The Express.
London, England, 1852-01-23 00:00:00

kakn intelligence.

ADRIA/SON OF SOLICITORS.
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EQUITY COURTS.—YESTERDAL
BSPOIIIt n• Loam Immo. a Arrw..
Is as Hoar.—BaNitterrcr._

Mr. Kinglake (with whom appeared in
support of a petition of the bankrupt, by way of appeal
against an order of Mr. Commissioner Ayrten by which he
hed altogether refused the certificate of the bankrupt. The
result had bees that the bankrupt was in prison, and could
not be released except by order of the court until a twelve
mouth had expired. It appeared that Om bankrupt, a
young man, had commenced business as a commercial agent
at null in December, ISO. In March, 1840, he married his
present wile, supposing her to be a person of some property.
She at that time kept a shop es a Berlin wool dealer, and was
apparently the owner of the stork engaged in the trade.
After the marriage it turned out that this was
not the ease, but that the property was charged
Gar more than its Tebbe, for advances made to the bankrupt'.
wife by her mother, Mrs. Clarke, previously to the mar-
riage. It appeared, in fact, that a bill of sale of the stock
had been given by the daughter to her mother in November,
1119. to secure 400/,, the whole sum which bad been ad-
vanced. In November, 1850, the bankrupt became embar-
rassed, and the act of bankruptcy was committed in that
month. In January, 1831, Mrs. Clarke required payment
of 1401. ma part of the debt, and tho bankrupt being un-
able to pay what was required, she, on the fled of January,
Issl, put in force the hill of sale by taking peasesaionof the
Roods. The assets of the bankrupt consisting entirely of
the goods thus seise!, he then saw the necessity of be.
coining bankrupt, or of bringing about an arrangement.
Accordingly, through his wife be pressed his mother-in-law
to withdraw her bill of sale, and to become guarantee
for 58. in the pound upon his debts. Mrs. Clarke
refined all terms except upon payment of the 1401. ; and
the bankrupt thereupon paid her that sum, which he hail
previously raised upon the bill of lading of a cargo of clover
seed consigned to him by a correspondent abroad. The
mother-in-law then withdrew the bill of sale, and gave the
guarantee required. The creditors, however, refused to
elver into the arrangement and to accept the guarantee;
and the bankrupt in consequence presented a petition to the
commissioner smiler which he was adjudicated bankrupt.
The commissioner had refused the certificate on the ground
of undue preference given by payment of the 140/. to the
bankrupt's mother-in-law, and that he hod been guilty of
reckless tradino, it appearing that his assets were worthless,
and that his &At* amounted to 1,6001. It was now sought
to reverse the order of the commissioner, on the ground
that the withdrawal of the bill of axle and the guarantee of
is. in the pound was a beneficial arrangement (or the cre-
ditors.

Mr. J. Russell and Hr. Greene opposed, and stated that
from the commencement of his business the capital of the
bankrupt had been merely nominal, while his debts
amounted to IMO/. The tale of the clover seed and the
application of the proceeds to the payment of a debt
amounted to a fraudulent preference.
Lord Justice Lord Crsnworth said it was due to the
hankrupt to say he di l not concur in the learned commis-
sioner's opinion that a fraudulent preference had been shown,
or any intention of fraud in the transaction relating to the
mother.in-law's bill of sale ; in the origin that transaction
appeared to have been bole: fide, and he regretted for the
sake of all parties that the arrangement for the payment of
live shillings in the pound had not been carried out. He
believed the: arrangement to have been suggested bona fide
as the most probable mode of extricating the parties front
their difficulties. On the other hand he thought other
parts of the bankrupt's conduct were open to the observa-
tion made by counsel for the respondents, that it was a bad
system to begin businerui on a capital of 10f., and incur
debts of which there was no probability of repayment.
Such conduct coda not be suffered to pass without re-
mark ; under these circumstances and having regard to the
fact that the bankrupt had in one year expended consi-
derable sums upon himself and his parent, he thought the
proper order would be to grant a certificate of the third
clam, with suspension till the 31st instant.
rd Justice Knight Bruce concurred, observing that
whether there had been a fraudulent preference or not the
conduct of the bankrupt had not been such as could be
passed over without remark.

