Way v Bassett
| Jurisdiction | England & Wales |
| Judgment Date | 07 November 1845 |
| Date | 07 November 1845 |
| Court | High Court of Chancery |
English Reports Citation: 67 E.R. 825
HIGH COURT OF CHANCERY
S. C. 15 L. J. Ch. 1; 10 Jur. 89. See In re Macdonald (1897), 2 Ch. 184.
[55] way v. bassett. Nov. 4, 5, 7, 1845. [S. C. 15 L. J. Ch. 1; 10 Jur. 89. See In re MacdonaU [1897], 2 Ch. 184.] A. deposited monies with B., C. and D., who were bankers in partnership, and received from them notes, in which they promised to pay him the amount three months after sight, with interest. B. died in March 1837, having appointed C. and another his executors.. C. and D. continued the banking business in the same name until 1842, and interest was regularly paid on the notes by the firm until that time, the payment being indorsed upon the notes, and signed by one of the partners or their clerk. In December 1843 the executors of A. filed their bill against the executors of B. and the devisees under his will for payment of the amount of the notes out of the personal or real estate of B. Held, that the acts of the surviving partners of B. had not the effect of taking the debt upon the notes out of the operation of the Statute of Limitations as against the real or personal estate of the deceased partner. A creditor of a partnership, against whose debt the estate of a deceased partner is in a suit directly instituted against that estate entitled to the protection of the Statute of Limitations, cannot (on a bill against the surviving partners and the representatives of the estate of the deceased partner, alleging that the surviving partners are indebted to the deceased partner) recover his debt against the separate estate of such deceased partner, on the ground of the equity of the partners amongst themselves to enforce an adjustment of the partnership transactions; for the creditor can at the utmost only stand in the place of the surviving partners as against the estate of the deceased partner, and in such a case the surviving partners have no claim on the estate of the deceased. Acts done by one of the surviving partners, who was executor of the deceased partner, and which the surviving partners were in that character bound to do, cannot, primd facie, be considered to have been done in the character of executor. Where a promissory note was made payable at a certain time after sight, with interest thereon, and the interest was duly paid for several years (as the bill alleged), the Court held that the note must be taken to have been acted upon according to its form and tenour; and, therefore, that the presentment for sight must have been duly made before the interest was paid; and that the payment became due upon the note at the prescribed date after such presentment, and that the Statute of Limitations would begin to run from the time the payment so became due. After a dissolution of partnership by death or otherwise, the surviving or continuing partners of the firm are (in a suit against them by persons claiming to be creditors of the partnership), entitled to the protection of the Statutes of Limitation, although, as between themselves and retired partners, or the estates of deceased 826 WAT V. BASSETT 5 HAKE, 36. partners, the partnership accounts are unsettled; and the retired partners, or the executors of a deceased partner, are in such a suit against them entitled to the like protection. . Sir Eichard Bassett, Bobert Clarke and Charles Bassett Eoe carried on the business of bankers at Newport, in the Isle of Wight, in partnership together, until August 1825, under the style of Sir Eichard Bassett, Clarke & Eoe. On the 7th of May 1825 David Way deposited with [56] the firm of Sir Eichard Bassett, Clarke & Eoe the sum of 400 at interest, and took a receipt for the same as follows:-"No. 295, Bank, Newport, Isle of Wight, 7th May 1825. Eeceived of Mr. D. Way 400 on account; for Sir Eichard Bassett, Clarke & Eoe: C. B. Eoe, 400 at 3J per cent, per annum." In August 1825 Eobert Clarke died, and Thomas Blackford became a partner in the firm, which then took the style of Sir Eichard Bassett, Eoe & Blackford. On the 21st January 1826 David Way deposited with the firm of Sir E. Bassett, Eoe & Blackford a sum of 500, and received a promissory note as follows :-" No. 435, Bank, Newport, Isle of Wight. I promise to pay, three months after sight, Mr. David Way, or order, 500, with interest after the rate of 3, 10s. per cent, per annum, value received the 21st of January 1826; for Sir Eichard Bassett, Eoe & Blackford; 500 C. B. Eoe. Entered J. Cowdry." And on the 22d January 1831 David Way deposited with the same firm a sum of 1500, and took a promissory note as follows:-"No. 1332, Bank, Newport, Isle of Wight. I promise to pay, three months after sight, Mr. David Way, or order, 1500 with interest after the rate of 3, 10s. per cent, per annum, value received, 22d of January 1831; for Sir Eichard Bassett, Eoe & Blackford : C. B. Eoe. Entered J. Cowdry." No interest was paid to David Way on his deposit during the lifetime