Kearsley v Cole

JurisdictionEngland & Wales
Judgment Date21 Nov 1846

English Reports Citation: 153 E.R. 1128



S. C. 16 L. J. Ex. 115. Held Inapplicable, Owen v. Homan, 1851, 3 Mac. & G. 388. Followed, Webb. V. Hewitt, 1857, 3 K. J. 438; Green v. Wyun. 1869, L. R. 4 Ch. 204. Approved, Crayoe v. Jones, 1873, L. R. 7 C. P 9. Applied, In re Wolmershausen, 1890, 62 L. T. 541; 38 W. R. 537.

kbarsley v. cole. Nov. 21, 1846. - The plaintiff, a shareholder in a banking company, became a surety for advances to be made by the company to the defendant. The defendant afterwards executed a composition-deed, to which the plaintiff and the banking company were parties, whereby he assigned his property to trustees for the benefit of his creditors ; and this deed contained a stipulation for a reserve of remedies against sureties for the defendant. The plaintiff having been compelled to pay the debt to the banking company : - Held, that he was entitled to recover back the amount, in an action for money paid, from the defendant. [S. C. 16 L. J. Ex. 115. Held inapplicable, Owen v. Hainan, 1851, 3 Mac. & G. 388. Followed, Webb v. Hetmit, 1857, 3 K. £ J. 438; Green v. Wynn, 1869, L. R. 4 Ch. 204. Approved, C'ratjoe v. Jone, 1873, L. R. Ex. 86. Adopted, Price, v. Barker, (855, 4 El. & Bl. 760; Batesaii v. Gosling, 1871, L. R. 7 C. P. 9. Applied, In re Wolinersha-usen, 1890, 62 L. T. 541 ; 38 W. R. 537.] Assumpsit for money paid, for interest, and on an account stated. Pleas, non-assumpsit auc| payment, on which issues were joined. 'At the trial, before Williams, J., at the last Spring Assizes at Chester, it appeared that the action was brought to recover the sum of £500, as money paid by the plaintiff in discharge of his liability as surety for the defendant, under a guarantee dated 27th of April, 1836, given by the plaintiff' to a banking co-partnership, called the " Com-[129]-mercial Bank of England," for the repayment of advances made and to be made by the company to the defendant. In the year 1839, the defendant became embarrassed in his circumstances, and on the 19th of August in that year, he assjgned, by deed, all his property to trustees for the benefit of his creditors. This assignment was executed by the plaintiff (to whom the defendant was indebted independently of his liability under thu guarantee), tho defendant, and others of his creditors, including the banking company ; and it appeared also that the plaintiff had beeji active in soliciting signatures to it. It contained a covenant on the part of the plajntiff, and the other creditors, not to sue the defendant for any debts then owing by ; him to them, subject to the following proviso : - " Provided always, and it is 130. KEARSLEY V. COLE 1129 hereby also declared and agreed, that notwithstanding anything hereinbefore contained, any creditor or creditors who have or hath any specific lien or security, or several distinct securities, for his, her, or their demand or demands, or any part thereof, or to the payment whereof any person or persons is or are liable as a surety or sureties for the said Henry Cole, or upon any India bills of exchange, shall uncl may execute these presents without prejudice to the same security, or to the claim against any surety or sureties, or other person or persons as aforesaid," &c. : In the year 1841, the plaintiff was Killed upon by the Commercial Bank of England to pay them the £500 secured by the guarantee; he accordingly paid the amount, w th interest^ and brought this action to recover back the money so pud. At the tiiae of the execution of the guarantee, of the deed of assignment, and of the payment by the plaintiff, he was a shareholder in the banking co-partnership. It was contended for the defendant, at the trial, that under these circumstances, the money paid by the plaintiff was not...

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11 cases
  • Bailey and Others v Edwards
    • United Kingdom
    • Court of the Queen's Bench
    • 13 January 1864
    ...of all the creditors against him, and prevents the rights of the surety against the debtor being impaired; Ke&rsley v. L'ole (16 M. & W. 128, 135), per Parke B.; Owen v. Haman, in D. P. (4 H. L. Ca. 997, 1037-8), per Lord Cranworth C., who did not acquiesce in the opinion of Lord Tr......
  • John Owen and J M. Gutch, - Appellants; Sarah Homan, - Respondent
    • United Kingdom
    • High Court of Chancery
    • 11 February 1851
    ...v. Barley (2 Bos. & Pul. 61), Nichols v. Narris (3 B. & Ad. 41), Nicholson v. Ee.mll (4 A. & E. 675), Kearsley v. Cole (16 M. & W. 128), have assumed the dicta in equity to be settled law, and in the last of these cases it must be presumed that the surety consented to the re......
  • Atkins v Revell
    • United Kingdom
    • High Court of Chancery
    • 23 January 1860
    ...(9 Hare, 692); Cowper v. G-reen (7 M. & W. 633); Price v. Barker (4 E. & B. 760); Ex parte Giffard (6 Ves. 805); Kearney v. Cole (16 M. & W. 128); and Webb v. Hewitt (3 K. & J. 438), were also referred to. [366] the lord justice knight bruce. This is a case which it is prope......
  • Handcock v Handcock
    • Ireland
    • High Court of Chancery (Ireland)
    • 19 May 1851
    ...1 Moo. & P. 754; S. C. 4 Bing. 717. Nicholls v. NorrisENR 3 B. & Ad. 41. Exparte Gifford 6 Ves. 805. Kearsley v. ColeENR 16 M. & W. 128. Hatchell v. Cremorne Ll. & G. temp. Plunk. 236. Hatchell v. Cremorne Ll. & G. temp. Plunk. 236. Barnes v. RacsterENR 1 Y. & C., C.......
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