Northern Times.
Liverpool, Merseyside, England, 1857-06-19 00:00:00

LIVERPOOL BANKRUPTCY COURT.

the amount of the purchase money for the Sardinian,
and that on the day of payment, fully a month after-
wards, the Borough Bank's debt had increased to
£14,000, leaving, notwithstanding, upwards of £5,000 for
them to draw out of the bank, independently of any other
source, to pay Mr. Denny ; and to a question why he did
not, according to his promise, take up the bill due on the
19th of June, he replied, because much more delay took
place in obtaining payment of the purchase money than he
had anticipated ; and that the advances by the Borough
Bank had increased to the sum he had stated; and that in
the meantime the other bill had matured, and Mr. Denny
refused to receive anything less than the whole money.
The bankrupt Lamont also stated that, about ten days
before the bankruptcy he offered Mr. Denny one-half of
the sum then due to him, and security for the balance,
and that this offer was made personally and through
a friend, a Mr. Thompson, who agreed to pay off
the sum of £12,000 due' on security of the Italian
(which had been purchased for £24,000 and since sold for
£20,000), and to take a transfer of this vessel, so as to
make it available (as I presume) for a security to Mr.
Denny, subject to this £12,000, by which, as Mr. Lamont
states, there would be left a margin sufficient to cover
Mr.:Denny's .e 5,000 proposed
,to be secured to him; and
it appears that Mr. Thompson went to Dumbarton to
make this proposal on the 23rd of August, and remained
there until the 27th, endeavouring to induce Mr Denny to
accept this offer ; but Mr. Denny refused all approaches
on the subject, stating that he would have all the money,
or they were to take the consequences. Now, here also
the court is left to rest upon the sole testimony of Mr.
Lamont and upon the assumption that Mr. Denny cannot
contradict it, but which as I have before observed, is
entitled to full credit ; and upon consideration of all the
facts as they are thus supported, it does not appear to me
that there is any grouud for this charge of false pretence,
for at the time when the promise of payment out of the
proceeds of the Sardinian was made, whether it is to be
considered as a promise to provide for only the bill then
due, or both that and the one coming due, it is not, I
think, too much to suppose that it was made bona fide
upon the full expectation that, notwithstanding the
security to the Borough Bank, there would, at the time
the promise was made, be enough left out of the proceeds,
or nearly so, to meet even both bills ; and it is shown
that it was in consequence only of the increase of the
debt due to the Borough Bank since the sale, that the
balance of the proceeds became insufficient to meet more
than £5,000 towards the payment of both the bills. The
next objection for consideration is that taken on behalf
of Messrs. Bost, namely, that their debt, amounting
altogether to £1,640, was contracted whilst the bank-
rupts were in a hopeless state of insolvency. This debt
arose out of certain orders for iron given by the bankrupts
to Messrs. Bost, in the following manner :—On the 7th of
July, 1856, orders were given for two shipments, for which
the bankrupts' acceptance was taken on the Bth August,
at 14 days, for the slim of£BB2 is 6d; and on the 12th of
August following, another order was given for a shipment,
for which their acceptance was taken on the 25th August,
at 14 days, for the sum of £760 ; the date of such accep-
tances being the periods when the respective orders were
executed, and the bills of lading were delivered. Both
of these acceptances having been dishonoured, the
amounts constitute the debt in question. There had been
a previous order for iron given on the 9th of June,
1856, amounting to £942, for which the bankrupts'
acceptance had been taken on the 17th of July ; but this
acceptance was met at maturity. All these shipments
were alleged by the bankrupts to have been made in
consequence of orders from their correspondents at Genoa
and Marseilles, although made on their own account,
though Messrs. Bost seemed to have entertained some
doubt of this, and to have considered some charge could
be made against the bankrupts on this subject, though not
persisted its. But from the examinations of the bankrupt
M'Kean it would appear that some such order had been
given ; and of course, therefore, no objection could be
sustained on this ground. Some objection was also pro-
posed to be made on the ground that these shipments
were intended originally to have been made for cash, and
not upon any terms of credit, and there has been con-
siderable discussion on this subject ; but I cannot under-
stand what objection could now be made upon this ground,
seeing that, whatever might have been Messrs. Bost's
original intention on their executing these orders, they
afterwards consented to take the bankrupts' acceptances,
and, indeed, their letters show that they were willing to
take further orders upon credit ; and of course, therefore,
no objection can now be made upon this subject, it not
being even alleged that they were induced to take these
acceptances upon any misrepresentation ; nor should I
have thought it necessary to refer to any objection made
on these grounds, which might be considered to have been
abandoned, had they not been made the subject of con-
siderable discussion, and referred to by counsel on behalf
of Messrs. Bost & Co., in his address to the court. Another
subject calls for some remark from me in consequence also
of its having been much pressed in the argument, although,
like other charges referred to, it was merely insinuated,
and not expressly mentioned as an objection. The point
I now allude to is that relating to the application of the
bankrupts to Messrs, :Bost to advance £5OO, to enable
them to take up the before mentioned bill for £BB2, falling
due on the 25th of August last, which it has been insinu-
ated was made without any bona fide intention of applying
it to such purposes, or without the bankrupts having the
means of providing the remainder to take up the bill, thus
to defraud Messrs. Bost & Co. of this sum. This amounts
to a charge of too serious a nature to be allowed to rest
upon a mere implication, and I therefore propose to con
eider the grounds upon which it is founded. It appears that
two days before this bill fell due, the bankrupts, not
being prepared to meet it. aneo;ee by letter to Messrs.
bush Le eurance tnem tens sum of Xooe, me enne.a. ~..0.,, L 6
retire this bill. But this Messrs. Bost at first refused to
do, and did so more than once, on being frequently ap-
plied to ; but on the 25th of August, the day the bill
became due, the bankrupts telegraphed to Messrs.
