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of firms, down to the year 1820. The firm of Fergusson & Fairlie, with which the deposit was made. and the successive firms of Fairlie, Reid & Co., and of Fairlie, Gilmore & Co., in whose names the account current with Dr. Fyffe appears to have been made up, have been all dissolved many years ago. Now the argument of the Respondents is that the next succeeding firm of Fairlie, Fergusson & Co. received the monies and took the liabilities of the preceding firm by arrangement between them ; but there must be not only knowledge, but also the assent, of the customer to that arrangement; Hart v. Alexander (a). - In the changes of banking firms, a customer does not, by continuing his money, and receiving interest on it from the new firm, consisting of some of the members of the dissolved firm, release the other members of the dissolved firm from liability; Gough v. Davies (6), Kirwan v, Kirwan (c). It is not sufficient that the creditor has notice of the change of partners; Heath v. Percival (d), Gow on Partnership (e); to effect such a release there must be a contract or assent, tacit or expressed, which was impossible in the case of Dr. Fyffe, whose insanity commenced about the time the Appellant entered into the partnership in 1793. But it is said that although the assent of the customer in this case was wanting, still, as his money continued with the succeeding firm, the liability of the old firm ceased, and attached on the new firm. If that argument be available, then it follows that the liability of that firm also ceased on the succession of the next, and so on through the successive changes of partners and firms until the

(a) 2 Mees. & W. 484.

(d) 6 P. Wms. 682. (6) 4 Price, 200.

(e) Pp. 201. 242, 243. (c) 2 Cromp. & Mees. 617; S. C. 4 Tyrw. 491. VOL. VIII.


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Appellant retired, leaving the firm of Fairlie, Clark & Co., the continuing members of which firm, alone, became liable. On the supposition that the money of Dr. Fyffe passed to the different firms in succession, the Appellant would be liable while he had any control over the money ; but having ceased to have such control by retiring from the firm, he ceased to be liable. He was not a member of the house when the deposit was made in 1786, and when the claim was made in 1833 he had ceased to be a partner; in no sense, therefore, can he be held liable to this demand.

This claim having arisen from dealings in India, between parties residing there, the law of England, which governs contracts in our Indian territories, is alone applicable to those dealings, and by that law this action is barred by lapse of time. The deposit was made in 1786 ; Dr. Fyffe's insanity commenced in 1793; more than six years had expired from the cause of action accruing, and the statute of limitations began to operate. It is an established rule that if the statute begins to run against a claim, there can be no suspension or interruption of it afterwards ; its march cannot be arrested by death, departure from the realm, nor insanity ; Rhodes V. Smethurst ($). The cases of Murray v. The East India Company (g), and Douglas v. Forrest (h), may be cited for the Respondents on this point; but they do not apply to the circumstances of this case, the right of action in both of them not having arisen until after the deaths of the respective parties. The operation of the statute was not affected by William Fairlie's letter enclosing the account to J. Fyffe, in 1812. That was his individual act; and even if it imposed on him an obligation to pay this debt, his absent partners were not, and (f) 4 Mees. & W. 42,

(h) 4 Bing. 686. (g) 5 B, & Ald. 204.



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certainly an individual partner was not, bound by his undertaking. But the letter contained no offer to undertake such an obligation, and there was no acceptance by the Respondents of such an offer.

But assuming this debt to have existed, and that the Respondents are entitled to sue for it, the Appellant submits with confidence that they are not entitled to the interest they claim. The figure 9 in the account is evidently written on an erasure; and in Fairlie's first letter to J. Fyffe, as the Respondents have alleged, the rate of interest in India was stated then to be 7 per cent. But the first question here is, are the Respondents entitled to any interest ? Originally the payment of interest was by way of punishment for nonpayment of the debt. In this case, from the death of Dr. Fyffe in 1810 (indeed from the commencement of his insanity in 1793), until administration was taken out in 1835, there was no person to whom the debt could be safely paid. How then can the debtor be made liable to punishment in the nature of interest? In Murray v. The East India Company, it was contended for the defendants that the plaintiff could not recover interest upon the bills beyond the date of the first letters of administration, “ for it would be hard upon an acceptor to be charged with interest where he was ready to pay the money, and there was no person authorised to receive it (i) :” upon which Chief Justice Abbott observed that the calculation of interest must begin “ from the time of the demand of payment by the first administrator, and not sooner (k).” There was no demand of this debt from 1793 to the time of bringing this action. Dr. Fyffe was not competent to demand it, or give a discharge for it, and there was no per() 5 Barn. & Ald. 211.

(k) Id. 217.

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sonal representative till 1835. If it be said that the firm used the money, and turned it to profitable account, and therefore they ought to pay interest, the answer is, that there is no proof that the firm made any use of the money; and certainly the Appellant, who retired in 1820, could not have since made use of it. On these grounds, and on the authority of Murray v. The East India Company on this point, it is submitted that no interest is payable on this debt.

The claim made in the supplementary action to compound interest would seem to be favoured by the Scotch case Palmer & Co.'s Assignees v. Glas(1); but this being a question of interest on a transaction in India, it must, like the transaction itself, be governed by English law, which does not, in a case like this, allow compound interest; Ex parte Bevan(m). The Respondents did not claim this interest, or any other than legal interest, in the summons in their first action. It was an afterthought to claim interest on the annual accumulations of interest. The Lord Ordinary was startled at this claim, and refused to allow it, but the Judges of the First Division conceived that the claim was sustained by the decisions. The only decision that can be found in favour of it is Palmer & Co.'s

sionees v. Glas (n); while several cases, including Keble v. Graham's Trustees (o), finally decided in this House, are opposed to it.


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Sir William Follett and Mr. G. Richards, for the Respondents :-No appeal lies against the Lord Ordinary's interlocutor of the 10th of July 1839, because the Appellant, by not bringing it under review of the Inner House, must be taken to have acquiesced in it; and in such circumstances an appeal to this House is

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excluded by the 15th section of the Judicature Act, 48 Geo. 3, c. 151.

With respect to the existence of the debt, and the Respondent's right of action, the opinion of the English counsel taken on the joint case, raising questions of English law, as suggested by the Court below and adjusted by the parties, most satisfactorily disposed of these questions in favour of the Respondents; and, according to that opinion, this House, though not bound by it, will unquestionably hold, that the debt sued for was sufficiently constituted against the Appellant's company by the account signed by the company, and transmitted in the Appellant's letter to Mr. James Fyffe; and also that the right of action was not barred by the English statutes of limitations. The Appellant became a partner in the Indian banking and agency house in the year 1793, and continued a partner through the several successive changes to the year 1820. There was no release of any of the partners; Gough v. Davies (p). The money of Dr. Fyffe was retained and used by the firms during the whole of the time that the Appellant was a partner. One of those firms rendered and subscribed an account current in 1812, making up the interest at different rates on the yearly balances, and agreeing to give 9 per cent. for the future on the balance struck in 1812. Upon that account alone the Appellant was unquestionably liable. No act was done by the creditor to discharge him. It is apparently a hardship on the Appellant to be alone held liable for this debt, but that is the law; M*Tavish v. Lady Saltoun (9). It is only an apparent hardship, because the firm in India is liable to indemnify him. The subscribed

(p) 4 Price, 200.

(9) Fac. Coll. 3 Feb. 1821.

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