REG. v. HEAD AND THE METROPOLITAN BOARD OF Works.

first-mentioned Act, to levy the money required by them as aforesaid, which amount the Board of Works for the Fulham District, constituted by the said firstmentioned Act, were required by a precept of the said Metropolitan Board, made on the 6th Aug. 1858, and directed to and duly served upon the said District Board of Works, pursuant to the provisions of the said first-mentioned Act, to pay within the time and in the manner therein limited, and which amount the said Board of Works for the Fulham District had, before the appointment of me as aforesaid by the said Metropolitan Board of Works, made default in paying as required by the said precept."

And the assessment against which the appeal was made was in the following form :

Vol. 7.3
Q. B.]

THE LAW REPORTER.
REG. v. HEAD AND THE METROPOLITAN BOARD OF WORKS.

law, or by the practice of the separate Sewerage Com-
mission within the meaning of the 164th section of
the 18 & 19 Vict. c. 120, or the 76th section of the
11 & 12 Vict. c. 112, were properly rated.

The court of quarter sessions being of opinion that the apps. derived only half the benefit in respect of their mains and pipes as compared with other property in the parish, reduced the rate to one-half the amount, subject to a case for the opinion of this court. If the court should be of opinion that the court of quarter sessions were empowered to take into consideration the amount of benefit that accrued to the apps., or to make any reduction on that ground, the order reducing the rateable value of the said mains and pipes from 90l. to 457. is to stand; otherwise the original rateable value of 901. is to be retained.

The rate in question, the poor-rate, upon which it was based, and the Acts of Parliament, 11 & 12 Vict. c. 112, and 18 & 19 Vict. c. 120, are to be referred to as forming part of this case.

[Q. B.

dition as the sufficiently paved portions ought to be
borne by those parishes in which those unpaved or
insufficiently paved portions are situate; and it was
there decided that, if it appeared that the vestry or
district board had taken into their consideration the
special circumstances in raising the required money,
this court would not interfere with the exercise of their
discretion as to what amount they should direct the
overseers of the parishes to levy. Benefit is, by law,
the criterion of rateability. He referred to Callis, 222,
223. [CROMPTON, J.-It may be a question whether,
under the old state of sewer's law, the benefit to be re-
ceived did not refer to district, or locality, or area.]
The Imperial Gas Company is within the 164th
section. If benefit is a test of rateability, it follows
that the amount of benefit is a test of the amount of
It would be unjust that pipes should con-
rateability.
tribute to the sewerage of the metropolis at the same
rate as houses: (R. v. The Commissioners of Sewers
for the Tower Hamlets, 9 B. & C. 517.) [CROMPTON,
case of level, not of
J.-That, again, was
These mains and pipes are
individual rating.]
a new description of property, and there is no-
until recently,
thing to show that they were,
rated at all; it is for the Metropolitan Board of Works
to show an imperative rule of law which compels the
overseers to rate all property in the same proportion.
It is a principle in rating to sewers that the property
should contribute in proportion to the benefit derived
from the works. [COCKBURN, C.J.-I find no autho-
CROMPTON, J.-In the 163rd section
rity for that.

