defendant entered into an agreement that the defendant should take all Field's property, and should pay his other creditors five shillings in the pound. Upon the death of Field, the defendant having put the bond in suit against the plaintiff, Wood, V.C., granted a perpetual injunction, and ordered the bond to be cancelled. As to giving time,' said his Honour, the authorities which are almost innumerable have settled that upon any giving of time to a principal debtor, if there be a reservation of rights against the surety, the surety is not discharged. . . A release, however, stands upon an entirely different footing. The case of Nicholson v. Revill (6), which is recognised in Kearsley v. Cole (1), has decided that when an actual release is given no right can be reserved, for the debt is gone at law. . . What I rest my judgment on principally is the result of this transaction upon the face of it. There is nothing in evidence that shakes any portion of the agreement. The utmost that the evidence amounts to is, that there was an intention with this agreement, such as it is, to assert a reservation of right against the surety. I hold that if such a reservation had been put in, it would have been a nullity. If a man, in consideration of the debt due from his principal debtor, agrees to buy the whole of the debtor's property, he has been paid; and if he has been paid he cannot reserve his rights.''

WILLES, J.-I am of opinion that this rule must be discharged.

The defendant's equitable plea is correctly framed because it sets up a release, by which it alleges the principal debtor was discharged without reserving the creditor's right to sue the surety. When the release in the deed is looked at, it is in terms a release, subject to a proviso; and although, but for such proviso, it would be an absolute release, so that there could be no proceeding afterwards against a surety, yet the proviso expressly reserves the creditor's remedy against a surety, and stipulates that any creditor may execute the deed without prejudice to his claim against any surety. The question is whether that proviso prevents the release from absolutely extinguishing

the debt. Now the rule of law is clear, that if there be a deed stating what shall be the relation between the parties, and declaring in another part of the deed that certain consequences shall not follow which the law annexes to such relation, one or other of such parts of the deed cannot stand. In such a case as that, the law would hold the relation to exist, but the consequences not to attach. In Solly v. Forbes (2), where there was an express release of a debtor, with a proviso that such release should not be taken to release another person who was jointly liable with the debtor, the Court looked to the whole of the deed and construed it so as to give effect to the intention of the parties, by holding the release not to extinguish the debt but to be restrained by the proviso which followed it. A different consideration from this arose in

the case of sureties. Sureties are entitled to proceed against the principal debtor, and therefore if the creditor gave time to the debtor without the assent of the sureties, the latter were discharged. A further consideration arose in the case of a composition with the principal debtor, and it was considered that then the surety should not proceed against the principal debtor, and should consequently be discharged. But if the principal debtor consented to the creditor having recourse to the surety, the latter would not be discharged, and would have his remedy against the principal debtor. It is in reference to these two considerations that cases have arisen. The former was rejected by Lord Wensleydale in Kearsley v. Cole (1), and although his opinion was doubted by Lord Truro in Owen v. Homan (3), it was afterwards adopted in Price v. Barker (4), and followed in terms in Green v. Wynn (5), and it must now be considered as settled that a surety has no right to say he is discharged, where without his consent the creditor has given time to the principal debtor, or entered into a covenant not to sue, if the principal debtor has entered into stipulations with the creditor by which the remedy against sureties has been reserved. The second consideration, viz., with respect to the effect of compounding with the principal debtor, is discussed and fully considered

in a note to Lewis v. Jones (8), by the late Mr. Justice Cresswell, which has been erroneously attributed to Mr. Justice Holroyd, where it is pointed out that the reason why the creditor cannot recover against the surety after compounding with the principal debtor, is that it would otherwise operate as a fraud on the principal, inasmuch as it would give the surety a right to proceed against the principal for the debt from which the creditor had agreed to discharge him." On that ground it has been held that the principal debtor must be a party to the agreement, reserving the rights of the creditor against the surety, since as it then takes place with consent of the principal, a recovery against the surety cannot be a fraud on the principal. The case of a release is, as has been correctly argued, distinguishable from these. The effect of a release is pointed out by the Court in Cowper v. Green (9). There there was a composition deed with a release of debts, and the debtor afterwards promised one of the creditors who had executed the deed to pay the rest of the debt, if the creditor would give up a security he held for his debt, and the Court held that such a promise was without consideration, and that not only the security was gone and discharged by force of such release, but that the debtor was entitled to get it back, so that that case was a stronger case than that of Nicholson v. Revill (6). It comes round then to this, that if the principal debtor be absolutely discharged of the debt, the creditor can have no remedy against the surety. That explains what is said by the present Lord Chancellor, then Vice Chancellor Wood, in Webb v. Hewitt (7), where, after referring to Kearsley v. Cole (1), he gives his reasons for holding that no right was reserved against the surety, and those reasons conclusively shew that he thought it was necessary for that purpose that the debt of the principal should be absolutely discharged. "The debt," he said, "is gone in equity, and it is impossible to reserve a right against the surety in such