Bost, proposing, in order to give them a few days
to get the needful from Marseilles, to pass a cash
order upon them for £5OO, and to send their acceptance,
so that the bill might be regularly retired. To this
Messrs. Bost replied by telegraph, "Do as you propose,"
and consequently, as the bankrupt M'Kean states in his
examination, relying upon his assent to their request,
they (the bankrupts) passed to their bankers (the Borough
Bank) a check upon Messrs. Bost for £5OO, informing
them that they should require the amount early the
following morning ; and on the manager of the bank ask.
ing the bankrupts whether they were certain it would be
paid, they showed him the telegraph answer of Messrs.
Bost, and assured him that it would be all right; and the
bankrupts, by letter of the same date, informed Messrs.
Bost that they had passed this cheque, requesting them to
honour it on the morrow early, and forwarded their ac-
ceptance for the amount. But on calling on the following
morning at the bank, they were informed that they had
just received a telegraphic message from Glasgow, stat-
ing that the cheque had been dishonoured, and the
bank of course refused to provide the bankrupts with
the funds to take up the bill, and thus as the bankrupt
states, their credit with the bank. became materially
affected. Mr. Bost, on the same day that he sent his
answer by telegraph, left Glasgow for Liverpool, and left
instructions with his brother and partner not to honour
the cheque unless he received
,a telegraph message from
him to do so, and this message he never sent, in conse-
quence of which the cheque was dishonoured. Mr Bost
states that the reason why, after having refused to make
the advance, he at last agreed to do so, was because he
thought the bankrupts were pressed temporarily, and that
he would give them a little time. On the following day
(the 26th of August) Mr. Bost had several interviews with
the bankrupts, when they still proposed to retire the bill
if Mr. Bost would honour the cheque, the dishonour of
which Mr. M`Kean alleges they had received notice of
from the bank, and had communicated to Mr. Bost
before they made any further application for the £5OO,
though Mr. Bost denies this. But Mr. Bost still refused
to make the advance, and proposed (if the bankrupt
would hand him over the £382 to retire the bill himself
and hold it over a few days. Mr. Bost states that the
reason why he did not direct the cheque to be honoured
was that the bankrupts would give him no security that
they would employ the amount of the cheque in retiring
this acceptance. Mr. Bost also states that he proposed
to the bankrupt M'Kean to go together to the telegraph
office, and to deposit the money there to advise the bill,
but the bankrupts would only promise to take up the bill
if he would provide them with the £5OO, and they stated
that they had no money, because the nonpayment of the
cheque at Glasgow had affected their credit. The
bankrupt Lamont states that at his interview with Mr.
Bost on the 26th August, after being informed by
him that he had been with his partners, M'Larty and
MlCean, about this bill of £382 is 6d, and getting some
explanation from them, he told Mr. Bost that he had acted
very wrong in not carrying nut hia agrooment to advance
the £5OO, and he thinks Mr. Bost asked him if he did so
would he (Mr. Lamont) give his word that the bill should
be taken up, to which he replied that he would see to it
personally, and that it should positively be done, and that
this was the substance of what passed between them, and
that this was after Mr. M'Kean had satisfied him that he
was prepared to carry out the offer ; and Mr. Lamont
also states in a subsequent part of his examination that
he at that time had referred to his partners for expla-
nation of the facts regarding the transactions with
Mr. Bost, and which he had received from them.
In a subsequent examination, the bankrupt Lamont
states, in answer to a question whether arrange-
ments had been actually made with the Borough Bank
that morning or the day before for the taking up that
bill, if Mr. Bost had honoured the check in due course,
that he could only answer that by saying that he heard
so from Mr. M'Kean at the time. Now, taking all these
statements into consideration, I cannot come to the con•
elusion that there was any intention to defraud Messrs.
Bost in respect of this proposed advance of £5OO, but
that it was applied for with the bona fide intent of appro.
priating it to the purpose proposed, and upon the fair
expectation that with the assistance of this advance they
would be furnished by the Borough Bank with the means
of retiring this bill, which object was wholly frustrated
by the very extraordinary course that Mr. Bost chose to
pursue in allowing his cheque to be dishonoured, when
he was of courso fully aware that it was the intention of
the bankrupts to pass it to their bankers towards enabling
them to retire the bill; and the circumstance of this
cheque being dishonoured after the bank had been assured
of its being duly paid, would of course seriously injure
their credit with the bank, and deprive them of the very
means by which they then expected to carry out their
proposal; so that whatever
blaraP, 'might be considered to

(BEFORE MR. COMMISSIONER STEVENSON.)
In re 11PLAR'FY AND Co.—His Honour delivered judg-
ment on the certificate in this case at twelve o'clock yester-
day. Mr. Fletcher appeared for the assignees ; Mr.
Danson, instructed by Messrs. Squarey, Duncan, and
Squarey, for Mr Denny, of Dumbarton, and Bost and Co.,
of Glasgow; Mr. Aspinall, instructed by Mr. E. Banner,
for Mr. .Lamont ; Mr. Almond, for Mr. M'Larty ; and Mr.
John Yates, jun., for Mr. M`Kean.
His Honour said—The certificates'of these bankrupts
are opposed as well on behalf of Mr. Allan, on general
grounds, at one of the trade assignees—the other assignee,
Mr. Cox, having withdrawn his intended opposition—
as also on behalf of certain other creditors, on special
grounds, in reference to their respective debts, namely,
Mr. Alexander Denny, of Dumbarton, ship-builder ;
Messrs. Bost and Co., of Glasgow, merchants and
Messrs. Irving, Ebsworth, and Holmes, of London, mer-
chants. The general grounds of objection taken by IVIi..
