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Sect. 7.-Indemnities of Surety.

CH.XVII. s. 7.

Indemnities Let us now see very briefly how the surety is to be indemnified. of Surety.

And first, he may recover against the principal all he has paid How the upon, or any damages he has incurred under, his guarantee, as surety is to be often as he pays such moneys or incurs such damages (z). More- against the over, as soon as the obligation of the surety to pay has become principal ; absolute, he has a right to be exonerated by his principal : and, therefore, if the creditor sues the surety, the latter may defend himself in that action, by showing that the principal is entitled, as against the creditor, to a set-off arising out of the same transaction as that from which the liability of the surety arose (a). And the surety has a right to take proceedings for the purpose of being indemnified against the debt, before he has himself paid anything (6).

So, if there be several sureties, and one of them pays more than against a cohis proportion of the demand, he is entitled to contribution against tribution. his co-surety or co-sureties for the excess (c). Even when they have paid equally, but one of them has taken securities from the principal debtor, the other sureties can call upon the securityholding surety to bring back sureties into hotch-pot (d); but when by means of the counter-security the surety has been repaid what he has paid on account of the principal debt, and has shared the amount thus received by him with his co-sureties, he will be again entitled to recover out of the counter-security the amount so handed over by him to them, whereupon their right to participate will again arise, and so on until the whole of the payments of the co-sureties have been refunded, or the value of the countersecurities has been exhausted (e). A surety against whom judgment for the full amount has been contribution

before pay. obtained but who has paid nothing on the judgment, may obtain ment in full. a prospective order directing a co-surety, on payment by the surety of his own share to imdemnify him against further liability, or in an action to which the principal creditor is party, an order upon the co-surety to pay his proportion to the principal creditor (f). At law, the amount of contribution to which the co-surety was Amount to be

contributed. entitled, depended on the number of sureties originally liable. So

Peter v. Rich. that, if there were three sureties for a certain sum, and one of

(2) Davies v. Humphreys (1810), 6 M. & W. 153, followed in Ex parte Snow M. & W. 153, 167.

don (1881), 17 Ch. D. 44, C. A. (a) Bechercaise v. Lewis (1872), L. R., (@) Steel v. Dixon (1881), 17 Ch. D. 7 C. P. 372.

825. (0) Nisbet v. Smith (1789), 2 Bro. C. C. (e) Berridge v. Berridge (1890), 44 578 ; per Wickens, V.-C., Ferguson v. Cl. D. 168. Gibson (1872), L. R., 14 Eq. 379.

(1) Wolmershausen v. Gullick, [1893] (c) Davies v. Humphreys (1840), 6 2 Ch. 514, per Wright, J.

-cont.

curities held

Bill of

CH. XVII. s.7. them paid the whole, he could not, at law, recover from either of Indemnities the others more than a third of the sum paid, although, at the of Surety.

time he paid it, one of his co-sureties was dead or insolvent (g). Contribution

But, in equity, the surety in the above case would be entitled Peter v. Rich, to recover one-half of the entire sum paid by him, from the sur

viving or solvent co-surety (h); and the effect of the Judicature Acts is that the rules of equity prevail in all branches of the High

Court. Right of The surety is entitled, in equity, to require the creditor to surety to sc.

whom he makes the payment, to give him the benefit of any by creditor.

security of which he, the creditor, might have availed himself as against the principal debtor (i); and, if the creditor bold collateral securities or funds, applicable to the debt of the principal, the negligent loss of or injury to such securities or funds, to the prejudice of the surety, will afford ground to the latter for relief in equity, to the extent of such securities or funds ().

And so in the case of bills of exchange, the House of Lords Exchange.

decided that when the holder is also in possession of securities of the acceptor, although during the currency of the bill the indorsee holder may deal as he pleases with such securities, yet on the bill becoming dishonoured and notice given to indorsers, an indorser, though not exactly a surety for the acceptor, or a co-surety with those who are sureties for the acceptor, yet stands in a position sufficiently analogous to that of a surety to bring him within the principle of Deering v. Winchelsea (1), and is entitled to the benefit of all payments made by the acceptor, and on paying the holder to be put in a situation to sue the acceptor; and in this case affirmed the judgment and restored the order of the Vice-Chancellor of the County Palatine of Lancaster, that the indorsers paying should have the benefit of the securities so deposited (m).

But where a guarantee contained a proviso that, before the defendant was called upon, the plaintiff should avail himself to the uttermost of any bona fide securities he held of the principal, and the plaintiff had neglected to adopt means to enforce payment of a bill by a party who was shown to be totally insolvent, this

(g) Broun v. Lee (1827), 6 B. & C. 689.

(h) Peter v. Rich (1830), 1 Ch. Rep. 19, 34.

