the costs of the trustees to be charged upon the corpus of the fund. He also cited In re Turnley, 35 Law J. Rep. (N.S.) Chanc. 313; s. c. Law Rep. 1 Chanc. 152. There were special circumstances in this case why the costs should be thrown upon the corpus, because the fund had not been divided between the parties entitled, but had been paid in to a general account, and this petition amounted in fact to a partial administration of the fund. LORD JUSTICE JAMES (without calling for a reply) said the practice of the Court had been conclusively settled by In re Marner's Trusts (ubi supra), where the rule that in cases like this the costs were to be paid out of income, was laid down by Kindersley, V.C., after discussion with all the Equity Judges, the Lord Chancellor (Cranworth) giving up the view he had before taken in In re Turnley (ubi supra). That rule had been followed by a great number of Judges, and by him. self in In re Whitton's Trusts (ubi supra). The Master of the Rolls in In re Smith's Trusts (ubi supra), stated that he always adopted that rule. Vice Chancellor Malins had disagreed with it, but where there was an established practice the opinion of one Vice-Chancellor, or even of that Court, ought not to be allowed to alter it. It seemed to him that the rule adopted was the best. The tenant for life would know that he had to pay all the costs, and with that knowledge he and his solicitor would be likely to obtain payment to him of the income in a less luxurious and less expensive manner than if the costs were thrown upon the corpus. He thought that the rule laid down In re Marner's Trusts (ubi supra) was intended to apply to the whole of the costs of the petition and not merely to the costs of the trustees. A tenant for life seeking only to affect the income might give notice to the trustees that he was not seeking to deal with the corpus, and that their appearance upon the petition was unnecessary. If the trustee appeared after such a notice he would probably find his costs not provided for either out of income or out of capital. He had no right in such circum stances to appear. It had been said that there were special circumstances here for payment of the costs out of the corpus. If the petition had asked for a division of the fund into moieties the petitioners might perhaps have obtained the costs out of the corpus, on the ground that they were dealing with the corpus. As it was, the order of the Vice-Chancellor must be varied by directing the costs of all parties to the petition to come out of the income belonging to the tenants for life. There would be no costs of this appeal. LORD JUSTICE MELLISH Concurred. Solicitors-Messrs. Hooke & Street, for appellants; Messrs. Tanqueray Willaume & Hanbury, for respondents. BACON, V.C. 1872. March 8. Arbitration GUMM V. HALLETT. Common Law Procedure Act, 1854, s. 13-Sole Arbitrator. A submission to reference provided for the appointment of one arbitrator by each party, and the appointment of a third by the first two arbitrators :-Held, that the Common Law Procedure Act, 1854, s. 13, did not apply. The testator in this cause chartered a ship to Messrs. Tait & Co. in May, 1868. The charter-party contained the following arbitration clause- "That should any dispute arise between the owners and the charterers, the matters in dispute shall be referred to three persons at London or Liverpool, one to be appointed by each of the parties hereto, and the third by the two so chosen, their decision or any two of them shall be final, and for the purpose of enforcing any award this agreement may be made a rule of Court." Disputes arose, and Messrs. Tait & Co. appointed an arbitrator, but the testator did not. Messrs. Tait & Co. proceeded before the arbitrator appointed by themselves alone and obtained an award. This was a claim founded on that award. Mr. Little and Mr. H. M. Jackson, for the claim, contended that the reference was in spirit the same as to two arbitrators, one chosen by each party, and therefore, under the Common Law Procedure Act, 1854, s. 13, on default to appoint by one side the other side could proceed before his own arbitrator. Mr. Kay and Mr. W. F. Robinson, contra, said this was a reference to three and not to two arbitrators. Mr. Cracknall for a defendant. BACON, V.C., was of opinion that the award was inoperative, as the arbitration clauses of the Common Law Procedure Act, 1854, did not apply when the reference was to more than two arbitrators. He dismissed the summons, but directed a sum to be carried over to a suspense account to meet Messrs. Tait's claim, in case they were able to establish it independently of the award. Solicitors-Messrs. Simpson & Cullingford, for claimants; Messrs. Lawford & Waterhouse, for defendants. MALINS, V.C. 1872. Jan. 25. BURGESS v. EVE. Guarantie Agreement under SealContinuing