The National Register. — London, England, 1817-09-08 00:00:00

SEPT. S. LAIF' INTELLIGEVCE. COURT OF CHANCERY, AL'ousT ra. IN THE MATTER OF CROSBY'S BANKRUPTCY. In our last number, we gave a very brief statement of the very extraordinary conduct of John Miles and Eliezer Chater, respecting a bond of 20,0001 obtained from Messrs. Baldwin, Cradock, and Joy, on behalf of Benjamin and Richard Crosby. We shall now enter more at large into the subject, as we conceive the pro ceeding cannot receive too much publicity. In the Court of Chancery, August 22nd, a petition was presented from Richard Crosby praying for a eupersedius, and that the cost of superseding his bank ruptcy might be payed by Kitcat, the creditor, who had illegally stied out the commission against him. This being disposed of, Sir Samuel Romilly presented a petition from George Wilkie, William Sherwood, and John Cundee, Assignees of the estate and effects of Richard Crosby, the bankrupt, the prayer of which Sir Samuel Romilly explained at great length. He was followed on the same side by Mr. Montague, whose speech embraced every important feature in the transaction, and which, as it is considerably shorter than that of Sir Samuel, we will give nearly in his own words. Mr. Montague—" I am on the same side with Sir Samuel Hominy. In this ease it appears, that Benjamin and Richard Crosby were partners, and that in the year 1511, Richard ; weat abroad, leaving Benjamin Crosby in a state of men tal imbecility ; John Miles was then creditor of that part nership, partly for goods and partly upon bills, to the amount of 5,0001.; and that he obtained a power of attorney to act for the said Benjamin Crosby during the absence of Richard. Eliezer Chater, is the father-hi-law of Miles, and, as we all know, lathera-in law are not those who particularly wish to part with their money, when their sons-in-law are in trade. Thus Mr. Miles parts with the whole concern of this partnership to Messrs. Baldwin, Cradock, and Joy, for 60,0001., fur which lie is paid by notes and bills due at differ ent elates, and by a bond for 20,0001., and I cannot help wishing that I had many such securities from that company, as they are persons of high repute. Miles sold another part of the stock to Messrs. Sinipkiu and Marshall, two clerks of said partnership, for 12,0001. Mr. Miles looks into the concern, and assures the petitioners and the other creditor , , that all will be well if they will take bills instead of cash ; and so they do, bat it app ears that no sooner do they do so, than Mr. Miles shows, that he himself likes cash better than hills ; he accordingly contrives to get cash for his long bills, and he is then quite safe as lie conceives; he, however, likes the bond of Messrs. Baldwin, Cradock, and Joy, and thinks It is a pity that this bond should go out of the family ; he cannot buy it himself, but at the same time lie wont permit a trustee to buy it; but nothing is so easy as to evade these rules in the Court of Chancery. Mr. Chalet., therefore, is We man selected to buy it; he is not a trustee, but the father w of the titistee, and lie is allowed to buy this bond of 20,0001. and to give for it only the sum of 9,54)01. the ohli gaturs being theta and now in good credit, and would have themselves given a much larger 1111111 for it. Mr. Miles sells tins build, however, to Eliezer Chater, as it is said, for that sum, Lt the month of June, 1815, after Mr. Miles had sold all the stock, good-us ill, and property of said partnership, and collected the good debts, and paid himself the whole dice to hint , lie declined to act further in said concerti, and without c • aping his deterniiitation, or submitting any account whatever to the creditors, lie procured fiom reenjamin and Richard Crosby a deed of confirmation of all his dealings in said concern, and a general release from all claims and demands whatsoever, it being better to have a sort of eatable by a release hefore the cow missionera. Mr. Miles obtains a General release, and then is quite clear of all lie has now done with it, a trust is executed, and all is at au end in his estimation ; there have been more difficulties ' however, standing in the way than lie calculated upon, and as are not to be dis posed of in a summary way. Halting obtained this relca .e, every thing is now right for passing through the Gazette, and 'upon the petition of George Kitcat, a commission of Bankrupt was issued against Richard Crosby, in January, 1816, Benjamin Crosby having died in the n 1111 l th of August, 1513. Upon this occasion there are exceedingly acute and obstinate assignees chosen, imel the whole affair is discovered, and amongst other things, that Mr. Miles himself was the person who ads owed this money for the bond, and that it is the purchase of Miles, and that the name of Chimer being used was inertly a blind, for it was bought in his name, but it was for Mile's interest. Can there be any doubt as to that The assignees upon this commence an leiloll of trover against Eliezer Cl.ater for the recovery of said bond, and a considerable expense ails incurred. Upon the exami nation of Clutter before the commissioners, it appears, he sometimes knew the particulars concerning this bond, and