a

J. Clerk (Woollett and V. Richards with him) for the Imperial Gas Company.-The court of quarter sessions having found that the apps. received but half the amount of the benefit for their pipes and mains from sewers as compared with house property, were right in reducing the amount of the rate. These sewerage works are inore for sanitary purposes than for ordinary drainage, and owners of houses receive a much larger benefit than proprietors of pipes imbedded in the ground. [CROMPTON, J.-You say the rate is not to depend on the abstract value of the benefit derived, but on the immediate amount of benefit.] of the Act certain kinds of property are named which Yes. The 158th section of the 18 & 19 Vict. c. 120, are to be rated at a reduced rate, and then it gives the See the endprovides for the raising of money by vestries and dis- proportion. COCKBURN, C.J.-The cases in Callis trict boards for defraying their expenses; and then the are cases where no benefit was derived. 161st section directs how the rates are to be collected, less difficulty which would arise if in every case it was and provides for appeal against the rate; and the 163rd necessary to apportion the amount of benefit derived; But the section provides that land and garden and nursery it would be impossible to assess every particular house ground shall be assessed to one-fourth part of the net according to the amount of benefit received.] annual value of such land, clearly recognising the same nature of property may be taken; otherwise pasamount of benefit to be derived from the sewers as the ture ground might, under the 163rd section, be assessable criterion for assessment; and the 164th section provides to one-fourth the value, and pipes under the very same that all existing exemptions in respect of sewers rate land to the whole. All property of the same character shall continue to be allowed, and that section refers to must be rated according to the same value. [COCKBURN, 11 & 12 Vict. c. 112, s. 76, which latter section was C. J.-I should say it rather depends on the district. referred to by Lord Campbell, C. J., in his judgment A man might desire that his cowhouse should not be in Metropolitan Board of Works v. The Vauxhall drained, and therefore claim exemption. CROMPTON, J. Bridge Company, 26 L. J. 253, Q. B., and his Lord--I do not think the Vauxhall-bridge case was at all ship there says: "This section seems clearly to intimate that in rating, the benefit derived from the sewers by the property rated shall still be regarded. Further, the powers given to the commissioners with respect to district rates seem to have a special reference to the well-known rules of law respecting rates by commissioners of sewers, whereby property is to be assessed according to the benefit which it derives from the sewers" and his Lordship goes on to say that "the commissioners in considering whether the Vauxhall-bridge Company were liable to be rated, and to what amount, ought not to have considered merely the value of the property of the company as in making a poor-rate, but should have been guided by the benefit which they considered that this property derived from the sewers." It is true that in the present case the rate was not made by the overseer but by an assessor, under the 168th section, who is in all respects to take St. Botolph, Aldgate, v. the position of the overseer. The Board of Works for the Whitechapel District, 29 L. J. 228, M. C., decided that when under the Metropolitan Local Management Act parishes have been united in a district, the expense of keeping the pavements in repair, and expenses of cleansing and lighting, ought to be charged on each parish in proportion to its rateable value; and that, if some portions of the are insufficiently district are not paved at all, or paved, the expense of putting them into as good a con

directed to this particular point. I was one of the
court at the time, and this certainly was not present to
my mind. I think that case must be taken to have
reference to the level or district as determined by the
inclination of the ground. It is conceded that here
there is no exemption. COCKBURN, C.J.-We are not
bound by that case, and need not overrule it. The
difficulty is practically to apply a differential rating.]
The East London Waterworks Company v. The

Hamlet of Mile End Old Town, 29 L. J. 66,
M. C., was also cited.

Metcalfe (Hertslet with him) for the Metropolitan
Board of Works.-The case last referred to is not in point.
There there was an exemption by practice. The Vaux-
hall-bridge case is distinguishable from the present,
and that case has been qualified by subsequent de-
cisions. In the last paragraph of the judgment in that
case Lord Campbell says, "We must refrain from
giving any opinion as to whether benefit was derived
from the sewers by any or what part of the property,
which the commissioners must be fully competent to
determine;" showing that the question there was benefit
And it was there stated that the bridge
or no benefit.
was drained into the Thames, and therefore derived no
benefit from the sewers. [COCKBURN, C. J.-It is
difficult to say if the approaches derive benefit that the
bridge does not.] The old mode of rating to sewers
was to ascertain whether there was any benefit, and

Q. B.]

THE DUKE OF BEAUFORT v. THE EARL OF ASHBURNHAM.

[C. B.

if any, the property was rateable; but the later prac- (rates; the benefit might vary from time to time. The tice has been to rate property by districts or levels. meaning of Callis is with reference to the level, and Masters v. Scroggs, 3 M. & S. 447; Soady v. Wilson, not the use, and is in no way inconsistent with the 3 A. & E. 248, and other cases collected in Mr. Wool- | Vauxhall-bridge case, or with the Tower Hamlets rych's Metropolis Local Management Acts, 124, show case. Order quashed. that the benefit need not be direct; but there are no cases to show that property within the rateable district is exempt. The gas company do not claim exemption; they claim only a reduction or allowance. They have shown no practice to warrant such reduction; neither can it be supported in law. If it were intended that property should be rated according to benefit, the 163rd section of the Act would be unnecessary.

Stafford v. Hamston, 2 Bro. & Bing. 691;

Reg. v. Great Western Railway Company, 1 E. B. & E. 600;

Reg. v. Goodchild, 27 L. J. 233, M. C.; 1 E. B. & E. 1;

11 & 12 Vict. c. 63, 388;

Dorling v. The Epsom Board of Health, 24 L. J. 152, M. C.;

were also referred to. [He was stopped by the Court.]