Fletcher (of the firm of Fletcher and Hull), on behalf
of the assignee, are, trading without capital, reckless
trading, dealing in accommodation bills, fraudulent or
undue preferences, negligent bookkeeping, and lastly,
the conflicting accounts given by the bankrupts of por-
tions of their transactions and liabilities. The specific
grounds of objection taken by Mr. Dauson (as counsel on
behalf of Mr. Denny and of Messrs. Bost and Co.), are as
follow :—First, on behalf of Mr. Denny, that the bank-
ruptsThave,
by false pretences, obtained his forbearance
as a creditor, thereby constituting an offence within the
3rd clause of the 256th section of the Bankrupt Act ; and
secondly, on behalf of Messrs. Bost and Co., that their
debt was contracted when the bankrupts were not only
in a state of insolvency, but after all reasonable prospects
of surmounting their difficulties had ceased. The spe-
cific grounds of objection taken on behalf of Messrs.
Irving, Ebsworth, and Holmes (and for whom Mr.
Fletcher also appeared) are, that the goods sup-
plied by them to the bankrupts were obtained at
the time they were hopelessly insolvent, and were
improperly dealt with by advances being immediately
obtained upon them, and paid over by the bankrupts by
way of preference to their bankers. I propose, in the first
instance, to consider the grounds upon which the specific
objections are founded ; and first, as to the objection
taken on behalf of Mr. Denny, which arises ont of the
following circumstances :—ln the month of September,
1855, the bankrupts agreed with Mr. Denny to purchase
a screw-steamer then building by him, and nearly ready
for launching, and intended to be called the Sardinian, at
the price of £22,500, to be paid for as follows :—One-
fourth, or £5,625 in cash when launched; a like sum in
cash when the vessel was delivered complete ; a like sum
by bill at four months' date ; and the like sum, being
the remainder of the purchase money, by bill at
nix months' date, all the terms of which purchase
was reduced into writing, and by the sixth stipula-
tion it was provided that the bills for the two last
instalments were to be renewed by the builder, each for
four months, if required by the purchasers, and at their
expense, and by the seventh stipulation it was provided,
that 30-64 shares were to remain on the register in the
name of Mr. Denny, as security for the payment of the
bills, and until the same were paid, Mr. Denny signing
a declaration that he held such shares for such purposes,
in trust, and undertaking to re-transfer the shares, or any
part of them, as the bill or bills were retired, the remain-
ing 34-64 shares to be registered in the name of the pur-
chasers, on payment of the second instalment. The first
two instalments of this purchase money have been paid,
and bills were given for the other instalments, both
of which were renewed according to the agree-
ment, and such renewed bills became die, one
for £5,725, on the 19th June, 1856, and the
other for £5,275, on the 19th August following, and in
respect of these bills Mr. Denny is now a creditor
on this estate for the sum of £11,475. Mr. Denny's name
has never been placed on the register of this vessel, accord-
ing to the seventh stipulation. But this was not done
because (as Mr. Lamont alleges in his examination) Mr.
Denny dispensed with the performance of this seventh
stipulation, by acts as well as words, though not by writ-
ing. as was the case in respect of some of the other stipu-
lations. It would seem, however, from the tenor of the
examination of Mr. Lamont, by Mr. Denson, on Mr.
Denny's behalf, that Mr. Denny disputes that he has ever
dispensed with this clause. But Mr. Lamont's testimony,
I think, clearly shows that it was understood between
him and Mr. Denny that this clause was either dispensed
with or that the non-fulfilment of it was acquiesced in by
Mr. Denny ; and this is, I think, strongly corroborated
by the fact of his having, on the 18th of October last,
signed the usual certificate as the builder of this vessel,
certifying M`Larty and Co. to be the first purchasers
thereof, by which means they were enabled to have the
vessel registered in their own sole names. It was urged
that this certificate was signed inadvertently, so far as it
was intended to give the bankrupts a right to obtain the
registry of the vessel in their own name. But I scarcely
think much reliance should be placed on this argument,
seeing that, in the course of Mr. Denny's business, he
must have been called upon to sign many like certificates,
and to have acquired a full knowledge of the effects
of them. And, besides this the circumstance of
the bills having been renewed affords, I think, a strong
presumption that Mr. Denny had acquiesced in his name
not being placed on the register, as it might be fairly sup-
posed he would never have assented to these renewals had
he not so acquiesced ; and it is to be observed that the
complaint which Mr. Lamont admitted to have been
made by Mr. Denny, that his name was not pieeea on the
register, was not made until after the first renewed bill
became due, and then in consequence only of his bankers,
on their being applied to by Mr. Denny, to discount the
proposed further renewal of the bill, requiring that his
name should be placed on the register. And again, the
circumstances referred to by Mr. Lamont on his
examination, that Mr. Denny had been informed that a
power of attorney was given to Mr. IVl`Larty to sell this
vsssel at Constantinople, also tends to show that Mr.
Denny must have been aware that his name could not
have been on the register, for how otherwise could the
Power of attorney have been sufficient without his jeinedly
in the power ? It was expected and understood that
Mr Denny, who was present during the examination of
Mr. Lamont, would have tendered himself for examina-
tion upon this subject, when he would have had the op-
portunity of contradicting Mr. Lamont's testimony, if he
thought proper ; but he was (as he alleges) called away
by a telegraph message, and returned to Scotland with-
out communicating with his solicitor, and although an
opportunity was afforded to him to give his testimony
on a subs quent day, by this case being adjourned ex-
pressly for that purpose, yet he did not think proper
to avail himself of it. This circumstance has natu-
rally given occasion for remark on the part of the
counsel and solicitors on behalf of the bankrupts ;
and after the charges apparently insinuated on his behalf,
and no doubt according to his instructions, and consider-
ing his position as the principal opposing creditor, his
absence, voluntarily, as it was ultimately at all events, if
not in the first instance, may scarcely be considered to be
free from censure. Assuming, therefore, as I feel justified
in doing, that Mr. Denny was not prepared to contradict
any of Mr. Lamont's statements, and which, from the very
straightforward and satisfactory manner in which they
were given, appear to me to be entitled to full credit, no
objection on this ground can, I think, be considered to
exist, and which indeed may be treated as having been
abandoned, if ever seriously entertained, though it has
been prominently referred to in the course of the obser-
vatioes of counsel, and for which reason, and as it involves
a serious charge, I have thought it necessary to enter thus
fully into the consideration of the subject. With regard
to the objection which is still insisted upon ou Mr. Denny's
behalf, namely, that of his forbearance having been ob-
tained upon false pretences, this relates to the before
mentioned renewed bills which fell due on the 19th of June
and the 19th of August, 1856. It appears that shortly
before the first mentioned renewed bill became due the
bankrupts applied to Mr. Denny to renew it, and for.
