Thomas Hawkshaw, Plaintiff; William Parkins and John Thompson, Defendants
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1818 |
| Date | 01 January 1818 |
| Court | High Court of Chancery |
English Reports Citation: 36 E.R. 723
HIGH COURT OF CHANCERY
2 SWANS. 540. HAVVKSHAW V. PARKINS thomas hawkshaw, Plaintiff ; william parkins and john thompson, Defendants. July 21, '23, Nov. 12, 1818 ; Feb. 27, 1819. Demurrer to a bill by a surety, stating, that two partners having agreed to execute a, release to the principal, in consideration of an assignment of his effects, one alone executed the release, overruled. Whether a release so executed binds all the partners, qucere. A writ of injunction issued after execution is in the same form with the common writ before execution. The Plaintiff, in equity, having been taken in execution, and discharged by a judge of the court of law, on payment into the hands of the Master of that Court, of the amount of the sum indorsed on the writ, with sheriff's poundage ; and the common injunction having afterwards been issued ; on motion to dissolve the injunction, it was ordered, that the Plaintiff might apply to the court of law for payment to him. and to the Defendants, of the sum paid into the hands of the Master, that sum, when received, to be paid into the bank to abide the event of the cause. The bill filed on the 10th of June 1818 stated, That one Daniel Bencher, late of Bedford Street, in the county of Middlesex, coal merchant, but now [540] abroad, arid out of the jurisdiction of the court, sometime in the year 1810 represented to the Plaintiff that he had considerable dealings with the Defendants, who carried on trade as coal merchants at the Adelphi ; and that he could obtain a considerable enlargement of his credit with the Defendants, if he could procure some respectable person to join him in a security to them by way of bond, and he requested Plaintiff, to join him, upon an assurance that no risk was likely to be incurred in so doing as the credit allowed by the Defendants to Bencher was small, and the settlements frequent; that the Plaintiff, influenced by such representations and assurance, and being willing to accommodate Bencher, consented to join in such security, and for that purpose executed with Bencher a joint and several bond to the Defendants, dated the 1st of May 1810, in the sum of £500 conditioned to be void on payment by the Plaintiff and Bencher or either of them of the sum of £250, or any less sum that should or might thereafter become due from time to time for coal delivered to Bencher by the Defendants; that some time in 181(5 Bencher having become embarrassed in his circumstances, entered into a composition with the Defendants and his other creditors, whereby they agreed to accept an assignment of his property, and in consideration thereof to execute a release rf their several demands ; that on the 27th of August 181G an indenture of that date was executed by Bencher of the first part, C. G. a creditor of Bencher of the second part, and the Defendants, and W. M., and M. his son and copartner, being bona fide creditors of Bencher, of the third part, whereby after reciting that Bencher stood indebted to the parties of the second and third part in the several sums of money set opposite to their respective names, and was unable, by reason of certain losses, to pay the whole of their respective demands, but in order to render to them the [541] utmost satisfaction in his power, had proposed to convey all his estate and effects to C. G. in trust for himself and the rest of the creditors of Bencher, rateably and in proportion to the amount of their several debts, to which the parties of the third part had consented and agreed, and had chosen and appointed C. G. to be a trustee accordingly, it was among other things witnessed, that the creditors, parties of the second and third parts, severally and respectively, and for their several and respective executors, &c., accepted the said assigned premises, estate, and effects in full payment and satisfaction of their respective debts, and released Bencher from the said several debts, and from all actions, suits, &c., for or by reason of the debts so due to them, or of any other...
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