The Express.
London, England, 1852-12-21 00:00:00

Kat» intelligence.

EQUITY COURTS.—YESTERDAY.
Dorms sea Law Jeannie or Areas,-
lit as Till MIDLAND Union, BunTox-crow-Tnewt,
AND ASHBY Da LA ZOten AND I.IIICMITER RAILWAY
CiMPANT, u PARTI THIB EXECUTOR/I or 811 W. 11.
r RAISON.
This was an appeal from the decision of Vice•Chaneellor I
Swart, who had ordered the names of the executors of the
late Sir William Hyde Pearson to be struck off the list of
contributories to the liabilities of the company, upon which
they had been placed by the Master. It appeared that Sir
William bad formed one of the provisional committee of
the proposed company, and had also formed one of the ten
persons chosen out of that body to act as the managing
committee. Bridget* was adduced showing that Sir Wil-
liam had been present at meetings at which Mr. Viguulee
had been appointed engineer of the company, and at which
orders were given to an advertising agent who claimed a eon.
aid, Table sum from the committee. It unix& red, however, that
after the scheme had become abortive and bail been aban-
doned, a Meeting of four of the provisional committee took
place at Birmingham, which was ant attended by Sir Wil-
haul Pearson, to consider *hat proceedirgs should be taken
for the purpose of settling the affairs of the concern. The
result was that a circular was drawn up and sent by the'
secretary of the company to every individual member of
both commi t a,. The latter was as follows Sir,—The
total liabilities of this company having been at length
ascertained, I am direct, d to inform you that the amount
due to creditor is 6,760!. ; and that your share of the same,
as one of the provisionaldirectors, is 160'. On payment a the
above sum you will be released from 01l further liabi-
lity, and the balance (if any) which may accrue
after the settlement of the claims of the coin-
liany will be returned to you." Sir Wiliam l'earson in his
lifetime complied with the proposition contained in this
letter by paying 1601. to the bankers of the company. The
Vice•Cbancellor's opinion was, that by this letter Sir Wi-
liam and his estate were discharged from any further lia-
bility, u between himself and the other intrnbers of the
managing commi tee, to the debts which might still be in
flint's's against them.
Their lordships were of opinion that the letter in goes.
lion, though it might be a release to any member of the
provisional committee complying with its terms, could
not be ao as between members of the managing
committee. The reason was, that, at the data of
the transaction, the liability of provisional committee-
men to the debts of the company was a matter of doubt,
but not so the liability of the managing committee, which
I was eertsin. With regard to these last, *horn it was im-
possible to release from liability, the letter was unintelli-
gible ; the estate of Sir William would therefore still be
liable to the existing debts of the concern. Without going
into the question ot the validity of the claim in respect of
the engineer's necoont, about which there appeared to be a
contest as to Sir William's liability thereto, it was quite
cleat up in the present evidence that the estate was liable
to the claim of the advertising agent. As the evidence
upon this claim had, however, been now adduced for the
first time, an opportunity would be given to the executors
to meet it by affidavit if they could ao so before they were
finally settled upon the list. An order was then made
directing the executors' names to be restored to the list, un-
less an application were made to rehear the matter on or
before the first day of nest term.

COURT OF QUEEN'b BENCH.—YESTERDAT.
Stem AT New Pans is Losmon.—ltaroas Lou) Caws= amp
• CONNOR hitT.
KIINOT V. PITTIII.ACTION OF DIRECTS.

Thu was an action of &linos to recover pawession of
certain anatomical preparations, which wars seized for
arketsedtsue.._

The plaiutitf was a surgeon, and is 1818, when the sei-
zure took place. was carrying on his business at West Cowes,
in the Isle of Wight. He was, however, in London at the
time of the seizure, but he returned at once to Cowes, and
tendered the amount of the taxes and expenses. The col-
lector, however, said he could not deliver up the goods, as
Mr. Catlin, en attorney, had advised him that there wss •
fiat in bankruptcy in existence against the plaintiff, and
therefore he would not he justified in delivering up the
geed.. This fiat was annulled by Lord Justice Knight
Bruce, when Vice-Chascellor. The plaintiff had also been
through the Insolvent Debtors' Court. It was contended
that at the time of the seizure Mr. Kernot was absolutely
posesseed of the anatomical preparations, and was therefore
entitled to receive them back an payment of the taxes and
meta From the defendant's statiement it apreared that
es the 18th of January, INS, a vesting order
was wads by the Insolvent Deb ee' Court, whereby the
=is the goods in quondam was wets' in Mr.
