1 Com. B. 313 (E. C. L. R. vol. 50). There, a claimant having been. substituted for a defendant under an interpleader rule, Maule, J., said: "The same mischief exists in this as in all other cases where the action is brought by a foreigner resident abroad. Unless entitled to security, the claimant, if he succeeded, would be without remedy for his costs." That applies to a case where an unsuccessful plaintiff suggests error. In Haygarth v. Wilkinson, 12 Q. B. 851 (E. C. L. R. vol. 64), the defendant below brought error (under the old practice), and died after joinder; and the Court of Exchequer Chamber stayed the proceedings till security for costs was given to the defendant in error, it *ap[*831 pearing upon affidavit that the plaintiff in error had died insolvent, and that his attorney was prosecuting the writ of error at his own risk and for his own benefit. From this it appears that the same principle, as to requiring security for costs, prevails in proceedings in error as in proceedings in Courts of original jurisdiction. And in Lewis v. Owens, 5 B. & Ald. 265 (E. C. L. R. vol. 7), the Court of Queen's Bench ordered that the plaintiff in error, defendant below, should give security for costs, or else that the judgment might be enforced, it appearing that he resided in Ireland, and that the judgment below had been given on demurrer to a replication to a sham plea. The alternative there allowed would be unavailing here, because the parties on whose behalf the application is made are defendants in the Court below, where they have succeeded.

Karslake showed cause in the first instance.-No case has occurred where the plaintiff in the Court below, bringing error, has been compelled to give security. [POLLOCK, C. B.-The application is only for security for costs.] Here security has once been given; and fresh security cannot be asked for. That was held in Jones v. Jacobs, 2 Dowl. P. C. 442, (a) where the sureties had become insolvent. So in Kent v. Poole, 7 Dowl. P. C. 572, Patteson, J., refused to increase the amount of security for costs, fixed by the Master, on the ground that the amount would in fact probably be larger than that fixed. Again, the application is too late. The defendants have denied the error in law, which is equivalent to having joined in error under the *former practice. [JERVIS, C. J.-I do not see how they could apply earlier.] There is no precedent for this application. JERVIS, C. J.-It seems to be the opinion of the Court that this application should be granted, though we have no precedent. In three or four years this decision will constitute a precedent.

[*832

POLLOCK, C. B., MAULE, CRESSWELL, and CROWDER, Js., and ALDERSON, PLATT, and MARTIN, BS., concurred. Rule absolute.

(a) In the 2d line of the report there, it seems that "plaintiff" should be read for "defendant."

2 U2

JOHN STORM v. EDWARD STIRLING. June 1.

Defendant signed, and delivered to plaintiff, a written instrument, containing the following words: "nine months after date, I promise to pay to the secretary for the time being of The Indian," &c., "Society, or order, Company's rupees, twenty thousand, with interest at the rate," &c.; "and I hereby deposit in his hands twenty-two Union Bank shares," "by way of pledge or security for the due payment of the said sum of Company's rupees, twenty thousand, as aforesaid; and, in default thereof, hereby authorize the said secretary for the time being, forthwith, either by private or public sale, absolutely to sell or dispose of the said twenty-two Union Bank shares, so deposited with him; and out of the proceeds of sale to reimburse himself the said loan of Company's rupees, twenty thousand, and interest thereon, as aforesaid, he rendering to me any surplus which may be forthcoming from such sale. And I hereby promise and undertake to make good whatever, if anything, may be wanting over and above the proceeds of such sale, to make up the full amount of the said loan of Company's rupees, twenty thousand, and interest as aforesaid."

Plaintiff, at the time of the making and delivering of this paper, and thence forward continually till the expiration of the nine months, and ever since, had been secretary of the Society. An action having been brought by him against defendant, after the expiration of the nine months, as upon a promissory note, the declaration averring the plaintiff to have been and to be secretary as aforesaid, and the defendant having denied making the note:

Held, that the instrument was not a promissory note, the payee being uncertain at the time of the making.

Quare, Whether, independently of this objection, the promise by the maker to pay in default of the deposit making up the sum would have prevented the instrument from being a promissory note ?

