Squire v. Ford. one of the defendants who had not executed the deed of composi tion, but whose judgment had been registered subsequently to that of the plaintiff, and of the said defendant's claim in respect thereof, and in priority also of the several liens or charges mentioned in the pleadings claimed by several other defendants. It also prayed for a sale, account, and appointment of a receiver. In Trinity term, 1848, the plaintiff obtained judgment in an action against W. A. H. Arundell for the sum of 6051. 6s. 8d. debt and 91. 13s. 6d. damages and costs, and on the 17th of August, 1848, the judgment was duly entered up and registered. On the 1st of November, 1848, the defendant Ford also duly entered up and registered a judgment against W. A. H. Arundell for 3000l., but as a security only for 14957. 18s. 8d., and interest. By indenture of the 27th of December, 1848, made between W. A. H. Arundell of the first part, the defendants R. Arundell, W. H. Cotterill, and S. R. Pattison of the second part, and the several other persons mentioned in the fifth schedule thereto (creditors of W. A. H. Arundell) of the third part, certain real and personal property were respectively conveyed and assigned by W. A. H. Arundell to the parties thereto of the second part, (subject as to the real estates to certain mortgages and sums due for costs to the defendant Cotterill and Messrs. Hoggart & Co.,) upon trust to sell and dispose of the same, and out of the proceeds, in the first place, to pay the costs of the deed and the costs incurred in the execution of the trusts, and in the next place to pay and satisfy, ratably and proportionably and without any preference or priority, the several debts or sums mentioned in the fifth schedule thereto with interest, and to pay over the residue unto W. A. H. Arundell, his executors, administrators, and assigns. The creditors, parties thereto of the third part, severally covenanted by the same deed with W. A. H. Arundell as follows: "That immediately after this deed shall be discharged from the proviso herein contained for making void the same, this present covenant shall operate and enure, and may be pleaded in bar as a good and effectual release of and discharge of all and all manner of actions, suits, bills, bonds, writings, obligations debts, dues, duties, accounts, sum or sums of money, judgments, extents, executions, trespasses, trusts, claims, and demands, both at law and equity, or otherwise howsoever, which they or any of them, or their or any of their heirs, executors, or administrators, now have, or hath, or hereafter may have, claim, challenge, or demand against the said W. A. H. Arundell, his heirs, executors, or administrators, or his or their estate or effects, or any of them, or for, or by reason, or on account of all and every or any of the debts and engagements to them or any of them respectively, now due and owing from or by the said W. A. H. Arundell, or of interest, exchange, or commission, due or demandable for the same, or any other matter, course, or thing whatsoever, in respect of the same debts and engagements, but so nevertheless that the present covenant shall not operate upon or destroy any mortgage, pledge, lien, or any other specific security which any creditor now possesses in respect of his debt. And further, that 1 Sic. Squire v. Ford. if in the mean time, and before these presents shall be discharged from the said proviso, the said creditors or any of them, their or any of their respective partner or partners, shall commence or prosecute any action or actions, suit or suits, at law or in equity, or take any proceedings against the said W. A. H. Arundell, his heirs, executors, or administrators, (except for conformity, or for making any such mortgage, charge, lien, or specific security as aforesaid available,) for or on account of the whole or any part or parts of the debt or debts now due and owing by the said W. A. H. Arundell, to them or any of them; then and in every such case and immediately the debts or debt for or in respect of which such action or actions, suit or suits, or proceeding shall have been so commenced or prosecuted shall become absolutely forfeited, and this present covenant shall operate and enure, and may be pleaded in law as a good and effectual release and discharge of such debt or debts respectively. Provided always, and it is hereby agreed and declared between and by the parties to these presents, that nothing herein contained shall extend or be deemed to extend to prevent the said several creditors, parties hereto, or any of them, their, or any of their respective heirs, executors, administrators, or assigns, from enforcing or otherwise obtaining the full benefit of any charge or lien which they or any of them now have or hath upon any estate or effects whatsoever, or from suing or prosecuting any person or persons other than the said W. A. H. Arundell, his heirs, executors or administrators, who is or are, or shall or may be, liable or accountable for the payment or making good to any of the said creditors of all or any part of the said respective debts, either as drawers, indorsors, or acceptors of any bill or bills of exchange or promissory note or notes, or as being jointly and severally bound in any bond or bonds." By indenture of assignment of the 13th of January, 1849, between the plaintiff of the one part and R. Arundell, W. H. Cotterill, and S. R. Pattison of the other part, reciting the above-mentioned indenture, and that there was then payable thereunder a dividend of 4s. in the pound, and that the plaintiff had agreed to assign and transfer his judgment debt and costs unto R. Arundell, W. H. Cotterill, and