of a particular class sailing before a particular time; and the engagement to declare can only mean that as soon as an excess over 5,000l. has been taken by the plaintiffs' company, they will declare the name of the ship to which they apply the defendants' open policy, and the policy must attach as soon as the risk taken is so declared. And I do not think the defendants could get rid of their liability, even if it had been known that that risk had been lost at the time the policy was effected.

The appellants were apprehended and charged before Justices with setting fire to the letters in a pillar letter-box. Witnesses were examined in support of the charge, and the appellants were remanded on bail to appear again before the Justices. They did so appear and were represented respectively by attor nies, and were informed that they would be charged under section 52. of 24 & 25 Vict. c. 97; and the attornies were asked whether the appellants would plead guilty to such charge, or whether further evidence should be offered in support of the same. In answer to this they told the attorney for the prosecution that he must go on and prove his case, whereupon other witnesses were called and examined and cross-examined. After the case was closed, the attornies for the appellants objected that, the Justices had no jurisdiction, inasmuch as there was no information on oath, and the appellants were not found committing the offence, and therefore were not legally in custody. The Justices, however, committed the appellants :-Held, that they had jurisdiction to do so.

[For the report of the above case, see 34 Law J. Rep. (N.S.) M.C. p. 10.]

(5) See Henchman v. Offley, 2 H. Black. 345, n.

Guarantie, Continuing-Mortgage-Deed -Release of Surety.

In consideration of the plaintiff supplying C. with goods, the defendant agreed to be answerable up to 2001. for the price of goods supplied to C. at any time due to the plaintiff on an account current after two months' credit. Some time after, 3321. being then due from C. to the plaintiff for goods supplied, C. executed a mortgage-deed to the plaintiff as security for the then existing debt and for any future debt for goods to be supplied. The deed contained a proviso that if C. paid the plaintiff the 3321. in six months from its date, and all sums due for future supplies in six months from their date, without prejudice to the plaintiff's right not to give credit in respect of future supplies, the mortgaged premises were to be reconveyed to C. There was also a covenant to pay the existing debt in six months, and future debts within six months from their accruing due, without prejudice to the plaintiff's refusing to give credit for future debts. The parties in fact dealt on a two months' credit only. In the course of dealing C. paid off the 3321. A further debt exceeding 2001. having subsequently accrued, which C. could not pay, the plaintiff sued the defendant on the guarantie. The defendant pleaded that he was discharged by time having been given by the plaintiff to C.:-Held, reversing the judgment of the Court below, that by the mortgage-deed the plaintiff did not give time to C, except in respect of the 3321. debt, and that, as that debt had long been discharged, the giving that time did not prejudice the surety as to other and future debts due from C. to the plaintiff; and that, as in fact only a two months' credit was given by the plaintiff to C, the guarantie remained in force, and that the defendant was liable, up to 2001., on C's failure to pay the sum due in

* Decided in Trinity Term, coram Erle, C.J., Williams, J., Willes, J., Bramwell, B. and Channell, B.

respect of goods supplied by the plaintiff to C. subsequent to the mortgage-deed.

This was an appeal by the plaintiff against the decision of the Court of Queen's Bench on discharging a rule obtained by the plaintiff to set aside the verdict for the defendant, and to enter a verdict for himself for 2001.

The action was on a guarantie given to the plaintiff by the defendant for one John Crowther. The defendant pleaded, among other pleas, that a "deed was made between the plaintiff and Crowther without the consent of the defendant, whereby Crowther covenanted that he would pay the plaintiff the prices payable for goods supplied by the plaintiff to Crowther six months after the same became payable; that the goods were supplied on the terms, without the defendant's consent, that Crowther should have a longer time than two months' credit, viz. six months' credit; and that the plaintiff, without the defendant's consent, gave Crowther that time for payment."

The material question raised in the case was, whether there was any evidence that the plaintiff had discharged the defendant. from liability by giving Crowther a longer credit than two months without the consent of the defendant.

The guarantie, which was signed by the defendant and addressed to the plaintiff, was in these terms: "In consideration of your giving John Crowther until the 13th day of August next, for payment of 50l. 4s. he owes you, and of your supplying him in future with goods, I hereby agree to pay to you the said sum of 50%. 48. in case he does not, and I further agree to be answerable to the extent of 2007. that may be due to you at any time on current account and interest in respect thereof, after the expiration of two months' credit. As witness my hand this 13th day of June 1857."

