and by it, after stating the gift of 4001. cash as Mrs. Mills's "marriage portion," the bond debt, together with other property to which Mrs. Mills was entitled in reversion for her separate use, was to be held "in trust to pay to, or otherwise permit and suffer, the said H. Mills and his assigns, in case he should be living at the time of the decease of the said M. A. Loftus" (the person entitled in possession to the reversionary property), "during the term of his natural life, to have, receive, and take, to and for his and their own use and benefit, the dividends, interest, and other profits, which shall during his life accrue, arise, or be made by or from the trust funds, with remainder (in the events which happened) in trust, "after the determination of the preceding trusts, to pay, transfer, and assign, or otherwise dispose of the several trust funds, and the dividends, interest, and profits thereof, to such person or persons as shall be the next of kin to the said L. F. Loftus (Mrs. Mills), and would have been entitled to the same as her representative or representatives, in case she had died unmarried." There was a further covenant to settle after-acquired property of the wife, on like trusts as were created of the personalty. There was also a settlement of real estate for the benefit of the husband and wife and their issue, with remainder to such uses as the wife should appoint by will, and an ultimate remainder to her in fee. There were no children of the marriage, and no evidence of the bond debt or interest having been paid, or of any claim having been made in respect of either of them during the lifetime of Mr. and Mrs. Mills. Mrs. Mills's reversionary interest fell into possession in 1841. Mr. Mills died on the 4th March, 1853, leaving his wife his executrix and sole residuary legatee. J. Loftus survived his co-obligee, and was up to the time of his death in 1861 presumptively the next of kin of Mrs. Mills. Mrs. Mills died in 1864, having by her will bequeathed her residuary estate to the plaintiff absolutely. The chief clerk by his certificate allowed the claim for the bond debt of 400l. and interest from the date of the death of Mrs. Mills, as a debt upon the estate of H. Mills. The defendant Borthwick, executor of Mrs. Mills's will, admitted assets of H. Mills's estate to justify the bond debt, interest, and costs. Baily, Q. C., for the next of kin of the wife.-Where the hand to pay and the hand to receive were the same, the Statute of Limitations was no bar. (Burrell v. Lord Egremont, 7 Beav. 205; Burrowes v. Gore, 6 H. L. C. 997). Though the settlement was unusual in form, there was a clear trust in favour of the next of kin of the wife. Bagshawe, for the plaintiff in the suit, the residuary legatee; and F. Kelly, for the executor of the will, contended, that the debt was barred by the Statute of Limitations. There was not the same hand to pay and to receive, for the trustees were the persons to receive the capital sum from the tenant for life. All the latter was entitled to receive was interest on that capital, and that would not have been so large a sum as the interest on 4007. at 57. per cent., which he was under obligation to pay. pickernell v. Hotham, Kay, 669). But if the Statute of Limitations was not a bar, yet the fund passed by Mrs. Mills's will. (Re Crawford's Trusts, 2 Drew. 230; Carter v. King, 3 Camp. 459; Gibbs v. Louthan, 3 Nev. & M. 158). [They also referred to the 3 & 4 Will. 4, c. 42, s. 3, and the 9 Geo. 4, c. 14.] Baily, in reply, on the statutory defence.-If that was good, then at any time after the twenty years the trust would be liable to fail, for the trustees would have no power to call in the debt; yet they had a clear right to leave it outstanding. Sir R. T. KINDERSLEY, V. C.-I am of opinion that the next of kin are the persons entitled. For some reason or other this settlement was very unusual in form, and has furnished arguments on the part of the respondents, many of which were most ingenious, and would certainly never have occurred to me, but I am satisfied that the Statute of Limitations is not a bar. This sum of 4001., lent to the husband, and which is called a marriage portion, a term very inappropriate if he was bound to repay it in six months, is secured by his bond. The condition of the bond is, not that he should repay the sum within six months, but that he should do so if required, so that it appears to me that the intention was, not that there should be an actual liability to repayment, but that the money should remain in the hands of the husband; that there was no obligation on the trustees to call in the money. There was no express trust for calling in, nor for investment of the fund when called in, but a mere power to the trustees to call for payment if they thought right. Putting aside the question that this is trust money, there are many other strong arguments against the operation of the statute. Under the provisions of the bond and