warded to him their acceptances at three months in re-
newal thereof. This Mr. Denny declined to do, although
not (as has been before referred to) until after he had
endeavoured to negociate this further proposed renewal
at his bankers; and this renewal, it
appears,
earshe has not
returned, but is still in his hands. The ground of objec-
tion taken on Mr. Denny's behalf is, that he was induced
to forbear enforcing the payment of this bill and the other
bill which fell due on the 19th of August, on the faith of
the promises of the bankrupts, more particularly by the
bankrupt Lamont, that these bills should be paid out of
- the proceeds of the Sardinian when sold,
and which pro-
mises, as it is alleged, they had the
power' of fulfilling, by
reason of their having in tho previous
given a bill of sale of this vessel to
the
securing the balance ultimately due Boroughto them Bank
and
thefor
amount of which security, on the completion Of the sale
and the receipt of the purchase money, swallowed up
nearly the whole of the proceeds. Now, Mr. Lamont,
in his examination on this subject, states that from the
very first Mr. Denny knew that they, the bankrupts, in
tended having a number of co.() wners of this and another
vessel which they afterwards purchased ; and that imme-
diately on purchasing this second vessel they took steps
and got subscribers to the extent of the value of one ship,
and that itw as quite understood between him (Mr. Denny)
and the bankrupts that he would give more time for the
payment of the bills if required, and that he (I'dr. Denny)
had stated so distinctly to all of them, and that his
refusal to renew the bill due on the 19th of June took them
by surprise at the last moment ; and further, that it had
been subsequently proposed that the bankrupts should
give a letter stating that Mr. Denny's name on the register
should
hber vessel belonging to them, called the Italian,
the bills nt of e considere payment to secure the payment
the payment in of that vessel, but likewise
renewal co of those for the Sardinian, including the
which the bill that had been recently dishonoured,
Ourse the bankrupt explained to have been ren-
dered necessary
islt3ecause one of the owners, whose
absent,
and therefore a of the Italian as security, was _
rupts intended and
bill of sale could not be made, as the bank
rupts
on that vessel
Lamont was ende had arranged, so as to pay off all the
; and it was about this time that Mr.
did about the avouring to sell the Sardinian, which he
It does not appe middle of July, for the sum of £19,250.
ar that this letter of security was ever
,
char has it traiven, does
charge has been made against
why it was not ; but no
respect. The bankrupt Lagainst the bankrupts in this
the sale they owed ;the
;Borough
states that on the day of
Banh about one-half of

be attributable to them in not having more surely pro- favour the bank. This very circumstance, of the bank
vided for the payment of this bill, it is not for Mr. Bost to rupts continuing their payments into their bankers hands,
complain that they could not carry out this proposal, as usual, I think alone affords (as it has been strongly
which he by his own conduct had been the means of pre- argued) a fair presumption that no bankruptcy could have
venting them from doin. I consider therefore that the
bankrupts are wholly exonerated from any charge been then in contemplation. For these reasons, I consider
on this subject. 1 come now to the considera- that the objections taken on the part of Messrs. Irving and
tion of the graunds upon which the objection Co,, are also unsupported. Having disposed of the several
actually persisted in on behalf of Messes. Bost specific objections taken to these bankrupts certificates, I
is founded. This objection is founded upon the now proceed to the consideration of the general objections
alleged hopeless insolvency of the firm at the time taken on the part of one of the trade assignees. And first,
that Messrs. Bast's debt was contracted, and for the as to trading without capital: The bankrupts, in their
purpose of this question the respective periods when the balance sheet, profess to show that in April, 1851, when the
orders were given for the iron in respect of which this new firm of 111•Larty and Co. commenced, and when the
debt was contracted must, I think, be regarded as the bankrupt M'Kean first joined the concern, they possessed a
time when this insolvency should be shown to have ex- capital of £4,802. This was not such an amount of capital
isted. The counsel on behalf of Messrs. Best deemed it as so extensive a concern would seem to have required;
proper, in respect to this objection, to refer to the state but it may be regarded as sufficient to jusiify them con-
of
the bankrupts' affairs in the month of March, 1854, tinuing a business which the othsr bankrupts, M'Larty
being the commencement of their belance•sheet, and and Lamont, had succeeding in establishing, with every
when the business commenced wieh the recent firm of fair prospect of probable success. But it is urged
M'Larty and Co., and proposed to show that their affairs that the bankrupts are not justified in bringing the
were not even then in a solvent state ' • but supposing item of £17,200 into the capital account, as part of
that to have been the case, though without meaning in their assets ; and that, consequently, by leaving out
this place to enter into the consideration of that subject, that item (as it is contended they ought) they would
it appears to me that the present question ought to be be shown to have been insolvent to the extent of the
considered wholly irrespective of the state of the bank- difference between this sum and the alleged balance,
rupt's affairs at that period, and the question of the being ahout £12,398. This item is composed of two sums
propriety of any debts being subsequently contracted of £7 200 and £lO,OOO —the former being described in
can and ought only to depend upon tho state of their the balance-sheep, and by the bankrupts in their exa-
affairs at the time. Now, iii the first place, there seems urination, as an amount agreed to be paid by the Cana-
to be no question but that the order for the iron dian Steam Navigation Company for the transfer of a
forming the subject of this debt constituted a part of mail contract between the Canadian government and the
the legitimate business of the bankrupts, consisting in former firm of M'Kean, M'Larty and Co , for the payment
the employment of their own and chartered vessels in of a subsidy of £24,00 per annum for the establishment
the transmission of goods of every description and to and use of a line of steamers, for which transfer the firm
all parts in respect of which any profit might be hoped were to have 5 per cent. on that sum of £24,000 for six
to be gained, and the iron in question was regularly con- years ; and the other sum of £lO,OOO is describe 1 as the
signed to correspondents of the bankrupts, according to estimated value of agencies of steamers, at least £5,000
orders or suggestions from them, and in whose custody a year, at two years' purchase. This agencywas stipulated
this iron still remains ; so that it can only be on the for in the transfer of the above contract, and for which the
ground that the affairs of the bankrupts were so ember- firm of M'Kean, M`Larty, and Co. were to have certain
rassed and in such a hopeless state of insolvency that commissions on the gross earnings of the steamers, which
they ought to have stopped and ceased to carry on their the bankrupts estimated at the above sum of £5,000 a year.
business at the time they gave these orders for iron that Upon this contract a sum of about £B,OOO for commissions
the present objection can be supported. The very im- and otherwise hes been received from the Canadian
portant judgment of Lord Chief Justice Knight Bruce company under this contract, and further sums are
in ex parts. Johnson, to which I have so frequently had expected to be received. Now, therefore, although there
occasion to refer in cases similar to the present, has been may be some question whether the benefit of this contract,
quoted on behalf of the bankrupts, showing how diffi- and at the estimate placed upon it, is, strictly speaking, an
cult it is to say when a trader, although in an ember- asset, yet I think it may, as it has been forcibly argued,
rassed state, ought to cease carrying on business, and that be considered in the nature of property sufficiently to
it can only be when his affairs are in a hopeless state warrant the bankrupts in calculating upon it as a means to
of insolvency that he can be considered under an oblige- be relied upon, from dine to time, towards carrying on
tion to cease trading. Now, it appears that the only their business; and, therefore, looking at the whole of the
bill which has been dishonoured at the periods when the position of the bankrupts at the time of this new partner-
orders for this iron were given was that of Mr. Denny's ship, which then lead a fair appearance of prosperity, I
for £5,751 16s, which fell due on the 19th of June, 1836. think that this objection as to want of capital, is not sue-
It is true the other bills of Mr. Denny and Mr Falk, the tained. Next, with regard to the charge of reckless trading,
petitioning creditor, became due very shortly afterwards, and with which may be considered the general charge
and, indeed, before the delivery of the bills of lading on the referred to, that the bankrupts have continued to carry on
Bth and 22nd August, and it is possible that at the periods business after they werehopelessly insolvent. It is not shown
of these orders, or before the bills of lading were delivered, in which particular instances this reckless trading, is suffered
the bankrupts might not be considered as being sure of to have occurred. 1 presume it is considered to consist in
being able to meet these bills, so that the bankrupts' affairs the very large tr ,nsactions in which the bankrupts hive
might not then be deemed to be free from embarrassment ; entered into, the impropriety of which is deemed to be
but recollecting the peculiar circumstances attending Mr. shown by the heavy losses which have been sustained by
Denny's bills, and the fair hopes that the bankrupts had at the bankrupts, but this is scarcely a fair way of judging
one time of having them again renewed asd of subsequently whether the trading has been beyond the ordinary and
providing for them, either wholly out of the proceeds of the legitimate bounds of carrying on business of so extensive a
Sardinian, or partly so, and of giving some satisfactory a nature as that of the bankrupts ; and when it is consi-
security for the difference, it cannot, I think, be con- dered the heavy losses that have been sustained were
sidered that their affairs were in a hopeless state of in- occasioned principally by the sudden termination of the
solvency until not only after these bills of Mr. Denny's late wa-, which of course disarranged the whole of
had become due, but until all negotiation for their renewal, their transaction, which had been so greatly extended in
or for their satisfaction or security, had faille 1 ; and it is consequence of the war, and which it may be difficult to
to be observed that it was not until the 27th of August consider to bo beyond the legitimate bounds of their
that Mr Thompson's endeavours on behalf of the bankrupts business, lam not prepared to say that the bankrupts
to make some arrangement with Denny entirely failed, and can be fairly charged with having so traded as to bring
no doilies (as it has been observed) this total failure to upon them the censure of this court, and as to he general
make any terms with Mr. Denny was the principal and charge of having carried on business too long, I have already
immediate cause of their stoppage , and I think it is not adverted to the grounds upon which I consider the bank-
shown that before this total failure the bankrupts were rupts were entitled to continue their business whilst they
imperatively called upon to give up all hopes of retrieving had fair hopes of retrieving their difficulties, and which
themselves ; for although Mr. Falk, whose bill fell due on considering the peculiar nature of this business requir-
the 17th of August, had issued a trader debtor's summons ing the personal exertions and talents of the bankrupts,
against the bankrupts, yet it appears that they had some may perhaps (as it has been very forcibly urged), be deemed
reason for considering they had an objection to the payment to be such a case as might warrant a longer continuance
of part of this bill, on the ground of its including some and struggle than what might be 'warranted in many
freight which they had been compelled to pay to other other instances. The next objection for consideration
parties ; and there is therefore little doubt that had they is dealing in accommodation bills. This applies to
settled with Mr. Denny they could have in some way bill transactions between the bankrupts and a Mr.
