CASES ARGUED AND DETERMINED IN THE Courts of Chancery. MICHAELMAS TERM, 9 VICTORIÆ. at 31.10s. per cent. per annum, 21st January 1826, for A. & Co. (signed) B." In March 1837 A. died, having appointed B. and another his executors, and B. & C. continued the business till 1842. Interest was yearly paid on the notes by A, B, & C, and by B. & C. after A's death, up to December 1842; and on each such payment an indorsement was made on the notes in this form :"Paid one year's interest, due March 1836, £, for A. & Co.," and was signed by the clerk of the bank. In 1843 B. & C. became insolvent; and in the month of December, in the same year, the executors of D. W. filed their bill on behalf of themselves and all other the creditors of A, against the executors of A. and the devisees and legatees under his will, praying an account of the NEW SERIES, XV.-CHANC. personal estate of A, and of the rents and profits of his real estate, and that the legacies might be refunded, and the real estates sold, and that the same might be applied in satisfaction of A.'s debts. The defendants, by their answer, pleaded the Statute of Limitations:-Held, first, that the payments of interest by B. were not to be taken as made by him in his character of executor of A. Secondly, that the acts of the surviving partners of A. had not the effect of keeping the plaintiffs' debt alive as against the real or personal estate of the deceased partner. Thirdly, that the form of the pleadings prevented the plaintiffs working out payment of their debt through the equities of the partFourthly, that the presentment of the notes for payment of the interest was a sight," and that the statute began to run from such presentment. ners. 66 Up to the month of August 1825, Sir R. Bassett carried on the business of a banker at Newport, in the Isle of Wight, in partnership with Robert Clarke and Charles Bassett Roe. In August 1825 Clarke died, and thereupon Thomas John Blachford became a partner in his place, and the business was then carried on under the style or firm of Sir R. Bassett, Roe & Blachford. In March 1837 Sir R. Bassett died, and by his will devised and bequeathed all his real and personal estate to or in favour of the defendants to the present suit, and ap B pointed J. W. Bassett and C. B. Roe executors of his will. After his decease the business was carried on by the surviving partners, Roe and Blachford, the name of the firm of Sir R. Bassett, Roe & Blachford being still retained on the door of the place of business, and in the books and other documents of the concern. The surviving partners continued to carry on the business up to May 1842, when it was discontinued in favour of the Isle of Wight Joint Stock Bank, and in December 1843 C. B. Roe and Blachford became bankrupt. On the 7th of May 1825, David Way, deceased (the plaintiffs' testator), deposited with the firm of Sir R. Bassett, Clarke & Roe the sum of 400l., at interest at 31. per cent. per annum, and thereupon received a receipt for the same, as follows:-" No. 295, Bank, Newport, Isle of Wight, 7th May 1825. Received of Mr. D. Way 400l. on account, for Sir R. Bassett, Clarke & Roe; (signed) C. B. Roe. 400l. at 31. per cent. per annum.' On the 21st of January 1826, D. Way deposited with the then firm of Sir R. Bassett, Roe & Blachford another sum of 500l., and thereupon received a promissory note for the same, as follows:"No. 435, Bank, Newport, &c. I promise to pay, three months after sight, Mr. D. Way or order, 500l., with interest after the rate of 3l. 10s. per cent. per annum, value received, the 21st of January 1826, for Sir R. Bassett, Roe & Blachford. 500l. Entered, J. Cowdery; (signed) C. B. Roe." On the 22nd of January 1831, D. Way deposited with the last-mentioned firm another sum of 1,500l., and took a promissory note for the same, as follows:-"No. 1,332, Bank, Newport, &c. I promise to pay, three months after sight, Mr. D. Way or order, 1,500l., with interest after the rate of 31. 