settlement, the husband was bound to pay 51. per cent. to the trustees, and they would be bound to repay the same sum to the same person, that is, to the husband; and when this is the case the statute does not apply. The intention in Spickernell v. Hotham was, that the stock which was covenanted to be transferred to the trustees should be transferred immediately after the marriage, and that, in default of this being done, the covenantor should not be liable to pay interest to the same amount as the dividends he was entitled to receive, but a sum in the nature of damages for the delay. Here, however, it was intended that the bond should remain unsatisfied, so that the husband would be entitled to receive under the settlement the same interest as he was liable to pay. In the case I have referred to, where other funds were lent by the trustees to the covenantor, the Vice-Chancellor said, that the circumstance that he was entitled to the interest, would be a reason why the trustees should not have applied to him for the principal. I hold, therefore, that the statute did not begin to run during the life of Mr. Mills, and this claim was made within twenty years from the time of his death. But the same arguments would, if it were necessary, apply to the case of Mrs. Mills, who was his executrix, on the one hand, on the other the tenant for life under the settlement. Therefore, the statute did not begin to run until her death in 1864, and I must hold that the claimant is, notwithstanding the time that has elapsed since the date of the bond, entitled to the fund. VICE-CHANCELLOR STUART'S COURT. Re THE BRITISH AND FOREIGN GAS GENERATING APPARATUS COMPANY (LIMITED).—April 21 and 28. Practice-Company-Winding up-Concurrent petitions -Costs-Unregistered office. There being two concurrent petitions for winding up a company, and the one presented last coming on to be heard first, an application for the transfer of the latter to the same court as that in which the former was presented was refused. But upon the hearing of the first presented petition, which had been transferred to the same court as the second petition, an order was made directing payment of the costs of the first petition out of the assets of the company. A demand, under sect. 80 of the 25 & 26 Vict. c. 89, may be made by a creditor for the payment of his debt at a company's unregistered office, where the company has no registered office. On the 27th March, 1865, a petition was presented by C. G. Carttar, a creditor and shareholder of the above-named company, for the purpose of obtaining an order to have the company wound up, but, in consequence of the Easter Vacation, which commenced on the 29th March, the petition could not be brought on for hearing before the Master of the Rolls before Saturday, the 22nd April, which was the first petition day at the Rolls after the Easter Vacation, which ended on the 18th April. The petition was advertised on the 8th April in two London morning newspapers, and on the 11th April in the London Gazette. On the 11th April a Mr. Thomas Lambert, also a creditor of the above-named company, presented a petition to have the company wound up under the provisions of the Companies Act of 1862, and entered it for ViceChancellor Stuart's Court; and it came on to be heard before his Honor on Friday, the 21st April, the first petition day in this branch of the court after the Easter Vacation. On that occasion it was submitted on behalf of Carttar, that Lambert's petition ought to be transferred to the Rolls, and heard there with Carttar's petition; and the 84th section of the Companies Act, 1862 (25 & 26 Vict. c. 89) was referred to, by which it was enacted, that "a winding up of a company by the Court shall be deemed to commence at the time of the presentation of the petition for the winding up," and therefore it was contended that his Honor could make no order upon Lambert's petition for winding up the company. Further: it was submitted that Lambert's petition did not contain an allegation, that the company was unable to pay him the sum which was alleged to be due, and that he had complied with the requirements of the 80th section of the act of 1862; and also a demand in writing, requiring the company to pay the sum due and left at the unregistered offices of the company, was not a sufficient compliance with that section, although the company had no registered office. had been properly presented, as the advertisements in reference to the petition of Carttar, which had been first filed, had already appeared. Under the circumstances, he could not refuse to give Carttar the costs of his petition out of the assets of the company; and the order would therefore be, that the costs of all parties, upon both petitions, must be paid out of the assets of the company. Note for reference-Set. Dec. 889. VICE-CHANCELLOR WOOD'S COURT. STOKES v. THE CITY OFFICES COMPANY.