avoided any serious consequences from this claim only, M'Millan, trading under the firm of M'Millan and Co.,
but to which, in consequence of this failure to arrange and a Mr. James Taylor, trading under the firm of
with Mr. Denny, they seemed to have succumbed, by Taylor and Co. As to the bills with M'Milan, the bank-
failing to appear at this court on the day fixed for their rupt M'Kean denies they were accommodation, asserting
appearance to this summons, namely, the Ist September, that they were drawn against coal supplied to Mr. i'er., Milan,
and thus on that day committed an act of bankruptcy, who was a co-adventurer with the bankrupts in certain
the seven days from the service of the summons coal transactions, and also in respect of the purchase-
having then expired, and which act of bankruptcy was money for M'Millan's shares in the Cleopatra and other
actually taken advantage of in the afternoon of the same vessels. Mr. M'Millan, certainly, in his examination,
day when the petition for the adjudication was filed. states that these bills were, probably, to some extent,
Under all these circumstances, therefore, and in accord- accommodation bills; but there is some dispute between
ance with the view taken in the cited case of ex parte him and the bankrupts M'Kean and Lamont as to his
Johnson, I have come to the conclusion that this charge liability for some loss in respect to this Cleopotra, and in
aasa6intistiUsteetenkrats,,, made on
cMonessisur gr.?t,ljzfat_te_rs, w_hic?..involv.e,sii;a question whether he is a
that taken by Mr. Fletcher on ale itese ee aRt set,ion li d
Ebsworth, and Holmes, which arises under the following erneau sun Lamont, and the bankrupt M'Larty, who is
Messrs. Irving, there is also a difference of opinion between trig dßuZilitit
circumstances :—On the sth of May, 1856, the bankrupts brother-in-law to mr.M•Millan, and upon which the character
had ordered from the firm of Messrs. Oates and Co., of of thosebills maysomewhat depend,and therefore it is urged
Messina, a quantity of brimstone, from 200 to 300 tons. that Mr. M'Millan's version ought not to be relied upon ;
This brimstone did not arrive until about the early part and considering that his statement is given in so loose a
of August last, but before it arrived, and before the manner, referring only to the probability of the bills to
bankrupts had received any advices respecting it, or even some extent being accommodation bills, and also that the
the bill of lading, they were surprised at having bills official assignee in his report on this subject
of exchange presented to them for their acceptance for considers the view taken of this disputed subject by
the sum of £2.029 15e. 7d., the purchase money for the M'Kean and Lamont to be the correct one, and that
brimstone These bills were presented to them by Messrs therefore Mr. M'Millan is a debtor and not a cre-
Milligan, Evans, and Co., as the agent of Messrs Irving, ditor on this estate, I think I cannot venture
Ebsworth and Co., and who frequently applied to the to treat it as clear that any of these bills are accommo-
bankrupts to have them returned to them accepted, which dation bills, so as to hold the bankrupts liable to censure
they very naturally declined to do, having had no advice on this ground. With regard to the bill transactions with
or bills of lading ; but on the 18th of August they wrote Mr. James Taylor, it appears that these bills, in the
to Messrs Irving and Co., for explanation, and on the first instance, were drawn in respect of work done to
following day Mr. Evans called and presented the letter the Waterwich steam vessel, which the bankrupts had
of advice from Messrs. Oates and Co., to Mr. M'Larty ; paid him in excess of his contract, by the amount of
and from this letter it appeared that the bills of lading upwards of £3,000, and for other work for other steamers;
had been inclosed, of which, until then, the bank • and that as he had not be king facilities for dicount-
rupta were in ignorance, but which Mr. Evans had ing, and in order to assist him, the bankrupts drew upon
withheld, in consequence of some indefinite instructions him, instead of his drawing upon them, and got the
which he stated that he had received from Messrs. bills discounted, and the proceeds were either then
Irving and Co., for requiring a security before they were handed over or a balance struck from time to time be-
to be handed over to the bankrupts. On the 20th of tween them ; and this plan has been continued up to the
August Mr. Evans called again, stating that he had the bankruptcy. bills being drawn and accepted, sometimes
bills of lading, and suggested that the bankrupts should in respect of work dens by the bankrupts, sometimes in
write to Messrs. Irving, so as to elicit from them what contemplation of such work, and the result has been that
course they intended to pursue, and the bankrupts wrote there are bills outstanding which considerably exceed
to them accordingly on the 20th of August, and in their the amount of Mr. Taylor's claim upon the bankrupts,
letter they offered to return the bills unaccepted, and told and to this extent it may be said that they were ac-
them the brimstone would be on their account, and would commodation bills ; but, although partaking of that cha-
only be subject to freight the same having come by raster, they do not appear to me to fall under the
a vessel they had chartered, and slatrtly after sending description of accommodation bills which are usually
that letter the bills of lading were given up to considered so very objectionable to be resorted
the bankrupts, without security, and they then to by commercial men, as they here actually sprung
returned the bills of exchange accepted. These bills out of bona fide transactions, and for which there
of lading the bankrupts, on the 23rd of August, handed was some consideration either in existence or expected,
over to their brokers, Messrs. Cox, upon whom they, on and therefore, although there may be some objections made
the same day, drew for the sum of £2,300, and with whom, to such a mode of doing business, yet, lam not prepared
as the bankrupts state, they bad had many previous tran- to say that it forms such an objection as to call for the
sections, and in which they had over advanced to them, usual censure of this court, by a suspension of the cer -
and which had beea repaid to them. And this acceptance tificate in cases where mere accommodation bills have
of Mr. Messrs. Cox for £2,300 the bankrupts, on the been dealt with. The next charge for consideration is
same day, paid into the Borough Bank. Under these that of fraudulent or undue preferences. This relates to
circumstances the bankrupts are charged with keying several payments made by the bankrupts, of bills and
obtained the bills of lading for this brimstone without sums into their bankers (the Borough Bank) within
having the means of paying for it; and, also, with having a few days before their bankruptcy ; and after the
improperly obtained an advance upon it, and having dishonour of Mr. Denny and Mr Best's bills, as well
paid such advance into their bankers by way of fradult-nt as the service of the trader debtor's summons, on behalf
preference. In the first place, with regard to the obtaining of Mr. Falk, the petitioning creditor. Now, the same
these bills of lading, it is to be recollected that the orders remark applies to these payments as that which I have
for this brimstone were given so far back as the month of made in reference to the payment of Mr. Cox's advance
May, 1856, long before any of the bankrupts' bills had in the like manner ; such payments to a banker in the
been dishonoured; and that the bills of lading also had ordinary course of business, and without contemplation
been nistained by the bankrupts before the period when, of bankruptcy, and without any apparent collusion be-
es I have before obee:ved, the bankrupts had reason to t 4 eon the bank and the baukrupt, or intention of favour-
suppose they could not succeed in effecting some arrange- ing, being, as I repeat, free, in my opinion, - from this
mint with Mr. Denny, and until which time they could charge of fraudulent or undue preference. There is one
not, as I consider, be imperatively called upon to cease payment, however, to which some objection seems to apply ;
their trading, and, therefore, until then, without entering this was of bills for £1,321 18s 3d, so late as the 28th of
into the question whether the bankrupts strictly had any August, as the bankrupt M'Kean states, though in the
option to refuse to receive the bills of lading when they bank and bill book these bills seem to have been received
were offered ; it does not appear to me that the bankrupts and paid in on the 29th ; but this bankrupt is positive on
can be censured for obtaining these bills of lading, espe- the subject. Now, this payment being after the period up
cially as they were sent in compliance with orders given to which I have considered that the bankrupts had a fair
so far back as the previous mouth of May. And, with hope of overcoming these difficulties, it would seem to be
respect to the advance obtained upon these bills of lading, subject to this objection of preference on that account;
this having been done in the usual course of business, but it is to be observed that the bankrupts, on the same
the same remark applies as that before noticed in respect 29th of August and following day, drew out from the bank
to the orders given to Messrs. Bost for the iron, and about £9OO, which reduces considerably the amount of this
equally free from objection, considering that this advance preference—if it may be so termed—and the application of
was obtained before the period when all hope of nego- this sum of .£9OO appears tobe accounted for in the cashbook,
ciation was at an end. And with regard to this advance and in respect of which Ido not understand that any objec-
having been paid by the bankrupts into their bankers, tion is made, and I think that being a payment to a bunker,
and, therefore, amounting to a fraudulent preference, even atthis late period, without any collusion being shown
this, again, I think depends upon the view to be taken ' or preference intended beyond whet may be implied from
of the state of the bankrupts' affairs at the time. Now, the same consa ; it is, I think, very doubtful whether it
on the 23rd of August, when this acceptance was paid ought to be idered as one of those payments made on
into the bankers, the bankrupts may be considered, as I the eve of bankruptcy, and which are Iry proot, phowerly
ever,
con-
have before observed, to have had some fair grounds for sidered so objectionable in a trader,
cann
expecting they might stand their ground, and before absolve the bankrupts from all blam
course of e on this
th groun dis-
d.
which period it may be inferred that bankruptcy had Some remark has been made,
in the is
not been contemplated by the bankrupts; and therefore cussion, that the giving of the bill of sale of the Sar-
I cannot conclude that such an ordinary course of proceed- diman to the bank was also a fradulent preference. But
ing as the paying of moneys or bills into their bankers this appears to have been given so far back as April, 1836 ;
ought to be regarded as undue preference, there being, and, although it was madeasurety for an ultimate balance,
apparently, no collusion between the bank and the bank- by which the proceeds of the Sardinian became nearly
rupt's, in reference to thee payment, nor any intent to absorbed, yo 1 atn tot aware that it is for that raat!oxilio)l
•

o objection. The remaining objections for consideration
are that of negligent book-keeping, and the conflicting
accounts given by the bankrupts of portions of their
transactions and liabilities The latter arises out of the
difference of opinion entertained by M'Kean and Lamont,
and by M'Larty as to the rights and liabilities of Mr.
M'Millan in respect of certain losses on the Cleopatra
and other matters to which I have before adverted ; but
as this is a matter of opinion and a question of construc-
tion as to the arrangements made between the parties, I
do not see how this ought to affect any question of ,
conduct of the bankrupts unless it were shown that these
differences arose from some wilful mismanagement
of any of the bankrupts which I do not understand to
be the case, and, therefore, I consider there can be no
objection made to the certificates on this subject with
respect to negligent hook-keeping. This objection would
appear to apply only to the ledger and journal, the cash
and other books having been tolerably well kept. It
has been very justly observed, that when the cash-book,
which is the great test, has been well kept, as it has
been in this case up to the bankruptcy, there is great
reason for overlooking many defects in the keeping of any
other books. There does not, however, appear much to be
complained of in respect to the other books in this case.
The arrears of past entries in the ledger and journal seems
to have been occasioned through the negligence of a book
keeper, but latterly these books appear to have been well
kept, the bankrupts having employed au efficient book-
keeper, who, it was expected, would in time have made
all the books correct, had he not been prevented by the
bankruptcy. Under these circumstances I cannot think
that any objection can be sustained on these grounds. I
have now gone through the various ground 3 of objection
that have been made to these bankrupts' certificates, and
although they appear to be of a formidable nature, and
have been strongly urged as forming serious objections, yet,
upon full investigation, and mature deliberation of all the
circumstances, I cannot consider, as my foregoing remarks
show, that any of them are sustained sufficiently, so as to
affect the claims of any of the bankrupts to immediate
certificates ; and although the recent payment of the lolls
for £1,302 into their bankers' hands is not entirely free
from blame, yet I do not think this alone, under the cir-
cumstances in which it is made ought to be treated as a
sufficient ground for a suspension ; and I therefore grant
each of the bankrupts an immediate certificate. But, as I
cannot say that the losses are wholly unavoidable, and
though I acquit them of all charge of fraud on the subject,
yet, as I feel that it might have been more prudent in them
to have stopped at a much earlier period, I can only grant
each of them a second-class certificate.

THE HUNDRED OF WIRRAL COURT LEET.

IMPORTANT PROCEEDINGS.

Yesterday, the Lord of this Hundred, Mr. Morton, held
a second, or adjourned meeting of this ancient court, which,
as Blackstone states, its institution was probably coeval with
the Hundreds thease lves,which were introduced,though not
invented, by King Alfred, and were established for the
ease of the people, that they might have justice done to
them at their own doors, without any charge or loss of
time. The court was held at the Tranmere Hotel, and
Mr. it. Grace, the steward, presided.