sometimes nut ; at last, being pressed, and asked this ques tion—•' Diet you not understand from Mr. Miles, that having a power of :Berney front the Crusbys he could nut himself purchase the bond •"- A." I diet." Q. " Did he not therefore for that reason beg you to pm-- chase it, sod he would furnish you with the money " He did." Q. " Was not your name nsed in the purchase on account of the situation iu which lir. Miles stood with the Crosbys ?" I suppose SO." " Now, those expi uses were naturally and necessarily in curred under the commission so issued. lu a contest of this sort, every goad genesisl secures a retreat, and therefore when we are about to proceed in this action, it is discovered that there is no petitioning ereditor'tt debt, and in addition to that, that it is a concerted commission , and such is the great discovery made ashen these assignees, thus chosen, try to get the proceeds of their labour, the Bankrupt Stk. perselles the commission. lam extremly happy to see that a gentle man in opulenee stands by his friends ; and am happy to rigid that the soiieitor for the Bankrupt is the soli citor of Mr. Clime's. e might object certainly to ibis, under such circumstances, but we nicest have a valid com mission, and Miles must not thus slip tin - ()ugh our hands. That is exactly the situation of these matters ; however ne- Cessarily, your Lordship must see to these transactions. After that, we applied to Kitcat, who executed this coni suiasiou, and he state. that it is a concerted commission, and that he expected to be indemnified. Now, I beg your Lordship will remember that word s , 4 COCIS,' fur it appears THE NATIONAL liEGISTER. that he has been a good general, as he has not had quite so much costs as he would have bad to pay if he had proceeded to law. He does not deny the coucert, but says it was done for the benefit of the creditors. We know that these are very pleacant general terms, under which the petitioning creditor may shelter himself; but we want to know why he does not deny that this was a concerted commission. These petitioners applied to this George Kitcat, to ascertain the truth of the representations that had been made, when he informed them that said commission was a perfectly good and valid commission. Now, I particularly direct your Lord. ship's attention to these words, that upon a second appli. cation made to him by petitioners, he stated, that said Bankrupt had applied to him, and informed him that he could not get through his difficulties, unless a friendly com mission issued against him, under which he might obtain a certificate ; that he, therefore, solicited said George Kitcat to issue a commission of Bankrupt, which said George Kit eat consented to do ; and that therefore an arrangement was made, that he should call at the house of said Crosby at a time appointed, and inquire for hint, and that said Richard Crosby should he at home, but be denied to him, and that a commission should thereupon be issued.' Now, I request your Lordship's attention to his mode of answer ing that application, namely, ' that when he issued the said con 1111 l ssion, he issued the sante solely with the view to the general benefit to the creditors of the said Bankrupt, and that he was not acquainted with, or privy or party to any of the circumstances relative to the said John Miles and Eliezer Chater mentioned in the petition of the assignees to the said commission, and that he received the said commission to be in all respects perfectly valid, or he would not have issued the same.' Now I look upon that as important, where the petitioning creditor will deny that it is a concerted commission. The next denial is' that he denies our statemet.t as alleged in the petition and affidavit ;' any person might so deny it. He admits in sub,tuice the con y creation, but be says no person has promised to indemnity him. It was very well understood, as your Lordship will seeinotte moment,that Miles was ultimately to pay the costs of this commission, and will, I trust, lease to pay them. He has not sworn that he was ultimately to be indemni. fled, because he does so expect. Why does not this son-in. law, Miles, make such-au affidavit? Why does not the Bankrupt do so? The solicitor w Ito gave him such excellent advice might have advised on this occasion; and why does not the Bankrupt make such an affidavit ?" From all this, Mr. Montague argued that it was clear that there was no petitioning creditor's debt, that Chutcr could not be brought to account under this com mission, that the assignees ought not to be defeated, but ought to have their costs, and that a new com mission should be issued upon the prayer of the pe tition, under which proceedings might be taken in law for the recovery of the bond. Mr. Hart, in behalf of Kitcat, the creditor who sued out the commissioe, contended that the mistake on the part of his client was an innocent one, and that he ought not to be charged with the expenses. He thought they might be taken out of the bankrupt's estate. Lord Chancellor.