2 Johns. Cas. 432 | N.Y. Sup. Ct. | 1800
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.
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) 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 -