Pearl v Deacon
| Jurisdiction | England & Wales |
| Judgment Date | 16 July 1857 |
| Date | 16 July 1857 |
| Court | High Court of Chancery |
English Reports Citation: 44 E.R. 802
BEFORE THE LORDS JUSTICES.
S. C. 24 Beav. 186; 26 L. J. Ch. 761; 3 Jur. (N. S.), 1187; 5 W. R. 793. See Campbell v. Rothwell, 1877, 47 L. J. Q. B. 146; Kinnaird v. Webster, 1878, 10 Ch. D. 144; Duncan v. North and South Wales Bank, 1880, 6 App. Cas. 11; Forbes v. Jackson, 1882, 19 Ch. D. 620; Ward v. National Bank of New Zealand, 1883, 8 App. Cas. 765; In re Sherry, 1884, 25 Ch. D. 702; Taylor v. Bank of New South Wales, 1886, 11 App. Cas. 603; Nicholas v. Ridley [1904], 1 Ch. 211.
[461] pearl v. deacon. Before the Lords Justices. July 16, 1857. [S. C. 24 Beav. 186 ; 26 L. J. Ch. 761 ; 3 Jur. (N. S.), 1187; 5 W. R. 793. See Campbell v. Rothwell, 1877, 47 L. J. Q. B. 146; Kinnaird v. Webster, 1878, 10 Ch. D. 144; Duncan v. North and South Wales Bank, 1880, 6 App. Gas. 11 ; Forbes v. Jacbum, 1882, 19 Ch. D. 620 ; Ward v. National Bank of New Zealand, 1883, 8 App. Cas. 765; In re Sherry, 1884, 25 Ch. D. 702 ; Taylor v. Bank of New 'South Wales, 1886, 11 App. Cas. 603; Nicholas v. Bulky [1904], 1 Ch. 211.] Landlords advance money to their tenant on a joint note of himself and a surety. They afterwards take a security for this and another sum advanced j at the same time, by an assignment of furniture of the tenant by way of mortgage. Held, that,:by taking the furniture under a distress for rent in arrear, they discharged the surety. This was an appeal from the decision of the Master of the Rolls, reported in the 24th Volume of Mr. Beavan's Reports, p. 186, where the facts are fully stated. The following is an outline of them. In November 1852, Mr. Pearson, a publican, applied to Messrs. Deacon, the Defendants, who were brewers at Windsor, for a loan of 250, which they advanced him on the Plaintiff joining Pearson in a promissory note for half that amount as a surety, and another surety joining him in another note for a similar amount. These notes bore date the Kith November 1852, and were delivered to the Defendants, to whom Pearson, on the 25th November, assigned, among other things, furniture and effects at a house which he held as tenant to the Defendants, subject to redemption on payment of the debt on the 16th November 1858, or at such earlier or other time as the Defendants should appoint. In 1852 the Defendants distrained and seized the goods comprised in the security for rent in arrear, and they brought an action against [462] the Plaintiff on the note, whereupon he filed a bill to restrain the action at law, on the ground, among others, that by distraining, the Defendants had prejudiced the collateral security, to the benefit of which the Plaintiff was as surety entitled. The Master of the Rolls, by the decree, among other things, granted the injunction, and the Defendants ;appealed from the whole decree. Mr. Bevir (with whom was Mr. R. Palmer), for the Plaintiff, referred to Newton v. ChorU m(lO Hare, 646), Mayhewv. Crickett (2 Swanst. 185), Gapel v. Butler (2 Sim. & St. 457), Bowker v. Bull (1 Sim. N. S. 29). Mr. Selwyn and Mr. W. R. Ellis, for the Appellants. The Appellants were not precluded by any rule of law or equity from exercising the right of distraining, which they had as landlords totally irrespectively of any contract express or implied with the Plaintiff. If the Defendants could not distrain, they could dp nothing which would enable any other person to distrain. They could not therefore have sold the house. They also relied on the arguments which they urged below, and cited Ex parte Withvwth (2 Mon. D. & De G-. 164), Kirby v. Duke of Marttorough (2 Mau. & Sel. 18), Ploriur v. Long (1 Stark, 153), Wa le v. Coope (2 Sim. 155), Craythorne v. Swinburne (14 Ves. 160). Mr. Bevir, in reply. 1DEO.SJ.48J. LOCKHART V. REILLY 803 the lord justice knight bruce. My opinion is with the decision of the Master of the Bolls. However little the parties may have thought [463] about the matter, whether they thought at all of it or not, the effect of the transactions was, that the creditors precluded themselves as between them and the surety from applying, by means of a distress or otherwise, either as landlords or in any...
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