—" What right have I to take them out of the subsequent estate of the coeditors... Mr. CoHinson, council for Karat —" The discussion of Sir Samuel Hominy represented this as a rely bad case between Miles and (hater, and that .because a l'OlllllliSSlOll was so taken out, therefore that we must pay the costs. Now, it is spun this very point that is assumed by Sir Samuel !timidly in point cf argument, that this dispute increases, for ploviding the tiansaetion between Miles and Chalet be as had as can be suggested in the Imnian mind, yet unless we can be al. lected as parties to it your Lordship will not inti.r it, unless it he by proof, that we were parties to it, and then all the other circumstances are immaterial to the question. It was assumed, and I supected it would he assomed, for ill read the affidavit accurately, 1 think if they fail in any thing, it is in chewing by evidence that we are allected at all, as to trying by conspiracy to defraud the creditors. If there be a con spiracy, and we can shew that instead of being the actors in it, we are merely the victims of it, as creditors, then your Lordship will dismiss so much of the petition as asks us to pay the costs. It is necessary for me to state the trans action, in order to satisfy your Lordship, that we are not connected with the transat - tion. Ling before this commission was taken out, Miles obtains a power of attorney, first from the father and then from the Bank rupt, in order to manage their afriirs and dispose of the business. Under that authority he sells the good-ss ill of the trade to Messrs. Baldwin, Cradock. and Joy, for 60,0001. 40.00(11. of which is paid in bills, and the remaining 20,0001. by a bond, payable by instalments, flue last of which not being payable for seven years to roue; it appears that Miles, with a fradttlent view, sells this bond to Chatur for 0,5001. Chafer being in fact a Trustee for himself (Miles). It is not for me to contend before your Lordship that this was not a gross fraud u• actised by Miles and Clutter ; I am nut concerned in stating that they are not guilty of that, but my anxiety is for Kiteat, who is the petitioning creditor tinder this commission, auto they don't allege in tht it affidavits their belief that ti e knew any thing of it. Our name is not con nected with it, in any way ; they don't state us to parties, and don't suggest that we were at all apprised at the time of anv of these transactions. so as to connect us with them. Hay. hag done this, upon the Bankrupt's return, this commission is taken out, and it is for me to shew your Lordship under what eiremnstancts it is taken out, in order to satisfy your mind, if I can possibly succeed, that although my client has acted upon a great mistake, he has acted trout an error in judgment, and not from an ill intention." Mr. CoHinson then proceeded at considerable length to skew that his client having acted without a tradulent intention, ought not to be subjected to the payment of costs. Sir Samuel Romilly was about to reply, when the Lord Chancellor interrupted hint : "I don't thi k, Sir Samuel, that you need trouble yourself. lively thing that rim be said for Kite:it has been urged, if Miles be not (yet one cannot help believing that he is, and 1 hope, he is)an.weraloh• to Kites( for the costs ; hut mispose lug him to be otherwise. I cannot relive kitest froo the casts and charges, without imputing fraud to him. '!•here was a pe tition, but not an adverse petition, to supersede the 'co 1111 l iis. :don ; the consequence of that is, that the moment that it was super,eded, every expense the assignees are at, they must he personally answerable for. Now let us see whether that be a tit thing as between the assignee: and Kitcat : a man ado takes out a commission of bankruptcy cannot take awn withis out pledging himself upon oath that lie has a debt above 1001. and after that lie cannot establish the Commission, without bringing proof that the person has committed an act of bank, ruptcy. Now, suppose the thing were to go no further than that, and that it turns out that that man has neither MI debt, nor can lie establish an act of bankruptcy but by concert, I should be glad to know whether under the circumstances, be who upon oath deposes that which is not tine, but afterwards attributes it to mistake, and lie who sets up an act of bank.: ruptcy, although not in fact an act of bankruptcy, is to say to the assignees who act upon his oath, that the Conaniission had been superseded at the expense of the assignees. The assign ees have placed themselves in a situation that every act they do they must be personally liable ; for they must pay all ex penses that have been incurred, unless they can come before the Great Seal and make this demand. I cannot call that irrelevant, as to the transaction between Miles and Chater, at this petition prays that they (the assignees) may be indemni fied against the costs. As to the bond of Baldwin, Cradock.. and Joy, for 20,0001. a Company as honourable and respecta ble us any in London, Miles sells it to Chater nominally, but in tact to himself, fur 9,5001. Was there any thing in the world more reasonable than that the assignees, if the coinnsis biota could have been supported, should apply themselves to the means which the law of the country afforded them, so make Miles or Chatter liable for the benefit of the creditors in general? It was incumbent upon them to