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accommodation bills; and provided also, that in case any thing whatever should prevent the Defendant from receiving and retaining the proceeds of the execution he had levied on the property of the said W. Rogers, junior, then the guaranty should be void.

The Defendant pleaded, fourthly, that the Plaintiff did not avail himself to the utmost of every actual and bona fide security, lien, or deposit he then held of William Rogers the younger; and, fifthly, that the Defendant was prevented from receiving and retaining the proceeds of the execution he had levied on the property of William Rogers the younger.

It appeared at the trial that, in August 1835, William Rogers the younger was indebted to the Plaintiff upwards of 600l., and that the Defendant, Rogers's father, who was also a creditor, had issued an execution against his son, and levied 1818. The Plaintiff thereupon apprized the Defendant that his son had committed an act of bankruptcy before the execution, and that he, the Plaintiff, was in a condition to set the execution aside, but would abstain from doing so if the Defendant would give the guaranty above set forth; which the Defendant consented to, and gave the guaranty accordingly.

It turned out afterwards, that out of the 18187. levied by the Defendant under the execution, 1187. were the proceeds of certain sheep which belonged to one Blake, and had been improperly taken under the execution against the Defendant's son. Blake sued the Defendant, and recovered for his sheep and costs 2717.

Then, the Plaintiff had in his hands, at the time o the guaranty, a bill of exchange for 30l. drawn by William Rogers the younger on, and accepted by one Crichter, payable on the 16th of October 1835. But Crichter having gone to prison insolvent before the bill became due, and remaining in prison at the commencement of this action, the Plaintiff had never put the bill in suit.

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1839.

MUSKET

V.

ROGERS.

1839.

MUSKET

V.

ROGERS.

A verdict having been found for the Plaintiff for 600%, with leave for the Defendant to move to enter a nonsuit instead, or to reduce the damages,

Thesiger obtained a rule nisi accordingly to enter a nonsuit, or to reduce the damages by the two sums of 2717. and 30%., on the ground that, within the proviso of the guaranty, the Defendant had, in consequence of Blake's action, been prevented from receiving the full proceeds of his execution, and the Plaintiff, in omitting to sue Crichter, had not availed himself to the utmost of the securities he held in his hands.

Platt and Channell, who shewed cause, contended that the improper seizure of Blake's sheep could not be considered any part of the execution against William Rogers the younger, which therefore remained unaffected, notwithstanding the result of Blake's action: the proceeds of William Rogers's goods were still in the hands of the Defendant; and the omission to put in suit the acceptance of an insolvent still in prison, was no failure on the part of the Plaintiff to make the most he could of all the available securities of William Rogers. It was manifest that, by such a suit, he could have gained nothing.

Peacock, in support of the rule. The language of the guaranty is express, that it should be void, if anything whatever should prevent the Defendant from receiving and retaining the proceeds of the execution he had levied. The intention, therefore, was to guard him against any unforeseen event which should deprive him of any part of the 18187. he had then levied; the unforeseen action and recovery of Blake must be esteemed such an event: and the Plaintiff could not be be said to have availed himself to the utmost of the securities in his hands unless he put in suit Crichter's

bill. Had a detainer been lodged against Crichter, his friends might have been induced to come forward and pay the bill.

TINDAL C. J. I think that the rule which has been obtained, either for a nonsuit or a reduction of damages, ought to be discharged.