The plaintiff supplied goods to Crowther on the terms of this guarantie.

In August 1858, Crowther being indebted to the plaintiff in 3321. 13s. 4d., and the plaintiff being desirous of obtaining further security for that debt and for any further supplies which he might make, and Crowther being anxious to obtain a

larger supply of goods on credit, a deed was, on the 28th of August 1858, executed between them, by which Crowther mortgaged certain premises to the plaintiff for securing the existing and any future debt which should from time to time become due from Crowther to the plaintiff on the balance of accounts. The deed contained the following clause: "Provided always; and the grant and assurance herein before contained are upon this express condition: that if the said John Crowther, his heirs, appointees, executors, administrators or assigns, shall pay unto the said Edward Bingham, his executors, administrators or assigns, the full sum of 3327. 138. 4d. sterling, with interest for the same after the rate of 5l. per cent. per annum, on the 28th day of February 1859 without any deduction, and also shall in like manner pay to the said Edward Bingham, his executors, administrators or assigns, all such further sum or sums of money as shall be owing to him or them by the said John Crowther, his executors or administrators, on the balance of account for goods sold and delivered by the said Edward Bingham, his executors or administrators, to the said John Crowther, or otherwise, for or on any other account, cause, matter or thing, at the expiration of six calendar months next after the date when any such further sum of money shall from time to time fall due or become payable (without prejudice nevertheless to the said Edward Bingham refusing to give or allow any future or further credit to the said John Crowther beyond or in addition to the sum in which the said John Crowther already stands indebted to the said Edward Bingham as aforesaid), together with interest thereon, at the rate of 5l. per cent. per annum, computed from the same date; then the said hereditaments and premises hereby granted and assured are to be re-conveyed unto the said John Crowther, his heirs and assigns." There was also this covenant: "And the said John Crowther, for himself, his heirs, executors and administrators, hereby covenants and agrees with the said Edward Bingham, his heirs, executors, administrators and assigns, that he the said John Crowther, his heirs, executors or admin

istrators, shall and will pay unto the said Edward Bingham, his executors, administrators or assigns, the full sum of 332l. 13s. 4d., with interest after the rate of 5l. per cent. per annum, upon the 28th day of February 1859, and also that if the said sum of 3321. 13s. 4d., or any part thereof, shall not be paid at the time aforesaid, he the said John Crowther, his heirs, executors, administrators or assigns, shall and will, so long as the same sum, or any part thereof, shall remain unpaid, pay to the said Edward Bingham, his executors, administrators or assigns, interest for the said sum of 3321. 13s. 4d., or so much thereof as shall remain unpaid, at the rate of 51. per cent. per annum, by equal half-yearly payments on the 28th day of February and the 28th day of August in each and every year without deduction; and also that if any further sum or sums of money shall hereafter become due and owing from the said John Crowther, his executors or administrators, to the said Edward Bingham, his executors or administrators, on the balance of account for goods sold and delivered to him or them by the said Edward Bingham, his executors or administrators, or otherwise, for or on any other account, matter or thing, to pay or at the expiration of six calendar months after the date when any such further sum of money shall from time to time fall due or become payable (but without prejudice to the said Edward Bingham's refusing to give or allow any future or further credit beyond or in addition to the sum now already owing to him by the said John Crowther or any sum that shall or may from time to time be so owing), together with interest thereon computed from the same date, at the rate of 51. per cent. per annum.

After the execution of the mortgage, the parties went on dealing as before; the plaintiff continually supplying goods to Crowther, and Crowther from time to time making payments. The items on each side were set down in an account current between them, shewing the receipts and payments. Only two months' credit was given. If goods were not paid for on two months after the delivery interest was charged on the price. It appeared by the account that, assuming that the sums paid by Crowther were applied in discharging and satisfying the older items in order of the plaintiff's

claim, the debt of 3327. 13s. 4d. had been paid long ago. The dealings and the account were continued to January 1861, and then shewed a balance due from Crowther to the plaintiff of 4177. 17s. 10d.

The case was tried, before Cockburn, C.J., without a jury. The learned Judge found for the defendant on the above plea, leave being reserved to the plaintiff to

move.

