« EelmineJätka »
defendant entered into an agreement that the debt. Now the rule of law is clear, the defendant should take all Field's pro- that if there be a deed stating what shall perty, and should påy his other creditors be the relation between the parties, and five shillings in the pound. Upon the declaring in another part of the deed death of Field, the defendant having put that certain consequences shall not follow the bond in suit against the plaintiff, which the law annexes to such relation, Wood, V.C., granted a perpetual in- one or other of such parts of the deed junction, and ordered the bond to be cannot stand. In such a case as that, the cancelled. • As to giving time,' said law would hold the relation to exist, but his Honour, the authorities which are the consequences not to attach. In Solly almost innumerable have settled that v. Forbes (2), where there was an express upon any giving of time to a prin release of a debtor, with a proviso that cipal debtor, if there be a reservation such release should not be taken to reof rights against the surety, the surety is lease another person who was jointly liable not discharged. . . A release, however, with the debtor, the Court looked to the stands upon an entirely different footing. whole of the deed and construed it so as The case of Nicholson y. Revill (6), which to give effect to the intention of the is recognised in Kearsley v. Cole (1), has parties, by holding the release not to decided that when an actual release is extinguish the debt but to be restrained given no right can be reserved, for the debt by the proviso which followed it. A is gone at law. . . What I rest my judg- different consideration from this arose in ment on principally is the result of this the case of sureties. Sureties are entitled transaction upon the face of it. There is to proceed against the principal debtor, nothing in evidence that shakes any portion and therefore if the creditor gave time to of the agreement. The utmost that the the debtor without the assent of the sureevidence amounts to is, that there was an ties, the latter were discharged. A further intention with this agreement, such as it consideration arose in the case of a compois, to assert a reservation of right against sition with the principal debtor, and it was the surety. I hold that if such a reser- considered that then the surety should not vation had been put in, it would have proceed against the principal debtor, and been a nullity. If a man, in consideration should consequently be discharged. But of the debt due from his principal debtor, if the principal dehtor consented to the agrees to buy the whole of the debtor's creditor having recourse to the surety, property, he has been paid; and if he has the latter would not be discharged, and been paid he cannot reserve his rights.' ” would have his remedy against the prin
cipal debtor. It is in reference to these Willes, J.--I am of opinion that this two considerations that cases have arisen. rule must be discharged. The defen- The former was rejected by Lord Wensdant's equitable plea is correctly framed leydale in Kearsley v. Cole (1), and albecause it sets up a release, by which it though his opinion was doubted by Lord alleges the principal debtor was dis- Truro in Owen v. Homan (3), it was charged without reserving the creditor's afterwards adopted in Price v. Barker (4), right to sue the surety. When the re- and followed in terms in Green v. Wynn lease in the deed is looked at, it is in (5), and it must now be considered as terms a release, subject to a proviso ; settled that a surety has no right to say and although, but for such proviso, it he is discharged, where without his conwould be an absolute release, so that sent the creditor has given time to the there could be no proceeding afterwards principal debtor, or entered into a coveagainst a surety, yet the proviso expressly nant not to sue, if the principal debtor reserves the creditor's remedy against a has entered into stipulations with the surety, and stipulates that any creditor creditor by which the remedy against may execute the deed without prejudice sureties has been reserved. The second to his claim against any surety. The consideration, viz., with respect to the question is whether that proviso prevents effect of compounding with the principal the release from absolutely extinguishing debtor, is discussed and fully considered
in a note to Lewis v. Jones (8), by the a transaction as that.” Nothing can be late Mr. Justice Cresswell, which has
clearer stated; it is agreed that if there been erroneously attributed to Mr. Justice be an absolute discharge of the debt there Holroyd, where it is pointed out that the can be no reservation, for it would be reason why the creditor cannot recover inconsistent with such discharge to reagainst the surety after compounding serve a right against the surety. The with the principal debtor, is that it would decision, therefore, in Webb v. Hewitt (7), otherwise operate as a fraud on the prin- is quite in accordance with the other cipal, “inasmuch as it would give the
The question, then, in the present surety a right to proceed against the case is simply this, was there an absolute principal for the debt from which the release of the debt? The answer is that creditor had agreed to discharge him.” there were words of release, but coupled On that ground it has been held that the with other words which cut those words principal debtor must be a party to the of release down to a covenant not to sue. agreement, reserving the rights of the The rule therefore must be discharged. creditor against the surety, since as it I only wish to add that there was not then takes place with consent of the prin- here, as suggested by Mr. Turner, a sale cipal, a recovery against the surety cannot of the property of the principal debtor, be a fraud on the principal. The case of there was only an assignment with a a release is, as has been correctly argued, power to the trustees to carry on the distinguishable from these. The effect of business if they chose to do so, and therea release is pointed out by the Court in out pay the debts, but there was no Cowper v. Green (9). There there was a discharge until the debts had been paid; composition deed with a release of debts, and I may further observe that although and the debtor afterwards promised one the surety would bave a right to compel of the creditors who had executed the the application of the moneys received by deed to pay the rest of the debt, if the the trustees to the discharge of the debts, creditor would give up a security he held he had no lien on the assets which were for bis debt, and the Court held that such assigned. The true result of the deed is a promise was without consideration, and that the creditors obtain by it an addithat not only the security was gone and tional security for their debts, and if such discharged by force of such release, but debts be paid the surety will have the that the debtor was entitled to get it benefit of it. back, so that that case was a stronger case KEATING, J.