-March 16, May 31, and June 2. Ancient lights-Practice-Injunction-Liberty to apply in chambers-Inspection-15 & 16 Vict. c. 80, s. 42. Injunction granted to restrain the darkening of ancient lights, but liberty given to the defendants to apply in chambers with respect to the erection of buildings en their property. In a case of darkening ancient lights, the Court refused an application by the defendants, before the hearing, for the appointment of a person to survey and report upon the property, under the 42nd section of the Master in Chancery Abolition Act, evidence having been given only on the part of the plaintiff. Motion for decree.-The plaintiffs were wholesale ironmongers, carrying on business at Nos. 11 and 12, Clement's-lane, Lombard-street, in the city of London, of which premises they were lessees for the residue of a term of twenty-one years from Christmas, 1856, and the object of this suit was to restrain the defendants from erecting an extensive building on the other side of the street, above the former level of the houses there, so as to darken the ancient lights or windows in the property belonging to the plaintiffs. A motion for an interlocutory injunction was made on the 16th March, and at the same time the defendants, who had not put in any evidence, made a cross motion Sir J. Stuart, V. C., was of opinion that sufficient for the appointment by the Court, under the 15 & 16 had been done by the petitioner, and that he was en- Vict. c. 80, s. 42, of some proper person to inspect the titled to an order, as prayed, for winding up the com- premises of the plaintiffs and the defendants, and to pany, and he refused to sanction a transfer of the certify the state thereof, and what, if anything, ought petition to the Rolls. The result was, that Carttar to be done by the defendants in respect of the buildwas unable to obtain his costs of presenting his peti-ings intended to be erected by them, so as to preserva tion at the Rolls. due access of light and air to the plaintiff's premises and otherwise to report upon the same, as the Court should direct. Subsequently, on an application made to the Lord Chancellor, an order was made by his Lordship for the transfer of Carttar's petition from the Master of the Rolls Court to that of Sir J. Stuart, V. C.; and the petition on the 28th April came on to be heard before his Honor. J. Napier Higgins submitted, that the course which had been pursued on behalf of Lambert was altogether irregular; that Carttar ought to have the carriage of the winding up; and that he was entitled to his costs. Malins, Q. C., and Swanston, for Lambert, opposed the application. Sir J. STUART, V. C.-If both petitions had come before him on the same day, he should, according to the usual practice in such cases, have made an order for winding up in both, unless it had appeared that either petition had been presented with the knowledge of the prior presentation of the other petition. It appeared that, by an accident, the petition first presented was not in the paper for hearing until the other petition had been disposed of. If both the petitions had been brought on together, he should have had some doubt whether the petition of Lambert, which was last filed, Giffard, Q. C., and G. N. Colt, for the motion. Sir W. P. WOOD, V. C. (without calling on the other side)-I think I ought to arrive at the hearing of the cause before I can appoint any person with such functions as asked. I do not apprehend that it is the course of the Court, on an interlocutory application, to appoint a person with such functions. The meaning of the act of Parliament, as I have always read it. is this-It was well known what difficulty the Court riance that exists between gentlemen of great emlwas constantly placed in by the unsatisfactory vanence on both sides upon matters of opinion, accord court or any judge thereof, in such way as they may think * Sect. 42 is as follows: "It shall be lawful for the sau fit, to obtain the assistance of accountants, merchants, e gineers, actuaries, or other scientific persons, the better to enable such court or judge to determine any matter at issue in any cause or proceeding, and to act upon the certificate of such persons,' 15 ing to the bias they acquire from the instructions In the counting-house they employ ten clerks, who they receive; and therefore the Court was empowered are continually at work, and they say that any serious by this act to call in the assistance of some person detriment to the light so afforded would be a material who would enable it, by his judgment and views injury to them in regard to the conduct of that por(being an impartial person summoned by the Court), tion of their business. to arrive at a definite conclusion between the conflicting statements. I think, in this case we are hardly ripe for that yet. It may be very desirable at the hearing of the cause that the plaintiffs should set forth, not only the amount of damage, but the amount of inconvenience which they conceive the defendants ought not to occasion them; and, on the