The British Press; or, Morning Literary Advertiser.
London, England, 1824-11-27 00:00:00

THE SIKH V. NICHOLAS, ANDOTHEnt.

Mr. ADAMS tooted the Court for leave to tile a criminal informa-
tion against Captain Nicholas, Lieutenant Nicholas and Lieutenant
Day. The application was made on behalf of Mr. toady. an
Alderman of the borough of East lame, and a Purser in the Navy.
It appeared from the affidavits, which were partly reset by the
Learned Counsel, that the defendants arrived in tag hone on
Saturday the 3.1 Nov.; that on the Monday following. Lieutenant
Nicholas and Lieutenant Day, walked past the house of Mr.
toady, armed with horsewhips ; and that shortly after, Lieutenant
Day 'knocked at Mr. toady's door, and seeing that gentleman, wl:o
happened to be there, in the hall, addressed hint to the following
effect Mr. Wm. Nicholas has gone to Church End (a public
part of tho town)— he otubsa to see you there—h: wants to horse-
whip you." 3lr. Neatly here desired Lieutenant Day to depart, or
he would send for a constable to remove him; on which he (Lieu-
tenant Day) further sairi--" I won't go till I explain. and tell you
that you arc a 41—.41 rascal and blackguard, and I don't rare who
heart me say so." Mr toady sent fin his friends to consult with
them as to what pnweedingit he should adopt ; and it appeared, that
while Captain Suad v (the brother to the applicant) was coming to
meet the other friends, the three defendants came up to him, two
of whom had horsewhips. Captain Nicholas addressing him, said,
" You did not run away from your ship as your bmi her did ; he is
a bar, a rascal, and n vagabond." To this Capt. toady answered,
"Surely you and I have nothing to do in this business." Captain
Nicholas said they had; and further Lieutenant Day added,
`• Your brother is an officer—he knew where both Captain and
Lieutenant Nilas lived, and he can't avoid taking notice of this."
cho

Mr. Soady, in his atliii;vit, said, he never gar; offence to any
of the patties, and could only account for their conduct from his
having made an affidavit, when a criminal information was filed, in
1818, against Captain Nicholas, at the prosecution of Mr. Kays,
an attorney ; and he further swore, that he believed the object of
defendant was to provoke him to fight a duel.
Rule granted.
_:1'11E KING r•. THE HAOHITIIATES OF KENT•

Al r. 17F 1: applied tar a rise, erillinriuji;ntbilefentlants,
who are Illagistiates of Kent, to shut cause why a 1111 'demo
should tint issue, requiring them to hear evidence in a case of the
illegal csite!irrn of lulls. Ile made the applies:tun on she part of
Witt. Cttbh. it. jar.. The Magistrates refused to hear the evidence
on the chewing of Mr. Adolphus. That Learsted Counsel con.
tenths!, that the 3,14 George IV. section 143. chap. 11.41. required
that the ittforniations should be laid within three months. Ile
(Mr. F.) submitted, that the section only had reference to costs.
saki did nut contain or include any allusion to rite time.
The Loan Cimr JUSTICE asked if the Learned Gentleman
nrwed on the Inisenuctruction attic Statute ?

Mr. Vr eNrit replied in the affirmative.
The lhonD CHIEF Jurrscr.—Take rule to she, cause.

COURT OF COMMON PLEAS, FRIDAY, Nov. $6.

SITTINGS IN 13ANCO.
YEP Ex V. MARSHALL.