COCKBURN, C. J.-I am of opinion that this order should be quashed. In saying so, I do not in the slightest degree impugn the doctrine laid down by Callis, that property can only be assessed to sewers rates if it derive benefit. Nor do I dispute the decision in the Vauxhall-bridge case. I adopt all that is there said by Lord Campbell, and it is to the same effect as the law as laid down by Callis, which must be taken to mean that an abstract benefit must be derived by the property rated. Much must depend upon whether the property is drained through works of drainage; and it is not so much a question of the purpose to which property may accidentally be applied. It may be that on the land which was pasture, or on which stood a hovel, a mansion has since been erected; but as soon as benefit is established, the title to exemption is gone. It is not an accidental or temporary user, but whether benefit is derived from the works; and when once you have established that, rateability follows, and rateability does not depend on degree when that is established. The amount which the Legislature has said is to be assessed is the rateable annual value of the property. Practically there are insuperable difficulties in the way of the differential principle, and the value may vary, as I have already pointed out. It is much more safe than inquiring into the precise amount of benefit to adhere to the principle I have referred to, and which, I think, is supported by the

authorities cited.

CROMPTON, J.-I am of the same opinion. The property is to be taken at the annual value as rated to the rate for the relief of the poor; then does this property come within the 164th section? I think it depends on the word "reduction;" now, we are to see whether there has been any reduction allowed here either by law or by practice of the Sewers Commissioners.

COURT OF COMMON BENCH. Reported by DANIEL THOMAS EVANS and W. MAYD, Esqus., Barristers-at-Law.

Jan. 13 and 17.

THE DUKE OF BEAUFORT v. THE EARL OF
ASHBURNHAM.

Costs- Taxation-Examination of aged and infirm
witness— Brief — Instruction for counsel-Search
for and translation of records and public documents—
Shorthand writer's notes of trial.

The costs of the examination of an aged and infirm witness, made in April, under a judge's order, lest he should die before the trial, which took place in July, and was attended by the witness, also those of a relative, who attended to take care of him, allowed to the plt., such examination being an act of prudence, justifiable under the circumstances. sum of one hundred guineas allowed for preparing a brief of forty-five sheets, containing proofs for thirty witnesses, notwithstanding 120l. was charged and allowed for abstracts and copies of documents which formed the substance of the brief. Con cessum―This was entirely in the discretion of the

A

master.

A sum of 401. allowed for searching for documents in the public records and translations thereof by a skilled witness.

The costs of shorthand writer's notes of the trial were disallowed.

Hance moved herein on behalf of deft. for a rule calling on the plt. to show cause why the master should not review his taxation. It was an action to try the right to property. The cause was partly tried at Brecon summer assizes, and lasting up to the day when the commission must be opened for Radnorshire at Presteige, the trial was suspended, and a day fixed by the judge in the month of October following for continuing it. In the meantime the deft. consented to a verdict against him for 40s. When the costs came to be taxed several items were objected to, and allowed by the master, there fore this application for a review of taxation was made on behalf of deft. The first item objected to was a sum of 371. 78. allowed as the costs of examining an aged and infirm witness several months before the trial, the ground for such examination being that his age and infirmities were so great that it was to be feared he might die before the trial. A judge's order had been obtained for the examination of this witness. He survived and attended the trial, accompanied by a relation, whose costs as the attendant had also been allowed. The It witness was not examined at the trial. These costs was almost admitted by Mr. Clerk that he could show it was contended ought not to be allowed, as the witnone such. There may be some particular districtness actually attended the trial. There has never been requiring a differential rating; that would seem to be a case where the costs of the separate examination so by the case of Rex v. The Commissioners of have been allowed when the witness has attended the Sewers for the Tower Hamlets, but that does not apply trial. If the examination were necessary as a matter to the user of premises, and I do not think the rate of precaution it was for plt.'s sole benefit, and the can be altered from time to time according to the user. costs should not be allowed between party and party. It is said, as this company does not derive so large an This examination might have been read, and amount of benefit from its pipes as other property does, thus the costs of attendance at the trial obviated. that the rate ought therefore to be reduced; but the true The next item objected to is a charge of 1051 meaning is, benefit with relation to the level in which allowed for preparing instructions for counsel. The the property is situate. I am not throwing doubt on brief was forty-five sheets, and there were thirty the exemptions mentioned in Callis-they are exemp- witnesses. It was contended that this sum was excestions, not reductions; neither do I dispute the Vaux-sive, the more so as 1217. was allowed for making hall-bridge case-it is clear the attention of the court in that case was called particularly to the district or level. I do not think the old cases were cases of annual

abstracts and copies of documents which in reality formed the instructions in the brief. It was admitted that this item was in the discretion of the master, but ought

THE LAW REPORTER.

