Atkins v Revell

JurisdictionEngland & Wales
Judgment Date23 January 1860
Date23 January 1860
CourtHigh Court of Chancery

English Reports Citation: 45 E.R. 398

BEFORE THE LORDS JUSTICES.

Atkins
and
Revell

[360] atkins v. revell. Before the Lords Justices. Jan. 23, 1860. The Plaintiff accepted a bill for the accommodation of R. R. afterwards compounded with his creditor's, who executed a release in which the holder of the bill concurred, under a secret understanding between him, the Plaintiff and R., that his rights against the Plaintiff should not be prejudiced. R. died, appointing the Plaintiff his executor. The Plaintiff, at the request of R.'s widow, renounced probate, and allowed the widow to take out administration, in consideration of which Mrs. R. and her brother gave him a memorandum undertaking to indemnify him against all his liabilities as surety for R. on several instruments and under the accommodation bill, but not beyond the amount of the assets. The holder of the bill pressed the Plaintiff for payment, the Plaintiff paid him, and filed his bill against Mrs. R. and her brother for indemnity out of the assets. Held, that however the case might have stood apart from the memorandum, Mrs. R. had thereby estopped herself from treating the Plaintiff's payment to the bill holder as voluntary, and not made in satisfaction of a legal liability, and that she had therefore no defence to the suit; arid that although the demand against her brother might be of a legal and not of an equitable nature, yet as he was surety in respect of a demand which as against his principal was the proper subject of a suit in equity, he was properly made a party to the suit. This was an appeal by the Defendants from a decree of the Duchy Court of Lancaster1. In July 1853 the Plaintiff accepted an accommodation bill for 400, drawn upon him by Thomas Horrobin Revell, who was then carrying on business as a cooper. This bill was discounted by George Hay Anderson, who it appeared was aware, when he discounted it, that it was an accommodation bill. After this, Revell fell into difficulties, and on the 20th of July 1854 executed a composition deed, in which the Plaintiff joined as his surety. By this deed the creditors, parties thereto, agreed to accept, in satisfaction of their debts, the sum of 10s. in the pound, by the following instalments, viz., 5s. before the execution of the deed, 2s. 6d. upon its execution, and 2s. 6d. on 1st February 1855 ; and in consideration of the two instalments of 5s. and 2s. Gd. so paid, and of the covenant thereinafter contained by Revell and the Plaintiff for payment of the third instalment, they released Revell from the debts due to them, the opera-[361]-tive part being framed 1DEO.F. &J.M2. ATKINS V. HEVELL 399 in the widest terma, without any reservation. Revell and the Plaintiff jointly and severally covenanted for payment of the remaining 2s. 6d. in the pound. This deed was executed on behalf of Anderson, the holder of the bill for 400, by a Mr. Batey, who acted by his authority, but held no power of attorney from him. Anderson acceded to the deed, on the understanding between himself, Revell and the Plaintiff...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT