The National Register.
London, England, 1817-09-08 00:00:00

THE NATIONAL liEGISTER.

that he has been a good general, as he has not had quite so
much costs as he would have bad to pay if he had proceeded
to law. He does not deny the coucert, but says it was
done for the benefit of the creditors. We know that these
are very pleacant general terms, under which the petitioning
creditor may shelter himself; but we want to know why he
does not deny that this was a concerted commission. These
petitioners applied to this George Kitcat, to ascertain the
truth of the representations that had been made, when he
informed them that said commission was a perfectly good and
valid commission. Now, I particularly direct your Lord.
ship's attention to these words, that upon a second appli.
cation made to him by petitioners, he stated, that said
Bankrupt had applied to him, and informed him that he
could not get through his difficulties, unless a friendly com-
mission issued against him, under which he might obtain a
certificate ; that he, therefore, solicited said George Kitcat
to issue a commission of Bankrupt, which said George Kit-
eat consented to do ; and that therefore an arrangement
was made, that he should call at the house of said Crosby
at a time appointed, and inquire for hint, and that said
Richard Crosby should he at home, but be denied to him,
and that a commission should thereupon be issued.' Now,
I request your Lordship's attention to his mode of answer-
ing that application, namely, ' that when he issued the
said con 1111 l ssion, he issued the sante solely with the view
to the general benefit to the creditors of the said Bankrupt,
and that he was not acquainted with, or privy or party to
any of the circumstances relative to the said John Miles
and Eliezer Chater mentioned in the petition of the assignees
to the said commission, and that he received the said
commission to be in all respects perfectly valid, or
he would not have issued the same.' Now I look upon that
as important, where the petitioning creditor will deny that it
is a concerted commission. The next denial is' that he denies
our statemet.t as alleged in the petition and affidavit ;' any
person might so deny it. He admits in sub,tuice the con-
y creation, but be says no person has promised to indemnity
him. It was very well understood, as your Lordship will
seeinotte moment,that Miles was ultimately to pay the costs of
this commission, and will, I trust, lease to pay them. He
has not sworn that he was ultimately to be indemni.
fled, because he does so expect. Why does not this son-in.
law, Miles, make such-au affidavit? Why does not the
Bankrupt do so? The solicitor w Ito gave him such excellent
advice might have advised on this occasion; and why does
not the Bankrupt make such an affidavit ?"

From all this, Mr. Montague argued that it was
clear that there was no petitioning creditor's debt, that
Chutcr could not be brought to account under this com-
mission, that the assignees ought not to be defeated,
but ought to have their costs, and that a new com-
mission should be issued upon the prayer of the pe-
tition, under which proceedings might be taken in law
for the recovery of the bond.
Mr. Hart, in behalf of Kitcat, the creditor who
sued out the commissioe, contended that the mistake
on the part of his client was an innocent one, and
that he ought not to be charged with the expenses.
He thought they might be taken out of the bankrupt's
estate.

Lord Chancellor.—" What right have I to take them out
of the subsequent estate of the coeditors...
Mr. CoHinson, council for Karat —" The discussion of Sir
Samuel Hominy represented this as a rely bad case between
Miles and (hater, and that .because a l'OlllllliSSlOll was so
taken out, therefore that we must pay the costs. Now, it is
spun this very point that is assumed by Sir Samuel !timidly in
point cf argument, that this dispute increases, for ploviding
the tiansaetion between Miles and Chalet be as had as can
be suggested in the Imnian mind, yet unless we can be al.
lected as parties to it your Lordship will not inti.r it, unless
it he by proof, that we were parties to it, and then all
the other circumstances are immaterial to the question. It
was assumed, and I supected it would he assomed, for ill read
the affidavit accurately, 1 think if they fail in any thing, it is
in chewing by evidence that we are allected at all, as to trying
by conspiracy to defraud the creditors. If there be a con-
spiracy, and we can shew that instead of being the actors in
it, we are merely the victims of it, as creditors, then your
Lordship will dismiss so much of the petition as asks us to
pay the costs. It is necessary for me to state the trans-
action, in order to satisfy your Lordship, that we are
not connected with the transat-tion. Ling before this
commission was taken out, Miles obtains a power of
attorney, first from the father and then from the Bank-
rupt, in order to manage their afriirs and dispose of the
business. Under that authority he sells the good-ss ill of the
trade to Messrs. Baldwin, Cradock. and Joy, for 60,0001.
40.00(11. of which is paid in bills, and the remaining 20,0001.
by a bond, payable by instalments, flue last of which not
being payable for seven years to roue; it appears that
Miles, with a fradttlent view, sells this bond to Chatur for
0,5001. Chafer being in fact a Trustee for himself (Miles).
It is not for me to contend before your Lordship that this
was not a gross fraud u• actised by Miles and Clutter ; I am nut
concerned in stating that they are not guilty of that, but my
anxiety is for Kiteat, who is the petitioning creditor tinder
this commission, auto they don't allege in tht it affidavits their
belief that tie knew any thing of it. Our name is not con-
nected with it, in any way ; they don't state us to parties,
and don't suggest that we were at all apprised at the time of
anv of these transactions. so as to connect us with them. Hay.
hag done this, upon the Bankrupt's return, this commission is
taken out, and it is for me to shew your Lordship under what
eiremnstancts it is taken out, in order to satisfy your mind, if
I can possibly succeed, that although my client has acted
upon a great mistake, he has acted trout an error in judgment,
and not from an ill intention."

