« PreviousContinue »
year 1830, the Defendant undertook, and then and there faithfully promised the Plaintiff, as such receiver as aforesaid, to pay him the said last-mentioned sum of 25l. 2s. at the expiration of the said last-mentioned period, to wit, on, &c. at, &c. should the said debt so due from C. Kennedy to the said firm as aforesaid be then unpaid. And the Plaintiff averred that he, confiding in the said proinise and undertaking of the Defendant, did not adopt any legal proceedings against the said C. Kennedy for the recovery of the said sum in which the said C. Kennedy was so indebted to the said firm as aforesaid for the said period of two months, to wit, until, &c. at, &c.; but that the said C. Kennedy, although he was afterwards, to wit, on, &c. at, &c. requested so to do, did not, nor would pay the said sum of money, or any part thereof, to the Plaintiff as such receiver, or to the said firm, or to any other person on their behalf, but altogether refused and neglected so to do, to wit, at, &c. And the same debt so due from the said C. Kennedy to the said firm was at the expiration of the said last-mentioned period, to wit, on, &c. wholly unpaid, to wit, at, &c. whereof the Defendant afterwards, to wit, on, &c. there had notice; and thereby, and according to the tenor and effect of his said promise and undertaking, he the Defendant then and there became liable to pay to the Plaintiff as such receiver the said sum of 251. 2s., on the same day and year aforesaid, to wit, at, &c.
Cross Serjt. obtained a rule nisi to arrest the judgment, on the ground that there was no consideration for the Defendant's promise, and that the Plaintiff had no authority to enter into or sue on such a contract as that on which he had declared.
Wilde Serjt. shewed cause. The Plaintiff, as receiver appointed by the Court of Chancery, had authority to collect and sue for the debts of the firm (Wynne v. Lord Newborough (a), and, as incidental to that authority, to press or suspend payment according to a reasonable discretion; for by a judicious forbearance he might collect more than by immediate urgency. After verdict it must be assumed that his authority was duly proved at the trial. If he had authority to suspend as well as to enforce payment, he had authority to enter into a contract such as the present, by which the suspension is accorded on terms favourable to the principal creditors, namely, the advantage of security for the debt. Then, the Plaintiff having authority to make the contract, is the only person who can sue on it. He is not agent of the creditors, but rather appointed to control them, and is clothed with an independent right. No other could sue; and payment, even to the creditors, would have been no discharge. Forbearance is a good consideration; for the Plaintiff was responsible for the result, and that responsibility might turn out to his detriment. If, however, his responsibility were a matter of doubt, and an advantage were gained by a concession as to the disputable point, that is a sufficient consideration. Longridge v. Durville (6), Stracy v. Bank of England. (c)
Cross. The Plaintiff merely styles himself receiver appointed by the Court of Chancery; an office of which a court of law can take no notice. If, however, the office be recognized, the plaintiff's duty was simply · to collect debts, not to enter into contracts for the forbearance of them, or to engage in suits to enforce (a) · Ves. jun. 164.
(-) 6 Bingh. 754. · (b) s B. & A. 117. BA
such contracts. And there is no consideration for the Defendants' promise; since the verdict in this action would be no answer to an action in the name of the original creditor against C. Kennedy.
TINDAL C. J. I think there is no ground for arresting the judgment on the second count in this declaration. The count states that one Charles Kennedy was indebted to the firm of Boeme and Smout in the sum of 251. 2s.; that the Plaintiff was appointed by the High Court of Chancery receiver of the debts due to the firm; whereby Charles Kennedy became liable to pay the Plaintiff, as such receiver, the said sum of money, when he should be thereunto requested: there is, therefore, a distinct allegation of C. Kennedy's liability to pay the Plaintiff when requested. It is objected, however, that this Court cannot take judicial notice of the office of receiver; but after verdict we may assume that it was proved the Plaintiff had a right to enforce payment to himself in the capacity of receiver. And, as to the objection that there is no consideration for the Defendant's promise, it is sufficient to observe that the plaintiff did not interfere as a stranger in the concerns of the firm for which he was appointed receiver: it was his duty to require the debtor to pay, and the duty of the debtor to pay him. The contract, therefore, to forbear to proceed against the debtor was a contract from which the Plaintiff might incur a detriment; and it is a sufficient consideration for a contract if one party receives a benefit or the other is exposed to a detriment from it. We must assume it to have appeared that a receiver is liable to answer to the Court of Chancery, and that therefore it might be a detriment to him to give time, where his duty in the first instance was to require payment. Boeme and Co. could not 1831.
have put this matter in suit against the Defendant; and
GASELEE J. I am of the same opinion. A receiver must have a reasonable discretion ; and if he exercises it as in the present instance, it is not for this Court to say he has done wrong. He is responsible to the court by which he was appointed. By giving time he has incurred a responsibility, which is a sufficient detriment to form the consideration for the Defendant's promise.
BosaNQUET J. There is no ground for arresting the judgment in this case. It has been objected that the Plaintiff has no authority to sue: but the contract in question was made by him in his character of receiver, and not as agent of the creditors, and in his character of receiver he is entitled to sue. As to the objection that a receiver has no authority to exercise forbearance towards a debtor, he must exercise a reasonable discretion, and such forbearance is not of itself incompatible with his duty as receiver. Here he agrees to forbear if a third person will give security, which is an advantage to the creditors, and a reasonable exercise of discretion. That forbearance too was an advantage to the debtor, and was a sufficient consideration for the Defendant's promise.
Kennedy Obat in case Charles should comes Kennedy's
ALDERSON J. I am of the same opinion. James Kennedy obtains time for Charles Kennedy, on an undertaking to pay in case Charles should omit to do so. That is a sufficient consideration for James Kennedy's
promise; and the jury might reasonably presume that the Plaintiff had authority to do that which the Defendant requested him to do.
HAMILTON, Demandant; FARRER, Tenant ;
JSSELL Serjt. moved to amend this recovery, sufamended by
“ fered at bar in Michaelmas term 1782, by reversing transposing the names of the names of demandant and tenant, pursuant to the demandant
deed to make the tenant to the præcipe, which bore date and tenant,
November 27. 1782, and the deed to lead the uses, which bore date January 3. 1782, and according to which Farrer was to be demandant and Hamilton tenant. Possession had gone according to the deed ever since.
Russell relied on Lord, demandant, Biscoe, tenant (a), Roberts, demandant, Robinson, tenant (6), in which the same amendment had been made; and Loggin, demandant, Rawlins, tenant (c), where the principle on which such amendments are allowed is stated to be the statute of 8 Hen. 6. to amend the misprision of the clerk. Upon that principle the amendment of inserting “ all tithes” was allowed in Dowse, demandant, Lloyd, tenant (d) and Milbank v. Jolliffe, there cited.
In Michaelmas term 1830 the Court allowed the amendment now required, in a recovery in which Rose was demandant, Frowd tenant.