Hutton v Eyre
| Jurisdiction | England & Wales |
| Judgment Date | 14 June 1815 |
| Date | 14 June 1815 |
| Court | Court of Common Pleas |
English Reports Citation: 128 E.R. 1046
Common Pleas Division
S. C. 1 Marsh. 603. Referred to, Duck v. Mayeu, [1892] 2 Q. B. 513.
1 046 HUTTON V. EYRE 6 TAUNT. 2:89. Rule absolute, as to setting aside the service of the 2d writ. Rule discharged, as to the residue. ter/47 . I Gk. [289] HUTTON v. EYRE. June 14, 1815. [S. C. 1 Marsh. 603. Referred to, Duck v. Mayen, [1892] 2 Q. B. 513.] A covenant not to sue one of two joint debtors does not operate as a release to the other.ùOne joint contractor, who pays money for another under an equitable claim, may recover it from the other as money paid to his use. This was en action of assumpsit for money paid by the Plaintiff to the Defendant's use; and it appeared at the trial before Bayley J. at the Lincoln Spring assizes 1815, that the Plaintiff sought to recover 27881, which he had paid under the following circumstances, with 2921 interest. The Plaintiff and Defendant had been partners, as merchants and insurance brokers, and by indenture of 26th August 1809, they dissolved their partnership as from the 1st of January then next, and mutually covenanted that neither of the partners should after the date of those presents, and before the period fixed upon for the dissolution of this copartnership, either in his own name, or in the name or names of any other person, or in the firm of Eyre and Hutton, make any purchase of goods in their aforesaid trade or business, or by way of speculation with any other person, so as to bind the other of the parties to such contracts; but that if any purchases of goods were made in the partnership firm, it should be on the private account of the individual party making the same. The Defendant, after executing this deed, contracted five several debts of large amount, after which, on the 27th of October 1810, by indenture between the Defendant, 1, two of his creditors, Todd and Lamarche, 2, and the other creditors whose names were subscribed, 3, the Defendant conveyed all his estate and effects to Todd and Lamarche, in trust to sell, and out of the proceeds to retain their costs and make a dividend of 5s. in the pound among all the creditors who should execute within three months, next to divide the residue of the proceeds among the creditors to the amount of their respective debts, and pay the surplus, if [290] any, to the Defendant. And in consideration of the premises, the other parties thereto severally covenanted with the Defendant, that they, their executors or administrators, partners or assigns, or any of them, would not sue, arrest, implead, or prosecute him, his executors or administrators, or his, their, or arty of their goods, chattels, lands, or tenements, for or upon account of any debt or sum of money then due or owing to them or any of them, and in case any of the creditors should sue, &c., the Defendant for such debt, that then those presents should be a sufficient release and discharge to all intents and purposes, at law and in equity, to arid for the Defendant, his executors, and administrators, and he and they should be and were thereby acquitted, released, and discharged against them the said...
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