-I am of the same opinion. than that of Nicholson v. Revill (6). It The action is on a bill of exchange against comes round then to this,—that if the the defendant as the indorser; and the principal debtor be absolutely discharged plea is, that the plaintiff released the of the debt, the creditor can have no acceptor without reserving his right to remedy against the surety. That explains
sue the defendant as surety. what is said by the present Lord Chan- tion is, whether that plea has been proved. cellor, then Vice Chancellor Wood, in Now a deed was produced at the trial Webb v. Hewitt (7), where, after referring containing words of release in favour of to Kearsley v. Cole (1), he gives his the principal debtor, but with the words reasons for holding that no right was subject to the proviso next hereinafter reserved against the surety, and those contained," and therefore the words cease reasons conclusively shew that he thought to be a release when so coupled with the it was necessary for that purpose that the proviso. Mr. Turner does not deny that debt of the principal should be absolutely under these words, if the right to proceed discharged. “ The debt," he said, “is against the surety is reserved, the remedy gone in equity, and it is impossible to against the defendant as surety exists, reserve a right against the surety in such but he contends that the release is an
absolute one by reason of the whole (8) 4 B. & C. 515.
tenor of the deed, and that therefore the (9) 7 Mee. & W. 633 ; s. c. 10 Law J. Rep.
liability of the defendant as surety is Exch, 346.
gone. He does not contend that a mere
transfer of the debtor's property would If it was the duty of the trustees under avail for this purpose, and he admits that the present deed to realize the assets and the transaction must be such as to collect the debts in the ordinary way, I amount to a release of the debt. What do not understand that Mr. Turner would he says is, that the mode of the transfer contend there would be here an absolute in the present case was such as to amount release, because the case would then be to a payment and satisfaction of the debt, concluded by that of Kearsley v. Cole (1), and no doubt if that were so there could but he says that the duty of the trustees be no reservation against the surety. But is not to collect and realize in the ordinary what is it on which he relies for this ? way, but to carry on the business for the only the power given to the trustees to benefit of the creditors. But I do not carry on the business for the benefit of agree with him that that duty can alter the the creditors. I do not see how that can rule where, as here, it is no part of the amount to a payment. If the business deed that the business is to be that of had been taken by the creditors in satis- the creditors for ever, but that if a profit faction of their debts it might have be made from it more than sufficient to amounted to what Mr. Turner has con- satisfy the debts, there is to be a resulting tended for, but it was not so taken, and trust for the principal debtor. The carryit is admitted that there would be a ing on the business is only in the present resulting trust for the assignor, so that case another mode of realizing the debtor's he would be entitled to any surplus which property, and Mr. Turner has failed to shew might remain after payment of the debts. that on the true construction of the deed Then if there was no satisfaction of the the release was absolute, so as to extinplaintiff's debt (and I cannot see how it guish the debt. This rule must therecan be properly said there was any such fore be discharged. satisfaction in this case), there are words COLLIER, J.-I am of the same opinion. in the deed, which, being qualified by the The first question is, whether on the true proviso, do not amount to an absolute construction of the deed in this case it release, but only to a covenant not to operates as an extinguishment of the sue. The plea, therefore, has not been debt or only as a security for it. In my proved, and the rule must be discharged. opinion it operates only as a security.
BRETT, J.-If on the true construction The second question is, whether there is of the deed there was an absolute release an absolute release. It is said there are so as to extinguish the debt, the remedy words of absolute release. It is true against the surety is gone; but if there there are such, but they are qualified by was not such an absolute release, then, a proviso, and in effect they amount to inasmuch as the right against the surety only a provisional release and not to an is expressly reserved by the deed, it is absolute release. equally clear that the plaintiff can sue the
Rule discharged. defendant. The question, therefore, is, what is the true construction of the
Attorneys-W. F. Stokes, for plaintiff; J. B. deed? The mere fact of there being in
Pittman, for defendant, one part of the deed words in the form of a release is not sufficient to make it such an absolute release, because the whole deed must be looked at. The case of Solly v. Forbes (2) is an authority for that,
END OF MICHAELMAS TERM 1871.
NEW SERIES, 41.-C.P.
Court of Common Pleas,
AND IN THE
Erchequer Chamber and House of Lords
ON ERROR AND APPEAL IN CASES IN THE COURT OF COUMON PLEAS.
