1818.

BODENHAM and PHILLIPS against PURCHAS the Friday,

Elder. (a)

DEBT on a joint and several bond, dated 1st January, 1804, from the defendant and N. Purchas, the younger, to the plaintiffs, and William Havard, their deceased partner, in the penal sum of 91817. 16s. 6d. Plea, after setting out on oyer, the bond and condition, the latter of which was "for repayment by the defend ant, and N. Purchas the younger, or either of them, their or either of their heirs, executors, &c. unto the plaintiffs and Havard, their executors, &c. of a balance of 4590. 18s. 3d., with lawful interest, and also of such further sums as they the plaintiffs and Havard might advance or lend, remit or pay, to or on account or for the use of the N. Purchas, the elder, or N. Pur chas, the younger, in the course of their business as bankers or otherwise, with interest, according to the usage and custom of their said business, not exceeding in the whole the said sum of 90007., without any deduction or abatement whatsoever;" first, non est

Nov. 6th.

A

bond was given to the several persons the firm of a constituting banking-house,

conditioned

for the repay

ment of the

balance of an

account, and of

such further

bankers might advance to the obligor; one of the partners

sums as the

dies, and a new

partner is taken>

into the firm;

at that time a

considerable

from the obligor

to the firm;

advances are

afterwards made

by the bankers, and payments made to them

on account

by the obligor; the latter is credited by the

new firm with the several payments, and charged with the original debt and subsequent advances as constituting items in one entire account, and the balance due at the time of the partner's death is considerably reduced, and that reduced balance, by order of the obligor, is transferred by the bankers to the account of another customer, who, with his assent, is charged with the then debt of the obligor. The person so charged having become insolvent, the surviving partners of the original firm brought their action upon the bond: Held, that as they had not originally treated it as a distinct account, but had blended it in the general account with other transactions, that they were not at liberty so to treat it at a subsequent period; and that having received in different payments a sum more than sufficient to discharge the debt due upon the bond at the time of the death of the deceased partner, that the bond was to be considered as paid.

Quære, Whether the transfer of the balance due from the obligor to the account of another, with his assent, did not, in point of law, operate as payment.

1818.

BODENHAM against. PURCHAS

factum, upon which issue was joined. Second, payment of the said sum of 4590l. 18s. 3d. and interest, and such further sum, &c., according to the condition of the bond. Replication to the last plea, that after making the bond, plaintiffs and William Havard did advance to defendant, in the course of their business as bankers, and otherwise, according to the usage and custom of their business, the sum of 44091.Is. 9d.; yet neither the defendant, or N. Purchas the younger, paid the said 45901. 18s. 3d. mentioned in the condition, or such further sum of money, but that the whole 90007. still remains unpaid and unsatisfied to plaintiffs. Rejoinder, that defendant and N. Purchas the younger, or one of them, did pay and satisfy to plaintiffs and to William Havard, in the lifetime of William Havard, and to plaintiffs since the death of the said William Havard, the said sum of 4590l. 18s. 3d., in the said condition mentioned; and the said further sum of money so advanced to the defendant, as in said replication alleged; and upon this issue was joined.

At the trial of the cause at the London sittings after Trinity term, 1817, before Lord Ellenborough, a verdict was found for the plaintiffs for the penalty of the bond, subject to the award of an arbitrator, who by his award stated the facts of the case (as far as respects the point ultimately decided by the Court) to be as follows:

The action was brought by the plaintiffs, as surviving partners of William Havard, to recover 9231. and interest, upon the bond set out in the pleading, the execution of which was admitted. The plaintiffs and

