would have been bound to leave to them, the plea would have been insufficient. For it is not enough merely to state facts which might constitute a defence to the action, but a defence must be stated in positive terms. But I am of opinion that if the consignee of goods under a bill of lading, whilst the goods are in transitu, indorses the bill of lading, and upon that indorsement states in express terms that the owner of the freight is to look to the indorsee and not to the consignee of the goods, and the indorsement is accepted and acted upon without any objection or qualification on the part of the owner of the freight, that in point of law constitutes a transfer of the liability and a defence to any action against the consignee.

Under these circumstances, in my opinion, the plea contains a state of facts which are of themselves an answer to the action, and not merely evidence from which a jury might find that there was an answer. I therefore think the plea good, and that the defendant is entitled to judgment.

BRAMWELL, B.-I am of the same opinion; and I must say that I do not think any the worse of the plea because it states the actual facts rather than conclusions of law. which involve, first of all, proof before a jury of the existence of the facts, and then the difficult question whether the conclusion of law has been correctly deduced from them.

It seems to me that the facts stated in this plea furnish an answer to the action on the grounds mentioned by the Lord Chief Baron; and I will merely add, that what has taken place is to my mind equivalent to the defendant having said: "Deliver to Messrs. Watney & Keene upon those terms or do not deliver to them at all." That being so, the owners of the freight might have said: "We will

1866.

LEWIS

v.

MCKEE.

1866.

LEWIS

V.

MCKEE.

not deliver at all. We do not like to take the responsi-
bility of Messrs. Watney & Keene to the exclusion of
yours as consignee." It appears to me that if this reasoning
were not well founded great mischief would ensue; for
when a consignee of goods desires to entrust them to a
wharfinger or warehouseman and make him solely liable
for the freight, what course is he to adopt if he does not
make such an indorsement as this? The owner of the
freight may refuse to act upon the indorsement, but if he
. accepts the nominee for receiving the goods he must take
him upon the terms on which he is nominated, which in
this case are that no further liability shall attach to the
defendant.

CHANNELL, B.-I am also of opinion that the defendant is entitled to judgment. The question is, not whether the plea might not have been differently framed, but whether the facts stated in it afford a sufficient answer to the plaintiffs' claims for freight. It would not perhaps be sufficient that the facts should be such as would justify the inference that the plaintiffs had renounced their claim for freight against the defendant; but the question is, whether the facts are so stated as to require that conclusion. I am of opinion that they are. The plaintiffs might have refused to act upon this order. I do not say what would have been the result if they had done so, but the plea shews that they delivered on the faith of this order, and that they renounced their claim against the defendant for freight. The plea states that the plaintiffs accepted the indorsement and delivered the goods to the assignees, as the persons entitled to them, and not to the defendant. That excludes the notion that the goods were delivered to the indorsees simply as the agents of the defendant.

PIGOTT, B.-I am of the same opinion. If the facts stated were such as might or might not be evidence of a substituted liability, I agree that the plea would be bad. But it seems to me that in point of fact they shew a good substituted liability.

Judgment for the defendant.

1866.

LEWIS

ย.

MCKEE.

WOOD and Another v. PRIESTNER.

Nov. 23.

DECLARATION. That the defendant, on, &c., signed The defend

and delivered to the plaintiffs the following guarantee:

"In consideration of the credit given by Messrs. The Hindley Green Coal Company to my son, Mr. James Priestner, for coal supplied by them to him, I hereby hold myself responsible as a guarantee to them for the sum of 1007., and in default of his non-payment (a) of any accounts due, I bind myself, by this note, to pay to the Hindley Green Coal Company whatever may be owing to amount not exceeding the sum of 1007.

"William Priestner."

ant's son

was indebted to the plaintiffs in the sum of 1701.,

being the

aggregate

of several monthly ac

counts for

coal supplied. The plaintiffs having refused to supply any

more coal

unless the an accounts were

Averments. That the plaintiffs thereupon afterwards, in pursuance thereof, gave the said credit to the defendant's said son for coals which had been theretofore supplied by them to him, and after the making of the said guarantee, and in pursuance thereof, they supplied on credit further

settled, the
defendant
paid them
97., gave them
a bill of ex-

change for 617., and the following guarantee, signed by his father:-" In of the credit given by the H G. Coal

consideration

Company (the plaintiffs) to my son, J. P., for coal supplied by them to him I hereby hold myself responsible as a guarantee to them for the sum of 1007.; and in default of his payment of any account due I bind myself by this note to pay to the H. G. Company whatever may be owing, to the amount not exceeding the sum of 1001."-Held, that this was a continuing guarantee, and applied to future as well as the accounts then due.

(a) Sic.

1866.

WOOD

v.

PRIESTNER.

coals to the defendant's said son, and that accounts for coals so supplied exceeding 100l. became and were still due and owing from the defendant's son to the plaintiffs in respect thereof: that defendant's son made default in payment thereof that plaintiffs did all things necessary, &c.— Breach that the defendant's son has not nor has the defendant paid the same, or any part thereof, and the same, to the extent of 100%., remains due and unpaid, &c.

Plea (inter alia).-That the defendant did not guarantee as alleged.-Issue thereon.

At the trial, before Martin, B., at the last Manchester Summer Assizes, it appeared that the plaintiffs, who carried on business as coal merchants under the style of "The Hindley Green Coal Company," had, prior to and in the year 1861, supplied coals to the defendant's son, a coal dealer at Wilmslow. The accounts were stated monthly; and in June, 1861, the defendant's son was indebted to the plaintiffs in the sum of 1707., viz., in 70%. for coals supplied in the previous March; in 627. 4s. for coals supplied in April, and in 377. 16s. for coals supplied in May. The two former accounts were then due, but the May account would not become due until the end of June. On the 8th of June the defendant's son paid 97. on account. plaintiffs having refused to supply any more coal unless the defendant's son gave them security for the amount due, he accepted a bill of exchange drawn by them upon him for 617, at three months date, and gave them the guarantee set out in the declaration, signed by his father. Thereupon the plaintiffs continued to supply him with coal until 1865, when he died, insolvent, owing them more than 100%. The amount due at the time the guarantee was given had been paid.

The

It was submitted, on behalf of the defendant, that this was not a continuing guarantee.

The learned Judge directed a verdict for the plaintiffs for 1007., reserving leave to the defendant to move to enter a nonsuit.

Holker, in the present Term, obtained a rule nisi accordingly; against which

E. James and Baylis now shewed cause.-The guarantee, being ambiguous, must be construed with the light of surrounding circumstances: Carr v. Montefiore (a). The defendant's son being indebted to the plaintiffs, they refused to supply him with any more coal unless they had security. When they received the guarantee they continued to supply him with coal, thereby indicating that their intention was that the guarantee should be a security, not only for the amount then owing, but also for what might become due in respect of future and continuing supplies of coal. The words "in consideration of the credit given" mean "in consideration of credit to be given;" and the words "for coal supplied" mean "for coal to be supplied." If the words "credit given" meant "credit already given," there would be no consideration; for past debts are not a sufficient consideration for a guarantee of such debts; but giving credit in future will support a promise to guarantee all debts, past as well as future. So also the words " any accounts due" mean "any accounts which may hereafter become due; and the words "whatever may be owing" mean "whatever may now or at any future time be owing." In Kennaway v. Treleavan (b), where the language of the guarantee was ambiguous, it was construed as applying to future as well as past transactions. In Hoad v. Grace (c) it was held that the expression "for goods sup(b) 5 M. & W. 498.

(a) 5 B. & S. 408. 425.

(c) 7 H. & N. 494.

1866.

WOOD

D.

PRIESTNER.