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why the two executions issued againstthe defendant should not be set aside, on. payment of the balance due from him to the plaintiff. As the latter has made no affidavit, but is entirely silent on the subject, we must assume that he admits the facts as stated in the defendant's affidavit, and on which the present application was founded, and by which it appears that 1,4331. only are now due on account of the annuity. Bat the case does not rest here. The defendant came before me at chambers, in custody, in the early part of the last month, and claimed to be discharged, as he stood only in the situation of surety. The plaintiff then made no affidavit; and had it not been for the magnitude of the sum, I should have been disposed to have allowed his discharge; and now, after hearing the arguments at the bar, I have no doubt but that he is entitled to it on the terms as prayed for. He entered into securities as'a surety for his brother, the grantor of the annuity, and had no individual interest in the transaction; and he merely stipulated, or engaged, that when default should be made by his principal in payment of the annuity, the plaintiff might sue out execution against him. That was the whole of bis undertaking. What then are the rigbts of the plaintiff; and what is the course he has thought proper to adopt ? He has sued out two writs of cupias ad satisfaciendum against the defendant, on which executions have issued, amounting in the whole to more than 4,6001. notwithstanding he could be only liable to the extent to which his principal had made default;-and to the amount of 3,2131. it appears that he has made no default, for the plaintiff has received that sum from Howard and Gibbs on account of the annuity; and for any thing that expressly appears to the contrary, out of the profits of the estate of the grantor; and for which payments they have charged and received their commission. The plaintiff is therefore satisfied, as far as those payments go; as they were
made by his agents, and paid over to him on account of the grantor of the annuity. If the latter had paid WILLIAMSON him that sum, it is quite clear that the plaintiff could not proceed against hiin for its re-payment; and the case appears to be far stronger in respect of the defendant, as his surety. It appears that the balance due to the plaintiff, after the deduction of the 3,2181. exclusive of the expenses of the execution, amounts to 1,4831. 1s. 9d. only, including the last quarter's annuity. The assignees claim the former sum, as having been actually advanced by Howard and Gibbs, on the credit or security of the annuity; and as they must be considered as the agents of the grantor for that parpose, as well as the grantee, I am of.opioion that this rule must be made absolute.
Mr. Justice BURROUGH. The present application is founded on an affidavit of the defendant, which in substance states, that a balance of the arrears of the annuity due from his brother is only payable to the plaintiff, as he had received notice from the assignees of Messrs. Howard and Gibbs, that the latter had paid several sums, amounting in the whole to 3,2131. to the parties, beneficially interested in the annuity in question, and of whom the plaintiff is one. He was, therefore, bound to answer that part of the affidavit; as, if it be true, the defendant, as surety, was entitled to relief to that extent. Besides, Howard and Gibbs deducted and retained a commission of two and a half per cent. at the respective times the advances were made by them to the plaintiff, as the grantee. To this it is answered, that the plaintiff, being urgent to obtain payment of the annuity, Howard and Gibbs advanced these sums in anticipation, still, however, charging their usual commission; and that the deeds and other securities remained in their
hands. But by the indenture of the 22d December, 1813, the Irish estates of the grantor were conveyed to Howard in trust, and he was necessarily made a party to that instrument, and was therefore entitled to hold it, together with the other secarities. Although it has been mainly contended, that the payments in question were made by way of anticipation, there is not one fact to corroborate or support it. If they had been, there would be some treaty or engagement to that effect, or receipts might have been produced to shew that fact. So, if the payments had been made on account of the annuity, the grantee would have given a receipt accordingly ; bat do document whatever, tending to shew how he received those sums, or on what account, has been produced on this occasion. It appears on the face of the whole of the transaction, that those payments could not have been made in advance or anticipation, as Howard and Gibbs retained their commission, as they were usually accustomed to do in payments of annuities passing through their hands. So, if they had been advanced by way of loan, there would have been some agreement entered into, or stipulation made, for the payment of interest, and to which they would have been fairly entitled. Or if it had been a mere loan for a limited period, there would either have been a memorandum in writing, or some agreement, which might be proved by parol ; but nothing of the sort appears : or, at all events, there would have been a power granted to Howard and Gibbs to use the name of the grantee in suing out execution, which is the constant course in cases of this description. It is most malerial to consider, that the only person called on by the rule to shew cause is the plaintiff alone, who has made no affidavit whatever, or even ventured to explain or contradict any part of the defendant's statement: and I own, for one, I am wholly at a loss to ac
count for it. It may be assimilated to a bill in equity,
1823. to which no answer is given, and which therefore must WILLIAMSON be taken as against the plaintiff pro confessu, as he has not denied that he has received the sum in question from Messrs. Howard and Gibbs, on account of the annuity. It is clear, therefore, that whatever sum he has received on that account, to that extent the defendant is discharged, as he stands in the mere situation of a surety ; and it is immaterial whether the money was paid by the grantor, as the principal, or Howard and Gibbs, as his agents. Although the Court ought not to entertain suspicions in a case of this nature, yet when we see money scriveners managing the whole of the transactions between the parties, acting both for the grantor and grantee, and holding all the securities in their own hands, we are bound to look at it with eagle eyes; and, therefore, as far as the plaintiff has received payments on account of this annuity, the defendant is entitled to be discharged; and more particularly so, as the former has brought forward no proof to contradict the affidavit of the latter.
On the defendant's bringing into Court the balance appearing to be due, after giving credit for the advances in question, and referring it to the Prothonotary to ascertain what sum should be really due, the rule was made
NUNN v. TAYLOR.
trial for the ad
Mr. Serjeanit Pell, on a former day in this 'Term, obthe venue from tained a rale nisi, on the part of the defendant, that the
venue in this cause might be changed from London to Exeter, after an order for Exeter, on the usual affidavit, that the cause of action time to piead, on the terms of (viz. for goods sold and delivered), arose in the county pleading issue of Deton, and not elsewhere. ably and taking short notice of journed London Mr. Serjeant Peake now shewed cause, on an affidavit, Sittings after Term, unless which stated that the defendant had obtained a Judge's under specials, order for time to plead, and that he was under terms to although the plead issuably, and take short notice of trial for the Lonapplication for that purpose
don adjourned Sittings after this Term; and he referred issuable Term. to the case of Shipley v. Cooper (a), where it was held,
that the defendant could not change the venue after an order for time to plead, on the terms of pleading issuably, and taking short notice of trial for the first sittings in London or Middlesex.
was made in an
-, Mr. Serjeant Pell, in support of the rule, observed, that by a note of the learned reporter's to the case of Shipley m. Cooper, 'the diatinction seems to be this-that the venue may be changed after an order for time to plead, though upon the terms of pleading issuably; but that if the defendant has agreed to plead issuably, and to take short notice of trial for the first sittings in London or Middleser, he cannot then change the venue ; because there a trial would be lost : and the cases of Petyt v. Berkeley (6), and Hunter v. Gray (c), are referred to in support of that position. Here, however, as the defendant was under terms to try at the adjourned sit
(a) 7 Term Rep. 698.
(1) Cowp. 510.
-(e) Barnes, 493.