Kingsland v. Roberts

2 Paige Ch. 193 | New York Court of Chancery | 1830

The Chancellor.

This bill was filed in December; 1825, by the assignee of R. Roberts, an insolvent debtor, to recover from the executrix of M. Jones a balance alleged to be due from the latter, previous to 1805. R. Roberts, M. Jones and R. Simons were owners of the brig Amiable Creole in 1803, each owning one third. The brig was captured in 1804 ; and being insured, R. Roberts received the insurance money, and, as he alleges, paid the other owners- their share of the money, leaving certain debts for shpplies furnished the brig unpaid. This settlement was in September, 1804,- and the claim in this cause is for Jones’ share of what Rob* erts says he paid on account of the ship,' in the latter part of the same year. R. Roberts was discharged uuder the insolvent act, in July, 1,817, and assigned his property to Kmgs]anji Jones.died m November, 1824, and Simons the May preceding. It is evident, from exhibit No. 4, that the whole "subject matter of this controversy arose oti and previous to the 12th of January, 1805 ; nearly twenty one years before this suit was commenced. Jones lived more than nineteen years after that time and it is evident from the exhibits produced that he never, during that time, could have admitted the justice of the claim. I am" inclined to think that this is a case where an action of assumpsit would haye been sustainable, if there was any justice in the claim ; and, consequently that the statute o'f limitations, would be a good bar. But at all events, the staleness of the demand, and the' length of- time which has elapsed, are sufficient to induce this court to refuse its aid at this time. The suit is not" commenced until all those who could explain the transaction "are in their - graves ; and the original party making the claim is the only witness to substantiate a single item of the -account. - It also appears - that-he was the person who applied to the counsel to commence the suit in the name of his assignee. Although the executrix has been fortunate enough to find his receipt in'full dated in 1806, about one year after the controversy arose, this witness attempts to explain it away. In this, however,, he has not succeeded to the satisfaction of the court. The receipt is for two hundred and twenty five dol-. ■ Iars in full of all demands against the brig. Considering all the facts of this case-, and the frequent mistakes this witness made in other parts of his examination, Jam satisfied I should be. doing injustice to the heirs of Jones if I trusted to his recollection to explain1 away this receipt- Although Jones frequently consented to submit the justice of the claim of Roberts to his neighbours, it is not to be inferred from that circumstance that he admitted its ’correctness. I think the con- . ' trary presumption would tie the most reasonable.' The owners of different interests -in a ship are tenants in common and. not partners; and each one is. liable for his portion of the re- ■ pairs, &c. If Roberts paid to" Simons his share of the insurance money before his part of the debt was settled, it does not follow that Jones was bound to pay the half of his share of those debts if he afterwards became insolvent. If Roberts paid a debt due from himself and his joint owners, he should have called on Simons for his share while he was responsible. .

The bill must be dismissed, with costs.