',
las porrimisssi seism of that mart. Os the
Irth of Jasssasy, Komist was dissisirgsd oat of
comedy, but so eider woo awls novesting this geoperty in
th:egaintiff, and the &fondest thassibms alkyd that he
u not be justified in debased's up ths_goods, as bs
WM thaw for the pessimisms' smigsas The plaintirs
mod is re that *Assess could be
wads seder the pleas aw el the dollandiat—,Lc.:
: " Nonotn &-
Meet," " not possessed," and "leave and license." in
the mares of the argument the following authorities were
cited Bee. Abe. tit. " Detinue ;" " Almon v. Farrell" (12
Mos. sad Wets.), and the ease of " Creestleld v. Saab,"
decided last term in the Court of Each/quer.
Lord Campbell said the best mode of dealing with the
question would be to take • verdict for the plaintiff, sub-
ject to the decision of the Court of Queen's Bench upon the
point of law.
Verdict for the plaintiff subject to the opinion of 60
court above.

COURT OF BANIERUPTCY.—YESTEZDAL
Byrom Ma. OollinialaPlß Goo Lawns.
In al ASILLIX.—Fszs or COlllll%-litroiTANT
DRCISION.
lon the matte: of Spencer Addis, corn merchant, of
Mark-lane, wham case was before the court a few months
ago, objection was taken at the audit meeting, by Mr.
Murray, the solicitor under the bankruptcy, to the allow-
ance made to Mr. Ponnoll, the offal assignee, for collect-
ing and distributing the masts, amounting to 3631. His
Honour at the time allowed the charges, with some trifling
abatement, reducing them to the sum named. The matter
was taken before the Lords Justices, who, without taking
upon themselves to disallow any tof the charge, re-
commended that the subject should be again brought under
the notice of the COWIR01111; with a request that he
should review his derision. The ease was very fully argued
on a former day by Mr. Murray, for the trade assignees,
sad Mr. Lawrence, on behalf of the (Acid assignee, Kr.
'Pennell.

His Honour now gam judgment. He said he had given
meet per. and onions consideration to the question, which
wee are el mesidwabbs impareirso to the ammanial
mobilo and to Oa Whom of the mart. Kush bad been
mid of hit as is Si. orpsnsav Mod on surges, when
onoildng rt Madre thsk sighlo in am* of justice ; and
OM Wks b_son may stroogly Mibird with regard
to that um tiodsubtoOy it was matter of very prat re-
gro‘ mime they bed is deal with insolvent estatse, that so
iamb mom em ohl be moiled ups the Mgr. • ins-
✓amble amid of this moodiness mks* on gram&
which, if limirtd Ida, would bun cat is la me ulna ;
for they wad M smelter a had kr ommating per.
mom whole is.. had long sins. boom abolition—an ex-
pense wliiiiimight he bit borne by Os pork, as it was a
matter by Midi los mike MAW. The suitors in a
court was Si. het poem who shod& boar this expense,
and the mom a opm band upon Wm** wee put an
end to M. Mgr. Whir it wee important that
this manditm Mould be Molted, It was
lei impalont Ont frailissalias Mho ihohind
assignoss, who bold aim of pee MI, rod bed
many very mous adiss Mond upon Sc., Mil sot
be landerpoid munomtod has worroor Nis ndapiad
the 'anima thry mid to mar, and ash at to lompt
them to foossmo tYrir Mom by Mao nom. On mon•
ten of law ho should Moat* Astir to the Ma Junkie
but whose a koala drinkers woo mamma on this aim
he felt bound to smoke k to his bon alit add j•
The °Oral assignees had boon ratitniol tent 21 peerL
ago, by the statute I It $ Wm. 4, cop. N ; ad that set —_
hand no greater Mods than by the anorimmt of them
Morn. Urlor the /tar system, mhos tho my wm
graived by the teat amigo..., it was too is knortal
tram its logidmoto ; end the duty was Morn
devolved mind or the Aoki orignoss. Wy set
of proms they wars to bo was oho* palatal ant by dot
so•—moralgam trams, muirrols, se posses who woo
or had Ms woad in lour IRMA" Woodlarks. m
pmts odkt.- Tbe modsodor Om
was mg oso
his ad Impoird. sambaed* am torma/.=41
this. of the aomiormars all Si. IMIM ogimmonial
mon of th• city of Lads., reinoai to Moue of the
Bank, the Chairman of the Mt InglaClompny, Ni. Jams
Loyd, and a sambaoiLmhoon monvord _ haidiag
agoomarsial imagist& They Naga Shisoult Sc 3M Keats.