Guarantie-Withdrawal. A father gave his son a promissory note for 2,000l., which was endorsed by the son, and discounted by a banking company, who took from the father an agreement under seal, that in consideration of their discounting the note, certain deeds of the father's deposited at the same time should remain a security for all money due or to become due from the son to the company on any account whatsoever. At the date of the agreement the son owed the company 3,0001. upon a running account, and the amount was subsequently increased to 5,0007. father having died, it was, under the circumstances, held, in a suit to administer his estate, that the agreement was a continuing guarantie, and that the bank were entitled to prove against the father's estate, The not only for the 2,000l., the amount of the note, but for all sums due to them from the son. For due cause a guarantie may be withdrawn, although under seal, upon payment of all sums due thereunder at the date of the notice of withdrawal. Adjourned summons. In a suit to ad minister the estate of Edwin Maaers, deceased, a claim was carried in by the London and County Banking Company under the following circumstancesEdwin Maaers and his son, W. H. Maaers, who was in business, each kept a banking account with the Shoreditch branch of the above-named bank, and in the month of March, 1870, William Henry Maaers had overdrawn his account to the extent of 3,000l. To enable him to obtain more money, his father gave him his promissory note for 2,000l., which the son endorsed. The father also deposited certain deeds with the bank, and the bank discounted the promissory note, taking from Edwin Maaers the following guarantie, which was under seal, and dated 21st of March, 1870 "To W. McKewan and W. J. Norfolk, Esqrs., public officers of the London and County Banking Company. "Gentlemen-In consideration of your discounting for Mr. William Henry Maaers my promissory note to him for 2,0007., dated this day, and payable four months after date, and of the sum of 5s., the receipt of which I hereby acknowledge, I deposit with you the several documents mentioned in the schedule hereunder written, which I agree shall remain with you or other the public officers for the time being of the said company, as security for the payment to you or such other public officers as aforesaid, of all money due or to become due from him to the said company, of whatsoever members or proprietors it shall from time to time consist, on any account whatsoever, including all charges for interest, commission, and all costs, charges and expenses which you may incur in enforcing or obtaining payment of such money, or in realising this or any further security. And I agree to pay you or such public officers aforesaid, upon demand, all such money. And I hereby charge the hereditaments and premises comprised in such documents respectively, and all fixtures now or hereafter thereon, with the payment thereof." It appeared from the evidence that this agreement, which was on a printed form, was read over to and understood by Edwin Maaers before he executed it, that he executed it in order to procure the advance for his son, and that after executing it he had from time to time inquired both of the bank and of his son how much he was liable for under it. W. H. Maaers became indebted to tho bank to the amount of about 5,000l., and was adjudicated bankrupt; and his father having died, the bank carried in their claim in this suit for the entire sum owing by W. H. Maaers. Mr. Glasse and Mr. W. W. Cooper, for the bank. It is clear upon the face of the guarantie that it was intended to be a continuing guarantie for all sums which were at the time of its date, or might at any time thereafter, become due from W. H. Maaers to the bank. Similar language has been held to constitute a continuing guarantie in and Hitchcock v. Humfrey, 5 Man. & G. 559; s. c. 12 Law J. Rep. (N.S.) C.P. 235; Mayer v. Isaac, 6 Mee. & W. 605; s. c. 9 Law J. Rep. (N.S.) Exch. 225; Wood v. Priestner, 36 Law J. Rep. (N.S.) Exch. 42, 127; s. c. Law Rep. 2 Exch. 66, 282. If it is intended that a guarantie should extend only to a single dealing, the guarantor should take care to say so Merle v. Wells, 2 Campb. 413; and it was competent for the father, if he wished it, to stipulate for liberty to determine his liability after the expiration of a specified time by notice Calvert v. Gordon, 3 Man. & Ry. 124. It is a rule that such instruments must be construed most strongly against the guarantor Masse v. Pritchard, 12 East 227. Moreover, if he had not intended this guarantie to be unlimited and continuing, he would have revoked it when advances Smith, Merc. Law, 8th ed. 474. Mr. Cotton and Mr. Nalder, for the executors of Edwin Maaers.