Bancroft v. Bancroft

Bancroft v. Bancroft

Summary

Case brought by James Bancroft and William and Josiah Gregory against Robert Bancroft the brother of James. James and Robert were in copartnership in a dyers business in Salford between 1787 and 1789. The case revolves around a dispute over the paying off of Robert when he left the business and whether or not he was recieved certain sums of money. The fact that the Bancrofts are brothers is not mentioned in the complaint but is brought up by Robert Bancroft in his answer when he plays on the idea that there should be trust between brothers which, he claims, is why he did not keep a closer check on the accounts.

Transcription

Humbly complaining.... your orator James Bancroft of Salford in the parish of Manchester in the County of Lancaster Dyer William Gregory of Salford aforesaid Shopkeeper and Josiah Gregory of Banktop near Manchester Shopkeeper.... that for several years previously to and down to the twenty ninth day of September last when such partnership was dissolved as after mentioned a partnership in the trade or business of a dyer was conducted and carried on by and between your orator James Bancroft and Robert Bancroft of Salford aforesaid dyer the defendant also named in equal ? and on or about the twenty ninth day of September last the said partnership business was dissolved and put to and end by your orator James Bancroft and the defendant Robert Bancroft by mutual consent and the said partnership business was then agreed and in future intended by the partner to be carried on by and between your orators James Bancroft and William Gregory as copartners and that the defendant Robert Bancroft his heirs executors admins and assigns should be by your orator indemnified of from and against all such costs damages losses and expenses as the defendant Robert Bancroft and his heirs executors admins and assigns should or might pay bear lay and sustain expend or be put ? For on by reason or means or on account of any maker or thing relative to the said partnership concern after the 29^th day of September last and that they or one of them their or one of their heirs execs or admins should pay unto the said Robert Bancroft ... the sum of two hundred and forty pounds residue of a sum of £393.2s.11d the part and share of the said defendant Robert Bancroft in the said partnership concern and business on and before the 25^th day of March last and by the said bond or writing obligatory is now in the custody or power of the defendant and for greater certainty as to the particular and contents thereof your orators crave leave to refer thereot when the same shall be produced to the court ... the said defendant Robert Bancroft always during the same co-partnership of your orator James Bancroft and him received and paid all monies for and on account of the said co-partnership business between them and kept the books of account thereof and of the parnership dealings between them and had the entire care and management of the departments in the said co-partnership concern and your said orator James Bancroft had nothing to do therewith and he knew nothing of the aforesaid matters and dealings between him and the said Robert Bancroft except from the accounts the said Robert Bancroft declared and gave to him thereof and your orator relied entirely on such accounts of the said defendant Robert Bancroft being in every respect fair and full accounts without ever having ever compared examined or inspected the same in any manner and and under that idea and that the said defendant Robert Bancroft had fully and fairly accounted with your said orator for his moeity of all the monies received and paid for and on account of the said copartnership business and dealings bewteen them your orator executed the aforesaid bond which is in the custody of the defendant and whereon the defendant hath brought such action against your orators as aftermentioned and your orators have since the executing of the aforesaid bond discovered and found out that the said defendant Robert Bancroft during the co-partnership bewteen him and your said orator did from time to time receive divers sums of money for and on account of the said copartnership business between them and had and took to and for his own the divers goods matters and things of and belonging to the said partnership concern between them amouting in the whole to the sum of £153.9s.8d and hath not in any manner accounted with your said orator for the said moiety (being £76.14s.10d) of the said monies and goods so held and taken by the defendant nor fixed or satisfied any thing to your orator in respect thereof and your orator have also discovered and found and since the time aforesaid that your said orator hath been wrongfully and improperly charged and debited in account with the defendant with the whole of certain accounts and other matters amounting to £181.11s.1d instead of being as he ought to have been charged with a moiety thereof only amounting to £90.15s.6d and the said defendant Robert Bancroft ought to be charged and debited with the other moiety thereof and your orator have credit against him for the same and your orator hath been wrongfully charged and accounted with the defendant with the sum of £17.2s.6d in respect of the principal monies and interest of a note of hand given by the defendant to one Richard Walker and with which your orator James Bancroft had nothing to do and he ought not to have been charged and debited with any part thereof and the whole thereof ought to be allowed to your orator by the defendant the said note having been entered into by the said defendant in his private and separate account only and the monies thereby secured and reserved for and had and received by the said defendant Robert Bancroft to and for his seperate and private use only and not otherwise and your orator had no part of the money secured by the note and he devised and received no benefit or advantage from and your orators have in the schedule hereto and which they pray may be taken as part of this their Bill of Complaint and be answered by the defendant accordingly set forth an account of the several sums of money and goods