Page:Halsbury Laws of England v1 1907.pdf/863

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Part

Business of BxInking.

III.

641

Sect. 19. by the banker on the faith of it, e.g., bills accepted by him current at the time of notice of revocation (s) but without special words, Guarantees, where the guarantee is for a specified period, it would not cover obUgations undertaken, but not dischargeable, within that period (t). Whether a continuing guarantee is determined as to subsequent Death of advances by the mere fact of the death of the guarantor has never s^^^^^^ov. been finally decided (a). Probably it is not. Where there is no provision for giving notice of termination by representatives in the event of death, it may be taken that actual notice of the death given by a responsible person, such as an executor or administrator, terminates the guarantee so far as subsequent advances are concerned (h). Whether constructive notice of death is equivalent

to actual notice is doubtful

(c).

Where

there is specific provision for notice of revocation by the guarantor or his representatives, notice of his death by executors or administrators will not terminate the guarantee. The notice must be one of revocation (d). W^hether the death of one joint surety terminates the liability of But where the the other for subsequent advances is also doubtful (e) guarantee is joint and several, the death of one guarantor does not affect the liability of the survivor for subsequent advances (/). If a guarantee is joint only, judgment against one guarantor. even though unsatisfied (g), operates as a bar to any action against the other or others (/i), but not where the guarantee is several, or joint and several (^). .

v. Teed (1848), 7 Hare, 50, where a guarantee given to a bank and bills honoured, though terminated by the death of a partner in the bank, was held to apply to bills accepted by the bank, and current at his death. (s)

See Hollond

for advances

Hollond V. Teed^ supra, at p, 54. Bradbury v. Morgan (1862), 31 L. J. (ex.) 462, where the guarantee was held Harriss v. Fawcett (1873), 8 Ch. App. 860, per not determined by death Mellish, L.J., at p. 869 "As mere matter of law, ... I am of opinion that If one were to suppose a case, this guarantee was not determined by the death. which might very easily happen, where a bank holding such a guarantee was not aware of the death, I should think it very hard upon the bank that a guarantee worded like this was terminated by the death of the guarantor" Be Sherry, Compare (1884), 25 Ch. D. 692 (where the question was treated as undecided). Goulthart v. Glementson (1879), 5 Q. B. D. 42 Be Silvester, [1895] 1 Ch. 573 Be Grace, [1902] 1 Ch. 733 (all cases dealing with questions as to notice of death, but not decid.ing the effect of death by itself). (6) See Goulthart v. Glementson, supra; Be Silvester, supra j Be Grace, supra, discussing the effect of constructive notice, bu.t assuming that actual notice would It would be hard if death involved unlimited liability on the be sufficient. {t)

(a)











estate. (c) Goulthart v. Glementson, supra (Yes, per Bowen, J.) (No, per RoMER, J.) Be Grace, supra (No, per Joyce, J.).



Be

Silvester,

supra



(d) (e)

Be Silvester, supra. Be Sherry, supra, at pp. 703

— 705.

Addyman (1882), 9 Except under R. S. C, Ord. 14,

Q. B. D. 783. 5, or Ord. 13, r. 4, in default of appearance, or under Ord. 27, r. 3, in default of defence. (Ii) Kendall v. Hamilton (1879), 4 Apjj. McLeod v. Poioer, [1898J Cas. 504 2 Ch. 295. Blyth v. Fladgate, [1891] 1 Ch. 337. {i) King v. Uoare (1844), 13 M. & W. 494 Morel Brothers v. Earl of Westmorland, [1904] A. C. 11, is not an authority there the liability was alternative, and judgment against one against this operated as an election.

(/) Beckett Ig)

dc Co. v.

r.







H.L.

—

I.

T T

Joint g>iarantors.