At the trial before Keating, J. and a special jury, at the last spring assizes at Leeds, it appeared that plt. was and had been since Feb. 1860 the occupier under a twenty-one years' lease of a mill called "Coate's Mill," an old mill erected on land abutting for some distance upon a natural stream called "Corn-mill Beck," and the deft. was a riparian proprietor, and also the owner and occupier of an ancient mill higher up the said stream, and above the plt.'s mill. The plt.'s mill was worked by water from the said stream, and prior to 1804 such water came to the mill from the said stream by a cut or " goit," as it is called, leading into a reservoir, and thence to the mill by another goit; the said goits and the reservoir being all in the land on which the mill stands. In 1804 a Mr. Bagshawe, who owned a close called "Tom Milner's Ing," also abutting on the said stream immediately above and adjoining the land on which Coate's Mill stands, entered into the following written agreement, not under seal, with a Mr. William Bracewell, the then owner of Coate's Mill and the adjoining land, and the grandfather of the present owner.

Memorandum of an agreement entered upon and made the 14th day of March, A.D. 1804, between W. C. Bagshawe, Esq, on the one part, and William Bracewell, of Coates, in the county of York, on the other part The said W. C. Bagshawe doth agree for him and his heirs to allow the said Wm. Bracewell to make a goit through a certain meadow called “Tom Milner's Ing," beginning at the west end of the same at a place called Hebble-bridge, and to extend to the north side of the said Tom Milner's Ing, entering the land of Wm. Bracewell, called Sandy-beach; this goit to be fifty yards in length, the land to be made good by the said W. Bracewell. The said W. Bracewell doth further covenant to pay for the said privilege and privileges the annual sum of 58. of lawful money to the said W. C. Bagshawe, his heirs, executors, and administrators. As witness, &c.,

[Ex.

Manisty, Q. C. and Kemplay, for the plt.. now (May 29) showed cause.-A goit was different from a right of way to which others had right of access. Plt. had exclusive right to the goit and the water passing through it from the stream to his mill, founded on a possession of sixty years. Plt. is a riparian wherever the land of his mill adjoins the water, and he was in possession of the ripa at the point where the water was taken into the goit from the stream sufficiently to maintain an action for its diversion. It was consistent with the agreement, which, the deft. contends, amounts only to a licence, that there was a demise of the goit, and a riparian proprietorship for three feet is as good as three miles. Plt. had an estate in fee in the weir at the point of the stream where the goit commences, and he had a right to the water of the stream sent down to the weir. If A.'s neighbour, B, give him a right to prop his house with supports resting on B.'s land, and C., a stranger, goes on B.'s land and knocks away the supports, has not A., who is in possession of the supports, a right of action against C.? So here plt. is in possession of the water. [BRAMWELL, B.-I think that is a very good illustration.] Deft. is a wrong-doer, having done more than as riparian proprietor he was entitled to do. They cited

Beeston v. Weate, 5 E. & B. 986; 25 L. J. 115, Q. B., per Lord Campbell, C.J.;

The judgment of Parke, B. in Jefferies v. Williams, 5 Ex. 792; 20 L. J., N. S., 14, Ex. ; Whaley v. Laing, in Ex., 2 H. & N. 476; 26 L. J. 327, Ex.; reversed in error, 3 H. & N. 675 ; and they referred to

The Stockport Waterworks Company v. Potter, 10 L. T. Rep. N. S. 748; 3 H. & C. 300. [BRAMWELL, B.-You should argue that I was wrong in my facts in The Stockport Waterworks case, here, and if it does, it is submitted that that case though right in my law.] That case does not apply was wrongly decided.

Overend, Q. C., Field, Q. C., and Rew, contra, supported their rule on the part of the defts.—In the sense of being a lessee of the land on which his mill

stood, plt. was a riparian proprietor, but that gave no rights as a riparian, at the point above. The declaration did not claim a right to water along this

last.

