1832. Ex parte HEALEY and another. dends have ever been received. The onus of proof, in this instance, is assuredly on the party affirming the fact of payment Now, in order to prove this fact, what has this respondent done? He has omitted the very inquiry, that might have furnished the requisite evidence; namely, the search among the papers of his late co-assignee. With respect to the want of application on the part of Postles, or the petitioner, to the respondent, I think there is no force in that objection; as there is nothing in the affidavits to show that either Postles, or Healey, knew any thing of Douglas being co-assignee until a very late period, namely, July or August 1830. I am therefore of opinion, that the prayer of the petition ought to be granted; but I do not think we ought to allow the demand against Douglas to be carried further back than the year 1830. What Sir A. PELL.-I am of the same opinion. strikes my mind very forcibly is, that though the proceedings are said to be lost, yet Mr. Lowe (who is stated to be the last person in possession of them) has not ventured, or perhaps has not been called upon, to make any affidavit whatever of the fact. In order to prove the allegation of payment, the respondent certainly might have applied to the executors of Mr. Rowlandson, to cause a search to be made for any document that might establish that fact. The respondent has not used sufficient diligence, to convince me that payment has been made; and, without such due diligence, it does not seem to me reasonable that we should presume it; for presumption should never be made in favour of a party, who might with proper diligence produce positive facts, that would speak for themselves. The petitioner has certainly not been so active in requiring payment, as he might have been, and (I have no doubt) would have been, had he been himself the creditor; but, being a mere executor, he suffers the claim to slumber till his attention is recalled to it; which, however reprehensible per se, is not sufficient to debar his cestui que trusts of their rights. The assignees are always bound to be ready with proof of every proceeding under the commission; and the mere lapse of time is in this case no bar to the petitioner's claim; for I think Rowlandson has very manifestly admitted that the debt was proved under the commission, by his replies to Healey's appli cations. 1832. Ex parte HEALEY and another. Sir J. CROSS.-I am sorry to say, that I cannot bring my mind to concur in the opinions expressed by my learned colleagues, who have preceded me. For I think, after the lapse of time that has occurred since this bankruptcy, a party claiming under it ought to have established his claim much more satisfac torily than the petitioner has done. I think the Court ought in such a case to take the probabilities into their consideration, in the same manner as a jury would be directed to do by a judge presiding in a common law court. Now, presuming even that proof of the debt had been made, the original creditor survived the declarations of the dividends for a very considerable time. The first was declared in May 1813, and the second in April 1814; and the original creditor did not die till December 1814. Is it not then reasonable to presume, that during the interval between the last declaration of dividend and the death, a period of eight months, Postles had received his dividends? Is it likely 1832. Ex parte HEALEY and another. that he would not, within a few days after the declaration of each dividend, go to the assignees and receive it? But Postles dies, and appoints executors, the acting one being the petitioner, who is an attorney; and no steps are taken by him till the present moment to recover the money,-which is actually in Rowlandson's hands from the year 1814 until his death,-except the loose and scattered applications to Rowlandson in the years 1815 or 1816, and 1816 or 1817, as mentioned in the affidavit, and those in 1830, and since, to the respondent Douglas; a species of neglect, which,-considering the petitioner to be an attorney, and a man of business, and therefore one not very likely to suffer a valid claim to slumber,-in my mind, amounts to a consciousness on his part that there was no real foundation for the claim. At law, this demand would beyond all doubt be presumed to have been paid; for, after twenty years, the presumption is that even a bond is satisfied. The present claimant, however, who is admitted to be an attorney, is nevertheless supposed to slumber on and forget his rights for fourteen years. But might he not as likely have forgotten, that payment had been actually made to him? After such gross neglect, I think, at any rate, the onus probandi to support his claim rests on himself; and that he ought to satisfy the Court, in a better way than he has done to my mind, that the debt is still really due, before we compel an innocent assignee, who has never meddled with the estate, to pay the dividends claimed by the petitioner. As to the neglect of Douglas, in trusting implicitly to his co-assignee Rowlandson, I think the petitioner has been guilty of greater neglect, in having omitted for so long a time down to 1830 to make any application on the subject to Douglas; and this appears to me quite sufficient ground to exonerate him from payment. Sir G. ROSE.-I concur with the majority of the Court, and think the only question here is, from what time Douglas shall be chargeable with interest at five per cent. The statute of limitations in no manner attaches to a debt once proved under the commission (a). The state of the law on this subject rendered it unnecessary to have recourse to any presumption of payment applicable to mercantile accounts; for it was always considered, that bankruptcy renders a debt, when proved, a solemn continuing legal demand, against which time will not run. The assignees stand in the same relation to the creditors, as trustees do to their cestui que trusts; and cannot avail themselves of any lapse of time, in answer to a demand by a creditor, in respect of a debt proved by him under the commission. The COURT, therefore, ordered the respondent to pay the dividend with interest for eighteen months at five per cent., together with the costs of the application. (a) And see the case of Ex parte Ross, 2 G. & J. 46. S. C. on appeal, ibid. 330. 1832. Ex parte HEALEY and another. March 28. Period of eight Ex parte BEARDSWORTH.-In the matter of JONES. MR. KOE applied that the period of eight days, which is the usual time allowed for the parties to attend a petition was after presenting a petition (b), might in this case be lowed to be days, for which answered, al enlarged. 1832. Ex parte BEARDSWORTH. enlarged, the parties being detained on business in the country. The COURT granted the application, directing that the affidavits in support of the petition should be filed in proper time: and observing, that it was a matter of course to enlarge the period for which a petition is answered, but that in order to lessen it, a special ap plication was necessary. END OF HILARY TERM. |