The Express.
London, England, 1849-02-26 00:00:00

THE EXPRESS, MONDAY EVENING, FEBRUARY 26, 1849.

dhesi pupas of malting the audience laugh, is greedy to
impels each reality and satirist as the character posseesse.
Bat we believe that Mr. Wallach only follows the custom of
his predecessors, sad certainly his imitations of Kimble,
Keen, Your& Mseready, and many other stage Ibetabilit4
are exceedingly clever and amusing. Kiss Jolla Beencts's
Lady Amaranth was a deFghthl pietas/mos—a charming
emamansation at the delicacy, pare, and elegance of the
lady with the quaint peculiarities of the quake reel ; thoueh
the character (hke all the rest, indeed) as one that could
exist only on the
.ster. Xeeltys Ephraim Is quiet, but
good ; and When s her Door?. Moan is bciiterous, but
mood also, foe boisteroawases is abs essence of the character.
Webster plays the little pert of Sim, and J. Bland is clever
and effecuve in John Dory. On the whole the performance
was execediogly pleasant, sad mightily relished by a
I crowded 'whence.

lug their answer ininedene. The gait was instituted by the
*rows, asserting a tide to the bed, and soil, sad shores MOO
river Thames between high and low water mark, as against
the defendants, who alaimedto be the owners of the bed, and
soil, and she,.. Cl the river. The tot the solicitor-
general and Mmes. Turner and ltaide. on behalf of the
craven, having bees ennetuded, Mr. Bothell, in his reply said,
that the argument toe the aroma bad been addressed to
the units ot the ease aid was rather to
the effect that the Mindsets had are made •
suSeient deism than that they bad not made a unkind
discovery. The argument for the crown was reducible' to
three heeds ; Ire, that the defendants had not pleaded
issuably, and bad not stated the nature of their defense in •
manner sullidently dear to comply with the ordinary rules
of the court. Begondly, that there was a fideduy relation
between the crown mad the defendants, which disabled the
defendants from withholding anything as peculiar to them-
selves relating to the matters in quotient; and, lastly, that
there existed to the Court of Exchequer, at the time of the
removal of its equitable juriedistion to this court, a peculiar
prerogative ia the crown to compel a subject to set forth
1 the particulars of the title under which he claimed. As to
the first point, the notion that the defendants had not
pleaded issuably, protruded on a misapprehension u to what
was said in the answer, sod cm a mistake as to the law on
this point. The old principle of law was nullum temple oe-
cane retch, but that rule bed been done away with by the
statutes of limitation, and a prescriptive right could now be
acquired spinet the crown, and it was not INCIIIIIII7 VII show
the engin of the defendants' title. Prescriptive right was
founded onions and immemorial possession, and might be set
up hang the ela:m of the crown, and that reduced the
question an this head of the argument to a question of (rid.
OM on tie wording of the answer whether it was
sufficient to raise that defense. The information itself,
in fact, put in hue the gingiva of immemorial
posseesion. The snawer also bad distinctly raised it in more
technical and regular expressions in the very form in which
hues at law to try quondam of prescriptive right were di
rented by the court. The argument en the other side was
that prescription wee nothing unless the origin of it was
shown, but the very genius and tuna of prescription was
that the origin of your title was pat. If you were &Need to
trace the origin d your prercriptioa it would abrogate pre-
scription its, But your tit'e being lost in the obscurity of
antiquity, the law coma in with its benevolent itid. aid
relieves yes from the usiesesity of showing its origin.
If the defendants in their answer had mentioned any
charter or grant, no matter how far back, they
would have lost their prescriptive title. It would have
been an absurdity to plead a prescriptive title and ascribe
your title to a particular period. The defendants have put
their title on prescription alone, and that is all the plaintiff
is entitled to know. Besides all charters are matters of
record, and it cannot be supposed that the crown is ignorant
f the charten it has granted. As to the existence of a
fiduciary relation between the crown and corporation, it
was alleged to be that of landlord and bailiff, and that a
bailiff was not at liberty to set up any title in himself, or to
withhold any diseovery of any matters which came to his
knowledge in that capacity. No such case was made by the
information, nor was there anything in the answer admitting
or givlrg countenance to such a cage. The information
treated the questioa as one of adverse claims, and asked for
issues at law to try them. The argument was that
the defendants bad done the acts of ownership exer-
cised by them as bailiffs ?Witte officii, and that they
debited a colourable title founded on thou acts. GI
the information alleged that the acts exceeded the powers
of the defendants as coneervaten of the river, and
that they were done by them as owners of the sail.
The answer of the defendants was conclusive, that the office
of conservator,, and the acts done by them in that character,
were distinct from their rights es owner of the soil, and the
i
acts done by them as such. The office of conservators was
not, in fact;derived at all from the crown, but from the
legislature. As to the prerogative sight in the crown to
compel a subject to answer any question put to him, there
was no evidence of such a right ever existing in the Court of
Ezdequ.r ; and even if there were, when the equitable
jurisdiction of that court was transferred to the Court of
Chancery, the practice of the latter court could alone be re-
garded, and it was clear it recognised no such right,
Mr. Turner having claimed the right of reply for the Soli-
cit*: General, Mr. Bothell said such • right bad been con-
tinually claimed, but
formal claim.

