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

Bayley v Moore (1835) NSW Sel Cas (Dowling) 66; [1835] NSWSupC 98

civil procedure - succession

Supreme Court of New South Wales

Foster C.J., Dowling and Burton JJ, 28 February 1835

Source: Dowling, Select Cases , Vol. 4, S.R.N.S.W. 2/3463, p. 31

Where an administrator was sued personally for a debt of his deceased partner. Upon a declaration in assumpsit averring that the defendant had agreed with the plaintiff to refer all accounts of the plaintiff and the defendant against the estate of the deceased, and the arbitrator had awarded the debt in question due from the deceased in his life time to the plaintiff to be paid by the defendant; held on demurrer that the declaration was bad, 1st for not shewing how and in what manner the defendant bound himself to the reference, and 2nd for want of sufficient averment of consideration to bind the defendant to pay with his own proper monies.

Declaration in assumpsit stated that on 15th July 1834 &c it was agreed between the plaintiff and the defendant, who then was and is the administrator and surviving partner of C.D.M. (deceased), that all accounts of the plaintiff against the estate of the said C.D.M. and of the firm of the defendant and C.D.M. should be left to the decision of F.S. and N.A.; and the plaintiff and the defendant bound themselves to abide the decision of the said referees.

Averment that said referees did afterwards make their award of and concerning the premises and did amongst other things find and award that there remained a balance due from C.D.M. in his lifetime to the plaintiff of £40 (subject to plaintiff giving such order as is thereinafter mentioned) and did award, order and direct the payment of such balance by the defendant to the plaintiff on receiving an order assigned by the plaintiff to recover from the parties concerned the costs incurred professionally in 1832 for proceedings instituted on the behalf of E.M.B. and C.B. under the late L's will. Averment that the plaintiff did afterwards sign and deliver to the defendant such order as aforesaid and request the defendant pay him the said sum of £40 so awarded; yet defendant did not nor would when so requested &c.

Demurrer that the declaration does not set forth whether any sum of money whatever is due or owing from or by defendant in his own right to plaintiff, or whether defendant had at anytime heretofore assumed or promised to pay plaintiff the sum of £40 in writing or otherwise, or how and in what manner the defendant bound himself to abide by the decision of the said arbitrators, or whether he bound himself to pay the said sum of £40 as the administrator of the estate and effects of C.D.M. (deceased), or out of the estate and effects of the said C.D.M. (deceased), or out of his own proper monies, goods and chattels; but on the contrary thereof it appears by said declaration that said sum of £40, if any such sum was due to plaintiff, was due and owing from C.D.M. in his life time, and is due and owing from the defendant as administrator of the estate and effects of C.D.M. (deceased), and not from the defendant in his own right. And it does not appear by the declaration that the plaintiff hath any right or cause of action whatsoever in this respect against defendant in his own proper person or right. Joinder in demurrer.

Wentworth. This action is ill brought and should have been against the defendant, not in his personal capacity, but as administrator. By this mode of proceeding he is shut out of those pleas which an administrator may plead. First however, there is nothing here to shew that he has bound himself personally to pay the debt. There is no statement how he became bound. The mere statement of an agreement to refer is not sufficient. It must be shewn to have been in writing and until the contrary appears it must be taken to have been by parol, which is not sufficient. This is not like the case of Barry v. Rush (1787) [ Barry v. Rush (1787) 1 T.R. 691, 99 E.R. 1324 ] where there was a regular submission and bond by the defendant as administrator to abide the award. Here the declaration should have shewn that the defendant was bound by writing. If the defendant had bound himself by bond, or other specialty, then the simple contract merges and the plaintiff must have declared in debt. Non constat that the defendant did bind himself at all or that the arbitrator had authority to make an award which would be binding on the defendant. It is clear that mere submission to arbitration by an administrator is not an admission of assets: Pearson v. Henry (1792) [ Pearson v. Henry(1792) 5 T.R. 6, 101 E.R. 3 ]. Here the plaintiff certainly could not go beyond assets, and it does not appear that the defendant has assets. So that without shewing that the defendant has bound himself the declaration is ill.

Foster contra. Here there is quite sufficient evidence to shew that the defendant has bound himself to pay this debt personally. First there is a sufficient consideration to support the promise. The defendant is described as administrator and surviving partner. He therefore derives a benefit by having the separate and partnership accounts referred to arbitration, they being blended together. Secondly, it is not necessary to shew that the submission to arbitration was in writing; that may be inferred from what appears on the face of the declaration. If it should turn out in the trial that the agreement to refer was by bond that might be a ground of nonsuit, but there is here a sufficient statement in fact of an agreement to refer, to make the declaration well enough. An agreement in writing is just as binding as a bond under seal, and therefore Barry v. Rush does not help the defendant. If by agreeing to arbitration he has shut himself out from pleading as administrator that is his own fault. The case of Pearson v. Henrydoes not touch the present case which was that of a mere promise by an administrator to pay the debts of the testator and it turned out that there were no assets; it was nudum pactum, and would not bind the administrator. The mere submission was then well decided not to be an admission of assets.

In Worthington v. Barlow (1797) [ Worthington v. Barlow (1797) 7 T.R. 453, 101 E.R. 1072 ] Lord Kenyon said "The decision in Pearson v. Henry must be taken with reference to the facts of that case. There the arbitrator only ascertained the amount of the demand without ordering the administrator to pay it; but here the arbitrator has awarded that the defendant, the administratrix, shall pay the plaintiff's demand. The submission to arbitration by the administratrix was a reference not only of the cause of action, but also of the other question, whether or not the administratrix had assets. And as the arbitrator has awarded the defendant to pay the amount of the plaintiff's demand, it is equivalent to determining as between these parties that the administratrix had assets to pay this debt". The cases therefore are consistent.

Wentworth in reply. Supposing it not necessary to aver that the undertaking to refer was in writing, still the question of consideration for the undertaking is left untouched. This cannot be left to mere inference. If indeed it had been averred that there were mutual debts between the plaintiff and the late C.D.M., perhaps enough consideration for a personal promise binding on the defendant might be inferred to render him liable debonis propriis. Here no consideration is shewn, and therefore it is idle to go upon the naked promise.

Forbes C.J. I think there must be judgment for the defendant on both points. I think the plaintiff has not shewn sufficiently in what manner the defendant bound himself to abide by the reference. Then as to the want of consideration, I find no statement of such a connexion between the defendant and his brother, as would render him liable to pay the debt to the plaintiff out of his own proper monies. I see no sufficient statement of consideration to support the promise. I think all the cases which have been cited are reconcilable with each other.

Dowling J. and Burton J. concurred.

Judgment for the defendant on demurrer.

Published by the Division of Law, Macquarie University