other hand, the defendants may propose a scheme. I shall want some competent witnesses on one side and some on the other, to determine what is right to be done, and then, if there is any difficulty, will be the proper time to call in the assistance of a third person to inform the Court upon the subject, so as to enable it to deide between those conflicting opinions. At present there is no issue or controversy raised, and, therefore, I cannot send a wild sort of reference to a surveyor, As I should not have the advantage even of knowing whether he had considered all the matters in question until the witnesses have given their evidence on the me side and on the other; but when he has had a proper opportunity of forming an opinion upon the abject, then the judgment of such a person would be valuable. I think the right course to take now is to grant an njunction until the hearing of the cause, and this notion may be turned into a motion for decree, as it has not been argued upon the merits, and I will adFance it when ready for hearing. May 31.-The suit now came on for hearing. The facts sufficiently appear in the judgment of his Honor. Giffard, Q. C., and Colt appeared for the plaintiffs. Rolt, Q. C., and Druce, for the defendants. The following authorities were cited:-The Attorney-General v. Nichol (16 Ves. 338); Tapling v. Jones (ante, p. 309); Johnson v. Wyatt (9 Jur., N. S., 133); Isenberg v. The East India House Estate Company (10 Jur., N. S., 221); and Swaine v. The Great Northern Railway Company (Id. 191). Sir W. P. WOOD, V. C.-With regard to the prinipal part of the case, this application is made by perons carrying on a very extensive business in articles of ironmongery, which is sworn to produce a return of somewhere about 100,000l. a year. Therefore, it is ot a trivial matter, or a matter which could induce he Court in any way to suppose the application is nerely for the purpose of extortion, as in some cases t has been supposed, or for the purpose of harassing he defendants until some terms of arrangement are ome to. It is a substantial case which the plaintiffs resent as regards their business, which it is said will e seriously impeded by the proposed building, and it no doubt a case of a kind which the Court has been onstantly disposed to assist. The plaintiffs come here with a very strong primâ ase in this way. They are in a street which is only wenty feet wide, and like many of the streets in the ity of London, therefore, of a very narrow character. We have this evidence of the necessity of light to hem, that their counting-house has been made almost ike a case of glass (though some observations have een made by the defendants about its construction ot being so good as it might be), with reflected power 1 all directions so as to augment the light. That ras all done before any discussion took place, or there as any probability of dispute arising, between these arties. It is manifest, not only that a street of this width would give comparatively very inadequate light, ut also that the plaintiffs have been endeavouring, y all the means in their power, to increase that light. Then as regards the shop, there is some question in dispute as to whether it might not be made lighter, but the plaintiffs, who are lessees for a term, of which about thirteen years are unexpired, found the shop fitted with a view to light, and they deal with articles, for the examination of which it appears that light is of great importance, and not a reflected light merely. The plaintiffs' case is, that they have a street of only twenty feet in width, and have already in front of them houses exceeding that height (it being in evidence that it is desirable that the width of the street should correspond with the height of the houses opposite), and the defendants are going to add twentyfour feet to the already inconvenient height of thirtyfour feet. This additional height would render wholly useless the reflectors, and would abstract about onethird of the light. I cannot have a doubt that in that state of circumstances the light is seriously interfered with; and it does not appear to me that there is any serious controversy on the other side. [His Honor then went through the case made by the defendants.] All these several grounds, on which the defendants rest, as it seems to me, entirely fail, namely, that the plaintiffs are no worse off than many others in the city of London; that they might, by alterations in their premises, enable the defendants to affect alterations in theirs; and that the plaintiffs' landlord would have a better property when they have done with it than he has at the present moment, in consequence of the defendants making this building. It seems to me, therefore, that if this case were anterior to some of the late authorities, there could be no doubt or hesitation as to what should be done. It is quite true of late that the Court has seen the difficulty that arises in dealing with such cases occurring in a