The Muter of the Rolls said be should reserve his judg-
ment r st the exceptions ; and if the Solicitor-Clerteral claimed
the right of reply, he would heu what he bad to say upon it
on Monday okis) morning.

Before the tlee.araneener ef raglan&
BAYER V. SALMON.-BILL TO BET ASIDE AN AGREEMENT
FOR ma PI:RC/lASI OF A QUADS MEDICINE.
This suit was instituted by Richard George Baker, for the
purpcoe of having an agreement cancelled which was
entered into by him with a person named Robert Salmon,
for the parches, of a quack medicine. The bill stated
that in May, 1845, the following advertisement ap-
peared in the newspapers : "To be geld, for reasons
which will be explained, a valuable patent medicine,
of some considerable repute, in making which public
the advertiser has expended a large sum of money.
Any person with a few hundred pounds may rea-
lise a fortuee." That the plaintiff answered this advertise-
meet, requesting to be furnished with particulars as to the
nature of the medicine, when he received a letter from the
defendant informing the plaintiff that the advertisement re-1
tarred to "Dr. Hamilton's Vital Pi 11.," and the price re-
quired was 4001., which was not a third of the value. The
plaintiff subsequently had several interviews with the defen-
dant, when he wAr informed of the wonderful sale of the
pills, and that the defendant was the only person who was
acquainted with the secret of their composition. That en
agreement was then entered into between the plaintiff and
defendant, by which the plaintiff was to give 4001. for the
invention, to be paid for by three bills of exchange. The
bill alleged that the value of quack medicines depended
'altogether upon the frequency with which the attention of
the public was drawn to them; that the defendant bad,
untruly stated that he had expended 10001.. in advents.
ing trees pills, and that they were not in fact
worth more than a guinea. The plaintiff alleged
that the statements made by the defendant for
the purpose of inducing him to pay so large a sum were en-
tirely false and fraudulent, and that the prescription accord-
ing to which the defendant alleged the pills to have been
compound, d was not written by Dr. Hamilton, the celebrated
physician, but that the ingredients were invented by the de-
fendant himself, and were the same as Moriaon's pale, with
the addition of a little more ginger. Under these circum-
stances the plaintiff Med his bill to set aside the agreement,
and to re-train the defendant from bringing any actions upon
the bills of exchange. The defendant by his answer denied all
the all. gstions of fraud and misrepresentation made by the
plaintiff.
Mr. Bethel and Mr. Bird appeared for the plaintiff, and
Mr. Stuart and Mr. Southgate for the defendant.
The Vice-Chancellor said there had been no ease made out
for the relief sought by the plaintiff ; he should therefore die
miss the bill with costs.

COURT OF QUEEN'S BENCH.-43ATCRDAY.
Malay la %ace at Wes.

