The Northern Daily Times.
Liverpool, Merseyside, England, 1857-03-20 00:00:00

LIVERPOOL COURT OP BANKRUPTCY.

BEFORE MR. COMMISSIONER STEVENSON.
IMPORTANT TO SHARBBROXERS.—In re COPRIAND 6.71
parte HOLMES AND ex parte DAVlES.—Yesterday, Mr. Corn-s
missioner Stevenson delivered judgmentin this case as follows :
Two proofs are sought to be made under this bankruptcy
which aro objected to on behalf of the assignees; one proof
being by Mr. A. L. Holmes, a stock and sharebroker, for the •
sum of £1,823 3s Id, and the other by Mr. William Davies,
also a stock and sharebroker, for the sum of £2,388 Is sd,
and both being made in respect of moneys alleged to have been.
advanced for the use and on the account of the bankrupt, and
at his request, and for commissions in respect of such moneys.
The objections taken to these proofs are that the transactions
upon which they are founded were in the nature of time
bargains, being (as it is alleged) merely for the settlement
of differences in the prices of shares, according to the rise -
or fall of the market value, and therefore gaming trans
sact'ons, and, consequentiy, that all claim under such trans.
sections are void under the late act of 8 and 9 Vict.,
c. 108, s. 18, rendering void all contracts by way of gaming.
Both these claims arise from written contracts allege&
to have been made and entered into bona fide for the'
sale and purchase of railway Bharat, and from what are
termed continuation contracts in respect to such shares:i
It may be premised that it having been settled that railway
shares are not within the meaning of the act 7 Geo. 11, c. Ss
called the Stock Jobbing Act, no objection to these dahlia
arises under this act. But the question for my consideration is
whether these contracts were made aad entered into bona fa,
for the sale and purchase of shares, and not merely coiourable,
to be settled only by the payment of differences in the vait:e of
them, according to the market prices on the several account
days. In the recent case of Grizewood v. Blow, 11 Chm.
Rep. 538, which was a decision upon the statute 8 and 9 Vice,
c. 109, as to whether a contract for the sale of shares was a.
gaming contract, the Lord Chief Justice, on the trial, at the:
sittings in London, left it to the jury to say what was the'
plaintiffs intention and what was the defendant's at the time'
of making tho contract—whether either party really meant to
purchase or to sell the shares in question ; telling them that if
they did not, the contract was, in his opinion, a gambling transac-
tion, and void ;and the jury accordingly returned a verdict thereby
finding that there was no such intention. In this case it appeared
that no shares were passed between the parties but merely settle-
ments of differences; and upon an application for a new trial,
upon the ground of misdirection of the judge, it was held
there was no such misdirection. Mr. Justice Cresswell
observing that the jury were told that if neither party intended
to buy or to sell it was no bargain, but a mere gambling
transaction, which was the true question to be left to the ;
and as to the evidence, that he thought it abundantly war" •
ranted the jury in coming to the conclusion that there waste
real contract of sale, but that the whole thing was to 61,
settled by the payment of differences; and Mr. Justice
Williams observed that there was ample evidence of mutual
understanding that the contract of the sale was colourable only.
Now, what are the facts in the present case ? It is difficult to
make out from the accounts produced what was the nature of
hese transactions, and Mr. Davies himself admits that it would
take him a considerable time to explain them satisfactorily to
the court. But It appears that these transactions were in the
first place founded upon written contracts for the purchase and
sale of shares, and I collect from the examinations of Mr.
Elolmes and Mr Davies (which with the contracts and accounts,
it is to ho observed, are the only evidence before 10°
in reference to these ptoofs) that although there does not nOl'eat
to have been any actual transfer of shares eithe
by or to d°
bankrupt himself in pursuance of any of these conitraetele
that actual transfers of shares were made in respect o: t`j
.4,
contracts on behalf and by the direction of the bankrupt, cab.,
,
ter
by Mr. Holmes and Mr. Davies respectively, or some ode(
person, and were made to parties from whom loans had beta
procured to enable Mr. Holmes and Mr. Davies to carry °tit
the execution of their contracts, and which loans, and 114'
interest on them were charged to the bankrupt's account
Therefore, taking the direction referred to in the case cited e°",
the proper test upon which the validity or invalidity °I
transactions of this kind is to be determined, and applfinff
it to the facts of the present cases as they are presenterk
to me, although the evidence is far from clear, yet r
am not prepared to say that there is sufficient evidence
before me to warrant me in coming to the conclusion that'
in either of these cases there was no intention in either part!
to purchase or sell the shares referred to; and consequent'?
I am bound to hold that these are not shown to be gaol
transactions within the act referred to It has been observe'
that the Lord Chancellor, in the case of ex parte Copeland, 1
appeal under this bankruptcy, reported in the 22nd volume
the " Law Journal Book," p. 17, is reported to have Baid,tboa
he was strongly inclined to think that the transactions tee;:i
referred to (which was similar to the transactions in questier,„,,'
this case, and in which the bankrupt was shown to as,
a loss which deprived him of all right to his certiftati
was a sort of claming or wagering within the 201st. section °
the Bankrupt Law Consolidation Act, and which opinion migh*
he supposed to be entitled to much weight in the consideration'
of the questions before me. But it is to be observed that
this point was not relied upon as a ground of the decision
in that case, and the evidence there taken was entirely
parte from the bankrupt, without any evidence from any °I
the other parties concerned in the 'transactions, and thereforni
cannot, I apprehend, be regarded even as an obiter dictum °
the Lord Chancellor applicable to the question now raised.
Upon these grounds I think tho proofs proposed are entitled I°
be admitted.

INSOLVENT _DEBTORS' COURT, LONDON•

SINGTIIAR CASE.—In re LUKE JAMES ALLEN.--"rbt
insolvent, who hadi been captain of a trading vessel, Wa.,
opposed by Mr. Sargood for William Read, a ship own%
in Ipswich. Mr. Reed supported. The circamstanfed
were singular. In 1851 the insolvent sailed in a ship calla
the D zzler, as captain, and Mr. Read, the ownerre
out a Captain Clord, who seized the ship and sold it,
,mt
Subsequently the insolvent came to England, and viu:„
he was about to sail as captain of another vessel he /11
arrested on a capias at Sunderland, for an alleged debt.
£770 for freight. He was arrested in February, 161
and had been in priFon 13 months. When he was alto ,
to be heard at Durham he was removed by Read tt
London. There had been arbitration about the ship, b.O
it was dropped by lapse of time, and now the case was„. 1,
be heard in this conrt. There was a long and warm u,
cussion on the part of the insolvent, in which there wasl.„,..`"
Mr. Commissioner Murphy termed it, a good deal of " fie%'
zeal." Mr. Commissioner Murphy adjourned the 1;
and told an anecdote of Garrick. A little girl ssi !
her mamma, " Oh ! what a passion Mr. Garrick 15 it,.
" Be quiet, child." added her mamma, "he is paid for.
And so it was with so much " fiery zeal for the 11311"
vent. The caw was adjourned for accounts: