills were the plaintiff's property, and that he was entitled to the possession of them and it is equally clear that they were in the possession of the defendant without value. Instead of requiring him to give them up, the plaintiff consents that the defendant shall retain them for a given purpose, viz., to get them discounted. That is a sufficient consideration for the defendant's promise to dispose of *the proceeds in the manner [*374 agreed upon, if he succeeded in getting the bills discounted. If the defendant had not made the promise he did, the plaintiff might have handed the bills over to somebody else for the purpose of procuring them to be discounted. I think the consideration was sufficient to support the promise. As to the alleged misdirection,-I am at a loss to discover in what it consisted. It is said that the learned judge should have told the jury that the defendant got no benefit from the transaction; and, further, that he had been pressed with an argument that the case was one of agency only,-that the defendant was acting merely as agent for Sotheron & Richardson,-and that that should have been put to the jury. The learned judge did ask the jury whether the defendant made the agreement upon his own responsibility. That was in effect putting the question of agency to them. The defendant clearly did not make the promise as agent: it was an original undertaking. I see no ground therefore for granting a rule upon this point. But, with regard to the evidence, we will speak to the learned judge.

WILLES, J.-I agree with my Brother Crowder that there was no misdirection. As to the arrest of judgment, I also agree with him in thinking that the declaration discloses a sufficient consideration for the defendant's promise. If the pleader had reflected a little, he would probably have stated it thus, in consideration of the plaintiff's consenting to the defendant's retaining possession of the bills, and getting the same discounted if he could, the defendant promised, &c. I rather think he was considering how the promise would have looked had it been gathered from a correspondence between the parties. If the defendant had written to the plaintiff thus,-" In consideration of your consenting to my retaining the bills in my *possession, I undertake, if I [*375 succeed in procuring them to be discounted, to hand over the proceeds to you;" and the plaintiff had answered, "I assent to the terms of your letter;" there would have been a contract between them that the defendant should procure the bills to be discounted if he could, and hand over the proceeds. That is the contract which is to be implied here. It is do ut facias, or facio ut facias. That brings me to my last observation if this be not a sufficient consideration, the defendant

might have procured the bills to be discounted without being compellable to hand over the proceeds. Assuming that there was no consideration in the first instance, the fact of the defendant's getting the money in the end makes him liable: just as a man who gives a guarantee for goods to be supplied to a third person incurs no liability until the goods are supplied, the contract being until then entirely unilateral.

BYLES, J.-I am of the same opinion. The true meaning of the declaration I conceive to be this, that the plaintiff intrusts or continues to intrust the two bills, which are his property, to the defendant upon certain terms. I think, for the reasons given by my Brother Willes, that was a good consideration moving from the plaintiff for the defendant's promise to hand over the proceeds if he succeeded in getting the bills discounted. And, further, as my Brother Crowder observes, if the defendant had not retained the bills, the plaintiff might have got them discounted elsewhere. The loss of that opportunity was a detriment to the plaintiff, which would be of itself a sufficient consideration. Further, the declaration alleges that the defendant afterwards succeeded in getting the bills discounted, but failed to pay over the proceeds. There is, therefore, a good consideration for the defendant's promise at least in three ways.

*CROWDER, J., on a subsequent day, intimated that he had *376] conferred with Cresswell, J., and that the court saw no ground for disturbing the verdict upon the evidence.

Any benefit or advantage to a promissor, or disadvantage to the other party, however slight, is a sufficient consideration for a promise: Powell v. Brown, 3 Johnson 300; Townley v. Sumroth, 2 Peters 182; Underhill v. Gibson, 2 New Hampshire 352; M'Cullough v. Cowher, 5 Watts & Sergeant 427; Foster v. Fuller, 6 Massachusetts 58; Tomkins v. Phillips, 12 Georgia 52; Harlan v. Harlan, 20 Pennsylvania State 303; Clarke v. Sigourney, 17 Connecticut 511. The mere acquiescence in the continuance of an existing state of things, will be enough. Thus in Spangler v. Springer, 22 Pennsylvania State R. 458, by a sealed instrument the plaintiff agreed to manage a coal business, and the defendant agreed to compensate him in proportion to the business done; the agreement to continue for three years, but to be terminable at any time by either party on reasonable notice to the other. Subsequently, by a parol agree