10s. per cent. per annum, value received, 22nd day of January 1831. For Sir R. Bassett, Roe & Blachford, (signed) C. B. Roe. Entered, J. Cowdery." In September 1831 D. Way died, and by his will appointed the plaintiffs his executors. the 28th of February 1835 the plaintiffs, as such executors, deposited with the said bank the sum of 1,000l., part of the assets of D. Way, and thereupon took a promissory note for the same, as follows:-"No. 2,481, Bank, Newport, &c. I promise to pay, three months after sight, executors of On late D. Way or order, 1,000l., with interest, &c., value received, 28th February 1835. For Sir R. Bassett, Roe & Blachford, (signed) C. B. Roe." D. Way regularly received interest on the said sum of 400й. and on the two promissory notes from the respective times of the deposits to the time of his decease, from the firm of Sir R. Bassett, Roe & Blachford, no interest having been paid in the lifetime of R. Clarke; and the plaintiffs, as such executors, received interest, from the decease of their testator, on all the above sums from the firm of Sir R. Bassett, Roe & Blachford, in the lifetime of Sir R. Bassett, and from C. B. Roe & Blachford, after the decease of Sir R. Bassett, except such interest as had become payable since the 31st of December 1842. On the 13th of December 1843, the executors of D. Way filed their bill on behalf of themselves and all other the creditors of Sir Richard Bassett against James White Bassett and C. B. Roe and the other persons who were devisees and legatees under the will of Sir R. Bassett, stating the above facts, and that C. B. Roe was the principal acting executor of Sir R. Bassett; and that in the payments of interest on the abovementioned sums, he had acted and joined as such executor, and had frequently stated to the plaintiffs, and generally to the customers of the said bank, that he was such executor; that the estate of Sir R. Bassett was indebted to the plaintiffs in the abovementioned sums, and that the plaintiffs were entitled to receive payment thereof out of his real and personal estate; that the estate of Sir R. Bassett was still indebted to divers other persons besides the plaintiffs in a very large amount, and the whole of his real and personal estate, though considerable, was insufficient for the payment of his debts. The bill then charged that Sir R. Bassett was the principal partner in the said firm, and after his death the facts of his name being continued in the said firm, and of C. B. Roe being his principal acting executor, were notorious, and contributed much to the credit of the said banking business; and that after the decease of Sir R. Bassett the plaintiffs gave credit to the bank both in respect of the matters aforesaid, and on the supposition and belief that the estate of Sir R. Bassett continued liable after his death, and in the belief of the statements that C. B. Roe represented both him and his estate; that C. B. Roe and J. W. Bassett were largely indebted to the estate of Sir R. Bassett, as such trustees and executors, and that C. B. Roe and T. J. Blachford were also largely indebted thereto. The bill then prayed an account of what was due to the plaintiffs for principal and interest as aforesaid, and of all the other debts of the testator Sir R. Bassett; and also an account of the personal estate and effects of the testator received by J. W. Bassett and C. B. Roe, or which, without their wilful default, might have been received; and an account of the rents, profits and produce of the testator's freehold and other real estates, which, since his death, had been received by the defendants the devisees thereof, and an account of what had been paid and transferred to and received by the legatees, and that the same might be refunded, and that the testator's real estates might be sold; and that the said testator's personal estate and the legacies when refunded, and the proceeds of the sale of the real estates, and the rents and profits thereof, might be applied in satisfaction of the testator's debts and liabilities, &c., and for a receiver. All the defendants, except C. B. Roe and his assignees, by their answers, insisted that the debts of the plaintiffs, if any, as against the testator and against the defendants, in respect of his separate estate, accrued more than six years before the filing of the bill; that the surviving partners assumed the debts of the old firm, and the plaintiffs accepted the credit and responsibility of such surviving partners; and the defendants insisted upon the statute as a bar to the claim of the plaintiffs. It appeared by the evidence in the cause that interest was regularly paid on the accountable receipts and the three promissory notes yearly, up to December 1842, and that at the time of each such payment, an indorsement was made on the receipt or note in the following form, viz. :-" April 16, 1836, paid one year's interest, due the 4th of March 1836, 52l. 10s. for Sir R. Bassett & Co.," and that such indorsement was signed either by the principal clerk in the bank or by one of the partners. It appeared also that on the face of each of the three promissory notes was written by T. J. Blachford, "Accepted 11th March 1843. Bassett & Co." Mr. Romilly and Mr. Giffard, for the plaintiffs.