The plt. proved injury to his mill in the diminished quantity and the irregularity of the flow of water consequent upon its abstraction by deft. for his own purposes from the stream above the weir and the point where the said goit commenced; and on deft.'s behalf it was contended at the trial that plt., being a mere licencee under the above agreement, could not maintain the action. The learned Judge left two questions to the jury: Was the plt. entitled to the flow of water, which he claimed, through the goit? and did the deft. divert any of it so as to interfere with plt.'s right? If deft. made reasonable use of the water, and returned it subject to such reasonable use, he would be entitled to the verdict; but the plt. charged deft. with an unreasonable use of the water, and with not returning it. The jury found a verdict for the plt., with 2501. damages.

A rule was subsequently obtained to set aside that verdict, and for a new trial, on the ground that pit., as a mere licencee, and not a riparian proprietor, had no right to the water, or to maintain the action, and that the learned judge should have so directed the jury; and that, if there was a question for the jury, the legal effect of the plt.'s mode of enjoyment should have been explained to them; and that the verdict was against the evidence on that point. And against this rule

ment; but that conferred no rights of soil, but was a simple licence to have water on payment of a yearly sum-a mere privilege. It was a riparian proprietor giving a power to a non-riparian to enjoy the water on payment of the consideration, and was the very case put by Bramwell, B., in the

Stockport Waterworks case, 10 L. T. Rep. N. S. at p.
749; 3 H. & C. at p. 321;

Hill v. Tupper, 8 L. T. Rep. N. S. 792; 32 L. J. 217,
Ex.; 2 H. & C. 121.

The 2nd section of Lord Tenterden's Act, referred to by Martin, B., has nothing to do with the case. Deft. has no right to interfere, and the statute does not run against him. [MARTIN, B.-Hill v. Tupper was decided on another ground. You will find the law nowhere better laid down on this point than in the judgment of Parke, B. in Embrey v. Owen, 6 Ex. 353; 20 L. J. 212, Ex.] There was no distinction between this case and the Stockport Waterworks case, and by that case the court were bound. Plt. was not a riparian at the point of abstraction. [MARTIN, B.

But Mr. Bagshawe is.] That had nothing to do with it. [BRAMWELL, B.-Suppose Bagshawe became tenant of plt.'s mill?] That would be a different case; he would then be a riparian proprietor. There was no right to grant a right in gross independent of the land. [MARTIN, B.-This is not a right in gross, it is a right to take water for the use of a mill, and that is in respect of land.] If the mill were sold he could not retain the right to the

Ex.]

water.

[MARTIN, B. refers to Thomas v. Serrell, Vaugh. Rep. 351.]

Ackroyd v. Smith, 10 C. B. 164; 19 L. J., N. S., 315, C. P. This being an action on the case, plt. must establish, first, a right; and, secondly, an injury to that right. The mill of which plt. is possessed is not the ripa. Flowing water is not property until it is rightfully taken from the river and applied to his lands by some riparian proprietor. His right is as owner of the ripa only. If he sells only a yard wide of land adjoining the stream, he retains no water right, though he retains acres of land behind the strip sold. There is no authority for the right to maintain this action by any but a riparian. As against deft. plt. has no right to have water flow down this goit. Any right he has as against deft. is derived from Bagshawe, and that amounts only to a simple leave to cross his land to fetch water. Riparians have mutual and correlative rights inter se, and allowing one to sell to a stranger would damage the others. The case is concluded by the Stockport Waterworks Company v. Potter. They cited also

Wood v. Waud, 3 Ex. 748; 18 L. J., N. S., 305, Ex.;
The Rochdale Canal Company v. King, 14 Q. B. 122;
18 L. J., N. S., 293, Q. B.;

Sampson v. Hoddinott, 1 C. B., N. S., 590; 26 L. J.148,
C. P.;

Miner v. Gilmore, 12 Moo. P. C. Cas. 131, per Lord
Kingsdown, at p. 156;

Gale on Easements, pp. 197, 239, 281.

Cur, adv. vult.