The court est to-ilq for the purpose of delivering judg-
ments. _ _ _

TNRQI7IIIIN e. CRARRITTII.-113LLING ♦ CADET/NIP.
In this case the defendant had with other persons been
indicted for having, contrary to the statute, mired messy
for procuring the appointment to a cadetship of the son of
a Mr. WoUtenpooe, a writer to the signet, residing at
Elinburgb. The defendant, who was a captain in the
army, bad been found gnaty. Subsequently a new trial
had been moved for and a rule granted, on the ground that
the words in the act of parliament, whichlwere, "oft*, place,
oommbsion, or appointment," did not apply to the case of a
cadetship. The court now delivered judgment and decided
that the indictment bad been proved, and that the words in
the statute clearly applied to a cadetship, sad the rule must
therefore be discharged.
Ices Paces.—Bsiore Mr. Justice )tale and Special Juries.
Tn■ WRIT COatn►atL RAILWAY C V. MOWATT.
This was an action brought to recover 10,0341., being the
amount of calls made on 6,017 shares, held by the defendant
in the plaintiffs' cam y. To this the defendant had
pl.aded severally that he was not indebted beyond 1001 ;
that he was not the holder of the shares, sad thirdly that he
had become the holder of the shame by the fraud sad curia
of the plaintiffs.

Sir I.lfieTiger, Mr. Crowder, Q C., and Mr. M. Smith.
conducted the cue for the plaint a ; and the Attorney-
General, with Mr. Martin, Q C , Mr. Compton, and Mr.
Jones, appeased for the defendant.
It appeared that the act of parliament ineorpoestine this
company received the royal mem in the year 1846, and in
the July of the following year the defendant, who was the
member for the borough of Perth's, became the registered
proprietor of 6,017 "hues. Upon these a call of 21. per
share was subsequently made. Shortly afterwards the die
&ardent became en active member, taking upon himself
much of the management and control of the company's
affair", acting u a director and as chairman of the board.
While officiating the he had written several letters and eir-
eul-r• to be tent to defaulters pressing for payment, and
stating that it was highly necessary that the calls should be
at once paid, as the whole of the capital had been subscribed.
In another document the defendant had spoken of himself
las the °weer of one flfth of the eompany's entire capital,
and therefore those parties who would not pay their
cells should do so, and also that if he did net
Lave his own way entirely he would have nothing
whatever to do with the affair. The directors, ism-
titling that they had the right of a voles in their own busi-
ness, did not choose thus to have a dictatorship established.
Such a fact having been intinwed to the defendant, he at
once resigned his offioe, stating he would have nothing more
to do with the company, and refusing to pay the N. cell on
hie registered shares. The present action egas therefore
brought.
Witnesses were sailed in suppoet of thus facts ; but on
cross examination, however, they *dinned that there bad
been some agreement entered into between the company and
the defendant, under whisk he had coniented to take the
anscpropriated shares.
The Attorney. %send, for the defame, observed that as
he had been instructed that the defendant had withdrawn
his third plea, he should say nothing about the letters to
which the attention of thejury bad bow called : they were
unimportant. The defendant had willingly takes the sham
in question, but it was under a pedal agewamt ; but the
poiut bivalved would be me entirely o law, whether the
def edamit was legally the proprietor of the shares, and he
(the learned Anterney-General) *amnia it would be awe
, Feudist at ease Is list it in such a gunner that the opinion
of the out ideal be obtained.
Sir F. Thegiger laid it night be pat is any Reis his lard-
Ali deemed pew.
L'lrdohips ea the termination of some disemelen, sallt
a verdiet for the hal amount, 10,0341. and intermit, should be
entered he the plaintiff, subject to • special verdict.

OOURT OP IXCHICQUIR.-B•Tosaii.
Nos Pura.—Bolen Blr F. Pollock, GE., sad Lauda lipealal halm
CODRIITT PAIIPIR) r SIR MIRROR GYM; BART.,
LIM JOHN HUDISOR.—ALLIORD ARIAL:ILT MID FAUI ht.

