When Court will order rectification. and to deliver to the defendant a bill of exchange of that date for the sum of £500 drawn by the defendant. 2. The said representations were that the defendant had shipped twenty bales of silk in the s. s. Arethusa in the name of the plaintiff, which he had not done: The plaintiff claims: (1) That the bill of exchange may be delivered up and cancelled: (2) An injunction to restrain the defendant from negotiating the bill of exchange. Action to Rectify an improper Settlement executed in Ignorance of its Effect by adding a Power of Revocation. 1. In the year 1871 the plaintiff A. B. was seised in fee of the Langley Estate, in the county of Rutland, and then worth £100,000. 2. At the same time the plaintiff A. B. was seised for his lifetime, with remainder to the plaintiff B. B., in tail male of although the party plaintiff had participated therein, yet public policy would have been defeated by allowing the instrument to stand. Where there was some constructive fraud in both parties, but they were not both of them in pari delicto. The Court of Chancery would also order the rectification of any instrument which by fraud, or mistake, or accident did not truly express the meaning of the parties. But it is important to note that in the case of marriage settlements the mistake must be common to both husband and wife. Sells v. Sells, 1 Dr. and Sm. 45. But in a recent case in which the settlement was of the wife's property and was of such a nature as to impose upon the husband the duty of fully explaining its effect to the wife (who had no professional assistance) rectification of the settlement was decreed at the instance of the wife upon the death of the husband upon her uncorroborated parol testimony. Lovesey v. Smith, 15 Ch. Div. 655; and cf. Finch v. Finch, 23 Ch. Div. 267. In that case a father being seised in fee of a large estate, and having a small estate for life with remainder to his son in tail male, the father and his son executed a deed of conveyance to the father in fee of the small estate, and a deed of settlement of the large estate to the use of the father for life with remainder to the son for life with remainder to the eldest and other sons of the son successively in tail male. The deed contained no powers of jointuring widows or of raising portions for younger children. A joint power of revocation appeared in the draft as originally prepared by Counsel, but had been struck out. The father and son had each a wife and a large family, and each declared that hai he been aware of the effect of the deed he would not have executed it. It was held that under the circumstances the deed must be rectified by adding a power of revocation, and with the plaintiffs' consent it was directed that a new settlement with all proper powers should be made under the direction of the Court. the Wick Estate in the same county and then worth £8,000. 3. Thereupon the plaintiffs A. B. and B. B. executed an indenture dated the 1st of October, 1871, by which the Wick Estate was conveyed to the plaintiff A. B. in fee discharged of all estates in remainder, in tail or otherwise. The deed was duly enrolled. 4. On the same day the plaintiffs A. B. and B. B. executed an indenture of settlement whereby the Langley Estate was limited to the use of A. B. for life, with remainder to B. B. for life, with remainder to the eldest and other sons of B. B. in tail male. The said indenture contained no powers of jointuring widows or of raising portions for younger children. By mistake a power of revocation by the plaintiffs jointly which it was always intended to insert in the said indenture was struck out of the draft thereof and was omitted from the said indenture. 5. Neither of the plaintiffs was aware at the time of executing the said indenture of settlement of the effect thereof. 6. The defendants O. and P. are the trustees of the settlement. 7. The defendant R. is the eldest son of the plaintiff B. B. The defendants S. and T. are the only other sons of the plaintiff B. B. 8. The defendants U. and V. are the only sons of the plaintiff A. B. other than the plaintiff B. B. The plaintiffs claim rectification of the settlement. Action for the Rectification of a Settlement. 1. In 1865 a marriage was arranged between A. B. and the plaintiff. 2. By an agreement contained in two letters dated February 10th and 12th, 1865, it was agreed between C. B., the father of A. B., and D., the father of the plaintiff, that each should settle £10,000, on trust, for A. B. and the plaintiff successively for life, with remainder on the usual trusts for the children of the marriage. 