MARTIN, B.(a)—This is an action for the recovery of damages for the abstraction of water from a natural stream called Corn Mill Beck, by the deft., as upper riparian proprietor, whereby damage was caused to the plt, the occupier of a mill called Coate's Mill. Coate's Mill is an old mill, erected upon land which for some distance abutted upon the stream in question; it is worked by water power obtained from the above stream. Prior to the year 1804, the water appears to have been taken from the stream by a goit leading into a reservoir, and thence to the mill by another goit. These goits and the reservoir are all in the land on which the mill stands. In the year 1804, a Mr. Bagshawe was the owner of a close called Tom Milner's Ing, which also abuts upon the stream, and is immediately above the mill, and, on the 14th March in that year, by a memorandum of agreement, not under seal, Mr. Bagshawe agreed for himself and his heirs to allow William Bracewell, who was then the owner of Coates' Mill and the land adjoining, to make a goit for the conveyance of the water from the stream to the mill through the ing, beginning at a certain place, and to extend to the boundary entering the land of Mr. Bracewell; to be fifty yards in length, and 5s. a-year was to be paid to Mr. Bagshawe for this and another water privilege. This goit was made, and it began at a weir across the stream which is alleged to be the property of the plt.; and from that time until the present the water of the stream ran in part down the goit towards Coate's Mill, the residue of the water running in the old channel, so that the water of the stream entered the land upon which Coate's Mill stands in two channels. It does not appear that injury was done to any one by the making or use of the goit. Neither the owner above nor the owner below seems to have sustained the slightest injury or inconvenience. The plt. is the occupier of Coate's Mill, and the deft., who, as has already been stated, is a riparian proprietor above, abstracted the water of the stream above, and to such an extent that the jury assessed the

(a) The written judgment of Martin, B. in this case was read by Pigott, B. in the absence of the former learned judge.

[Ex.

plt.'s damages at 2507. But it was contended that he had no remedy for this damage, that he had no right of property in the goit, or in the flow of the water in it, in respect of which he could maintain an action; that he was a mere licencee, and had not any property in it. The abstraction and use of flowing water to work machinery is as old as the law. Corn-mills have existed from time immemorial, and it appears, from old legal authorities, that fulling and other mills worked by water for the purpose of manufacture are of a very ancient date. Until the last century steam as a power was, if known, not much in use, and until it was introduced water power was very generally used, and it is still the cheapest, when available. The mill is sometimes situated upon the bank of the natural stream, but more usually at some little distance from it, and the water is conveyed to it by a goit or artificial cut leading from the stream, and then, after turning the wheel of the mill, flows away in, as is commonly called, the tail goit. So also water was and is very frequently conveyed from the natural stream in the same manner for purposes of irrigation, and it is not too much to say that the value of actual or supposed water rights of this character throughout England may be estimated by hundreds, thousands, perhaps millions. The law has been supposed to be well settled, and in my opinion is nowhere more clearly stated than by Lord Kingsdown, in Miner v. Gilmore, 12 Moo. P. C. C. 156. He says: By the general law applicable to running streams every riparian proprietor has a right to what may be called for instance, to the reasonable use of the water for the ordinary use of water flowing past his land; without regard to the effect which such use may his domestic purposes and for his cattle, and this have, in case of a deficiency, upon proprietors lower down the stream. But, further, he has a right to the use of it for any purpose, or what may be deemed the extraordinary use of it, provided that he does not thereby interfere with the rights of other proprietors either above or below him. Subject to this condition, he may dam up the stream for the purpose of a mill, or divert the water for the purpose of irrigation. But he has no right to interrupt the regular flow of the stream, if he thereby interferes with the lawful use of the water ble injury." According to the law so enunciated, by other proprietors, and inflicts upon them a sensiand which no doubt is the law, it would be compeof "Tom Milner's Ing" to erect a mill upon it, and tent for Mr. Bagshawe or his successor in ownership take the water from the stream to work it, provided bour above or injuriously affected the volume and he neither penned back the water upon his neigh below, and the law favours the exercise of such a flow of the water of the stream to his neighbour right; it is at once beneficial to the owner and to the commonwealth, and if this be so, why may not for their mutual benefit to take the water through the owners of two adjoining closes agree together other, returning the water to the stream in the close a goit from a close of the one into the close of the of the latter, and thereby doing no damage to anyone? In point of fact, very many goits pass through the land of different landowners between the place where the water is taken from the stream and the flow of water in a goit is a well-known easement, mill where it works the machinery. The right to a is not competent for an owner of land to render it and is an incorporeal hereditament; and although it subject to a new species of burthen at his fancy or to the right of another to have a flow of water caprice, the burthen of one man's land being subject through it to work his mill, is as old as the law itself,

and, in my opinion, is the subject of property and of grant, and not merely of licence. It is true, it being an incorporeal hereditament, it cannot be created so

