Stone and Others v Compton
| Jurisdiction | England & Wales |
| Judgment Date | 26 November 1838 |
| Date | 26 November 1838 |
| Court | Court of Common Pleas |
English Reports Citation: 132 E.R. 1059
IN THE COURT OF COMMON PLEAS
S. C. 6 Scott, 846. Referred to, Mackreth v. Wamesley, 1884, 51 L. T. 21.
[142] stone and others v. compton. Nov. 26, 1838. [S. C. 6 Scott, 846. Referred to, Mackreth v. Walmesley, 1884, 51 L. T. 21.] Plaintiffs advanced 26001. to C. upon the security of an indenture of mortgage executed by C., and a promissory note for 26001., in which Defendant joined as a surety: at the time of the advance, C. owed Plaintiffs, 8001., which was deducted from the 2600L, but the recital of the mortgage deed, which was read by Plaintiffs' agent, in the presence of Defendant, stated, untruly, that the 8001. had been paid : Held, that this was a fraud in law, which released Defendant from his liability on the promissory note. The declaration contained two counts; the first on a promissory note, dated the 25th of November 1831, whereby the Defendant promised to pay to the Plaintiffs and John Martin, since deceased, or order, on the 22d of November 1832, 26001., with interest, and to pay the interest half-yearly. The second count was upon an account stated. The Defendant pleaded, First,-as to the first count,-that he was induced to make the promissory note, and the same was obtained from him by the fraud, covin, and misrepresentation of the Plaintiffs, and J. Martin, and others in collusion with him. Secondly,-to the first count,-except as to 16711. 8s., parcel of the moneys in that count mentioned, and the interest upon that sum,-that before and at the time of the making of the note, certain persons, to wit, Leonard Street Coxe and George Chambers, were desirous of borrowing of the Plaintiffs and J. Martin a large sum, to wit, 26001.; and the Plaintiffs and J. Martin proposed to lend the same upon certain securities being given them for the repayment thereof, with interest, and amongst other securities, upon the security of the said note in the first count mentioned, to be therefore made and signed by the Defendant, as surety of and for L. S. Coxe and G-. Chambers in that behalf; and thereupon the said note was made by the Defendant as surety of and for L. S. Coxe and G. Chambers, and as a security for the repayment of such sum, not exceeding 26001. as should be then, viz. at the time of the making the note and giving such other [143] securities, lent and advanced by 1060 STONE V. COMPTON 5 BING. (N. C.) 144. the Plaintiffs and J. Martin to L. S. Coxe and G-. Chambers, with interest, and upon the terms and faith that the Plaintiffs and J. Martin should and would, upon the note being made, and the securities being given and executed, advance and lend to L. S. Coxe and G. Chambers such sum of 26001.; and that the Defendant should not be liable on the note except for such sum as the Plaintiffs and J. Martin should then lend and advance to L. S. Coxe and G. Chambers on the said securities; and the Defendant then made the said note upon the said terms, and not otherwise, or upon any other consideration. The Defendant then averred that all the said securities, including the note, were then made, executed, and delivered to the Plaintiffs and J. Martin, upon the terms aforesaid; and the Plaintiffs and J. Martin then received the note upon the terms and considerations aforesaid; and that there never was any other consideration for making the note. That at the time and upon the making and executing and delivery to the Plaintiffs and J. Martin of the said securities, including the note, they advanced and lent to L. S. Coxe and G. Chambers a much less sum of money than 26001., to wit, 16711. 8s., and no more, and forbore then to lend or advance to L. S. Coxe and G. Martin any further part of 26001. without the Defendant's knowledge or consent; and that there never was any consideration for the payment of the note, or any part of the amount thereof, except as to the 16711. 8s., with interest thereon; and the Plaintiffs did not, at the time of the commencement of this action, hold the note for or upon any consideration except as to the 16711. 8s., parcel, &c., and interest thereon. Thirdly,-as to the first count,-That the Defendant made the promissory note in that count mentioned, as security for certain persons, to wit, L. S. Coxe and [144] G. Chambers, and in order to secure moneys to be paid by them to the Plaintiffs and J. Martin; that after the death of J. Martin, and before the commencement of this suit, L. S. Coxe and G. Chambers paid and satisfied moneys to the amount of all moneys in the note mentioned, together with all interest due thereon; and that the Plaintiffs received the same in full satisfaction and discharge of the cause of action in the first count mentioned. Fourthly,-as to 9321. 11s. 3d., parcel of the moneys in the first count mentioned, -That before and at the time of the making the note in the declaration mentioned, L. S. Coxe and G. Chambers were co-partners in trade, and that the Defendant made the promissory note as surety of and for L. S. Coxe and G. Chambers; and the Plaintiffs and J. Martin, since deceased, then accepted and received the same as a collateral security for the repayment of a large sum, to wit, 26001., to be lent and advanced by the Plaintiffs and J. Martin, since deceased, to L. S. Coxe and G. Chambers, and not upon any other consideration; and the Defendant made the note upon the terms that in case the Plaintiffs and J. Martin, or any or either of them, should, by virtue of the deed hereinafter mentioned, sell the tenements and policies hereinafter mentioned, the Defendant should be relieved from liability on the note to the extent of the moneys which, on such sale, should be received by them, or any or either of them, in satisfaction of the amount of the note, or any part thereof, so far as the same might extend and be applicable to the note: the Defendant then averred that, before the making of the note, L. S. Coxe and G. Chambers had applied to and requested the Plaintiffs and J. Martin, since deceased, to lend and advance to them, and the Plaintiffs and S. Martin then agreed to lend them 26001. upon the security not only of the said note, but also upon the [145] security and on the terms and conditions mentioned and set forth in a certain indenture; (setting forth an indenture by which Coxe and Chambers mortgaged certain leaseholds and hereditaments, and assigned certain policies of insurance to the Plaintiffs to secure the said sum of 2600L). That afterwards, to wit, on, &c., default was made in payment of the 26001. mentioned in the indenture, and being the sum for securing which the note was given; and thereupon the Plaintiffs according to their rights respectively in that behalf, afterwards, and after the death of J. Martin, and before the commencement of this suit, to wit, on...
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