T. Jones, for the appellant, the plaintiff. -The plea that the plaintiff had entered into a deed giving Crowther six months' credit was not proved. The deed expressly provided that as to future supplies the plaintiff was not bound to give credit. The only credit given was as to the debt existing at the time of the deed. That was paid off long ago in the course of dealing. The balance now sued for accrued years after. There was, in fact, no alteration of the period of credit on which the goods were supplied. It remained a two months' credit as before the deed, unless, indeed, the deed has the effect of making it a six months' credit.

[WILLES, J.-Unless the deed renders a two months' credit impossible.]

The decision of the Court below was wrong, both in law and fact. The Court of Queen's Bench held that the deed, in effect, gave a credit, and that the goods supplied since the deed were on a different contract, which altered the position of the surety. There was no evidence of any such change.

[BRAMWELL, B.-In September 1859 all was paid up; therefore all the goods supplied in respect of which the claim is now made were after the mortgage-deed.]

The

Garth, for the respondent, the defendant. -The position of the surety was materially altered by the arrangement made by the mortgage-deed, between the principal and the debtor. It was clearly altered as to the payment of the 3327. 13s. 4d. payment of that debt was postponed for six months. The deed took off from Crowther the pressure to pay that debt. If so, the surety is released-Calvert v. the London Dock Company (1), Rees v. Berrington (2), The Bank of Ireland v. Beresford (3). [ERLE, C.J.-Assuming that the surety

is not bound as to the 3321. 13s. 4d., and that the contract discharges him as to that sum, is the guarantie void as to future supplies? Is the surety in a worse position as to the subsequent claim?]

If a surety may be prejudiced, that is enough to avoid a guarantie. It is not necessary he should be actually prejudiced. The arrangement made by the mortgagedeed allows the debtor to run more largely into debt. The mortgage-deed had the effect of putting an end to the guarantie wholly.

[BRAMWELL, B.-If the surety is once discharged from his liability for the current account, is he never to be liable again? The guarantie is, that the defendant will be answerable up to 2001. for sums at any time due.]

ERLE, C.J.-We have come to the conclusion that the judgment of the Court below must be reversed. The guarantie on which the action was brought was in respect of goods to be supplied on a two months' credit. From its date in June 1857 the plaintiff went on dealing with Crowther, without any change in the terms upon which they dealt, down to January 1861, the transactions being, according to the oral evidence, all along on a two months' credit. There was no change in the credit given, unless the deed created such a change. The mortgage-deed, it is true, would have prevented the plaintiff having recourse to the surety in respect of the debt, 3321. 13s. 4d., due at the time of the deed. But the paying off of that sum has prevented the mortgage-deed having any further operation in respect of that sum. The mortgage-deed was to be a security, not only for that debt, ut for payments to become due in respect of supplies after that time. It was to be a security collateral to and beyond the securities then held by the plaintiff. The proviso for re-conveying the premises to Crowther shews that the recourse of the plaintiff as mortgagee against the debtor under the mortgage-deed in respect of any sums was postponed for six months, though it seems to me to contemplate that the parties should go on dealing on the usual terms. The covenant to

pay at the end of six months does not merge the simple contract debt which had accrued. There is a remedy under the guarantie as well as a remedy under the mortgage. The stipulation that the deed is to be without prejudice to the plaintiff's refusing to allow any further credit, seems to me to shew that the deed was meant to be a collateral security leaving to the plaintiff all his rights. The defendant's counsel has argued that the guarantie is gone altogether as to the further debts, by reason of the terms of the mortgage-deed. But I cannot see that the surety's position is in any way prejudiced by these terms after the 3327. 13s. 4d. is paid. There is no authority to support the view contended for on the part of the defendant. The cases cited are not applicable. We are all of opinion that in respect of the matters for which the action was brought the mortgagedeed did not prejudice or alter the situation of the defendant as surety.

The other JUDGES concurred.

1864. Nov. 16.

Judgment reversed.

CARY(appellant) v. THE LOCAL

BOARD OF HEALTH OF THE
BOROUGH OF KINGSTON-
UPON-HULL.

Local Board-Public Health Act, 1848, (11 & 12 Vict. c. 63. s. 69.)-Levelling a Street.

