Reference
X95/293
Title
Item previously listed as: Exchequer of Pleas: Sworder v. Vyse"
Date free text
1862
Production date
From: 1861 To: 1862
Scope and Content
Item previously listed as: Exchequer of Pleas: Sworder v. Vyse"
Exchequer of Pleas draft case to advise as to defence (Thomas Sworder) versus Henry Vyse, John Reynolds, Thomas Andrew Vyse the younger, Edmund Walter Vyse and George Pope Hackett (all straw hat makers trading as Vyse & Sons in Wood Street, Cheapside, London) asking counsel to advise on defence generally and specifically whether he must pay and whether to bring an action against Henry Vyse "you will not forget that it is possible though not probable that the firm of Vyse & Sons as now constituted may be different than Vyse & Sons as constituted at the date of the different transactions. This can only be got at by Bill in Chancery or by Interrogatories". The case is set out thus:
- on 2 Oct 1861 TS, signed a promissory note payable on 5 Apr 1862 to Henry Vyse for £2,500 as surety for Thomas Sworder of Luton, his nephew, who wished to borrow £5,000 fro Henry Vyse;
- Vyse & Sons lent Thomas Sworder of Luton £5,000 on 5 Oct 1861;
- Henry Vyse sued TS on 2 May 1862 under the Bills of Exchange Act to recover £2,500; he did not sue Thomas Sworder of Luton who was in financial difficulties;
- the action was settled on 21 May 1862 when TS paid £525 and agreed to pay a further £2,117/11/- within six months;
- on 1 Oct 1862 Thomas Sworder of Luton assigned all his estate and effects except the furniture in his office to William Anstee, Benjamin Bennett and John James Cook on condition that they would pay creditors 5/- in the pound by two instalments on that day and 4 Jan 1863, secured by promissory notes mentioning neither TS nor Thomas Sworder of Luton;
- it was not recorded whether Vyse & Sons gave credit for the £525 paid by TS;
- TS' original £2,500 promissory note had been given up to his attorney in May 1862;
- Vyse & Sons, as trustees, were now suing TS for £2,117/11/-;
- TS' defence was that: (i) "the draft became security for an advance to be made by Henry Vyse which it now appears was made by Vyse & Sons"; (ii) TS "is discharged by the renewals taken by Vyse & Sons without his consent"; (iii) TS "is entitled to have credit for the dividend of 2/6 in the £ received by Vyse & Sons out of the Debtor's estate and for the promissory note for the other 2/6 in the Pound"; (iv) "That he is entitled to credit for the same dividend on the £525 if Messrs Vyse & Sons did not give credit for that sum";
- "It will be important to consider what was the effect of the arrangement by which the joint note for £2,500 was substituted by Deft's payment of £525 & his giving his acceptance for £2,117.11.0 of Henry Vyse's draft in discharge for the note of £2,500. If the effect of that was to pay off the £2,500 and Interest the Deft became the Creditor in respect of it and is entitled to the dividends as such. If the effect was to renew a liability only he may still be entitled to have Credit for the dividends as surety"
Level of description
item