Thompson and Others, Executors of John Springall, Deceased, v E. J. Lack

JurisdictionEngland & Wales
Judgment Date18 November 1846
Date18 November 1846
CourtCourt of Common Pleas

English Reports Citation: 136 E.R. 216

IN THE COURT OF COMMON PLEAS

Thompson and Others, Executors of John Springall
Deceased
and
E. J. Lack

S. C. 16 L. J. C. P. 75.

[540] thompson and others, Executors of John Springall, Deceased, v. E. J. lack. Nov. 18, 1846. [S. C. 16 L. J. C. P. 75.] The provision in 7 & 8 Viet. c. 96, s. 25, that every sum of money payable by way of annuity or otherwise, at any future time or times, by virtue of any bond, covenant, or other securities, shall be deemed and taken to be debts within the meaning of the 5 & 6 Viet. c. 116, and of that act, is not retrospective.-A release to one of two sureties who had entered into a joint and several covenant to pay an annuity, in default of payment by the grantor, was accompanied by a proviso, that such release should not prejudice the right of the grantee to enforce its payment against the grantor and the other surety, or either of them :-Held, that the proviso restrained the operation of the release, and that the liability of the co-surety was not affected by such release.-A replication taking issue on a plea alleging that no memorial of an annuity had been inrolled, and setting forth such memorial, properly concludes with a verification by the record. Covenant. The declaration stated that theretofore, and in the lifetime of the said John Springall, to wit, on the llth of October, 1834, by a certain indenture then made between John Lack of the first part, the defendant and Charles Parry Lack of the second part, and the said John Springall of the third part-profert-the said John Lack, for the considerations therein mentioned, did give, grant, &c., unto Springall, one annuity or clear yearly sum of 371. to be paid during the term of ninety-nine years, to commence, &c., if John Lack should so long live; to have the said annuity of 371. unto Springall, his executors, administrators, and assigns, during the said term of ninety-nine years, to commence as aforesaid, if John Lack should so long live, to be paid at, &c., by four equal quarterly payments, &c., in every year; that it was agreed that the defendant and the said C. P. Lack should respectively guarantee the payment thereof and of such proportionable part thereof as in the said indenture mentioned, and all costs, charges, and expenses to be incurred or occasioned by reason of any default in payment thereof, or of any part thereof; [541] that in pursuance of the last-recited agreement, they the defendant and C. P. Lack, did, in and by the said indenture, for themselves, their heirs, &c., and each of them did thereby for himself, his heirs, &c., covenant with Springall, his executors, &c., by the said indenture, that if John Lack, his heirs, &c., should make any default in payment of the said annuity of 371., or any part thereof, and such proportionable part thereof, as aforesaid, then that the defendant and C. P. Lack, their heirs, &c., or some of one of them, should and would, from time to time, immediately after any such default should be made as aforesaid, well and truly pay unto Springall, his executors, &c., the said annuity of 371., and all arrears thereof, and such proportionable part thereof as aforesaid. Breach -that after the making of the said indenture, and in the lifetime of the said John Lack, who is still living, and during the said term of ninety-nine years, and after the death of Springall, to wit, on the llth of January, 1846, a large sum of money, to wit, the sum of 741., of the said annuity, for two years of the said term then last elapsed, became due from the said John Lack to the plaintiffs as executors as aforesaid; yet the said John Lack had not paid the said sum of 741., or any part thereof, but therein had failed and made default, of all which the defendant had always had notice; yet 30. B. 542. THOMPSON V. LACK 217 neither of them, the defendant or C. P, Lack, as sureties for the said John Lack, had paid the same, or any part thereof, and the said sum of 741. still remained in arrear, contrary to the said indenture, and the said covenant of the defendant in that behalf. Second plea-that, after the making of the indenture in the declaration mentioned, and after the passing of the 5 & 6 Viet. c. 116, intituled "An act for the relief of insolvent debtors," and before the making and passing of the 7 & 8 Viet. c. 96, intituled "An act to amend the [542] law of insolvency, bankruptcy, and execution," to wit, on the 6th of June, 1843, a petition for protection from process was duly presented by the defendant, under and according to the provisions in that behalf of the said first-mentioned act; and that afterwards, and before the commencement of this suit, to wit, on the 14th of August, 1843, a final order for protection and distribution was made in the matter of the said petition under and by virtue of the said first-mentioned act, by a commissioner duly authorized in that behalf, to wit, one E. Gr. C. Fane, Esq.; and that, on a certain day before the commencement of this suit, to wit, on the 6th of June, 1843, the said petition was filed pursuant and according to the provisions of the said first-mentioned act-verification. Third plea-that, after the making of the said indenture in the declaration mentioned, and whilst the same was in full force and virtue, and in the lifetime of Springall in the declaration mentioned, and before any portion of the said sum in the declaration mentioned, and claimed to be due and payable from the defendant, became due and payable, and before the commencement of this suit, to wit, on the llth of January, 1844, an indenture was made between William Thompson of the first part, Springall of the second part, and C. P. Lack, in the declaration and in the said indenture of...

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5 cases
  • Quinlivan v Governor of Portlaoise Prison
    • Ireland
    • High Court
    • 1 January 1998
    ...General [1964] I.R. 239. In Re Joseph Suche & Co. Ltd. (1875-76) 1 Ch. D. 48. Swire v. Cookson (1883) 48 L.T. 877. Thompson v. Lack (1846) 3 C.B. 540. Zainal bin Hashim v. Government of Malaysia [1980] A.C. 734. Criminal Law - Common law offence - Statutory abolition - Absence of transition......
  • M'Areavy v Hannan
    • Ireland
    • Exchequer (Ireland)
    • 15 February 1862
    ...Com. Law Rep. 366. Marsh v. HigginsENR 9 c. B. 551. Jackson v. Woolley 8 Ell. & B1. 784. Moon v. DurdenENR 2 Exch. 22. Thompson v. LackENR 3 C. B. 540. Page v. BennettENR 2 Giff. 117. Crofts v. MiddletonENR 2 K. & J. 194. Parke v. M'LoughlinIR 1 Ir. Com. Law Rep. 186. Cuthbertson v. IrvingE......
  • The Queen against The Inhabitants of Salford
    • United Kingdom
    • Court of the Queen's Bench
    • 12 July 1848
    ...v. Bradshaw (2 Atk. 36), Attorney General v. Lloyd (3 Atk. 551), Attorney General v. Andrews (1 Ves. sen. 225), Thompson v. Lade (3 C. B. 540, 551); although Rex v. Thurston (1 Lev. 91), referred to in Latlass v. Holmes (4 T. R. 660, 662), is a strong case to the contrary. But it is unneces......
  • Willis Merry, and Smith v De Castro
    • United Kingdom
    • Court of Common Pleas
    • 28 April 1858
    ...B. 536 ; Stevens v. Stevens, 5 Exch. 306. The ground of the distinction is very clearly put by Channell, Serjt., in Thompson v. Lack, 3 C. B. 540, 549. It was there held that a release to one of two sureties who had entered into a joint and several covenant to pay an annuity, in default of ......
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