and Garside as his principal debtors; that time had afterwards been given to the principal, and that thereby the estate of the surety had been released. Secondly, the Statute of Limitations. And, thirdly, that the personal estate having been found sufficient, the residue had been divided after advertisements for creditors; that, consequently, there was no liability as regarded the real estate, and no trust so as to take the case out of the statute. Mr. Pemberton and Mr. S. Sharpe, for the Plaintiff, contended, first, that the note being payable on demand, time did not run until payment had been demanded; secondly, that the payment of interest by Oulton took the case out of the Statute of Limitations, he being one of the co-makers of the promissory note and jointly bound thereby, and being also executor of the testator; and thirdly, they argued that the Statute of Limitations did not operate, as the will of the testator contained a trust for payment of his debts. Sir C. Wetherell, Mr. H. Parker, Mr. Teed, Mr. Moore, Mr. Bird, Mr. Kindersley, Mr. Milne, and Mr. Rogers, for several Defendants, argued, that by the will of the testator his real estate had only been charged in the event" of his personal estate and effects happening to fall short." That this event had not occurred; and that, therefore, the real estate was not liable. That in Dike v. Ricks (a), where a power of sale was given in case of the insufficiency of the goods, &c. of the testator to satisfy his debts, a plea of purchase from the executrix was held bad, because it did not state the value of the assets and of the testator's debts, so as to shew that the executrix had cause of sale. That (a) Cro. Cur. 555 1840. CRALLAN บ. OULTON 1840. CRALLAN บ. OULTON. That the personal estate being once sufficient, the real estate was not rendered liable by any subsequent deficiency; Culpepper v. Austin (a), Oldfield v. Oldfield. (b) That the Plaintiff having permitted the estate to be distributed without making any claim, and it having been done without precipitation, the executors were not now liable to the Plaintiff; Higgins v. Crawfurd (c), The Governor and Company of Chelsea Water Works v. Cowper. (d) They further argued, that the claim against the testator's estate had been barred by the Statute of Limitations, for the joint liability being severed by his death, no subsequent payment of interest by the co-makers of the note could prevent the operation of that statute; Atkins v. Tredgold (e), Slater v. Lawson. (g) That as to the personal estate, no trust for payment of debts could be created, Jones v. Scott (h); and that as the personal estate had been originally sufficient, no trust had attached on the realty. It was also argued, that the specific devised estates were not liable, Spong v. Spong (i); and that there could be no sale of the real estate, but that payment, if at all, must be made by means of the rents and profits, Lingard v. The Earl of Derby. (k) Mr. Pemberton, in reply, admitted that, on a note payable on demand, the Statute of Limitations runs from the date of the note. (1) He cited Braithwaite v. Britain (m), Winter v. Innes (n), Thorpe v. Jackson (0), to shew the continuance of the liability of the estate of the deceased partner, so long as the survivor continued liable; and Hughes v. Wynne, to shew that where real estates are devised in trust for the payment of debts in aid of the personal estate, the Statute of Limitations does not run in equity after the death of the testator. Sir Thomas Plumer there observing, "it is not to be inferred that a man has no debt, because he does not go to law to enforce payment when he has a trustee to pay him. 1840. CRALLAN ย. OULTON. The MASTER of the ROLLS. Having read the pleadings and considered the evidence in this case, I am of opinion that at the time of the testator's death, the Defendants, John Oulton and James Newton Garside, together with the testator, were jointly and severally indebted to the Plaintiff in the sum of 10007., which was due from them upon a promissory note dated the 21st of May 1825, and that the testator having died in the month of January 1826, the interest of the sum of 1000l. was from time to time from and after the testator's death paid to the Plaintiff by the Defendant, John Oulton. It is admitted that previously to the time when the promissory note of 1825 was made, the testator was separately indebted to the Plaintiff in the sum of 1000l., the payment of which, with interest, was secured by a former promissory note, which was given for valuable consideration, and which was cancelled on the delivery of the note of May 1825. It is alleged on the part of the Defendants that at the time when the promissory note of 1825 was given, the Plaintiff agreed to accept the defendants Oulton and James Newton Garside as his principal debtors, and to consider B 3 June 29. 1840. CRALLAN v. OULTON. consider Newton, the testator, who up to that time had been the sole debtor, as only a surety for Oulton and Garside, and that after the death of Newton, the Plaintiff dealt with Oulton and Garside as the only parties who were indebted to him on the note, and received the interest from Oulton on the behalf of himself and Garside, and that by this course of dealing, the Plaintiff must be considered either to have voluntarily abandoned all claim against the testator's estate, or to be barred by the statute of limitations. It seems that Oulton, making the payment, took credit for the amount in account between himself and the firm of Oulton and Garside, but there is no evidence to shew, as for or against the Plaintiff, whether the money was received by him from Oulton as one of the executors, or as a partner of the firm of Oulton and Garside, or otherwise. The only facts which I conceive to be proved are, that the testator, at the time of his death, was one of the three persons indebted on the note, and that the interest which accrued due on the note was from time to time paid on the note by Oulton, who was one of the parties liable to pay the note, and one of the executors of a deceased party, who was also liable to pay the note. The answers admit, or do not deny, the payment of the interest by Oulton, but as the answers were not read in evidence, and the proof from the indorsement cannot be brought within six years from the filing of the bill, the only evidence as to the more recent payments is found in Oulton's book, in which an account is kept as between him and the firm of Oulton and Garside. book, though at first objected to as no evidence, was ultimately relied on by the Defendants, as shewing that the payments were made by Oulton on behalf of the firm of Oulton and Garside, but this variation, supposing it This to to be made out, does not appear to me to be important; -whether the interest was paid by Oulton, one of the executors and one of the parties liable on the note, or by Oulton and Garside, two of the executors and two of the parties liable on the note, does not seem to be material. The fact which, in one view taken of this case, is considered to be important is, that there is nothing to shew that the Plaintiff received the interest from either Oulton or Oulton and Garside, in any way either to prejudice or keep alive his claim against the testator's estate; and laying aside the book of account, the question raised is, whether, under these circumstances, there being no proof that the Plaintiff received the interest from Oulton or from Oulton and Garside, in his or their characters as representing Newton, the Statute of Limitations operates to bar the claim against the estate of Newton. In the cases of Atkins v. Tredgold (a), and Slater v. Lawson (b), it was determined that at law, when the joint contract was severed by the death of one party, nothing can be done by the personal representative of the deceased party to take the debt out of the statute as against the survivor. How far the principle on which those cases were decided can be applied to the right which a creditor has in equity against the estate of a deceased party, and how far the equitable right which a creditor of joint and several debtors, may have to avail himself of the equities subsisting between the debtors, may be affected by agreements amongst the debtors themselves, may on a proper occasion have to be considered; but on the present occasion, the question does not arise if there be a trust for the payment of the testator's debts; and on considering the will of Newton, I (a) 2 B. & Cr. 23. Ᏼ Ꮞ (b) 1 B. & Adol. 396. am 1840. CRALLAN v. OULTON. |