S. R. Pattison, as such trustees for the creditors of W. A. H. Arundell, it was witnessed that the plaintiff thereby assigned the same to them as such trustees as aforesaid. The Solicitor General (Sir W. P. Wood) and Mr. Russell appeared for the plaintiff. Mr. Bethell, Mr. Bacon, Mr. Toller, Mr. Hare, Mr. Miller, and Mr. Batten, appeared for the several defendants. The principal points of argument are noticed in the judgment. The following authorities and cases were cited and referred to: 1 & 2 Vict. c. 110, s. 13.1 Lindo v. Lindo, 1 Beav. 496; s. c. 8 Law 1 This section is as follows: "That a judgment already entered up or to be hereafter entered up, against any person in any of her majesty's superior courts at Westminster shall operate as a charge upon all lands, tenements," &c., "of or to which Squire v. Ford. J. Rep. (N. s.) Chanc. 284. Payler v. Homersham, 4 M. & S. 423. Toulmin v. Steere, 3 Mer. 210. Parry v. Wright, 1 Sim. & S. 369; s. c. 5 Russ. 142; 6 Law J. Rep. Chanc. 174; and see Parry v. Parry and Parry v. Maddock, 1 Law J. Rep. Chanc. 161. Brown v. Stead, 5 Sim. 535; s. c. 2 Law J. Rep. (N. s.) Chanc. 45. May 1. TURNER, V. C., after stating the facts of the case to the effect above mentioned, said: Now, in this state of circumstances, the following questions, as I understand, have been raised on the part of the defendant Ford, on whose behalf the points in the case have been principally argued: First, it has been contended that the plaintiff's judgment was released by the deed of the 27th of December, 1848; secondly, that it was merged by the deed of the 13th of January, 1849; and, thirdly, that the suit cannot be maintained by the plaintiff for and on behalf of the plaintiff and the creditors under the deed of the 27th of December, 1848. The first point appears to me to depend wholly upon what were the rights of the plaintiff Squire at the time of the execution of the deed of the 27th of December, 1848, and upon the construction of that deed. There cannot be, I think, any doubt that at the time of the execution of the deed in question, Squire had a valid charge upon the estate, under the stat. 1 & 2 Vict. c. 110. The 13th section provides, &c. [His honor read the section.] Now, that being so, there was, at the date of the deed of the 27th of December, 1848, an existing charge upon the estate in favor of Mr. Squire, but it could not be enforced in equity at the time, a year not having elapsed. The point, therefore, to be considered is, whether the charge was released by the deed. In determining this question, it is first to be considered, What was the intention of the parties to the deed? For the courts, I think, are bound in determining questions of this nature to pay very great regard to the intention of parties. That doctrine was clearly laid down in the case of Solly v. Forbes, 2 Brod. & B. 338, and that case such person shall at the time of entering up such judgment, or at any time afterwards, be seized, possessed, or entitled for any estate or interest whatever, at law or in equity, whether in possession, reversion, remainder, or expectancy, or over which such person shall at the time of entering up such judgment, or at any time afterwards, have any disposing power which he might without the assent of any other person exercise for his own benefit, and shall be binding as against the person against whom judgment shall be so entered up, and against all persons claiming under him after such judgment, and shall also be binding as against the issue of his body and all other persons whom he might without the assent of any other person cut off and debar from any remainder, reversion, or other interest in or out of the said lands, tenements," &c.; "and that every judgment creditor shall have such and the same remedies in a court of equity against the hereditaments so charged by virtue of this act, or any part thereof, as he would be entitled to in case the person against whom such judgment shall have been so entered up had power to charge the same hereditaments, and had by writing under his hand agreed to charge the same with the amount of such judgment debt and interest thereon: Provided, that no judginent creditor shall be entitled to proceed in equity to obtain the benefit of such charge until after the expiration of one year from the time of entering up such judgment, or in cases of judgments already entered up, or to be entered up before the time appointed for the commencement of the act, until after the expiration of one year from the time appointed for the commencement of the act." Squire v. Ford. appears to me to have so important a bearing upon the present question, and so strongly confirms the view which I entertain upon it, that I shall read some parts of the judgment in that case. Now, Solly v. Forbes was this, and the marginal note explains sufficiently the facts of the case: "A release was given by plaintiffs to A., one of two partners, with a provision that it should not prejudice any claims which plaintiffs might have against B., the other partner; and that in order to enforce the claims against B. it should be lawful for plaintiffs to sue A., either jointly with B. or separately. In an action by plaintiffs against A. and B., this release having been pleaded by A., and set out on oyer in the replication with an averment that the action was prosecuted against A., jointly with B., the purpose of enabling plaintiffs to recover payment of moneys due from B. and A. to plaintiffs, either out of the joint estate of B. and A., or from B. or his separate estate, the replication was demurred to, and the demurrer overruled." for Chief Justice Dallas, in giving