-Sir R. Bassett's estate is primá facie liable to the payment of all the debts of the firm, unless they are barred by the Statute of Limitations, or the creditors have accepted the liability of the new firm. First, as to the bar by the statute. Interest was paid on the notes by C. B. Roe, and these payments are to be referred to his character of partner and also executor of Sir R. Bassett. The partnership continues after the death of a partner for the purpose of winding up the affairs of the partnership; and, therefore, payment of interest on a joint debt by a surviving partner would take the case out of the statute. But if no interest had been paid, the Court would work out the claim through the equities subsisting between the bankers, and till the partnership affairs are wound up the liabilities remain open. Crawshay v. Collins, 15 Ves. 218. Wyatt v. Hodson, 8 Bing. 309; s. c. 1 494; s. c. 9 Law J. Rep. (N.S.) [WIGRAM, V.C.-Can a surviving partner be the agent of a deceased partner? or, vice versá, can the executors of a deceased partner represent the firm ?] The agency will last so long as the contract lasts; and considering it as a joint debt, the payment of interest by the survivor will keep the debt alive. But in equity each debtor is severally liable upon a joint debt Thorpe v. Jackson, 2 You. & Col. 553. Cowell v. Sikes, 2 Russ. 191. Brown v. Weatherby, 12 Sim. 6; s. c. Braithwaite v. Britain, 1 Keen, 206. The death of a partner will not revive the debt where the statute has once run, but it will keep the debt alive. As to the form of the notes, they are made payable after sight, and therefore need presentment for payment; and till that is done, the statute does not begin to run. "Sight" must be construed "acceptance"-Sutton v. Toomer (1). The plaintiff's have never accepted the liability of the new firm Bishop v. Church, 2 Ves. sen. 100. Devaynes v. Noble, Sleech's case, 1 Mer. 564. And the onus of proof lies on the party alleging that, and it will be inferred from no circumstance short of a dealing with the security itself Evans v. Drummond (2). But the payment of interest on the notes made by C. B. Roe was made by him quà executor, for as such he held himself out to the customers, and the name of Sir R. Bassett was still continued in the firm. At law, the acts of one executor will bind his co-executor; but in addition, J. W. Bassett, who resided near the bank, and connived at the acts of C. B. Roe, has thereby constituted him his agent, and is bound by his acts. Vulliamy v. Noble, 3 Mer. 614. Mr. Wood and Mr. Rogers, for J. W. Bassett. No case has gone to the extent of saying that a surviving partner can raise any new right even against the personal estate of a deceased partner (à fortiori against his real estate), by any transaction between such surviving partner and a creditor, so as to take the case out of the Statute of Limitations. The partnership does continue for some purposes, but not to the extent contended for-Ex parte Ruffin (3), and there is a (1) 7 B. & C. 416; s. c. 6 Law J. Rep. K.B. 49. (2) 4 Esp. 89. (3) 6 Ves. 119. distinction between a dissolution by agreement and a dissolution by death. Ault v. Goodrich, 4 Russ. 431. 10 Law J. Rep. (N.s.) Chanc. 219. The case is not stated by the bill so as to raise the usual equity against the estate of the deceased partner-Hankey v. Hammond (4); and after gross laches the Court will not give an account of a deceased partner's estate-Tatam v. Williams (5). The testator's name being retained in the business will not make his estate liable-Webster v. Webster (6). As to the form of the notes: that is " sight" when the note is presented to the maker for the purpose of being acted upon; that is, for the payment of the interest expressed on the face of the note. Dixon v. Nuttall, 1 Cr. M. & R. 307; s. c. 3 Law J. Rep. (N.s.) Exch. 290. Cameron v. Smith, 2 B. & Ald. 305. Holmes v. Kerrison, 2 Taunt. 323. But, at all events, the admission of the executor will not bind the real estate. Putnam v. Bates, 3 Russ. 188. Mr. J. Parker, Mr. Bovill and Mr. E. J. Bevir, for the defendant, Jessett, who claimed under a settlement made of the devised property by J. W. Bassett, contended, that the indorsements of interest paid on the notes by the clerk of the bank would not take the case out of the statute-Hyde v. Johnson (7), and that the acceptance after the statute had run would not revive the debt. Ex parte Woodward, 3 Mont. & Ayr. 232; s. c. 6 Law J. Rep. (N.s.) Bankr. 