Moodie v Bannister
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1859 |
| Date | 01 January 1859 |
| Court | High Court of Chancery |
English Reports Citation: 62 E.R. 166
HIGH COURT OF CHANCERY
S. C. 28 L. J. Ch. 881; 5 Jur. (N. S.) 402; 7 W. R. 278. See Trevor v. Hutchins [1896], 1 Ch. 848.
Acknowledgment. Specialty Debt. Statute of Limitations.
[432] moodie v. bannister. Feb. 15, 1859. [S. C. 28 L. J. Ch. 881; 5 Jur. (N. S.) 402; 7 W. E. 278. See Trevor v. Hutchins- [1896], 1 Ch. 848.] Acknowledgment. Specialty Debt. Statute of Limitations. The .acknowledgment provided for by the 5th sect, of the 3 & 4 Will. 4, c. 42, in order to take a specialty debt out of the operation of that statute, need not be made by the person chargeable to the person entitled, or amount to a promise to pay. Held, therefore, that an admission of a bond debt, contained in the answer of the executors of the obligor in a suit to which the obligee was not a party, was sufficient to take the bond debt out of the operation of that statute. A residuary legatee may set up the Statute of Limitations as against creditors in an administration suit, though the executors do not take the objection. This case came on upon a summons adjourned from Chambers. The question was whether a debt of £299, due on a bond executed on the 30th of November 1821, in which John William Bannister was principal, and John Bannister surety, and which bond was executed in favour of George Heastey, had become barred through lapse of time under the provisions of the 3 & 4 Will. 4, c. 42, or whether certain admissions contained in an answer of the executors of the obligor, in a suit to iDBEWB7i433, MO0DI-E, *fr BANNIST.ER 167 which the obligee was not a party amounted, to such an acknowledgment of the debt as would, under the 5th section (1) of, that statute, have the effect of preventing the debt being barred. : [433] The above suit of Hoodie v. Bannister was instituted by a residuary legatee against the executrix for the administration of the estate of John Bannister, and a, decree for administration was made, Under that decree the executors of George Heastey, the obligee of the bond, came in before the Chief Clerk at Chambers to prove their debt, and claimed to be creditors of the estate of John Bannister on the bond. , This claim was objected to by the Plaintiff, the residuary legatee, on the ground that the debt on the bond had become barred by the Statute of Limitations. The claim was adjourned for argument into Court. It appeared, that on the 30th of November 1821 John William Bannister and John Bannister became jointly and severally bound by bond conditioned for. the payment of £299 to George Heastey on the 30th of November 1824. By the terms of the bond both the obligors were principal debtors, but in fact John Bannister was surety only for John William Bannister. John Bannister and John William Bannister both subsequently died. The amount due on the bond was never paid. A suit having been instituted for the administration [434] of the estate of John William Bannister, the principal debtor, the amount due on .the bond for principal and interest was proved against that estate, but nothing was received from the estate of John William Bannister. On the part of the claimant it was admitted that the statute had barred the claim unless the admission contained in the answerò; of the executrix filed in the suit of Moodie v. Bannister had revived the debt, which it was contended was the effect of such admission. The admission contained in the joint answer of the executrix, Esther Bannister, and of her sister, Elizabeth Euth Bannister, was as follows :- " Say that the only debt of the said testator which to our knowledge still remains unpaid is a sum of £299, with a considerable arrear of interest due to one George Heastey upon the testator's bond. " Say that such debt has not hitherto been paid, because the said testator was party to the said bond as surety only for our brother John William Bannister, deceased, who died in the year 1829, and whose legal personal representative the said William Falconer Walker is, he having, under the advice of John Flather, taken out letters of administration to the estate of the said John William Bannister, with his will annexed, and Susan Frances Bannister, who was appointed sole executrix of the said will, having first, under the advice of said John Flathej, renounced probate of the said will. "Believe that a suit was instituted in this honorable Court for the administration of the .estate of the said John William Bannister, under which the said George [435] Heastey expected to get paid, but he now claims to be paid out of the estate of said (1) Sect. 5 of the Act 3 & 4 Will. 4, c. 42, provides-" That if any acknowledgment shall have been made either by writing signed by the party liable by virtue of such indenture, specialty or recognizance, or his agent, or by part payment or part satisfaction on account of any principal or interest being then due thereon, it shall and may be lawful for the person or persons entitled to such action to bring his or their action for the money remaining unpaid and so acknowledged to be due within twenty years after such acknowledgment by writing, or part payment, or part satisfaction as aforesaid; or in case the person or persons entitled to...
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