This was an action ise trespass fur asmalit and Wee impel-
semseent, alleged to have been committed by the defendants,
under the following reconstitute a :—The deelaraion stated
that the plaintiff bad been assaulted on the 24th of Deem-
her, 1847, in the Qiteen's Bench prison, and Weaselly ear.
palled to go from one part thereof to another, hewn as
elms 1," which was MOT, confined and unhealthy. That
"ogre 1" was devoted to the reception of fraudulent
dares or 1 error remanded by judges of tee insolvent
emits foe refusing to file schedules of their property. That
the plaintiff was there detained for 44 days, and prevented
from holding interoDume or core tension with his lawful fel-
lows or friends, and mom receiving his proper load, &c., coo-
racy to law. The defendants 1 leaded first " not guilty by
attar "" second, that certain rule, and regulations fur the
dassifiestion of prisoners in the Queen's Bench Prison bad
teen made by S.r O.Grey, as Secretary of State for the Home
Deprentent, under the authority 22,
for the guidance of Hudson, the other defendant, who was
keep, re the prison. That the plaintiff being, in 1840, a
in the Fleet prison, under an attachment of the
&bier :f Chaaetry for eerie:ripe in not obeying an order to
pay certain costs to one ()Afield, was removed to the Queen's
Beach prison under the provisions of the act referred to.
That Oldfield obtained from the Insolvent Court a vesting
order, whereupon the plaintiff was required to file his sche-
dule within 14 days, and that as he had nut done so, the de-
&Mint Hudson, by order of Sir George Grey, as such Seer.
tary of State, and in pursuance of the rules and regulations
se made, gently laid hands upon the plaintiff, and removed
his from one part of the prison to the other, as he was law-
fully authorised to do. The third plea alleged that on the
28th of March, 1848, the statute 11 & 12 Vie. c. 7, yet
passed to amend the 6 & 8 Vie. c. 22, and completely indem-
nified :the Secretary of State, the keeper of the Queen's
Bench►prison, and all others fur anything whatever heretofore
done by them or by their orders, with reference to the classifi-
cation of prisoners therein confined, and that the trespases e
complained of by the plaintiff, were committed in respect
to the clarification of prisoners in that prison, in pursuance
of the rules and regulations issued by the Secretary of State,
under the provisions of the firsenamed statute. To this
plea tee plaustiff replied that the trespare. complained of
were not seta done in respect of the classification of the
prisoners; and to the second plea he replied de injure',
denying the justification alleged therein. • •--•
Mr. A. Newton and Mr. Chinook, the plaintiff's coun-
sel, contended that his remora! from one pert of the prison
to the other was an act of trespass and else imprisonment,
for which both the defendants were liable, although, in
fact, no actual assault had teen committed by either of
them. The plaintiff having pursued the directions of the
officers of the prison, rendered any force or violent means
unnecessary. He was kept amongst the most objectionable
persons in that confined and unwholesome pert of the
rrisen, from the 24:h of December, 1847, moil the 7th of
February following. He appeed for his release to every
one of the superior courts and cOmyt to every judge,
but all his &pi Beefiest, failed. The keeper of the prison
was, however, well aware that Mr. Cobbett's detention in
"Claw 1 " was wholly unjustifiable, although the several
judge' to whom the applications had been made ruled that
he was not entitled to be absolutely discharged. Oa that
ground the plaintiff was removed to his former quarters, and
on the Bth of Feber this action was commenced. Instead
of pleading to the declaration in three days after it was filet!,
as was the ordinary practice, the defendants obtained a
month's time to plead, and in teat interval the act of parlia-
ment indemni•ying the secretary of state, the keeper of the
Queen's Bench prison, and all others, fur sets done in respect
of the clarification of the prisoners, wee pared at the in-
stance of the Attorney-General and Sr G Grey. The plain-
tiff felt aggrieved by that proceeding, and it was now sub-
mired that it was highly improper if the act received the
eotialniet ion notated in the second plea. The learned counsel
contended that the act did not apply to trespasses such as
those which formed the subject of the action ; for they were
not " ac's done in regard," but in total disregard, "of
the classification of the prisoners." They, therefore, ap-
pealed to the jury for ample damages to compensate the
plaintiff for the privations he had been subjected to. The
chief turnkey of the Queen's Prison, gird two other wit-
nesaes were called to prove Mr. Cohbett's removal from one
part of the prison to the other. It appear.l the plaintiff
wee removed without • hand having been laid upon his per-
son, although he invited the Wirers to do so. A return of
the defendant Hudaaa to one if the many writs of h ibe as
corpus sat<d out by the plaintiff was also proved. It set
forth the principal facts pleaded by the defendant..
The Attorney-General (with whom were Mr. M. D. Hill,
Q C., and Mr. Webby) for the defendants submitted that a
verdict ought to be returned for them, as no case whatever
had be_ ea proved. As regarded Sir George Grey, the phall-
i! shield be non-suited, because the venue ought to have
been laid in Surrey, and as regard, d both the defendant,
these ought to be • 'weenie because the plaintiff being
in eninody at the time of the comminion of the
Cettrooper, and there having bean no assault
i menmitted, the form of action should have
hien "ere," if any, for an exceeds° abuse of authority.
The learned gentleman then argued that the second plea had
been literally proved by the return put in by the plaintiff,
end that the third plea, which was also proved, furnished a
empire answer to the action. He said he had been in-
lonned during his absence in another court that the learned
sounsel for the plaintiff had thought proper to make certain
assertions with respect to the act of indemnity referred to in
the course of the trial, and the part taken by him (the At-
toeney•General) in the passing of that statute. He would
merely remark that he 'liquid treat these observations with
contempt and silence, as they called for no answer from him.
He believed, ho , they owed their existence entirely to
Mr. Cobbett's imagination.
Mr. Newton was then heard in reply, whereupon
The Lord Chief Baron summed up, and directed the jury
to find fer the defendants upon all the issues.
A bill of exceptiors was tendered by the plaintiff's coun-
sel, and of coulee accepted.
The jury returned a verdict for both the defendants, in
se-cadence with the direction of the learned judge.
Itllolll v. WINPIII.7I4ILWAT. LIT!GATION.