The usual formalities observed in opening this court
having been disposed of, the following gentlemen, belonging
to the Hundred, were selected as the jury :
W. W. Perrey, Esq., Foreman.

Mr. J. M. Constable
Mr. Scott
Mr. William Ellis
Mr. Thomas Monsdale
Mr. G. S. Gopsill.

Mr. E. M'Keverigan
Mr. W. Mundy
Mr. R. Helsby
Mr. J. Robinson
Mr. C. Ramping
Mr. G. Spenser
Mr. Nicholson and Mr. Evans were chosen by the jury
to act as assessors.
The jury having been sworn, the Seward briefly recap:-
tulatect the business that had been transacted at the last
court, (a full report of which appeared in the columns of the
NORTHERN TIMES), and then proceeded to say that the
court was ready to hear any comptaiut that any of the in-
habitants might be ready to make, that came withi❑ its
jurisdiction.
The FOREMAN of the jury said he, as the Chairman of the
Trantuere Highway Board, had been served with a process
from the former court, calling upon the inhabitants to
repair a certain well within the township, declared to be
dangerous to the lives of the inhabitants, in which case it
had been ordered to be put in proper repair, under a
penalty of £5O. The Highway Board had put that well
in a safe state, and had erected a pump in its place, so that
the inhabitants had then the means of obtaining a proper
and good supply of water. He then, in consequence of the
rumours on that, and the other side of the water (Liver-
pool), requested to know as to the authority that court
possessed, finding that the former Lord of the Hundred,
John Williams, had been convicted of felony in the year
1820.

A long but desultory conversation followed, based upon
the point raised, the result of which was, that the Steward,
after quo' ing various acts of Parliament, clearly allowed to
the satisfaction of Mr. Perrey, and also to the jury, that the
„. . .
enforce the penalties that rniglat he imposed. "
Mr. PERREY : Has it been proved that Mr. Williams is
dead. _ _

The STEWARD : We have full proof of that.
Mr. PERRY : It is, I suppose, within the last two years,
and hence the revival of this ancient court.
MR. CHR(STOPHER BUSHELL'S ENCROACHMENT.

The STEWARD: Exactly so. I have to tell you that in
the case in which Mr. Christopher Bushell was ordered to
ply a fine of £5O for making an encroachment on a certain
ancient footpath, and to restore the same, that he has re-
stored the footpath to the public; and that in the case of
Mr. Billinge, who was fined £5 for permitting a certain
quarry to be in a state dangerous to the public, that the
latter gentleman has paid the fine imposed upon him at the
last court.
Mr. Mulvey : But Mr. Bushell has not yet paid the £5O.
Tne STEWARD: No ;Mr. Bushell is a gentleman holding
such a stake in the hundred, that he is not a man that is
likely to run away. We are not in a hurry with him, and
we give him time, that he may come to his senses. It is a
large sum that was imposed, and as he is a man that likes
fighting, we give him every opportunity before we proceed
to extremes. The fine will be enforced, but it is best not
to be in too much of a hurry. I will tell you this, that he
has dismissed all his lawyers in this district, and has now
got a London man to do his business. (Laughter.) He
has restored to the public the ancient footway upon which
he had made an encroachment.
A Juitoa : I suppose there is no truth in the statement
that he had enclosed another footway. I heard the other
day that heehad done so.
Mr. PERREY said, from what he had heard at the Board
of Guardians the other day, he could gainsay that.
The STEWARD: I think that if he had done so the court
would have heard something about it. I scarcely think
that a man like him would have done such a thing, after
he had been compelled to restore the other by the order of
this court.
Mr. PERREY : It is scarcely likely.
Mr. MUNDY : It has been reported that the cfficer of
this court went to Mr. Billinge's with a warrant, and re-
fused to leave until he had the money. I should like to
know it that is the fact. If it is, Ido not think that it is
fair that he should have been treated thus, while nothing
had been done to get the fine from Mr. Bushell.
The STEWARD: if such was dune, it was without my
knowledge. I do not believe it, but the Reeve of the court
will be here shortly, he should be here now, and he will
be able to explain what did take place.
After some further discussion, in reference to having a
pinfold at Neston, which the Steward, on behalf of the
Lord of the Hundred, agreed to supply,
Mr. W. EDMONDSON, the Reeve of the court, entered the
room, and, on being informed of the accusation against
him, in the case of Mr. Billinge, said : I wish that gentle-
man, or his wife, was present to hear the statement I am
about to make, and then they could confirm it. I simply
went to the house ; I did not enter it, and told Mr.
Billinge the business I went upon. He said he knew all
about it, and I told him I did not wish to put him to any
inconvenience by remaining there. He said he would pay it
and meet me where I thought proper. We agreed to mce
at Mr. Morgon Scott's -Hotel, and in the afternoon he
called there and paid the money, and he likewise com-
plimented me for the gentlemanly and modest way I had
behaved.
Mr. MORGAN SCOTT confirmed the above statement.
Mr. MUNDY : Then there is no truth in the statement,
and I am glad this explanation has been given.
The REEVE of the Court then detailed the steps that
had been taken in reference to the orders made at the last
court, all ()F which had been fully carried out, or were
about to be done.
A JUROR : Is n t the Lord of the Hundred hound to
provide public stocks.
The STEWARD : He is, and will do it if dais court make
an order to that effect.
Mr. PERREY We do not want stocks in Tranmere,
(Laughter).
A JUROR : It would be well to have them before the
next wakes.
COMPLAINT ACAINcT A SLAUGIITEIt':MOUSE.

Mr. M‘lirriNEsirzn said : I have a complaint to make
against a slaughter-house belongir to Mr. Sewell, in this
township. It is close against my premises, and the stench
from it is most abominable. At times we cannot live in
the back part of our ',douse. It has existed for some time,
ity,d IVIr. Sewell bas been summoned before the magistrates
for permitting it by the late nuisance committee, but the
infoppation failed for the want of medical evidence.