1810. BOWEN MORRIS. if the defendant in error may not sue on it, no one can; but the contract must fall to the ground. In the case of Thompson v. Piggot there was no contract made with the plaintiff. The cases of Unwin v. Wolseley and Macbeath v. Haldimand are anomalous cases of agreements made by persons contracting on behalf of the public, very different from the case of a private corporation. The case of Williams v. Millington, 1 H. Bl.81. is strongly with the defendant in error: there the auctioneer sold goods in the owner's house, and with the owner's name on the catalogues, yet it was held that the auctioneer was entitled to recover for the price. In Sadler v. Evans, 4 Bur. 1984., the reason why no action could be maintained against the agent, was, that the money had been paid over. In Frontin v. Small, 2 Ld. Raym. 1410. the lease itself was made by the attorney, who shewed on her declaration that she had no estate in her own name, and therefore void. It can make no difference whether the party assuming for the act of another be plaintiff or defendant; and if so, this case is not distinguishable from that of Appleton v. Binks. If the contract were read thus, that the defendant in error, for himself, and on behalf of the vendors, contracted, it clearly would be his individual personal contract, and the addition of the words on behalf of the corporation do not vitiate or make it the less his personal contract: those words were in Appleton v. Binks. The word mayor is only descriptive of the character of the contracting party: it does not alter the nature of the contract. The word himself is here used equivocally; but it does not mean that he, contracting on behalf of himself, in his corporate capacity, undertook to convey: it was not his intention to mix himself individually with the corporation: it is only that he, happening to be mayor at the time when he made this contract, and contracting in his individual character, undertook that the mayor, who happened to be [386] himself, and the rest of the corporation, should convey. [Mansfield, C. J. Supposing that he had made this contract without authority! Could not the buyer maintain an action against him?] Yes, ex delicto. As to the second point, that supposing this to be a personal contract, yet that being for the benefit of another, the party interested, and not the party contracting, is to sue upon it: it is by no means necessary, to enable him to maintain an action, that the benefit of the contract should result to himself personally; although it is not true that all the consideration passes, as it is said, from the corporation: for the de-. fendant fendant in error makes himself a stake-holder of the depositmoney; and, therefore, upon failure of the corporation to convey, liable to the holder in an action, which is a consideration. But the cases in which it is said to have been ruled that A., may sue upon a promise made to B. for the benefit of A., have been misunderstood, and are well explained by Eyre C. J. in 1 Bos. & Pull. 102. Feltmakers' Company v. Davis. "As to the case put at the bar of a promise to A. for the benefit of “B., and an action brought by B., there the promise must be "laid as being made to B., and the promise actually made to "A. may be given in evidence to support the declaration." If a charter-party be made under seal for the benefit of another, the agent who makes it is the only person who can sue thereon; and the ordinary case of policies, where the agent every day recovers sums from which he derives no personal advantages, shews that there is no difference in this respect between instruments under seal, and those which are not under seal. The third point is rather a breach of the first than a distinct question: for if the defendant in error subjects himself by his contract to a legal responsibility, that alone is a sufficient consideration. Cur. adv. vult. The judgment of the Court was delivered in the present term (a) by MANSFIELD C. J., deciding, that this contract did not bind the defendant in error personally; because he did not contract on behalf of himself personally, but on behalf of the corporation, that he acted merely as an agent; and although the corporation had not constituted the mayor their bailiff or agent by instrument under seal, so that he was not competent by that contract to bind the corporation, yet as the plaintiff in error signed it, perhaps the corporation might have sustained an action on this contract. In equity, a contract signed by one party would be enforced, and it was not clear that it was different in law. An action lies not against the known agent, who is in the light or state of a broker; and this case was within the same principle which governed the case of Macheath v. Haldimand. The judgment of the Court of King's Bench therefore must be Reversed. (a) The Reporter was not present at the time this judgment was delivered, but he was favoured with the substance of it by a gen- TIGHE 1810. BOWEN v. MORRIS. [ 387 ] 1810. May 28. If default be made in pay ment of the in terest on a bond, the principal whereof is not yet due, the Court will not stay proceedings on payment of the interest and costs. But semble, TIGHE V. CRAFTER. HIS was an action of debt on bond conditioned for pay Tment of a principal sum in 1815, and for payment of the interest in the mean time. And the action was brought on account of a default in paying the interest. *Shepherd Serjt. had, on a former day, obtained a rule nisi to stay proceedings, upon payment of the interest and the costs of the action. Lens Serjt. now shewed cause: the default in payment of that they would the interest renders the whole bond forfeited. restrain the execution to the interest and costs. *[ 388 ] The Court held that they could not stay the proceedings: the bond was forfeited: it might remain to see what should be done to restrain the execution, if the plaintiff should levy more than was fit. But there was no ground to stay the action. Rule discharged. May 28. ROBSON and WAUGH v. BENNETT and Another. By the practiceHIS was an action of assumpsit for goods sold and deli of the London bankers, if one banker who holds a check ther banker, Tvered by the plaintiffs to the defendants. Plea, the gene ral issue. The cause came on to be tried at the sittings for drawn on ano- London after last Michaelmas term, before Mansfield C. J., presents it after when a verdict was found for the plaintiffs, subject to the opinion of the