The Sun.
London, England, 1824-11-27 00:00:00

N.

tiff in the action had been a hosier at Newcastle; and becoming
embarrassed in 1022, he went to prison, and in the August of
-that year obtained his discharge under the Insolvent Debtors'
Act. The defendant Marshall was assignee under the. Act, and.
was a glover residing in London. In. March 182 J, Marshall'
moved for a rehearing, and the result was that lleppen was re-
manded for twelve months • from 'the day when he was so re-
manded, Between the period of the first discharge and the re-
commitment, the plaintiff had taken the II:IF-Moon Inn at
Newcastle. Ile furnished it with wine, spirits, &c. all of which
had been obtained on security offered by his friends. At the
trial it was proved that some money remained unpaid by the
plaintiff to those new -.Teditors. Marshall, hoWever, having•
heard that the plaintiff' was doing business and hattproperty in
the Inn, authorized his co-defendants, Fell anti Jones, to enter
open the plaintiff's premises, and sell whatever they could find. •
At the trial it was proved that the latter acted upon their in-
structions, and entered the house of the plaintiff, in December..
.1023, with no small. 'degree of violence. They deprived his
wife of the use of every' thing in the house ;. they even sold the
very bed upon which she and four of her young children slept;
and that the-family were compelled to lie on the bare bedstead
for a fortnight, fit that %dement season of the year. Sorne..of
the persons whd had bought the plaintiff's goods, finding the
condition of his wife, sent them back. It was also proved
on the trial that the plaintiff's goods sold for 85/. but that his
estate was brought in debtor to Marshall in the sum of 21. 12s.
. In hi* justification the defendant
.put in the assign-
ment executed by the • plaintiff in his discharge from prison
under the Insolvent Debtors' Act, on the 20th August 11322 ; and
further contended, that the 4th,'l7th, mid 25th sections of the
Ist 1;eo.: IV. chap. 119, gave him the legal right of entering
upon the plaintiff 's premises, and selling his goods under the
assignment ; and not only that, but he insisted upon his right
to sell all those goods, or other property, which the plaintiff
might acquire' until all his debts were satisfied. A point of
law was raised at the trial, upon the construction of the Insol-
vent Debtors' A et, which the Learned Judge said he would
• not determine Nisi Prins, but left it to the Jury to say—first,
whether. tile property sold by the defendant was acquired sub-
sequently tp • the plaintiff's discharge ; mind secondly, if it
were, to what amount of damages he was etrAled.—The Jury
returned a verdict, damages 125/. The Learned Judge gave
the defendant leave to move to enter a nonsuit, if the Court
above should be of opinion, that the justification pleaded was
good in point of law. ••

Ou wformer day Mr. Sergeant Vaughan appeared for the dc•
fendant, and obtained a rule to show cause why the verdict
should not be set aside.

