Thompson and Another v James Percival and Charles Percival
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1834 |
| Date | 01 January 1834 |
| Court | Court of the King's Bench |
English Reports Citation: 110 E.R. 1033
IN THE COURT OF KING'S BENCH
S. C. 3 N. & M. 167; 3 L. J. K. B. 98. Applied, Lyth v. Arelt, 1852, 7 Ex. 674. Considered, Maingay v. Lewis, 1870, Ir. R. 5 C. L. 233. Distinguished, In re Head, [1893] 3 Ch. 428.
[925] thompson and another against james percival and charles percival. 1834. A. and B. dissolved partnership, and agreed that the business should be carried on by B. alone; and that he should receive and pay all debts. Sufficient partnership funds were left in his possession. C., a creditor of the firm, afterwards applied for payment of his debt to B., who informed him that A. knew nothing of his debt, and that he, C. must look to B. alone. C. then drew a bill on B., which he accepted, but which was afterwards dishonoured : Held, in an action brought by C. against A. and B., (the latter having become bankrupt), that it was a question for the jury, whether it had been agreed between C., the creditor, and B., that the former should accept B. as his sole debtor, and take his acceptance in satisfaction of the debt due from both : Held, further, that such an agreement and receipt of the bill would be a good defence to A.'s suit, by way of accord and satisfaction ; and that the fact of B. having had the partnership effects left in his hands, and having agreed with A. to pay all the partnership debts, was evidence of an authority from A. to make such agreement on his behalf. After a rule for a new trial had been granted on the above grounds, A. also became bankrupt, but C. did not prove his debt under the commission. A.'s attorney having carried down the record by proviso, C. applied for a stet processus, K. B. xxxix.-33* 1034 THOMPSON V. PERCI^AL 5 R* AD. 926. alleging that he could derive no benefit from proceeding. The Court refused to interfere. [S. C. 3 N. & M. 167; 3 L. J. K. B. 98. Applied, Lyth v. Arelt, 1852, 7 Ex. 674. Considered, Maingay v. Lewis, 1870, Ir. E. 5 C. L. 233. Distinguished, In re Head, [1893] 3 Ch. 428.] This was an action for goods sold and delivered. The defendant, Charles, pleaded the general issue. The defendant, James, pleaded his bankruptcy (a)1; and, as to him, a nolle prosequi was entered. On the trial before Denman C.J., at Guildhall, after Hillary term, 1833, the following facts appeared:-The defendants were in partnership until the 22d of December 1829, when an advertisement was inserted in the London Gazette, announcing the dissolution of the partnership, and that the business would be carried on by the defendant James, who would receive and pay all debts. The chief part of the goods in question was delivered before the dissolution : the other part was ordered by James Percival after the 22d of December. It did not appear that, when these goods were delivered, the plaintiffs had had notice of the dissolution. On the dissolution, effects were left in the hands of James sufficient to pay the debts due from the partnership. In the beginning of 1830, the plaintiffs' collector applied for the balance [926] to James Percival, who told him that Charles knew nothing of these transactions, and that the plaintiffs must look to him (James) alone. The plaintiffs afterwards drew a bill on James, at three months, for the mixed amount, which was accepted by James, and dishonoured; and the plaintiffs gave him time to pay, but eventually brought this action against both defendants. Upon these facts, a verdict was taken for the full amount claimed, with leave to move for a nonsuit, if the Court should be of opinion that the plaintiffs had discharged Charles Percival from the debt. A rule nisi having been obtained for that purpose, Sir J. Scarlett and Chilton in last Michaelmas term shewed cause (a)2. Charles the retiring partner was not discharged from his liability by reason of the plaintiffs' having taken James's acceptance, which was afterwards dishonoured. Charles was originally liable as principal, and must continue liable, unless the debt appears to have been satisfied, and it lies upon him to shew that he is discharged from that liability. There was no evidence of any promise by the plaintiffs to release Charles. They ought to have done some act to discharge him. Their drawing the bill upon the remaining partner was a mere compliance with the terms of the notice that he would pay all debts of the firm...
To continue reading
Request your trial
-
Maingay and Another v Lewis
...Bench. Before WHITESIDE, C. J., and FITZGERALD and GEORGE, JJ. MAINGAY AND ANOTHER and LEWIS Thompson v. PercivalENR 5 B. & Ad. 925. Oakeley v. Pasheller 4 Cl. & F. 207. Bedford v. DeakinENR 2 B. & Ald. 210. Winter v. InnesENR 4 My. & Cr. 101. Oakford v. European and American Steam Shipping......
-
Maingay v Lewis
...8 Bing. 161. Howell v. JonesENR 1 Cr. M. & R. 97. Rees v. Berington 2 Ves. 539. Boultbe v. Stubbs 18 Ves. 20. Thompson v. PercivalENR 5 B. & Ad. 925. Davies v. Stainbank 6 D. M. & G. 679. Pooley v. HarradineENR 7 E. & B. 431. Greenough v. M'ClellandENR 2 E. & E. 424 & 429. Oakeley v. Pashel......
-
Guion v Trask
...exonerated ; Evans v. Drumniffnd (4 1 DE 0. F. & J. 377. GUION V. TRASK 405 Esp. 89); Reed v. VHiite (5 Esp. 122); Thompson v. Percival (5 B. & Ad. 925); Story on Partnership (page 239 (4th ed.)). Captain Trask, therefore, has no occasion to receive the freight in order to indemnify himself......
-
Wollen v Smith
...which was argued in last Michaelmas term. On the part of the defendant, the case was said to be similar to those of Thompson v. Percival (5 B. & Ad. 925, 935), and Augarde v. Thompson (2 M. & W. 617), in which it was held that a plaintiff cannot avail himself of sect. 59 of stat. 6 G. 4, c.......