The Sun.
London, England, 1842-06-17 00:00:00

DEMURRER.

Mr. ERLE—I appear before your Lordship in support of
this demurrer. The declaration recites that Thomas Feaver
and Thomas Lewellin carried on business in partnership,
and were about to disssolve, and that Thomas Feaver
and Thomas Lewellin were much iadebted to the firm
of Truman, Hitchcock, and Richard Lewellin. This
declaration, after reciting the partnership of Feaver and
Thomas Lewellin, and that they et ere about to dissolve,
and that Thomas leaver and Thomas Lewellin were in-
debted to the defendants and others, and that a proposal
had been made to the plaintiff to be a partner with
leaver, and that leaver and Crucknell should pay all
the debts of Fearer and Lewellin, and while the plaintiff
was considering on this subject, and inquiring into the
state of affairs of leaver and Lewellin, the defendant
falsely represented to him that he might safely enter
into the copartnership ; and he brought a large sum of
money into the partnership, which has been wholly lost.
The second count recites the same facts, and state; that
the defendants had been sureties for Feaver and
Lewellin fora large amount, and upon inquiry of them they
concealed the fact that they were sureties, and falsely,
represented they were not sureties, whereby the plain-
tiff was induced to become partner with leaver, and lest
all the capital which he brought into the concern.
Then the plea is, that after the cause of action had ac-
crued, Crucknell and Feaver, the new partnership, had
become indebted to the defendants, and to Nash, and to
several other creditors ; and that a proposal had been
made by Thomas leaver to certain creditors at a meet •
ing that if the creditors of the plaintiff and Feaver would
take lls. 6d. in the pound on the amount of their respec-
tive debts, payable by four instalments, that Nash
would become security for the payment of the last of
such instalments. That proposal was made, and it was
the opinion of the several creditors that the proposal
should be accepted as soon as all the creditors of Cruck-
nell and leaver acceded to that proposal,, with a proviso
that there should be time for the creditors to express
their consent or not ; and also that in that agreement
should be contained a release to the plaintiff from the
claims of the said creditors of the said plaintiff and
leaver. Then it states that before all the creditors had
come intothis proposal—this is the part of it that is ma-
terial—that before they had all agreed, William Nash,
who was to be surety for the fourth instalment, objected,
refused, and declined to become surety for the said instal-
ment, unless the plaintiff would forbear to take and never
thereafter would take any proceedings whatever against
the defendants William Hitchcock, Christopher Truman,
and Richard Lewellin, or either of them for cr in respect
of any cause of action, or any right of prpceeding what-
ever; which he then had against them or any of them,
for, or in respect of any cause of action,' or any right of
proceeding whatever, against them or any or either
of them on any account whatever, and would abandon
all such cause of action. Then it alleges that the
plaintiff declared, represented, agrees, and promised to
and with Nash, that if Nash would become security for
the payment by Feaver of the last instalment to such of
the creditors of Crucknell and leaver as should be in-
duced to accept such composition of 11s. 6d. in the
pound in satisfaction of their respective debts, he (the
plaintiff) would forbear to take, and never would take,'
any proceedings whatever, or sue the said defendants
and the said Richard Lewellin, or either of them,
for, or in respect of, ;any cause of action,
or any, right of proceeding which he then.
