The British Press; or, Morning Literary Advertiser.
London, England, 1825-11-03 00:00:00

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It =et be admitted that the ease
ove au action at law is maintainable

—...wistn—Telle. But the law as laid down by the Court of
Commeob Plus has not yet been adopted. The cue pf Davis was
glfwsrd to in Fauntleroy's ease before the Lord Chancellor, and
taltuldstabio discussion took place as to whether the &seism was
igosil in law or tin. •
The Vick.Cuaricirtr.ott.--What did the Lord Chancellor dO
ipon it 1
Mr. TataLoyE—The Chancellor said Ire aprroved of the dc-
engine( the-Common' Pleas.
air. !loony. submitted that it was, in fact, otherwise.
Tha Vlca•CttancEr.t.on—l did not ask what the Lord Chan-
cellor and, but what he did ?
Mr. Hoar—Thu lord Chancellor dlreeted an issue.
The ‘'lce.-Cnaricrt.Lon--It iv imposidble in the nature of
things that tile plaintiff can get what she asks. She prays that the
Identical sum of fout thousand pounds in Consols may be trans.
furred by the Batik for her berfeat. How can die Batik transfer
what they have not in their possession ?
Mr. TktoLoiet —They can purchase it.
The ffticu-Cstitalett.Lott—llut you don't pray that ; you pray
for the transfer of the same stock.
Mr. Tairstovw—The words are, to be sure, "the same rim of
four thonsand pounds ;" but I submit the meaning of that is
clearly " the same amount."
alr. floaret—The Batik Is liable in law and not in equity, If it
la liable it all. IWere an action brought, the Bank might have it
in its power to show that this transfer, which is complained of as a
false and fraudulent disposes' of the stock in question was, in fact,
the act of the parties themselves. Such a defence might be sit up
than action at law, and the present plaintiff be put out of Court.
Why then was not the matter left to the decision of a court of law,
and an action brought in the name of the trustees?
Mr. Tittecovr —That is easily accounted for. The plaintiff'
has been deprived of all her property by the fraudulent transfer,.
and can thereforrhave no means of bringing an action at law, nn-
leas, Indeed, her flier.ds are ready to contribute to the promotion of
that object.
The Vict-CnancrLtoit-1 have already said, I consider thb
as a case of considersbleimportanee, arid in giving judgment opted
it would willingly afford it all the attention which it demands. If'
you were-grind insyssm• facts, I would have no objec, ion to give a
case; but as. it is not ao, I am precluded 'from adopting that '
med to the demurrer on the part cf the Bank of
Impossible it should be mainuined, and shall
..en made application that the Bank might Beal-"
. to enable it to put in an ;Answer to the bill filed by
which was granted.

BRITISH

'a man of letters: and the result proved that, however 'lei that
gentleman might be, his embarking in so novel a trade was not
calcultded to Increase his wealth. The consequence was, that in the
end Mr. Day, after having advanced what cash lie deemed prudent,
trecame, by virile of a warrant of attorney, executed to him by hie
insolvent partner, possessed of the greater part of the property of
the benkropt, and die whole concern was finally broken up, the
bankotpi bung left in a state of absolute privation. To a brother
thus situated it was that the defendant, on being applied to, re-
fused payment far thebevcral parts of the work which had been de.
livered to him. The defendant pretended at brat to deny his liabi-
lity to pay for these pi'tta, iliasniuch as he had not received the
whole of the work, which Wits to have consisted of 24 numbers ; best
finding that plea to be untenable, he had since shifted his ground,
and now had pleaded a release, Lut the evidence which he (Mr.
Sergeant *Spankie) should produce, would most aatistictorily con.
vines the Court and Jury that this was a foul attempt to get rid of
his engagement, and to defraud the estate of the money justly due
for these numbers, and be had no doubt tbat after his witnesses had
been examined, the Jury would without hesitation give his client a
verdict for the full sum which ass sought to be recovered; and so
disingenuously endeavoured to be withheld from the o=k:opt's
estate.
The usual proof of the act of bankruptcy, the petitioning cretli.
tore debt, and the necessary proceedings thereon, were auw put in
evidence.

