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Decisions of the Superior Courts of New South Wales, 1788-1899

Lord v Wentworth [1832] NSWSupC 90

succession - Wentworth, D'Arcy - laches - statute of limitations - equity, laches

Supreme Court of New South Wales

Forbes C.J., Stephen and Dowling JJ, 17 November 1832

Source: Sydney Herald, 22 November 1832

 

in equity.

Lord v. Wentworth. - This was a bill of discovery filed against the executors of the late D'Arcy Wentworth, Esqr, to render an account of the trading transaction during 1804, 5, and 6, between plaintiff and him.  The Court were of opinion, that from the length of time which had elapsed, and considering that the testator was the only person who could throw light on the affairs, the part of the decree to account would be in-operative.  They thought that the bill should be dismissed, and having reference to the laches of the plaintiff in not bringing the matter before the Court during the life time of the testator, that it should be dismissed with costs.  At the same time, they were of opinion, that all bills and other securities in the hands of the executors, relative to the trading transactions, and to the recovery of which, the statute of limitation would be a bar, should be delivered up; with respect to the other securities, a reference must be made to the master whether they ought or ought not to be delivered up.

 

Forbes C.J., Stephen and Dowling JJ, 18 November 1832

Source: Dowling, Proceedings of the Supreme Court, Vol. 78, Archives Office of New South Wales, 2/3261

 

[p. 150] Dowling J. - Decree agreed to by Forbes C.J. & Stephen J.[1 ]

This was a bill of discovery filed against the executors of the late D'Arcy Wentworth Esq. praying that the defts might be decreed to account with the Plf touching and concerning a trading partnership which had subsisted between the plf and the testator during the years 1804 & 1806.

The Bill and answer are of enormous length.  We have carefully considered the whole matter thereof, and are of opinion, that having reference to the length of time which has elapsed since the transactions set forth in the bill and considering that the testator himself is the only person who could have thrown any light upon his side of the partnership accounts, that part of the prayer of the bill which prays a decree to account, would be wholly inoperative if granted, and that we ought not now to [p. 151] rip up transactions which, as appears by the defts answer, to have been so long suffered to slumber, through the alleged laches of the Plf himself.  The deft relies upon the statute limitations as an answer to the Bill.  On the other hand the Plf. relies upon certain admissions within 20 years, as sufficient to take the case out of that statute.  Without, however, dwelling upon this point of the case, but seeing the impossibility of enforcing a decree to account against Executors under the involved & inexplicable circumstances disclosed in the Bill and answer, now that the testator, who alone could explain the transactions between him & the Plf., is dead we think that this Bill should be dismissed, - and we think also that having reference to the laches of the Plf, in delaying to bring these matters to a termination, during the life time of the testator, laches which have very unsatisfactorily accounted for, the Bill ought to be dismissed with costs.  At the same time we think we [p. 152] ought, under all circumstances, with a view to quietude, to direct the Executors to deliver up to be cancelled, all Bills, and other securities of the Plf remaining in their hands relating in any way to the partnership affairs, to which the statute of limitations would be a bar in an action at law.  It may be referred to the Master to ascertain what these bills & securities are, in order that this part of our direction may be carried into effect.

With reference to other certain outstanding collateral securities not relating to the partnership upon which there is some contradictory averments in the bill & answer, they must become the subject of reference, to ascertain whether they are such as ought to be given up - provided the parties cannot agree between themselves, in the way of amicable adjustment, as to what ought to be done.

 

Notes

[1 ] Marginal note in manuscript: ``Argued before the 3 Judges 27 July 1832."

Published by the Division of Law, Macquarie University