large and improving town like the metropolis. Can we say that such a town, or any other town of that kind is to be condemned to remain by the interference of this Court, with a shabby and low style of building, when buildings of a much greater magnitude would be carried out by enterprising persons? It seems to me to be a question very well deserving the consideration of the Legislature, as to whether there could not be some general act passed, by which arrangements could be made, and adjustments entered into, either through the medium of a jury or otherwise, as the case might be, for the purpose of enabling such improvements to be carried on. In the meantime, until that is done, I do not feel myself in a condition to say that large improvements ought to be carried on by companies, either for the good of the public, or for themselves, or both, at the expense of others. The Legislature does not allow the meanest house to be taken for the purpose of a railroad, however great the improvement may be, without the sanction of an act of Parliament, and I do not see how this Court can take upon itself to dispose of property. The Legislature has made this light and air at the end of twenty years to become positive property on the part of those in the enjoyment of the easement; how can I possibly take away that property? There is a course which appears to me open to the Court, and proper for me to take, and which has been taken by the Court of Appeal. It is extremely inconvenient to have questions of the amount of interference with light and air determined by continual motions for committal; and if you can arrive at a conclusion between the parties which will free the person under the injunction on his part from incon venience, by enabling the parties to ascertain what their position is, no doubt it is a beneficial course to take. Whether it can be done in this particular case before me I cannot say, but I am anxious that every step that can be should be taken; and, therefore, what I propose now to do is, to grant a perpetual injunction to restrain the defendants from erecting any building in front of the messuages Nos. 11 and 12 in Clement's-lane, so as to darken, injure, or obstruct any of the ancient lights or windows of the same messuages as the same ancient lights and windows were enjoyed previously to the taking down of the said ancient houses or buildings which formerly stood in front of the same messuages, with liberty for the defendants to apply in chambers, as advised, in respect of the erection of any buildings on their property, so as not to infringe the above order. The defendants must pay the plaintiffs' costs of suit, and general liberty to apply should be reserved. Notes for reference-Gale on Easements, 499, 3rd ed.; Morg. Ch. Pr. 155; Set. Dec. 898. COURT OF QUEEN'S BENCH. EASTER TERM. [Before BLACKBURN and SHEE, JJ.] BACKHOUSE and Others v. HALL.-May 2, Guarantee, when to be considered as continuing-Change of partners in trading firm-19 & 20 Vict. c. 97 (Mercantile Amendment Act, 1856), s. 4. The following guarantee was given by the defendants to the plaintiffs:-" In consideration that you have at our instance and request consented to open an account with the firm of G. W. & W. J. H., we, and each of us, do hereby guarantee the payment to you of the moneys that may at any time become due, not exceeding 50001.":Held, that the liability of the guarantors ceased upon the subsequent death of a member of the firm, it not appearing, either by express stipulation, or by necessary implication from the nature of the firm, or otherwise, that the guarantee was considered between the parties as a continuing one. Sect. 4 of the Mercantile Amendment Act, 1856 (19 & 20 Vict. c. 97), is simply an affirmance of the law as it previously stood. Action to recover from the defendant the sum of 5000l. alleged to be due under a guarantee. The following case was stated without pleadings: For some years before 1840 George Wilkin Hall & William Joseph Hall, brothers of the defendant, carried on business in co-partnership, as shipbuilders, at Sunderland, under the style and firm of "G. W. & W. J. Hall." On the 18th December, 1856, G. W. Hall died. For some years after the death of W. J. Hall, the surviving partner in the original firm, G. W. Hall acted as manager of the firm of "G. W. & W. J. Hall," receiving a yearly salary of 4007. for his services; and a few days prior to the death of G. W. Hall, he and the defendant had the joint management of the business of the firm. After the death of G. W. Hall, the defendant, together with Sarah Hall, the widow of W. J. Hall, and Elizabeth, the widow of G. W. Hall, continued to carry on the business under the same style, 15, and the defendant continued as manager to receive a salary. On the 31st December, 1857, the partnership then subsisting between James Hall, the son and sole executor of G. W. Hall, and the defendant and Sarah Hall. the executors of W. J. Hall, was dissolved, and