Jones v Beach
| Jurisdiction | England & Wales |
| Judgment Date | 17 December 1852 |
| Date | 17 December 1852 |
| Court | High Court of Chancery |
English Reports Citation: 42 E.R. 1119
COURT OF APPEAL IN CHANCERY
[886] jones v. beach. Before the Lords Justices and Mr. Justice Maule. Dec. 16, 17, 1852. A surety (who as such was indebted together with his principal upon a joint note) received from the holder a letter, stating that the holder was about to make the principal a bankrupt, but could not proceed without joining the surety, and asking whether the surety would join the principal in a fresh note payable jointly and severally. The surety's solicitor answered that the surety would in a post or two pay the amount and interest due on the joint security. Held, that the contract was not changed, and that the surety had, neither at law nor in equity, rendered himself severally liable. Qu(sret whether the dicta in Thorpe v. Jackson, 2 Younge & Collyer, 561, can be supported, and whether a joint loan creates in equity a joint and separate liability. Upon the hearing of an argument upon a point of law, with the assistance of a common law Judge, only one counsel is heard on each side. This was an appeal from the decision of the Master of the Rolls in an administration suit, holding the Plaintiff to be entitled to file a claim as a creditor for the administration of the estate of a deceased surety, named Beach, in respect of a joint promissory note made by him and a Mr. Stubbs, who was the principal debtor, and was still living. Some time after the making of the note, Mr. Jones, the creditor, wrote to the surety as follows: "Droitwich, June 20, 1850.-Sir,-Mr. Stubbs is here, and I am about making him a bankrupt, but I find I cannot proceed against him without coupling you in the affair. I have no desire to proceed against either; and in order [887] to avoid this, I ask you whether you will join Mr. Stubbs in a fresh note for .300, payable jointly and severally. As the notes in my possession are made payable on demand, and are not joint and several, you had better see your solicitor hereon immediately. I shall await your reply a post or two, and if I have no reply, I shall at once proceed against both of you." Mr. Beach's solicitor replied as follows, by letter, dated Hereford, June 21st: " Sir,-Mr. Beach, of this city, has brought me your letter, and has instructed me to inform you that it is his intention to pay off the 300 due to your client on the joint note of himself and Mr. Stubbs. I shall be glad if you will let me know the amount due for interest; and Mr. Beach will be...
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Liverpool Borough Bank v Walker
...an insolvent partner need not be sued. Thorpe v. Jackson (2 Y. & C. Exch. 553), also cited below, is inconsistent with Jones v. Beach (2 De G. M. & G. 886). [29] Moreover, the fl'ect of the judgment entered up against the executrix and surviving executor merged the original debt, and exoner......