judgment in that case, went very fully into the effect which is to be given to a general release with reference to restrictive clauses which are put upon the release; he says, "The circumstances under which this case comes before the court will appear by referring to the pleadings at large. The general question which arises is, whether the release, as set forth, constituted a bar to the action. Of the intention of the parties no doubt can be entertained. It was meant to release Ellerman as to person and effects, but not Forbes; and therefore to retain against Ellerman every right and remedy necessary to enforce payment from Forbes. But so to construe the release as to make it a release of both, which it would be if no action could be brought against Forbes because Ellerman could not be joined, would make it operate, not to effectuate, but to defeat the intent of the parties. As little doubt can exist upon the words made use of to effectuate the intent, as upon the intent itself. It is not an absolute and unqualified release, but in terms conditional and provisional, being made subject to an exception; such exception forming part of the same sentence with the words of release, and immediately connecting with and attaching upon them, and introductory to, and followed up by a proviso by which it is expressly declared, that nothing contained in the deed of release shall be taken to release, or in any way prejudice or effect any demands of the plaintiffs, either against the said John Murray Forbes separately, or as a partner with Ellerman. Now, it would be to release and in every way to affect the demand against Forbes as partner with Ellerman, to give such operation to the release as in effect to make it a release to both, by making it a bar to an action, in which, for the recovery of a joint debt, both must be jointly sued. Nor does this even rest on negative though necessary construction; for, in a subsequent part of the deed it is expressly provided and declared to be the true intent and meaning of the release, that it shall be lawful for the plaintiffs to commence and prosecute any action against the said Abraham Frederick Daniel Ellerman jointly with the said John Murray Forbes for the recovery of the joint debt due. Squire v. Ford. from them; and this is a joint action for the recovery of such debt, being therefore an action expressly and in direct terms authorized by the deed of release itself. But against this objections of a technical and artificial nature have been raised, and we have been referred to many cases in which it has been held, that a saving or condition repugnant to the nature of the grant is void, and that the grant remains absolute and unqualified, the condition no way operating in restraint of the grant. It is not necessary to pursue these cases into their detail; they are all cases of notoriety, the law of which is not to be disputed, and the only question is upon their application. But with respect to them all, I would observe that in one of the cases cited at the bar it was correctly stated, that the rule of construction in modern times has been more equitable than formerly, courts looking rather to the intention of the parties than to the strict letter, not sufferring the latter to defeat the former, but in certain cases of exception to which it is not now necessary to refer. Taking these cases, however, such as they are, the application sought to be established is altogether fallacious. It is assumed that whenever the word 'release' is made use of, it must operate absolutely and unconditionally, though immediately and in the same sentence followed by words which show it to be partial and particular only; and the general words being in no respect repugnant to the special words, but the latter a qualification merely of the former, leaving the release to operate to every purpose except to the exclusion of the particular purpose which the parties have declared it to be their intention it shall not exclude. This being apparent both in terms and meaning, what are the rules of law which apply, narrowing them to the particular point? I pass over the general and leading principle, that the intent of the parties shall prevail as far as by law it may; and further, that courts will be anxious so to construe the law as to give effect to that intent, provided it do not contravene any fundamental rule of the policy of the law. If a deed can, therefore, operate two ways, one consistent with the intent and the other repugnant to it, courts will be ever astute so to construe it as to give effect to the intent; and the construction, I need not add, must be made on the entire deed. The passage cited at the bar is, to this effect, material. I exceedingly commend the judges (said Lord Hobart) that are curious and almost subtil to invent reasons and means to make acts according to the just intent of the parties, and to avoid wrong and injury which, by rigid rules, might be wrought out of the act, Hob. 277; Earl of Clanrickard's case; and it has been correctly added that in the case of Crossing v. Scudamore, 1 Ventr. 141, Lord Hale cites and approves of the passage in Hobart, which is again referred to by Willes, C. J., in the case in 2 Wilson, Doe d. Wilkinson v. Tranmer, 2 Wils. 75, and is cited to be approved of, and to be governed by, in many other cases. Not to go through all the authorities which are to be found, it will be sufficient to select one or two only, and these will refer to the rest. In Morris v. Wilford, 2 Show. 47, it was expressly decided that a release shall be construed according to the particular purpose for which it was made. Jones, Wyld, and Twisden, justices, were of |