The Express.
London, England, 1862-08-29 00:00:00

ASSIZE INTELLIGENCE.

NORTHERN CIRCUIT.—LivaRpooL, AvousT2&
(Before Mr. Justice Mellor and a Special Jury.)

GEL•NDY AND OTHERS T. BEHRENS AND OTHIEB.-THE
CHARGE AGAINST MANCHESTER MERCHANTS.
. . .

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The hearing of this case was resumed at the opeeing of
the court, when further evidence was adduced on the part
of the plaintiffs, with reference to the various parcels of
goods which had been purchased by Dalton, and Heap
from different firms in Manchester. These witnesses agreed
that the prices at which the sales were effected were the
ruling prices of the market at the respective dates, and con-
sequently that the rate at which Heap sold the goods to the
defendants was considerably below the fair market prices.
The witnesies were subjected to long crop-examinations at
the hands of Mr. Serjeant nee, with the view of
showing that the market was bad, there being more
sellers than buyers of goods ; but most of the
witnesses, while admitting that there had been
some decline in prices, and that the market had a down-
ward tendency, denied that the market had declined to the
rates at which Heap sold to Behrens.
At the claw of tLe case for the plaintiffs,
Mr. Serjeant Shee submitted that Dalton, and Heap, who
stopped payment on the 25th of March, endeavoured to get
an arrangement with their creditors under the arrangement
Chilli/BS of the Bankruptcy Act, and, failing in that,they became
bankrupts in the month of June, having moved under the
arrangement negotiations in the month of May that proof
of the plaintiffs upon the estate of Dalton' remained iu the
Bankruptcy Court, and on the 19th of November
they received a dividend in respect of the debt
due by the bankrupts. They bad at that time full know-
ledge of everything that had passed in the
Bankruptcy Court, the debts, prices, and amount of the
sales by Dalton. to Behrens bad bean stated by them, and
every witness who had given evidence in the present case
was previously examined. Upon this state of things the
plaintiffs accepted a dividend, and he held that dividend
from the 19th of November, 1861, till the 11th of July,
1862, when he went through the form of repaying that divi-
dend, and the very next day, although no new facts had
been brought to light, the present action was brought. The
learned serjeoot submitted that, supposing the transections
were fraudulent in the mind of Heap, that would not void
the .xnatract. Fraud on his part might make the contract
voidable, but it would not make it void ; and therefore,
assuming that it was fraud on his part, still
it was not such fraud as to annul the contract, the
plaintiff* having confirmed it, with full knowledge
of all the circumstances, by receiving the dividend.

The Judge remarked that if he should hi've nonsuited the
plaintiffs, or if he. should have directed the jury in point
of law that the contract was affirmed by what subsequently
took place, the defendants should have the benefit of the
points in the court above.
Mr. Serjeant Shea submitted that the plaintiff should be
nonsuited on soother ground. The plaintiffs attempted to
prove that there was a conspiracy, not between Heap and
the defendants Jacob Edwards and Rudolph Behrens, but
between Heap and Louis Behrens, that as to the defendants
it was mere constructive conspiracy, and that was no con-
spiracy at all in this case.
The learned judge thought a civil action was a different
position from persons leing indicted for conspiracy, but
where one partner got goods into the possession of the firm,
that was sufficient in an acton for trove?, and by his eon-
duct he might make the firm liable for the goods he had ob-
tained. His lordship intimated that he would, however,
reserve this and the other point raised by the learned am-
junt fix the decision of the court above.
Mr. Serjeant Shea, in his address to the jury on behalf
of the defendants, after asking them to disabuse their minds
of any prejudice that might have arisen with refer-
ence to the case, said the issue of the trial was of vital
importance to the defendants—it was the life or death of
their commercial character. After Messrs. Behrens had
passed unscathed and untouched through the ordeal of a
previous action in a court of law, the jury would now re-
quire very strong evidence before they came to the con-
clusion that it was right and proper to put them again on
their trial and endeavour again to damage their honour and
reputation as men and as merchants. Messrs. Behrens came
before them with strong claims to their generosity ; they
were not natives of this country, they were natives
of Hamburg. and had been established for thirty-
five years in Bradford and twenty-nine in Man-
chester. They had raised themselves from a humble con-
dition in life, by Industry and integrity—in the midst of a
community which differed from them on serious matters, and
which was not particularly partial to their creed or nation
—to a position which entitled them to take rank in the first
and highest of the mercantile aristocracy of Manchester.
Their transactions annually amounted to nearly 400,0004 •
they stood upon the first clan of the assrasatil• community:

and these facts should incline the jury at least to a favour-
able hearing of their case. The plaintiffs undertook to
make out that the defendants, through Louis Behrens their
pm tner, knew Dalton& and Heap were on the brink of bank-
ruptcand that they and Heap conspired together to deprive
the plaintiffs of their goods under the pretence of a bona
fide purchase, well knowing that they would not be paid far,
and it being arranged that Heap should have the advantage
of ready cash from Behrens, and Behrens having the advan-
tage of considerable profits by receiving the gooda at low
prices. The learned counsel urged that the defendants had
no reason to believe that Dalton/ and Heap were in insolvent
circumstances, the firm having been in excellent credit up
to the date of their stoppage, and Messrs. Behrens not
having any special reason for being of a different
opinion from the community at large. He denied
that the defendant had purchased the goods at
an unreasonably low rate, and asserted that in con-
sequence of the decline of the market they were ultimately
sold by them at a very low profit. The whole of the twenty-
five transactioos with Dalton. and Heap produced 20,917
pieces of cloth ; the total amount paid by Messrs. Behrens
for these goods was 7,9:i8/. ; after paying for bleaching and
printing the goods,which was necessary in order to makethera
merchantable, the goods coat them 9,135(. ; they were sold
by Messrs. Behrens in various lots at the aggregate price of
9,7371., leaving a balance of 6091. ; but after deducting
charges for commission and the ordinary trade ex peoses,
the actual profit realised by them upon the whole transac-
tions was 4521. The learned serjeant went carefully through
the evidence, and urged that the testimony of Heap, for
unless the jury believed his evidence they could not find a
verdict fur the plaintiffs, was unworthy of credence.
Louis Behrens, partner with the defendants Jacob,
Edward, and Rudolph Behrens, was the firvt witness
examined for the defendants. He said their hesitates, car-
ried on in Bradford and Manchester, was commission agecta
and merchants trading to various parts of the world. Their
' first transaction with Delta's and Heap was on the 6th of
December, 1860. Mr. Heap came to their warehouse and
told them they had some goods to dispose of. Witness
went to his place, and was shown some printed goods. This
was not in his department of the bushier, and he peened
them over. Heap then asked if he would buy gray goods,
and he inquired Heap's reason for selling the grey. He
said be had such • large lot cf printed goods in
stock which he could not dispose of that be
wished to sell some of he grey goods. Knew the print
trade was unusually depressed at that time, and was aware
that when printed goods could not be sold to advantage
printers of credit and respectability disposed of their grey
goods. Requested him to send samples ; he did so, ant
then agreed to purchase the goods in the first contract.
Heap told him he had goods on contract. Heap did not
show him any book, sod he never mentioned the people he
had got the goods from ; had no knowledge whose goods
they were, or what was the price paid for them. Never
told Heap where he could get good, of certain descrip-
tions; never, in point of fact, did he (witness
tell Heap that he wanted particular kinds of
goods, and that he (Heap) could get them at
various places which he mentioned. Left England on the
12th of January, 1861, and returned on the god of Fe-
bruary. Never said to Edward Bebreos, in Heap's pre-
sent*, that he had DO right to ask Heap whether he was in-
solvent, or that he had no right to ask any such question, as
he bought goods in the cheapest market. Was not in the
country at the time Heap alleged that conversation to have
taken place. Is one case, where he paid, on the sth of Fe-
bruary, 7s. per piece to bulbous and Heap, on the 25th of
the same month he brought precisely the same goods from
Mears. James Kaye and Co. for 6s. 9d. Week after
week the market bad been declining, and business
was much depressed. He did not remember since
1847 the market being so much depressed as from
January to March, 1861. Printed cloths and India shirt.
ings were particularly depressed. The witness gave parti-
culars of transactions which he had had about the same
period with various parties for the purpose of showing that
the prices paid to Dalton. and Heap were not unusually
low. He also gave an account with the outlay upon the
goods, and the sum they had realised by the various tanoe•c-
tions with Dalton, and Heap, showing • net profit to their
firm of 4321. ; the gross profit upon the goods which had
been obtained from Grundy, Kay and Co. was 1451.
In cross-examination by Mr. Temple, Q.C., the witness
said he believed he had never before this cue purchased
grey goods from a calico printer, though he understood
such transactions were not unusual. Ile denied that be
bad first made the offer to buy the grey goods, and asserted
that the proposition was entirely voluntary on the part of
Heap.
Mr. Serjeant Shee summed up the ease for the defence,
and the court rose at six o'cicok.

To-day (Friday), Mr. Temple, Q.C., will reply on the
whole man, and his lordship will sum up. There are no
more witnesses.

THE POLICE COURTS.