3. By letter dated March 7th, 1865, from D. to Messrs. E. & Co., his solicitors, he instructed them to prepare a settlement. 4. A settlement dated April 25th, 1865, was executed upon the marriage of A. B. and the plaintiff, accidentally omitting to give a life interest to the plaintiff after the life interest of A. B. 5. On May 20th, 1882, A. B. died. 6. The defendants H. and K. are the present trustees of the settlement. 7. The defendants L. M. and N. are the only children of the marriage. The plaintiff claims rectification of the said settlement. A simple contract before breach released by parol. How re Release (a). Defence of Release. The cause of action herein was released by deed dated the [insert date of release here] and made between the plaintiff of the first part and the defendant of the second part. (a) A simple contract may before breach be discharged by parol, even semble where it is in writing, pursuant to the Statute of Frauds. But a contract in writing under the Statute of Frauds cannot be varied by parol. (Goman v. Salisbury, 1 Vern. 240; and see Goss v. Nugent, 5 B. & Ad. 65.) Nor can it be rescinded and another contract be substituted for it by parol. (Noble v. Ward, L. R. 1 Ex. 117: L. R. 2 Ex. 135. Ex. Ch. ; and see Hickman v. Haynes, 44 L. J. C. P. 358.) After breach the liability can only be discharged by a release under leased after seal or by accord and satisfaction (B. N. P. 152; Willoughby v. Backhouse, 2 B. & C. 824), or by proof of a valid agreement substituting a new cause of action. (Noble v. Ward, supra.) breach. How far one debtor may be released without his co-debtor. A cause of action accrued in respect of a tort can only be validly released by deed. A release of the whole of a debt given to one of two or more joint or joint and several debtors discharges all of them, but receiving a portion of a debt from one of them, and putting an end to an action against such one. does not discharge the other or others. (Watters v. Smith, 2 B. & Ad. 889.) Nor does a qualified release of one co-debtor, as where the right is reserved to make him a nominal defendant with the others, release the others. (Solly v. Forbes, 2 B & B. 38.) So where the remedy is reserved against the others. (Willis v. De Castro, 27 L. J. C. P. 243.) Or where on release of principal debtor the right against surety is reserved. (Green v. Wynn, L. R. 4 Ch. 204; Bateson v. Gosling, L. R. 7 C. P. 9.) In the last two cases the so-called release is not strictly such, but a covenant not to sue. (Ibid.) This covenant formerly supported a plea of release on the ground of avoiding circuity of action. (Ford v. Beech. 11 Q. B. 853.) Bankruptcy A discharge under the Bankruptcy Act, of one joint debtor or coproceedings contractor does not release the other. This provision extends to cases of composition (Megrath v. Gray, L. R. 9 C. P. 216; Dunn v. Wyman, 51 L. J. Ch. 623) and to liquidation by arrangement, (Ellis v. Wilmot, I. R. 10 Ex. 10.) It has been held that a resolution for composition duly do not release co debtors. Reply. The plaintiff says that he was induced to sign the said deed of release by the fraudulent representation of the defendant. Particulars of the said fraudulent representation:[Insert the effect of the alleged fraudulent representation]. Replevin (a). 1. Claim in an Action of Replevin. 1. On the 7th of August, 1880, the defendants unlawfully caused a distress to be levied on the plaintiff's goods in his registered, though binding on creditors as against the debtor, does not release his surety. (Ex parte Jacobs, L. R. 10 Ch. 211.) "The general words in a release are limited always to that thing or Limitation those things which were especially in the contemplation of the parties to the geneat the time when the release was given. But a dispute which had not rality of a emerged or a question which had not at all arisen, cannot be considered release. as bound and concluded by the anticipatory words of a general release.” (Per Lord Westbury, in London and South Western Railway Company v. Blackmore, L. R. 4 H. L. 610.) And, acting upon this principle, when in consideration of certain payments by an executrix, persons interested in the estate gave a release of all claims on the estate to the executrix, and it being afterwards discovered that property in which the testator was entitled to a share, had during his life been sold at an undervalue, the executrix instituted a suit to set the sale aside, and recovered therein a large sum of money as part of the testator's estate, it was held that the persons who gave the release were entitled to