Dawes; that, with regard to goods consigned to Messrs. Pope & Co., nine-tenths thereof were a different class of goods and charged at a different rate to the dock rate, and that, by contract with the company, such goods were by the joint assistance of the servants of the company and of Messrs. Pope placed in barges brought alongside the wharf, but such barges were the only conveyances brought to Nine Elms by Messrs. Pope; that the company's ordinary rate for the same class of goods as those conveyed from Southampton Docks at 138. per ton, if conveyed from any other place would be charged at a higher rate, in which charge the labour of transfer would be included; that, with respect to the rates *746] of 118., 8s. 6d., and 68. 6d. per *ton mentioned in Cooper's affidavit, such rates had reference to different classes of goods to those conveyed at the dock rate, and that the goods charged at 118., 88. 6d., and 68. 6d., did not include silk or fine goods of any description; that, out of the 21 tons of goods which arrived at Nine Elms for Messrs. Pickford, at least seven-tenths thereof arrived mixed up with the company's traffic; and that nearly the whole of the 327 tons of goods which arrived at Nine Elms for delivery to Cooper arrived in separate trucks. The learned counsel submitted that the rule was completely answered, the defendants' affidavits clearly showing, that, in unloading and delivering Messrs. Pickford's goods into their vans, the company were merely consulting their own convenience, the quantity of goods brought for Messrs. Pickford being small, and not brought, as the complainant's goods were, in separate trucks; and that, if this was intended to be complained of, the rule should have been differently framed, and should not have called upon the court to enjoin the company to unload and deliver the complainant's goods, but should have been confined to the enjoining them from doing in this respect for others that which they refused to do for the complainant.

Bovill, Q. C., and Pearce, in support of the rule.-It is not denied that the company decline to unload the trucks containing Mr. Cooper's goods, though they have hitherto been in the habit of doing so for others; and they admit that they still do so for Messrs. Pickford. The fact that the quantity of goods carried for Messrs. Pickford is inconsiderable as compared with that carried for Mr. Cooper in no degree varies the rights of the latter. The company are bound to treat all alike. [COCKBURN, C. J.-What power has this court under the statute to interfere respecting the mode of dealing with the goods by *747] the company after they arrive at their destination?] The goods

have not arrived at their destination until they are delivered to the consignee,-into the wagon or carriage of the consignee: Richards v. The London, Brighton, and South Coast Railway Company, 7 C. B. 839 (E. C. L. R. vol. 62); Butcher v. The London and South Western Railway Company, 16 C. B. 13 (E. C. L. R. vol. 81). [WILLIAMS, J.-In those cases, the companies were held liable because they took upon themselves to deliver the goods into the passenger's carriage.] So here, the company took upon themselves to unload and deliver into the vans for Messrs. Pickford. If they do this for one, they must do it for all. At all events, Mr. Cooper has a right to complain that facilities are afforded to others which are withheld from him. [COCKBURN, C. J.-That is not the complaint he makes.] Substantially, it is submitted, it is so.

COCKBURN, C. J.-Looking at all the circumstances of the case, I am

of opinion that this rule must be discharged. I do not say that Mr. Cooper has not some ground of complaint against the company. It appears that the company, having formerly been in the habit of unloading goods brought by their railway from the Southampton Docks, out of their trucks into the wagons or other conveyances of the consignees, have recently established a new system, and have, in the case of the complainant, Mr. Cooper, declined to allow their servants to assist in unloading his goods from their trucks. It further appears, that, as regards Messrs. Pickford, the well-known carriers, the company have, notwithstanding this alteration in their general course of dealing, continued to allow their servants to unload their goods from the company's trucks and place them in Messrs. Pickford's vans, free of extra charge. At the same time, it appears that the quantity of goods of *the description in question which were brought up from Southamp[*748 'ton for Messrs. Pickford is very small as compared with the quantity brought for the complainant. It further appears that the complainant, on being led to believe that this advantage which the company denied to him was continued to others, instead of remonstrating with the company, and resting his complaint upon this, the only true ground, based it upon the withdrawal of an advantage which had formerly been conceded. If Mr. Cooper had communicated to the company the real ground and nature of his complaint, it being unjust that the company should extend to a rival carrier an advantage which they do not extend to Mr. Cooper, even though the amount of such advantage should be comparatively small, the company being bound to afford equal facilities and advantages to all, whether the quantity of goods carried be large or small, we might have felt ourselves called upon so to mould the rule as to meet the particular case. It is one thing to say that the company shall not transfer from their trucks the comparatively small quantity of goods they bring from Messrs. Pickford into the vans of that firm: but it is a very different thing to say, that, because they do that for Messrs. Pickford, they shall be compelled also to unload and deliver into the complainant's wagons the large quantity which they bring for him. The rule, therefore, cannot be made absolute in the form in which it is moved. It asks more than is necessary to redress the grievance complained of: and if we were to make it absolute in its terms we should be inflicting upon the company a grievous hardship. If the plaintiff had stood before us without exception to his conduct, we might have moulded the rule so as to meet the justice of the case. But, looking at all the circumstances, and seeing that the grievance is a comparatively small one, and that the complainant has not taken the course which it is reasonable to suppose would have led to his complaint being [*749 redressed, I think we are not called upon to step out of the way to assist him. I therefore think the rule must be discharged, but without costs, and with an intimation that the company are not justified in giving facilities to Messrs. Pickford which they do not afford to Mr. Cooper, and that, if a renewed application be rendered necessary, it may attended with more success.

