Reference
X95/293a
Title
The Opinion of John Welch of Mason, Sturt & Mason of 7 Gresham Street, London to X95/293:
Date free text
20 Dec 1862
Production date
From: 1862 To: 1862
Scope and Content
The Opinion of John Welch of Mason, Sturt & Mason of 7 Gresham Street, London to X95/293: "There seems some doubt as to whether the loan of £5,000 was made by Mr.Henry Vyse or by Vyse & Sons - of which firm Mr.Henry Vyse was a member. The promissory note for £2,500 appears to have been made payable to Mr.Henry Vyse - but the deft's nephew accepted "Vyse & Sons" drafts for £5,000 (with something added probably for interest). Henry Vyse sued the Deft on the £2,500 note & I presume the bill for £2,117 is drawn by Hy Vyse payable to his order & has been indorsed to Vyse & Sons who are now suing upon it. It seems that the transaction was really with Vyse & Sons, their cheques having been given for the advance altho' for some reason that does not appear the securities were given by Henry Vyse. I think however that there is no defence on this ground as it does not appear that the Deft was at all concerned whether the advance was made by Henry Vyse or by Vyse & Sons. He appears to have left the negotiation of the loan to his nephew, being willing to guarantee the loan to the extent of £2,500 whether made by Hy Vyse or by Vyse & Sons.
2. The taking of the renewals without the consent of the Dft might have discharged the Deft as respects the note for £2,500 but the Deft having been sued on that note & having settled the action by (amongst other things) giving the bill for £2117 cannot set up the previous renewals as a defence to an action on this bill.
3. & 4. I think that the Deft is entitled to have credit for the dividend in respect of so much of the £2117 as is to be considered a part of the £2500 & interest secured by the promissory note, which appears to be the sum of £2037.10/- see Bardwell v.Lydall 7 Bing 489, Raikes v.Todd 8A&E 846 Paley v.Field 12 Vis 435.
If Vyse & Sons claim the composition upon the debt of Sworder Junr without giving credit for the £525 they claimed in respect of a larger debt than ever due to them & as respects £525 received the dividends which ought to have been paid to the Deft. As to the Deft's claim to have the benefit of the dividends in respect of the £2,500 & interest secured by the promy note in reduction of the amount recoverable from him is in this case an equitable claim and as the 2nd dividend of 2/6 had not been paid when this action was brought but will shortly become payable & be paid I think the Deft's proper course will be to proceed in equity (after paymt of the 2nd divd) to have the benefit of all the divds received by the plts in respect of so much of the debt as was secured by the Deft & has been paid or shall be paid by him. It will be advisable howr to consult some Gentn at the equity bar as to the deft's remedy in equity. As to the ale account I think that the Deft had no equity to have it credited specifically against the part of the debt secured by the Deft & that the plts were intitled to credit it generally against their entire debt"
Level of description
item