Penne ry Livoeuessay.—Besoas m Lose CIISNCW tea.
RADDY O. THZ Harr AND WIWI' INDIA Docas •ND
BIANINONANI J CNCTION RAILWAY C
The plaintiffs, Messrs. Huby, are proprietors of a rope-
walk at Poplar, constructed on land, of which they are
lulus, forty years of the term being unexpired. Previous
to the parliamentary seeeion of 1848, the projectors of the
railway company, who received their act of incorporation
in that year, gave the requisite notices and deposited plans
and sections in obedience to the standing orders of parlia-
ment. By these plans it was proposed to carry the line
noose the Messrs. Herby's property by means of an open
cutting. They petitioned against the hill, and in order to
get rid of the opposition,which was considered to be formid-
able,
the railway company entered into and executed an
agreement by which they contracted to cross under the plain-
tiffs roue walk be means of a tunneler bridge, and that " such
part of the surface of the said ropery as should be cut away
should be restored, and he at the existing level of the said
ropery." The bill for the construction of the line having
received the sanction of the legislature, the railway was
subsequently carried under the rnpery by means of a tun-
nel, but the Herby objected that the surface had
not been sufficiently restored, as the true construction of
the agreement was that the surface should be of such a
depth as to render the land applicable for general purposes,
a building, &e. The company, however, insisted that
they were only bound under the agreement to restore the
guffaw so as to make the land applicable for the purposes
of a roperv, as it was used at the time the agreement was
entered into. The plaintiffs thereupon instituted proceed-
ings to compel the company to restore the surface. The
use in the court below was heard before bar Honour Vice-
Chancellor Knight Bruce, who held that the agree-
ment was to be construed as intending to express
such a surface as would give the owner and !mixes
of the land the same general right and power, and capa-
bility of use and enjoyment for all purposes as would have
been enjoyed if the railway had not been carried under the
land, and his Honour made a decree for the proper restora-
tion of the surface. Against this decree the defendants
appealed.
Mr. Rolt, Mr. Daniell, and Mr. Samara* were fur the
appellants.
Mr. Bethel!, Mr Follett, Mr. Malin, and Mr. Logic for
the respondents.
The argument, which was partly heard on the 19th of
December and 12th inst., was resumed yesterday by Mr.
Logie in conclu-ion of the respondent.' case.
Mr. Kelt having replied,
The Lord Chancellor gave judgment. He considered the
object of the agreement which had been entered into be-
tween the plaintiff. and defendants to be twofold—in the first
place to prevent the land being cut by an open cutting, and,
secondly, to provide tor the restoration of the surface to a
given level. It was contended, on behalf dale appellants,
that the object of the agreement was to prevail the perms,-
neat disturbance of the land so as to am the level of the
ropery. The reepaudents on the other head. hoisted that
this was oal one of the objects of the hpeennest ; that it
wee that the bad should be careetstsd as to render
it fit he dl weed posses. la of this view of
the ease, It wee impel he the that they had a
lease of the had fie • tem of 40 yummier issue .ad
that they bad balk two bosses on thett=irs. es
plated erembig ohms ; sad it woe.
Sot they woe added seder the sgressosta tette Te
serfage of the hied resesred of such a depth as a lille/Ift
hem to build theism. It was, therefore, incumbent on
him ID 114014.10 T what wu meant by the word "surface."
In eintethiw the agreement, he would look at
it as V was said about the level of the
osprey, mg del they were simply required to restore
the imam dimimil In the construction of the tunnel.
Mint Ma to be Ms limit as to the surface ? there
may mere moot why it should be sufficient for the pas-
sage of a light cart or waggm than for a building? By
the siremesat it was stipulated that the works should be
performed to the satishetion of the Messrs. Ilarby's sur-
veyor. Now, he could act conceive that if it was in-
tended that the surface was to be restored in some
limited way that this would have been simply stipulated
by the parties, that the surveyor was to judge of the
sulß-
ereaey of the week without some express words to that
effect. It amend to him that the company in these pro-
ceedings had been studiously ambiguous. They had, no
doubt, from an early period anticipated a difficulty, bat
their great object was to get the railway made. It ap-
peared that they had proceeded with the conviction
that a greeds• must arts., but they had taken care
that it should not arise till they made the nil-
theWSW of asks& in the outset, what
dimming. were rboys the swaths settled.
The We Lod Colmar= bed rimlered a most important
public senile la mearlag posses against the encroach-
ments of eaammies erinef with bap powers when these
Li=Let arose %ohm the sees% The principle then
b hie haft WWI their let these railway com-
panies mods* what prom dry dorm if they exceeded
the rillognessy Visited°. la eat their works, then
dry amid test be sous u od to damages for the in-
jury, bet resterstlea. woe set • mispetent argument for
a sompany to say that they maid net otherwise contract
their line. Me was not to be Me judge of the expediency
musk, emile M seasosoden, but was charged with
a jet deity. Pressed., ea the prisple that every
most be e thersrelias to lb. Istesties of
the peeie mad after careful toseldsvellos of ell the beer.
cup me, be was of egialea that the agemmant was
to sheltie *lntl& leek a raft's*. of the ow-
-1 hoe cif the had se woad raider it applimido he general
women The serest on of the evetemat mole le the
mart Wow was a correct one, and the ilemett aunt there-
fore be aMnsed.

Os op, 'cation of Yr. Rolt his lordship granted •
ossposelss of the orqueetraticat for one moth to allow the
partial OM 00 ardor into the naceasary arrsesesess.

RIKPIIIR TRW Marna or TRW ATILIA
SIIIITITIIICRT AND BIZNINONAN RAILWAY CP X
V. VIII LONDON AND NORTH W MIPTIIiN RAILWAY CON-
, PANT AND Suaorsints UNION RAILWAY AND
CANAL Voatrauv.

moss motile /rte iabostion to restrain the do.
WNW kis lookinaotrizrezerynioo say mesa-
yrs. nalie. boo PI enIMS,
et Mu try Ohm phut to say potat or
plots on tb raw, or the otior