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You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> Edward Bell and Others, Representatives of the late Robert Bell - Warre - Courtenay v. Andrew Willison and James Bell - Giffor - Macfarlane [1822] UKHL 1_Shaw_220 (8 July 1822) URL: http://www.bailii.org/uk/cases/UKHL/1822/1_Shaw_220.html Cite as: [1822] UKHL 1_Shaw_220 |
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Page: 220↓
(1822) 1 Shaw 220
CASES DECIDED IN THE HOUSE OF LORDS, ON APPEAL FROM THE COURTS OF SCOTLAND.
2 d Division.
NO. 41.
Subject_Society—Process.—
It having been stipulated in a contract of copartnery, that in the event of the death, withdrawing, or bankruptcy of partner, the remaining partners should grant bond for his share of the last annual balance; and one of the partners having died; and thereafter all the remaining partners (with the exception of two) having become bankrupt; and an action having been raised by the representatives of the deceased partner against the two solvent partners; and the Court of Session having sustained the action against them, but assoilzied them on the merits—Held (reversing the judgment) that the claim of the representatives lay not against these two partners alone, but against all the other partners jointly, including those who had become bankrupt, and that these persons ought to have been called as defenders; and a remit made accordingly.
On the 30th of December 1800, William Bell of Cupar's Bridge, Robert Bell of Chichester, Lord Kinnaird, James Bell junior of Blackheath, James Bell the elder of Arbroath, and Dr. John Willison of Dundee, entered into a contract of copartnership as manufacturers of and dealers in sugar, under the firm of William Bell and Company of Dundee, for the period of twenty-one years. The books were to be balanced annually; and by the 16th article it was provided, that “in case any or either of the said parties shall be desirous of withdrawing from the said
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Soon thereafter Lord Kinnaird died. On the 12th of January 1807, Robert Bell also died in England; and a balance was struck on the 21st of that month, when it was ascertained that the share to which he had right was £1540: 9: 7. He left a testament, by which he bequeathed his whole effects to his son James Bell the younger, (one of the partners in the above concern,) and particularly “all and every my shares and share, interests and interest, in the capital stock, business, and concern of the
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Besides being a partner of the above concern of William Bell and Company, James Bell was also a partner of James Bell and Company, merchants in London, where he resided; and he, as the principal partner of that company, had been in the practice of drawing in the name of that house on William Bell and Company; and in the course of the nine months which immediately followed his father's death, it was alleged that the balance of these drafts exceeded by £1500 the credit which he held on his own account.
In the month of August 1807 James Bell stopped payment, but no commission of bankruptcy was issued against him; and on the 6th of November of that year William Bell (who was the managing partner of William Bell and Company in Dundee, and also brother of James) became bankrupt, and a sequestration was awarded of his estates. The only solvent partners who remained were James Bell the elder, and Dr. Andrew Willison. These two partners, on the 30th of March 1808, dissolved the company, appointed a factor for winding up its affairs, and thereupon brought an action of declarator for having it found, that “the said copartnership, so far as respects the said James and William Bell, is at an end; that the pursuers are the only surviving and remaining solvent partners of said copartnership, and that the same mode of settlement should be adopted between the pursuers, the solvent partners, and the trustees or assignees of the said James Bell the younger, and William Bell, as is provided for in the case of the death of any of the parties.” At the same time, they raised a multiplepoinding for dividing the company funds; and appearance was made for James Bell, both on his own account, and as representing his father Robert Bell. These actions, however, fell asleep; and the present action was thereafter raised by the appellants, libelling on the testament of the late Robert Bell bequeathing to them the several legacies in their favour, and concluding for payment of his share, in terms of the contract, with interest, against the respondent Andrew Willison, as representing Dr. Willison (who was now dead,) and James Bell the elder, as the only “solvent partners of the said company of William Bell and Company, and as such, in terms of the foresaid contract, liable in payment of the debts of the said company.”
In defence it was pleaded by the respondents,—
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1. That the appellants had no title to pursue, as James Bell was nominated executor.
2. That by the testament of Robert Bell, his share in the copartnership was specially assigned to James Bell; and that he, having founded upon that testament in the multiplepoinding, had thereby judicially intimated the assignation, so that the share was now vested in him, subject to the burdens created by the will, and therefore James Bell, and not the appellants, was their proper debtor; and,—
3. That such being the case, and as the appellants could only claim through James Bell, and as the respondents would be entitled to set off any claim which they had against that person, and as the debt which he owed to the company was equal to the share which belonged to his father, they were entitled to plead compensation as to that share, so as to extinguish the claim of James Bell.
To this it was answered,—
1. That the testament bequeathing them the legacies formed a sufficient title in their favour.
2. That it could not operate as a special assignation to James Bell, so as to vest in him the share thereby bequeathed, without a confirmation from the Commissaries, which he had not obtained; and the letters of administration which had been granted to him in England, had not the effect to transfer it to, and vest it in him, but only to entitle him to administer the fund; and therefore the appellants, as legatees of the late Robert Bell, were entitled to insist in the action against the respondents as their proper debtors; and,—
3. That the defence of compensation was not relevant, seeing that it was alleged to have arisen, not between William Bell and Company, and James Bell as an individual, but between the former and a separate and third party, viz. James Bell and Company.
Lord Gillies assoilzied the defenders; and the appellants having thereupon represented, Lord Bannatyne (who had come in place of his Lordship as Lord Ordinary) refused a representation, “in respect that, independent of the question, to what extent the defenders, as individual partners of Bell and Company, could be personally called to answer to Robert Bell, an individual member of that company, or to his representatives, for the supposed amount of his share in the hands of the company, that neither the company, nor they as partners thereof, to whatever extent they might be liable to account for such share to Robert Bell or his representatives, can be under any such responsibility to the pursuers as special legatees or creditors, further than an as they shall, as such, have used proper legal means for attaching and
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Bell and others having appealed, the
_________________ Footnote _________________ * Not reported.
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Respondents' Authorities.—(1.)—3. Stair, 1. 19; 1690, c. 26; Gordons v. Campbell, Jan. 1729, (14384); 3. Ersk. 9. 11.
Solicitors: A. Mundell,— Spottiswoode and Robertson,—Solicitors.
( Ap. Ca. No. 30.)