Wm. Henry Payne, the bankrupt, was then examined—l am
released from my asiegnaes. and hare obtained my certificate since
the year 1818. Wye been a publisher and bookseller, and was
the person who Prorsvted the publication of a work called " The
History of Royal Residences,' which sae to be published m'
monthly alternate numbers, at one guinea me). Twehty-four of
the rumbers were published, and my brother must have hed
(though there is sonic difficulty in ascertaining the precise num-
ber) ten or twelve of them. W hen I met my brothet at my attor-
ney's, I complained that lie had not paid for the work as it was de-
livered, and that he was the person who had objected to comply
with the original terms. 31y brtwher then complained that he had
not had the a hole work, when I told him that he might have, had
h it he pleased, by Reading to the publishers. In a conversation
with-the defendant's eon the latter said, his father had only re-
ceived ten or twelve numbers; bur the defendant himself only ad-
mitted that he had received six, seven,or eight. I told him that I
had paid my partner for the whole of the books It the trade price,
being eighteen guineas ; and my-brother said, " then at all events
I will only pay you that amount," which of course meant the
eighteen quinces.
Cross-examined by Mr. Sergeant VAUGHAN—In fact I was
only debited the mews% paid to my partner t but at the time I
was not a farthing in that partner's debt. Mr. Day (the partner)
died in 1821. The work was originally to have construed of
twenty.four parts, and was to have been one entire publication.
The numbers were detached and incomplete. 1 have remised one
hundred pounds from lay brother, and the paper now handed to
me was the release he gave at that time ; but both the hundred
pounds and the release was an entirely distinct thing from the sup-
ply of the numbers of the work. The numbers were to have come
out at each alternate thumb ; the first number was published in
July, 1816, 113 that it would have taken two years to complete the
work.
. . .

Re-examined by Mr. Sergeant SPANK lE.—I was in the rules of
the Fleet at the time the release was given ; my brother was aware
of that circumstance. The release was for a totally different
concern.

