Smith v Everett
| Jurisdiction | England & Wales |
| Judgment Date | 01 July 1859 |
| Date | 01 July 1859 |
| Court | High Court of Chancery |
English Reports Citation: 54 E.R. 175
ROLLS COURT
S. C. 29 L. J. Ch. 236; 7 W. R. 605.
[446] smith v. everett. June 24, 25, 27, 30, July 1, 1859. [S. C. 29 L. J. Ch. 236; 7 W. K. 605.] Under the 7 & 8 Viet. c. 32, the right of a country bank to issue notes belongs beneficially, on the death of a partner, to the surviving partner. The goodwill in a partnership business does riot, on the death of one partner, survive beneficially to the others; when it has any value, a due proportion belongs to the estate of the deceased partner, but the surviving partner has still the right to carry on the same business and at the same place. After the decease of one of two partners in a bank, the survivor sold the business for £10,000. Held, that the estate of the deceased was entitled to a share of so much of the .£10,000 as was attributable to. the goodwill, and special inquiries were directed to ascertain the value, having regard to the fact, first, that the partnership premises belonged to the survivor, secondly, that he had still the right to carry on the same business in the same locality, and thirdly, that the sole right of issuing notes, under the 7 & 8 Viet. c. 32, belonged to him. 176 SMITH V. EVERETT 27 BBAV. 447. One of several executors may settle an account with a person accountable to the estate, and in the absence of fraud the settlement will be binding on the others, though dissenting. Charles William Everett and William Smith carried on business in partnership as bankers at Salisbury. The bank, called the "New Sarum Bank," was established in 1811 by Mr. Everett and others, and Mr. Smith, who had formerly been a clerk in the bank, was admitted as a partner about 1835. The partnership between Mr. Everett and Mr. Smith was carried on under the style of "Everett & Smith." The bank was one of issue and deposit, and, under the Bank Regulation Act (7 & 8 Viet. . 32), it was entitled to issue notes to the extent of £15,695. On these notes were printed the arms of the City of Sarum and the name of the firm, and of " The New Sarum Bank." The partners had executed no articles of partnership, and were entitled to the profits in equal moieties. The house in which the business was carried on was Mr. Everett's own freehold property, and had been rented, from year to year, by the partnership firm. William Smith died on the 8th of July 1856, having appointed his widow (the Plaintiff), and Mr. Everett, and two gentlemen named E. and J. Nicholson, his òexecutors. Mr. Everett renounced and disclaimed on the llth of June 1857, and the others proved the will. [447] After the testator's death, the business was carried on by Mr. Everett alone on the same premises, and under the style of Everett & Smith, until the 7th of February 1857. In December 1856 Messrs. Pinckney entered into negotiations with Mr. Everett alone, for the purchase of the banking business; they were willing to give £10,000 for it, but being advised that any new firm would lose ths privilege of issuing notes, under the Bank Regulation Act of 1844 (7 & 8 Viet. c. 32), unless Mr. Everett remained in the firm, they required him to enter into a temporary partnership with them. Ultimately, on the 27th of January 1857, an agreement was signed, by which, in consideration of £10,000 paid to Mr. Everett, he agreed to enter into partnership with Messrs, Pinckney for one year, and Mr. Everett agreed to grant to Messrs. Pinckney a lease of the bank premises for seven years, with the option of becoming the purchasers during that period. Messrs. Pinckney were to take and bear all profits and losses, and to indemnify Mr. Everett, who, on his part, bound himself, during the first six months, to take an active part in the management of the bank. They carried on the business under the old name of the " New Sarum Bank," but changing the style or firm to "Everett & Pinckney," they continued to issue their notes in a...
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