ADAMS v. MACKENZIE.

Vol. 7.] C. B.] not to be allowed, together with the said sum of 1217. The third item objected to is a charge of 687. allowed in respect of a witness named Hulett, who had been employed to search in the public records and elsewhere That for documents, and for translating them. be allowed. was plt.'s evidence, and should not [ERLE, C. J.-When documents relevant to the issue between the parties are preserved in the public records. the plt. has a right to send experienced and skilled Such costs persons to search for and examine them. have always been allowed, and this item at least must stand.] The last item objected to is a charge of 18. for a copy of the shorthand writer's notes of the trial for the use of counsel. Now, if the plt. had a wish for the notes, he should gratify it at his own expense, not

at the cost of the deft.

ERLE, C. J.-We will consult Master Methold, and give an answer on a future day.

Jan. 17.-Honce asked if the court had consulted Master Methold?

ERLE, C. J.-Yes; we understand that the same point is pending in the Court of Ex., but have not yet had an opportunity of consulting the judges of that

court.

Hance. I have spoken to Master Walton, of the Court of Ex., and he advises me that the cases are totally

different.

ERLE, C. J.-This rule was moved on four grounds. Speaking in the first instance to the second item objected to, that was an allowance by the master of 1051. for preparing the brief, which was objected to as being too large. We have conferred with the master, and have seen the extensive preparations made by the attorney in getting up the brief, and we think it a reasonable charge. That item, therefore, will not be disturbed. The next complaint was, that about 40%. was allowed to Mr. Hulett for searching for and translating documents. Here the documents were records and papers in the Welsh language, relating to the manor respecting which the trial took place. They were documents pertinent to the matter in issue, and the services of a skilled translator were necessary; we think, therefore, the allowance admissible. first item objected to, namely, a sum of 371. and odd, for the examination of the old man in April last, lest he should die before July, when the trial was to take place, and did take place, and his costs of attendance at the trial, we had doubts, but, under the circumThe stances, we will not send it back to the master. question is, was the attorney justified in examining a very old and infirm man in the spring, lest he It was, undoubtedly, should die before the summer.

Saturday, Jan. 17.

ADAMS V. MACKENZIE.

[C. B.

Ship-Policy of insurance-Construction—Actual
or constructive total loss.
By a policy of insurance a ship was insured "against
total loss" only. She sustained damage to an extent
which amounted to a constructive total loss:

Held, that a constructive total loss was, equally with
an actual total loss, within the meaning of the
policy.

This was an action by a shipowner against an under-
writer on a policy of assurance for 1200l., effected on
the ship Susan, from Llanelly, in Carmarthenshire, to
Teignmouth or Exmouth, in the county of Devon. The
policy was expressly declared to be "against total loss"
only.

It appeared at the trial that, the vessel being old but and out of repair, she took in a cargo of coals at Llanelly and proceeded safely to Teignmouth river, where she was to discharge cargo and be repaired; that, when the tide fell, she dropped over on her side, and was so much injured that her repairs would cost more than her worth when repaired. The vessel was therefore sold for 310l., and an action brought upon the policy.

The cause was tried before Williams, J., at Exeter spring assizes. The jury found that there had been a constructive total loss, and gave a verdict for the plt.

M. Smith having in Michaelmas Term obtained a rule calling on the plt. to show cause why, there should not be a nonsuit against him, or a verdict entered for the deft. on the ground that a constructive total loss was not within the meaning of the policy,

Watkin Williams (Sir F. Slade with him) now showed cause against the rule.-If this were a policy no doubt that the plt. could have rein the usual form, being simply against a loss of the vessel, there covered upon it; and the question is whether, the words of the policy being restricted as against "total loss" only, and the jury having found that there had Is a constructive total loss one against been a constructive total loss, the plt. is here entitled which this policy is made? It is contended that it is. [ERLE, C. J.-The question here is, what is the meaning of "total loss" in this policy. It is purely a question of law.] The words used cover both kinds of He referred to total loss; that is, actual total loss and constructive total loss.

