United Kingdom House of Lords Decisions

Henry Anderson and John Sutor carried on, in the Island of Grenada, a partnership as builders and masons; and the question was, whether a plantation in Demerara, called Prospect Estate, belonged to the partnership equally, or to Henry Anderson, one of the partners, as an individual.

Both partners were now dead, and their estates in the hands of executors and their administrators appointed by will.

The executors of Henry Anderson had acted upon the footing that the Prospect Estate exclusively belonged to Henry Anderson, and had actually settled with the executors of Mr Sutor, as was evidenced by an account current between the executors and Anderson's estate, bringing out a balance as due Sutor's executors of L.2238, which was paid and settled without any reference to the Prospect Estate in the account, but, which was made out on the footing that he had no interest therein. Matters stood thus, until, after the distance of fifteen years, a claim was made by the respondent to an equal share of it as partnership funds and effects. It was stated in answer that there was a settled account signed by Mr Innes, one of the executors of Mr Sutor, which put an end to the present claim.

The chief evidence produced to show that the Prospect Estate belonged to the partnership, consisted of a power of attorney, signed both by Henry Anderson and John Sutor, the partners, wherein they empowered Joseph Innes “to see and dispose of our just and equal half share of the cotton estate aforesaid called Prospect,” and to uplift all debts due to the copartnery. There were also letters and correspondence which established that the interest which Mr Sutor had in the Prospect Estate, was only a third share.

Dec. 23, 1809.

May 14, 1811.

The Lord Ordinary found that one-half of the Prospect Estate was partnery concern, and belonged to them in the proportion of two-thirds to Mr Anderson, and one-third to Mr Sutor. On reclaiming petition, the Court pronounced this interlocutor:—

“Adhere to the interlocutor of the Lord Ordinary reclaimed against, in so far as it finds that the land property of the Prospect Estate in Demerara was a company concern, and held in the proportion of two-thirds as belonging to Henry Anderson, and one-third belonging

Page: 80↓

to John Sutor; and remit to the Lord Ordinary to proceed accordingly.”

Against these interlocutors the present appeal was brought to the House of Lords.

Pleaded for the Appellant.—It appears from an account current produced, that this account was settled by Joseph Innes, the executor, as well of the will of Sutor as of Anderson, on the 15th July 1797, and a sum of L.2238 currency, was then paid to Innes, upon the footing that Sutor had no concern in the Demerara Estate, which settlement, if it could be opened up after the lapse of so many years, could only be upon evidence of the strongest kind; but it is admitted by the respondent himself, that the evidence upon which he relies is neither full nor direct, nor is it sufficient to establish his right, even if it were now open to discussion, while, on the other hand, there is evidence sufficient to negative the claim he now makes, which, if it could have been supported, it is impossible to believe would have been so long delayed.

Pleaded for the Respondent.—The only point in dispute is the simple fact, Whether the purchase and possession of one-half of the plantation called Prospect, in Demerara, was or was not a purchase and possession by the partnership or society of Anderson and Sutor; and, consequently, for the material behoof of the two partners, in the same proportions in which the other profits arising from their partnership, were divided? And of the affirmative of this fact, there is sufficient reasonable evidence produced in a matter where the locus contractus was distant, and as to which the period is remote. Nor is the weight of the evidence to be diminished, but, on the contrary, it is to be more highly esteemed, when it is considered that the poverty of the respondent, and the distance of his residence, have given to William Henry Anderson a very decided advantage, in the recovery of documents, and in the investigation of truth, he, Mr Anderson, having himself been in the West Indies during a considerable part of the progress of the litigation, while the respondent was confined to the north of Scotland.

After hearing counsel,