The British Press; or, Morning Literary Advertiser.
London, England, 1818-07-22 00:00:00

JUDGMENT.

THE RIGHT OP COMMISSIONERS OF BANKRUPTS
TO COMMIT BANKRUPTS TO PRISON.
cloin.Er, is the matter of CROWLEY. a Bankrupt.

It will be recollected that Sir SAMUEL Roast Lt.ir
moved that the Bankrupt should he discharged
out of ctistody, he being committed by the Cow.
missioners for not having answered certain goes-
tions, aud that the Bankrupt ass brought up under
a writ of Habeas cnrpos. Mr. Rose. on that oc-
casion. took an objection to the right of the Loan
CHANCELLOR'S granting stsch a writ in vacation
and particularly after the Bankrupt had al-
lowed two Terms to elapse after his committal be.
fore he applied to the Court, and stated the case
of Jenks, as decided by Lord Nottingham, as con-
clusive on the subject. This objection having been
argued most ably at the Bar, the LORD CHAN-
CELLOR on Monday gave his judgment, which we
reported yesterday, and decided against the objection.
Mr. ROSE this day stated, that he appeared as
Counsel fo► one of the Commissioners of Bank•
runts, as the other two were out of town, and that
his client was ready to submit to any jtidgment his
Lordship might think proper to give, at the same
time he was requested to mention to his Lordship that
the Bankrupt had brought two actions against the
Commissioners for false imprisonment, and that
the Judge who presided had directed the Plain-
tiff to be nonsuited. lie had only to suggest that
during the remainder of his life lie would take
pride to himself for having agitated that case of
Jenks, as he had drawn forth that adin;rall le deci-
sion of his Lordship's, which would put that climb-
tion for ever at rest.

The LORD CRAIICILLOR" In respect to what
may have been the conduct of the Baukrupt and
the creditors. I have nothing to do with it. The
Bankrupt is brought before me by virtue of r writ
of limbers Corpus, and my duty is to se.: whether
the Commissioners' warrant nf committal is insuf-
ficient either its form or substance, and if it is
only insufficient in form, by the Act of the Sth of
George IL, I am empowered to amend and correct
it. I cannot travel out of the warrant of com-
mittal, for the principle is held here precisely the
same as in the Courts of Lim. It appears that
there was a great deal of examination of the Book-
rapt before the Commissioners committed him. In
respect to the Commissioners knowing aI i that passed
on those examinations, it is impossible that their
minds should not be influenced by them at the
time of the committal. It is certain that by the
old law the Commissioners could not commit a

Bankrupt if he did not prevaricate. and guve a
answer ; but by the new law it is left to the
Lord Chancellor to decide whether the answer is of

• nature that the

ought to commit.

I have read the warrant of committal repeatedly,
and I cannot help believing that the Commissioners
were influenced by what had passed on former cites
minations of the Bankrupt ; but as I said before,
it was impossible that men should be otherwise.
Ou the 4th of June, when the Bankrupt appeared
before the Commissioners, and was asked for a
vtatemet►t of his accounts, he said he had
none, and begged that the examination might be
postponed, and gave an undertaking that he would
on the Thursday following render an account to Ins
assignees, which he did not do ; and on the 14th
of June he again appeared to be examined before
the commissioners. They asked him again fur his
account, and he answered that he was not able to
make out one, as his books and papers were in
possession of a person of the name of Hamilton, re-
siding in the London-road, who refused to give them
up. On his last examination, and the one on
which he was committted, the Commissioners put
the following question Have you any account
now to deliver, or any further reason to adduce
why you have not produced it ?--A. I have no
account, and I have no further reason to advance,
except that I hove presented two Petitions to the
Lord Chancellor, which are now peuding, to set
aside the commission : at the sometime, I am ready

to answer any questions th.►t you (the Comteissio►r
en) may think proper to put to me.' It was then,
on this last examination, the Bankrupt was
committed. It is obvious to me that it might
strike the minds of the Commissioners, that nut

