Dewdney, ex parte. Seaman, ex parte
| Jurisdiction | England & Wales |
| Judgment Date | 18 August 1547 |
| Date | 18 August 1547 |
| Court | High Court of Chancery |
English Reports Citation: 33 E.R. 836
HIGH COURT OF CHANCERY
See Jones v. Scott, 1831, 1 Russ. & My. 273; Adams v. Waller, 1866, 35 L. J. Ch. 728; Midgley v. Midgley, [1893] 3 Ch. 293.
836 EX PARTE DEWDNEY 15 VES. JTTN. 479. [479] 49 george III. 1808-9. dewdney, Ex parte. seaman, Ex parte. Dec. 22d, 23t/, 1808; Jan. Feb. 3d, 1809. [See Jones v. Scott, 1831, 1 Russ. & My. 273 ; Adams v. Waller, 1866, 35 L. J. Ch. 728 ; Midcjley v. Midgley, [1893] 3 Ch. 293.] A debt, which could not be recovered in an action against a plea of the Statute of Limitations, nor in Equity by analogy to it, not admitted under a Commission of Bankruptcy. The first of these Petitions, presented by the assignees of Benjamin Dewdney, a bankrupt, stated, that for several years, previous in 1793, and afterwards, the bankrupt was employed by Edward Roffey, farmer, as agent in buying and selling cattle. In 1793 upon a settlement of accounts between them a balance of 900 appeared to be due to Roffey ; for which sum the bankrupt gave his promisory note, dated the 28th of March 1793, payable on demand to John Roffey or order, with interest at 4, 10s. per cent. The bankrupt continued to act as agent for Roffey until his death in 1797 ; and, as they were upon terms of great intimacy, never made any charge, or received any payment or satisfaction, during the life of Roffey or since his death on account of such agency : nor was any demand made for payment of the note : nor any payment made on account of either principal or interest. The Commission [480] issued in 1805. The bankrupt in his examination took no notice of the note ; believing, that Roffey never meant to claim under it : and intended, that it should be considered as given up. After two dividends of seven shillings and five shillings had been made, and the bankrupt had received the sum of 250, as his allowance, at a meeting in 1807, for the purpose of declaring a final dividend, a claim was brought forward by John Roffey, as one of the administrators of Edward Roffey, to be admitted to prove 1293, 3s. 9d. for principal and interest, due on the promisory note. The dividend being adjourned, at a subsequent private meeting the claim was allowed ; and the proof was afterwards admitted. No evidence was produced of any acknowledgment, or any other circumstance, that would take the note out of the Statute of Limitations. The Petition therefore, suggesting, that the debt was completely barred by the Statute long before the attempt to set it up, and that from the circumstances there was every reason to believe, that Edward Roffey considered the debt as satisfied, and never meant to claim it, prayed, that the proof should be expunged. The bankrupt by his affidavit confirmed the facts, alleged in the Petition ; stating particularly, that he, being upon very intimate terms of friendship with Edward Roffey, did not during the whole time the deponent acted as agent make any charge for his time and trouble ; or receive during Roffey's life or since his death any sum of money whatsoever in payment or satisfaction for his time and trouble in transacting such business ; and Edward Roffey did not from the time, when the deponent gave him the note to the death of Roffey demand payment of the note : nor was any part thereof paid : nor was any interest thereon ever paid after the 28th of March 1793 ; and that no evidence was produced to the Commissioners of any acknowledgment, or [481] other circumstance, to take the note out of the Statute ; and the deponent had every reason to believe, that Edward Roffey considered the debt as satisfied; and never meant to claim or set up any demand for it against the deponent. The affidavit of John Roffey stated, that in March 1807, the note wTas found among some papers, which had not been previously inspected ; that, the deponent producing the note to the bankrupt, and charging him with dishonesty in taking advantage of the accident, that the note was not sooner produced, he seemed very much confused and agitated ; but did not give the least intimation, that it had been in any manner satisfied ; and the deponent at the same time produced a memorandum, found with the note; whereby it appeared, that three years interest on the note had been accounted for to Edward Roffey by the bankrupt ; which memorandum was dated the 28th of March 1796; signed by the bankrupt; and admitted by him to be in his hand-writing. 15 VES. JUN. 482. EX PARTE DEWDNEY 837 The prayer of the other petition was to be admitted to prove under a Commission of Bankruptcy in respect of a debt, secured by several promisory notes, expressed to be payable to the petitioner or order seven days after sight, with interest ; upon all which the time, limited by the Statute of Limitations had expired. Sir Samuel Romilly, and Mr. Wetherell, in support of the first petition. This petition raises two questions: first, whether the Statute of Limitations (stat. 21 Jam. I. c. 16, s. 3) could be set up as a defence against an action for the amount of this note : if it could, [482] secondly, whether it forms an objection to the proof of the debt under the Commission. With regard to the first question this is a debt, payable on demand ; and acknowledged by payment of interest for three years. That makes it unquestionably an absolute debt. Upon the affidavits there is no colour for any new assumpsit within the period, fixed by the Statute : the creditor, stating only that the debtor looked confused, does not bring it within the decisions upon that point : extravagant, as they are (see Baillie v. Sibbald, 15 Ves. 185) ; and the bankrupt states, that no demand was made upon him ; that he had a counter demand ; and his belief was, that the holder of the note considered it given up. The decision of the second point involves the most important consequences. If, in the instance of a debt by simple contract, the assumpsit, to which the Statute might be pleaded, is so far not barred, that it may be revived by taking out a Commission of Bankruptcy, the effect is, that with regard to persons, engaged in trade, the Statute of Limitations has no existence. By taking that course the creditor may make available a debt, which according to the usual course of Law is entirely gone. A trader, retiring from business, aware of the Statute, and relying upon the faith of the Law, may have destroyed all his receipts and vouchers ; yet any creditor by taking out a Commission might revive all those debts. Why are not debts, contracted during infancy, equally capable of being proved ? That and other analogous cases depend upon the true principle of the Statute ; which, is, that a debt, for which no demand has been made for a considerable time, may be presumed to have been satisfied ; though the evidence may have been destroyed : and the time has been fixed at six years. It [483] is not to be supposed, according to a common notion, that the Legislature intended to enable a man to defraud his creditors, by a positive Law providing the means of resisting an honest, conscientious, claim. The debts, intended to be thus barred, are those, which may be presumed to have been satisfied. With that object the Statute is a legislature declaration, that at the expiration of six years, if no step to enforce the demand has been taken, and no acknowledgment of the debt made, it shall be considered as extinguished. Upon that principle, all cases, having any analogy to this, proceed. This Statute has received, not a strict, but, as a remedial Law, the most liberal construction. Suits in Equity are not mentioned in the Statute : yet, where a demand upon simple contract can be enforced in Equity only, or, if a Court of Equity has a...
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