shew, that they lied reasonable ground for going to law with Miles, as to that for which costs are asked. In addition to the carelessness of Kitcat taking the oath, as to his having a debt of tool. was this other circumstance, viz. that there was no act of bank ruptcy at all, and it is neither more nor less than this, that Ct usby tells him that lie cannot get out of his ditticulty unless *Commission of Bankrupt be taken out against lum ; and then they contrive that Crosby shall be at home and denied, and that I.:neat, who, it is very likely, did not know the neaut a of the laws upon that subject, when lie concerted that a pet son should be sent for Crosby, and that he should be denied ; and then it is upon that thing, that alledged act of bankruptcy (but which was not an act of bankruptcy), that the whole of this proceeds. That Court must shut its eyes, and keep those eyes close shut, that cann o t see th a t i t was t h e expectation of Kitcat that he was to be indemnified against the consequences of taking out this Commission, and, if he were so, then upon what ground can lie refuse indemnifying these assignees O— llie Commission must be superseded, and the assignees nasal have all the expenses they prayed fur." Mr. Collinsou—" What is to be done with respect to the Bankrupt's cost upon this petition ?" Eldon, The Bankrupt is so involved now, that be should not have ails costs ; DIsIIIISS that petition." Mr. liorne—" There is Nothing directly against the Bank rupt by way of evidence, further than that he asserted that . they could nut get on, because the commission was bath* Eldon, C.,—" It is all wrong; dismiss the Bankrupts peti tion without costs ; take what is sought for in the prayer of this petition oldie assignees; supersede the commission, and take the costa. Dismiss the petition of the bankrupt." LEE t•. KENNEDY. This ease came before his Lordship for his decision, pith respect to the validity 01 a contract. The parties were cog aged as partners in an extensive mir-- SPly ground at it rswith,andaproposalwasmadeto Lee by Kennedy, fur the, urchase of the whole property. They en tries, into a negotiation on the aubject, and, in October,lzilli t the deknilant delivered to the plaintiff au estimate the value of the premises and stock in trade. The value of the property was stated to be under 10,0001. The plaintiff how ever, was not satisfied, and he caused another estimate to he made, by which the property appeared to be worth 33,0001. and, of course, he refused to take 8,0001. (oriel ed to him by the defendant), fur his moiety of the property, at the rate of valuation set out by the defendant. The defendant then said It yon will not take that sum, I will increase it to 10,000 L, which is the full value of your moiety." 'the parties then en. tercd into a correspondence on the subject, the defendant still offering to give 10,0001. for the plaintiff's moiety, Ns 11 . 0111 certain expressions in his letters, it was contended the plaintiff had agreed to. After the correspondence the pi 0- pea ty to be possessed by the defeintant, waS enumerated.— Some dispute arose as to certain artiets, w hich the plaietitr denied that the defendant ought to demand, and the cause came before the Lord Chancellor for him to decide, whether, on the face of the letters that had passed, between the parties, the contract was binding or not? The Lord Chancellor having read the letters, in which tbe defiaidant mach certain ovei tures which the plaintiff seemed to accept, observed, the question was, whether this carrels pondence could bear out the statement that a confirmed con tract had been made. In order to foil's a contract, by way of letter, nothing more than this was necessaty to be dons— that one man should, in writing, make an oder, and that an other should close with it. in that ease it clearly became a contract. He did not believe that Mr. Lie held that opinion, when he carried on this coriespendence. But, whether ine did or not, those letters being brought into Court, chewed that the party, to ssds.sse lick.'t acceded, was entitled to have the contract cos:firmed. His Loid.dop's Was, that the chntiact was binding—tan, us Counsel were not present, he left the parties the option of applying agaiu to the Court, if they were not satisfied. Wednesday morning the Rt. Hon. the Lord Mayor went in his State-coach from the Mansion House to open Bartholemew Fair. The fineness of the day drew together such an asse:nblage of well-dressed females in the crowd, as we do not recollect to have seen at any proclamation day for several years. Eaton, the pedestrian, still pursues his Hcrculansan task between Colchester and London, with the fullest conlideace of •success. lie proceeds with a stick in each hand, and avails himself of every opportunity of taking a little rest.—The ladies and gentlemen of Romtbrd and Brerltwood have entered into a subscrip. timi for his benefit ;' he has al received presents fivm st\ several ladies of Chelmsford, an a gentleman at Here. ham presents Fitton with a glass f-port every time lie passes his door.-1t is supposec6bat there is more money pending on this Match amonget the gentlemen of the county of Essex, lian hits eta been on any former pedestlnin feat.