[Ex.

canal, clearly J. S. could not have any action. He would not have sued in respect of any estate, or of any easement, or of any mode of enjoyment which was disturbed. Nor did the plt. in that case. It makes no difference that the two rights as far as possible were in him, namely, a right to row and a right to exclude others. It was in respect of the the former. But apply this reasoning to the present case. The plt. complains that his right is interfered with. His right is not merely that no one shall take part of the water, but that he the plt. shall take all, and this the deft. has prevented. On these grounds as well as for the reasons I gavenot for all the reasons-in the Stockport Waterworks v. Potter, I think our judgment must be for the plt.

BRAMWELL, B.-The late Lord Chief Baron and my brother Channell think that this case is not governed by the case of The Stockport Waterworks v. Potter. As the judgment in that case was theirs, I ought to defer to their view of it, and it therefore does not prevent me from saying, as I do, that I think the plt. here is entitled to recover. I abide by the reasons I gave in the other case, which I understand are considered not erroneous but inapplicable to that case. I wish, however, to add to what I then said. The principle on which it seems to me the plt. is entitled to recover is this: As a general rule, when a man has a property he may grant to others estates in and rights of enjoyment of it, and the grantees may maintain actions against those who disturb them. I do not say there is no exception; there may be for aught I know. A man entitled to land may grant leases, may grant the exclusive herbage, a right of depasturing, a right of way, a right to game; he may grant the mines underneath or the right to get minerals, and other rights in or over the property, or of enjoyment of it. So, if the land is covered with water, he may grant rights of fishing. So the grantees of mines may re-grant; so of chattels, the owner may let them to hire. And in all these cases the grantee may maintain actions in respect of the rights granted. Now what is the case here? Mr. Bagshawe is a riparian proprietor. Subject to the rights of those opposite and those lower down the stream, he may divert the water where it flows by his land; why may he not grant this right or mode of enjoyment. I say the burden of proof is on those who say he may not. This right of his, this mode of enjoying his property, is presumably grantable like others. Those who deny this must give a reason for it, and I have heard of none. It seems to me that all reasons of public convenience and all other reasons as much make this right grantable as any other right. But it may be said, how is Hill v. Tupper (ubi sup.) distinguishable? One mode of enjoying land covered with water is to row boats on it, and the owner has an exclusive right. I think it easy to point out the distinction. It was competent for the grantors in that case to grant to the plt. a right of rowing boats on the canal, and had anyone interfered with that right the grantee might have maintained an action against him. But the plt. there did not sue for any such cause of action. He sued, not because his rowing was interfered with, but because the deft. used a boat on the water. Now suppose the grantors there had granted to the plt. a right to row boats and to J. S. a right (as far as the word is sensible) that no one but the plt. should row boats on the