The

a transaction as that." Nothing can be clearer stated; it is agreed that if there be an absolute discharge of the debt there can be no reservation, for it would be inconsistent with such discharge to reserve a right against the surety. decision, therefore, in Webb v. Hewitt (7), is quite in accordance with the other cases. The question, then, in the present case is simply this, was there an absolute release of the debt? The answer is that there were words of release, but coupled with other words which cut those words of release down to a covenant not to sue. The rule therefore must be discharged. I only wish to add that there was not here, as suggested by Mr. Turner, a sale of the property of the principal debtor, there was only an assignment with a power to the trustees to carry on the business if they chose to do so, and thereout pay the debts, but there was no discharge until the debts had been paid; and I may further observe that although the surety would have a right to compel the application of the moneys received by the trustees to the discharge of the debts, he had no lien on the assets which were assigned. The true result of the deed is that the creditors obtain by it an additional security for their debts, and if such debts be paid the surety will have the benefit of it.

KEATING, J.-I am of the same opinion. The action is on a bill of exchange against the defendant as the indorser; and the plea is, that the plaintiff released the acceptor without reserving his right to sue the defendant as surety. The question is, whether that plea has been proved. Now a deed was produced at the trial containing words of release in favour of the principal debtor, but with the words "subject to the proviso next hereinafter contained," and therefore the words cease to be a release when so coupled with the proviso. Mr. Turner does not deny that under these words, if the right to proceed against the surety is reserved, the remedy against the defendant as surety exists, but he contends that the release is an absolute one by reason of the whole tenor of the deed, and that therefore the liability of the defendant as surety is gone. He does not contend that a mere

transfer of the debtor's property would avail for this purpose, and he admits that the transaction must be such as to amount to a release of the debt. What he says is, that the mode of the transfer in the present case was such as to amount to a payment and satisfaction of the debt, and no doubt if that were so there could be no reservation against the surety. But what is it on which he relies for this? only the power given to the trustees to carry on the business for the benefit of the creditors. I do not see how that can amount to a payment. If the business had been taken by the creditors in satisfaction of their debts it might have amounted to what Mr. Turner has contended for, but it was not so taken, and it is admitted that there would be a resulting trust for the assignor, so that he would be entitled to any surplus which might remain after payment of the debts. Then if there was no satisfaction of the plaintiff's debt (and I cannot see how it can be properly said there was any such satisfaction in this case), there are words in the deed, which, being qualified by the proviso, do not amount to an absolute release, but only to a covenant not to sue. The plea, therefore, has not been proved, and the rule must be discharged.

BRETT, J.-If on the true construction of the deed there was an absolute release so as to extinguish the debt, the remedy against the surety is gone; but if there was not such an absolute release, then, inasmuch as the right against the surety is expressly reserved by the deed, it is equally clear that the plaintiff can sue the defendant. The question, therefore, is, what is the true construction of the deed? The mere fact of there being in 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,

If it was the duty of the trustees under the present deed to realize the assets and collect the debts in the ordinary way, I do not understand that Mr. Turner would contend there would be here an absolute release, because the case would then be concluded by that of Kearsley v. Cole (1), but he says that the duty of the trustees is not to collect and realize in the ordinary way, but to carry on the business for the benefit of the creditors. But I do not agree with him that that duty can alter the rule where, as here, it is no part of the deed that the business is to be that of the creditors for ever, but that if a profit be made from it more than sufficient to satisfy the debts, there is to be a resulting trust for the principal debtor. The carrying on the business is only in the present case another mode of realizing the debtor's property, and Mr. Turner has failed to shew that on the true construction of the deed the release was absolute, so as to extinguish the debt. This rule must therefore be discharged.

COLLIER, J.-I am of the same opinion. The first question is, whether on the true construction of the deed in this case it operates as an extinguishment of the debt or only as a security for it. In my opinion it operates only as a security. The second question is, whether there is an absolute release. It is said there are words of absolute release. It is true there are such, but they are qualified by a proviso, and in effect they amount to only a provisional release and not to an absolute release.

Rule discharged.

Attorneys-W. F. Stokes, for plaintiff; J. B. Pittman, for defendant.

NEW SERIES, 41.-C.P.

I

1871. Nov. 11, 15, 25. 1872. Jan. 15.

Re BRUTTON, AN ATTORNEY.

Attorney Misconduct Suspension Practice where Attorney has been suspended by another Court.

