Maingay and Another v Lewis

• Jurisdiction: Ireland
• Judgment Date: 03 May 1869
• Date: 03 May 1869
• Court: Queen's Bench Division (Ireland)

Q. Bench.

Before WHITESIDE, C. J., and FITZGERALD and GEORGE, JJ.

MAINGAY AND ANOTHER

and

LEWIS

Thompson v. PercivalENR 5 B. & Ad. 925.

Oakeley v. Pasheller 4 Cl. & F. 207.

Bedford v. DeakinENR 2 B. & Ald. 210.

Winter v. InnesENR 4 My. & Cr. 101.

Oakford v. European and American Steam Shipping Co.(Limited)ENR 1 H. & M. 182.

Pooley v. HarradineENRUNK 7 E. & B. 431; 26 L. J. Q. B. 156.

Greenough v. M'ClellandENRUNK 2 E. & E. 429; 30 L. J. Q. B. 15.

Evans v. DrummondENR 4 Esp. 89.

Bedford v. DeakinENR 2 B. & Ald. 210.

David v. Ellice 5 B. & Cr. 196.

Pleading — Equitable Plea — Liablility of retiring Partner — Arrangement between Debtor Partners that one is to become the principal Debtor, and the others only sureties.

VoL. COMMON LAW SERIES. sufficient for this case-to say that I think an action lies; and, that being so, the mandamus ought not to issue. Conditional Order discharged. • Attorney for the Prosecutor : Sedley., Attorneys for the Defendants : Sernaghan and Saunders. MAINGAY AND ANOTHER r. LEWIS (1). Pleading-Equitable Plea-Liability of retiring Partner-Arrangement beÂtween Debtor Partners that one is to become the principal Debtor, and the others only sureties. To an action on the common money counts the Defendant pleaded, as a defence upon equitable grounds, in substance, that the causes of action accrued against Defendant, and one W. and one S. as partners ; and that after the causes of action had so accrued, the partnership was dissolved by a memoranÂdum of agreement, of which Plaintiff had due notice ; that, by the memorandum of agreement, it was agreed that W. should take upon himself all the debts and liabilities of the partnership, and would indemnify Defendant and S. from all claims. That after the execution of such agreement, W. became the principal debtor in respect of all the partnership liabilities, and Defendant only a surety, of all which Plaintiff had notice ; and that afterwards, and after DeÂfendant, in place of a principal, had become only a surety as aforesaid, Plaintiff took a bill of exchange at three months from W. alone for the amount of the causes of action, and thereby gave time to W., whereby Defendant was disÂcharged from liability. Held, a bad plea. DEMURRER. Action upon the common money counts. 2nd Defence-That the said causes of action, and every of them, accrued before the 23rd day of October, 1866 ; and Defendant adÂmitting, for the purposes of this defence, that Defendant was a partner with one Erwin Harvey Wadge and Henry Curwen Salmon, trading under the style or firm of The City of Dublin Flax-spinning Company, says that said causes of action, and every of them, accrued against Defendant and said Erwin Harvey Wadge and Henry Curwen Salmon as partners ; and Defendant says that said partnership was dissolved on the 23rd day of October, (1) Before WHITESIDE, C. J., and FITZGERALD and GEORGE, JJ. 202 THE IRISH REPORTS. [I. R. 1866 ; and notice of said dissolution, and that the said Erwin HarÂvey Wadge had become liable to the debts of the said firm, was duly published, and the Plaintiffs had knowledgd of such dissoluÂtion and notice, herein-before mentioned ; and after such notice and knowledge on the part of the Plaintiffs, the Plaintiffs agreed with Erwin Harvey Wadge, for and on behalf of the Defendant, to discharge the Defendant from liability in respect of the said partÂnership liabilities and the causes of action in the Plaint mentioned, and to accept the personal security of the said Erwin Harvey Wadge, and to take the acceptance of the said Erwin Harvey Wadge in full satisfaction and discharge of all partnership liabiliÂties to the Plaintiffs of the Defendant and said Erwin Harvey Wadge ; and afterwards, pursuant to the terms of the said agreeÂment, the said Erwin Harvey Wadge gave to the Plaintiffs his acÂceptance for £286 6s. 9d., being the amount of said partnership liabilities ; and all things happened to entitle the Defendant to the benefit of the said agreement ; and the Plaintiffs accepted the said acceptance of said Erwin Harvey Wadge in full satisfaction and discharge of the said claim. 3rd. Upon equitable grounds, that the said several causes of action accrued against Defendant and one Erwin Harvey Wadge, and one Henry Curwen Salmon, trading as copartners, as in last defence alleged ; and that after the said several causes of action had so accrued against said copartners, said partnership was disÂsolved by a memorandum of agreement, bearing date the 23rd of October, 1866, of which Plaintiffs had due notice. And Defendant further saith, that by said memorandum of agreement it was proÂvided that said Erwin Harvey Wadge should take upon himself all the debts and liabilities of the said copartnership, and would inÂdemnify Defendant and said Henry Curwen Salmon from all claims and liabilities in respect thereof ; and Defendant saith, that after the execution of the said agreement, said Erwin Harvey Wadge became the principal debtor in respect of all the debts and liabilities of the said copartnership, and that Defendant was only a surety in respect thereof-of all which the Plaintiffs had notice ; and the Defendant saith that afterwards, and after the Defendant, instead of a principal debtor, had become only a surety as aforeÂsaid, Plaintiffs accepted and took a bill of exchange at three VOL. III.] COMMON LAW SERIES. months' date from said Erwin Harvey Wadge alone for the amount of the said several causes of action, and thereby gave time to said Erwin Harvey Wadge for payment of said amount, whereby Defendant was discharged from all liability in respect of the said causes of action. Demurrer to the third defence. J. A. Byrne, and. J. Murphy, Q. C., in support of the deÂmurrer. This defence can only be supported as a defence upon equitable grounds ; for to make it a good legal defence, an agreement to acÂcept Wadge as the debtor should be averred. Mere notice to the creditor cannot deprive him of his rights ; and although the taking of a bill might...