1850.

BUCKLEY

v.

HANN.

for 121. 48. The defendant, who resided at Greenwich, in the county of Kent, was a clerk in the Admiralty, and, as such clerk, daily attended at the office called "The General Register and Record Office of Seamen," No. 70, Lower Thames-street, in the city of London, and he had no other occupation or business. The plaintiff resided at Edmonton, in the county of Middlesex, and the bill in question was drawn and accepted, and Wood put his name upon it, at the office No. 70, Lower Thames-street, and it was then sent by a messenger to the residence of the plaintiff, who received it there.

J. Brown, in last Michaelmas Term, (November 26) shewed cause. First, the defendant did not carry on his business within the city of London. A clerk, who merely attends at an office in the city, cannot be said to "carry on his business" there, within the meaning of the 10 & 11 Vict. c. lxxi. The word "business" is used in its popular sense, as denoting "trade or business," and it is evident, from the word "dwell," that the meaning of the statute is, that if the defendant shall not reside within the city, it shall be sufficient if he carries on his trade or business there. The words of the London Court of Requests Act, 39 & 40 Geo. 3, c. civ, were, "residing or inhabiting within the city of London or the liberties thereof, or keeping any house, warehouse, shop, shed, stall, or stand, or seeking a livelihood, or trading or dealing within the same city or liberties;" and it was held, that a clerk in the Excise Office, who attended at the office in the city for certain hours every day, and who had no other means of obtaining his livelihood, was not a person "seeking a livelihood" in the city, within the meaning of that Act: Smith v. Hurrell (a). In Rolfe v. Learmouth (b), the Court of Queen's Bench held, that the deputy-sealer of writs in

(a) 10 B. & C. 542.

(b) 19 Law J., Q. B., 10.

the Court of Chancery, whose duty it was to attend the Lord Chancellor when sitting at Westminster, and affix the Great Seal to instruments, was not a person carrying on his business at Westminster, within the meaning of the County Court Act, 9 & 10 Vict. c. 95.

Secondly, under the 10 & 11 Vict. c. lxxi, the whole cause of action must arise within the city of London, which is not the case here. In that respect the 10 & 11 Vict. c. lxxi, differs from the 9 & 10 Vict. c. 95, s. 128, the words of which are, CL or where the cause of action did not arise wholly, or in some material point, within the jurisdiction of the court," &c. This bill was drawn and accepted within the city of London, but was delivered to the plaintiff in the county of Middlesex. There was no complete indorsement until delivery: Marston v. Allen (a).

W. L. Thomas, in support of the rule.-It is sufficient if any part of the cause of action arose within the city of London. There is a primâ facie case which will justify the entry of a suggestion, which may be afterwards traversed: Butler v. Corney (b). The defendant had no other occupation, and performed all the duties by which he gained his livelihood within the city of London.

PARKE, B.-The statute requires the cause of action, that is, the whole cause of action, to arise in the city. In this case it did not: until the bill was delivered to the plaintiff, no cause of action arose from the indorsement to him. sider.

Upon the other point we will take time to con

Cur. adv. vult.

PARKE, B., now said:-This was an application to enter a suggestion to deprive the plaintiff of costs, and the case depends upon the meaning of the term "carry on business," in the London Small Debts Act, 10 & 11 Vict. c. lxxi, ss. 40, (6) 2 Exch. 474.

(a) 8 M. & W. 494.

1850.

BUCKLEY

v.

HANN.

1850.

BUCKLEY

V.

HANN.

113. The question was, whether a clerk in the Admiralty, whose duty it was to attend at a place in the city in that department, was a person carrying on business within the limits of the city. A similar question has been under the consideration of the Court of Queen's Bench, with respect to the County Courts Act, 9 & 10 Vict. c. 95, and they have held, that the deputy sealer of writs in the Court of Chancery is not a person who carries on his business in any definite locality. In like manner, it cannot be considered that a clerk who attends at an office in the city carries on some independent business there, so as to be within the meaning of the Act in question. The rule will therefore be discharged.

Rule discharged.

Feb. 11.

To an action on

a bill of ex

change by the

the executrix of

Moss v. HALL AND WIFE.