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Looking at the situation of the parties at the time of the guaranty, their intentions are sufficiently clear. The Defendant had levied execution against his son to the extent of 18187.; and the Plaintiff was also a creditor to a considerable amount, and held securities for his debt. It appears that the Plaintiff alleged that the Defendant's son had committed an act of bankruptcy, and it was therefore at least probable a commission would be sued out against him. It was a matter of anxiety, therefore, with the Defendant, lest the bankruptcy should override his execution; and, on the other hand, the Plaintiff who held securities would not permit the Defendant to sweep away the whole of the property. Then comes the guaranty by which the Defendant guaranteed the payment of all such sums of money as then were due from W. Rogers junior to the Plaintiff, not exceeding 6007., provided that, before the Plaintiff should call on the Defendant in pursuance of that guaranty, the Plaintiff should avail himself to the utmost of any actual and bona fide security, lien, or deposit by him held of W. Rogers junior, not including accommodation bills; and provided also, that in case any thing whatever should prevent the Defendant from receiving and retaining the proceeds of the execution he had levied on the property of the said W. Rogers junior, then the guaranty should be void.

One point made is that the Plaintiff has not availed himself to the utmost of Crichter's acceptance. That was a question for the jury on which they have found

1839.

MUSKET

V.

ROGERS.

1839.

MUSKET

ย.

ROGERS.

against the Defendant; but I am far from saying that, under a stipulation that he should exert himself to the utmost, he was bound to commence a suit to no purpose.

The other point is, that the Defendant has been prevented from retaining the proceeds of the execution he had levied ; but the expression in the guaranty is "the proceeds of the execution levied on the property of William Rogers ;”—and that must mean all that could justly be taken as the son's property; not the property of another taken under an execution against the son.

BOSANQUET J. The first question is, whether the Plaintiff has availed himself to the utmost of all the securities he held in his hands; the jury find he has done so, notwithstanding he forbore to put in suit Crichter's bill, and we see no reason to find fault with that verdict. It is then contended that the guaranty is void, or void pro tanto, because some of the property taken in execution did not belong to William Rogers. But I agree in the construction which has been put on the guaranty, which was to be void only if the Defendant was prevented from retaining the proceeds of the execution on the property of William Rogers; and he has retained all that was the property of Rogers; for the sheep in question were the property of Blake.

COLTMAN J. As to the bill of exchange, when the acceptor had been lying in prison so long, it could not be necessary to put it in suit; and with respect to the execution the meaning of the parties is plain; the Defendant was afraid of the execution being upset altogether, not merely partially defeated; and we may look at the situation of the parties when the instrument was made, in confirmation of the intention expressed upon the face of it.

ERSKINE J. I am of the same opinion upon both points; it was never meant the Plaintiff should undertake that all the property seized should be the property of the son, but merely that the Defendant should not be liable if he lost the benefit of his execution against the property of the son.

Rule discharged.

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GLADWELL v. STEGGALL.

June 19.

then claimed
damages for a
misfeasance:
Plea, that

Plaintiff did
not employ
Defendant:
Held, that it

THE Plaintiff, an infant of ten years old, by her A declaration in case stated prochein ami, sued the Defendant in case; and the that Plaintiff, declaration stated, that whereas, before the committing an infant, had of the grievances, the Plaintiff, at the special instance employed Deand request of the Defendant, had employed the De- fendant, a surgeon, to fendant to bestow the care, diligence, and attendance of cure her, and him, the Defendant, in the profession and business of a surgeon and apothecary, in and about the endeavouring to cure her, the said Plaintiff, of a certain complaint and disorder under which she then laboured, and the Defendant then accepted and entered upon such employment as such surgeon, it then became and was the duty of the Defendant as such surgeon, to use due and proper care and diligence in and about the endeavouring to cure the Plaintiff of the said complaint and disorder under which the Plaintiff then laboured as aforesaid. Breach, that the Defendant conducted himself so unskilfully, that the Plaintiff was greatly injured in health and constitution, and underwent great suffering, &c. Pleas, first, not guilty: second, that the Plaintiff did not employ the Defendant, nor did the Defendant accept of or enter upon such employment in manner and form, &c.; upon both which pleas issue was joined.

6. Exch 764

4 CP.S. 325

3 B 3

was imma

terial by
whom De-

fendant was
employed;
or that, if ma-
terial, Plain-
tiff's sub-

mitting to

Defendant's treatment was sufficient

proof of the allegation of employment by her.

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