Samuel Walker, Jonathan Walker, Vincent Henry Eyre, and Richard Stanley, - Appellants; John Hardman, Thomas Cooke, William Baker and Sophia his Wife, and Charles Baylis and Ann his Wife, - Respondents
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1837 |
| Date | 01 January 1837 |
| Court | High Court of Chancery |
English Reports Citation: 6 E.R. 319
COURT OF CHANCERY.
Mews' Dig. v. 392; xi. 1162, 1190. S. C. 4 Cl. and F. 258.Cited in In re Boys, 1870, L. R. 10 Eq. 467.
[229] ENGLAND. (court or chancery.) SAMUEL WALKER, JONATHAN WALKER, VINCENT HENRY EYRE, and RICHARD STANLEY,-Appellants; JOHN HARDMAN, THOMAS COOKE, WILLIAM BAKER, and SOPHIA his Wife, CHARLES BAYLIS, and ANN his Wife,-Respondents. [Mews' Dig. v. 392 ; xi. 1162, 1190. S. C. 4 Cl. and F. 258. Cited in In re Boys, 1870, L. R. 10 Eq. 467.] L. and' Co., carrying on trade at S., kept a, banking account with W. and Co. bankers at S. The account consisted of bills and cash paid in by L. and Co., and monies advanced on the credit of those payments by the bankers. In 1815, there being a large balance due, the bankers required security for the balance and their future advances, and accordingly a bond,-in the common form, with a penalty of £10,000 to secure £5000, in which W. F. joined as a surety,-was given by the merchants to the bankers. In consequence of certain defects in this bond the bankers applied for an amended security, and a new bond, in a penalty of £20,000 to secure £10,000, was executed by L. and Co., with W. F. as a surety. There was evidence that, upon the treaty for the security, it was understood between the bankers and their customers that the bond was given to secure the floating balance; but the bond being in the common form, with interest from the day of execution, and it not appearing by any evidence that the purpose was explained to W. F., the surety, who was a common farmer, and a man ignorant of business-the merchants having become bankrupt,-Held, in a creditor's suit, for administration of the assets of the deceased surety, that the bond must be taken as a security for the balance actually due when it was executed, subject to an account of subsequent payments made to the bankers by the principals. [230] In and prior to the year 1815 the Appellants and Thomas Walker carried on business, as bankers at Sheffield, in the county of York, in partnership together, under the style or firm of Walkers, Eyre, and Stanley, and they continued to carry on such business in partnership until the death of Thomas Walker. At the same time Henry Lomas carried on business as a merchant in Sheffield; and in the early part of the year 1815 he formed a partnership with, Thomas Fidgeoii and Edward Getley, which was to commence as from the 1st of January, 1815, and thenceforward Henry Lomas, Thomas Fidgeon, and Edward Getley, continued to carry on such business in partnership together, under the style or firm of Henry Lomas and Co., until their bankruptcy, which took place in the year 1816. Previously to the year 1815, Henry Lomas kept an account with Walkers, Eyre, and Stanley, as his bankers; and the new firm of Henry Lomas and Co. continued to deal with Walkers, Eyre, and Stanley, on the footing of the previous account between them and Henry Lomas. The usual mode of dealing between Walkers, Eyre, and Stanley, and their customers, was a,s follows.:-When bills were brought to' them by a customer, they did not discount each bill separately, as London bankers doi, but carried sucjj bills to the credit of the customer, and advanced money or bills to the amount required, whether more or less than the amount of the bills brought by the customer. Bills so credited 319 XI BLIGH N.S. WALKER V. HARDMAN [1837] and afterwards dishonoured were carried! to the debit of the customer, and at the end of each year an. interest account was [231] made out, in which the customer was debited and credited with interest on the different items on the debit and credit side of the account respectively, such interest being computed upon each item from its date to- the end of the current year. And the customer was, after the end of the year, debited o r credited witih the balance of such interest account as the case might be. In the month of August, 1815, the, account of Henry Lonias and Co . being in a state very unsatisfactory te Walkers, Eyrei, and Stanley, who held undue bills to a very large amount, for which they had given Henry Lomas and Co. credit, and notwithstanding such credit, the amount of the creditor side of their account falling short by a considerable sum of the debtor sidei, the Appellant Richard Stanley, and (by his directions), William Dyson (then clerk to Walkers, Eyre, and Stanley), made applications to Henry Lomas, both personally and through Richard Wood (then clerk to Henry Lomas and Co'.), calling upon Henry Lonias a-nd his partners, Thomas Fidgeon and Edward Getley, to give security to Walkers, Eyre, and Stanley for the advances which they had already made or might thereafter make to Henry Loma,s and Co. To these applications