Holden and Mellersh v Kynaston
| Jurisdiction | England & Wales |
| Judgment Date | 09 March 1840 |
| Date | 09 March 1840 |
| Court | High Court of Chancery |
English Reports Citation: 48 E.R. 1158
ROLLS COURT
S. C. 9 L. J. Ch. (N. S.), 198.
[204] holden and mellersh v. kynaston. March 9, 1840. [S. C. 9 L. J. Ch. (N. S.), 198.] AVhere a debt is claimed or a demand made in a suit, and the Defendant, admitting his liability, offers to pay the debt or comply with the demand and to put the Plaintiff in the same situation as he would have been in if the liability had been satisfied without suit, the Court, on motion, will stay all further proceedings. Proceedings in a creditor's suit stayed as against some Defendants on payment of one of the Plaintiffs' debts, on which alone the Defendants applying were liable, and, under very special circumstances, without costs. The intestate was indebted to the Plaintiff Holden in the sum of 150, which was secured by the joint and several promissory note of the intestate and of the Defendants Davis and Channell. He was also indebted to the Plaintiff Mellersh upon another promissory note, on which Bridges, another Defendant, was jointly liable. After the intestate's death Holden and Mellersh filed this bill, on behalf of themselves and all other the creditors of the intestate, for the administration of his estate ; to this bill the administrator of his intestate, and Davis, Channell and Bridges, were made Defendants. No demand had been made previous to the institution of the suit on Davis and Channell for payment of the amount due on their promissory note, and shortly after the bill had been filed, and before Davis and Channell had appeared, an offer of payment had been made by them, which was refused; on the 10th of January 1840, an offer was also made to pay the amount with costs, which not being accepted, notice of motion was given on the 28th of January, by Davis and Channell, that upon payment-by them to the Plaintiff Holden, of the sum of .150 and interest, the bill might be dismissed as against them. Pending the proceedings in this suit a decree had been obtained in another creditor's suit for the administration of the intestate's estate, in which, as was [205} stated, a part of the testator's assets had been paid into Court. Mr. Bethell, in support of the motion, cited Pemberton v. Taplmm (1 Beavan, 316). Mr. Pemberton, contra. The motion is irregular, asking on the part of some of several Defendants that the bill may be dismissed; at the utmost, proceedings alone can be stayed. There will be difficulty too in discharging one of the...
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