The Northern Daily Times.
Liverpool, Merseyside, England, 1856-08-05 00:00:00

LIVERPOOL BANKRUPTCY COURT,

YESTERDAY

(BEFORE MR. COMMISSIONER PERRY.)
In .Re Jo RN Rost.—In this case his Honour said he saw
to reason for withholding a first class certificate.
In Re. J. gun' rsur.—ln this case his Honour gave a
certificate of the second class.
In Re COLPITTS HARRISON.—His Honour delivered the
Following judgment :—ln this case, the allowance of the
bankrupt's certificate, which was applied for on his behalf
by Mr. Bardswell, his solicitor, has -been opposed by Mr.
AsPiaall, as counsel for the assignees Miss Mary Brandeth,
upon the several grounds of misapplication of trust funds,
of contracting debts without ability to pay, and of failure-to
1,,t'e1.) Proper books of account ; and also on the ground of
e bankrupt's ha'ing occasioned unnecessary expense by
vexatious and frivolous delay to a suit for the recovery of a
debt provable under his bankruptcy. With respect to the
last ground, I think it right at once to state that I do not
consider it to be at all tenable. The debt or demand to
Which' he 7th branch of the 226th section refers, is a debt or
demand provable under the bankruptcy of the party sought
to be affected with the final consequences of that portion of
:the bankrupt law consolidation act, 1849.. Now, the debt
in question could only have been ascertained by accounts
taken in the suit, or by the admission of the debtor himself,
without taking such accounts. The ground is also an
untenable one, as it appears to me, for other reasons,
viz.,--That the snit instituted was one necessary for the
administration of the assets of the testator, William
Brandreth, the elder, the late partner of the bankrupt,
Who was one of the executors named in the will, and that
there was neither vexatious nor frivolous di
the bankrupt in the way of the plaintiffs t
to the other grounds of objection to the
be necessary to enter into a history -
bankrupt with his late partn,-
elder, and with his partner'-

ay inter

e connection of the

setnent, in his answer, was
in the year 1845, to
—.4 mm In the management of his busi-
AdrPth agreeing to give him (the bankrupt) the

according to his
empinypcl by the lot
superintend and
nes,' Mr. Br
annual A

resentativeg. Mr. Ilarriso

M Mc. R

ration .t. 250 far two years certain; and, at the exp..
one
(hereof, to admit him to be a partner, allowing him
third share of the profits of such business. In the early
'part of January, 1847, Mr. Brandreth., who was then in a
very bad state of health, informed Mr. Norris, his solicitor
—two--two of whose affidavits, made in the suit of Brandreth v
of
have been produced to this court—that it was his
intention, in the month of June following, to take the
bankrupt into partnership, upon which Mr. Norris suggested
that it might be advisable to anticipate the period of such
Partnership, and to let it commence from the let day of
3.1°112rY, 1847, a suggestion which Mr. Brandreth informed
Mr. Norris. a day or two after, had been approved of by
both himself and the bankrupt, to whom Mr. Norris was
referred as to the terms of the partnership, and from whom
the deed states himself to have received instructions for
toehi..ed of partnership 'Kb; eh was ultimately prep4red. As'
s point, Mr Harrison has; ;n his affidavit, stated that
tr idnstructions.
Wag
'n
.hiteistof,
-were taken by Mr. Norris from Mr.
when, as he admits,. Mr. Br.andr, th
e•th'ertti2, a condition in which it was
hot vete •
et , likely that he would be capable of eivine;
to -`d for a deed of partnership. Previously
w
lis
n'tte execution of the deed, Mr. Brandreth had made his
..,„',13; ~dated 'sth Angt, 1846, and aopointed Mr. Harrison
--- "Jr• Christopher 'Bushel executors. The deed of nart_
trtership hears date the' Bth of January, 1847, and by it a
a„lnershi between the testator and Mr. Harrison, in the
ter"'lle% f wine and spirit merchants, was created for a
The of !even years, from the Ist of January in that year.
tevat"eapital, which was altogether brought in by the
ICand of th was to Consist of the stock then belonging to him,
- e beok and other eebts then doe and owing to
thein resnect of the business the stock being taken at
t,h valuation made on the 31st of
which they' Should produce.
at ,e 5 per cent.,ital the testator was to be entitled to interest
and interest
after the same rate was to be
Paid to each of the partners upon any other capital
Which they might bring in daring the partnership. The
het profits, after payment of rent, taxes, selaries, and
other expences, and akEr making gond any losses which
might be sustained., were to be divided thus :—The tes-
tator was to he.ve two-thirds shares, and Mr. Harrisen
on-tbird sh2:4, and p wer was given to the testator, in
additi°n 1.17, the interest on his capital, to draw by half
learly, tiarterly, or other payments, any sum or sums of'
"'''.ley not exceeding his share of the current profits, and
Power wis, in like manner, given to Mr. Harrison to
draw, nut of his share of the current profits, any sum or
somsums of money not exceeding £5OO a-year in all. After
e provisions with respect to the keeping of accounts,
to the making up, on the 31st of December in each
sear, of a general account to ascertain as well as the stock
'on hand as the pr,fits divisible between the parties, the
deed provided that if the testator should die' during the
'Partnership (an event which happened two dlys after the
execution of the deed), Mr. Harrison should carry on the
business until the expiratian of the term, for the benefit
9f himself and of the personal representatives of the testator
Hi the shares before mentioned, and subject to the several
Pulationa in the deed, so far as circumstances would
Pernalti the capital of the estate being left in the concern at
interest, a particular accromt and valuation of which capital
was to be'rnade out with all cavenient spetd by the sur-
vivia
... g Partner and the executors, in order that the interest
"` each in the concern, at the death of the testator, might
be clearly ascertained. The deed contained a further pro_
'vision for the admission of Robert Brandreth, the testator's
dsit, into the partnership, and then followed direo-
cos for a eeneral account to be made out at the
'eation of three months from the termination ofin
the
\it), such account to embrace all th
anti effects, with a view to a diyisieonsbetween

Portnershl,
debt R

trade
1
the 1)1

or their representatives, according to their
- On the drip of the execution of the
4,d the testator mide a codicil to his will, in which, among
Other n 11/1" r Niynn to illa

rem •
•I'c'etlre ey
0- -

*Beenters, and decl
-

at the circumst

"n having become his p

qr. Hu-
fere with

lite actnr, as on
basing d* sd on the 10th of January, 1847, the will was
Droved by Mr. Harrison and Mr. Bushell, alone, on the 224
Of July following, Mr. Nixon never having acted as execu-
tor, but the trustees named in the will, Dr. Joseph Pilling-
ten Brandreth and Mr. George Lock, have acted in the
trusts devolved upon them by the testator, and in particular
on th 3t f Decemr, 1847, they adtted Roert Brandre ethls oas a pzrtnerbe in the concern, inmi place ofb his
father, and, though no deed of partnership was executed, he
so remained until his death, in March, 1851. At the expi-
ration of the partnership, no such account as that required
by the deed of the Bth of January, 1847, was made out by
the bankrupt, who also failed to eeep such books of
account as were required by that deed. As to this last
Matntter, I observe that the bankrupt, in his answer, will not
'veure to pledge more than his belief that the books
Were such as were r quired by that deed, and as to the
other aceonnt, he states that a general account' and
valuation had been made up to the 31st of December, 1853,
and that in the month of Ftbruary, 1854, he placed, with
the assent of his co-executor, Mr. Bushell, the books of the
Partnership in the hands of Messrs. Harmood Banner
and Son to prepare a balance sheet, which was commenced
tby them in February, and completed in the following June.
ave, with respe t to the epics ion of misapplication of trust.
the which has been raised by Mr. Aspinall on behalf of
assignee, it is admitted by the bankrupt, in his answer
to the bill that if he is bound by the literal construction of
that part of the indenture of partnership authorising him
to draw moneys cut of the partnership funds, he being at
tile tune an executor of the will of his late partner, and
therefore a trustee for parties beneficially entitled under that
I'll had withdrawn from the copartnership in the sum of
42,868 Os. Bd., being one of the sums ordered to be paid
by him under the decree of the Court of Chancery of the
County Palatine of Lancaster, dated 2u'l of February
last. The bankrupt, however, contends that he was led
.to eep,et that he would be entitled to draw out £5OO a
Year, at the least, being £3,500 for the while term of the
partnership ; and in the schedule, to his answer, he shows
that he had, during that period, drawn out sums amount-
ing to £3,522 159. 5-1., being a small excess over the
former amount. He says,.that in making a proposal for
an immediate partnership, the testator asked him how
much be should require to draw for his maintenance and
pe,•sonal expenses, end that he stated that he should
require to draw £5OO a- ear ; that the testator rejoined
that that.sura was not suffiCiene;'but that he (the bank-
rupt) replied, that he would endeavour- to make that sum
do. until he had ascertained whether the business would allow
him to draw
more. Now, this conversation the
bankrupt represents as having taken place when, as he
aa:ys, the, testator we,
giving those instrue himself in extremis, and yet was
gone for the deed of partnership to
Mr. Norris, which I'l4. 'Norris states were given by the
bankrupt.- It is observable, also, that according to the
account given by' the bankrupt of what passed
between
the testator arid himself, when he wag engaged at a salary
of £250 a year, his share of. preeth,
when.he was ultimately
to be admitted to the partnership, was stated at one-third,
the amount fixed by the deed. Again, if reference be made
to the sums stated in the scheduleeto the answer, to have
been dra*n by the bankrupt, it will be Seen that, in the
first pear of the:partnership, he drew only £444 1.6 s Cl., a
elreura:Oauce'teudieg a little towards the conclusion that,
at that time he did not conceive himself entitled to draw
an ebeel t
-But it .ie urged by
11,0 u e sum of £500.. Mr.
unlikely that his client.
well, that it was very
would Save
„g
zi,,,,,)7 consented to a partnership which, taliin 9.,
falling to ,him in the
seven „,,,,,78,1 as the whole profits•
quite f,,IL, would give him ,an average Teeet t of not
•250. The a Year, in exchange for a regular_Psala.sr.y
an
answer to thserlo schedule appears to me to
share of proatarzument in the fact .that the ban
.e3S9
.12s lid, giving txB for 1847 is stated ley himself at
of the partnership, rtienkirunpt's
eer:biexcess above his salary in the first year
added the win:llse,' 1, Now, if to these several facts u",
he read over the (11%11 the bankrupt, in his answer, that
could, I think, be no eerore he executed the same, there
his part, that he was tAf3 dramsou for the expectation on events; and .he must, tl
out the excess over a sum of 500 a year at all
leretort, be .taken to have drawn
violation of the his share of the profits in wilful
provisions of the deed of
,partnership,

;ner was not to int

f the executors of hi