of Clarke, but he received the interest due on the accountable receipt, and on the two promissory notes regularly, until his death, from the firm of Sir Eichard Bassett, Eoe & Blackford. In September 1831 David Way died, having ap-[57]-pointed the Plaintiffs his executors. On the 28th of February 1835 the Plaintiffs, as such executors, deposited with the same firm the sum of 1000, belonging to the estate of David Way, for which they received a promissory note, as follows;-" No. 2481, Bank, Newport, Isle of Wight. I promise to pay, three months after sight, the executors of the late David Way, or order, 1000, with interest after the rate of 3, 10s. per cent, per annum, value received, 28th February 1835; for Sir Eichard Bassett, Eoe & Blackford: C. B. Eoe." The Plaintiffs, as the executors of David Way, regularly received the interest on the amount deposited by their testator and themselves from Sir Eichard Bassett, Eoe & Blackford, during the life of Sir Eiehard Bassett. On the 12th of March 1837 Sir Eichard Bassett died, having devised and bequeathed his real and personal estate to James White Bassett, Elizabeth Bassett, Charles Bassett Eoe and others, and appointed James White Bassett and Charles Bassett Eoe executors of his will. After the decease of Sir Eichard Bassett, the surviving partners, Eoe and Blackford, carried on the business under the same style, the names, Sir Eichard Bassett, Eoe & Blackford, being still retained on the door of the bank and in the books and other documents of the concern; and the Plaintiffs received from the firm the interest on the several deposits. This continued until May 1842, when the customers of the bank were invited to transfer their accounts to the Isle of Wight Joint Stock Bank. No interest was paid on the deposits after December 1842. In December 1843 Charles Bassett Eoe and Thomas Blackford became bankrupt. On the 13bh of December 1843 the Plaintiffs, the executors of David Way, filed their bill on behalf of [58] themselves and all other the creditors of Sir Eichard Bassett against James White Bassett and Charles Bassett Eoe and the other persons who were devisees and legatees under the will of S.ir Eichard Bassett, praying that an account might be taken of what was due to the Plaintiffs for principal and interest on the deposits, and of all the other debts and liabilities of Sir Eichard Bassett, at his death; and an account of his personal estate and effects received by James White Eoe and Charles Bassett Eoe, and of the rents, profits and produce of the real estate of Sir Eichard Bassett, which, since his death, had been received by the said devisees; and SHARE, 59. WA.Y . BASSETT 827 an account of what had been paid to his legatees, that the legacies might be refunded, and the real estate sold; and that the personal estate, the legacies when refunded, and the proceeds and rents and profits of the real estate might be applied in satisfaction of the debts of Sir Eichard Bassett, including what was owing to the Plaintiffs, in a due course of administration. As a ground for the relief sought, the bill alleged that Charles Bassett Roe was the principal acting executor of Sir Eichard Bassett; and that, in the payment of interest on the deposits, he had acted as such executor, and had spoken of himself as such executor to the Plaintiffs and the customers of the bank ; that the continuance of the name of Sir Eichard Bassett in the firm, and the fact that Charles Bassett Eoe was his principal acting executor were notorious, and contributed much to the credit of the bank; that, after the death of Sir Eichard Bassett, the Plaintiffs gave credit to the bank on the supposition and belief that the estate of Sir Eichard Bassett continued liable, and that Charles Bassett Eoe represented that estate. The bill stated that Charles Bassett Eoe and James White Bassett were .indebted to the estate of Sir Eichard Bassett as such trustees and exe-[59J-cutors, and that Charles Bassett Eoe and Thomas Blackford were also largely indebted to that estate. The bill also stated that the estate of Sir Eichard Bassett was indebted to divers other persons as well as to the Plaintiffs, in a large amount, and that his real and personal estate though considerable, was insufficient for the payment of his debts. The greater part of the Defendants, by their answers, said that the debts claimed by the Plaintiffs, if any such was ever due, accrued more than six years before the filing of the bill; that the surviving partners had continued the business of the bank, and assumed the debts of the old firm; and that the Plaintiffs had accepted the credit of the surviving partners; and the Defendants claimed the benefit of the Statute of Limitations. The payments of interest on the notes were indorsed on the notes from time to time, as they were made; and the indorsement was signed either by the principal clerk in the bank, or by one of the partners. Upon the face of the three promissory notes was written, by Thomas Blackford, one of the...
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