Ray v. Bogart

2 Johns. Cas. 432

Opinion

Kent, J.

Rejecting the period from May, 1775, to May, 1784, as being no reasonable time for the settlement of accounts in chancery, then, from the dissolution of the co-partnership, by the death of H. C. Bogart, in May, 1774, to the exhibition of the bill in June, 1794, is but 11 years.

Where there is a mutual trust, as between co-partners, I very much doubt whether the statute of limitations applies. (1 Atk; 494. 1 Fonb. Eq. 322.) If it does apply to such a case, then it must either be pleaded or insisted on in the answer, or it is waived. The rule of pleading in law and equity is equally strict. (1 Atk. 494. 2 Yes. 483.) The respondents insist only upon the lapse of so many years, and the death of so many parties ; an objection which goes only to the staleness of the demand and the presumptions arising therefrom.

*A court of chancery, though the statute is not insisted on, will always exercise its discretion, in dismissing stale demands, on the ground of an unreasonable lapse of time. But I have never met with an instance in which the court has dismissed a demand on this ground. where only 11 years had elapsed, and when it appeared that no settlement had ever been made. There is a late case, (4 Bro. C. C. 264 to 270,) where Lord Kenyon would not suffer an account to be taken where the party had patiently slept over his demand for 33 years. There is another case in the exchequer, (Bunb. 217,) where the court would not suffer one partner to recover a balance against another, after 24 years. In another instance, (2 Bro. G. G. 62,) the coart refused to open at large, an account, which had been settled for ten years, though certain items were suffered to go to the master. In other cases I find accounts have been suffered to be taken after 16, 32, and 33 years. (1 Atk. 493. 2 Yes. 483. 1 Yin. 156.)

In the present case, there was, in fact, a real laches only for 11 years, and there never having been a settlement of the accounts, and finding no instance in which the rule has been so rigorously applied, I am willing, though the presumption may be against the account, to let the experiment be made before a master, and for that purpose, I think the decree ought to be reversed.

Benson, J. and Van Vechten, S. were of the same opinion.

Lansing, Ch. J. and Lewis J. gave no opinion.

Radcliff, J. was absent.

But a majority of the court being of opinion that the decree was correct, on the ground of the demand being on an old and stale account, which, under the ♦circum-

stances, ought not to be inquired into ; it was thereupon ordered, adjudged and decreed, that the decree of the court of chancery be affirmed.

Judgment of affirmance.(a)

Footnotes

a

(a) Mr. Justice Story discusses the principie of this ease as follows; — “ It is, too, a most material ground, in all bills for an account, to ascertain, whether they are brought to open and correct errors in the account recenti facto ; or whether the application is made after, a great lapse of time. In cases of this sort, where the demand is strictly of a legal nature, or might be cognizable at law, courts of equity govern themselves by the same limitations, as to entertaining such suits, as are prescribed by the statute of limitations in re - gard to suits in courts of common law in matters of acconnt. If, therefore, the ordinary limitation of such suits at law be six years, courts of equity will follow the same period of limitation. (Hovenden v. Lord Annesley, 2 Sch. & Lefr. 629. Smith v. Clay, 3 Brown Ch. Rep. 639, n.) In so doing, they do not act, in cases of this sort, (that is, in matters of concurrent jurisdiction,) so much upon the ground of analogy to the statute of limitations, as positively in obedience to such statute. (Hovenden v. Lord Annesley, 2 Sch. & Lefr. 629, 630, 631. Spring v. Cray, 5 Mason’s Rep. 527, 528. Sherwood v. Sutton, 5 Mason’s Rep. 343, 146. Story’s Eq. Jur. § 55 a.) But where the demand is not of a legal nature, but is purely equitable, or where the bar of the statute is inapplicable, courts of equity have another rule, founded, sometimes upon the analogies of the law, where such analogy exists, and sometimes upon its own inherent doctrine, not to entertain stale or antiquated demands, and not to encourage laches and negligence. (Sherman v. Sherman, 2 Vern. Rep. 576. S. C. 1 Eq. Abridg. 12. Bridges v. Mitchill, Bunb. 217. S. C. Gilb. Eq. Rep. 217. Foster v. Hodgson, 19 Ves. 180, 184. Sturt v. Mellish, 2 Atk. 610. Pomfret v. Lord Windsor, 2 Ves. 472, 476, 477. Bond v. Hopkins, 1 Sch. & Lefr. 428. Smith v. Clay, Amb. Rep. 647. 3 Bro. Ch. Rep. 639, note. Stackhouse v. Barnston, 10 Ves. 466, 467. Moore v. White, 6 Johns. Ch. Rep. 360. Rayner v. Pearsall, 3 Johns. Ch. Rep. 578. Ellison v. Moffat, 1 Johns. Ch. Rep. 46. Sherwood v. Sutton, 4 Mason’s Rep. 143, 146. Robinson v. Hook, id. 139, 150, 152. Piatt v. Vattier, 9 Peters’ Rep. 405. Willison v. Watkins, 3 Peters’ Rep 44. Miller v. M’Intyre, 6 Peters’ Rep. 61, 66. 1 Fonbl. Eq. b. 1, ch. 4, § 27, and notes. Brownell v. Brownell, 2 Bro. Ch. Rep. 62.) Henee, in matters of account, although not barred' by the statute of limitations, courts of equity refuse to interfere after a considerable lapse of time, from considerations of public policy, from the difficulty of doing entire justice, when the original transactions have become obscure by time, and the evidence may be lost, and from the consciousness that the repose of titles and the security of property are mainly promoted by a full enforcement of the maxim, Vigilantibus, non donnientibus, jura subveniunt. (1 Fonbl. Eq. b. I, ch. 4, § 27, and notes. Jeremy on Eq. Jurisd. b. 3, pt. 2, ch. 5, p. 541), 550. 1 Madd. Ch. Pr. 79, 80. Holtscomb v. Rivers, 1 Ch. Cas. 127.) Mr. Fonblanque’s collection of principles and authorities to illustrate this doctrine is very comprehensive, and characterized by his usual acuteness and strong sense. 1 Fonbl. Eq. b. 1, ch. 4, § 27, and notes. Mr. Jeremy also upon this subject has given us a very ample and discriminating collection of authorities. Jeremy on Eq. Jurisd. b. 3, pt. 2, ch. 5, p. 549, 550.) Under peculiar circumstances, however, excusing or justifying the delay, courts of equity will not refuse their aid in furtherance of the rights of the party ; since, ill such cases, there is no pretence to insist upon laches or negligence, as a ground for dismissal of the suit. (Lopdell v. Creagh, 1 Bligh (N. S.) 255.” Story’s Eq. Jur. ed. 1846, vol. 1, § 529.)