guishable from Jenkins v. Reynolds (1); for there the guarantee contained no statement of what the account was for; and as the nature of the consideration did not appear, it might be for an illegal debt. Bompas, Serjt., for the defendant, was stopped by the COURT. TINDAL, Ch. J.: Applying to this guarantee, that rule of construction which has been so often laid down, that we must give to the words used their natural meaning, I do not see how this can be considered as a prospective guarantee; and if not, there is no consideration disclosed upon the face of it. The words are, "I hereby guarantee Mr. John Jennings's account with you for wine and spirits, to the amount of 100l." By "account," I understand the parties to mean some account contained in some ledger or book; and the case shows that there was such an account existing at that time. The natural construction of the guarantee therefore is, that it relates to that account. In order to hold the construction contended for to be the sound one, we must say that the word means some account between the parties, which is to run on until a future time; but we cannot come to that conclusion when it is shown that there was, at the time that the guarantee was given, an account to which it might apply. I think the proper construction of the instrument is, that it is an undertaking merely to be answerable for some existing account. ERSKINE, J.: I am of the same opinion. The question which we have to determine is, not whether a good consideration appears on the face of the declaration, but whether a good consideration is disclosed on the face of the document itself. If my brother Channell could have established his first position, he would probably have had little difficulty with respect to the second; for if the operation of the instrument was prospective, it seems to me that it would have been a continuing guarantee. But, as has been stated by the LORD CHIEF JUSTICE, the document contains no express words which point to any prospective supply of goods, neither does any thing appear from which it can be inferred that the parties contemplated any such supply. The primary *meaning of the language used can only have reference to an existing account. (1) 3 Brod. & B. 14; 6 J. B. Moore, 86. ALLNUIT v. ASHENDEN. [397] [ *398 ] ALLNUTT t. ASHENDEN. CRESSWELL, J. (1): The utmost that can be said on behalf of the plaintiffs is, that the guarantee is ambiguous. If I am to put a construction upon it, I should say that it applies to some present existing account. Judgment for the defendant (2). 1843. Jan. 33. [399] GIBSON AND OTHERS v. BRUCE AND ANOTHER. (5 Man. & G. 399–405; S. C. 6 Scott, N. R. 309; 12 L. J. C. P. 132.) In 1837 A., being in embarrassed circumstances, executed a deed to secure to his creditors a composition of 78. in the pound. B., a creditor, refused to sign the deed until A. made B. a promise to give him security for the difference between the composition and the full amount of the debt. Pursuant to that agreement A. subsequently handed over to B. his promissory notes, payable to B. or order. B. indorsed the notes, and paid them in to his bankers at Leeds, to whom B. was in the habit of indorsing all bills and notes received by him, and drawing generally on account. When the notes were at maturity the London correspondents of the Leeds bankers presented them to A., by whom they were paid. A. continued to deal with B. down to his bankruptcy (in 1840) without ever complaining of the transaction or attempting to set off the payments made in respect of the notes against the subsequent demands of B. against him. No evidence was given to show the state of the account between B. and the Leeds bankers at the time of the payments, or that A. knew the character in which the notes were held by the bankers who presented them. In an action for money paid by A. to the use of B., brought by the assignees of A. to recover back the amount of these notes, the Judge left it to the jury to say whether or not the payment was voluntary, and told them that if the payment was made to the bankers as agents only, it must be considered as voluntary; and that if they found the payment to be voluntary, and to have been made with a full knowledge of the circumstances, they must find for B., otherwise for the plaintiffs. The Court directed a new trial, in order that the attention of the jury might be more precisely called to the question-whether A. knew the character in which the bankers presented the notes for payment, namely, whether as agents of B. or as holders for value. ASSUMPSIT, brought to recover money alleged to have been paid by Martin, before his bankruptcy, to the use of the defendants at their request. Plea: Non assumpsit. (1) Maule, J. was absent from indisposition. (2) Had mercantile witnesses been examined at the trial, it is probable that they would have concurred in stating, that the word "account" in this guarantee, would be understood in the commercial world as equivalent to the word "dealings." It may also be observed, that the guarantee was for an account between a publican and his wine merchant "to the amount of 1007.;" and that the existing account, or existing item of account, consisted of one sum (resulting from a single dealing) of 837. 