William Mayhew and Ann Gent, Plaintiffs; Sarah Crickett, Robert Alexander Crickett, and Edward Bacon, Defendants
| Jurisdiction | England & Wales |
| Judgment Date | 14 April 1818 |
| Date | 14 April 1818 |
| Court | High Court of Chancery |
English Reports Citation: 36 E.R. 585
HIGH COURT OF CHANCERY
S. C. 1 Wils. Ch. 424. For revivor of liability where surety promises to pay subsequent to discharge see Phillips v. Foxall, 1872, L. R. 7 Q. B. 677. As to securities taken subsequently to the suretyship see Forbes v. Jackson, 1882, 19 Ch. D. 621. As to position of remaining co-surety when other surety has been discharged see Polak v. Everett, 1876, 1 Q. B. D. 674; Re Wolmershausen, 1890, 62 L. T. 545. Cf. also Duncan Fox & Co. v. North & South Wales Bank, 1879-80, 11 Ch. D. 88; 6 App. Cas. 1.
[185] william mayhew and ann gent, Plaintiffs; sarah ceickett, robert alexander crickett, and edward bacon, Defendants. April 8, 9, 11, 14, 1818. [S. C. 1 Wils. Ch. 424. For revivor of liability where surety promises to pay subsequent to discharge see Phillips v. Foxall, 1872, L. R. 7 Q. B. 677. As to securities taken subsequently to the suretyship see Forbes v. Jackson, 1882, 19 Ch. D. 621. As to position of remaining co-surety when other surety has been discharged see Polak v. Everett, 1870, 1 Q, B. D. 674 ; Re Wolmershausen, 1890, 62 L. T. 545. Cf. also Duncan Fox & Co. v. North & South Wales Bank, 1879-80, 11 Ch. D. 88; 6 App. Cas. L] A creditor whose debt is secured by a warrant of attorney, having received promissory notes from the debtor and two sureties, and afterwards entered up judgment and taken the goods of the debtor, and without the knowledge of the sureties, withdrawn the execution, has discharged the sureties ; but a subsequent promise to pay the debt by one surety, knowing that the execution has been withdrawn, renews his liability. Right of contribution between co-sureties, whether by separate instruments, or by the same instrument. The bill stated, that in August 1814, Charles Batteley, being indebted to the Defendants, his bankers, in the amount of 1000 or thereabout, secured by a warrant of attorney to confess judgment, the Defendant, agreed to advance to him the farther sum of 300 on condition of his procuring two persons as sureties for the repayment thereof, and also of the former balance ; [186] and the Plaintiffs having agreed to become sureties, two promissory notes, for 650 each, payable to the Defendants on demand, dated the 20th of August 1814, were signed, one by Batteley and Mayhew, the other by Batteley and Gent; that the Plaintiffs had lately discovered that the Defendants did not advance the farther sum of 300 nor any part of it; that in November 1814, the Defendants entered up judgment on the warrant of attorney against Batteley and issued execution thereon, and entered into possession of his dwelling house, and the stock in trade and other effects therein, 0. xvi-19* 586 MAYHEW 7'. ORTPKETT 2 SWANS. 187. and after continuing several days in possession, without consulting or apprizing the Plaintiffs, withdrew the execution, Batteley paying the expenses ; and that in August 1815, Batteley again becoming embarrassed, the Defendants for the first time applied to the Plaintiffs for payment of the promissory notes, which the Plaintiffs refused ; and in Michaelmas term 181G, the Defendants commenced actions against them. The bill, charging, that the notes ought iti equity to be considered as void and given without consideration ; that by withdrawing the execution against Batteley, the Defendants had released the Plaintiffs ; that Gent never requested the Defendants not to press for payment of Batteley's debt; and that if Mayhew made such request, it was in ignorance that the execution had been withdrawn, prayed that the Defendants might be decreed to deliver the promissory notes to the Plaintiffs, and indemnify the Plaintiffs against them, and be enjoined from proceeding in the actions at law. The Defendants, by their answer, stated, that being dissatisfied with the large balance due...
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