As to the to recover.

an act of prudence to secure his evidence; but
was it right to charge this to the other side?
We consider that the enactment which authorises a
judge to make an order for such an examination gives
It
directions that the costs shall be costs in the cause.
was in the judge's discretion to make an order in this
We are all of opinion
respect; but he did not do so.
that it was an act of prudence in the plt.'s attorney to
perpetuate such testimony, and therefore we will not
disallow it. The fourth claim in point of amount is
immaterial; but not so in point of principle. The plt. for
his own convenience had full copies made of the short-
We think this should
hand writer's notes at the trial.
be disallowed. It is a precaution which those parties
who deem it advisable to take should pay for. So far
the rule will go; but on the other grounds it is re-
Rule accordingly.
fused.

2 Arnould on Marine Insurance, 107, for the
definition of what is total loss;

Moss v. Smith, 9 C. B. 94; see judgment of Maule,
J. therein;

Roux v. Salvador, 3 Bing. N. C. 286.

M. Smith and Karslake in support of the rule.The underwriter here entered into a limited contract, and not the usual general contract of insurance on the ship. Policies generally are against partial or total loss; but partial loss is here excluded. The underwriter intended to exclude all question of repairs or event of an actual and entire total loss. The words constructive total loss, engaging only to pay in the were expressly intended to have operation only against absolute total loss. There has here been no total loss, except in the sense of a constructive total less, and that is not within the protection of the policy:

2 Arnould on Marine Insurance, 1086, par. 386, referring to a case in Moo. & R. 94. ERLE, C. J.-I am of opinion this rule should be discharged. I feel some difficulty in expressing my judgment. The question here raised is, whether this was a total loss of the ship within the meaning of the policy. The jury answered the question in the affirmative. The point is then brought before the court whether this was such a loss as is within the protection of the policy. Now, the policy is against

total loss, and it is clear there was a constructive total loss, and that we think is within the meaning of the policy. This being so, the rule will be discharged.

WILLIAMS, J.-I am of the same opinion. If the purpose of the insurer had been that which has been contended for by Mr. Smith, it would have been easy for him to protect himself by a better form of expression.

WILLES, J.-I am entirely of the same opinion. KEATING, J.-I concur with the rest of the court in holding that a constructive total loss is within the meaning of this policy. Rule discharged.

Monday, Jan. 19.

COOK AND OTHERS v. LISTER.

Bill of exchange.

The holder of an accommodation bill who has received part of the money due on the bill from the drawer cannot afterwards, in an action against the acceptor, recover the whole amount of the bill from him, but must give him credit for the amount already received from the drawer.

The following are the material facts of the case stated for the opinion of this court :

The plts. have been for many years before and since the year 1857 wool brokers, carrying on a large business in London and Liverpool, under the firm of Bradbury and Cook.

The deft. was, in the year 1857, carrying on a largs business as wool merchant, top manufacturer and machine wool comber, and otherwise, at Halifax, under the firm of S. C. Lister and Co.

Among other persons with whom the plts. had transactions in the way of their business, in and before the year 1857, were William Cheeseborough and Samuel Laycock Fee, who were then carrying on business at Bradford as wool staplers and merchants, or dealers in wool, under the firm of W. Cheeseborough and Son. The course of dealing between the plts. and Messrs. W. Cheeseborough and Son was that the plts. from time to time made purchases of wool for Messrs. W. Cheeseborough and Son, the terms of payment being generally cash at short dates; that the plts. advised Messrs. W. Cheeseborough and Son of the purchases and dates of payment, and that Messrs. W. Cheeseborough and Son before or on the day of payment remitted to the plts. the necessary amount in cash or drafts upon London bankers.

[C. B.

and accepted by the deft. for the sum of 20007., payable three months after date to the order of the drawers, indorsed by Messrs. W. Cheeseborough and Son to the plt. 24th Nov. 1857.

3. A bill of exchange dated the same 18th Nov. 1857, drawn by Messrs. W. Cheeseborough and Son upon and accepted by the deft. for the sum of 20007. payable three months after date to the order of the drawers, indorsed by Messrs. W. Cheeseborough and Son to the plts. on the 24th Nov. 1857.