share in the money so recovered. (Hall v. Turner, 14 Ch. Div. 829. See also Lindo v. Lindo, 1 Beavan, 496, and Eyre v. Gladstone referred to in Hall v. Turner; Howkins v. Jackson, 1 Mac. & G., 372.) Where the releasee has obtained the discharge by fraud or under circumstances which render it void, such as drunkenness, &c., the plaintiff should in his reply set forth the facts, and should not rely merely on a denial of the release. Even before the recent alteration of the rules of pleading it was necessary to raise this answer by the replication. (Wild v. Williams, 6 M. & W. 490.) Fraud, &c., in the obtaining of the release to be specially replied. The right of replevy ing. (a) Where a person's goods have been taken under a distress, whether a distress for rent or damage feasant, he has a right to replevy his goods, that is to say he can get his goods back upon giving sureties and entering into a bond conditioned to prosecute a suit against the person who seized the goods, and also conditioned to return the goods if a return be awarded. By the 19 and 20 Vict. c. 108, s. 65, the action of replevin can be commenced in the Superior Court upon the replevisor (the person whose goods have been distrained) giving security for such an amount as (1) shall cover the alleged rent or damage for which the distress was made; (2) the probable costs of the action in the Superior Court; and in this case the replevisor must undertake to commence his action within a week and prosecute it without delay, and unless judgment is obtained Courts. by default to satisfy the Court (that is, the Superior Court, for it would be otherwise if the suit were in the County Court) that he had good ground for believing either that the title to some corporeal or incorporeal hereditament, or to some toll, market, fair, or franchise was in question, Nature of the replevin bond when action proceeds in Superior The pro cedure in replevin. premises, 10, Brook Street, Wigan, for the sum of £20, which they alleged was then due from the plaintiff to them for rent. 2. The plaintiff thereupon replevied the said goods, and gave the usual security to prosecute this action, and to return the said goods if a return thereof should be adjudged. The plaintiff claims £100 damages. 2. Claim against a Bondsman upon a Replerin Bond. 1. The defendant by his deed of the 1st of May, 1880, Lound himself to pay to the plaintiff the sum of £50 unless one A. B. should within one week therefrom commence an action of replevin against C. D. in the Queen's Bench Division of the High Court of Justice for taking and unjustly detaining certain goods and chattels of the said A. B. and prosecute such action with effect and without delay, and should also make return of the said goods and chattels if return thereof should be awarded. 2. A return of the said goods and chattels was awarded against the said A. B., but he has not made it. The plaintiff claims £50. or that such rent or damage exceeded £20, and to make return of the goods if a return thereof should be awarded. The procedure in a case which ultimately resolves itself into an action of replevin will be as follows:-A.'s goods or cattle are taken by distress. A. goes before the registrar of the County Court and enters into a replevin bond to prosecute an action against the distrainer either in the County Court or the Superior Court, and upon executing this bond and giving security, he gets his goods or cattle back. In the replevin action. the replevisor is the plaintiff, and the distrainor is the defendant, and after the issue of the writ or plaint, as the case may be, the action proceeds in the ordinary way, the onus at the trial resting on the plaintiff to show that the defendant acted wrongfully in distraining his goods. Parties who have signed the replevin bond are of course liable if there is any breach of its conditions. The plaintiff has the option of claiming either the specific amount of the bond or damages. If he does the former, and judgment goes by default, the judgment against the defendant is final, and no writ of enquiry need issue to assess the damages. But the defendant can come to the Court and apply for a stay of proceedings, and the Court will then refer it to the Master to ascertain defendant's what is actually due on the bond. On the other hand, when the plaintiff default in claims damages merely, and there is default on the defendant's part, the judgment is interlocutory and a writ of enquiry must issue. The practice in these respects has not been altered by the Judicature Acts. (Dix v. Groom, 49 L. J. Q. B. 430.) Effect of action on replevin bond. |