-This instrument was under seal, and was not revocable by the guarantor. Consequently it never could have been intended to bind him to a liability of indefinite amount extending over an indefinite time, perhaps the whole life of the person for whom he became surety. The Courts lean strongly against a construction creating an indefinite liability from which the surety has not the means of relieving himself during the life of the principal Addison on Contracts, 6th ed. 564 ; Hassell v. Long, 2 M & S. 363, 369. The reasonable and natural construction of this instrument is that the guarantie should be limited to all moneys due up to 2,000l., the amount of the promissory note. They also referred to Calvert v. Gordon (ubi supra). Mr. Glasse, in reply.-A guarantie is revocable, and this Court would on a proper case shewn give relief against a guarantie under seal Shepherd v. Beecher, 2 P. Wms. 287; MALINS, V.C.-This summons raises a question of very considerable importance upon bankers' guaranties. What I have got to decide is, whether Edwin Maeers, the testator in the cause in which the summons is taken out, became, under a guarantie signed by him on the 21st of March, 1870, liable to pay only a particular debt of his son, William Henry Maeers, or whatever his son then owed, or should afterwards owe, to the London and County Bank, to whom the guarantie was given. In order to determine that question, the Court in this as in other matters will put itself, as well as it can, in the position of the parties at the time of the transaction, and from the surrounding circumstances, as well as the words of the instrument, ascertain what was the real intention of the parties to it. Looking at the surrounding circumstances, I have this-the father and the son had each of them an open banking account with the Shoreditch Branch of the London and County Bank, with which this transaction was carried on. The son was in business. He wanted money, and the father, in order to enable him to obtain money, gave the son his promissory note for 2,000l., payable to the son's order. The son thereupon endorsed that note. The note itself was of no use, unless he could get money upon it. It was, therefore, a great object to the son, as well as to the father desiring to support his son, that the note should be discounted. Under these circumstances, the bank agree to discount the note, upon receiving the guarantie in question. Now, if the intention had been simply to guarantee the payment of the 2,000l., it would not have been necessary for the father to agree to pay the money, because it was his own promissory note, and therefore his personal liability was already committed by the note itself. The object, however, was, in my opinion, to give a general guarantie. The bank might very well have said, "We are ready to discount your note, but your son has overdrawn already, and he is very likely to overdraw hereafter; will you be answerable for that?" The father, desiring to renew the debt of his son, which would probably be the means of making his position in life, says to the bank, "Not only will I be liable for 2,000l., the amount of the note you have discounted, but I guarantee that you shall be paid all that is now owing you, or that my son shall hereafter owe to you." It seems not unreasonable to suppose that that was the intention of the parties. There is evidence to shew that the agreement was read over to the father, that he distinctly understood it as a guarantie of the general debts of his son, that he frequently enquired what he owed, and that he knew he was liable upon it, and so treated it. The son who, being a bankrupt, is perfectly indifferent in the matter, in his affidavit says that "his father signed the agreement in order to induce the banking company to advance him money for the purposes of his business; that the bank did so advance him money, on the faith of his father's guarantie; that his father well knew the nature and effect of the agreement, and frequently enquired of his son how much he owed the banking company, as he wished to know the extent of his own liability to them." The same thing is also stated by Mr. Norfolk, the public officer of the London and County Bank, to whom the guarantie was given. Therefore, whether I look at the posi tion of the parties before the transaction, their conduct during the transaction, or the conduct of the father afterwards, I equally come to the conclusion that it was the intention of the father to guarantee not only the 2,000l., the amount of the note, but also the general debt owing and to become owing by the son to the bank. Then upon the face of the instrument, can anything be more explicit than the language which is adopted, "I deposit with you the several documents mentioned in the schedule hereunder written, which I agree shall remain with you or other the public officers for the time being of the said company, as a