Boyd v Brooks
| Jurisdiction | England & Wales |
| Judgment Date | 22 July 1864 |
| Date | 22 July 1864 |
| Court | High Court of Chancery |
English Reports Citation: 55 E.R. 533
ROLLS COURT
Affirmed, 34 L. J. Ch. 605; 12 L. T. 38; 13 W. R. 419. See Lee v. Nuttall, 1879, 12 Ch. D. 64.
[7] boyd v. brooks. July 14, 22, 1864. [Affirmed, 34 L. J. Ch. 605; 12 L. T. 38; 13 W. R. 419. See Lee v. Nuttall, 1879, 12 Ch. D. 64.] An executor, being surety for his testator, paid the debt after the testator's death: Held, that he had a right to retain his debt in preference to the other creditors of equal degree. Thomas Snrith had joined his son-in-law David Brooks in some joint and several promissory notes, but he was merely a surety for David Brooks. David Brooks died in June 1861, having made Thomas Smith one of his executors, and he proved his will and acted. After the testator's death, Thomas Smith paid the amount of the notes out of his own moneys, and he claimed a right of retainer as against the other simple contract creditors. This was a creditors' suit, and the Chief Clerk, in taking the accounts, reserved the point for the consideration of the Court. Mr. Hobhouse and Mr. Bristowe, for the Plaintiffs. The executor has no right to retain this debt; that right only extends to debts due to executors at the decease of their testators, and not to debts for which the executors are liable as sureties, which 534 BQYD V. BROOKS M BEAV. 8. are their own debts. The point has been expressly determined by a case in Godliolt (p. 149, pi. 194, and 4 Leonard, 237, pi. 362). There "two men were bound jointly on a [8] bond, one is principal, the other is surety; the principal died intestate, the surety took administration of his goods; and the principal having forfeited the bond, the surety made an agreement with the creditor, and took upon him to discharge the debt. In debt brought by another creditor, the question was, upon fully administered pleaded by the administrator, if by shewing of the bond, and that he had contented it with his own proper money, whether he might retain so much of the intestate's estate, and it was adjudged that he might not; for Fleming, Chief Justice, said that by joining in the bond with the principal it became his own debt." As to Bathurst v. De la Zouch (2 Dick. 460), which will be cited on the other side: it appears from the registrar's book (see post, p. 9) that it was decided on different grounds. Mr. Selwyn and Mr. Lindley, for the executor, relied on Bathurst v. De la Zouch (Ibid.) as in point and Nwnn v. Barluio (1 Sim. & St. 588); Williams on Executors (vol...
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