By section 69. of 11 & 12 Vict. c. 63. if any street, not being a highway, be not levelled, paved, &c. to the satisfaction of the Local Board of Health, notice may be given requiring the owners or occupiers of houses fronting upon the same street to level, pave, &c., and in default of their doing so, the local board shall do it if they please, and may recover the expense from the owners, &c.:— Held, that the power given by this section only attaches where the particular street requires to be levelled, &c., looking at it as an isolated street; and therefore that where the local board had required the owner of a house to level the part of the street upon which his house fronted so as to make it on a level with other streets, they could not compel him to pay the money, which they had expended, upon his refusal to do the work.

[For the report of the above case, see 34 Law J. Rep. (N.S.) M.C. p. 7.]

Principal and Surety-Giving Time to Principal-Discharge of Surety.

T. P. & D. Price, coal masters, having stopped payment and having petitioned the Court of Bankruptcy, executed a deed which was assented to by the creditors and the Commissioner in Bankruptcy. The deed contained a proposal, that the business should be carried on under inspection; that the plaintiffs, who were creditors and parties to the deed, should be paid in full the sum of 8,7001, being the amount of bills discounted, but partly by instalments, the first to be made on the 31st of December 1860. The plaintiffs covenanted that they should bind themselves, "subject to the provisions thereinafter contained, not to enforce claims against any parties to the bills in their hands, who as between themselves and the petitioners were not then liable on such bills respectively, but that the right of the plaintiffs against all parties to the bills in their hands (whether liable or not to the petitioners as between the petitioners or any of them and such parties) should in no way be prejudiced in the event of the proposals made to the petitioners not being carried into effect, and also that in such case the plaintiffs should in all respects be entitled to claim the full amount then due to them after deduction of any sum in the mean time paid to them, notwithstanding their acquiescence in the proposals of the petitioners thereby made." The deed provided that the creditors in general should receive a composition of 10s. in the pound; that the business was to be carried on and that the proceeds were to be applied in paying the composition agreed upon; that the creditors, except as mentioned in the proposals, who should execute the deed and who should hold securities upon which any other person should be liable, should not be prejudiced as to their rights against such persons: provided that nothing contained in the deed should prevent the creditors, "other than as provided for in the said proposal," from enforcing their claims against the estate of T. P. & D. Price. At the time of the execution of the deed the plaintiffs

* The report of this case has been unavoidably delayed.

NEW SERIES, 34.-Q.B.

were holders of a bill of exchange accepted by the defendant for the accommodation of T. P. & D. Price, and they had no notice that the defendant was not liable to T. P. & D. Price, although they knew that some of the parties whose bills were in their hands were not primarily liable to T. P. & D. Price. The deed remained in full force, and time was given to T. P. & D. Price till the first instalment became due, which they failed to pay:-Held, that the effect of the deed was to give time to T. P. & D. Price, and that equitably the defendant was not liable on the bill so accepted by him.

The first count of the declaration was upon a bill of exchange drawn by John Price, accepted by the defendant, indorsed by John Price to certain persons designated by the name and style of T. P. & D. Price, and by them indorsed to the plaintiffs.

There were also counts for interest and upon an account stated.

The defendant pleaded pleas traversing the acceptance and indorsements. There were also pleas of never indebted and payment, and then came the sixth plea, which was as follows: "And for a sixth plea to the first count for defence on equitable grounds, the defendant says that there never was any value or consideration for the acceptance of the said bill of exchange by the defendant or for the making or indorsement thereof by the said John Price, or for the said John Price, or for the said T. P. & D. Price holding the same. And that at the time of the indorsement of the bill by the said T. P. & D. Price to the plaintiffs, the defendant and the said John Price were merely sureties on the said bill for the said T. P. & D. Price to the plaintiffs for any value given or to be given by the plaintiffs to the said T. P. & D. Price for the said bill, whereof the plaintiffs had notice when the said bill was first indorsed to them, and they took the said bill from the said T. P. & D. Price on the terms that the defendant and the said John Price should be liable to them on the said bill as sureties only for the said T. P. & D. Price; and after the indorsement of the said bill to the plaintiffs and whilst they were the holders thereof, and after the said bill had become due, to wit, on the 17th of November 1858, by an indenture then

G