IN THE THIRD AND FOURTH YEARS OF GEO. IV. their account; and they expressly stated that the arrears of the annuity had not yet been received, and debited the plaintiff accordingly. They, therefore, cannot be liable to the defendant for money paid to his use, as there was no legal or joint liability imposed on them to make the advances in question to the plaintiff, or any request by the defendant that they should do so. He merely stipu, lated that the annuity should be paid out of the funds created by the annuity deeds; and if there were no such funds, the defendant would become liable under the judgment, and execution might issue against him accordingly. But as Howard and Gibbs applied their own funds for this particular purpose, it is quite clear that they must have a legal remedy somewhere; and as they have a lien on the securities by which the annuity was granted, they may make use of the plaintiff's name; and although the execution was sued out at his instance, it cannot affect the rights of the assignees, as they may recoup themselves, and must be considered to stand in the same situation as the bankrupts, by whom the advances were made on the mere faith or supposition of the validity of the securities. The assignees gave the defendant notice that they were interested in the arrears of the annuity, and entitled to receive a certain sum therefrom, and it was necessary for them to explain the real situation of the parties. On these grounds, therefore, they were not only justified in interfering, but are entitled, to the benefit of the execution to the extent of the advances made by Howard and Gibbs before their bankruptcy. Mr. Serjeant Lens and Mr. Serjeant Cross, in support of the rule, were stopped by the Court. Lord Chief Justice DALLAS.-If I thought the opinion I so lately delivered in the case of Williamson against the 1823. CARROLL บ. GOOLD. present defendant was wrong, I should be now most ready to say so; but after the best consideration I have been able to give the subject, I still think proper to adhere to my former opinion. The only question then is, whether this case differs from that, not only as to the facts, but may be distinguished by the additional arguments which have been now pressed on us; and, speaking for myself, I can discover no essential or substantial difference. It has been said, however, in the first place, that the plaintiff has made an affidavit, which was not done in the preceding case; secondly, that those of Messrs. Howard and Gibbs were decisive to shew that they did not act as agents to the defendant; and lastly, and mainly, that this was the case of a principal, and not of a surety, and there may be many material distinctions between a principal and surety, as the latter is always favoured, both at law and in equity. That, however, must depend on the special circumstances of each particular case: if a surety enters into an engagement to make himself responsible for his principal with his eyes open, he is not entitled to have so much favour shewn him; and that distinction has been often recognised and adopted. That, however, will not apply to the present case, or the circumstances which are now before the Court. With respect to the affidavit of the plaintiff, it is so far from being favourable to him, that it operates rather against him. So the substance of the affidavits of Messrs. Howard and Gibbs shews, that this was a payment made by them, not out of the arrears of the annuity from the rents of the defendant's estates then in their hands, but of a wholly different nature, viz. as an advance for the arrears of the annuity, for a commission of two and a half per cent. payable to themselves, and which they deducted accordingly. This, therefore, must be considered as a voluntary payment made by them for their own advantage, and on account of the annuity. The plaintiff dealt with them on that footing, and received the money on those terms. Can he, therefore, seek to enforce his security against the defendant for the money already paid him by Howard and Gibbs; and more particularly so, when they were not bound to make such advances? It appears to me that they cannot avail themselves of it; and as I see no reason to alter my former opinion, as there is no material distinction between the two cases, this rule must be made absolute in the terms as prayed for. Mr. Justice PARK.-The Court entered fully into the merits of this case when they decided that of Williamson v. Goold; and this appears to me to be a stronger case for our interference on behalf of the defendant than that; because here, the plaintiff has sworn that he authorised the execution to issue against the defendant for a sum, the greater part of which he admitted he had previously received. On what authority, therefore, could he order the execution to be sued out against the defendant to the extent of his present claim? If Howard and Gibbs had paid him the whole of the arrears of the annuity, instead of a part only, can it be contended for a moment that he could have issued execution for the whole he had so received? If he had, I am clearly of opinion that he would have been liable to an action for false imprisonment. It has, however, been contended for the assignees, that they are entitled to have the benefit of this payment made by Howard and Gibbs to the plaintiff; but it appears to me that they have no right whatever to interfere on the present motion. They are not called on to answer the defendant's application, but the plaintiff alone; and if they have any pretence to claim as against him, they need not have made themselves parties to it; but they were, no doubt, apprehensive that they had no just claim against the plaintiff. It is quite clear that Howard and 1823. CARROLL V. GOOLD. 1823. CARROLL บ. GOOLD. Gibbs cannot recover as against him, as it was a voluntary payment made to him, and for which they deducted their usual rate of commission, and consequently they cannot rescind that payment; neither can they recover as against the defendant for money had and received, for Howard was appointed the receiver of his rents, in the first instance, out of which he and his partner Gibbs must seek to reimburse themselves. What, then, is the nature of the injury the plaintiff has really sustained? He has received part of the arrears of the annuity, and the defendant declares that he is willing to pay the residue on its being ascertained what sum is actually due. It is quite clear, that the defendant can only be liable for the arrears as they become due, and he is now ready to pay whatever sum such arrears may amount to. It is equally clear, that we have a jurisdiction over our own process, and that we are authorised to exercise a controul over it. I am, therefore, extremely happy that in this case, we have the opportunity of modifying a rule, so as to adapt it to the justice of the case; and I am, therefore, of opinion, that the defendant is entitled to be discharged out of custody on payment of such sum as the Prothonotary shall find to be due to the plaintiff on account of the arrears of the annuity. Mr. Justice BURROUGH.-If the assignees have any claim as against the plaintiff, they need not have appeared on the present application: the money was paid and received by him on account of the annuity; and in the account rendered to him by Messrs. Howard and Gibbs, a charge is made for stamps, but no receipts or any other documents that might have been given, or on which these stamps were impressed, have been produced or even adverted to. If they had been produced, I am perfectly satisfied that it would appear from them that the payment in question was made on account of the an nuity; at all events, that is sufficiently apparent on the face of the account itself. It seems that no application has been made by the assignees to the plaintiff, to refund the money paid to him by the bankrupts Howard and Gibbs. It is in the nature of a debt between those parties, and until the plaintiff is required to refund, the assignees can have no right to call on the defendant. There can be no doubt but that the Court have jurisdiction to interfere in a case of this description; and although the plaintiff has admitted that he has received a certain sum from Howard and Gibbs, and no application has been made by their assignees for him to refund or pay it back on account of the bankrupts' estate; yet he has ventured to issue execution against the defendant for the whole of the arrears of the annuity, and is now detaining him in custody under it. I perfectly agree with my brother Park, that we have a right to exercise a controul not only over our own process, but over any execution which may have been improperly sued out under it.-Therefore, on the terms of the defendant's paying into the hands of one of the Prothonotaries the sum of 1,1687. 8s. (there to remain and abide the further order of the Court) he must be discharged from the detainer against him under the writ of capias ad satisfaciendum issued in this cause; and it must be referred to the Prothonotary to ascertain whether that sum shall have overpaid the plaintiff the arrears of the annuity due to him, or whether any and what further sum is due to him on account thereof, the plaintiff and defendant undertaking to pay or refund to the other so much as the Prothonotary shall find due respectively; and on these terms this rule must be made Absolute. 1823. CARROLL V. GOOLD. END OF HILARY TERM. |