Sir. Sergeant • WiettE yesterday appeared to show cause
against the rule and contended, that the whole question would '
turn upon the construction of two or three clauses in the Insol-
vent
Act. . The assignment made on the discharge of the
prisoner was only, intended for the transfer to his creditors
of his then existing property. The very terms of the assign-
ment clearly slew this; as well as what was to be fairly
fermi from the 4thi,.qt,h, and 7th sections of the Ist Geo. IV.
And the 25th section evidently shewed that the assignment
gave no controul•to the assignees of the after-acquired property'
of the insolvent; for it vested that poweeentirely in the Insol-
vent Court. The sections relied on at the other side related to
the power of punishing the insolvent in case of fraud or con,
•ccalment. The 4th section of. the Act states, that a prisoner
should at the time of subscribing his petition only execute a
conveyance and. assignment of all his property, in such form.
and manner as the Court should direct, other than his wearing
apparel, bedding, ifec., to the value of twenty pounds. This
property thereby becomes vested in the provisional assignee of
the Court, subject to a proviso, that if the prisoner did not
obtain his discharge by virtue of that Act, that such convey-
ance and assignment should, after the dismissal of his Petition,
be null and void, to all intents and purposes. The sixth section
provided that the prisoner should make out anti deliver to the
Court, within 14 days of his signature of this assignment, a
schedule, containing a full and true account of all his ell'ects,
real and personal, in expectancy or remainder, in order to
put the Court. in full possession of the ,property which .10
passed under the assignment. The .s....ventit section me-ely
vested his estate in certain trustees, without reference to any
authority over his after-acquired property. The assignment,
in fact, passed nothing, but the existing property contained
in the schedule, which could only contain such property as
was actually in cam The twenty-fifth section was framed with
great caution, and spewed at once the wisdom, justice, and
mercy of the Legislature. It gave the insolvent a chance of
again establishing himself in the world after he was turned
nakedly from his prison,—it secured the first earnings of his
industry to his new creditors, while it reserved to his old cre-
ditors the means of recovering their debts if the insolvent should
become so prosperous as to have property sufficient to meet
their demands, or any portion of them ; but that only under the
and by the order of the Insolvent Court. The 2lith sec-
tion enacted, that when an order for the discharge of any pri.
senor should beinade, the Insolvent Court might order judg.
ment to be entered up against him in any one of the superior
Courts in Westminster, in the name of his assignees, for the
amount of all the debts front which he t6s discharged ; that
the prisoner should execute a warrant of attorney to auttoriie
the entering up such judgment and that • the order of the
Court should be considered as sufficient authority to the proper
obit er for so entering it up: • The same clause provides, • that.
when the person was of ability to pay his old debts, the Court
should adjudge the term and measure of such payment; and
that the stun adjudged to be paid should be Tangibly distri-
buted amongst the creditors; and that the Court should pro.
ceed in the same manner, from time to time, till every one
of his creditors were paid 20s. in the pound. The assignee
had no power to issue . execution against the subsequently-
acquired
.property of the insolvent; leave must he given by the
• Court to issue it, and the Court must judge before doing so the
measure of the insolvent's ability. That this discretion was
placed in the right hands could not be doubted ; for, other-
wise, there would be daily instances like the present of indi-
viduals breaking up the growing fortunes of their debtors—of
selling property to the amount of hundreds, and still in no de-
gree benefiting the general estate. The new creditors should be
protected, else the old creditors would be continually coming in,
and sweeping away the property entrusted to him (the instil-
vent). The Court was not bound, even if he had property, to
issue execution against the whole of it, but only against such
part as they might think fit. The assignment gave no. power
to the assignee without the leave of the Court. The 29th sCc. •
tion only passed the then existing property, adding, however,
that all stock acquired in the public funds, which by law could
not be taken in execution, should be by hits transferred to his
assignee; and, that in case of his refusal, he should be remand-
ed to prison until he had complied. Now,. if the mere assign-
ment passed the after-acquired property, this clause would have
been unnecessary, because the property would have been within
the reach of the aisignee ; and • the Bank, as in cases of bank-
ruptcy, might be ordered to transfer the stock of any persons
whom he might point out. There were other clauses which
sheaved that it was only the Court which could issue execution.
itm had to in say
this another
case
oughtwor d
n to
not
A ndt having said so' much, he would now conclude, satisfied.
tvliinatceitowleasciotontrtn eetheaststuirlcave
ye
vfoerrdile'
could not be disturbed.
-The Court here rose.
_ _

Mi. Sergeant VAUGHAN this day rose to support the rule. —lle
could not gainsay the principle laid down by his Learned Bro-
ther, but he would nevertheless contend, that the Ist Geo. IV.
Was Only intended to protect insolvents upon tifull disclosure of
their property, and not fbr shielding fraudulent-persons. The
faurth section only protected the " person" of the insolvent,
fith,the further condition even in thwcase, of his conipliance
with the other provisions of the Act, the principal of which was,
toe assignment of his property to the provisional assignee. The
question here was, if the property acquired after an insolvent s
discharge were vested in his assignees ? Ile thought the AO
contemplated all the property of the •insolveut, at whatever
period it might be acquired, else his final discharge could' not
take place. • • .•
111 r. Justice PAna—Pray what do you mean by his final dis-
charge ?
llir. Sergeant VAITOTIAN—I mean, my Lord, his final dis-
charge from all his debts.
Mr. Justice PANIC—Then you mean his discharge from all
his debts after his arrest ; a liquidation of the claims of all his
creditors. • • • • • •
111 r. Sergeant VAllGlTAN—Precisely so. lie contended that
the discharge under the Insolvent Act was only conditional,
and not final, because until all his creditors were satisfied his
property would be liable. Ile considerethhis, and would treat
it as a case of fraud; the insolvent was found guilty of fraud ;
and were their Lordships•to discharge this rule; it would be
giving a bonus to other frauds. • ,
The CittEP JUST IcE assured his Learned Brother that he
was not disposed to add another bonus to those already enjoyed'
by fraudulent persons: •
Mr. Sergeant VAUGHAN—If a man became-possessed of

