Moore v Petchell
| Jurisdiction | England & Wales |
| Judgment Date | 23 May 1856 |
| Date | 23 May 1856 |
| Court | High Court of Chancery |
English Reports Citation: 52 E.R. 1073
ROLLS COURT
[172] moore . petchell. May 23, 1856. A promissory note, dated the 4th of October 1842, was payable at "six months' notice." An action was brought on it in October 1848, and the endorsement on the writ stated that on payment within four days proceedings would be stayed. The action was abandoned, and a formal notice to pay in six months was given in January 1850. The testator died in December 1850, having devised his real and personal estate to his executors in trust to sell, and in the first place pay his debts. A creditor's suit was instituted by the payee in 1855, to which the administrators pleaded the Statute of Limitations. The Court held that the trust for payment of the debts prevented the operation of the statute, both as to the real and personal estate, and that neither the action nor the indorsement on the writ were sufficient notice to pay, according to the tenor of the note. In 1842 the testator, Thomas Petchell (represented by the Defendant), gave to Toynbee (represented by the Plaintiff), a promissory note in the following form :- " At six months' notice I promise to pay to Mr. John Toynbee, or order, the sum of 400 with interest, at the rate of 3, 10s. per centum per annum, for value received this 4th day of October 1842." Toynbee died in 1843, and on the 5th of October 1848 the Plaintiff, his executor, served Petchell with a writ of summons. The writ was indorsed, in the usual form, as follows :- " The Plaintiff claims 490 for debt, and 3, 3s. for cost. And if the amount thereof be paid to the Plaintiff or his attorneys within four days from the service hereof, further proceedings will be stayed." [173] The action was abandoned, and the Plaintiff, on the 15th of January 1850, served Petchell with notice to pay the note at the expiration of six months. The 1074 ST. AUBYN V. HUMPHREYS 2J BEAV. 174. six months expired on the 15th of July 1850, and in October 1850 the Plaintiff brought a second action to recover the amount. Petchell died in December 1850, having by his will devised and bequeathed to his executors all his real and personal estate, in trust to sell, and out of the produce, in the first place, to pay the mortgages, and " all other his just debts, personal and testamentary expenses." Six years from the notice of 1850 expired in 1856, but before that time, and in 1855, the Plaintiff filed this bill on behalf, &c., for the administration of the real and...
To continue reading
Request your trial