an arrangement made by which the business was to be for the future carried on under the style or firm of “G. W. & W. J. Hall," by Sarah Hall and Elizabeth Hall, and their nephew George S. Moore. The defendant at the same time ceased to act as manager of the business. Notice of this newly arranged partnership was given by circular. In February, 1858, G. S. Moore applied to the plaintiffs, who had then opened a branch bank at Sunderland, to give the firm accommodation, by allowing them to open an account to be overdrawn to the ex tent of 50007. This the plaintiffs consented to do upon receiving the joint and several guarantees of the defendant and G. S. Moore; and, accordingly, on the 25th February 1858, the defendant and G. S. Moore gave to the plain tiffs the following guarantee: time to time gave accommodation to the firm of G. W In pursuance of this guarantee, the plaintiffs from & W. J. Hall; and the firm thereby became indebte to the plaintiffs on a balance of account in a sat which, on the 17th September, 1858, exceeded 50% On the 5th July, 1858, Elizabeth Hall died. Th was known to the defendant at the time, but was n known to the plaintiffs until the year 1862. At th date of the death of Elizabeth Hall, the balance account due from the firm of G. W. & W. J. Hall wi 32861. 68. 9d. After the death of Elizabeth Hall, the business the firm of G. W. & W. J. Hall was carried on und that style as before, by the surviving partners, S. Ha & G. S. Moore; and the plaintiffs, as before, kept th accounts of them as continued accounts. On the 2nd July, 1861, the plaintiffs received fro the defendant's attorney a letter, giving them not that the defendant" would not hold himself liable t them, after the receipt of this notice, for any monet to be hereafter advanced by them to the firm of G. W & W. J. Hall." On the 2nd July, 1861, the balance of account d to the plaintiffs exceeded the sum of 50001. T whole of the advances upon which this balance crued were made subsequently to the death of El beth Hall. The defendant in no other way, if at all, ma himself responsible for that or any other balan unless by virtue of his guarantee of the 25th Fet ruary, 1858. The firm of G. W. Hall & W. J. Hall stopped p ment on the 17th February, 1862. 15, 15,] The Court is to be at liberty to draw all inferences of fact which a jury might draw. The question for the consideration of the Court is, whether, under the circumstances herein before stated, the defendant is liable under his guarantee to pay to the plaintiffs any and what portion of the balance due to the plaintiffs from the firm of G. W. & W. J. Hall on the 2nd July, 1861. Borill, Q. C. (Karslake, Q. C., and Hannen with him), for the plaintiffs.-The question arises upon sect. 4 of the Mercantile Amendment Act, 1856 (19 & 20 Vict. c. 97), which enacts, that "no promise to answer for the debt, &c. of a firm, consisting of two or more persons, shall be binding upon the person making the promise in respect of anything done after a change shall have taken place in the persons constituting the firm, unless the intention of the parties that the promise shall continue to be binding, notwithstanding such change, shall appear, either by express stipulation, or by necessary implication from the nature of the firm, or otherwise." The defendant is liable on this guarantee, which was given in respect of a firm which had long traded under a certain name and style; and it was within the knowledge of all parties at the date of the guarantee, that changes had already taken place in the constitution of the co-partnership, and in the ordinary course might be expected to take place again. The defendant must, therefore, be taken as securing such advances as might be made to the firm, whatever subsequent changes in its constitution might thereafter take place; and the guarantee is, therefore, a continuing one. is entitled to judgment. The action is brought on a guarantee, dated the 25th February, 1858. [His Lordship read the guarantee.] Now, the firm in respect of which this guarantee was given had adopted the name and style of "G. W. & W. J. Hall," but the persons bearing those names were long since dead, and the business at the date of the guarantee was carried on by their two widows and a third person, who, to the knowledge of all parties concerned, then constituted the firm. Afterwards, on the 5th July, 1858, one of these partners, Elizabeth Hall, died, and at that time there was a sum of money due to the plaintiff's from the firm, for which the sureties under this guarantee were responsible. The death of this partner was known to the defendant, but not to the plaintiffs. It does not appear that there was on the one hand any obligation on the part of the defendant to communicate this change in the firm to the plaintiffs, nor any concealment of it upon the other; but the fact of the plaintiffs' want of knowledge, though it undoubtedly deprived them of the opportunity of electing