(i) Per Kindersley, V.-C., Brandon v. Brandon (1859), 28 L. J., Ch. 147; and see Pearl v. Deacon (1857), 26 L. J., Ch. 761 ; Imperial Bank v. London, dic., Docks Company (1877), 5 Ch. D. 195.

(k) See Law v. East India Company (1799), 4 Ves. jun. 824 ; Capel v. Butler

(1825), 2 S. & S. 457 ; Watts v. Shuttle-
worth (1861), 7 H. & N. 353, Ex. Ch. ;
Wulff v. Jay (1872), L. R., 7 Q. B.
756 ; and see Ex parte Jacobs (1875),
L. R., 10 Ch. 211; and Ellis v. Iilmol.
(1874), L. R., 10 Es. 10.

(2) Deering v. Winchelsen (1787), 2 B. & P. 270 ; 1 Wh. & T. ; 1 R. R. 41.

(mn) Duncan, Fox & Co. v. North and South Wales Bank (1880), 6 Apr. Cas. 1.

was held not to discharge the surety (n). Nor will the surety be CH. XVII.s. 7. discharged where the debtor becomes bankrupt, and the creditor,

Indemnities

of Surety. on proving his debt upon the debtor's estate, surrenders his collateral security to the trustee under the bankruptcy (o), and so in bankruptcy or winding-up of the principal debtor where the creditor has proved for the whole of a debt exceeding that limit, a surety with a limit in the amount of his liability, is entitled to the benefit of a rateable proportion of the dividends payable on the whole debt (p). By the Mercantile Law Amendment Act, 1856, 19 & 20 Vict. Mercantile

Law Amend. c. 97, s. 54

ment Act. “Every person who, being surety for the debt or duty of another, or being Assignment liable with another for any debt or duty, shall pay such debt or perform such of securities duty, shall be entitled to have assigned to him, or to a trustee for him, every

to surety. judgment, specialty or other security which shall be held by the creditor in respect of such debt or duty, whether such judgment, specialty, or other security, shall or shall not be deemed, at law, to have been satisfied by the payment of the debt or performance of the duty; and such person shall be entitled to stand in the place of the creditor, and to use all the remedies, and, if need be, and upon a proper indemnity, to use the name of the creditor, in any action or other proceeding at law or in equity, in order to obtain from the principal debtor, or any co-surety, co-contractor, or co-debtor as the case may be, indemnification for the advances made and loss sustained, by the person who shall have so paid such debt or performed such duty; and such payment or performance so made by such surety, shall not be pleadable in bar of any such action or other proceeding by him: provided always, that no co-surety, co-contractor, or co-debtor shall be entitled to recover from any other co-surety, co-contractor, or co-debtor, by the means aforesaid, more than the just proportion to which, as between those parties themselves, such last-mentioned persons shall be justly liable.”

Under this Act it is immaterial whether the surety has obtained an actual assignment of the judgment (9).

And so a surety who has paid a Crown debt due from his Crown debt. principal is entitled to the Crown rights of priority over the other creditors of the principal (»). Where one of several co-sureties has paid off the debt, he is Proof against

co-sureties. entitled, notwithstanding the above section, to the benefit of a proof by the creditor against one of the co-sureties for the full amount of the debt, and his right of proof is not (though his right of dividend is) limited to the sum which as between him and his co-surety such co-surety is liable to pay (8).

(n) Muskett v. Rogers (1839), 8 Scott, 51; but see London Guarantee Co. v. Fearnley (1880), 5 App. Cas. 911.

(0) Rainbow v. Juggins (1880), 5 Q. B. D. 422, C. A.

(P) See as to bankruptcy, Hobson v. Bass (1871), L. R., 6 Ch. 792 ; winding up, Gray v. Seckham (1872), L. R., 7 Ch. 680; and, generally, Ellis v. Emmanuel

(1876), 1 Ex. D. 157, C. A.

(9) In re VicMyn (1886), 33 Ch. D. 575; and see Batchelor v. Lawrence (1861), 9 C. B., N. S. 543.

(v) In re Lord Churchill (1888), 39 Ch. D. 174 ; and see R. v. Fay (1878), 4 Ir. L. R. 606, App.

(s) Parher, In re, Morgan v. Hill, [1894] 3 Ch. 400.

CHAPTER XVIII.

THE CONTRACT TO MARRY, AND THE CONTRACT OF MARRIAGE.