This was the case for the plaintiff.
Mr. Sergeant VAUGHAN! addressed the Jury on behalf of the
defendant. His Learned Friend had certainly embellished his cue
with a most bountiful share of strong langdage, as to the hatdship
practised by the defendant-awards his unfortunate brother. One
could not certainly but regret that Mr. John Payne should get into
circumstances that were capable of exciting strong feelings against
his brother; but with that neither he nor the Jury had any thing
to do. It was their duty, however painful it might be, to inveati.
gate the fine, and to do justice between the patties, notwithstand-
ing their near relation to each other. This was an action brought
by Mr. Mayor, as assignee of Slr. W. H. Payne, who having fallen
Oto embarrassed &emulsion/es, had a commission of bankrupt
issued against him in 1822, but which was founded on an act of
bankruptcy committed so fu back as the month of September,
111111. The act of bankruvtcy which was thus relied upon, was
the circumstance of Mr. W. H. Payne having beet, arrested and
confined in the Fleet prison foe debt, on the 19:h September,
1818, so that two months from the time there would be an un.
equivocal act of bankruptcy on the part of that gentleman but
for reasons which, no doubt, were well known to Mr. W. 11.
Payne himself, it was not thought proper to bring out this coin-
mission till two years afterwards. There was an Act of Parita-
ment, known by the name of Sir Samuel Rommilly's Act, which
declared that unless an act of bankruptcy was followed op within
two months of its being committed by a commission, all contracts
made by third persons with the bankrupt within those two months,
were untouched and unaffected by theaet of bankruptcy.
The Loan CHIEF Juin-rex—Unless, brother Vaughan, the
parties era aware of the insolvency of the bankrupt at the tune.
Mr. Sergeant VAtiGSAN was about to state that, and to observe
that the plaintiffhad not tiled a bill in equity, or adopted any other
mode by which they might ascertain whether the defendant did or
did not know that fact; therefore, ache plaintiff meant to insist on
that fact, it was incumbent on them to prove it. As that had not
been done, he should contend that--
The Loan CHIEF JUSTICE—WouId it not be rather an
awkward thing to say that the defendant did rot know of the act
of bankruptcy committed by his brother, when he himself had
taken the release from him to the Fleet.
Mr. Sergeant Vatiosno said it had not been proved that he was
in the Fleet ; besides, it was well known that many persons lived
in the Rules of the Fleet who were not confined for debt. But how
could this gentleman be made a bankrupt? He had no stock in
trade, unless it were in his brain. He (Sergeant Vaughan) knew
of no other trade that the bankrupt carried on ; except, indeed, it
were insisted that the publishing this work would constitute him a
trader. Surely, it was not the facril his going to purchase a quan-
tity of elephant paper (which, after all, was the beat part of the
work) that could bring him within the laws concerning bankrupts.
But the work in question was, by the terms of the bankrupt's own
proposals, to consist of twenty.four numbers, the whole of which,
however, the defendant had not received. He should here address
some observations to his Lordship. When a person proposed to
publish a work in a certain number of parts at one guinea each,
for which others subscribed, it was, in fact, one entire contract for
one entire work ; and therefore he should submit that the pub-
Esher could not bring an action for each number, but must give
credit ; or, at least, must wait moil he had supplied the whole of
the numbers before he could sue for their value, There was a case
in the books in which this point had been much considered ; he
meant the case of Boyden r. Drummond, which was an action for
the recovery of the value of Salm numbers of a hat was called the
"Shakspeare Gallery." There was also an objection to the pre-
sent action, founding itself on the statute of frauds, which enacted
that no action should be brought for the breach of any agreement
not to be performed within a. year, unless the tenoned` that agree-
ment were reduced to writing. Now, here were to be twenty-tour
numbers to be published, one in each alternate month, which
would therefore require four years before the work could be com-
pleted.
The LORD CHIEF JUSTICE wai clearly of opinion that the
plaintiff could recover upon the contract for any particular number
that had been delivered. Lord Ellenborough, in the case of Boy.
dell and Drummond, said that it was not the understanding of the
parties that the subscriber should, on the one hand, take the whole
of the numbers that might be published, or that. op the other hand,
the publisher should be compelled to wait for his money until the
whole of such work had been printed and delivered; for the very
spiiit of such contracts was this--the publisher, finding it imprac-
ticahle to get up an expensive work all at once, felt it necessary to
publish it in parts, so that he might receive a portion of the pur-
chase money to enable him to carry on the work to its completion.
This object of his, however, would be entirely defeated were he not
to be at liberty to bring his action against any of the subecribers
for the value of the numbers they bad received until he had pub.
Rolled the whole work. And such a rule would equally oppose
itself to the very intention of the subscribers themselves, who,
being desirous of possessing a copy of the work, but unsung it too
expensive to purchase at once, embraced the opportunity of obtain-
ing it in parts. Ile was clearly of opinion that the plaintiff could
not sue far that Whole of the numbers that remained to be delivered,
As that would brief{ it within the Statute of frauds; but he had no
doubt as to hip being entitled to sue for such numbers as had been
already delivered. This was the manner in which he understood
the Court in Boydell'a ease; if the contrary had prevailed, it might
have been die ruin of one of those parties, for the whole edition of
that splendid work cost atom
3lr. Sergeant VAUGHAN still contended that a party hiving
subscribed to a work was bound to take in the whole of it ; and
said, that if a person were allowed to stop short in the performance
of his contract, it would work considerable injury. At all events
he should hope that his Lordship would consider this a point fit for
the opinion of the Court above, and that he would give the defend-
ant leave to move for a nonsuit. Suppose the plaintiff had insisted
on payment tor each number as it was delivered, could he hue
maintained his action for them !Nies rittaties the moment the num-
bers were delivered? If be could, he might then certainly have
said that he wauld go on no further with the work ; but it was ob-
' vious that such was not time meaning of the parties, teethe bankrupt
had admitted that the numbers were so printed that it was abut-
: lutely necessary to continue taking In the work. He had actually
split even a word in the middle of a sentence; one syllable being in
one number of the WWII and the other in the next.
The LORD Come JUSTICE—We are in the habit of splitting
words in other ;Acne, brother Vaughan. (A laugh.)
Mr. Sergeant Vituostast again submitted that this action could
no be supported.
The LOUD Comp Jure-ter said, if this case touched at all
upon the principle that was laid down in that of " Itoydell v. Drum_
mood," he certainly should be bound by the authority of the Court
which decided, however his opinion at Niel Prius might be opposed
to it. But he most readily agreed to everything that had been said
by all the Learned Judges on that occasion ; and he thought that
every word that was said by theni was unfavourable to the objec-
tion that had just been made by the defendant's Counsel. Brother
Vaughan had said that this was an entire contract, and therefore the
plaintiff could not sue even if 23 numbers had been delivered, if
the 24th had not been delivered. /Hs Lordship should incline to
think that he might ; for though it might be an entire canine, yet
there WWI& subordinate contract, which would enable the publisher
to sue for each number as it was delivered. The Gentlemen of the
Jury would understand what lie meant by a subdrdfnate contract,
when lie reminded them that when a certain number of quarters of
corn was contracted for, and • part only of that quantity had been
delivered, still the party might bring his action for that portion, al-
though lie had bot delivered the entire quantity. So her thougt it
WAS in the present we; and his brother Vaughan would find that

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