Odor, and tired It to red Mot t and wish disk astir*
apapprobspoltion and mimeMs addle Mom wore first
eted. They sequirel is be smilosion in no
best sense of Men weed, of @Wks pooliky, Imariblo to
nadir Islam f imp drededee, of meant& habits,
farailiar with beam ape nes=not with habits
of aggression, sal MIMI . to
hod to mein and diribeto large and this to to
nand= Misr pursuit ; froon Sc they wen on-
ly the nibs and sedan et ebo nun
CitilakisTrovinnomintivn dry bad to Maw omens one.
trii""ii.7""'ibry IMO mach is. Perri" bly dealt with
thee vosaagen ander the Winding-up Act. The
Aral Mims game be provided with a star of cheeks, for
bo bed Ito et sixty NOM in art year gnaw his aosteol,
mid wimp 60,011 W. or 'OAK prig Mug It his
hark may sportar. U. was obliged to have
is his GM, and oho • clerk in the must. Ho was aro
obliged be bon Imp mod expensive Mhos for the safe cus-
tody of the dm man and mon Mob be wr required to
keep. His outinlnge mire Osoo hands, the very lowest
computation, semmolled M INK as TOOL a year, before he
could receive a haft of 11.1181111 mat from his dice. He
was also aspen' to Si. Mirk of Whig involved in suite
and Wiese, mil is. AM with a morderable amount
K coots Ng Ms paelbeseries of bb worm duty which he
was obliged to kWh The legislators called upon
bra to giro way Ism security, ao Si, mast of 8,0001.
Ilea arum eel mopassibilitree nimirod a mom moving in
the first err Mort of misty, and no quokka we., how
was each • ma Is Ms namontod ? Ought to be done in
a meaner so primienseisua sod siggardly m Is expose him
to the sumer psedble tomposilm to Mow his income
by rides mom
nob a m;liiiries,llll to bsegmented as a
poem ad under -sun einem-
=bad a Is sap*? By, the 44th sec-
la
the Banbropity Iry OmmUdinsa Act (fol.
lowiag the set 1 -ma 2 Walks IV., esp. 66),
it was " 11.1 Sc awl gm order ond allow to be
NM sat se eai Ilukespre MA% et Si. WWI eielieee

thereof, as a remuneration foe his services, such sum as
shall, upon the consideration of the amount of the bank-
rupt's property, and the nature of the ditties performed by
such official assignee, appear to be tut and reasonable."
This was an answer to thou who said that the remunera-
tion ought to be settled by a sort of quantum ineruit, as the
lawyers called it, according to the actual amount of labour
dose in each can. And what had been the uniform prac-
tice ? Immedistely after the passing of the set 1t 2
Was. IV., cap. 58, the commissioners met and fixed • rate
or scale of per tentage upon the receipts end money divided,
feeliug that any other mode of regulating the allowance '
was impossible. Lord Justice Knight Bruce said that it
would probably he better, for the good administration of
justice, that there should be • general rule or scale,
not inflexible, not unchangeable, but liable to vary in
particular cases, in the tlCreil• of the judicial discre-
tion Cart fully applied, and that there should be an endea-
vour to obtain as much uniformity of practice in this
respect among the commissioners as the nature of the
subject and a due attention to the language of the statute
would permit. There was one mistake in the judgment of
this learned judge. He said that such a scale had not re-
ceived the unction of the great seal. But it had in reality
been sanctioned by Lord Chancellor Brougham. That scale
fixed the official assignee's allowance at 1 per cent. on all
lams received, and 21 per cent, on all divided ; but that
rate had not been adopted by the commissioners, who felt
that it was too high; and, if applied to this case, it would
have given Mr. Pennell more than double ho had received.