The rest of the court concurring,

Rule discharged without costs.

be

JOHN BOYD and Another v. JOSEPH ROBINS and NATHAN LANGLANDS. July 5.

In July, 1850, A. and B. gave C. a guarantee (continuing) for goods to be supplied to D., with a stipulation that the security should subsist "until C. received a notice in writing to the contrary." Goods were supplied to D. upon the faith of this guarantee, and a balance exceeding 2007. was due in respect thereof. In June, 1854, B. became bankrupt, and duly obtained his certificate. No notice having been given to determine the guarantee:-Held, that B.'s liability thereon was a "contingent liability” within the 178th section of the 12 & 13 Vict. c. 106, and consequently that his certificate was a bar to a claim in respect of goods supplied to D. after the bankruptcy of B.(a)

THIS was an action brought upon a guarantee dated the 25th of July, 1850, to recover the sum of 2001. for goods sold and delivered and money lent to and money paid for one Thomas Kerr, by the plaintiffs.

The defendant Robins suffered judgment by default. The defendant Langlands pleaded; and, by consent of the plaintiffs and Langlands, and by order of Crowder, J., the following case (of which the pleadings *750] were *to form part) was stated for the opinion of the court:At the time when the guarantee was given, the plaintiffs were, and still are, warehousemen carrying on business at No. 5, Friday Street, London, and the defendant Robins was a miller and cornchandler, and the defendant Langlands was a grocer and cheese-monger, at Dartford, in Kent. Thomas Kerr was a draper at Dartford.

On the 25th of July, 1850, the defendants, at the request of Kerr, gave the plaintiffs the following guarantee in writing:

"To Messrs. John and Christopher Boyd, of No. 5, Friday Street, London, warehousemen, and the survivor of them.

"In consideration of your selling goods to Thomas Kerr, of Dartford, in the county of Kent, draper, we do hereby agree to guaranty to you and each of you the due payment of the amount of, or the balance unpaid to you for, any goods sold and delivered, and to be hereafter sold and delivered, and of any money lent and to be lent to or paid for the said Thomas Kerr by you, to the extent of 2007.: And we do further agree that you shall be at liberty at any time hereafter to call upon us for the payment of the said sum of 2007., which may be applied by you as you think proper, either in payment or part payment of any debt which may be due to you from the said Thomas Kerr, or to make up any deficiency, or towards any loss on any debt which may be due or have been due to you, and not have been paid by him, after receiving any dividend or dividends or composition from his estate or him: And we do further agree that you shall be at liberty, without giving notice to us, or obtaining our consent, to extend the usual time or times of payment or credit for any goods sold or to be sold to the said Thomas Kerr, and to renew or take from him, as you may think proper, any bills,

notes, or securities for *the payment of any debt due from him *751] to you, or any part thereof, and also to receive or accept any

composition from the said Thomas Kerr in full for any debt, and to execute any release to him of the debt due from him, or any part thereof, and also to execute any assignment made by him in trust for his creditors: And we do further agree that this guarantee shall be a continuing guarantee, and shall be binding upon us for the payment of the

(a) See the note at the end of the case.

said 2007., at all events, and under all circumstances, until you receive a notice in writing to the contrary. In witness, &c.

(Signed) "JOSEPH ROBINS.

“NATHAN LANGLANDS.”

On the faith of this guarantee, the plaintiffs from time to time after the said 25th of July, 1850, and before the bankruptcy of the defendant Langlands, sold and delivered goods and lent money to and paid money for the said Thomas Kerr, to an amount exceeding 2007.; and in respect thereof the defendant Langlands, at the time of his bankruptcy, was liable to the plaintiffs to the amount of 2001. by virtue of the said guarantee.

The sum so due to the plaintiffs from the said Thomas Kerr was paid by him to the plaintiffs after the defendant Langlands became and was adjudicated bankrupt on the 24th of June, 1854, on the petition of a creditor to whom the defendant Langlands was indebted in an amount sufficient to support proceedings in bankruptcy.

The defendant Langlands was before and at the time of the said petition and adjudication a trader subject to the bankrupt laws, and obtained his certificate of conformity as such bankrupt, which was duly allowed on the 7th of September, 1854.