Where an attorney has been suspended for a limited period by the order of one of the Superior Courts, the Court of Common Pleas will not adopt such order by suspending, in like manner, the attorney from practising in that Court, without examining the facts on which the order was made, and exercising its own discretion in the matter.

In a case in which the Master of the Rolls ordered an attorney to be suspended for a certain period, and the misconduct for which he was so suspended was such that he might have been struck off the roll for committing it, the Court of Common Pleas, after reading the affidavits used before the Master of the Rolls, ordered the attorney to be suspended from practising in that Court, not only for the period ordered by the Master of the Rolls, but until the further order of that Court.

W. C. Brutton, who was an attorney and solicitor, had been guilty of miscon

duct in misappropriating a large sum of money belonging to a client of his, under the circumstances mentioned in the case of Earl of Dundonald v. Masterman (1), and for this misconduct the Master of the Rolls had made an order, suspending him from practising as a solicitor in his Court until the end of Hilary Term, 1874.

Murray thereupon, early in Michaelmas Term last, asked this Court to follow the course adopted by the Master of the Rolls, and in like manner to make an order to suspend Brutton from practising in the Court of Common Pleas, until after Hilary Term, 1874.

WILLES, J.-We ought to exercise a discretion in the matter, and have the facts before us on which the Master of the Rolls acted, in order to see whether we agree with him or not in the sentence he has passed. The practice is thus stated in 1 Chitt. Arch. Prac. 11 ed. p. 154: "Where an attorney has been suspended by one of the Superior Courts for a term of years, it is not compulsory upon the other Courts of co-ordinate jurisdiction to suspend him also, but they

(1) 38 Law J. Rep. (N.S.) Chanc. 350.

will look into the affidavits and exercise their own discretion." For this is cited Re De Medina (2). The proper course is to apply for a rule nisi in the alternative to strike the attorney off the roll, or to suspend him, and to bring before the Court the materials on which the Master of the Rolls acted.

Murray, accordingly, on a subsequent day (Nov. 15), applied for and obtained a rule nisi to that effect, bringing before the Court all the affidavits on the reading of which the Master of the Rolls had made his order, and he afterwards (Nov. 25) moved to make such rule absolute.

No cause was shewn against it.

Cur. adv. vult.

WILLES, J. (on Jan. 15), delivered the judgment of the Court (3).

This was an application which was originally made to us to suspend an attorney from practising in this Court until the end of Hilary Term, 1874, on the ground that the Master of the Rolls had ordered him to be suspended for that limited 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 Courts, is to be struck off the rolls of other Courts), it was not the practice to grant a rule absolute in such matters in the first instance, but a rule nisi, and although that statute has taken away our discretion in cases of striking an attorney off the roll, it has not done so in the case of suspension. Accordingly, we granted a rule nisi in this case, in order to consider the matter, but the attorney did not shew cause against it. On reading the affidavits which were used before the Master of the Rolls, it appears that there was such misconduct on the part of the attorney as would have led us to have struck him off the roll, and he would not afterwards have been restored; certainly not without his making good

(2) 6 Law Times, N.S. 56.

(3) Willes, J.; Keating, J.; and Brett, J. NEW SERIES, 41.-C.P.

the money he had misappropriated. The Court is bound to protect its suitors, and the Court is unable to see here any circumstance from which it may be induced to conclude that at the end of the limited period of suspension the attorney would be a person to be entrusted by suitors, especially as he has not restored the money he has so improperly taken. We ought to act according to our practice, and, at the same time, we ought not to overrule the order of the Master of the Rolls, which, in effect, we should be doing, if we were to order the attorney to be struck off the roll. The proper course is an intermediate one, which will give the attorney a further opportunity of explaining his conduct. We therefore make the rule absolute for the suspension of the attorney for the time specified in the order of the Master of the Rolls, and also for his suspension from further practising in this Court until the further order of this Court. Rule absolute, accordingly.

Attorney-E. W. Williamson, for the Incorporated Law Society.

1872.

Jan. 30. J
Ex parte KING AND WIFE.
Affidavit-Want of Addition-Waiver
of Irregularity.

Where a rule nisi had been obtained against two persons, and one of them succeeded in getting the rule quashed, on the ground of the want of the deponent's addition in the affidavit, on which the rule was granted, the Court allowed the other to waive the objection, and have the rule discussed as far as he was concerned.

Kenealy having obtained a rule calling. on two attorneys to shew cause why they should not be struck off the roll, they appeared by separate counsel.

Prideaux, for the one attorney, objected to the affidavit, on the ground that the addition of the deponent was wanting, whereupon the Court held that the rule must be quashed.

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