A scale w.s also sanctioned by the Court of 'Levies' in the
case "Es parte Tiplady in the matter of Dickinson"(l Mon-
tague and Ayreton, p. 161.) There a larger charge had
been made then in the present case for collecting and di-
viding a smeller sum. The Commissioner (llelroyd) had
allowed 4881., and the Court of Review never objected to
the mode of remuneration by • scale, but decided that where
• discretion was given to a judicial officer, and that
officer acted honestly and bona fide, to the but of his
judgment, they would not interfere to reverse it. Another
very learned individual, Lord Cottenham, bad also con-
curred in the principle of a scale. When that court had
lost both its official assignees (Mr. Green and Mr. Follett)
by death, he (the Commissioner) applied to Lord Cotten-
bans. The amount of allowance to the official assignees
was much discussed; his lordship found fault with the
want of uniformity, and suggested that the number of as-
signees should be reduced by not filling up the vacancies ;
he never objected to the mode of remuneration by scale or
per centage, but recommended the commissioners to take
care that an official assignee did not receive more than
1,200/. • yeer as a maximum. He email safely say that
neither Mr. Pennell nor Mr. Nicholson, the official assig-
nees in his court, had received anjthing like that amount.
Ile now came to a point which wu almost conclusive on
this matter. Lord Justice Knight Bruce recommended the
commissioners to concur in an application to the Lord
Chancellor on the subject. That had been done. The
attention of the present Lord Chancellor bad been
particularly called to it, and with reference to
the question in this cam. Four of the London
and four of the country commissioners had put
befcre him their views; his lordship had entered into the
subject with all his natunl acuteness, and had arrived at
the conclusion that no other mode could be devised of re-
munerating the official assignee but
by • scale or per
tentage. He had sanctioned such • jab in the new rules
and orders which would come into operation on the 11th of
next month ;it was in the 130th order; and, so far from
that scale giving less to Mr. Pennell in this ease, it would
have given him 401. more. Like the scale sanctioned by
Lord Brougham, it was to be subject to variation In any
particular can, sad for tames to be assigned Ly the Com-
missioner in writing and filed with the proceedings ; and
the Lord Chancellor, with his characteristic caution, had
suggested that it should only be imperative for twelve
months, in order that, if found to work oppressively for the
suitors, it might be altered. But it might be altered by the
Commissioner in any particular ease, and that brought him
to the inquiry whether there were any special circum-
stances
in this ease to induce him to deviate from
the scale. He thought there were now. He would'
state the items of the charge ; because injustice
had been done to Mr. Pennell in putting the whole mount
together, without dissecting the items. The fleet item was
201 for examining and reporting the accounts. For this duty
the allowance varied from 51. to 201.; in this ease the
larger amount had been rightly fixed, for if ever there was
a case where it was incumbent on the official assignee
closely to investigate the accounts and to compare them
with the books it was undoubtedly this, where Ashlin had
been guilty of so much tampering with his boolu, and had
done his best to deceive and mislead his creditors by these
books. The next item was 5 per cent. on the debts col-
lected below 1001., being 241. Is. on 481/. 12s I Id. ; this
was quite according to the ordinary course. On de its
above 1001. and below 6001., amounting to 1,2371. 6s.
21 per cent. wascharged ; and 1 per ant. on 3,1951., the
debts above 1,0001. and property ; the charges being re-
Isputively 311. and 321. It was said a great part of these
debts were collected by the accountant; but it would be
unjust to deprive the moque* of his per center on this so-
tenet ; it was a practice which the court would never
sanction till told to do so. Each man should do
his duty; and it was the duty of the official
assignee to get in the debts. But the principal
queedos arose os the item of SOL, or I per ant. charged on
a sum of 18,0321,; in respect to which it was said Mr. Pen-
nell had so trouble whatever as it wee paid over to him at
owe by those who bad collided it preview ts the adjuncts.
tion. The court utterly dissented frontal& The offing
assignee was to be remunerated, set asserdiag to the
trouble imposed epos bias, but according le the bembrepes
property and the nature of the dutiesllll hat se perform.
, in coseequesco of the money bens es gut in, he
received so man less ; had he gotit in in the ordinary way
his per tentage would have been much leper. It was
tree Mr. Pennell's actual labour in »miring this money
was next to nothing; but it was the per osathge which had
bees sanctioned and allowed from the commemsemat of the
court by everybody who had had to do with these matter+,
looking at the words of the act of parliament-" upon Con•
sideratton of the amount of the bankrupt's property. The
amount realised was to pay a tax, and that tax was to be
small where the assignee's trouble was small. The mount
charged on dividing the meets bad not been much quarrelled
with. Many Nieman thought that in order to en-
sure a speedy division, the official assignee's per
*tentage should be increased. It was sow 2 per
cent. on the first 1,0001., and 1 per cent. on all
beyond, making in the present can 1781. 2a., and 331. for
dividend warrants; making the whole amount charged
3631. The items were much smaller, in comparison, than
those in Tiplady's ease, which were sanctioned by the Court
of Review. This allowance, said to be so large and im-
proper, was much smaller than that of any receiver in any
court of justice, or any officer performing analogous duties.
