18:0. 7. FYFFE. account, and other special circumstances of this case, FERGUSSON distinguish it from the cases of Hart v. Alexander (r) and Thompson v. Perceval (s), in which the retiring partners were held to be discharged because the creditors so dealt with the continuing partners as to raise an inference that they accepted them as their sole debtors. But in this case there was no dealing on the part of the creditor; he was incapable of doing any act which could be construed to be a discharge: at what time he became insane is not material, as the account rendered in 1812 fixed all the partners of the firm subscribing that account, with the debt. The Scotch prescription to written instruments, being 40 years, does not bar, nor was it pleaded as a bar to this action, which was brought within 24 years from the date of the account rendered. Neither do the English statutes of limitations, 21 James 1, c. 16, or 4 Anne, c. 16, apply for the latter could not take effect unless all the parties were in this country, Rhodes v. Smethurst (t); nor the former until six years after probate or administration taken out in this country to the deceased creditor; Murray v. The East India Company (u), Douglas v. Forrest (x). The obligations of a contract are to be expounded by the law of the country in which the contract is made or is intended to be performed, but the mode of enforcing it is governed by the lex fori, the law of the country in which it is sought to enforce it; Mr. Justice Story on the Conflict of Laws (y); Don v. Lippmann (z). There is a case, Bulger v. Roche, to the same effect, in Pickering's American Reports (a). There is no dif (r) 2 Mees. & W. 424. (y) Section 582. (2) 5 Clark & F. 1; and 2 Sh. & M. 682. (a) Vol. 11, p. 36. ference between the laws of England and Scotland as to the obligatory nature of this contract. On the questions as to the interest, the Appellant contends, first, that he is not to pay any interest ; secondly, that he is not to pay 9 per cent.; and lastly, that he is not to pay compound interest. It must be assumed from Fairlie's letter transmitting the account, that his firm was to pay interest as long as they held Dr. Fyffe's money; and they have held the money to this time. In the account, the interest is calculated from 1787 to 1810, sometimes at 10, sometimes at 12, and sometimes at 9 per cent.; and the last balance is expressly stated to bear interest at 9 per cent. That was then the Indian rate of interest, and that they expressly contracted to pay; and if any interest is payable, that is the proper interest; Keble v. Graham (b). The house in India could have got rid of interest by paying the debt upon the death of Dr. Fyffe, according to his will, of which they were executors; but they preferred to keep the money, and accordingly agreed to pay interest. It appears by the docqueted account, that for 17 years previous to Dr. Fyffe's death, interest was paid on the annual accumulations. How can they object to pay the like interest from the time of his death? Clearly the judgment appealed from is well founded, in regard to the allowing of annual accumulations down to the date of citation in the action. Such accumulations are uniformly allowed on the one hand, and charged on the other, by such Indian houses as that of Fairlie, Fergusson & Co. ; such was the practice of the Appellant's house itself, as appears from the docqueted account embracing the period from 1787 to 1810; and the Court of (b) 4 Wils. & S. 166. 1840. FERGUSSON T. FYIFE. 1810. Session have uniformly allowed such accumulations FERGUSSON in similar cases. v. FYFFE. 1841: May 4. Mr. Pemberton, in reply, denied the proposition of law, that the statute of limitations of Anne does not take effect unless all the partners are in this country. If the Appellant was ever liable to this debt, that statute put an end to his liability. There was no authority for holding the Appellant alone liable, in the absence of his partners. The case of M'Tavish v. Lady Saltoun did not sustain that proposition. No proceedings can be taken in equity against one partner alone: and to an action at law, he may plead in abatement that he is one of several partners, and does not choose to be sued alone. If the law of England is to govern this case, the Appellant cannot be alone sued on this account; and if the law of Scotland is to be applied, it does not in this respect differ from the law of England. As to interest, there is no contract to pay any interest; and without contract there is no ground for the claim of compound interest. The Lord Chancellor :-Dr. Fyffe, who resided in Calcutta, in the year 1786 opened an account with the then firm of Fergusson & Fairlie, and continued it with Fairlie, Reid & Co., which was the firm adopted by the house upon a change of partners in 1790. On the 1st of May 1793, the Appellant was admitted a partner into the firm of Fairlie, Reid & Co., and continued a partner in the business from that time till 1820, when he retired; the house having in 1795 assumed the style of Fairlie, Gilmore & Co., and in 1810 that of Fairlie, Fergusson & Co., and in 1818 that of Fergusson, Clark & Co. Mr. Fairlie, who was a partner when the Appellant was admitted in 1793, continued to be so till 1818. Throughout all the changes of partnership, the account of Dr. Fyffe was carried on in the books of the new firm; and it was a debt appearing upon the books of the several firms of which the Appellant was a partner, during the whole period of his continuing in the house. It seems to have been assumed by both sides that in 1793 Dr. Fyffe became non compos mentis, and that he so continued till his death on the 9th of May 1810; but as to the precise time at which his insanity commenced, or any circumstances connected with it, I find no evidence. It does not appear that any proceedings were adopted for appointing others to act in his affairs on account of his lunacy, and he was during all this time in India, and the agency house at Calcutta continued to deal with his funds as they had done before the period of his alleged insanity. It would therefore be extremely difficult, under any circumstances, for the agency house to support a case for withdrawing from their customer any benefit, to which their mode of keeping the account would have entitled him if there had not been any question as to his sanity. In the present case, I think the house is, at all events, precluded from so doing. In 1812, one of the then partners in the house, in which the Appellant was also at the time a partner (in answer to an inquiry made by a person claiming to be interested in the estate of Dr. Fyffe), communicated the statement of account as made up in the books of the firm up to the 30th of April 1810; by which a balance of sicca rupees 17,346. 5. was made to be due to him, and to which was appended this note: "To bear interest at 9 per cent. per annum." The letter which enclosed it bore date the 5th of July 1841. FERGUSSON v. FYFFE. 1841. FERGUSSON v. FYFFE. 1812, and was in these words: "I now enclose you Mr. Charles Fyffe's account from its commencement, which I received some time ago from Calcutta: the balance at 30th of April 1810 was rupees 17,346. 5.; chiefly arising, you will observe, from the high rate of interest allowed upon it." Administration to Mr. Charles Fyffe was not obtained till 1835; but nothing was done in the meantime to affect the relative situation of the firm and of his estate; and the administrators, by their summons, assume the account as stated by the firm, and no error or mistake in that account is now established: it is therefore much too late for the house to say that they allowed too high a rate of interest up to the 30th of April 1810, or computed it in a manner too favourable to their customer. I think, therefore, that the amount of debt due by the firm to the estate of Mr. Charles Fyffe has been correctly assumed to be 17,346. 5. sicca rupees, on the 30th of April 1810. At what rate interest ought to be computed from that date, and whether with accumulations or not, remains to be considered. It was said that William Fairlie wrote a prior letter to the same person on the 23d of March 1812, stating that the interest of money had fallen greatly in Bengal, and that 7 per cent. was then the highest rate allowed: but that letter, although set out in the summons, is not admitted by the Appellant, and has not been produced or proved; and if it had, it could hardly supersede the memorandum at the foot of the account sent on the 5th of July following. But then it was said that the figure "9," in the memorandum, was written on an erasure. The account to which that memorandum is appended purports to be an account current signed by the firm; |