Parker v Morrell
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1846 |
| Date | 01 January 1846 |
| Court | High Court of Chancery |
English Reports Citation: 41 E.R. 1018
HIGH COURT OF CHANCERY
[453] pakker v. morrell. Dec. 18, 1846; Jan. 19, 1847; Jan. 27, 1848. Eve ry decree, although it only direct issues or inquiries, ought to recite the evidence on which it is founded, and therefore, where evidence is tendered and objected to, the Court ought to decide at once upon its admissibility, and not to allow it to be entered as read de bene esse. An answer put in by one of several partners, after dissolution of the partnership, containing an admission of a representation having been made by such partner in a partnership transaction, prior to the dissolution. Held not to be admissible as. evidence of such admission against his co-partners, on the ground that since the dissolution of the partnership the party whose answer it was had become bankrupt and obtained his certificate, and had therefore at the time of putting in the answer no common liability with the co-partners. Held, also, that even independently of that objection, such answer would not have been admissible in evidence, though made in the existing suit, without other evidence to identify the party whose-answer it was with the partner. An issue, whether a security had been "unfairly" obtained, superadded to an issue, whether it had been " fraudulently " obtained, disproved ; from the uncertainty of what, in a legal sense, constitutes unfairness as distinguished, if it be distinguishable, from fraud. The practice of allowing the parties, on the trial of an issue, to be examined for themselves is in the discretion of the Court, but to be resorted to with great caution, and never unless, under the peculiar circumstances of the case, justice could not be attained without it; and certainly never when, from the position of the parties, an unfair advantage would be given by it to one over the other. And, therefore, where it appeared that the transaction to which the issue related had occurred in 2 PH. 484, PARKER V. MORBELL 1019 the presence only of the Plaintiff and one other party, who, being a late partner of the Defendants, was since dead; an order of the Court below directing that each party to the issue should be at liberty to be examined for himself was reversed on appeal, as calculated to give the Plaintiff an unfair advantage. Where, after the trial of an issue directed by the Court below, the party who failed appealed from the order directing it, the Lord Chancellor, in reversing the order and directing a new issue, refused the other party the costs of the appeal, but reserved them. Where a decree or order under which money has been paid is reversed on appeal, the money is in general ordered to be repaid without interest. The object of this suit was, amongst other things, to have it declared that a bond and warrant of attorney, dated the 30th of April 1831, were fraudulently obtained by the Defendants from the Plaintiff, and to have a sum of 1560, 14s., which the Plaintiff had paid to the Defendants in respect thereof before the discovery of the alleged fraud, repaid with interest; and also that an action which the Defendant had brought against the Plaintiff upon another bond, dated the 30th January 1822, which was also alleged to have been fraudulently obtained, might be restrained by injunction. [454] The case made by the bill, so far as is material to this report, was-That in the year 1822, and for many years afterwards^ Richard Parker, the brother of the Plaintiff, carried on the business of a common carrier and corn-dealer, and kept an account with the banking firm of Cox, Morrell, & Co., at Oxford; in which firm the then partners were Richard Cox, his son Richard Ferdinand Cox, and the Defendants James and Eobert Morrell. That, at the beginning of the year 1822, Richard Parker represented to the Plaintiff that he had occasion for the sum of 2000 for a few months, and that the bankers would give him credit for it in his account, if the Plaintiff would join him as surety in a bond for the amount; which the Plaintiff having consented to do, the bond of 30th January 1822 was accordingly executed as the joint and several bond of the two brothers. That in the month of April 1831, Richard Ferdinand Cox, who was an intimate friend of Richard Parker, called upon the Plaintiff and informed him that Richard Parker was in want of 2500, and had applied to the bank to advance him that amount, which they were willing to do upon having security, and that he, R. F. Cox, was commiasioned by Richard Parker to request the Plaintiff to become such security. That upon the Plaintiff expressing some surprise that the bank should require security from so old and well known a customer as his brother, R. F. Cox replied that it was a rule of the bank not to allow their customers' accounts to be overdrawn without some security being given; but that he had perfect confidence in the flourishing state of Richard Parker's affairs; and, after reminding the Plaintiff' that he had been borne harmless upon his former bond, he added that if the Plaintiff had really any apprehension he would himself engage to replace the loan in three weeks, should Richard Parker fail to do so ; whereupon [455] the Plaintiff, relying upon that assurance, consented to give his security, and accordingly executed the bond and warrant of attorney above mentioned, of the 30th April 1831. That in the following month of June, R. F. Cox quitted the hanking firm, on which occasion the Plaintiff having heard that cash matters between him and his partners were not quite correct, and that Richard Parker was to be a party to some arrangement on his behalf with the firm, the Plaintiff became anxious that the bond and warrant of attorney which he then supposed to be the only securities in the hands of the bank on which he was liable should be withdrawn, and that, upon his intimating such wish to Richard, the latter went with him to the bank and paid 1000 specifically in part discharge of the 2500 : and that in the year 1838 the Plaintiff was compelled by a threat of proceedings on the bond and warrant of attorney to pay the 1560, 14s., being the balance of that sum with an arrear of...
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