Price, Public Officer &, against Barker and Clarke, Executors of George Hopps
| Jurisdiction | England & Wales |
| Judgment Date | 22 February 1855 |
| Date | 22 February 1855 |
| Court | Court of the Queen's Bench |
English Reports Citation: 119 E.R. 281
Queen's Bench Division
S. C. 3 C. L. R. 927; 24 L. J. Q. B. 130; 1 Jur. N. S. 775. Applied, Bailey v. Edwards, 1864, 4 B. & S. 774; Bateson v. Gosling, 1871, L. R. 7 C. P. 14; Duck v. Mayeu, [1892] 2 Q. B. 514.
B. 945). [Parke B. Probably it was not in the mind of the Court in that last case that such action will not lie against the lord at the suit of hie tenant ; but we cannot under this Act answer a question unless it relates to something for which an action would lie. Cresswell J. There would be no object izz requiring the case to be stated after writ, unless (760J it were limited to questions to which a writ might apply. Jervis C.J. You may amend the case, by stating by consent that the tenant has been admitted. You had better take time to consider in what terms you state that admittance, as the terms may be material, a consideration which shows the propriety of requiring the case to be upon an actual question, and not hypothetical. Or you may-arnend in any other way you please : but at present, however convenient it might be for the parties, we cannot answer the case.] Per Curiam. Leave to amend (a). PRICE, Public Officer &c., against BARKER AND CLARK, Executors of George HoppS. Thursday, February 22d, 1855. B. and defendant gave plaintiff a joint and several bond for 6001,, the condition of which recited that B. had requested plaintiff to accept bills for him, and lend him money, which plaintiff had agreed to do on having the balance for the time being secured to plaintiff by the joint and several bonds of B. and defendant as surety ; but neither B. nor defendant were to be liable for more than 3001. ; and declared that the condition was that, if either B. or defendant should pay such awns as should become due to plaintiff by insane of the acceptances or loans, the bond should be void.---Afterwards, plaintiff, by deed poll, without the knowledge or authority of defendant, released and for ever discharged B. " of and from all and all manner of action, causes of action, suits, debts, dues, sum and sums of money, accounts, reckonings, bonds, bills, specialties, covenants, contracts, controversies, agreements, promises, variances, damages, judgments, extents, executions, claims and demands whatsoever, at law and in equity," which plaintiff had or might have against B. upon or by reason of any matter, cause or thing whatsoever. " Provided always, that nothing herein contained shall extend, or be deemed or construed to exteud, to prevent" plaintiff "from suing or prosecuting any person or persons, other than "B., his executors, &c., who is, are, shall or may be liable or accountable to pay or make good to" plaintiff "all or arty part of arty debt or debts, sum or sums of money, now due from" B. to "either as drawer" &c. "of any bill " &c., or as being jointly or severally bound with " B. "in arty bond or bonds, obligation or obligations, or other instrument whatsoever, or otherwise howsoever, as if these presents had riot been executed : it being understood and agreed that, as regards any such suits or prosecutions, these presents shall riot operate or be pleaded in bar, or as a release. : that the deed poll was not a release, but a covenant riot to sue B. ; and that plaintiff was not precluded from suing defendant in respect of breaches accruing before the execution of the deed poll._ [S. C. 3 C. L. R. 927 ; 24 L, J. Q. B. 130 ; 1 Jar. N. S. 775. Applied, Bailey V. Edwards, 1864, 4 B. & S. 774 ; Bateson v. Gosling, 1871, L. B. 7 C. P. 14; Duck Mayeu, [1892] 2 Q. B. 514.] The plaintiff declared, as the public officer of The York City and County Banking Company, on behalf of the [761] Company, against defendants, as executors of George Hoppe deceased; alleging that the testator, in his lifetime, by his writing obligatory, sealed &c.,. himself to be held and firmly bound to the Company in 6001., to be paid to the Company. Which said writing obligatory was and is subject to :a condition thereunder written : whereby, after reciting that the Company was a copartnership of more than six persons, established and carrying on the business of bankers in the city of York under and by virtue of an Act &e. (7 & 8 G. 4, c. 46), and that William Brown had requested the Company to accept and discount notes, drafts and bills of exchange for him, and also to lend and advance him such sow and sums of money as he might require for his convenience and accommodations, in order to enable him to carry on his business, and also to keep a cash and running account with 282 PRICE V. BARKER 4 EL & EL 761 him the said W. Brown ; which the Company bad agreed to do upon having the balance of the said cash or running account, for the time being, which should or might at any one time thereafter become due and owing from W. Brown, or any person or persons with whom he might thereafter enter into partnership, to the copartnership of persons constituting the Company for the time being, for or by reason or means of any drafts, notes or bills of exchange to be drawn or discounted upon or by such copartnership for the time being, or by reason or means of any moneys to be advanced on the said cash account, or by reason or means of any transaction, matter or thing whatsoever to be had between W. Brown or any person or persons with whom he might enter into partnership and the copartnership of persons constituting the Company for the time being, secured to be paid to the Company for [762] the time being by the joint and several bonds of the said W. Brown and the said George Hopps as surety, in the penal sum of 8001., so, nevertheless, that no greater sum should be ultimately recoverable on the said bond, nor the said W. Brown and C. Hopps, any or either of them, their, any or either of their heirs, executors and administrators, be liable to pay more, by virtue thereof, than the sum of 3001. : It was and is declared that the condition of the said bond or obligation was such that, if the said W. Brown and G. Hopps, or any or either of them, or any or either of their heirs, executors or administrators, should and did, on demand, well and truly pay or cause to he paid unto the copartnership of persons constituting the Company for the time being, or to Such person or persons as might be authorized by them to receive the same, all and every such suns or sums of money as should or might, from time to time, or at any time, have accrued and become due and owing to the copartnership of persons constitut- ing the Company for the time being, whether consisting of the then partners only, or of only- part of them, or of them or part of them and any future partner or partners, or of any future partner or partners, for or by reason or means of any drafts, notes or bills of exchange which, from time to time, or at any time, should have been drawn or discounted upon, with or by the copartnership of persons constituting the Company for the time being, by, or for, or on the account of W. Brown, his executors or administrators, or by, for or on account of W. Brown and any other person or persons with whom he might enter into partnership, or be concerned in trade with, or any or either of them ; or for money which should, from time to time, or at any time, have been lent and advanced, [763] paid or discharged, by the copartnership of persons constituting the Company, for the time being, to, for or on the account, or for the use, of W. Brown, his executors or administrators, or to, for or on the account or for the use of W. Brown, and any person or persons with whom he might thereafter enter into partnership, or be concerned in trade, or any or either of them, or in which W. Brown, his executors or administrators, or other the person or persons last afore said, or any or either of them, should, by means of an account stated, or in, any other manner whatsoever, become indebted to the copartnership of...
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