Bain, Public Officer, v Cooper

JurisdictionEngland & Wales
Judgment Date17 June 1841
Date17 June 1841
CourtExchequer

English Reports Citation: 151 E.R. 1243

EXCH. OF PLEAS.

Bain, Public Officer
and
Cooper

S. C. 1 Dowl. (N. S.) 11; 10 L. J. Ex. 471; 5 Jur. 873.

batx, Public Officer, . cooper. Exch. of Pleas. June 17, 1841.-Where a defendant, a surety, by deed poll guaranteed to the plaintiff' the payment of a sum of money:-Held, in an action on the guarantee, that the defendant might plead an indenture of release from the plaintiff to his principal without making profert of the indenture. [S. C. 1 Dowl. (N. S.) 11; 10 L. J. Ex. 471 ; 5 Jur. 873.] Covenant on a deed poll, whereby the defendant guaranteed to the banking Company of which the plaintiff was public officer, the payment by one Mayer of the sum of 1500. Breach, that neither Mayer nor the defendant had paid the same. The defendant pleaded, (amongst other pleas), that after the making of the said deed-poll, and after the said sum of money became due and owing by Mayer, to wit, on &c., by a certain indenture made between Mayer of the first part, one Haywood and others of the second part, and certain persons, creditors of Mayer, of the third part, Hay-wood, being authorized by the said banking copartnership, released Mayer from all manner of debts owing from him to the said banking copartnership, as well as from all claims, aqtions, demands, &c. Special demurrer, assigning for causes, that the defendant had not brought into Court the said supposed indenture in the said plea mentioned, nor had marie any profert of it, nor had given any excuse for not producing or making profert of it. Joinder in demurrer. Crompton, in support of the demurrer. The defendant ought either to have made profert of the indenture, or to have stated some excuse for not doing so. [Parke, B. A party is not hound to make profert of an instrument, except where the instrument ought properly to be in the possession [752] of the party pleading it. You will find that rule laid down in Dtmffe-rjield v. Thomas (1 P. & D. 287; 9 Ad. & Ell. 292).] That case proceeded on the ground that the party omitting to make profert was not identified in interest with the parties entitled to the possession of the deed. In Dr. Let/field's case (10 Rep. 92 a.), it is stated to be a maxim in law, "that ifihe who is party or privy in estate or interest, or be who justifies in right of him who is party or privy, pleads a deed, although he who is privy claims but parcel of tlje original Estate, yet he ought to shew the original deed to the Court." And many crtses are...

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