had against' them the said defendants, and the said ,
Richard Lewellin, or either Qf them, on any account
whatever, and he declared that lit abandoned, acquitted,
and discharged, the defendants and Richard Lewellin
and each of them therefrom. Then the plea goes on,
whereof the defendants and Richard Lewellin, and Nash
and the other creditors, had notice, and thereupon be-
fore the expiration of the time allowed, all the creditors
of the plaintiff, and leaver, except one Thomas Light-
foot, consented to accept the proposal and offer, the de-
fendant and Richard Lewellin confiding in the re-
presentation and promise of the plaintiff, and being in-
duced so to do by reason thereof. Then it further
alleges that Lightfoot, one of such creditors, refused to
come in unless he could get security for the three first
instalments, and upon that, the defendant and Richard
Lewellin agreed to become security to Lightfoot for the
three first instalments, and it alleges that they did that
with the consent and approbation of the other creditors
of the plaintiff, and of the said Thomas leaver ; and it
alleges they did that confiding, in the representations of
the plaintiff, and being induced to do by reason thereof,
they did this voluntarily. It then alleges that Nash se-
cured the last instalment to such of the creditors to the said
plaintiff and Thomas leaver, as were induced to accept
such composition of 11s. 6d. in the pound in satisfaction of
their respective debts, being creditors, parties hereto of
• the third and fourth parts, to the indenture hereinafter
Mentioned. It then alleges that for that purpose Feaver
delivered the promissory notes, and that Nash indorsed
the promissory notes for the fourth instalment. It then
alleges that on the 14th of February, 1840, an indenture
was made between Thomas .Feaver of the first part, the
plaintiff of the second part, William Eyres the younger,
Samuel Eyres, and Joseph Eyres, of the third part,
and the several other persons whose names and seals
were thereunto subscribed and affixed, being the de-
' '-naants, and the said Richard Lewellin and divers cre-
" the plaintiff and leaver, of the fourth part,
a tors of ''somas leaver and the plaintiff of the
and the said
',reciting those matters, it contains
fifth part. Then, after - c Rle third and fourth parts,
a release by the creditors . ,Feaver
_ and Cruck-
those who should have executed ickz?..ell to them.nell, of the debts due from leaver and
The LORD CHIEF BARoN—The phantin
.not being
eiie of these:
Mr; Baron ALDERSON—reg. ►
The Leini CinEr BARON—The plaintiff was not one
of th o signing it,
Mr. MILE—He was party tel 110 deed as the late part-
ner of Fearer. Your Lordships 646 Crucknell had
been induced to become a partner of Thomas
Feat,,l, that was the cause of action, and, Ito we
allege, lost all his money, being induced to do se
by te representation of the defendant. Then, after
that j4artnetsfrip wits constituted, after Feaver and
Crucknelli the ilew partnership, had got iuto very
large debts, theft this iotqcsition arrangement was pro-
posed and come to on behalf Of Peaver and Cruckuell. '
You see that is the line of the cotnitotitien Crueknell
complains " I was induced to get into this Wog part
titfship, tinti I have lost all my money." Theft ttiel'e-
fendatit attyll--."After you and leaver had be-
come partners, and Atter you had become very
considerably indebted, a composition was proposed
wq be accepted by the creditors of this new firm of
trViekvrelA and Fearer ;" the composition was that
Crucknell 6'6444 go out, that leaver should take the
partnership asses itesk, that leaver should pay the part-
nership debts ; and the fiittnership debts, instead of
being paid in full, should be paid Its. 6d. ill the pound,
and that Nash should put his name to it piemissory note,
to secure the fourth instalment. That being the compo-
sition proposed, it alleges that, after that propoSsi was
made, Nash objected to be security for the fourth instal+
meat, unless Crucknell would agree not to sue Hitch-
cock, and Truman, and Lewellin, or either of them, in
ferret of any cause of action whatsoever that he might
have tg.lngt !them jointly, or any two of them separately,
or either of their individually, down to that period.
Then it alleges that Crucknell agreed, that if Nash
would give his indorsement to rack of the creditors—
what I want to draw your. Lordshipe attention to is,
that the arrangement proposed was the usual arrange-
ment, or a composition deed, before I go into the arglt-
went upon this;—that if all the creditors of the firm will
accept 11s. 6d. in the pound, we will agree to take the
l ls. 6d. in the pound, and Nash is to give a security.
This Nash objects to give that security, unless the plain-
tiff will agree not to sue any of the defendants, in re-
spect of any cause of action. Then it alleges this agree-
ment, that if Nash would give his security to such of
the creditors of the firm as should be pleased to accept
II s. 6d. in the pound, the plaintiff would agree never to
sue Truman, or Hitchcock, or Lewellin ; not that Nash
would give his security to all the creditors of the firm,
so that all the creditors should release, but the limited
agreement was, if Nash would agree to give his security
to such of the creditors of the firm as should come in.
He would not agree without that stipulation. Then it
alleges that Nash did give his security to such of the