CHANNELL, B.-The facts of this case are very fully stated in my brother Martin's judgment. The main question argued at the bar, indeed the only question argued on the part of the deft. was, whether or not this case was distinguishable from or governed by the case of the Stockport Waterworks Company v. Potter. But the plt. contended that that decision, if applicable to the present case, was wrong. That case was argued before Lord Chief Baron Pollock, my brother Bramwell, and my brother Wilde, then a member of this court, and myself. The judgment of the court was not unanimous. My brother Bramwell strongly dissented from the judgment delivered by the Lord Chief Baron as his judgment and mine, and which, as stated by the Lord Chief Baron, had the sanction of my brother Wilde, though, being no longer a member of this court, he took no part in it. As that was, although not an unanimous judgment, still a judgment of the majority of the members of this court who heard the argument, I should, even if I had altered my opinion, feel myself bound by the decision as governing the present case unless it were distinguishable. But the present case seems to me to be distinguishable. I quite agree that the passage quoted by my brother Martin from Lord Kingsdown's judgment in Miner v. Gilmore very clearly as well as accurately states the law applicable to running streams. I think, however, that the decision in the Stockport Waterworks Company v. Potter was quite in accordance with the law as so stated, and further, if the decision in the Stockport Waterworks case was wrong, then it appears to me that Lord Kingsdown's statement would require qualification. The Stockport Waterworks case in effect decided that a riparian proprietor cannot grant away his water rights apart from his estate, so as to place the grantee in the same position with respect to the other riparian proprietors as he occupied himself. Now if that is wrong, then a riparian proprietor is not only entitled to use the stream for extraordinary purposes provided he merely abstains from interfering with other proprietors, as Lord Kingsdown says, but provided he also abstains from interfering with the grantees of other proprietors. I am not aware of any such additional restriction on the right of a riparian proprietor. It would go well nigh to destroy his rights altogether, for that can scarcely be called a right which is subject to an indefinite restriction, unascertained and practically unascertainable. I consider that the rights of a riparian proprietor with respect to the stream are limited only by those of persons in a similar and analo gous position with respect to the stream as himself. These rights he can easily ascertain, and by the same means ascertain his own, but he has no means of ascertaining who may be grantees, or what may be the nature of their grant. If therefore a riparian proprietor grants to some one, not such a proprietor, a right to abstract water from the stream, as in The Stockport Waterworks case, I think the grantee can

sue only the grantor for any interference with him. If, however, two adjoining riparian proprietors agree to divert the stream so that it shall run in two channels instead of one, the water passing again into the old stream below their land, and flowing down to the lower proprietors as before, the case is I think different; what is done is apparent to all, and any use that may be made of the new stream, as to turn a mill for instance, is as apparent as if the mill were upon the old stream. What is done by the two proprietors may be supposed to be a more convenient way of making use of the flow of water, while it in no way diminishes or affects the rights

of other proprietors. This distinction is alluded to

in the judgment of the majority in the Stockport Waterworks Company v. Potter, where it is said: "The case where a riparian proprietor makes two streams instead of one and grants land on the new stream, seems to us analogous to a grant of a portion of the river bank, but not analogous to a grant of a portion of the riparian estate not abutting on the river. In the case of a grant of land on a new stream, the grantee obtains a right of access to the river, and it is by virtue of that right of access that he obtains his water rights." Now, in the present case, Coate's Mill is on an estate abutting on the river. Prior to 1804 the water came to the mill from the stream through a goit and a reservoir, all in the millowner's estate. Since then there has been either an additional supply of water or a substituted one, I am not sure which, through a goit leaving the river higher up on the estate of another proprietor. Now, it seems to me that the goit is to all intents and purposes a new stream, and any person having land upon it would have the right of a riparian proprietor, namely, to use the water in any way not interfering with others. I see no reason why the law applicable to ordinary running streams should not be applicable to such a stream as this, for it is a natural stream or flow of water, though flowing in an artificial channel. It may be that the case of an entirely artificial stream, as one flowing from a mine for instance, would be different, but that an artificial stream may be on the same footing as a natural one as regards the rights of riparian proprietors is held in Sutcliffe v. Booth, 32 L. J. 136, Q. B. I think therefore that in the present case the plt. has a right of action and that the rule for a new trial ought to be discharged.

Rule discharged.

[Ex.

on 10th June, 701., viz., 91. in cash, and his acceptance of a bill for 611. at three months, and procured for them a guarantee signed by the deft. in the following terms: "June 10th, 1861.—In consideration of the credit given by Messrs. the Hindley Green Coal Company" (the plts.) "to my son Mr. J. P., for coals supplied by them to him, I hereby hold myself responsible as a guarantee to them for the sum of 100l., and in default of his nonpayment of any accounts due, I bind myself by this note to pay to the Hindley Green Coal Company whatever may be owing to an amount not exceeding the sum of 1001. (Signed) Wm. Priestner."

Upon this, plts. continued supplying coals to A. until 1865, when he became insolvent and died owing plts. a sum exceeding 100l., but the amount due for goods supplied prior to June 1861 had been all paid. Plts. sued deft. on the above guarantee and obtained a verdict, and upon a rule to enter a nonsuit on the ground that the guarantee was not a continuing guarantee, it was Held, by Kelly, C. B., Martin, Bramwell, and Pigott, BB. (discharging the rule), that, construing the document, as it was not only legitimate but necessary to do, by the light of the surrounding circumstances and with reference to the state of facts existing at the time it was given, it was a guarantee not for the specific sum of 1001. then due, but a continuing quarantee, to that amount, for any accounts which should become due in the course of the future supply which was then contemplated by the parties (Martin, B., though concurring, saying that he by no means considered it a clear case).

Per Kelly, C.B.-It is immaterial, in the legal construction of a guarantee, that the party signing it knew nothing of the circumstances or the dealings between the debtor and his creditor, because generally, a person signing such an instrument must be taken to have intended that which the words themselves naturally import, with reference to the circumstances that exist, whether he has taken care to make himself acquainted with the circumstances or not.

This was an action to recover 100%. on a guarantee, which was set out in the first count as follows:

Wilmslow, June 10, 1861.

And the declaration goes on to say that the plts. thereupon afterwards, in pursuance of the said guarantee, gave the said credit to deft.'s said them to him, and after the making of the said son for coals which had been theretofore supplied by guarantee, and in pursuance thereof they supplied on credit further coals to deft.'s said son, and that amounts for coals so supplied exceeding 1007. became and were still due and owing from the said son to plts. in respect thereof, and deft.'s son made default in payment thereof, and plts. did all things necessary, &c., and all things and times, &c., necessary, &c., and yet the deft.'s son has not, nor has deft. paid the same or any part thereof, and the same to the full extent of 100l. remains due and unpaid contrary to the said guarantee. The second count was for money paid and money lent, and on accounts stated. The third count was on a guarantee for the future supply of coals on credit to deft.'s son to the extent of 100%.

count, payment by the son before action. 5. To residue of the declaration, never indebted. 6. To the last count, traversing the promise as alleged. 7. To the same count, denial of the supply on credit. 8. To the same count, payment before action by the said J. Priestner. Deft. also demurred to the first count on the ground that the consideration of the guarantee was executed, and the first count showed no supply of goods after it was given.

At the trial before Martin, B., at the last summer assizes at Manchester, it appeared that plts., who traded as coal merchants at Manchester under the style of "The Hindley Green Coal Company," had for some time prior to 1861 supplied coals to deft.'s son, a coal dealer at Wilmslow, the settlement of accounts between them taking place monthly. In June 1861 the son was indebted to them in 701. for coals supplied in the previous March, and in a further sum of 621. 4s. for coals supplied in April, both of which accounts were then due, and he was also indebted to plts. in 377. 16s. for coals supplied in May, but which would not become payable, in course of business, until the end of the then current month of June, the aggregate amount of the said several accounts being 170. On the 8th June he paid plts. 97. on account, and upon their complaining of the state of his account, and threatening to close it, and not to supply him with any more coal without some security for the business they were doing with him, he said his father (the deft.) would become | a guarantee for him, and it was arranged that he should obtain for plts. his father's guarantee for 1007. One of the plts. then drew up a bill of exchange dated 9th May, at three months after date, for 617, being the balance of the March account, and also the guarantee in question, both which documents they sent in a letter to the son, who returned them in a day or two to the plts., the bill of exchange accepted by himself and the guarantee signed by the deft. Thereupon the plts. continued supplying him with coals till 1865, when he became insolvent, and died owing them a sum considerably exceeding 100%, but the amount due for goods supplied prior to June 1861 had been all paid. Plts. then brought the present action against deft. on his guarantee, and obtained a verdict for 1007, the learned judge reserving leave to the deft. to move to set that verdict aside, and to enter a nonsuit, on the ground that the guarantee was not a continuing guarantee. A rule nisi to that effect having been obtained in this term,