FIRST Count. That, whereas defendant, on 10th March, 1845, in parts beyond the seas, to wit, at *Calcutta in the East Indies, *833] made his promissory note in writing, and thereby promised to pay to the secretary for the time being of The Indian Laudable and Mutual Assurance Society twenty thousand Company's rupees, with interest at the rate of six per cent. per annum, nine months after the date thereof, which period and the time for payment of the said note had expired before the commencement of this suit; and then delivered the said note to the plaintiff, who, at the time of the making of the said promissory note and from thence hitherto, was and is the secretary of the said Indian Laudable and Mutual Assurance Society: averment that the said sum of twenty thousand Company's rupees was and is of great value, to wit, of 20001. of lawful, &c. Breach: Non-payment. Plea to this: That defendant "did not make the alleged promissory note."

The plaintiff took issue on this plea. There were also other issues of fact.

On the trial, before Crompton, J., at the Middlesex sittings in Michaelmas Term, 1853, a special verdict was found; of which the parts now material were as follows.

As to the first issue. That the defendant, at a certain place, &c. (as in the declaration), made and signed, and delivered to the plaintiff, a document in the words and figures following, that is to say:

"C. 20,000.

"Calcutta, 10th March, 1845. "Nine months after date, I promise to pay to the secretary for the

time being of The Indian Laudable and Mutual Assurance Society, or order, Company's rupees, twenty thousand, with interest at the rate of six per cent. per annum. And I hereby deposit in his hands twentytwo Union Bank shares, as particularized at foot, *by way of [*834

pledge or security for the due payment of the said sum of Company's rupees, twenty thousand, as aforesaid; and, in default thereof, hereby authorize the said secretary for the time being, forthwith, either by private or public sale, absolutely to sell or dispose of the said twentytwo Union Bank shares, so deposited with him; and out of the proceeds of sale to reimburse himself the said loan of Company's rupees, twenty thousand, and interest thereon, as aforesaid, he rendering to me any surplus which may be forthcoming from such sale. And I hereby promise and undertake to make good whatever, if anything, may be wanting over and above the proceeds of such sale, to make up the full amount of the said loan of Company's rupees, twenty thousand, and interest as aforesaid. EDWD. STIRLING."

(Then followed the numbers of the shares.) "No. 33, Due 10/13 Dec. /45."

That The Indian Laudable and Mutual Assurance Society, in the said document mentioned, is The Indian Laudable and Mutual Assurance Society within in the declaration mentioned; and that the plaintiff, at the time of the making of the said document, and from thence until the time of the commencement of the within mentioned action, was the secretary of the said Society. That the name Edward Stirling, set and subscribed to the said document, is of the proper handwriting of the defendant. That the said sum of twenty thousand Company's rupees, at the time of the making of the said document, and when the same became due, was of the value of 2000l. of lawful money of Great Britain. The special verdict then left the first issue to the Court in the usual form. The findings on the other issues were immaterial to the question now decided.

*The case as to the first issue was argued in last Easter Term.(a)

[*835

Lush, for the plaintiff.-The document is a promissory note. Two objections will be made. First, it will be said that the promise to make good any sum by which the produce of the shares may fall short of the twenty thousand rupees qualifies the original promise, and destroys its character of promissory note. But such an additional engagement has not the effect suggested. In Wise v. Charlton, 4 A. & E. 786 (E. C. L. R. vol. 31), an instrument, which in other respects was a promissory note, contained a statement that the maker had deposited certain title deeds as an additional security for the sum which he promised to pay and it was held that this was a promissory note on which the endorsee might sue the maker; Patteson, J., saying that this instru

(a) May 5, 1954. Before Lord Campbell, C. J., Wightman and Crompton, Js.