This was an action of• trespass tried before Mr. Baron !hillock,
at the last assizes fur the town of Newcastle. The plaintiff in the
action had been a hosier at Newcastle. and becoming entbarrnssed
in 1822, he west to prison, and in the August of that year obtained
his discharge under the Insolvent Ileloma" Act. The defendant
,Marshall was assignee under the Act, and was a glover residing in
London. Its 3larclt 11123, Marshall moved for a rehearing, and
the result was that Ileispen was remanded for twelve months from
the day when he was so remanded. Between the period of the first
discharge and the recommitment, the plaintiff had taken the Ball-
Moon tun at Neiscaatle. Ile furnished it with wine, spirits, 4c.
all of which had been obtained on security offered by hut friends.
At the trial it wan proved that some money remained unpaid by the
plaintiff to those new creditors. Moshe!, hawever, having heard
that the plaintiff sea doing business and had property in the Inn,
authoriaed his co-defendants' Yell and Jona, to enter upon the
plaintiff's premises, and sell whatever they could find. At the
trial it was proved that the latter acted upon their instructions,
and entered the house of the plaintiff, in Deeenilwr 1823, with no
small degree of violence. They deprived his wile of the use of
time g in the house; they even sold the very bed upon which
also nd tour of lire young children slept; and that the family were
compelled to lie on the bare bedstead foe a fortnight, at that melt-
inent sra,on of the year. Some of the persons who had bought the
plaintiff's gosh, finding the condition of his wife. sent them back.
It was also proved on the trial that the plaintiff's goods sold for
881. but that his estate was brought in debtor to Marshall in the
sutra of 2/.12+1.8d. In his justification the defendant put in the
assignment executed by the plaintiff in his discharge front prison
under the Insolvent Itrbtors' Act, on the 20th August I 022; anal
further conteroled. that the 4th, 17th. and '2sth sectiona of the Ist
Geo. IV. chap. 119, gave him the legal ri„•,-ht of entering upon the
plaintiff's premistv, and selling his gnods under the assignment;
and not only that, bat he insisted maul his tight to sell all those
goods, or other property. which the plaintiff might acquire, until
all his debts were satistivsl. A point of law was raised at the trial,'(
upon the construction of the Insolvent Mnors' Act, which the
learned .hish:e said he would not determine at Nisi Prins, but left
it to the Jury to say.-first, whether the property sold by the de-
fendant was required subsequently to the plaintiff's discharge; and
scent:illy, if it were, to what amount of damages he was entitled...—
The Jury returned a verdict, damages 126/. The Learned Judge
gave the defendant leave to move to enter a nonsuit, if the Court
11.1,0,14 c should be of opinion, that the justification pleaded was good
in point of law.
On a turner day 11r. Sergeant Vaughan appeared for the de-
fendant, and obtained a rule to allow cause why the verdict should
not be set aside.

Mr. Sergeant WiLDZ yesterday appeared to a:iew cause against
the rule, and contended, that the whole question would turn upon
the construction of two or throe damns in the Insolvent Act. The
assignment mule on the discharge of the prisontr was only intend.
el for the transfer te his ereduots of his then evicting property.
'floe very semis of the assigiinient cloudy shew this, as well as what
was to be fairly interred from the Ith. sth, and 7th sections of the
Ist (let. IV. And the Rith OeCtioll evidently 'hewed that the as.
signment gave no control to the Assignees of the after.acquired pro-
perty of tie insolvent ; for it vested that power entirely in the In-
toleent Court. The sections !died on at the other aids telated to

