The Provincial Band of Ireland v O'Reilly and Others
| Jurisdiction | Ireland |
| Judgment Date | 21 February 1890 |
| Date | 21 February 1890 |
| Court | Queen's Bench Division (Ireland) |
Q. B. Div.
Before HARRISON, O'BRIEN, and GIBSON, JJ.
Calton v. BraggENR 15 East. 223.
Bruce v. HunterENR 3 Camp. 467.
Fergusson v. FyffeUNK 8 C. & F. 121.
Williamson v. WilliamsonELR L. R. 7 Eq. 542.
Barfield v. LughboroughELR L. R. 8 Ch. App. 1.
At-wood v. TaylorUNK 1 M. & G. 279.
Pott v. BearanUNK 8 Sc. N. R. 318.
Davies 17 Ir. Ch. R. 227.
Crosskill v. BowerENR 32. Beav. 86.
Higgins v. Sargent 2 B. & Cr. 348.
Page v. Newman 9 B. & Cr. 378.
Fergusson v. FyffeUNK 8. C. & F. 139.
Crosskill v. BowerENR 32 Beav. 86.
Graves v. Davies 17 Ir. Ch. R. 227.
Ex parte WilliamsUNK 1 Rose, 399.
Shaw v. PictonENR 4 B. & C.723.
Newell v. JonesENR 4 C. & P. 124.
Ex parte Bevan 9 Ves. 223.
Eaton v. BellENR 5 B. & Ald. 34.
Ex parte Bevan 9 Ves. 223.
Fergusson v. FyffeUNK 8 C. & F. 121.
Barfield v. LoughboroughELR L. R. 8 Ch. App. 1.
Brooks' Case 9 App. Cas. at. p. 889.
Atwood v. TaylorUNK 1 M. & G. 279.
Crosskill v. BowerENR 32 Beav. 86.
Graves v. Davies 17 Ir. Ch. R. 227.
Calton v. BraggENR 15 East. 223.
Graves v. Davies 17 Ir. Ch. R. 227.
Pott v. Beavan 8 Scott. N. R. 318; 1 C. & . 335.
Barfield v. LoughboroughELR L. R. 8 Ch. App. 1.
Crosskill v. BowerENR 32 Beav. 86.
De Havilland v. BowerbankENR 1 Camp. 50.
Ikin v. BradleyENR 2 Moore, 206.
Bate's CaseENR 32 Beav. 73.
Crosskill v. BowerENR 32 Beav. 86.
M'Carthy v. Lord Fermoy Not reported
Graves v. Davies 17. Ir. Ch. R. 227.
Eaton v. BellENR 5 B. & Ald. 34.
Banker and customer — Implies contract — Interest on overdraft due at death of customer — Accounts charging compound interest with half-yearly rests.
Vot. XXVI.) Q. B. & EX. DIVISIONS. 313 THE PROVINCIAL BANK OF IRELAND v. O'REILLY Q. B. Div. AND OTHERS (1). 1890. Feb. 1, 21. Banker and customer-Implied contract-Interest on overdraft due at death of customer-Accounts charging compound interest with half-yearly rests. An action was brought by a Banking Company against the defendant, as executor, to recover principal and interest on his testator's overdraft of his curÂrent account. For several years the testator dealt with the Bank, and was in the habit of overdrawing his account. The testator's account, as furnished to him from time to time during his lifetime, charged. him with compound interest on his overdrafts, with half-yearly rests in March and September. He died on the 3rd December, 1880. At his death the period for capitalizing the interest current from the last statement of accounts had not arrived : Held (diss. Harrison, J.), that the Bank were entitled to six years' simple interest on the amount due at the customer's death until paid. Graves v. Davies (17 Ir. Ch. IL 227) considered. Tins action was originally commenced against Terence O'Reilly, executor of John William Russell, deceased, and the writ of summons (issued the 23rd March, 1888) claimed £120 15s. ld., balance of principal and interest due on foot of the account current of the said John William Russell, the particulars being as follows : 1879. Sept. 27. Amount due on this date on foot of account current of deceased, • • • .. • • £316 11 11 1880. Dec. 3. Interest on same to this date, at 5 per cent., .. .. 19 4 8 £335 16 7 1888. Jan. 24. Interest on £335 16s. 7d. to this date, at 5 per cent., 119 15 1 £455 11 8 Jan, 24. By cheque from defendant, .., 335 16 7 £119 15 1 Mar. 3. Interest on £119 15s. ld. to this date, .. .. 1 0 0 £120 15 1 (1) Before HARRISON , O'Bunu, and GIBSON, JJ. VOL. XXVI. 2 A Q. B. Div. The original defendant, Terence O'Reilly, was sued as ex 1890. ecutor of the said John William Russell. PROVINCIAL Theplaintiffs delivered their statement of claim on the 25th BANK V. April, 1888, which claimed £120 15s. ld., being the balance O'REILLY. due by the defendant, as executor of John William Russell, for money lent by the plaintiffs to the said John William Russell, and money paid by the plaintiffs for the said John William Russell, and for interest upon money due to the plaintiffs from the said John William Russell, and forborne at interest, and for money due on accounts stated between the plaintiffs and the said John William Russell. In the alternative they claimed the same balance as money lent, &c., to the defendant as executor of John William Russell, and for interest upon money due to the plaintiffs from the defendant as such executor. The defences were traverses and payment on the 24th January, 1888, of £335 16s. 7d. in full discharge of plaintiffs' claim, upon. which issue was joined. The defendant died on the 17th May, 1888, and by order of the 16th July, 1888, the action was continued against Mary O'Reilly, his executor, who died on the 28th July, 1888, when by order of the 2nd July, 1887, the