PRICF, StVENTENcr,

""o,oodl. bequest' before tinal discharge, it would he idle
to suppose that it• was not liable to be take:. in law a idatio
of his, debts.- It' was clear the legislature r,:quired that all
,a plan'S property • shotild - was ssy,-, all - his
propoty ."previously to !his •tinal discharge. The, character
of the insolyent in this case „should be eaustallv looked to ;
he was pr9ved to have acted fraudulently, sea could any
one bOre'e that -• the meads. by Which' be enabled his wife-.
to take the. Half Moon Inn, were not, .those of his .honest
creditors ? And if %o, had they not
.a
.right to assert their
claims tai It. 'Was it uncharitable to suppose that a man Corn
.nutted for twelve months ;for fraud,. was not likely to,coneeal
his property, and was it less likely that the goods seized by his
assignees were not the property, of his cr,!.litors? The legal:
e'en at' his first discharge Was nothing, bectri4e the insos.
, vent was still liable to be -called up:amss-examined, Wier..
~over, the Conrinissayiers might think proper. Such was. the
man's fraud," that seiseWas denied even the lyzneftt of " the
Iltdes." As the first discharge - was really-. no • discharge at
all in law, he, next came to the final sliseliarge•, wherethe b 4—
cond assignment over-re:lo4d all the property belonging to the
insolvent up to that period,'and if so, then the action of treat.
pass did not lie, - Its feet all that. mig4t be said, the aisigote •
twit eiseeedstrthe right m:inif'estly given nini by the Ugis.
lature. The 213th section of 1 Geo. IV. gave the creditors a
powOr of seizing on an insolvent's funded property, and why not
extend the same principle to every other species of 'Property ?
Legislature never intended to say to the insolvent, .
" we will completely white-wash you." No • but the Legislature
gave to his creditors an Unquestionable right to MI his pro.
perty. Whenever and wherever an insolvent had property up
to the period of his final discharge, the law gave it to his 'cre-
ditorstosatify their demands. Even lithe property had faller.
front Heaven as a treasure-trove, he was .till liable, and ad
if he was• to be stripped naked, and left' only clothed in
integrity. •
' The CIIIEF Jthoricr....--When we
.granted this rule; we
did not think it was likelY to be' sustained. This, however; • .
being a ruleilor discharging an insolvent - his deists,
anti founded on an Act, whether for god or • for evil, which
is certainly a most important 'Wt.,- we have giVen it every
considoration before pronouncing our judgment. No doubt .
the creditor cannot possess himself of the property of his.,
debtor unless under an execution, and no one can contend that
the usatipee in this case had any power to i:•:,stto It. Then,
was not the defendant guilty of the trespass ? . None of the •
Acts, and I have looked through them, vest- in the assignee the ,
after-acquired property of the insolvent; the Court alone can,.
-order execution upon the warrant signed at the period of hit,' •
discharge. insolvent debtor is like an uneertilicated
rapt, because all his after-acquired property is liable to his
creditors, With the exception of the soma necessary to discharg-
his newly-acquired debts. The insolvent is bound by the •Ito
section, Jai (leo. IV., to assign ail his property, but can that
be other than the property then existing ? !an any mote pave
by the assignment? Certainly not. In the case of bankruptcy; .
the law vests all in the assignee ; in this Can, all is vested in
the Court. The provisional assignee is 'placed only in the toy-•
ation of thelinal assignee, for neither cupid have at Other turats:..."'
more thm the insolvent possessed. In fact, there was nothing
whatever in this Act which gave assignees any right over the
after-acquired property of an insolvent. lore dare appears to .
buthav ewbi
with
respect
re-
main to him for his support, unless the Court thought proper
Itloletnhte conduct,
coti haismalfttehre-inpdatritsytry73it I.w)UnniStiOlt.e
to order a rateable division of it between his creditors. • The
assignee teal no authority for what he had
.done, and I pros
nounce that this rule shall be d•Acharged.
The other Judges contained, and the rule was iliseharged.