their deceased partner, long prior to and at the time of the execution of the bond, and from thence until the 30th April, 1810, carried on business as bankers at Hereford, in the firm of Bodenham, Phillips and Havard, or Bodenham, Phillips and Co. On the 30th April, 1810, Havard died. The defendant during all the period above mentioned, kept an account with the plaintiffs and Havard, and usually balanced his accounts every three months, when he signed the ledger, and received his vouchers. On the 31st March, 1810, the balance was 29047. 11s. 7d. in favour of the plaintiffs and Havard and on the 30th April, in that year, the defendant examined his account up to the 31st March preceding, received his vouchers, and signed the ledger as usual. On the 9th April, the plaintiffs and Havard advanced a further sum of 1500%, which appears to have been the only transaction between the 31st March and Havard's death; so that on the death of Havard, the balance due from the defendant was increased to 44047. 11s. 7d. Upon the death of Havard, the plaintiffs carried on the business, without making any alteration in their firm or their books, till the latter end of the year, when they agreed to take Mr. John Garrett into partnership, as from the 1st July preceding; but although the style of the firm was then changed to Bodenham, Phillips and Garrett, the accounts were continued in the same manner as before, and the balance continued as if there had been no alteration in the firm. And on June 30th, 1810, no notice was taken of Havard's death, but the account, including items both subsequent and prior to that event, was then settled, and the balance of 14207. struck as if nothing had happened.

1818.

BODENHAM

against PURCHAS

1818.

BODENHAM against PURCHAS

In June 1813, the defendant relinquished his busi→ ness, and on the 26th of that month signed an order, directing Bodenham and Co. to transfer his account to that of his sons, N. and R. W. Purchas. In consequence of which an account was made out by Bodenham and Co., which, after stating the several items, concludes thus: "Balance transferred to Messrs. N. and R. W. Purchas, 25381. 13s. 10d..

This account was not signed by the defendant, but on the 30th July following, the plaintiffs delivered up tó Nathaniel Purchas Junior, who had for some time acted as agent for his father, the vouchers for his father's accounts, the plaintiffs still retaining the bond. The balance of the father's account was accordingly transferred to the sons, who had for some time kept a separate account with the bankers under the firm of N. and R. W. Purchas. On the 30th June 1813, immediately before the transfer, the sons' account was 620%. Is. 1d. in their favour; but by the transfer of the father's balance, was turned 1918. 12s. 9d. in favour of the bankers. The sons' account continued open with the plaintiffs and Garrett till 1816, when they stopped payment, the account having been balanced, and the vouchers given up quarterly; the balance was never reduced below the sum sought to be recovered, viz. 923%. 14s. 8d., and when they stopped, it was 36947. 18s. 9d. in favour of the plaintiffs. If the plaintiffs were bound to have applied, or are to be considered as having applied, the first monies received after the death of Havard or after the transfer of the father's balance to the sons' account, to the discharge of the balance due at Havard's death, or at the time of the transfer, sufficient money was received

to liquidate such balance, but in fact no such application was directed or specifically made, nor was the balance on any quarterly or half-yearly settlement ever below the sum sought to be recovered in this action of 9231. 14s. 8d. There was not any thing said by, or to the defendant, respecting the bond, or any claim made upon him until the sons' failure; but on the plaintiffs and Garrett remonstrating with Nathaniel Purchas the younger, one of the sons, respecting the increase of the account from time to time, he told the plaintiffs they need not be under any apprehension, as they held his father's security, alluding to the bond. It was admitted that the sons had paid a composition of 15s. in the pound on the balance due, but expressly without prejudice to the plaintiffs' claim for the remainder against the defendant. Upon these facts it was contended by the plaintiffs, that the whole of the balance due at the death of Havard, had not been discharged, and that they were entitled to a verdict for the sum of 923l. 14s. 8d. the remaining sum of five shillings in the pound, on the balance of the account as it stood at the time of the sons' failure. On the other hand, it was contended by the defendant: First, that the debt due at the death of Havard must be considered as discharged, either by the first monies which were paid subsequently to the death of Havard or by the fact of the transfer to the sons' account, or by the balance due to the sons immediately before the transfer, and the first monies paid by them afterwards, and that therefore he was entitled to a verdict. The arbitrator was of opinion, that the balance due at the death of Havard must be considered as discharged by the first monies paid in after his death, and therefore ordered the

verdict

1818.

BODENHAM

against PURCHAS