action was continued against Terence O'Reilly and Michael O'Reilly, her executors. The action was tried before the Lord Chief Baron, without a jury, in the Trinity Sittings, 1889. Mr. St. George, the plaintiffs' manager at Parsonstown, was the only witness examined. He proved that Mr. Russell had been a customer of the Bank from 1863 to the time of his death in 1880. Mr. Russell signed from time to time admissions of his accounts. Interest was always charged when there was an overdraft. The account was produced, from which it appeared that during Mr. Russell's lifetime interest was charged, with half-yearly rests. It was not disputed by the plaintiffs that the sum of £335 16s. 7d., which was the sum due to them for principal and interest by Mr. Russell at the time of his death, was discharged by Mr. O'Reilly on the 24th January-, 1888, but they claimed interest on this sum up to the time of payment, and their right to such interest was the only question in dispute in the present Vot. XXVI.] . Q. B. & EX. DIVISIONS. 315 action-the defendants contending that the accounts of the said Q. B. Dir. John William Russell ceased to bear interest from the date of his 1890. death. A considerable correspondence between the manager and PROVINCIAL BANK Mr. O'Reilly was put in evidence. The manager also proved that v. Mr. Murphy, who died in 1881, and was co-executor of Mr. O'REILLY. Russell with Mr. O'Reilly, promised to pay the debt and interest. This latter evidence, however, was not relied upon by the Lord Chief Baron, nor did his Lordship consider it necessary to rely upon the correspondence. He held that the payment of interest in the lifetime of Mr. Russell was evidence of a contract to repay the overdraft with interest, and that, accordingly, simple, though not compound, interest was payable, and therefore found a verdict for the plaintiffs for six years' simple interest, at five per cent., which was admitted by the parties to amount to £119 15s. id. His Lordship reserved leave for the defendants to move to change the verdict into one for them, if the Court should be of opinion that the action was not sustainable. The defendants having obtained a conditional order The Right Hon. S. Walker, Q. C., and J. H. Moore, for the plaintiffs, showed cause : Irrespective of any questions arising upon the correspondence or of the express promise by the co-executor of Mr. O'Reilly, the course of dealing between Mr. Russell and the Bank during his lifetime showed that overdrafts were to bear interest. From this a promise to pay interest on advances may be implied ; for had interest been refused the Bank would of course have called upon the customer to close his account. The right to simple interest from the customer's death till payment is not inconsistent with comÂpound interest having been charged, and admitted during his lifeÂtime : Calton v. Bragg (1) ; Bruce v. Runter(2); Fergusson v. Fyffe (3); Williamson v. Williamson (4) ; Barfield, v. Loughborough (5) ; AtÂwood v. Taylor (6) ; Pott v. Bearan (7). The defendants chiefly relied at the trial upon Graves v. (1) 15 East. 223. (5) L. R. 8 Ch. App. 1. (2) 3 Camp. 467. (6) 1 M. & G. 279. (3) 8 C. & F. 121. (7) 8 Se. N: R. 318. (4) L. R. 7 Eq. 542. - 316 LAW REPORTS (IRELAND). [L. R. I. Q. B. Div. Davies (1) ; but that case proceeded mainly upon the authority of 1890. a new dictum in Crosskill v. Bower (2). It has been followed neither PRBANK OTIN CIAL in any rep yorted case nor in practice at Chambers in the Chancey V. Division. On principle and authority this was plainly an interest O'REILLY. bearing debt. J. B. Murphy, Q.C., and Roche, Q. C. (with them W.F. Kenny), for the defendants : Mr. Russell's debt to the Bank, whether for principal or inÂterest, at the time of his death ceased upon his death to bear interest. Graves v. Davies (1) is a distinct authority in favour of the defendants, and it has never been overruled or even quesÂtioned. See also the judgment of Romilly, M.R., in Crosskill v. Bower (2). There was no evidence of contract or usage entitling the Bank to such interest. The only admission of liability to interest by the deceased was to compound interest with rests. This admittedly ceased to be chargeable when the account was closed by his death. The mere relation of lender and borrower does not include liability to interest. [They also cited Higgins v. Sargent (3) ; Page v. Newman (4) ; Coote on Mortgages, Ed. 1884, p. 943 ; Grant on Bankers, 4th Ed. p. 199]. Cur. adv. volt. Feb. 21. The judgment of HARRISON, J., was read by GIBSON, J., as follows : I am of opinion that the verdict and judgment in this case should be entered for the defendant, pursuant to the leave reserved at the trial. It was admitted during the argument that the case of Graves v. Davies (1) was...
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