whether, under the altered circumstances of the firm, they would continue their former dealings with them, cannot be considered as in any way affecting the construction of the guarantee. In fact, the business was continued, the name and style of the firm being unaltered, from that time until a sum exceeding 50001. became due from the firm to the plaintiffs; and the question is whether, since the passing of the Mercantile Amendment Act, 1856, the guarantee is to be treated as continuing after the death of Elizabeth Hall, and binding the defendant to make good to the plaintiffs moneys Lush, Q. C. (W. Williams with him), for the de- subsequently advanced by them to the firm. Previous fendant. Sect. 4 of the Mercantile Amendment Act to the passing of this act, it was well established, that does not alter the law as it previously stood with re- a guarantee was not to be considered as a continuing spect to guarantees, and as laid down in Weston v. guarantee, so as to remain in force after the death of Barton (4 Taunt. 672) and Simson v. Cooke (8 Moore, a member of a firm, to or for whom it was given, un558). Sect. 7 of the 19 & 20 Vict. c. 60 (Scotch Mer- less it appeared, from the terms of the instrument, cantile Amendment Act), contains expressions iden- that it was so intended to operate, as, for example, tical with those of sect. 4 of the English statute, the where the name of a firm is given, followed by the object of the Legislature being, doubtless, to assimilate words "and their successors." In such case all diffithe law of the two countries (supposing any difference culty would, of course, be obviated, but when, as in to exist); and the question is, whether, under the cir- Barclay v. Lucas, the instrument contains no such cumstances of the case, it can be said, that the inten- stipulation, the intention of the parties is often left tion of the parties, by "necessary implication," was in doubt. In Metcalf v. Bruin it was held, that a that the guarantee should be a continuing one. To bond given to trustees to secure the fathful services give this guarantee the effect contended for by the of a clerk to the Globe Insurance Company, a nonother side, the inference must be something more corporate body, might be sued upon a case of breach than a reasonable one-it must be irresistible. Black- of faithful service by the clerk, committed at any time bern, J.-In Chitty on Contracts, 473, 7th ed., it is during his continuance in the service of the actual exsaid, "Before the stat. 19 & 20 Vict. c. 97, it appears to isting body of persons carrying on the same business have been held, that when the security is given to a under the same name, notwithstanding any intermehouse, e. g. to a banking house, and not to the mem-diate change of the original shareholders, it being apbers of the firm by name, the surety would continue parent on the face of the instrument that its intention iable, notwithstanding a change of partners;" citing was to guarantee faithful service to the fluctuating Barclay v. Lucas (3 Doug. 321; S. C., 1T. R. 291, note); body who should from time to time constitute the Metcalfe v. Bruin (12 East, 400); and, per Cur., Chap- company. Then comes the Mercantile Amendment man v. Beckington (3 Q. B. 703, 722). And in the note Act, the object of which was not to alter the English to the above passage it is said, "Barclay v. Lucas has law as settled by the authorities, but to secure unibeen doubted (see 1 N. R. 42; 4 Taunt. 681); but it formity in the law of Great Britain, the Scotch law gives the true principle, viz. that if the words shew an being assimilated to the English by chapter 60 of the intention that the security should continue, notwith-same session, sect. 7. [His Lordship read sect. 4 of standing the accession of a new partner, the surety the Mercantile Amendment Act.] Now, I think this shall be liable."] Barclay v. Lucas is entirely over-enactment does not operate to alter the law of Engraled by Weston v. Barton and Simson v. Cooke. Blackburn, J.-At all events, the case is treated as good law in the notes to Lord Arlington v. Meyrick (2 Wms. Saund. 414), and seems to have been accepted as such by Mr. Justice Patteson, in his edition of the work.] [He also referred to Dance v. Girdler (1 N. R. 34) and Strange v. Lee (3 East, 484).] Bovill, in reply, referred to 1 Ball's Com. 374, 375, and Smith's Mercantile Law, 54, 5th ed. BLACKBURN, J.-I am of opinion that the defendant land, but to fix it in accordance with the decisions as they stood. It first enacts, that a change in the persons constituting a firm shall put an end to such a contract, and then follows in the nature of a proviso, "unless the intention of the parties that the promise shall continue to be binding, notwithstanding such change shall appear either by express stipulation or by necessary implication." This, I conceive, amounts to a ratification of the law as laid down in Metcalf v. | Bruin; and then comes the question, whether the in |