ment was not the less a promissory note from its being also an agreement of another kind. Fancourt v. Thorne, 9 Q. B. 312 (E. C. L. R. vol. 58), is to the same effect. [WIGHTMAN, J.-The promisee here was not bound to have recourse to the shares.] He was not: if that had been a necessary step, perhaps the case might have been like that of an instrument containing a promise to pay money and do another act; it seems, from Follett v. Moore, 4 Exch. 410,† that such an instrument would not be a promissory note. The engagement is not then satisfied by the mere payment of the money. Here the promise has an immediate unqualified right to demand the money at the end of the nine months; and the mere payment discharges *the promissor. Be*836] sides, the promise to pay the deficiency is no more than the law would imply from the deposit and the debt: the addition therefore goes no further than a mere recital of the fact of the deposit. There is no fresh consideration. Secondly, it will be objected that the party to whom the promise is made is not a designated individual. But the fair meaning of the undertaking is, to pay to the plaintiff, described as being the secretary at the time, if he should be secretary at the maturity of the note. [Lord CAMPBELL, C. J.-That might be so, if the promise were simply to pay to the secretary, without the addition of the words. "for the time being." But, even supposing that the meaning, is an instrument with such a conditional promise a promissory note?] A promise to pay S. W. and S. D., "stewardesses for the time being of The Provident Daughters' Society," "or their successors in office," was held, in Rex v. Box, 6 Taunt. 325 (E. C. L. R. vol. 1), to be rightly described, in an indictment for forgery under stat. 2 Geo. 2, c. 25, s. 1, as a promissory note. [Lord CAMPBELL, C. J.-The persons were there designated. CROMPTON, J.-The Court seems to have rejected the words or their successors in office," because there could be no such successors.] The mention of the name makes no difference. In Megginson v. Harper, 2 Cr. & M. 322,† the instrument purported to be a "promise to pay to the trustees acting under the will of" W. B.; and it was treated as a promissory note. [Lord CAMPBELL, C. J.—Is not this a promise to pay the person who shall be secretary at the maturity of the note?] It is payable to order: the plaintiff might have endorsed over at once. [CROMPTON, J.-If he did not do so, would not *837] the *successors, supposing it a promissory note, be entitled to endorse it over?] There were no such persons in existence: supposing even that the note is not negotiable at all, the action on it must have been brought by the plaintiff, even if he had quitted office. [Lord CAMPBELL, C. J.-The parties clearly did not mean that.] The deposit of the shares is into the hands of the plaintiff; he, "the said secretary for the time being," is to sell the shares "so deposited with him." There is no uncertainty as to the payee in the sense in which the instrument in Blanckenhagen v. Blundel, 2 B. & Ald. 417, was un

certain, where the promise was to pay to J. P. D. or to the plaintiffs. [Lord CAMPBELL, C. J.-Suppose I make a written promise to pay to the person who shall be lord mayor next year.] That might not be a promissory note. [Lord CAMPBELL, C. J.-The promise would be to pay to the lord mayor for the time being.] There is no uncertainty on the face of the instrument. The promise here is either to pay to the actual secretary, the plaintiff, or to a person not in being; and on the last alternative, it is a promissory note payable to the bearer.

Willes, contrà.-As to the objection last discussed. The promise is to pay to the person who shall be secretary at maturity: and the case therefore is not within stat. 3 & 4 Ann. c. 9, s. 1, which includes only promises to pay to any "person or persons, body politic and corporate, his, her, or their order, or unto bearer." Independently of the statute, the action on a note would not lie, according to Lord Holt.(a) In Colehan v. Cooke, Willes, 393, 397, where the particular instrument in question *was held to be within the statute, Willes, C. J., explains [*838 some of the cases in which it had been held that the statute was not applicable, saying: "they are all of them cases where either the fund out of which the payment was to be made is uncertain, or the time of payment is uncertain and might or might not ever happen. Now here any one, not the plaintiff, might be secretary at the maturity, in which case, according to the interpretation suggested on the other side, the payment would not be made: indeed the defendant might himself become secretary. In Megginson v. Harper, 2 Cr. & M. 322,† the payees were sufficiently and certainly designated by the reference to the will. In Rex v. Box, 6 Taunt. 325 (E. C. L. R. vol. 1), the payees were named; but there was, in addition, an attempt to give a sort of corporate succession; and this part of the note was rejected. [WIGHTMAN, J.-Suppose it appeared sufficiently certain here who would be secretary when the note became due.] It is possible to conceive a case of that sort, in which the note might be within the statute: perhaps it might be so in the case of a note promising to pay "The Chamberlain of London," who is a corporation sole for some purposes, in his corporate capacity. [WIGHTMAN, J.-Suppose it payable to the secretary of the Chamberlain of London for the time being.] That would not be a good promissory note. It is suggested that the note may be treated as payable to bearer; but this is not, as in Gibson v. Minet, 1 H. Bl. 569,(b) the case of a fictitious payee; nor, as in Norton v. Ellam, 2 M. & W. 461,† of no payee being mentioned. Besides, the declaration *does not treat the note as payable to the bearer: it is not alleged that the [*839 plaintiff is the bearer; but it is alleged that he was secretary at the time of the making, and is so still that is, the note is treated as payable to the person, whoever it might be, that should be secretary when

(a) Clerke v. Martin, 2 Ld. Raym. 757.

(b) In Dom. Proc., affirming the judgment of K. B. in Minet v. Gibson, 3 T. R. 481. VOL. III.-65

1