security for the payment to you or other such public officer, as aforesaid, of all money due or to become due from him." There is no limit to the amount, neither is there any limit as to time, but what I understand it to mean is, that the father will pay such sums as shall become due to the bank, while the son remains a man worthy of credit. They are not to give credit to him in a reckless and unwarrantable manner after he has become bankrupt or insolvent. While the son remains an apparently solvent man, the father guarantees any debt that he may owe the bank during any part of his life, until it is altered by the revocation of the guarantie. That is the construction I put upon the instrument, and I am therefore of opinion that it is a guarantie by the father, of whatever the son should become indebted to the bank. But then it is said, that this agreement ought to receive a more limited construction, because being under seal it was irrevocable. Authorities have been recited to shew that a guarantie is irrevocable. I do not accede to that view of the law at all. Certain guaranties are undoubtedly irrevocable. When a guarantie is of the fidelity or good conduct of a servant or clerk, or a person in a confidential position, it may be considered as a contract by the employer and employed, and the surety on his behalf. Therefore, if a father guarantees the fidelity of his son, and upon the faith of that guarantie the son obtains a situation, there being no misconduct on the part of his son, reason requires that the father should not arbitrarily have the power of depriving the son or any person whose credit he guarantees of the appointment which he obtained on the faith of the guarantie. If arbitrarily and without the fullest justification he desires to withdraw that which he has deliberately entered into, I am of opinion, under such circumstances as those, that he would have no right to withdraw. But if there is misconduct on the part of the person whose fidelity is guaranteed, for instance, if a man guaranteed that a collecting clerk shall duly account for all moneys received by him, and that collecting clerk is found to have embezzled his employer's money, reason requires that the man who entered into the guarantie because he believed the person to be of good character, when he finds that he is not of good character and not to be trusted, should have the power of saying, I now withdraw the guarantie I gave you, give you full notice not to trust him any more. Notwithstanding all that has been said, I am clearly of opinion that a person who has entered into such a guarantie for a man who has been proved to be guilty of misconduct, and who is therefore responsible for the per I son whose fidelity is guaranteed, has a right to withdraw from that guarantie. Mr. Glasse referred me to the case of Shepherd v. Beecher (ubi supra) which was before Lord King in 1725. In that case a father had guaranteed the fidelity of his son when he was bound apprentice to a merchant, and the son was afterwards guilty of an embezzlement. The father had then either a decided or an undecided course to take. The decided course would have been to have said, "I withdraw the guarantee, my son has proved unworthy, he ought not to be trusted by you nor shall he be trusted by me, give up my bond for I warn you that I will not be answerable for him in future." Instead of taking that decided course, the father being willing to give his son a second trial, in effect said to the master, "I do not say, do not trust my son at all, but trust him sparingly for the future." And I read Lord King as laying down in that case the principle that if the father had taken a proper and decided course, and required the delivery up of the bond, it must have been delivered up. My opinion is that a person who gives a guarantie would have a right, in case the person on whose behalf he gave the guarantie had been guilty of gross misconduct, or had turned out to be unworthy of the confidence reposed in him to say to the person taking the guarantie, you will continue to employ this man at your own peril. If the employer under such circumstances refused to give the guarantie up, the person giving it would have a right to file a bill in this Court, and would, I think, succeed in obtaining a direction. that the bond should be given up to be cancelled. And I think that is only what good sense, propriety and fair dealing between man and man would dictate, and that this was the principle which was sanctioned by Lord King in this case, to which I have referred. It was strongly pressed upon me in argument that if a man gives a guarantie that he will be answerable for A. B. to the extent of, say, 20,000l., and discovers when the bank has advanced him 1,000l. only, that A. B. is unworthy of credit, and of a totally different character to |