Thie was an action by Sir John Rennie and Mr. Reming-
ton, the eminent engineers, to recover from the defendant,
Sir Wm. Wynne, as one of the managing committee of the
Direct Ernst sad West Junction Railway Company, the sum
of 3,6001. for profeesional services. It appeared the company
was formed in 1843, Mr. Joseph Alexander Jones hl'Oregor,
a solicitor, having been the registered promoter. Sir Win.
Wynne was requested by Mr. M'Gregor to become a mem-
ber of the managing committee, to which he assent. d on
being indemnified. Ile had never attended more than one
meeting of the committee, subsequently to which the plain-
tiffs were employed. The paid up deposits amounted to
19,0001., of which 11,0001. or 12,0001. were transferred to
the Derbyshire and Staffordshire Railway, with which the
Rest and West Junction became amalgamated.—The jury,
by direction of the learned judge, returned a verdict for the
defendant, and a bill of exceptions was tendered to his lord-
ship's ruling.

JUDGE'S CHAMBERS.—S•vvitime,
Wore Kr. Justice Patens.
ORDIR OF 'I/FILIATION ON COL. DIANE.
Mr. Justice Amason granted • writ of certiorari to remove
this ease into this Court of Queen's Bench. The application
was made on Thursday last by Mr. Pad+ley on behalf of Col.
Blass, whims he stated that the grounds for the application
were that the mother of the child haring applied to Mr.
Hardwick, the magistrate of the Westminster Police Court,
tor an order of affiliation, which was retuned, the case could
not be re-heard by another magistrate ; and also from the
fact M the child having been bora abroad, it was out of the
jurisdiction of the English law.