one word of what he said relative to Hamilton's
detaining his books was true ; and this appears
from the affidavit of their messenger, who was
sent to serve a summons on Hamilton to appear be-
fore the Commissioners, who sets forth that be could
not find him to serve it personally, but on his solic-
it% a woman iu thti house whether she had told lain
he had been there, she informed hint that she lied,
and that Hamilton said he knew his business, but
it was of no consequence, as the whole proceedings
were illegal. I cannot withdraw what 1 said to Mr.
Cullen, that it is a settled rule in bankruptcy,
where a question is put to the Bankrupt by the
Commissioners, embodying an answer which he had
given before, and does not object to it, that it ad.
mita what he stated before. There is a point which
Mr. Cullen holds the Commissioners have not the

right to do, that is, to put questions to other per.
Pons relative to the conduct of the Bankrupt. Let
it be understood that this is a point which I give nu
opinion on. But if the Comm's:rimier& In this rase
had not the right, they have done it; and it does not
appear that the imbalance of that information had
been represented faithfully to the Bankrupt. When
a Bankrupt is brought before me, by virtue of a writ
of Habeas Corpus, it is not for toe to take into my
consideration what were the tholights of the Com-
missioners, but what they ought to have thought.
Mt opinion is, that the warrant of Commits, is in-
sufficient in this respect ; that it refers to deposi-
tions which I cannot call for. There can be no
doubt but the Commissioners meant ettrelnely
welt My opinion then is, that the warrant of Com-
mital is not :utrtc•iet►t iu substioce ; if It wan truly

s
.•
deficient ifi form I mild set it right, but %%here it
is in ►ub.lance, I cannot. This is one of the Erect
hardships that presses on • Judge, for lie has no-
thing but his own opinion to guide I • . I re-
• col lect s case where Lord Chief... Justice De 'Gray and
•liis brethren said, that the evidence was.iinist anise
factory ; and in the same case Lord Kenyon and
his brethren declared it, was most uosatisfactury.
So with we, some other person sitting where I now
do, may say I have been. wrong ; I hive, however,
come to the best conclusion I can. Let the Bank-
runt be discharged from the citmody of tile
so far as he been committed by theCurituissiouers."
Bankrupt discharged.
OPEP.A.HOUSE.

WATERS r. TAYLOR.
. Mr. HART, yesterday, just as the Court was
rising/, moved, that ;111 order made by his Honour
the Vice-Chaticellot on the 4d of July, might be
di.chaxged-.-(See slur Puper of the thd o(July fur
Al report of it).—The order of his Honour was,
that the Plaintiff should pay into Conti the sum of
tl,OOO/. as the purchaser of the Opciii-house,
which the Mister had allowed to. f!im as victim-
butlers on the Opera-house. Excahoions were
taken to the Master's report, and on these being
argued before his Honour, he untitled them, stating,
at the same time, that lie Only considered the seta
as matter of account between Mr. Waters and Mr.
Taylor and mi an application shade to him, he
ordered the Mufti to be paid into Court by Mr. Wa-
ters. The Learned Counsel contended, tliat the
order of his Honour was wroug, and contrary to a
decision which had been given by his Lordship, and
on which account it ought to be set aside.
Mr. Bud., oh the some side this day,
that he did nut thiderstand the case, perhaps, as
fully as some of the Learned Gentlemen engaged
in it, as his first appearance in the rase of the
Opera-house was on the exceptions being. argued
before his Honour. But us tar Ns he understood
the case, the exceptions to the Master'. report were
allowed, ,in the ground that the sums claithrd to be
deducted out of the piirchase money of Mr'.
Widens were not encumbrances on the Opera-
house, as there was no particular deed of Mortgage.
Then the question war, that the purcha.r money
'boom be paid in, and these charges not allowed
as ei cumbrances, but us u partilership account.
There were stains of money paid properly for car-
rying on the busioess iif the Opeia-liuu-e, which
Mr. iVuters wo obliged to pay as the representa-
tive of Mr. Gould.
Mr. BARBER followed on the same side.

Sir SAMUEL ROMILLY. Counsel far Mr. Taylor,
observed, that if his Honour the Vice-Chancellor
was wrong in his decision, it was certainly a great
limidship on him, for the line of argument before
him was quite different from what the Learned
Counsel bad used on the present occasion ; at the
same time, he was at a loss to find any.thing that
would shake that decision. His Lordship would re-
collect, that Mr. Waters purchased the Opera-
house, in the first instance, fur 39,0001. and Mr.
Taylor had the good fortune to open the sale again,
when the terms were, that the purchase money wet
to be paid into Court in two months. On that oc-
casion Mr. %%raters hid upward• of 30,000/. more,.
althoUgh he held out to the Court that his first
bidding was as much as could be obtained for it,
yet he .became the purchaser at a sour above
70,13001.; and there was a bona fide bidder, who
only lost it by bidding 501. les►, and who would, if
hr had kobwis that the same time would he given to
pay the purchase money which Mr. Waters had
taken, have bid a much larger sum. Under these
considerations. Mr. Waters had no right to be put
in a better situation than any oilier person who
might have become the purchaser of the Opera.
house.

Mr. Hut?, in reply, said it was not necessary
for him to repeat what ►Mr. Waters wanted, which
was, that he might he allowed to retain, out of the
purchase-money, such sums as he fora expended
for the benefit of the Opera-house, at the time
Mr. Octold was the manager.
The LORD CHANCELLOR—" If I understand
rightly, Mr. Hart, the Master lias reported i►► the
first instance, that this is ai► encumbrante, and on
exceptions to his report, it has been decided that
it is not. You have a right, then, to shew me that
this is infallibly the Money of Mr. Waters; and you
must take this with you, that no decision of wine
ever authorised this sum to be deducted from the
purchase-money."
Mr. HART--" 1 can shew that G,ooot was laid
out on the account of Mr. Taylor."
The LORD ChANCELLOn" Yon mutt also
shew to me to demonstration, that after the balance
is struck bettiects these gentlemen, that that ba-
lance is due to Mr. Waters."

Mr. H strr--., If it is not an encumbrance. it is
a iuul thst Mr. Trylor ought to have paid out of
the receipts of the openr-house. when he was
manager; but lie says it is impossible for him to
give an account of the receipts, us he his no
vouchers."

The .LORD CmAntaLLoa—is I take the order
of the Vice-Chancellor to be quite right, that it is
not an encumbrance; but the fact here is neither
More nor less than that when Taylor was the ma-
nager, he ought to have paid the performers, which
he did not do; but the bunkers were obliged. and
they had Goold's security, and he was Compelled til
reimburre them, and he charged, as a matter of
account between him and Taylor. Mr. Waters
stands pieeisely in this way ;he sap, Don't let
me have to pity money into Court, and then Olige
me to ask your leave to take it out again.' lam
told there is sufficient evidence Ist the Master's
office that this is the care, but it is not before me."
Sir SAAUEL ROSIILLIr" There is an account
pending in the blestei'• office, whereby it tippears
11)41 Mr. Waters undertook the management of the
Opera-house at the rate of 29,000/. a season, and
has expended Mom/. mere its a season."
The LORD CHANCELLtitt—,II I will read the
Master's report, and see if it will make any differ-
ence in my opinion, and I cannot do more."

A Gentlemah, who recently visited St. Kilda,
carried with him twelve Girlie Bibles, to dui-
tribtite aihong the poor inhtibitattts of that place.
It will speak volumei to thoie who ire so rund of
illuminating the heathen abroad, that out of the
twelve Bibles he brought back eleven, as he found
only one inditirlual, among a community of 110
souls, wli6 could reed; We pledge ourselves for
the truth of this stutement.—( Caledonian Mercury.)