Hollis Solly and Samuel Solly v John Murray forbes and Abraham Frederic Daniel Ellerman
| Jurisdiction | England & Wales |
| Judgment Date | 15 May 1820 |
| Date | 15 May 1820 |
| Court | Court of Common Pleas |
English Reports Citation: 129 E.R. 871
IN THE COURT OF COMMON PLEAS, AND OTHER COURTS
S. C. 4 Moore, 448. Followed, Thompson v. Lack, 1846, 3 C. B. 551. Referred to, Kearsley v. Cole, 1846, 16 Mee. & W. 136. Adopted, Price v. Barker, 1855, 4 El. & Bl. 777. Referred to, Green v. Wynn, 1868-69, L. R. 7 Eq. 32; L. R. 4 Ch. 204. Adopted, Bateson v. Gosling, 1871, L. R. 7 C. P. 15, 17.
hollis solly and samuel solly v. john murray forbes and abraham frederic daniel ellerman. May 15, 1820. [&. C. 4 Moore, 448. Followed, Thompson v. Lack, 1846, 3 C. B. 551. Keferred to, Kearshy v. Cole, 1846, 16 Mee. & W. 136. Adopted, Price v. Barker, 1855, 4 El. & Bl. 777. Referred to, Green v. Wynn, 1868-69, L. R. 7 Eq. 32 ; L. R. 4 Ch. 204. Adopted, Bafeson v. Gosling, 1871, L. R. 7 C. P. 15, 17.] A release was given by plaintiffs to A., one of two partners, with a, provision that it should not prejudice any claims which Plaintiffs might have against B., the other partner;: and that in order to enforce the claims against B., it should be lawful for Plaintiffs to sue A., either jointly with B. or separately. In an action by Plaintiffs against A. and B., this release having been pleaded by A. and set out on oyer in the replication, with an averment that the action was prosecuted against A. jointly with B., for the purpose of enabling Plaintiffs to recover payment of monies due from B. and A. to Plaintiffs, either out of the joint estate of B. and A., or from B. or his separate estate, the replication was demurred to, and the demurrer overruled. Declaration for money paid by the Plaintiffs to the use of Defendants, for money lent, for money had and received by the Defendants to the use of the Plaintiffs, 872 SOLLY V.FORBES 2 BROD. & B. 39. for work done and labour performed by the Plaintiffs as agents to Defendants, for interest upon monies lent by the Plaintiffs to the Defendants, and upon an account stated between the Defendants and the Plaintiffs. Pleas; by Forbes, general issue; Similitor thereon, By Ellerman, general isaue, a release, and a set-off. The replication craved oyer of the supposed release which was set forth verbatim, and which was in substance an indenture dated 20th May, 1819, between the Plaintiffs, both of the city of London merchants and co-partners in trade of the one part, and Abraham Frederick Daniel Ellerman late of Hamburgh, merchant, but then residing and carrying on trade in Heligoland, of the other part, by which indenture (after reciting that, up to the year 1806, Ellerman carried on the trade or business of a merchant at Hamburgh, ancl also at Toningen, in partnership with John Murray Forbes under the firm, at each of the last-mentioned places, of Forbes and Ellerman, and that there were various transactions of business between [39] Forbes and Ellerman, and the Plaintiffs; and that in or about the month of March, 1806, Forbes and Ellerman, having become embarrassed in their affairs, stopped payment, and that upon the balance of accounts between Forbes and Ellerman and the Plaintiffs, Forbes and Ellerman stood justly indebted unto the Plaintiffs, as copartners in trade, in a considerable sum of money, the whole of which debt still remained uupaid and was then due and owing from Forbes and Ellerman to the Plaintiffs; and that Ellerman had lately offered and proposed to the Plaintiffs to pay to them in the manner thereinafter mentioned the sum of 30001., if the Plaintiffs would give and execute unto Ellerman such release or discharge for or in respect of their aforesaid debt or demand on Forbes and Ellerman as thereinafter was contained ;) it was witnessed, that in consideration of 6001. to the plaintiffs in hand paid by Ellerman immediately before the execution of those presents, the receipt whereof the Plaintiffs did thereby jointly and severally acknowledge, and also in consideration of twenty-four promissory notes of Ellerman, each for 1001. and each bearing date the 1st April 1809, and which twenty-four promissory notes were made payable to the Plaintiffs or their order successively, at one, two, three, four, five, six, seven, eight, nine, ten, eloven, twelve, thirteen, fourteen, fifteen, sixteen, aeveateeri, eighteen, nineteen, twenty, twenty-one, twenty-two, twenty three, and twenty-four months date, (each of the said notes being numbered, and the number of each note corresponding with the number of months it had to run,) the receipt of which said twenty-four promissory notes (amounting together with the said sum of 6001. to the before-mentioned sum of 30001. so agreed to be paid to and accepted by the Plaintiffs) the Plaintiffs did also thereby acknowledge; and pursuant to and in execution of the agreement thereinbefore recited on the part of the Plaintiffs, the Plaintiffs had, and each of them had, remised, re-[40]-leased, and for ever discharged, and by those presents did, and each of them did, reraise, release, and for ever discharge Ellerman, his executors, administrators, and assigns, of, from, and against all and all manner of actions and suits, cause and causes of action or suit, debt, sum and sums of money, accounts, bonds, bills...
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