CONSISTORT COURT.--S•rtran•v.
Beim De. Lushlngton.
CATON e. CATON.—ADULTNIT.
This wu a suityronsoted by a Mr. Richard Redman Caton,
against kin wife, Mrs. Anna Maria Caton, for divorce on the
ground of adultery. The parties were married on 3rd June,
1831 Mr. Caton was then an assistant surgeon in the Grena-
dier Guards, from which he afterwsrds retired and went to
live at Brighton. In 1841 Mrs. Caton formed en illicit
ae-
tachment towards Lieutenant Broadly Harrison, of the 11th
Hussars, and s letter addressed by her to Lieut. Harris= had
been intercepted by her brothers, Messrs. Ridouls, but which
letter did not reach Mr. Caton's hands, the brothers nf Mrs.
Caton assuring her husband that the letter was an indiscreet
see, but that there was nothing criminal in her conduct,
upon which Mr. Caton became reconciled to his wife. They
then went to several other places to reside, and in 1843 they
were staying at a relation of Mr. Caton's at Paris, Madame
St. Rose, and hers again Mrs. Caton was detected carrying
on a criminal interims's*e with a Major St. Rue, the see of
Madame St. Rose, by whom it was stated she became preg-
nant. It was at this period, 3d Dec. 1843, that Mr. Caton
separated himself from her, in consequence of Mrs. Caton
refusing to leave Madame St. Rose's house, to accompany
him, with her children, on their return to England, and
continuing her criminal intercourse with Major St. Rose,
wham wife detected them leaving the chamber toge-
ther, on which occasion she taxed them with having been
criminally guilty, which they admitted. It was further al-
leged that in October 1846, Mrs. Caton gave birth to a
child, of which Major St. Rase was said to have been the
father. The letter written by Mrs. Caton to Lieut. Bar.
riven while residing at Brighton, in le4l, wan now put in as
evidence that a criminal intercourse had been carried on be-
Lee= them is 1841. It commenced "My dearest Broad-
ly," and styled him es her " darling," with many other
strollss expressions of affection.
The Queen's Advocate contended that he had produced
suflcient evidence as to the criminality of Mrs. Caton, and
that the court would not, therefore, refuse to pronounce for
the divorce.
Dr. R. Phillimore followed on the same side. He hoped
the court would take into consideration that Mr. Caton was
not aware of the contents of the letter addresszd by his wife
to Lieut. Harrison until he had commenced there proceed-
legs, arising (rem her conduct with Major St. Rose, and that
the brothers had assured him that there was nothing in that
letter which could criminate ber, though it proved her to be
highly indiscreet ; therefore the husband relied upon that
aseurence, became reconciled to his wife, and did in no way
connive at his wife's infidelity.
Dr. Haggard said be had nothing to say on the part of the
wife, but if the court wished him to proceed with the argu-
ment, he would ask its indulgence by adjourning
a future day.
The Court said this was note noval ease ; eases of a similar
disci iption had been before the court, but it would adjourn
it to a future day, as cannel wished the case to

INSOLVENT DEBTORS' COURT.—SATITIDAY.
IN MI GZIPTITIVIL—CPAIOII OP FPLIID MID Bu►CB OP
Taus,.

This ease, which was loud OaTnesday, was resumed and
brought to a coneineion, after an investigation of five hears.
Mr. W. B. Watson, the QOM'S Counsel (with who= was
Kr. Nichols) was specially retained on the part of Samuel