E. James, Q. C. and Baylis, for the plts., now showed cause against it. The guarantee must be looked at by the light of the surrounding circumstances. Plts. refused to continue their dealings with the son without being secured, and immediately on receiving the guarantee they continued to supply him with coals, thereby clearly showing an intention that the guarantee should extend not only to past but also to future and continuing supplies. Credit already given was no consideration for the promise to pay. The words "in consideration of the credit given" mean "credit to be given," and "for coals supplied" mean "coals to be supplied." So also the words "any accounts due" are to be read as "any accounts to become due hereafter." It is in fact, both on the face of the document itself, and also looking at it in connection with the existing facts at the time, an undertaking to pay any future accounts to the extent of 100l. The true principle is, where a document of this nature is capable of a double construction, to call in aid the surrounding circumstances to show the real meaning: (Kennaway v. Treleaven, 5 M. & W. 498; 18 L. J., N. S., 20, Ex.) In Houde v. Grace, 5 L. T. Rep. N. S. 359; 7 H. & N. 494; 31 L. J. 98, Ex., it was held that the words "for goods supplied"

[Ex.

did not necessarily import a past consideration, and ought to be read "for goods to be supplied; and semble, also by that case, that parol evidence of intention is admissible where the terms of the guarantee are ambiguous, uncertain, or indefinite. They cited also

Carr v. Montefiore, 11 L. T. Rep. N. S. 157; 5 B. & S. 408; in error, 425; 32 L. J. 57, Q. B.; in error, 257, Q. B.

Holker, contra, for deft., supported his rule.-No doubt the intention of the parties, if a matter of doubt, may be ascertained by the surrounding circumstances at the time; and here they were in favour of the deft.'s contention. At the time in question 1707. was due from the son for coals, which he was unable to pay, and plts. agreed to forbear to press him for payment upon receiving security for it. Thereupon he pays 9. in cash, and gives his acceptance for 61, making 701, and the guarantee is given for the remaining 100%. Construing the document by the light of the facts, without altering a single one, the facts and the language supported each other, and showed it to be a guarantee for the then existing debt. "In consideration of the credit given" meant a forbearance to press; and for coals supplied" referred accurately and grammatically to a past supply, and could only be applied to a future supply by a forced construction. The only words favourable to the plts. were "any accounts due;" but it must be remembered that the debt of 170. due at the time consisted of a series of monthly accounts, and deft. guaranteed that if his son failed to pay any of them he would pay them, up to 1001. Allnutt v. Ashenden, 5 M. & G. 392; 12 L. J., N. S., 124, C. P.; and Nicholson v. Paget, 1 Cr. & M. 48; 2 L. J., N. S., 18, Ex., were authorities in deft.'s favour; and the observations of Bayley, B. in the latter case particularly so. Hoade v. Grace (ubi sup.) was a peculiar case, and the question there was, whether a plea was, on demurrer, necessarily an answer to the declaration. [PIGOTT, B. referred to Goldshede v. Swan, 1 Ex. 154; 16 L. J., N. S., 284, Ex.]

KELLY, C. B.-It appears to me that this is a continuing guarantee, and that the plts. are entitled to the verdict which they have obtained. The question in all these cases depends not merely upon the particular words to be found in the instrument before the court, where the words are at all ambiguous and require the aid and consideration of the surrounding circumstances before a meaning can properly be asked to be given to them; but it is necessary also to look at the surrounding circumstances and the existing state of things, and apply. ing the instrument in question and the language the parties have used to that state of things, to construe it according to what appears to be the real intention of the parties. Let us, then, look at this guarantee, and consider the facts as they existed at the time, and arising therefrom, as throwing light on the language used. It begins thus: "June 10th, 1861. In consideration of the credit given by Messrs. The Hindley Green Coal Company to my son Mr. James Priestner, for coals supplied by them to him. I hereby hold myself responsible as a guarantee," and so forth. Now, there is then, first, the "consideration of the credit given." If this had been a guarantee the consideration for which was to be the credit which had been already actually given, or if it had been intended to be confined to the amount for which the credit had been given, and it had been the real consideration that the plts. should forbear to sue for that amount, one would suppose that, instead of expressing it "in consideration of the credit given," it would have been at once "in consideration of time being given to my son for