Ex parte Sir Robert John Harvey, Anthony Hudson, and Robert John Harvey Harvey Edward Blakely, a Bankrupt. ex parte Thomas Osborne Springfield and Another
| Jurisdiction | England & Wales |
| Judgment Date | 28 February 1854 |
| Date | 28 February 1854 |
| Court | High Court of Chancery |
English Reports Citation: 43 E.R. 752
BEFORE THE LORDS JUSTICES.
[881] Ex parts sir robert john harvey, anthony hudson, and robert john harvey harvey. In the Matter of edward blakely, a Bankrupt. Ex parte thomas osborne springfield and another. In the same Matter. Before the Lords Justices. Jan. 29, 30, 31, Feb. 10, 28, 1854. A firm were holders of a joint and several promissory note made by a father and son. The son assigned all his property to trustees for the benefit of his creditors, who were expressed to be parties to the assignment and to be named in a schedule, and the deed purported to contain an absolute release of the debts without any reservation of rights against sureties. One of the trustees was a partner in the above-mentioned firm, and the deed was executed by him and the other trustees, but not by any other creditor. It was also executed by the son, with the privity and concurrence of the father. Upon its execution as an act of bankruptcy, an adjudication was pronounced against the son. Held, that even assuming the father to have joined in the note as a surety merely, and the partner to have executed the deed as a creditor and not merely as a trustee, the father's liability was not discharged. It is not universally necessary, in order to reserve on a composition deed remedies against sureties, that the reservation should be expressed in the deed. These were two appeals from the rejection of proofs under the following circumstances :- The bankrupt, Edward Blakely, carried on business as a silk mercer at Norwich. His son, Edward Theobald Blakely, also carried on business in the same city as a shawl 4DBO. M. &Q. 182. EX PARTE HARVEY 753 manufacturer. In March 1850, the son applied to Messrs, Harvey & Hudson (the Appellants in one of the two appeals), who were bankers at Norwich, to lend him money for the purposes of hia business, and they agreed to do so by opening a banking account with him and allowing him to draw upon the same from time to time to the extent of 500. [882] On the 28th of November, the son, who had drawn on the bankers beyond the limit agreed upon, induced them to continue the credit, and to make further advances on the following guarantee, which was signed by his father, the bankrupt:- " I, the undersigned Edward Blakely, of Norwich, silk mercer, for and in consideration of Messrs. Harveys & Hudsons, bankers, at Norwich, having at my special instance and request agreed to continue open an account which Edward Theobald Blakely now hath with them, and to make further advances to the said Edward Theobald Blakely, do hereby undertake and agree to guarantee the payment to the said Messrs. Harveys & Hudsons, on demand of the sum or sums of money, together with interest, commission and the usual banking charges upon the same as they may hereafter advance or pay to or for the said Edward Theobald Blakely, so that the whole sum to be recoverable under this guarantee, which shall be deemed and taken from time to time and at all times hereafter to be a continuing guarantee and security, shall not exceed the sum of 2500." Another agreement was subsequently come to between the father, the son and the bankers, to the effect that the bankers should advance to the father himself 750 on a mortgage security, and should give up to the father his guarantee of the 28th of November 1850, and also two bills of exchange, dated respectively the 10th of February and the 10th of December 1852, for the sums of 300 and 230 drawn by the son upon the father, and discounted by the bankers; and that thereupon, and in consideration thereof, the father and son should give their joint and several promissory note for 3030, being the aggregate amount of the bills of exchange and 2500 [883] part of the balance then remaining due to the bankers upon the son's banking account; and that the bankers should hold certain railway shares as security for the residue of the balance of the son's account. Accordingly the guarantees and bills of exchange were delivered up, and the father and son gave the bankers a joint and several promissory note, which was as follows:-"Norwich, 14th December 1852.-On demand we jointly and severally promise to pay to Messrs. Harveys & Hudsons, or order, 3030 value received.-Edward Blakely. Edward Theobald Blakely." On the 29th of March 1853, the son executed a trust deed, expressed to be made between himself of the first part, Thomas Osborne Springfield (the Appellant in the other appeal), Robert John Harvey Harvey (one of the partners in the bank), and William Stark, as trustees for themselves and the rest of the creditors of the son parties thereto of the second part, and the several other persons whose names and seals were thereunto subscribed and set, being respectively creditors of the son of the third part. By this deed, reciting that the son was indebted unto the parties thereto of the second and third parts in the several sums set opposite to their respective names in the schedule thereto, and was unable to pay the same, and had agreed to assign, all his estate and effects unto the trustees for the benefit of his creditors as thereinafter mentioned, it was witnessed that in pursuance of the said agreement, and in consideration of the premises, and of the nominal consideration therein mentioned, the son assigned unto the trustees, their executors, administrators and assigns, all his stock-in-trade and other personal estate and effects to hold the same upon trust, to collect and receive or sell and dispose of the same in manner therein mentioned and out of the monies to be received by virtue thereof to pay all the costs and ex-[884]-penses of that indenture, and relating to the premises, or the trusts thereby created, and in the next place to pay, retain and satisfy, rateably and proportionably, and without any preference to priority, to themselves (the said trustees and their partners), and the other persons parties thereto of the third part, the several debts or sums set opposite to their respective names in the schedule thereto subject to a proviso thereinafter contained for verification of the amounts thereof, and to pay the residue, if any, of the said monies unto the son, his executors, administrators and assigns. After the usual powers and provisions for carrying the arrangement into effect, it was thereby lastly witnessed, that in consideration of the premises and of the assignment thereinbefore contained, the several creditors parties thereto of the second and third parts, 754 EX PARTE HARVEY 4 DE Q. M. * 0. 888. subject to the proviso next thereinafter contained, released and discharged the son of and from all and all manner of debt and debts, actions, suits, claims and demands whatsoever. And the indenture contained a proviso for avoiding the same in case of the concealment by the son of any part of his estate and effects to the value of 20, except the linen and wearing apparel of himself and his family. This deed was executed by the son and by the three trustees, but not by any other creditor, nor did it in the body, or in a schedule, contain the...
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