Henry Lomas always1 replied, that he and his partners were ready to give security to' the amount of £10,000 or upwards, to Walkers, Eyre, aiid Stanley for the advances made and to be made by them to him and his partners; and in the result of such applications a bond was, in the month of August, 1815, executed and delivered by Henry Lomas, Thomas Fidgeou, and Edward Getley, and by William Fidgeon (a brother of Thomas Fid-[232]-geon) as a surety, whereby they became bound to the Appellants and their then partner Thomas Walker, under the partnership firm of Walkers, Eyre, and Stanley, in the penal sum of £10,000, conditioned for payment by Henry Lomas and Co. to Walkers, Eyre, and Stanley of £5000 within six months after demand. This bond was given as a standing security, to the extent of £5000, for what might be due to Walkers, Eyre, and Stanley from Henry Lomas and Co. on the balance of account. Shortly after the execution of this bond, the Appellant, Richard Stanley, through the said Richard Wood, applied to Henry Lamas to have the bond altered, in certain particulars not affecting the nature and purpose of the bond as a standing security for the floating balance. To these alterations Henry Lomas consented; and at the same time he proposed that instead of altering the bond, a neiw one should be eixecuted for securing double the amount; and in consequence the bond in question in this cause was (under Henry Lomas's directions) prepared by the solicitor of Henry Lomas and Co. and executed by Henry Lomas, Thomas Fidgeon, Edward Getley, and William Fidgeon, as surety. This bond bears date the 26th of.August, 1815, and is a, joint and several bond by Thomas Fidgeon, Edward Getley, Henry Lomas, and William Fidgeon, to Thomas Walker, and the Appellants (the Appellant Vincent Henry Eyre being therein by mistake called Vincent Eyre) in the common form and in the penal sum of £20,000 conditioned for the payment of £10,000 "upon demand with laivful interest for the same from the date thereof." [233] On, the day of the delivery of this neiw bond at the banking-house of Walkers, Eyre, and Stanley, or on the following morning, Henry Looms made out and delivered to Walkers, Eyre, and Stanley, a list of moneys which would be accruing, due to Henry Lomas and Co', from sundry persons in the course of the then ensuing months of September, October, and November, and of the advances, amounting to £12,000 or thereabouts, which they eixpected they should have occasion for from Walkers, Eyre, and Stanley, in the course of the month of September; and the list exhibited the particular days on which such advances would be wanted. In compliance with this application, Walkers, Eyre, and Stanley, within a few weeks after the execution of the bond, made further advances to' Henry Lomas and Co., to the extent of £12,000 and upwards. The bond, dated 26th August, 1815, was eixecuted by Henry Lomas on that day, or on the 27th, 28th, or 29th of that mo-nth, in the presence of, and attested by Richard Wood, having been previously signed by the other obligors; but it appears that such execution thereof by Edward Getley was not attested, and the execution thereof by Thomas Fidgeon and William Fidgeon was attested only by Mary Fidgeon, 320 WALKER V. HARDMAN [1837] XI BLIGH N.S. the daughter of Thomas Fidgeon. On the llth January, 1816, Walkers, Eyre, and Stanley, being dissatisfied with the state of the account of Henry Lomas and Co. with them, instructed. Charles Brookfield, as their attorney, to endeavour to obtain from Henry Lomas, and Co. a reduction of the account, and from William Fidgeon a satisfactory security for [234] the £10,000 due on the bond. Charles Brookfield, considering it desirable that the execution of the bond by Edward Getley should be1 attested, arid the execution thereof by Thomas and William Fidgeon be attested by an indifferent witness, had an interview on the 13th! January, 1816, with Edward Getley, who then acknowledged his signature, and re-executed the bond of the 26th August 1815 in hisi presence. At that interview Charles Brookfield told Edward Getley, and Edward Getley admitted, that the balance of the account was upwards of £20,000; and Charles Brookfield told Edward Getley that the obligees were determined to have it rteduced, whereupon Edward Getley held out pro^ mises of an early reduction of the account. On the same 13th January 1816, Charles Brookfield had an interview with William Fidgeon, and produced to him the bond of the 26th August, 1815, when William, Fidgeon acknowledged his handwriting thereto, and re-executed it in Charles Brootfield's presence. At the same interview, Charles Brookfield told William Fidgeon, that the parties were dissatisfied to hold merely a bond as their security; and, that understanding that he had considerable freehold property, they expected the £10,000 to be secured either by a mortgage or a deposit of title deeds relating to property of competent value, or he must pay the money. And, after some...
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