I Plait, EN, of Hyde Park-gardens ; Mr. Cooke represented
some sudden, and Mr. &mud appeared for the insolveid.
The &arcs made against the insolvent, who applied under
the Protection stet, was that he had *entrusted a debt with
Mr. Platt by fraud and by means of a breach of truer. It ap-
peered that the insolvent had managed the business of the
well-known establishment of "Godfrey and Cooke," the
chemia's, for more than 30 years, principally iaConduiestreet,
and latterly had a salary of MI. a year, and an allowance,
which he considered ea a share of the profits. Mr. Platt, the
sal-in-law of the late Mr. Cooke, was now the sole owner
of the two eatablishments in Sauthanapton.atreet aid Con-
duitaireet On one side Mr. Plat was inserted as a creditor
for 6021., and on the other side a setoff to about the same
amount was mad* for a share of profits. The question was
whether a partnership had existed, or whether the present
sum owing by the insolvent arose from defalcations in his
accounts. Mr. Platt was examined, end denied the exist-
ence of a partnership in any form whatever. He had made
the insolvent a " previa% " for his exertion.. Mr. Platt made
him an allowance beyond his salary. It was found that the in-
solvent owed Mr. Platt about 1,0001., and he gave a warrant
of attorney, and assigned all his proputy, which had been
realbed. It was afterwards dianovered that there were two
sums of 621. and 251. which had not been known, and in
April last the in.olvent was dischavged. His creditors had
met, and he had peitioned under this act, in order to
ascertain whether Mr. Platt was liable to them under a legs'
partnership.
The ireolvent stated that it war understood that he was to
have a share in the profits after Mr. Platt bad taken an arbi-
trary sum. It was nit known that Mr. Platt was the owner
of the bushiest He did not know whether ha was a legal
partner, but he always understool that be was to have a
share of the profits.
Mr. Watson baying addressed the court for Mr. Platt, and
Mr. Stirred having replied on the part of the insolvent, Mr.
Commissioner Harris, who had, in the course of the case, ex-
pressed his opinion that there seas no pretence for a partner-
, ship, gave judgment. It appeared to him quite clear that
the insolvent was not entitled to have that protection, and
renewal of the interim order which the act of parliament
prescribed. He, therefore, refused to name a day, or to re-
new his protection.—Adjourned sine die, without protection.

INSOLVENT COURT.—YoIuc„ SkruaDiy, FEB. 24.
ME. COMMISSIONER Bvaow•r CASE —CAN TEL COM-
MISSIONER OP AN INSOLVENT COURT RELEASE AN INSOL-
VENT COMMIASIONER PROM ISIES,IIIONMEXT ON THE GROUND
OF ILL-HEALTH ?

In the Insolvent Court at York on Saturday, Mr. Burge,
at the time of his insolvency a commissiener in the Bank-
ruptcy court at Leeds, came no to ap;ily for an order for
protection and consequent discharge from prism', on the
ground of ill health.
Two medical gentlemen, Pr. Goldie and Dr. Shaun, were
examined, and they agreed in the opinion that confinement
in prison, c meled with the consequences of hope deferred
had had a most injurious effect upon the insolvent's state of
health, both in a =mita' and physical point of view, and that
if such imprisonment were eoutinued, it would prove un-
f►vourable to the troloneation of his life.
His Honour (the judge) said there was a most serious
question as to the state of the law upon this subject. He
leered there was no provision in the protection act or in the
g 1 insolvency act for allowing en insolvent prisoner
•o be discharged, on the ground of ill health alone. He
feared that this was an omitted cue in the law, and that his
power was limited to what wit pointed out in the 28th sec-
tion of 7 & 8 Vie., e. 96, which provides that the court shall
be governed by all the circumstances of the insolvency, and
the conduct of the petitioner as an insolvent, before and alter
such insolvency.
Mr. Burge, who, with occasional reference to counsel, has
conducted his own case throuethout, submitted that the state
of a prisoner's health did constitute a circumstance in respect
of watch the court had the power to determine whether pro-
longed imprissnment, in such case, was contemplated by
the set

