Good against Cheesman
| Jurisdiction | England & Wales |
| Judgment Date | 04 May 1831 |
| Date | 04 May 1831 |
| Court | Court of the King's Bench |
English Reports Citation: 109 E.R. 1165
IN THE COURT OF KING'S BENCH.
S. c. 9 L. J. K. B. O. S. 234: at Nisi Prius, 4 Car, & P. 513. approved, Alchin v. Hopkins, 1834, 1 Bing. N. C. 102. discussed, Boyd v. Hind, 1857, 1 H. & N. 947; Slater v. Jones, 1873, L. R. 8 Ex. 193. Referred to, Lewis v. Leonard, 1880, 5 Ex. D. 168. Adopted, Societe Generale de Paris v. Geen, 1883, 8 App. Cas. 614.
good against cheesman. Wednesday, May 4th, 1831. A debtor1 being unable to meet the demands of his creditors, they signed an agreement (which was assented to by the debtor), to accept payment by his covenanting to pay two thirds of his annual income to a trustee of their nomination, and give a warrant of attorney as a collateral security. The creditors never nominated a trustee, and the agreement was not acted upon, and one of the creditors brought an action against the debtor for his demand. The debtor appeared to have been always willing to perform his part of the engagement: Held, that the agreement, though not properly in accord and satisfaction, was still a good defence on the general issue, as it constituted a valid new contract between the creditors and the debtor, capable of being immediately enforced, and the consideration for which to each creditor was the forbearance of the rest; and as there appeared no failure of performance on the part of the debtor. [S. C. 9 L. J. K. B. 0. S. 234: at Nisi Prius, 4 Car. & P. 513. Approved, Alchin v. Hopkins, 1834, 1 Bing. N. C. 102. Discussed, Boyd v. Hind, 1857,1 H. & N. 947 ; Slater v. Jones, 1873, L. R. 8 Ex. 193. Referred to, Lewis v. Leonard, 1880, 5 Ex. D. 168. Adopted, SociMA GAn&rale de Paris v. Gem, 1883, 8 App. Cas. 614.] Assumpsit by the plaintiff as drawer against the defendant as acceptor of two bills of exchange. Plea, the general issue. At the trial before Lord Tenterden C.J., at the sittings in London after Trinity term 1830, it was proved, on behalf of the defendant, that after the bills became due, and before the commencement of this action, the plaintiff and three other creditors of the defendant met together, in consequence of a communication from him, and signed the following memorandum : " Whereas William Cheesman of Portsea, brewer, is indebted to us for goods sold and delivered, and being unable to make an immediate payment thereof, we have agreed to accept payment of the same by his covenanting and agreeing to pay to a trustee of [329] our nomination one third of his annual income, and executing a warrant of attorney as a collateral security until payment thereof. As witness our hands this 31st of October 1829." It did not appear whether or not the defendant was present when this paper was signed, nor did he ever sign it; but it was in his possession at the time of the trial, and he had procured it to be stamped. At the time of the signature, the defendant had other creditors than the four above mentioned, and particularly one Grloge, to whom he had given a warrant of attorney, on which judgment had been...
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