Rule refused.

ment, signed by the defendant alone, it was agreed that, if the compensation fell short of $1500 in any year, the defendant should make it up at the end of the year. It was held that the forbearance of the plaintiff to exercise his right to terminate the former agreement was a sufficient consideration to support the latter. In general, a gratuitous bailment of personal property, will be a sufficient consideration to support a promise to return: Clark v. Gaylord, 24 Connecticut 484. Therefore, in Rutgers v. Lucet, 2 Johnson's Cases 92, a somewhat similar case to that in the text, where A. received of B. a bill of exchange drawn by C., and which he promised to return to B. or pay the amount thereof, but the bill was thus received by A. as a mere matter of courtesy, and was to be used entirely for the benefit of B., it was held that A. was liable in assumpsit for failing to return the bill, or its amount, on demand.

DENDY v. NICHOLL. April 30.

A right of re-entry for breach of a covenant in a lease is waived by the lessor's bringing an action for rent accruing subsequently to the breach, with knowledge of its existence.

EJECTMENT for a piece of meadow land in the parish of Hendon, in the county of Middlesex. The writ was dated the 16th of May, 1857. The cause came on for trial before Cockburn, C. J., at the sittings in Middlesex after last Michaelmas Term, when a verdict was (by consent) taken for the plaintiff, upon the following admitted state of facts,-from which the court were to be at liberty to draw such inferences as a jury would be warranted in drawing; leave being reserved to the defendant to move to enter the verdict for him, if the court should be of opinion that those facts showed a waiver by the plaintiff of his right of re-entry :

The defendant held the land in question as tenant to the plaintiff under a lease dated the 30th of November, 1838, for twenty-one years from Michaelmas then last, at the yearly rent of 31. The lease contained the following covenant:-"That [the lessee], his executors or administrators, shall not at any time during the said term hereby granted, demise, grant, set, or let, or underlet the said hereby demised premises, or any part thereof, nor part with this indenture of lease (except by will), for all or any part of the said term, to any person or persons whomsoever, without the special license in writing of the said

[lessor], his heirs or assigns, first had and obtained." Proviso, [*377

66

that, if the said yearly rent of 31., or any part thereof, shall be behind or unpaid by the space of twenty-one days next after the same shall become payable, or if the said [lessee] do not well and truly perform and keep all and every the covenants and agreements herein before expressed, and which on his or their part are or ought to be performed and kept, and that according to the true intent and meaning of these presents, then and from thenceforth, or at any time or times hereafter, it shall and may be lawful for the said plaintiff, his heirs or assigns, into and upon the said premises hereby demised, or any part thereof, to re-enter, and the same to have again, retain, repossess, and enjoy as in his and their first and former estate, anything hereinbefore contained to the contrary thereof notwithstanding: nevertheless, this present demise shall be in force for the purpose of compelling a due performance of the covenants herein before contained, and not then duly performed."

The defendant entered under this lease, and occupied up to Michaelmas, 1854, when he underlet the demised premises by parol to one Frend, who entered and continued in occupation from that time under an arrangement with the defendant to pay the rent half-yearly to the plaintiff. The fact that the premises were so let was known to the plaintiff shortly after the letting took place; but he did not know the terms as to the rent. After the letting to Frend, neither he nor the defendant paid any rent to the plaintiff up to the 30th of April, 1857. On that day, the plaintiff issued a writ for the recovery of the rent due on the 25th of March preceding. On the 16th of May, the cause was by a judge's order referred to the master, and the defendant, on the 23d, paid the plaintiff's attorney the amount of the rent so due.

*On the 16th of May, 1857, this action was commenced; the breaches of covenant in respect of which it was brought were

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