[See Geary on the Laws of Marriage, A.D. 1892. ]

PAGE 1. The Contract to Marry........ 472 2. The Contract in Consideration of Marriage

478

PAGE 3. The Contract of Marriage 478 4. The Contract for bringing up the

Children in a Religion other
than that of the Father ... 480

Sect. 1.—The Contract to Marry. The action for breach of promise to marry is of comparatively recent date (a), it not being till the middle of the seventeenth century that marriage was recognised by our law as a temporal benefit, marriage being a matter of spiritual jurisdiction, and the spiritual Courts exercising a jurisdiction to enforce specific performance of contracts to marry, which was not formerly abolished until the reign of George the Second by Lord Hardwicke's Act, 26 Geo. 2, c. 33; repealed by 4 Geo. 4, c. 76, which by sect. 27 repeats the abolition (6).

A promise by A. to marry B. is a good consideration for B.'s promise to marry A. (c); and, as a general rule, such promises are reciprocal and obligatory on both parties ; so that if the promise of one of them be void, so will that of the other (d). But where the contract declared on was, that in consideration that the plaintiff, at the request of the defendant, would go to L. for the purpose of marrying the defendant, the defendant promised to marry the plaintiff in a reasonable time after her arrival at L.;

It must be reciprocal.

(a) See per Bowen, L.J., in Finlay v. promise, the damages being limited to Chirney (1888), 20 Q. B. D., C. A. at such pecuniary loss,” introduced by the

Jate Lord Herschell when Mr. Herschell, (6) For instance of specific performance Q.C., was carried in the House of Com. decreed, see Baxter v. Buckley (1752), 1 mous by 106 votes to 65, May 6, 1879; Lee, 42. For Chancery order to marry see Hansard, Vol. 245, pp. 1867—1887. an infant ward of Court, see Re Maria Generally, throughout Europe, the lair Stewart (1828), Irish Law Recorder, is substantially what Lord Herschell's Vol. II., p. 112.

resolution would have made it here, but A resolution in favour of abolishing the American law is the same as our own. the action for breach of promise to marry, (c) See 1 Roll. Abr. 22, 1. 20.

except in cases where actual pecuniary (d) See per Holt, C.J., Harrison v. loss has been incurred by reason of the Cage (1698), 1 Ld. Raym. 386, 387.

P. 505.

s. 1.

not be sued

this was held to be a sufficient consideration to support his

CH. XVIII. promise (e).

The Contract In the case of an infant, however, whose promise is voidable, to Marry. there is an exception to this rule : for an infant may sue though Infant may he may not be sued, for the breach of a promise to marry (f).

sue, but may The Infants' Relief Act, 1874 (p. 144, ante), whereby an for breach. infant's contract cannot be made good by ratification after his Coxhead v.

Mullis. majority, applies to contracts to marry (g), but the difficult question whether there is a ratification of the old promise or the making of a new one is a question for the jury, if there is evidence on which a jury might reasonably find that a new promise was made and accepted (1). Therefore, where the defendant during his infancy offered marriage to plaintiff, who accepted him subject to the approval of her parents, and on the day after he came of age he told the plaintiff that he had just obtained his father's approval and added, "Now I may and will marry you as soon as I can,' it was held that it was properly left to the jury to say whether there was a fresh promise after majority (i).

It is not, in any case, necessary to prove an express promise to Promise need marry, in totidem rerbis ; but the contract may be evidenced by the not be in ex:

press words ; unequivocal conduct of the parties, and by a definite understanding between them, their friends, and relations, that a marriage is to take place. And where the promise of the man was proved in an action against him, it was held, that evidence of the woman having demeaned herself as if she concurred in and approved of his promise, sufficiently established her promise to marry him (1:). Not long after the passing of the Statute of Frauds (ante, p. 76), nor in

writing; which requires writing for promises “in consideration of marriage,' it was held that the 4th section of that Act applies to promises to marry (1), but the contrary was held and ruled in early times afterwards (m), and has been assumed to be settled law for nearly 200 years. The correctness of the received construction of the statute may well be questioned; but it is conceived that even the House of Lords would decline to upset a view so long accepted, however incorrect.

So the engagement is binding, although the precise time for nor to marry completing it be not agreed upon; for, in such a case, the law definite time.

(e) Harrey v. Johnston (1848), 6 C. B. (i) Northcote v. Doughty, supra ; and 295.

see Holmes v. Brierley, ubi sup. (V) Holt v. Ward (1732), 2 Str. 937 ; (k) Per Holt, C.J., Hutton v. Mansell S. C., Fitz. 175; and sec ante, Ch. VII. (1705), 3 Salk. 16, 61.

(9) Coxhead v. Mullis (1878), 3 C. P. D. (1) Phillpott v. Wallett (1682), 3 Lev.

(1) Northcote v. Doughty (1879), 4 (m) Harrison v. Cage (1669), 1 Ld C. P. D. 385 ; Holmes v. Brierley (1888), Raym. 386 ; Cork v. Baker (1717), 1 36 W. R. 795, C. A. ; and see ante, Str. 34.

439.

65.

p. 144.

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