Upon the whole amount of assets, the charge was only
per omit. The receivers in Chancery, who in many casts
had very little tremble, new received so low a per tentage
a• that ; the lowest ememmit_ ther given was 3 per cent., and
Vint was fixed la Lad Lappith in a ease where the
nessant was veey leqp. Dui thee; receivers were generally
siisitere or asemmiesie—peeethe who had other pursuits ;
but the alkielessVme wee essthmill enalasively to his
beim The Mllll/01111111 ldlr the 111=up Act,
whose duties WON they amdegese, guessedhigher
cen
4tege. It wee 6 par met on alll., ne
per m under
100,0001. ; lathes 100,0001. and 6)0,000 sent. ;
and in rasped el all further thus, 11par sent.
They were lulus allowed be Sharp ter clerks
and other upeness. It was enter ben this that
the legislature athemplated, in ea efts eery simi-
lar to the present, sod with analogous &thee, a mash
Urger an of vaanaerstion—thres ee few times as
musk as Mr. Peepi get here. The eel dligeffied that the
4661 assignees dwell 111.11 bees amekenth, brokers ac-
uentests, or wens engeged tenth. It nat &lily be
ad were sea poems eumememeted kr Ueir work /
Werebenta I. when psis ware mensignei 'PM paid by a
per eentege on the crude ameniribasffilinuffithe Was. of sugar
he as might molly esti ea ow. woe the aesountant's
liagalea Ai ?Hsas so relleithea whatever on
Ile seigalthis km of ffiellter, Meth sad Co., who
were et lead gesibeeloo, them roote there were
se mer:arshlii men la the metropolis; but when they
were llewence of NM to Mr. Pen-
nell, it was ht to 'KEW whet the emeantants bad
r emsenting
Defere the mee come be. sent at all, they lad ialeL to OK, eel ealuegesatly dNlverei
wee hr MIL M. Ith ; obi se lush the maw woe well
ammed. It amid she be butte In mini Oft nomunteate
mold thllew ether penelthlinttheafsWseipnemuellnth
But it was said why Amid so ImpeSaaYeeesesbeNaM
to Mr. Bennett for his =dm baths M sheet a period
It would lead to a cm athilitheue melt if that argn-
NM
WM with to an eztemon peas of the great evils
asespielmedwee ihneerly ia the athelsitration ot the bank-
rupt law the leas peeled whisk was pe tormitted
Worms between ttsZests the mom by the rag-
nem and Its divides dr modem ; and a leading
ishiect of all the mug lad boa to shorten that
period. Creditors IMO menthes, whatever there
was to divide, to have It as neffigamptly as possible.
Bis dat qui cito dat was thelltnelft In the laneet case
they had ever had fa that clot--that of Alexander and
budget, where the caste were upwards of 100,0001.,
obd the debts proved 6011,81101., Mr. Follett, the official
:Viworked day sad theft la order to get • dividend
er, day of the lot ammeinunion. In that awe, he
banal, tide unfortunate__ Bram UAW wassae of the
But if an official melon wen le be paid se-
w the time he took In *dam the atesey, it
would a gtheeithe le his to delay the ffiethend. It was
heelfir lbw whit rereeseiMd the weaken to turn
mad on Ile. Pen ell, and say, .• Bequis this
bee been quickly and effectively done, you shall be
deprived of your usual allowance." Having reviewed this
am from first to last, he could not bring himself to think
—ln the exercise of the best judgment he could form, and
albs that which he was sworn to perform honestly, justly,
and impartially—that this remuneration was ezcessive, or
that it was otherwise than the act prescribed, and told him !
to allow the official assignee. Upon consideration of the
amount of the bankrupt's property, which was 25,0001.,
and of the nature of the duties performed by the official
assignee, it appeared to him just and reasonable. Believ-
ing that, in his conscience he could not come to any other
conclusion, because the legislature had cast the duty upon
Mu& If the Lords Justices thought they had power to
vary and alter it, they could do so ; it would be their act,
not his. It was his opinion that it wu a just and reason-
able remuneration, and he could not bring himself to
alter it.