now in question produced. In Phillips v. Warren (a),
it was held that payment of a bill by a third person, is
not evidence of payment by the acceptor. [Maule, J.
There, the bill was paid by one who thereby became
possessed of the holder's rights. Here, the payment, in
effect, is by a joint maker of the note. The note which
was discharged by Russell's payment, had been given to
the plaintiffs in satisfaction and discharge of Kentsh and
Smith's note. Lowe's note being paid, both are paid.
When the circumstances amount to payment, the proper
thing is to call it payment. Williams, J. Lowe's note
was given for and on account of Kentsh and Smith's
note. Payment of the former, therefore, was payment.
of the latter.] The mere giving a bill for and on ac-
count of a debt, is not payment: Griffiths v. Owen (b);
James v. Williams (c); Price v. Price. (d)
ing was in the very teeth of the evidence. (e)

The find

Mac Oubrey and R. Kettle, in support of the rule. The payment by Russell of Lowe's note, which had been given in satisfaction of the note originally given by Kentsh and Smith, and which payment the jury found

(a) 14 M. & W. 379. (b) 13 M. & W'. 58. (c) 13 M. & W. 828.

(d) 16 M. & W. 232.

(e) See Morley v. Culverwell, 7 M. & W. 174. There, the drawer of a bill of exchange, before it became due, agreed with the acceptor, that, on his giving a certain mortgage security for the amount, he, the drawer, should deliver up to him the bill of exchange as discharged and fully satisfied. The acceptor accordingly executed the mortgage, and received back the bill, un

cancelled. It was held, that the
drawer was liable on the bill, to
a party to whom the acceptor
afterwards indorsed it for value,
before it became due. And it
was further held, that a plea, in
such an action, that the bill was
paid by the acceptor before it
became due, and afterwards re-
issued by him without any new
stamp, could be supported only
by proof of actual payment in
cash, and not by evidence of any
arrangement between the drawer
and acceptor, whereby the bill
was treated as being satisfied.

1851.

THORNE

v.

SMITH.

1851.

THORNE

บ.

SMITH.

was made for the purpose of exonerating Smith, was
clearly admissible, and proved the plea. The indorse-
ment on Kentsh and Smith's note shewed an admission
on the plaintiffs' part of payment at all events to the
extent of 701.; and there was nothing to justify the
appropriation of the remaining 301. in the way they
claimed to appropriate it. [Maule, J.
[Maule, J. I do not under-
stand it to be denied on the other side that the transac-
tion amounted to satisfaction: it is suggested that it
should have been so pleaded, and not as payment.] In
Sinclair v. Baggaley (a), it was suggested by Alderson,
B., that a written paper, containing a statement of
mutual accounts between a creditor and a bankrupt, by
whom it was signed, and bearing date previous to the
bankruptcy, shewing a balance due to the creditor, was
evidence of payment, and not of set-off, and ought to be
pleaded as such. [Williams, J. There was a plea of
payment in James v. Williams (b), and the whole trans-
action was given in evidence under it.] This objec-
tion might have been, but was not, taken in Smart v.
Nokes. (c)

JERVIS, C. J. I am of opinion that this rule must be made absolute, to enter a nonsuit. The facts are these:

The plaintiffs, being the holders of the joint and several promissory note of Kentsh and Smith for 100l., received from one Lowe a promissory note of the like amount, in satisfaction and exoneration, as the jury find, -and the learned judge is not dissatisfied with their conclusion,-of Smith's liability upon the former note; and Lowe's note is afterwards paid by Russell. It is admitted, that, if Kentsh had paid the note, that would have been a good answer under this plea. And I think

(a) 4 M. & W. 312.
(b) 13 M. & W. 828.

(c) 6 M. & G. 911., 7 Scott, N. R. 786.

it is equally clear, that to have alleged all the facts as they occurred, would have been a mere circuitous mode of pleading payment. I think the evidence was admissible, and that a nonsuit must be entered.

MAULE, J. I have already sufficiently intimated my opinion, in the course of the argument.

CRESSWELL, J. I concur with the rest of the court in thinking that I was wrong in directing the verdict to be entered for the plaintiffs. I think the circumstances proved to the satisfaction of the jury, and to mine, clearly amounted to payment on account of Smith.

WILLIAMS, J., concurred.

Rule absolute, for a nonsuit.

1851.

THORNE

บ.

SMITH.

DOE d. BRABY V. ROE.

Jan. 28.

declaration

upon one of

WALFORD moved for judgment against the casual Service of a ejector, upon an affidavit of personal service as to and notice in the tenants of part of the premises, and, as to one room, ejectment, personal service of a declaration and notice upon one two jointSeabrook, who with one Proctor held the joint tenants, the notice being addressed to alone.

same as

Seabrook

tenants, the notice being addressed to

that one only, is

not sufficient.

1851.

DOE

d.

BRABY

V.

ROE.

MAULE, J. That will not do. The notice not being addressed to both the joint-tenants, there is no service as to both and you cannot take possession of an undivided moiety. The rule must go as to the other tenants only.

Rule accordingly.

END OF HILARY TERM.

THIS was an action upon the case by the indorsees The master of of a bill of lading, against the owners of a vessel, a bill of lading

to recover the amount of advances made by the former upon the bills of lading, the goods never having in fact been shipped.

The declaration stated, that, on the 17th of April, 1846, the defendants were possessed of a certain ship or vessel called the Belle, lying in the river Hooghley, at Bengal, being then bound for London, for the carriage of goods and merchandise, to be shipped on board, for freight to be therefor paid to the defendants; that thereupon the defendants gave to Messrs. Biale, Koch, & Co., being merchants and traders then in credit and carrying on business in Calcutta, a bill of lading, signed by the master of the said ship, who was then and there the

a ship signing

for goods

which have

never been shipped, is not to be consi

dered as the agent of the

owner in that

behalf, so as

to make the

latter responsible to one advances upon the faith of bills of lading so signed.

who has made