Hie Honour stated thst the act 1 & 2 Vic. (the general
Insolvent Act) had no• been altered since the passing of the
Protection Act, 7 & 8 Vie; and he could not admit the ar-
gument that the mere circumstance of the petition being
made either under the one act or the other ought to maku
any difference in the judgment of the court. The 78th sec-
tion of the one act, and the 24th 'talon of the other. alike
provided that the commissioner, on its appesrinc to
him that an insolvent had contracted debts with-
out reasonable or peels& le expectation of being
able to pay them, shall order such insolvent to
be discharged after the expiration of any period not exceed-
ing two years ; and his view of the case, which appeared to
him to be the only one censist.nt with common sense, was,
that as bath sections were alike, the court must, under
either act, inflict the same puradmege.
Mr. Burge submitted that if the eff et of imprisonment
were such as to prejudice the health cf the insolvent so as to
eherten his life or to increase the difficulty in
the way of his resuming any occupation for the
benefit of his family et others, it was rendering
the punishment of imprisonment more severe than
was contemplated by the law ; and that the evidence given
of the effects likely to be produced on his health by the pro-
longation of his imprisonment afforded a sufficient reason for
the court to grant him his protection and discharge.
His Honour feared that the words of the section were so
plain and precise that they would not justify him in constru-
ir.g them so as to have any reference whatever to the health
of the insolvent. It was a strange state of law ; but he be-
lieved that, whereas the crown bed the power to release cri-
minal., on the ground of ill-health, it had no such power,
as regards insolvent debtors. As far as be was aware such
power had never beet attempted to be exercised, either by
the commissioners or the Home•oftlee ; and it there were any
such power in any quarter, it was all the more likely that in
passing this act it wu not intended to place any such power
in the commissioners.
Mr. Burge, in answer to a queetioa from his Honour, as to
the facts of the case, obg reed that he was not competent at
present, either mentally or bodily, to go further into them,
and he therefore warmed to their remaining as at present, at
the ruse time imploring the commissioner to take his state
of health into consideration in naming a day for his protection
and discharge.
His Honour gave judgment. It was with very great pain
that he felt compell.ll to put a construction upon the words
of the 28th section, which restrained his power with regard
to granting protection and discharge to a person in Mr.
Burge's situation. It was with the de: pest regret that he
expressed the opinion that those words did not authorise him
to put his signature to • warrant for his protection and dis-
charge on the ground of ill health. With regard to the facts
which came nut on Mr. Barge's first examination, it was then
represented by him In substance that hie Leeds opposing
creditors at the time when they made their advances, were
aware of position of his affairs. His Honour felt it to be
incredible that men of business as they were would, if they
had been aware of the embarrassed state of his affairs, have
advanced their own end their dents' money to the extent
they did. He could nut believe that if they had been aware
that forty or more actions at law had been brought against
him within a abort period they would have made any such
advances. It nettled cot the actual testimony of those gen-
tlemen to prove the intrinsic incredibility of insolveat's
evidence in that respect. But if they had been
so simple-minded —he might say se infatuated —as
to make the advances they did with a full know-
ledge of the fasts, even then the question under the
24th section, according to the construction his Honour put
upon it, would not have been whether there was • want of
common sense on the pert of the lender, but whether there
was • want of honesty on the part of the borrower. When a
person was who died oat of his property, as far es the indi-
vidual who loot his property was co Bernd, and as far too as
the public were concerned, the effects were more injurious
than if the party had here robbed to the same extent ; for,
in the one cue, sympathy might be induced to make the
lose up to him, but, in the other, he must expect little com-
miseration—perhaps to be laughed at—and very frequently,
in addition, sustain further for from the injury done to his
character. Under all the circumstances of this case, he felt
that he should not be doing his duty, if he did not defer the
protection and consequent discharge of Mr. Berge, from the
commencement, for 'wee,' the period of a year. He had
heard, and he believed it, that up to the hour when he
quitted the Bankruptcy Court at Leeds, he acted
there with that entire and unflinching impartiality,
which, thank Clod, seemed to be the character-
istic of a British judge ; but this, at the same
time, was what made it all the more incomprehensible how
a gentleman, who was judging the conduct of others so
firmly and faithfully, could take such an erroneous view of
his own, or fail to conceive how very reprehensible—how
very uncharitable—how very monthlong in consequence that
conduct must be. His Honour then intimated his intention
to allow the insolvent to come up for his protection and dis-
charge in the month of April, and not before. At the same
time, if he thought proper to take any further measures with
a view to his earlier release, he should be happy to express
his opinion on the subject of his state of health.