60. Doe d. Smith v. Webber, 1 Ad. & El. 119; s. c. 3 Law J. Rep. (N.s.) K.B. 148. (4) 10 Ves. 113, n. (5) 3 Hare, 347. (6) 3 Swanst. 490, n. (7) 2 Bing. N.C. 777; s. c. 5 Law J. Rep. (N.s.) C.P. 291. Powell v. Monnier, 1 Atk. 611. s. c. 12 Law J. Rep. (N.s.) Q.B. 134. Waters v. Earl of Thanet, 2 Q.B. Rep. 757; s. c. 11 Law J. Rep. (N.s.) Q.B. 87. Whitehead v. Walker, 9 Mee. & Wels. 506; s. c. 12 Law J. Rep. (N.S.) Exch. 28. Mr. Teed, Mr. Piggott, Mr. Prior, Mr. Lewis, Mr. Beavan, Mr. Anstey, and Mr. Nicholl, for other parties. Mr. Romilly replied. Nov. 14.-WIGRAM, V.C.-One question made in the cause was, whether the surviving partners could by any acts of theirs keep alive a debt as against the estate of the deceased partner. I think the cases of Atkins v. Tredgold, Slater v. Lawson, and Ault v. Goodrich must govern this case; and that the acts of the surviving partners of the banking firm had not the effect of keeping the plaintiffs' debt alive against either the real or personal estate of the deceased part ner. The second question is, whether the acts done by the surviving partner, or rather by the bank, are not to be taken as the acts of the executors, or of one of the executors of Sir R. Bassett, one of such executors being a partner in the banking firm. My opinion is, that with respect to the acts of the surviving partner, they were such as the surviving partners were bound and might be compelled to do, and, consequently, that they are not acts which I can treat as acts of the executor of Sir R. Bassett. The third question is, whether the plaintiffs could enforce their debt against Sir R. Bassett's estate, by reason of the equities between the surviving partners and his estate; and this depends, in the first instance, on the form of the pleadings. In order that the plaintiffs may have such an equity, it is necessary that the accounts of the partnership should be taken; for the plaintiffs are only entitled to stand in the place of the surviving partners. Now the pleadings are framed not only so as not to raise that question, but they are framed to shew that the plaintiffs are compelled, and do claim to be entitled to sue directly the separate estate of Sir R. Bassett, and not to seek relief against his estate through the equity of the surviving partners; and it is impossible to read the pleadings without seeing that this was advisedly done with regard to the fact that instead of Sir R. Bassett being indebted to his partners, his partners were indebted to him in respect of the partnership dealings. And this is an answer to the argument founded on the language of Lord Langdale, in Braithwaite v. Britain, and of Lord Cottenham, in Winter v. Innes. If I were to go the whole length of the plaintiffs' argument, it would follow that the Statute of Limitations never could be pleaded in bar to a debt so long as the partnership accounts remained unsettled. But I am satisfied that neither Lord Langdale nor Lord Cottenham intended to decide any such abstract question. The only other question is the form of the note, and the manner of acting of the parties with reference to it. If the payment of the interest had been in conformity with the rights of the parties, it is impossible that I should consider the note as not having been presented before the death of Sir R. Bassett. But it was said that the payment of interest was not according to the tenour of the note, and that I must assume that such payment had been made in consideration of the note not having been presented, and in pursuance of an agreement to that effect; but no such agreement has been suggested in the pleadings, the statements in which appear to exclude this suggestion altogether. The allegation in respect to the note is this, that D. Way received interest on the 400l. and the two promissory notes by half-yearly payments from the time of the deposit up to the time of his decease, and that he received such interest from the firm of Bassett, Roe, and Blachford, and that his executors received interest from the last-mentioned firm from the time of his decease till December 1842. This is an allegation that the parties, acting upon the receipt and the notes, regularly paid interest upon them. As the Statute of Limitations has been pleaded by the defendants, I think it constitutes an answer to this case. Bill dismissed, with costs. |