Deane v City Bank of Sydney [1918] HCA 42

OF AUSTRALIA. 215

[HIGH COURT OF AUSTRALIA.]

' : fe r Fi ri . APPELLANT;

AND

CITY BANK OF SYDNEY . ._ .._ Responpents. _ PLAINTIFFS,

ON APPEAL FROM THE SUPREME COURT OF NEW SOUTH WALES.

cipal and Surety—Action on bond—Limitation of action—Acknowledgment of H.C. or A. indebtedness—Joint and several bond to secure joint debt—Payments appropriated 1918. to debt—Merger—Advancement of Justice Act 1841 (N.S.W.) (5 Vict. No.9), = Ow Sypvey,

Aug. 7, L 'Two persons already indebted to @ bank on their joint current account "9: \®

gave the bank @ joint and several bond to secure advances already made Parton, Isaacs, and which might thereafter be made to them on their joint account by the eee Held, that the debt in respect of the advances and that in respect of the bond were distinct debts, and that payments made to the bank by the debtors and appropriated to repayment of the advances were not acknowledgments by part payment of their indebtedness on the bond within the meaning of sec. Al of the Advancement of Justice Act 1841 (N.S.W.) so as to authorize the bringing of an action on the bond after the lapse of twenty years from the giving of the bond.

Decision of the Supreme Court of New South Wales: City Bank of Sydney 'y, Deane, 17 8.R. (N.S.W.), 562, reversed.

'L from the Supreme Court of New South Wales.

action was brought in the Supreme Court by the City Bank of y against Henry Deane, the plaintiffs alleging, by their that the defendant by his bond dated 11th October

H.C. or A 1918, Ses

Deane v.

Crry Bank

or SYDNEY.

HIGH COURT [1918.

1894 became bound to the plaintiffs in the sum of £9,858 to

be paid by him to the plaintifis. The writ in the action, which was set out in the declaration, was issued on 2nd June 1917, and had been specially indorsed with a claim for £5,964 2s. 11d. due on 31st December 1902 under a joint and several bond dated 11th October 1894, made between William Deane and the defendant in favour of the plaintiffs. The writ then contained an account running on from 31st December 1902 until 15th May 1905, when the balance due to the plaintiffs was stated to be £6,941 12s. 4d. From that amount deductions were made of £822 14s. as the amount of securities realized, and £20 as the amount of securities unrealized. There was then added £1 lls. Id., and a balance was shown of £6,100 9s. 5d., which sum the plaintiffs claimed. By his plea the defendant pleaded that the alleged cause of action did not accrue within twenty years before the suit. By their replica- tion the plaintiffs said that the defendant within such twenty years had made an acknowledgment in writing signed by him that the debt mentioned in the declaration remained unpaid and due to the plaintiffs, and also that the defendant within such twenty years made an acknowledgment to the plaintiffs, by part payment on account of the principal money and interest then due on the bond, that the debt mentioned in the declaration remained unpaid and due to the plaintiffs. The defendant joined issue on the replications respec- tively.