4. A bill of exchange, dated the 28th Nov. 1857, drawn by Messrs. W. Yewdall and Son upon and accepted by the deft. for the sum of 5000, payable three months after date to the order of drawers, indorsed by Messrs. W. Yewdall and Son, to Messrs. W. Cheeseborough and Son, and by Messrs. Cheeseborough and Son to the plts., on the 30th Nov. 1857.

5. A bill of exchange, dated the 2nd Dec. 1857, drawn by Messrs. W. Cheeseborough and Son upon and accepted by the defts. for the sum of 30007., payable three months after date to the order of drawers, indorsed by Messrs. W. Cheeseborough and Son to the plts. on the 10th Dec. 1857.

6. Another bill of exchange, dated the 3rd Dec. 1857, drawn by Messrs. W. Cheeseborough and Son upon and accepted by the deft. for the sum of 750., payable at three months after date to the order of the drawers, indorsed by Messrs. W. Cheeseborough and Son to the plts. on the 10th Dec. 1857.

All these bills had been indorsed by Cheeseborough and Son to the plts. for value, but none of them were paid at maturity. On the 15th Dec. 1859 the deft. stopped payment, and on the 16th Cheeseborough and Son, and on the 17th Yewdall and Son did the same.

At the time of the suspension of Messrs. Cheeseborough and Son and Messrs. Lister and Co., bills of exchange drawn by Cheeseborough and Son, and accepted by Lister and Co., to the amount of 100,8717. 1s. 10d., and Messrs. Lister and Co. had only received consideration from Cheeseborough and Son to the amount of 57,8191. 18. 3d., so that Lister and Co., after paying the full amount of the acceptances, would be creditors of Cheeseborough and Son to about 43,000l., without taking into account any payments which Lister and Co. might be compelled to make to the holders of bills of exchange paid to them by Cheeseborough and Co., and not provided for by the previous holder. On the 9th June the following terms of arrangement were reduced into writing, between the deft. and the inspectors of Cheeseborough and Son's estate :

"It is understood between the inspectors of the estate of Messrs. Cheeseborough and Son on the one part and S. C. Lister on the other part, that the holders of bills on which the estates of W. Cheeseborough and Son and Edward Smith are liable, shall in respect of those bills take the share of the proceeds of E. Smith's wool in the hands of Cheeseborough and Son, to which under the order made by the Court of Bankruptcy at Leeds, in the matter of Cheeseborough and Son and Smith's bill holders, such bill-holders are entitled, and yet no claim shall be

Towards the end of the year 1857 a general commercial crisis occurred, and in the month of October or November in that year Messrs. W. Cheeseborough and Son applied to the plts. to receive bills of exchange instead of cash for part of the amount which they were bound to remit, and from that time until the middle of December Messrs. W. Cheeseborough and Son continued to make a large portion of their remittances by bills of exchange. Some of the bills so remitted were acceptances of other persons then running, which were in the hands of Messrs. W. Cheeseborough and Son, and which they indorsed. The plts. took the bills so remitted on account, crediting Messrs. W. Cheese-made by Cheeseborough and Son's estate for the repayborough and Son with the full amounts of them, and debiting them with the amounts paid by the plts. for discount on paying away or discounting the bills.

The six bills in question were accepted by the deft. for the purpose of being discounted in this manner, and were as follows:

1. A bill of exchange, dated the 12th Oct. 1857, drawn by Messrs. W. Cheeseborough and Son upon and accepted by the deft. for the sum of 1000l., payable three months after date, to the order of the drawers, indorsed by Messrs. W. Cheeseborough and Son to the plts. on the 16th Oct. 1857.

2. A bill of exchange, dated the 18th Nov. 1857, drawn by Messrs. W. Cheeseborough and Son upon

ment of any part of the amount to be so paid in respect of any bill or bills in which S. C. Lister and Co. are interested, and it having been ascertained by H. W. Blackburn, the accountant, that of the acceptances given by S. C. Lister and Co. to Cheeseborough and Son, the amount of 38,6847. 11s. 6d. only are legitimately proveable against the estate of Wm. Cheeseborough and Son to Lister and Co. after the firm of S. C. Lister shall have paid their own acceptances in full; and S. C. Lister now undertakes that he will ultimately provide for the whole of S. C. Lister and Co.'s acceptances of W. Cheeseborough and Son's drafts, with the exception of bills amounting to 38,6844. 11s. 6d., and that on all proofs against Cheeseborough and Son's