HILARY TERM, 35 VICTORIÆ.
duct in misappropriating a large sum of Nov. 11, 15, 25. Re BRUTTON, AN money belonging to a client of his, under 1872.
the circumstances mentioned in the case Jan. 15.
of Earl of Dundonald v. Masterman (1), Attorney — Misconduct — Suspension
and for this misconduct the Master of Practice where Attorney has been suspended him from practising as a solicitor in his
the Rolls had made an order, suspending by another Court.
Court until the end of Hilary Term, Where an attorney has been suspended 1874. for a limited period by the order of one of Murray thereupon, early in Michaelmas the Superior Courts, the Court of Common Term last, asked this Court to follow the Pleas will not adopt such order by suspend- course adopted by the Master of the ing, in like manner, the attorney from prac- Rolls, and in like manner to make an tising in that Court, without examining the order to suspend Brutton from practising facts on which the order was made, and ex- in the Court of Common Pleas, until after ercising its own discretion in the matter. Hilary Term, 1874.
In u case in which the Master of the Rolls ordered an attorney to be suspended for a WILLES, J.-We ought to exercise a certain period, and the misconduct for which discretion in the matter, and have the he was so suspended was such that he might facts before us on which the Master of have been struck off the roll for committing the Rolls acted, in order to see whether it, the Court of Common Pleas, after read- we agree with him or not in the sening the affidavits used before the Master of tence he has passed. The practice is the Rolls, ordered the attorney to be sus- thus stated in 1 Chitt. Arch. Prac. 11 ed. pended from practising in that Court, not p. 154: “Where an attorney has been susonly for the period ordered by the Master of pended by one of the Superior Courts the Rolls, but until the further order of for a term of years, it is not compulsory that Court.
upon the other Courts of co-ordinate juris
diction to suspend him also, but they W. C. Brutton, who was an attorney and solicitor, had been guilty of miscon. (1) 38 Law J. Rep. (N.s.) Chanc. 350.
will look into the affidavits and exercise the money he had misappropriated. The their own discretion." For this is cited Court is bound to protect its suitors, and Re De Medina (2). The proper course is
the Court is unable to see here any cirto apply for a rule nisi in the alternative cumstance from which it may be induced to strike the attorney off the roll, or to to conclude that at the end of the limited suspend him, and to bring before the period of suspension the attorney would Court the materials on which the Master be a person to be entrusted by suitors, of the Rolls acted.
especially as he has not restored the money
he has so improperly taken. We ought Murray, accordingly, on a subsequent to act according to our practice, and, at day (Nov. 15), applied for and obtained the same time, we ought not to overrule a rule nisi to that effect, bringing before the order of the Master of the Rolls, the Court all the affidavits on the reading which, in effect, we should be doing, if of which the Master of the Rolls had we were to order the attorney to be struck made his order, and he afterwards off the roll. The proper course is an inter(Nov. 25) moved to make such rule mediate one, which will give the attorney absolute.
a further opportunity of explaining his No cause was shewn against it.
conduct. We, therefore make the rule Cur. adv. vult. absolute for the suspension of the attorney
for the time specified in the order of the WILLES, J. (on Jan. 15), delivered the Master of the Rolls, and also for his sus. judgment of the Court (3).
pension from further practising in this This was an application which was origi- Court until the further order of this nally made to us to suspend an attorney Court. from practising in this Court until the end
Rule absolute, accordingly. of Hilary Term, 1874, on the ground that the Master of the Rolls had ordered
Attorney-E. W. Williamson, for the Incorpohim to be suspended for that limited
rated Law Society. period, and we were asked to act as if that order was conclusive on us. The practice, however, of this Court has been otherwise. Before the Attorneys Act, 23 & 24 Vict. c. 127. s. 25 (by which an attorney, struck off the roll of one of the Jan. 30.
Ex parte KING AND WIFE. Courts, is to be struck off the rolls of other Courts), it was not the practice to
Affidavit-Want of Addition—Waiver grant a rule absolute in such matters in
of Irregularity. the first instance, but a rule nisi, and Where a rule nisi had been obtained although that statute has taken away against two persons, and one of them sucoar discretion in cases of striking an at- ceeded in getting the rule quashed, on the torney off the roll, it has not done so ground of the want of the deponent's addiin the case of suspension. Accordingly, tion in the affidavit, on which the rule was We granted a rule nisi in this case, in granted, the Court allowed the other to waive order to consider the matter, but the at- the objection, and have the rule discussed torney did not shew cause against it. On as far as he was concerned. reading the affidavits which were used before the Master of the Rolls, it appears Kenealy having obtained a rule calling that there was such misconduct on the on two attorneys to shew cause why they part of the attorney as would have led us should not be struck off the roll, they to have struck him off the roll, and he appeared by separate counsel. would not afterwards have been restored ; Prideaux, for the one attorney, objected certainly not without his making good to the affidavit, on the ground that the
addition of the deponent was wanting, (2) 6 Law Times, N.S. 56.
whereupon the Court held that the rule (3) Willes, J.; Keating, J.; and Brett, J. must be quashed. NEW SERIES, 41.-C.P.