18. And see further as to continuing guarantees, Hitchcock v. Humphrey, post, p. 401. At the trial before Tindal, Ch. J., at the sittings in London after last Trinity Term, it appeared that Martin, being in embarrassed circumstances, on the 15th of February, 1837, entered into a deed of composition with his creditors to secure to them the payment of 7s. in the pound upon the amount of their respective debts. The defendants, amongst other creditors, executed the deed; but before they did so they obtained from Martin a *promise that he would give them security for the difference between the amount of the composition and the amount of their original debt. Pursuant to that agreement, Martin subsequently gave the defendants certain promissory notes, payable to themselves or order, which notes the defendants indorsed and paid into their bankers, Messrs. Williams, Williams, Brown, & Co., at Leeds, who indorsed and remitted them to their London correspondents, Brown, Janson, & Co. The latter afterwards presented the notes to Martin, who took them up. The defendants were in the habit of indorsing and paying into their bankers all securities which they received, and of drawing generally on account. Martin continued to deal with the defendants from the payment of the notes until his bankruptcy in October, 1840, and never complained of the transaction, or claimed to set off the money so paid by him against their subsequently accruing demands against him. The precise state of the account between the defendants and their bankers at the time the notes in question were indorsed and handed over to them was not shown; neither did it appear that Martin, at the time of paying the notes, knew the character in which they were presented by the bankers, whether merely as agents or as indorsees or holders for value. For the defendants, it was contended that the payment of these notes was a voluntary payment by Martin, with a full knowledge of all the circumstances, and therefore that the transaction could not be re-opened and the money so paid recovered back; and Wilson v. Ray (1) was cited. There the plaintiff being about to compound with his creditors, the defendant, a creditor, refused to subscribe the deed unless he were paid in full, the plaintiff, to obtain his signature, gave a bill payable to the defendants' agent for the difference between 20s. in the pound and 8s., the proportion compounded for, the defendants then signed the deed; the plaintiff did not honour the bill when due, but on subsequent application he paid it, some months after the dishonour, by two instalments to the payee, and the defendants received the money; the other [(1) 50 R. R. 341 (10 Ad. & El. 82; 2 P. & D. 253). GIBSON v. BRUCE. [ *400 ] [ *401 ] GIBSON V. BRUCE. [402 ] creditors were paid according to the deed. It was held that the plaintiffs could not recover back the amount paid to the defendants above 8s. in the pound; for that the transaction had been closed by a voluntary payment, with full knowledge of the facts, and ought not to be re-opened; and that it made no difference that the sum in question had not been recovered by action. On the part of the plaintiffs it was submitted that the assignees were entitled to recover the amount of the notes; because inasmuch as these had been extorted from the bankrupt in fraud of the other creditors, the subsequent payment of them to the indorsees could not be considered as a voluntary payment. His Lordship, in leaving to the jury to say whether or not the payment by Martin was voluntary, told them that if made to the bankers as agents only for the defendants it must be considered as a voluntary payment; and that if they thought the payment to have been voluntary and with a full knowledge of the circumstances, their verdict, upon the authority of the case of Wilson v. Ray, must be for the defendants, otherwise for the plaintiffs. The jury having returned a verdict for the defendants, Sir T. Wilde, Serjt. in Michaelmas Term last, obtained a rule nisi for a new trial, on the ground of misdirection, and that the verdict was against the evidence (1). Bompas, Serjt. (with whom was F. Robinson) in the same As the Court gave no opinion on the point of law, the argument of counsel is not reported. The learned Serjeant cited the following authorities: Cockshott v. Bennett (2) ; Bilbie v. Lumley (3); Smith v. Cuff (4); Brisbane v. Dacres (5); Farmer v. Arundel (6); Lowry v. Bourdieu (7); The Duke de Cadaval v. Collins (8); and Kelly v. Solari (9). Sir T. Wilde, Serjt., contrà, cited Smith v. Bromley, contained in a note to Jones v. Barkley (10), Browning v. Morris (11); Bize v. (1) See the grounds on which the (7) 1 Doug. 468. (8) 43 R. R. 499 (4 Ad. & El. 858; 6 N. & M. 324). (9) 60 R. R. 666 (9 M. & W. 54). (10) 2 Doug. 684. Dickson (1); Grove v. Dubois (2); Martin v. Morgan (3); Stevens v. Lynch (4); Milnes v. Duncan (5); Tuck v. Tooke (6) and Turner v. Hoole (7). TINDAL, Ch. J. now delivered the judgment of the COURT: This was an action of assumpsit for money paid by the bankrupt to the use of the defendants at their request; to which the defendants pleaded non assumpsit, with two other pleas which it is not material now to consider. At the trial before me at Guildhall at the sittings after Trinity Term last, it appeared that Martin, some time before his bankruptcy, being then in embarrassed circumstances, executed a deed of composition to his creditors, in order to secure the payment of so much in the *pound, and that the defendants, amongst other creditors, executed the deed, but that the defendants, before they would execute, obtained a promise from Martin that he would give security for the payment of the whole of their debt. It appeared also that Martin, after the execution of the deed in pursuance of such agreement, gave the defendants his promissory note payable to themselves, or order, for the difference between the amount of the composition and the amount of their debt; which promissory notes were indorsed by the defendants, and paid by them into the hands of their bankers at Leeds, and afterwards, upon being presented by the London correspondents of the Leeds bankers the amount of the notes was paid by Martin. It was further proved by the defendants, in order to show that this was a voluntary payment on the part of Martin, that he continued to deal with the defendants for three years after this payment of the notes, and never complained of the transaction, or that he attempted to set off the payment against the subsequent demands which the defendants had against him. It appeared, however, on the cross-examination of the defendants' witnesses, that the defendants were in the habit of paying in to their bankers all the securities they received, and drawing on them as they wanted money. (1) 1 T. R. 285. (2) 16 R. R. 664, n. (1 T. R. 112). (5) 30 R. R. 498 (6 B. & C. 671; 9 Dowl. & Ry. 741). (6) 9 B. & C. 437; 4 Man. & Ry. 393. (7) Dowl. & Ry. N. P. 27. The learned Serjeant stated, from the was private notes of Lord TENTERDEN |