the power of punishing the insolvent in case of fraud or conceal.
ment. The eth section of the Act states, that a prisoner should
at the time of subscribing his petition only exectite a conveyance
and assignment of all his property in such form anti manner as the
Galin should direct, other th in hits wearing apparel, bedding, &c.
to the value of twenty pounds. This property thereby becomes
vested in the provisional assignee of the Court, subject to a proviso,
that if the prisoner did not obtain his disetarge by virtue of that
Act, that such conveyance and assignment should, after the dis-
missal of his petition, be null and void, to all intents and pur.
poses. The sixth section provided that the prisoner should
make out and deliver to the Court, within fourteen days of his
signature of this assignment, a schedule. containing a full and
true account of all his effects, real and personal, in expect-
ancy or remainder, in order to put the Court in full posses-
sion of the property which so passed under the assignment.
The 7th section merely vested his estate in certain Trustees, with.
out reference to any authority over his after acquired property. The
assignment, in fact, passed nothing, but the existing property con-
tained in the schedule, which maid only contain such property as
was actually in ease. The 15th section was framed with great cau-
tion, and shored at cote the wisdom, justice, and mercy of the
Legislature. It gave the insolvent a chance of again establishing
himself in the world after he was turned nakedly from his prison ;
it secured the first earnings of his industry to his new creditors,
while It reset ed to his old creditors, the means of recovering their
debts if the insolvent should become so prosperous u to have
property sufficient to meet their demands, or any portion of them ;
but that only under the sanction, anti by the order of the Insolvent
Court. The 25th section enacted, that when an order fir the dis-
charge of any prisoner should be made, the Insolvent Court might
order judgment to be entered up against him in any Mt of the sea.
paint Courts in Westminster, in the name of his assignee,* for the
amount of all the debts from whim he was discharged ; that the
prisoner should execute a warrant of attorney to authorize the en.
tering up such judgment ; and that the order of the Court should
be considered as sufficient authority to the proper officer for so en.
tering it up. The same clause provides that when the person
was ability to pay his old debit:, the Court should adjudge the term
and measure of snch payment, and that the sum adjudged to be paid
should be reliably dist:fluted amongst the creditors; and that the
Court should proceed in the same manner, from time to time, till every
one of his creditors were paid 20.. in the pound. The assignee had
no power to issue execution against the subsequently-acquired pro.
petty of the insolvent ; !rave must he given by the Court to issue
it, and the Court must judge before doing so the measure of the in.
solvent's ability. That this discretion was placed in the right hands
could not be doubted ; for, otherwise, there would be daily in.
stances like the present of individuals breakiug up the growing for-
tunes of their debtors—of selling property to the amount of huncireds,
and still in no degree benefiting the general estate. The new cre-
ditors should be protected, else the old creditors would be continu-
ally coming in, and sweeping away the property entrusted to him
(the insolvent). The Court was not bound, even if he had
property, to issue execution against the whole of it, but only against
such part as they might think fit. The assignment gave nu power
to the assignee without the leave of the Court. The 29th section
only passed the then existing property, adding, however, that all
stock sequired in the public funds, which by law could not betaken
in executions should be by him transferred to his assignee; and,
that in case of his refusal, he should be remanded to prison until be
hail complied. Now, if the mere assignment passed the after-se.
quiresi property, this clause would have been unnecessary, because
the property would have been within the reach of the assignee ; and
the Bank, as in cases of bankruptcy, might be ordered to transfer t
the stock of any persons whom he might point out. There were
other clauses which showed that it was only the Court which could
issue execution. And, having said so much, he would now con.
elude, satisfied that it was not necessary for him to say another
word to convince the Court that the verdict had in this case ought
not and could not be disturbed.
The Court here lose.

Mr. Sergeant VAV GI II AN this day race to support the rule. Ile
could not gainsay the principle laid down by his Learned Brother,
but he would nevertheless contend, that the Ist Geo. IV. was only
intended to protect insolvents upon • full disclosure of their pro-
perty, and not for shielding fraudulent persons. The fourth see-
, tion only protecred the " person" of the insolvent, with the further
condition, even in th it case, of his compliance with the other pro.
visions of the Act. the principal of which was the assignment of
his property to the provisional assignee. The question here was,
if the property acquired alter an insolvent's discharge were vested
in his assignees? Ile thought the Act contemplated all the pro.
perty of the insolvent, at whatever period it might be acquired,
else his final discharge could tint take plane.
Mr. Justice —Pray what do you mean by his hnal
charge ?
Mr. Sergeant Vauonax—l mean, my Lord, his final discharge
front all his debts.
Mr. Justice PARIC—Then you mean his discharge from all his
debts after his arrest ; a liquidation of the claims of all his creditors.
Mr. Sergeant VA t. 611 A M —Precisely so. lie contended that the
discharge under the li.selvent Act was only conditional, and not
final, because until all his creditors were satisfied his property
would be liable. lle considered this, and would treat it as a case of
fraud; the insolvent was found guilty of fraud; and were their
Lordships to discharge this rule, it would be giving a bonus to
other frauds. . . . .