so had and taken by the defendant amounting to £153.9s.8d and not accounted for by him to your said orator and of the several discounts and other matters amounting to £181.11s.1d of the whole whereof instead of a moiety only your said orator hath been charged and which moiety the defendant ought to give your orator credit and the said schedule is in all respects a fair and true account of the said matters and dealings therein mentioned and there are many other articles and particulars in the accounts and dealings between your orator James Bancroft and the defendant to a considerable amount and value under the same or the like circumstances as these mentioned in the said schedule and which have not been in any manner accounted for to your orator James Bancroft and which ought to be accounted for by the defendant to your orators ... the defendant did not at any time upon the executing of the said bond disclose or make known to your orators that there were the aforesaid of any other articles or particulars in the accounts or dealings between the defendant and your said orator which had not been acccounted for and ought to be accounted for by the defendant to your orator but the defendant did suppress and conceal the aforesaid matters and dealings from your orators and your orators were by the defendant persuaded and made to believe and did believe that the defendant had justly and fairly accounted for all the matters and dealings bewteen him and your said orator James Bancroft at the time your orator executed the said bond and your orators have been decieved and imposed on by the defendant in that respect and your orator ought to be at liberty to be set off and ? From the monies secured by the said bond the several articles and particulars of £26.14s.10d £90.15s.6d and £17.2s.6d making together £184.12s .10d and every article and particular in the accounts and dealings between your orator and the said defendant under the like circumstances and which have not been accounted for and ought to be accounted for by the defendant to your said orator and after making a ?discretion and allowance from the monies secured by the aforesaid bonds for the said £184.12s.10d there ? From your orator to the defendant on the said bond the sum of £54.7s.2d only and no more and the defendant hath the books accounts receipts papers and writings relating to the matters aforesaid and dealings between your said orator and him in his custody and power and he doth know and in his conscience believe that there are the aforesaid and many other articles and particulars in the accounts and dealings between your said orator and him which have not been and ought to be accounted by him to your orator and he ought to set forth on account thereof in the best manner his is able and your orator hath indemnified and saved ? The said defendant from all the costs charges levies and expenses mentioned in the said bond and in every other respect performed the condition thereof and your orator further shew that since they have obtained such discovery as aforesaid your orators caused a regular account to be drawn out and delivered to the defendant of the several articles and particulars mentioned in the said schedule amounting to £184.12s.10d which have not been and ought to be accounted for by the defendant to your said orator James Bancroft and represented to the defendant that they had been decieved and imposed upon by him in regard thereto and defrauded thereof and they ought to be at liberty to set off and be allowed the same against the monies secured by the said bond and your orators have frequently both before and since the defendant commenced the action against your said orators upon the said bond applied to the defendant and requested of him that he would out of the monies secured by the said bond set off and allow unto your said orators the said articles and particulars amounting to £184.12s.10d and other articles and particulars under the like circumstances in the accounts and dealings between the defendant and your orator and which have not been and ought to be accounted for by the defendant to your orator James Bancroft and tended and offered to pay to him the sum of £55.7s.2d (which after setting off and allowing unto your orator the monies secured by the said bond the aforesaid sum of £184.12s.10d) is all the monies due from your orators to the defendant after the said bond and your orators respectfully offered to leave all matters in question and dispute between the defendant and them to arbitration and your orators well hoped that the defendant would have complied with such your orators requests as in equity and justice he ought to have done But now... the said Robert Bancroft combining and confederating...contriving to oppress and injure your orator in the premises he the said Robert Bancroft not only absolutely refuses to comply with your orators said requests but insists upon your orators but paying to him the whole monies secured by their said bond without setting off or allowing to them what is due from to your orator James Bancroft for and respect to the aforesaid articles and particulars which hath not been and ought ? By him to be accounted for to your said orator James Bancroft and the said Robert Bancroft hath actually commnenced an action at law against your orators in his Majestys Court of Kings Bench at Westminster upon the said bond and threatens to proceeed to judgement therein and take out execution thereon for the whole monies secured by the said bond and to commence other actions and to proceed in some other manners at law against your orators touching the premises without setting off or allowing to your orators the aforesaid monies due to your said orator James Bancroft and unaccounted for by the defendant But why the defendant so insists he refuses to discover and he ought to be restrained there from all which actings and doings of the defendant are contrary to equity and good conscience and tend to the wrong and injury of your orators in the premises in consideration whereof and for as much as your orators cannot be fully retrieved in the premises without the aid and assistance of a court of equity...

[defendant asked to give an answer: case repeated]

The Answer of Robert Bancroft

The defendant now and at all times .... saith that on or about the 21^st day of January 1787 he this defendant and the complainant James Bancroft his brother entered into copartnership together in the trade or business of dyers and that they accordingly carried on such trade or co-partnership together at Salford Quay... inequal moities as to profit or loss until at or about the time hereinafter mentioned ... saith that he this defendant being a very bad writer and being totally unacquainted with book keeping or the nature thereof and having a great confidence in the honesty and integrity of his said brother the said complainant James Bancroft left the whole and sole care and charge of the books belonging to the said copartnership and the conduct and management of the said partnership dealings to his said brother during the continuance thereof and he or John Pendlebury of Manchester ... who acted as clerk or bookeeper to the said copartnership during the continuance thereof and also received and paid all sums of money for and on account of the said partnership during the continuance thereof and the ?few sums of money which were received and paid by this defendant for and on account of the said partnership and for all which sums os received or paid by this defendant during the continuance of such copartnership he this defendant duly and regularly accounted with the said defendant James Bancroft immediately upon or soon after his having received and paid the same and that some but not all of these sums this defendant entered into a small “pocket memorandum book” and after such sums were paid over to accounted for to the said complainant the entries so as aforesaid made by this defendant were defaced and considered as no longer material or useful and the said complainant James Bancroft and John Pendlebury or one of them carried on or ought to have carried the said several sums to the partnership account in the said partnership books kept for that purpose and this defendant further saith that the said partnership books were kept by the said complainant the said James Bancroft himself and the said John Pendlebury at the house where the said partnership business was carried on and that he this defendant never interfered or concerned himself therewith and this defendant living at a considerable distance from the house and premises where the said partnership business was carried on requested that the said books or the said John Pendlebury would once a month go to this defendants house for the purpose of giving this defendant an account of the said co-partnership dealings and transactions particularly of all sums of money received and paid and work done for or on account thereof during such partnership and to enter the same in a book provided by the defendant for that purpose and which the said complainant James Bancroft promised this defendant or the said John Pendlebury would regularly do but notwithstanding such promise he frequently neglected so to do and this defendant further answering saith that in or about the month of June 1789 it was agreed between the defendant and his said brother that the said copartnership between them should be dissolved on the 29^th day of September in the year 1789 and that all accounts between them relating to the said partnership should be finally adjusted and settled up to that time and that the said trade or business should afterwards be carried on by the said complainant James Bancroft and William Gregory in partnership together and that the sum of £50 should be paid to this defendant for the good will of the premises wherein the said trade or business was carried on by the defendant and his said brother and that the money which would appear to be due to the defendant from the said partnership on settlement of the said accounts should be paid or secured to be paid by the said complainants James Bancroft and William Gregory to this defendant and that they together with the said defendant Josiah Gregory should execute a proper bond in a considerable penalty for the purpose of indemnifying the defendant and his estate and effects from and against all such debts costs and expenses as he might be put unto on account of carrying on the said business as a dyer from and after the said 29^th day of September 1789 and this defendant further saith that in consquence of such agreement on or about the 15^th day of September 1789 a meeting was had at the house of Mrs [blank space] Gregory the mother of the said complainant William Gregory situate in Salford... between the complainants and [blank space] Walters of Stockport ... an attorney on their behalf and the defendant and William Whitehead of Salford as aforesaid as his attorney for the purpose of finally adjsuting and settling all accounts ? Between the defendant and his said brother relating to the said copartnership ? And at several other subsequent meetings had for that purpose such accounts were at length done though after a great deal of deliberation and after very minutely investigating and examining the said partnership accounts and the balance was ascertained and fixed by the complainants James Bancroft and William Gregory with the assistance of the said [blank space] Walters there amounted the sum of £343.2s.11d due to the said defendant on account of the said copartnership to the 29^th day of September 1789 and this defendant further saith that immediately on or after the said partnership accounts were adjusted and settled and the balance due to this defendant ascertained as aforesaid and before the execution of the bond in the ?will and hereinafter mentioned he this defendant proposed and offered either to give or take the sum of £50 for the good will of the aforesaid premises when the said complainants James Bancroft and William Gregory chose to give to this defendant the said same sum of £50 rather than accetp the same from him for such good will and which sum of £50 together with the aforementioned sum of £343.2s.11d the balance of the aforementioned accounts made £393.2s.11d and this defendant further saith that in or about the 28^th day of October 1789 the said complainant Willilam Gregory in the presence of the other said complainants and [blank space] Walters their attorney and William Whitehead this defendants attorney paid to this defendant the sum of £153.2s in part and on account of the said sum of £393.11s.2d and thereby reduced the same to the sum of £240.11d and this defendant further saith that for securing the said sum... the remainder or revenue of the said £393.2s.11d and also to indemnify this defendant... and they the said complainants duly ? A bond to this defendant of such or to the date purport or effect as in the bills in that behalf although this defendant for his greater cetainty of the date and content of such bond craves leave to refer thereto when the same shall be produced and the defendant further saith that immediately upon or soon after the execution of the said last mentioned bond an instrument ? Declaring the dissolution of the said partnership was executed by this defendant and the said complainant James Bancroft although this defendant for his greater certainty thereof craves leave to refer thereto when the same shall be produced and this defendant further saith that notwithstanding the complainants executed such bond of indemnity as in the bill and herein before mentioned yet they they said defendants have caused this defendant to be several times arrested since the execution of the said bond of indemnity for debts due and owing from the said copartnership and this defendant further saith that the complainants having refused to pay unto this defendant the said sum of £240.11d secured and made payable by the said bond he the said defendant some time on or about the 3^rd day of April 1790 commenced an action of law against the said complainant in his Majesty's Court of the Kings Bench at Westminster upon the said bond of indemnity to recover the money owing and due to him on the said bond and this defendant ruther answering says he admits it to be true that such ? As hereinbefore and in the billl mentioned was secured in and between the defendant and his said brother James Bancroft in equal moities from the 21^st day of January 1787 to the 29^th day of November 1789 and the same was dissolved as hereinafter mentioned respecting the future conduct and carrying out of the said copartnership business and the indemnity and consideration to be given to this defendant for his quitting the said copartnership and this defendant also admits it to be true that such bond as hereinafter in the bill mentioned is in this defendants custody or power and ready to be produced as this honourable court shall direct and this defendant... denies it to be true that he did always or mostly during the said co partnership bewteen the said defendant and the complainant James his brother receive and pay all or the greatest part of the monies for and on account of the said partnership business them although the defendant admits it to be true that he did during the said partnership receive and pay some small sums of money for and account of such copartnership but when in particular he so received and paid such sum of money this defendant cannot now recollect or set forth ....

[continues to deny charges put forward in the complaint ie that he received monies etc]

...hath been wrongfully charged or held to account with this defendant the sum of £17.2s.6d or any other sum in respect of the principal money and interest of a note of hand given by this defendant by Richard Walker in the bill named or that the complainant James Bancroft hath nothing to do with such note or that he ought not to have been debited or charged with any part thereof of that the whole thereof ought to be allowed to the complainant.... bill of the same value borrowed by the defendant from the said Richard Walker on the said copartnership account and paid by the defendant to John Varley of Manchester dry salter for goods had and received for the said partnership... admits it to be true that before the dissolution of the said partnership the defendant received goods of or from William Gleaver in the schedule to the complainants bill named to the amount of £28.8s.11d and which were in the defendants hands at the time of the said copartnership and was brought forth and taken notice of... and was on occasion agreed that the complainants James Bancroft and William Gregory should take the said goods...

[continues to deny charges made in the complaint and schedule]