Amott v Holden

[593] amott against holden. Saturday, June 12th, 1852. Declaration, on the obligatory part only, upon two bonds, dated in 1828 and 1829 respectively.- Pleas: 3. That the alleged causes of action did not accrue within twenty years. 4. That after the making of the bonds, and before the commencement of the action, defendant became bankrupt, and that the said causes of action accrued before such bankruptcy. Replication, joining issue on the fourth plea, and, to the third plea, that the said causes of action did accrue within twenty years. Issue thereon.-The plaintiff then (by enrolment on the record) set out the bonds and the conditions. The first bond stated that J. Mather and defendant bound themselves, and each of them, by himself, his heirs, &c., to the plaintiff in the sum of 3001. The condition (after reciting that the said J. M. had agreed with plaintiff for the sale to him, for 1501., of an annuity of 201. to be paid to plaintiff, his executors, &c., during the joint and several lives of plaintiff and his wife, and the survivor ; that J. M. had requested defendant to join in and execute the bond, which he had agreed to do, for securing the regular payment of the annuity; and that the 1501. had been paid to J. M.) was for payment of the annuity, by J. M. or defendant, or their or either of their heirs, &c., some or one of them, by equal half yearly payments on, &c., during the joint and several lives of plaintiff and his wife, and of the survivor, and a proportionate part in case of the survivor dying between the days of payment. The second bond and condition were similarly framed for the payment, by and to the same parties, of an annuity of 101. The plaintiff then suggested that, in 1851, two and a half years' arrears were due in respect of each annuity, and were still unpaid.-At the trial, it appeared that the defendant had become bankrupt in 1836; that J. M. had paid the annuities half yearly down to 1848, but never till after the day of payment fixed by the condition, so that there had been breaches of the condition twenty years before action, and before the bankruptcy : and that the arrears suggested by plaintiff were still due. Plaintiff had not attempted to prove as annuity creditor under defendant's bankruptcy.- Held, that a new cause of action arose upon each successive breach of the condition ; that, on the record as it stood, plaintiff was entitled to prove, at the trial, breaches within twenty years ; and that, on such proof, he was entitled to a verdict upon the issue on the Statute of Limitations.-Held, further, by Lord Campbell C.J. and Erie J., dissentiente Wightman J., that defendant's liability under the bonds and conditions was that of a surety only; that J. M. was the principal, and grantor of the annuity : that plaintiff, therefore, could not have proved, under defendant's bankruptcy, in (a) See Dowdell v. Australian Royal Mail Company, 3 E. & B. 902, AMOTT V. HOLDEN 225 respect either of the penalties, or of the breaches of condition committed before the bankruptcy; and that consequently the matter pleaded and proved was no bar to the action. [S. C, 22 L. J. Q. B. 14; 17 Jur. 318. Approved, White v. Corbett, 1859, I El. & El. 692. Explained, Wythes v. Labmchere, 1859, 3 D, G. & J. 599.] Debt on bond. (Action commenced 24th June 1851.) The first count stated that defendant, on 9th June 1828, by his writing obligatory sealed with his seal (profert), acknowledged himself to be held and firmly bound to the plaintiff in 3001.: the second count alleged that defendant, on 2d June 1829, by his certain other writing obligatory, &c. (profert), acknowledged himself to be held, &c. to the plaintiff in the [594] sum of 1501. : yet defendant had not paid the said 4501., though often requested. Third ple: That the causes of action in the declaration mentioned did not, nor did any or either of them, accrue to plaintiff within twenty years next before the commencement of this suit. Fourth plea: That, after the making of the said several writings obligatory, and before the commencement of this suit, viz., on 3d September 1836, defendant became a bankrupt within the true intent and meaning of the statutes, &c.; and that the causes of action in the declaration mentioned, and each of them, accrued to plaintiff before defendant became a bankrupt. Replication, joining issue on the fourth plea: and, to the third plea: that the said causes of action did accrue within twenty years, &o. Issue thereon. The plaintiff then set out (by enrolment on the record) the bond in the first count and its condition as follows: Know all men, &c., that we, John Mather, of, &c., and John Holden, of, &c., are held and firmly bound to George Amott, of, &c., in the sum of 3001., of lawful money, &c., to be paid to the said George Amott or his certain attorney, executors, administrators or assigns, for which payment well and truly to be made we bind ourselves and each of us, by himself, our and each of our heirs, executors and administrators, firmly by these presents. Sealed, &c. Dated 9th June A.D. 1828. Wharea* the above bounden J. M. hath agreed with the above mentioned G. A. for the sale to him, the said G. A., of one annuity or clear yearly sum of 201. to be paid to the *aid G. A., bis executors, administrators or assigns, during the joint and several lives and life of the said G. A. and M. H. A. his wife, [595] and during the life of the survivor of them, at or for the price or aura of 1501. ; arid the said J, M. hath requested the said J. Holden to join in and execute the above written bond or obligation, which the said J. Holden hath consented and agreed to do, for securing of the due and regular payment of the said annuity: and whereas the said G. A. hath duly paid to the said J. M. the said sum of 1501., in good and lawful money of Great Britain, in full, for the purchase of the said annuity or yearly sum of 201., which he the said J. M. doth hereby admit and acknowledge. Now the condition of the above written obligation is such that, if either the said J. M. or the said J. Holden, or their or either of their heirs, executors or administrators, some or one of them, do and shall well and truly pay or cause to be paid unto the said G. A., his executors, administrators or assigns, or as he or his executors, administrators or assigns shall direct or appoint, during the natural and several lives and life of the said G. A. and M. H. A. his wife, and during the life of the survivor of them, one annuity or clear yearly sum of 201., of lawful money current in Great Britain, by two even and equal half-yearly payments, on the 9th day of December and the 9th day of June in every year, without any deduction or abatement whatsoever ; and if the said G. A. and M. H. A., or whichever of the two shall or may survive the other, and () shall afterwards depart this life between any of the half-yearly days whereon the said annuity is made payable, then if either the said J. M. or the said J. Holden, or their or either of their heirs, executors, administrators or assigns, some or one of them, do and [596] shall well and truly pay unto the executors or administrators of the said G. A., or the person legally authorized to receive the same, a proportionate part of such annuity or yearly sum of 201., according to the time which the survivor of them, the said G. A. and M. H. A. his wife, may happen to live after the then last yearly payment shall have become due, (a) Sic. Apparently the "and " should be omitted. K. B. xlvii.-8 226 AMOTT V. HOLDEN 18 Q. B. 897. without any deduction or abatement, then the above written bond or obligation shall be void, otherwise the same shall remain in full force and effect." The plaintiff then suggested that, on 9th June 1851, 501., being the arrears of the said annuity from 9th December 1848, was due to the plaintiff, and that neither the said J. M. nor the defendant would pay the same. The record then set out the bond in the second count, and its condition, which were similar to those in the first, except that the penalty was 1501., and the annuity was 10L, to be paid half-yearly, on 22d December and 22d June. The plaintiff then suggested that, on 22d June 1851, 251., being the arrears of the last mentioned annuity from 22d December 1848, was due to the plaintiff, and that neither the said J. M. nor the defendant would pay the same. On the trial, before Lord Campbell C.J., at the London sittings after last Hilary term, it appeared that the defendant had become bankrupt in 1836 ; that Mather had, from time to time, made the half-yearly payments of the annuities to the plaintiff down to 1848, but that none of those payments had been made till after the day appointed in the condition, so that several breaches of the condition had, in fact, taken place more [597] than twenty years before the action, and before the...