The Curer JUSTICE assured his beamed Brother that he was
not disposed to *ad another bonus to those already enjoyed by
fraudulent persons.
Mr. Sergeant VAUGHAN-11a man became possessed of 50,0001.
bequest before his final discharge, it would be idle to suppose that
it was not liable to be taken in liquidation of his debts. It was
clear the legislature required that all a man's property should he
liable—that was to say, all his property previously to his final dis-
charge. The character of the insolvent in this case should be
carefully looked to; he was proved to have acted fraudulently,
and could any one believe that the means by which lie enabled
his wife to take the Half :Boon Inn, were not those of his
honest creditors ? Arid, if so, had they not • right to assert their
claims to it. Was it uncharitable to suppose that • man
committed foe twelve months for fraud, was not likely to con.
crap his property, and was it less likely that the goods seized by
his assignee were not the property or his creditors? The legal
effect of the first discharge was nothing, because the insolvent was
still liable to he called up and re-examined, whenever the Com-
missioners might think proper. Such was the man's fraud, that he
sou denied even the benefit of " the Rules." As the first dis-
charge was really no discharge at all in law, he next came to the
final discharge, where the second assignment over-reached all the
property belonging to the insolvent up to that period, and if so,
then the action of trespass did not lie. In fact, after all that might
be said, the assignee hail not exceeded the right manifestly given
him by the legislature. The :11th section of I Hen. IV. gave the
creditors • power of seizing on an insolvent's funded property, and
why not extend the same principle to every other species of pro-
reit, ? The legislature never intended to say to the insolvent,
" we will completely white-wash you." No; but the Legislature
rave to his creditors an unquestionable right to all his property.
Whenever and WlltletVlT an insolvent had property, up to the
period of his final discharge, the law gave it to his creditors to
satisfy their demands. Even if the property had fallen from
Heaven as a tres.ure-trove, lie was still liable, and as if he was to
be stripped naked, arid left only clothed in his integrity.
The re JUSTICE—When we granted this rule, we did not
think it was likely to be sustained. This, however, being a rule
fur discharging an insolvent from his debts, and founded on an
Ac•, whether for good or for evil, which is certainly a most import-
ant Act, we have given it every consideration before prunouncing
our judgment. No doubt the creditor cannot possess himself of the
property of his debtor unless under an execution, and no one can
contend that the assignee in this case had any power to issue it.
Then, was not the defendant guilty of the trespass? None of the
Acts, and 1 have looked through them, vest in the assignee the
alter-acquired property of the insolvent ; the Court alone can order
execution ups the warrant signed at the period of hie discharge.
An innolveit debtor is like an uncertificated bankrupt, because all
his after•equirisi property Is liable to his creditors, with the ex-
ception of the sums necessary to discharge his newly-acquired debts.
The insolvent is bound by the 4th sect. Ist taco. IV. to assign all
his property, brit can that be other than the property then existing?
ran any more pass by the assignment? Certainly not. In the ease
of bankruptcy. the law vests all in the assignee; in this case, all is
vested in the Court. The provisional assignee is placed only in
the situation of the final assige.ec, for neither could have at either
time inure thin the insolvent p ',skull. In fact. there was nothing
whatever in this Act which gave assignees any right over the after-
acquired eropery of an insolvent. Here there appears to have
been fraudulent conduct, and the party was punished; but with
respect to the fruits of his after-industry, it was to remain to him
for his simport, unless the !ourt thought proper to under a r.ueahle
division of it between his creditors. The assignee had no authority
for what lie had dune, and I pronounce that this rule shall be dis-
charged.
The other Judges concurred, and the rule was discharged.