Mayhew v Crickett
| Jurisdiction | England & Wales |
| Judgment Date | 14 April 1818 |
| Date | 14 April 1818 |
| Court | High Court of Chancery |
English Reports Citation: 37 E.R. 178
CHANCERY ARGUED AND DETERMINED
See S. C. with note, 2 Swans. 185.
[418] mayhew v. grickett. Aprils, 14, 1818. [See S. C. with note, '2 Swans. 185.] Where a creditor, having already a warrant of attorney from his debtor, takes a promissory note from him and a surety, and afterwards enters up judgment under his warrant of attorney, and takes the goods of the principal debtor in execution, and subsequently withdraws the execution without the knowledge of the surety, he discharges the surety. But if the surety, after knowing that the execution is withdrawn, makes a new promise, his liability is restored, and he cannot object to the promise, as being without consideration. The right of one surety to call on another to contribute, applies to cases where they become sureties by separate instruments, as well as to cases where they become sureties by the same instrument. The bill stated that previous to August 1814, one Battely employed the defendants as hia bankers, and that they had advanced to him, or for his use, monies, for which they had taken warrants of attorney from him to confess judgment by way of security ; and that in August 1814, Battely had over-drawn his account with them to the amount of £1000. That Battely having occasion for the further sum of £300 applied to the defendants to advance him that sum, which they agreed to do, provided he would procure two persons as sureties for the repayment thereof, and also of the balance then due from him; that Battely thereupon applied to the plaintiffs, William May hew and Anna Gent, to become such sureties, and the plaintiffs were induced to consent each to join Battely in a promissory note to the defendants for £650 ; and accordingly two promissory notes for £050 each, dated the 20th of August 1814, payable to the defendants on demand, with interest, were prepared, one of which was signed by Battely and the plaintiff May hew, and the other by Battely and the plaintiff Gent. The bill further stated.that notwithstanding the agreement, and the notes being signed and given, the defendants did not advance to Battely the additional £300 or any other sum, on the security of the notes. That in November 1814, Battely became embarrassed in his circumstances, whereupon, aa the plaintiffs afterwards discovered, the defendants entered up judgment against him on their warrant of attorney, and . CH. 419; MAtfHEVV 'I). dRICKETT 17 issued execution under which they took possession of [419] his dwelling-house, stock in trade, and effects, but that no application was then, or until long afterwards, made to the plaintiffs by the defendants, in consequence of their having given the promissory notes ; that the plaintiffs, as the defendants had since discovered, after continuing several days in the possession of Battely's effects, agreed, on his application, and without consulting or apprising the plaintiffs, to withdraw, and did accordingly withdraw the execution, on Battely's paying the sheriff's poundage, and other expences. The bill further stated, that in August 1815, Battely again became embarrassed, when, for the first time, the defendants applied to the plaintiffs to pay their promissory notes, and in Michaelmas Term last, commenced actions against them respectively thereon. And after insisting that the additional £300 was never advanced to Battely, that the notes ought in equity to be considered void, and given without consideration, that by the withdrawing of the execution against Battely's effects without notice to the plaintiffs, they were discharged from all...
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