There was an estate of the said Nathan Langlands as such bankrupt applicable to the payment of dividends on the proofs under the said adjudication.

*The plaintiffs have not received notice in writing on behalf of the defendants, or either of them, that the said guarantee was not to remain a continuing guarantee.

[*752.

The plaintiffs after, and having notice of, the said bankruptcy and the obtaining and allowance of the said certificate, sold and delivered certain other goods, and lent to and paid other money for the said Thomas Kerr, to an amount exceeding 2007.: and there is now due in respect of the same from the said Thomas Kerr a sum exceeding the said sum of 2001., which said sum the said Thomas Kerr, though requested to pay, has not paid. The defendants have been requested to pay, but have not paid the said money.

The question for the opinion of the court was, whether, under the circumstances of the case, the defendant Nathan Langlands had a good defence to the action. If the court should be of opinion that the plaintiffs were entitled to recover against him in this action, then judgment was to be entered for the plaintiffs for the amount of 2007. But, if the court should be of opinion that the plaintiffs were not so entitled, then judgment was to be entered for the defendant Nathan Langlands, with costs of his defence, including the costs of and occasioned by this case; or (if the court should think fit so to order) the name of the said Nathan Langlands as a defendant might be struck out of the proceedings in this action, without objection on his part, on payment by the plaintiffs of costs as aforesaid.

C. W. Wood, for the plaintiffs.-This was a continuing guarantee until a notice given to determine it, and therefore it is altogether unaffected by the bankruptcy and certificate of Langlands. [WILLIAMS, J. -This point arose before the Lords Justices in a case of Ex parte Barwis, In re Strahan, 6 De Gex, McN., & G. 672. *There, a joint and several covenant was entered into by a principal debtor and VOL. IV.-29

[*753

his surety that the principal would pay a sum of money by three instalments, on three specified days. The first instalment was duly paid, but before the second became due the surety became bankrupt. The creditor applied to the commissioner to be admitted to claim against the bankrupt's estate in respect of the amount of the two unpaid instalments and interest, and was allowed: And the Lord Justices, on appeal, affirmed his decision, holding that the claim was properly admitted as upon a contingent liability under the 178th section of the 12 & 13 Vict. c. 106.] The plaintiffs' claim here is in respect of goods for which there could be no proof. Warburg v. Tucker, 5 Ellis & B. 384 (E. C. L. R. vol. 85), is an authority in point. There, the defendant, being indebted to the plaintiff, assigned to him, as security, an insurance on the defendant's life, and an insurance on the life of the defendant's wife, and covenanted, -first, to pay the premiums,-secondly, that, if he did not pay them, the plaintiff might pay them, and he, the defendant, would repay the plaintiff. The plaintiff sued the defendant upon this covenant, assigning for breaches,-first, that the defendant had not paid the premiums,-— secondly, that the defendant had not repaid to the plaintiff premiums paid by the plaintiff on the defendant's default. The defendant, to the whole declaration, pleaded his bankruptcy and certificate, averring that they had occurred after the execution of the deed, but not that they had occurred after the breaches had taken place. On demurrer to the plea, it was held that it gave no answer to the declaration, neither of the plaintiff's claims being a debt payable upon a contingency within s. 177, nor a liability to pay money upon a contingency within s. 178. The observations of Lord Campbell in that case apply most strongly here. [WILLIAMS, J.-*That was said to be, not a contingent

*754] liability to pay money, but a contingent liability to pay damages.

The Court of Queen's Bench and this court (in Young v. Winter, 16 C. B. 401 (E. C. L. R. vol. 81)) are at conflict upon the other point: therefore that case can hardly be considered as an authority here; especially as the Lords Justices in Ex parte Barwis give the preference to Young v. Winter.](a) It is impossible that words could be larger than those of this guarantee. The only sections of the bankrupt act which can apply to the present case, are, the 177th and the 178th. Section 177 enacts, that, if any bankrupt shall, before the issuing of the fiat or the filing of a petition for adjudication of bankruptcy, have contracted any debt payable upon a contingency which shall not have happened before the issuing of such fiat or the filing of such petition, the person with whom such debt has been contracted may, if he think fit, apply to the court to set a value upon such debt; and the court is hereby required to ascertain the amount thereof, and to admit such person to prove the amount so ascertained, and to receive dividends thereon; or, if such value shall not be so ascertained before the contingency shall have happened, then such person may after such contingency shall have happened prove in respect of such debt, and receive dividends with the other creditors, not disturbing any former dividends, provided such person had not when such debt was contracted notice of any act of bankruptcy by such bankrupt committed." And s. 178 enacts, that, "if any trader who shall become bankrupt after the commencement of this act shall have

(a) See Warburg v. Tucker, in error, 28 Law J., Q. B. 56.