(COLTMAN, J.: The general rule is, that the debtor must seek out HITCHCOCK his creditor (1).) That does not apply to the case of a bill in circulation. The rule (CRESSWELL, J.: Philips v. Astling was decided upon the peculiar grounds of the case. The party who gave the guarantee was liable only in case the bill was neither paid by the acceptor nor by the drawer. It was necessary to show the liability of the drawer by notice to him of the non-payment. Besides, it appeared in that case, that the bill probably would have been paid if it had been properly presented. ERSKINE, J.: This is a guarantee, not of payment of the bill, but of payment for the goods. CRESSWELL, J.: It amounts in effect to this: "If you will trust my son for three months, from time to time, I will guarantee the payment of the goods.") It is clear that the plaintiffs were to draw on the son. And this is (ERSKINE, J. In that case the original debtor was the drawer of the bill. TINDAL, Ch. J. How is the present case distinguishable from Warrington v. Furbor ?) (1) Vide Br. Abr. Tender, pl. 20, Litt. s. 340, Co. Litt. 210 b. V. HUMFREY. [ *564] HITCHCOCK In that case there was no mention of any bill in the guarantee. (CRESSWELL, J.: The declaration in this case sets out both the guarantees. In the first there is no mention of any bill. The second is to extend the credit given by the first. I should construe the payment mentioned in the second, to mean the same as that in the first. It amounts to a promise by the defendant to pay for the goods if the principal debtor makes default. If the breach is for non-payment of the bill, then the declaration does not aver that any thing remains due for the goods.) That would be a ground for arresting judgment. (COLTMAN, J.: The breach is, that the defendant did not pay, on request, "the amount of the said bill, to wit, the said sum of 35l. 188. 6d.") That is the usual allegation in an action on a bill. (COLTMAN, J. If the words "although the said bill was presented to him" were struck out of the declaration, the averment would then be, that the said T. H. did not pay the amount of the bill when it became due. Would not that be sufficient?) It is submitted that it would not. The plaintiff was bound to allege, and to prove, a presentment. In Swinyard v. Bowes the true question was, whether the transaction amounted to a payment. In Holbrow v. Wilkins it was decided that presentment and notice were not necessary, inasmuch as the parties guaranteeing had distinct notice of the insolvency of the principal debtor. Van Wart v. Woolley has no application to the present case. That was an action by a party against his own agents. In this case no demand of payment is shown; and the bringing of the action will not have the effect of such demand. As to the arrest of judgment, this was not a continuing guarantee. (COLTMAN, J.: How do you understand the words "extending the credit ?") The credit may have been extended as to the period of payment, without being extended as to the amount. (CRESSWELL, J.: Surely the amount of the credit was extended HITCHCOCK as well as the period. ERSKINE, J.: If it had been intended as a limited guarantee as to the period, would not the plaintiff have said, "in consideration of your extending the credit up to the 1st of August.") It was unnecessary to say that, as the bill was to be drawn on the 1st of May at three months. The meaning of the instrument is, that the defendant's son was to have three months' credit from the 1st of May for goods supplied up to the 20th of April, and then the defendant would guarantee the payment of goods supplied within that period. If the terms of the guarantee are not clear, the plaintiff cannot recover upon it: Cole v. Dyer (1). It is consistent with every thing that appears upon the declaration, that the son may have paid for the goods at the time the second guarantee was given. (CRESSWELL, J. He would hardly have accepted the bill in that case.) Channell, Serjt. (with whom was Sir J. Bayley), for the plaintiffs: The first question is, whether the facts stated in the fifth and sixth pleas, taken alone, constitute any defence to the action. And it is submitted they do not. The necessity of presentment in such a case as the present is not to be regulated by the law merchant, but by the rules applicable to the law of principal and surety. Warrington v. Furbor decides that where goods are sold, the payment of which is guaranteed by another party, and a bill is given by the purchaser for the price of the goods, which is dishonoured, it is not necessary to give notice to the surety. That case is precisely in point. Upon the statement in the declaration it must be assumed that the bill was not paid. The defence of non-presentment would have been valid if the defendant had been the drawer of the bill. In Philips v. Astling the vendee was the drawer of the bill, and the guarantee was for payment of that bill by the drawer; but he was not liable to pay unless he received due notice of default by the acceptor. Swinyard v. Bowes, Murray v. King (2), Holbrow v. Wilkins, and Van Wart v. Woolley are strong authorities for the plaintiffs. In the last-mentioned case *ABBOTT, Ch. J. said, "If a v. HUMFREY. [ *566] [ *567] 7. HUMFREY. HITCHCOCK person deliver a bill to another without indorsing his own name upon it, he does not subject himself to the obligations of the lawmerchant; he cannot be sued on the bill either by the person to whom he delivers it or by any other" (1). That position reconciles all the cases. [ *568 ] (He was then proceeding to argue the question as to the arrest of judgment, but he was stopped by the Court.) TINDAL, Ch. J.: The application made on behalf of the defendant to arrest the judgment in this case, depends upon two objections: first, that the second guarantee given by him is not a continuing guarantee; and, secondly, that there is no sufficient allegation in the declaration of any default in payment. As to the first point, upon comparing the two guarantees as set out in the declaration, I think there is no doubt that the latter was a continuing guarantee. It appears that on the 5th of March. the defendant guaranteed the payment of any sum owing to the plaintiffs, that should be due from Thomas Humfrey, the younger, upon the 1st of July. The parties seem to have met again on the 9th of April, when, in consideration of the plaintiffs' extending the credit already given to T. Humfrey, and agreeing to draw upon him at three months from the 1st of the following month, for all goods purchased up to the 20th of the preceding month, the defendant guarantees the payment, and agrees to pay the plaintiffs any sum that shall be due and owing to them upon their account for goods supplied. I cannot but think that if it had been intended that this second guarantee should only extend to one transaction of supplying goods, it would not have been couched in such general terms as "the following month," and "the preceding month," but would have followed the form of the first guarantee, which was limited to the payment of any sum due at a particular date, namely, the 1st of July. As to the next objection, that no sufficient ground of action is shown by non-payment, I think that this is a guarantee, for the payment not of the bill, but of the price of the goods. It is not a condition, that a bill shall be drawn, and that the principal shall have credit for three months. And if so, there is on the face of the declaration a sufficient allegation of non (1) See Bills of Exchange Act, 1882 (45 & 46 Vict. c. 61), ss. 23 and 58. -A. C. v. HUMFREY. payment. We might strike out all that part which relates to HITCHCOCK the demand on the acceptor, and the non-payment of the bill; and there would still remain sufficient to show that the price of the goods was not paid. And although it has been urged that there ought to have been a specific demand for payment, and that bringing this action is not sufficient to obviate the necessity for such formal demand, still we cannot help seeing that there has been a demand. It is the same as in an action against an acceptor of a bill, in which case it is not necessary to aver or prove any demand upon him prior to the action. It is however, I think, sufficient to say that this is substantially a guarantee for the payment of the price of goods. The next question, whether the verdict for the defendant is sufficient to bar the plaintiffs' judgment, or whether they are entitled to judgment non obstante veredicto, turns on the single point, whether a person who guarantees the payment of a bill drawn by the vendor of goods on the vendee for their price, puts himself in the same situation as the drawer of the bill. Because if so, then by the law-merchant he is entitled to insist that the bill should be duly presented to the acceptor, and that he should have notice of its dishonour (1). But I find no case by which a party so guaranteeing is put upon that footing. On the contrary, Warrington V. Furbor and Swinyard v. Bowes show the true distinction between *the case of a drawer and that of a party giving such a guarantee. The latter merely undertakes that the acceptor shall pay the bill; and he can only have a right to insist on notice of dishonour, when some damage would result to him from the want of it. No such damage is suggested in these pleas; and for these grounds I am of opinion that they contain no answer to the action, and that the plaintiff is entitled to judgment non obstante veredicto. COLTMAN, J.: I agree that this is a continuing guarantee, and that the terms "the following month," and "the preceding month," have a general application, and cannot be limited to any particular period. Upon the second question, I am also of opinion in favour of the plaintiffs. The facts appear to be as alleged in the fifth and sixth pleas, and they falsify the allegations in the declaration as to the presentment of the bill, and notice of dishonour. The declaration, therefore, cannot stand unless these allegations may be struck out. (1) See Bills of Exchange Act, 1882 (45 & 46 Vict. c. 61), ss. 45, 46.—--A. C. [*569] |