Foley v Hill and Others
| Jurisdiction | England & Wales |
| Judgment Date | 15 March 1844 |
| Date | 15 March 1844 |
| Court | High Court of Chancery |
English Reports Citation: 40 E.R. 1010
HIGH COURT OF CHANCERY
foley v. hcll. June '22, 23, 1838. AVhere a bill charges matters which, if true, would destroy an anticipated legal bar, a plea, setting up that bar, will be overruled unless it is supported by an answer which fully negatives those matters. The bill, which was filed in January 1838, stated, in substance, that, in the month of April 1829, the Defendants carried on business in co-partnership as bankers, at Stourbritlge, and that, on the llth of April in that year, the Plaintiff opened a banking account with them by causing a sum of £6117, 10s. to be paid into their bank on his account, for which the Defendants gave him their accountable receipt; that clivers sums continued from time to time to be paid, and divers cheques to be drawn by the Plaintiff and his agents on such account during the successive years 1831, 1832, [476] 1833, and 1834, which sums and cheques were duly entered and noted in the Defendants' banking books, and to the Plaintiff's account; that interest accrued on the balances from time to time due on such account, and was duly entered or credited to the Plaintiff in the said account; and that, during the whole of the aforesaid period, a very large sum was due to the Plaintiff on the balance of such account. It then alleged that the Plaintiff, being desirous to close his account with the Defendants, made applications to them to render a statement of their receipts and payments on his account, and of the interest accruing on the balance; hut that they refused, under the pretence that no entries had been made to or on account of the Plaintiff's account within six years then last past, and that no written acknowledgment of the existence of any such account, and no written promise to pay the balance thereof, had been signed by the Defendants, or any member of their firm, since the accountable receipt of April 1829, and that the claim was barred by the Statute of Limitations. The bill then contained a variety of special charges, all tending to shew that the Defendants had, by their own acts, and by entries and statements, made within the six years, and down to a very recent period, in their partnership books and accounts, and balance sheets, treated and admitted the Plaintiff's claim as a subsisting debt 3 MY. & CE. 477. FOLEY V. HILL 1011 due from them to him. The hill further charged that various letters and written communications had, within the six years, passed between the Defendants and their solicitor, and other persons, relative to the matters mentioned in the bill, and wherein the existence of the Plaintiff's claim as a subsisting debt was stated or admitted ; and that, in the banking books and balance sheets of the firm, there were various entries and memoranda referring to or including the sum of £R117, 10s., and the [477] other monies received on the Plaintiff's account, or the balance due in respect of such account, and that by such entries and memoranda the truth of the matters therein stated atid charged would appear. The bill also contained the usual charge as to the possession of books, accounts, papers, vouchers, etc., and called upon the Defendants to set out, in a schedule, a true and correct list of them. The bill prayed an account and payment of the balance due upon the Plaintiff's banking account. To this bill two of the Defendants put in a joint and several plea and answer, whereby to all the discovery and relief sought by the bill-other than such parts of it as sought a discovery by means of the interrogatories founded on the allegations and charges introduced for the purpose of shewing that the Defendants had, within six years, admitted or treated the demand as a subsisting debt (which exceptetl parts were specifically set out)-the Defendants pleaded the Statute of Limitations. They then went on, by answer, to deny, seriatim, a considerable portion of the special charges with respect to the alleged transactions as amongst themselves, and between themselves and other persons, on behalf of the Plaintiff, relative to his claims, within the six years last past; but they did not fully answer the charges upon that point, and, in particular, they omitted to make, any answer to the charges relating to entries in the partnership books and balance sheets to admissions or statements in communications with other persons, and to the possession of books and papers touching the matters in question in the cause. This plea was set down, and came on for argument before the Vice Chancellor, on the 5th of May 1838, when His Honour, on the ground that the Defendants [478] had not fully answered such parts of the bill as were exceptetl from the plea, and as they purported to answer, made an order overruling the plea. The Defendants now appealed against that order. the solicitor-general [Rolfe] and Mr. Armstrong, in support of the appeal. The alleged insufficiency in the Defendants' answer consists principally in this, that they do not thereby deny that they have written letters within six years acknowledging the Plaintiff's debt, or that they have in their custody or power documents, papers, and accounts relating to the matters in question, and by which the truth of the charges in the bill would appear. But what we contend is that, upon the argument of the plea (and here the case comes before the Court simply upon the plea), the Court has no right to look at all into the answer for the purpose of judging whether it is sufficient or riot. Our plea is a perfectly good plea if it be true; but when a party has set down a plea to be argued, the sole question is whether, assuming it to be true, it is a valid defence to the demand. In a plea two matters, are to be considered: first, its validity as a defence, if true; and, secondly, its. truth. The former is purely a question of law, the latter of fact; and, with a view to the trial of the latter, the Plaintiff', by excepting to the answer, may obtain the. further discovery which he requires. the LORD CHANCELLOR. I understand your proposition to be that the plea, would be good although there was no answer to support it. Suppose a plea of purchase for valuable consideration without notice to a bill which charged particular acts equivalent to or inferring notice, would it not be necessary to deny those charges by the answer ? [479] the solicitor-general. The Plaintiff is entitled to except to the answer, and so may get a full discovery. This answe*r, I admit, is open to exception. The: Vice-Chancellor's judgment went upon the ground that there were particular charges in...
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...v. Hurst (18 Bear. 575); Shtpanl v. Brawn (4 Giff. 208); Hemings v. Pv.cjh (Ibid. 456); FlorJcton v. Peake (12 W. R. 562) ; Foley v. Hill (1 Ph. 399; 2 H. L. Gas. 28); Smith v. Leveaux (2 De G. J. & S. 1); Topham v. Braddick (I Taunt. 572); King v. Bomtt (2 Y. & J. 33); Lord Harduricke v. F......