Court, on the following case. four o'clock, it is not then paid, but a mark is put on it, to shew that the drawer has assets, and that ..For the purpose of discharging a balance due to the plaintiffs for coals sold and delivered, a check dated 11th September it will be paid; and checks so marked have a priority, and are exchanged or paid next day at noon, at the clearing house: Held, that a check presented after four, and so marked, and carried to the clearing house next day, but not paid, no clerk from the drawee's house attending, need not be presented for payment at the banking house of the drawee. Such a marking under this practice amounts to an acceptance, payable next day at the clearing house. It is not necessary to present for payment a check payable on demand till the day following the day on which it is given. A person receiving a check on a banker is equally authorized in lodging it with his own banker to obtain payment, as he would be in paying it away in the course of trade. Although in consequence thereof the notice of its dishonour is postponed a day, one day being allowed for notice from the payee to the drawer, after the day on which notice is given by the bankers to the payee. *[ 389 ] 1809, 1810. ROBSON v. BENNETT. 1809, drawn on the defendants' bankers Messrs. Bloxam, and signed by the defendant Bennett, was delivered to the plaintiff Waugh at the coal exchange on the same day between one and two o'clock in the afternoon. The coal exchange is situate in Lower Thames-street: the banking-house of Messrs. Bloxam was in Gracechurch-street, about 400 or 500 yards distant from the coal exchange: the counting-house and residence of the plaintiffs was in America-square, in the Minories, and the defendants resided at Wandsworth. The plaintiffs, in going from the coal exchange to their own bankers, Messrs. Harrison in Mansion-house-street, must pass by the house of Messrs. Bloxam. Business at the coal exchange begins at twelve o'clock at noon, and continues until two o'clock; and from two till three o'clock the coal-factors are engaged in entering the contracts of sale of the day, and the receipts on account of sales made on previous days, at the proper office in the coal exchange, as directed by the statute. A few minutes after four in the afternoon of 11th September the plaintiff Waugh lodged this check and four others in Messrs. Harrison's banking-house, in order that they might get them paid. . It is customary among bankers in London, in their dealings with each other, not to pay any check which is presented by or on the behalf of another banker, after four o'clock in the afternoon; but merely to give an answer to the person so presenting it, whether it is a good check or not: and in case the check is approved, a mark is made on it, either by the person presenting it, or the person who gives the answer. And a check so marked is considered as entitled to a priority of payment on the next day. The check in question was carried by [390] the porter of Messrs. Harrison, between five and six o'clock in the afternoon of the 11th of September to the banking-house of Messrs. Bloxam, and presented to Mr. W. Bloxam, one of the partners in the firm, who said it was a good check, marked it accordingly, and returned it. At 12 o'clock on the next day, the 12th of September, a clerk of Messrs. Harrison's carried the check to the clearing-house in the city, (at which time and place the clerks of the several bankers are accustomed to meet, for the purpose of exchanging and paying checks marked the day before,) in order to present it for payment according to their custom; but no person belonging to or on behalf of Messrs. Bloxam attended at the clearing-house during any part of that day. It is the course of dealing amongst bankers who are in possession of checks drawn upon other bankers, VOL. II. 2 B when 1810. ROBSON v. when they have been marked as before stated, to send them on. the day after they are due, to the clearing-house, to be there paid, or exchanged by the banker on whom they are drawn for BENNETT. other checks drawn on the banker presenting the same for payment. On the 11th of September the defendants had 4007. in the hands of Messrs. Bloxam; and Messrs. Bloxam continued their payments until the usual hour of closing business on that day, but stopped payment at 9 o'clock in the morning of the 12th of September, and did not pay any person on that day. The check in question was returned by Messrs. Harrison to the plaintiffs on the same day; and notice of the dishonour was given by the plaintiffs to the defendants on the morning of the next day, being the 18th of September, at Wandsworth. The question for the opinion of the Court was, whether the plaintiffs were entitled to recover: if they were, the verdict was to stand; but if the Court should be of opinion that the plaintiffs were not entitled to recover, then a verdict was to be entered for the defendants. [391] Shepherd Serjt. for the plaintiff, in stating the case, was interrupted by Mansfield C. J., who observed that the minute circumstances stated respecting the distance and relative situation of the places of abode and business of the parties could make no difference in the question: there must be general rules as to what shall be considered as a reasonable time for the presentment of bills: but according to the suggestions of this case it would be necessary for a man to carry a stop-watch in his pocket, in order to see whether he should have time to present a bill, or should keep it till the next morning.-Shepherd. The question is, whether the plaintiff has been guilty of any such laches in dealing with this check, either on the first day, or on the second, that he must now consider it as money, and must take it in pay. ment as such. This indeed is a question of law; but it is one that in some degree arises out of the facts of the general usage. A per. son who gives a banker's check, must be content that it shall be treated in the course of dealing usual with bankers; for he is discharged, if it is paid according to their usual course of payment. Messrs. Harrison could not have returned this check on the same day on which they took it, on the ground that the bill was not paid when first presented, nor could the plaintiff have instantly commenced an action on that account against the drawer, whose defence would have been, that he was only responsible in case the bill was not paid in due time by the drawee, who |