Mr. CoHinson then proceeded at considerable length
to skew that his client having acted without a tradulent
intention, ought not to be subjected to the payment of
costs.
Sir Samuel Romilly was about to reply, when the
Lord Chancellor interrupted hint :
"I don't thi k, Sir Samuel, that you need trouble yourself.
lively thing that rim be said for Kite:it has been urged, if
Miles be not (yet one cannot help believing that he is, and 1
hope, he is)an.weraloh• to Kites( for the costs ; hut mispose
lug him to be otherwise. I cannot relive kitest froo the casts
and charges, without imputing fraud to him. '!•here was a pe-
tition, but not an adverse petition, to supersede the 'co 1111 l iis.
:don ; the consequence of that is, that the moment that it was
super,eded, every expense the assignees are at, they must he
personally answerable for. Now let us see whether that be

a tit thing as between the assignee: and Kitcat : a man ado
takes out a commission of bankruptcy cannot take awn withis
out pledging himself upon oath that lie has a debt above 1001.
and after that lie cannot establish the Commission, without
bringing proof that the person has committed an act of bank,
ruptcy. Now, suppose the thing were to go no further than
that, and that it turns out that that man has neither MI debt,
nor can lie establish an act of bankruptcy but by concert, I
should be glad to know whether under the circumstances, be
who upon oath deposes that which is not tine, but afterwards
attributes it to mistake, and lie who sets up an act of bank.:
ruptcy, although not in fact an act of bankruptcy, is to say to
the assignees who act upon his oath, that the Conaniission had
been superseded at the expense of the assignees. The assign-
ees have placed themselves in a situation that every act they
do they must be personally liable ; for they must pay all ex-
penses that have been incurred, unless they can come before
the Great Seal and make this demand. I cannot call that
irrelevant, as to the transaction between Miles and Chater, at
this petition prays that they (the assignees) may be indemni-
fied against the costs. As to the bond of Baldwin, Cradock..
and Joy, for 20,0001. a Company as honourable and respecta-
ble us any in London, Miles sells it to Chater nominally, but
in tact to himself, fur 9,5001. Was there any thing in the
world more reasonable than that the assignees, if the coinnsis-
biota could have been supported, should apply themselves
to the means which the law of the country afforded them, so
make Miles or Chatter liable for the benefit of the creditors in
general? It was incumbent upon them to shew, that they lied
reasonable ground for going to law with Miles, as to that for
which costs are asked. In addition to the carelessness of
Kitcat taking the oath, as to his having a debt of tool. was
this other circumstance, viz. that there was no act of bank-
ruptcy at all, and it is neither more nor less than this, that
Ct usby tells him that lie cannot get out of his ditticulty unless
*Commission of Bankrupt be taken out against lum ; and then
they contrive that Crosby shall be at home and denied, and
that I.:neat, who, it is very likely, did not know the neaut a of
the laws upon that subject, when lie concerted that a pet son
should be sent for Crosby, and that he should be denied ; and
then it is upon that thing, that alledged act of bankruptcy
(but which was not an act of bankruptcy), that the whole of
this proceeds. That Court must shut its eyes, and keep those
eyes close shut, that cannot see that it was the expectation of
Kitcat that he was to be indemnified against the consequences
of taking out this Commission, and, if he were so, then upon
what ground can lie refuse indemnifying these assignees O—
llie Commission must be superseded, and the assignees nasal
have all the expenses they prayed fur."
Mr. Collinsou—" What is to be done with respect to the
Bankrupt's cost upon this petition ?"
Eldon, The Bankrupt is so involved now, that be
should not have ails costs ; DIsIIIISS that petition."
Mr. liorne—" There is Nothing directly against the Bank-
rupt by way of evidence, further than that he asserted that .
they could nut get on, because the commission was bath*
Eldon, C.,—" It is all wrong; dismiss the Bankrupts peti-
tion without costs ; take what is sought for in the prayer of
this petition oldie assignees; supersede the commission, and
take the costa. Dismiss the petition of the bankrupt."