ASSUMPSIT―The first count of the declaration was

by the plaintiff as indorsee of a bill of exchange for 251., indorsee against drawn by one W. Vanderstean (to whom the female defendant was executrix), upon and accepted by one James Osborne. Plea (inter alia) to the first count, that after the bill became due and payable according to the tenor and

drawer, the defendant pleaded, that after

the bill became

due, and in the lifetime of the drawer, it was

effect thereof, and before the commencement of the suit, and agreed between in the lifetime of the said W. Vanderstean, to wit, on &c., the plaintiff,

then the holder it was agreed by and between the plaintiff, then being the

of the bill, and

the acceptor,

without the authority or consent of the drawer, "that, for a good and sufficient consideration in that behalf, that is to say, that in consideration that the said J. O. (the acceptor) would, during a certain reasonable time, to wit, during the space of one month from the day and year last aforesaid, use his best endeavours to procure a new and approved negotiable bill of exchange to be taken by the plaintiff if satisfactory to him, in lieu and substitution and for and on account of the said bill, he the plaintiff would, for and during the period aforesaid, abstain from and forbear enforcing payment from J. O. of the said bill by proceedings at law or otherwise." The plea then averred, that in pursuance of the said agreement, the said J. O. did during the said period use his best endeavours, &c., and concluded by alleging, that the plaintiff gave time to the acceptor without the consent of the drawer; and that the drawer had never ratified the agreement.-Verification. Replication, de injuriâ:—Held, on general demurrer, that the plea disclosed a sufficient consideration for the holder's promise to suspend the action against the acceptor, and that the surety was thereby discharged-Held, also, on special demurrer, that the replication de injuriâ to this plea was bad.

holder of the said bill, and the said James Osborne the acceptor, without the authority or consent of the said W. Vanderstean, that for a good and sufficient consideration in that behalf, that is to say, that the said James Osborne would, during a certain reasonable time, to wit, during the space of one month from the day and year last aforesaid, use his best endeavours to procure a new and approved negotiable bill of exchange to be taken by the plaintiff, if satisfactory to him, in lieu and substitution and for and on account of the said bill, he the plaintiff would, for and during the period aforesaid in this plea mentioned, abstain from and forbear enforcing payment from the said James. Osborne of the said bill in the first count mentioned, by proceedings at law or otherwise; and that, in pursuance of the said agreement, the said James Osborne did, during the period last aforesaid, namely, in the space of one month from the day and year last aforesaid, use his best endeavours to procure a new and approved negotiable bill of exchange, to be taken by the plaintiff, if satisfactory to him, in lieu and substitution, and for and on account of the said bill. The plea then averred, that the plaintiff, without the consent or authority of W. Vanderstean, gave time to the said James Osborne, to wit, for the period aforesaid, for the payment of the said bill, and that the said W. Vanderstean never ratified the said agreement.-Verification. Replication, de injuriâ. Special demurrer.

The plaintiff, in his points for argument, stated he should contend that the plea was bad.

The demurrer was argued in last term (January 18) by

Lush, in support of the demurrer.-The replication is clearly bad. The plea does not set up any excuse for nonpayment by the defendants. The subject matter of the defence, as it appears, arose after the bill had become due and payable. It therefore does not set up matter in excuse for the breach of the promise, but is in the nature of a discharge.

1850.

Moss

V.

HALL.

1850.

Moss

v.

HALL.

H. Hill, contrà.-The replication cannot be defended; but then the question arises, whether the plea is good. It is bad, on the ground that it does not state any sufficient consideration for the supposed agreement. The agreement, therefore, was not binding upon the principal, and the surety was not released by it. Thus, in Philpot v. Briant (a), where the executor of the acceptor of a bill of exchange orally promised to pay the holder out of his own estate, provided the holder would forbear to sue, and, in consequence of that arrangement he did forbear, it was held that, the promise being void, the drawer of the bill was not thereby discharged. Many other authorities might be adduced, which are founded upon that principle. [Parke, B.— The consideration might be sufficient, if the party agreed to take substantial trouble in obtaining a new negotiable instrument, and not merely to lie by. In such case personal trouble would be the consideration.]

Lush, in reply.-The plea is good. The question is, whether the plea, upon general demurrer, states a binding agreement. Now it is clear that, in an action upon an agreement, the consideration is sufficient to support the action, where a benefit is conferred upon the defendant, or the plaintiff is put to any inconvenience or trouble. Unless, therefore, it distinctly appears upon this plea that the consideration alleged had no such operation, the plea is good. A fresh negotiable bill may be of great benefit to the one party, and the other party may be put to great trouble in endeavouring to obtain it. The Court cannot say that, under all circumstances, this consideration, and, consequently, the agreement, is a mere nullity.

The Court recommended the plaintiff to amend, and the case stood over to give him that opportunity. But

(a) 4 Bing. 717.