Craythorne v Swinburne
| Jurisdiction | England & Wales |
| Judgment Date | 18 July 1416 |
| Date | 1807 |
| Year | 1807 |
| Court | High Court of Chancery |
English Reports Citation: 33 E.R. 482
HIGH COURT OF CHANCERY
See Hodgson v. Shaw, 1834, 3 My. & K. 191; Newton v. Chorlton, 1853, 2 Drew. 334; Farebrother v. Woodehouse, 1856, 23 Beav. 26; Whiting v. Burke, 1870, L. R. 10 Eq. 543; Duncan v. North & South Wales Bank, 1880, 6 App. Cas. 12. Discussed, Ex parte Snowdon, 1881, 17 Ch. D. 44. See Ward v, National Bank of New Zealand, 1883, 8 App. Cas. 765.
craythorne v. swinburne. July llth, IGth, llth, and 23d, 1807. [See Hodgson v. Shaw, 1834, 3 My. & K. 191 ; Newton v. Chorlton, 1853, 2 Drew. 334 ; Farebrother v. Woodehouse, 1856, 23 Beav. 2G ; Whiting v. Burke, 1870, L. R. 10 Eq. 543 ; Duncan v. North & South Wales Bank, 1880, 6 App. Cas. 12. Discussed, Ex parte Snowdon, 1881, 17 Ch. D. 44. See Ward v, National Bank of New Zealand, 1883, 8 App. Cas. 765.] No contribution in favour of one Surety against another: his engagement, according to the bond, and parol evidence, which was held admissible, being, not as Co-surety, but, without the privity of the other, as a distinct collateral security, limited to default of payment by the Principal and the other Surety. Hamersley and Co. bankers, being creditors of Henry Swinburne, and calling in their money, an application was made by Sir John Swinburne, the nephew of Henry Swinburne, to the Newcastle Bank ; who advanced the money upon the security of two bonds : one the joint and several bond of Henry Swinburne as principal, and Craythorne as surety, for 1200 : the other by Sir John Swinburne, reciting the former bond, and the advance of the money to Henry Swinburne and Craythorne, at the request of Sir John Sivinburne, with condition to be void on payment by Henry Swinburne and Craythorne, or either of them. The 1200 advanced was applied accordingly in discharge of the debt to Hamersley and Co. Afterwards Henry Swinburne died abroad insolvent ; and Craythorne, having paid the whole sum, filed the bill; praying contribution by Sir John Swinburne ; who insisted, that he was not a co-surety with the Plaintiff, but merely a collateral security to the Bank in default of payment by [161] Henry Swinburne and Craythorne ; and offering evidence of his conversation with one of the partners in the Bank ; stating their objection to the security of Henry Sivinburne and Craythorne ; and requiring, as the condition of the advance, a bond from Sir John Swinburne to pay the money, in case they should not pay it-Sir Samuel Eomilly and Mr. Wear, for the Plaintiff. This is a plain case for compelling contribution by this Defendant, as a co-surety with the Plaintiff. The Court looks to the real transaction : therefore, whether they are sureties by one or by several instruments, is immaterial : the liability depending upon, not the form, but the essence of the contract. In the case of Deeringv. The Earl of Winchelsea (in the Court of Exchequer, 1787. 2 Bos. & Put. 270) three joint and several bonds were given by Thomas Leering and each surety separately, that Thomas Deering should duly account to the Crown ; and it was held, that the circumstance, that the bonds were distinct, could not make a difference. The evidence in this cause proves, that 14 VES. JUN. 162. CRAYTHORNE V. SWINBURNE 483 the whole of this sum of 1200 was advanced to Henry Swinburne ; and the Plaintiff had no part of it, being merely a co-surety, as well as Sir John Swinburne ; whose bond recites, that the advance of the Bank for his uncle's benefit was at the special instance and request of Sir John Swinburne. Mr. Richards and Mr. Bell, for the Defendants, relied upon the circumstances, as distinguishing this case from that in the Court of Exchequer ; observing, that previously to that decision the point was a subject of much doubt ; and upon that authority it would not have been prudent to abstain from parol evidence. [162] Si^ Samuel Romilly, in Reply. That case stands upon a firm foundation. The whole doctrine of principal and surety, with all its consequences, of contribution, &c., rests upon the established principles of a Court of Equity ; not upon contract ; except as it may be so represented upon the implied knowledge of those principles. There is no express contract for contribution : the bonds generally, if not universally, being joint and several ; creating several obligations by each. The...
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