CONSISTORN" COURT, Nov. 26.
' NONTACIIIR v. MONTAGUt.
Doctor A DDA m s said that George Conway Montague hey-
ing married Margaret Green „Montague. at Gretna-green, in •
Scotland, in the year 1110:1, they cohabited together tja eeveral,
years, having several children, three of whom acre now living.
it citation had issued in May last against the hoshatal, for a
eeparatiein by reason of adultery. • There were various proceed.
ings thereon, and on a recent occasion there was an ano11(4,"",-
made to thc t.ltatatt dam ono irottvcrytud ha the rte.eat. (they
having a reversionary interest in the .property of Mr. George-
Conway Montague) should be cited to see the prove: dings in
the cause; that application was rufuscd on the grimed that the
validity of the marriage, which could alone Wee, might
not be contested or denied by,Mr. Montague. The Vroctor
this case had put in the usual libel, pleading the validity of the
marriage, and had giVen in four exhibits therewith in support
it, the admission of which be understood was objected toi
I)octorAnsiOLl3 objected to the adiniesion of the libel, and
contended that. the exhibits should not be received us legal
evidence. The libel pleaded that. the marriage was contracted
'according to the law ofScotland; then recited the ditnrent forms
by which marriage is celebrated. The first article stated that
t, the marriage was contracted by the parties.' at Gretna (I seen,
So Scotland,' and that they being above the age of pupilage; did
lil the presence of divers credible witnesses acknowledge each •
other to be man and'wife, according to the law of Scotland."
lie objected to that as defective ; the term pupilage conveyed •
no information to.the Court, nor !did it afford any,opportunity
of counterpleading. There was also a certificate of .lames
Utley (the parson). stating that he had been present
at ouch marriage. The Learned Advocate obji;eed to the
certificate being received as evidence, and Asti the case of
Noakes v. AiiiWard this year before the Consittory Court at
.florthester, in which a similar certificate from J. Laing was ree
jected. After citing a variety of •cales, the Learned Advocate
• saitcd the charge of adultery was also too loosely pleaded. The
parties cohabited together from the time of marriage till 1817,
and afterwards until 1823. The fact of adultery charged Is
stated to have been that Mr. Montague having induced Mrs.
Montague to go to Liverpool, under pretence ofresiding there,
Mr. Montague returned to his house at NOrthampton..equare,
in Islington, where he lived in adultery with two sisters of the
name of Baldwin, servants in his house, by each of wholv he
had children,. These facts occurred from 1818 to • IWO, after
which u cohabition took place between the parties. There was
no averment that it had only recently conic to the knowledge of
Mrs. Montague.
jr4Nca followed On the sameiside, and Pointed out
various deficiencies; which, he contended, were apparent in the
allegation.
Sir C. Ronmosi—The per.ies will have no objection, I
dare say, to supply them.
Dr. Luomr.ToTox—We will supply them it' it is thought
necessary.

Dr. ADDAMS, in reply, said he did not suppose it would bet.
ter the case, or alter the facts. If the declaration i,tuted that
the parties drove up in a post chaise to a blackttruith's' forge,
at Gretna Green, where they were subsequently inarriod, it
would not, ho contended, be necessary that Airs. ?Montague
should alledge the precise words used by the blacksmith on die
occasion, •
Dr. Lusittrwrow—l be; to set my Learned Friend right.
The parson was a respectable tobacconist.*(A laugh.)
Dr. Artnasts, in continuation, said—The age at which the
.capability of persona few the marriage state, .as termed in the
law of Scotland " pupilage," would be found in Lord Stair's
Institutes to be fourteen for males, and twelve for. females.—
The present parties were above that age.
Sir C. Rontxios reviewed the allegations, and the objec,
done raised against them, at considerable length. After which
he said it would be desirable to have some of them rendered
less ambiguous, and particularly directiA that the Ist, 2d, bib,
and 10th Articles, shotild be reformed.
The allegation &Missed..

RECoVEIty of, A's Tor. EN Ctiat.n.—C„ or the last
week the luridly Orrhomai King, a poor labouring mechmiie,
residing in Thiek-streeti. East Smithfield, has been in the utmost
distress, in consequence of their youngest child, a fine little
boy, about two years old, having- been privately carried off by
a strange woman, who.went by the appellation -of Sal, the
child-steatera" Yesterday morning the afflicted parents were
Overjoyed tit reeeivitig a letter frOm Wininsoo, the person who
went in search of the child, stating that he bad succeeded is
finding the womanAt Market•streets in St. Albans, where &be
was singing songs, with tOe child in her arms. 'l'hc letter
went nn to state, tti cat the. `voman way undo? the charge of n
constable, and the c:.~ild was taken the utmost care of by a I;,t.
Inane inhabitant of that town. In the afternoo the parents
were scdt down to :it. ~llban's, at the cost of the parish of
cute the' woman, the opeuee of, which the parish also
defruyi

•
• The Ilerriug Fishery has been very suceetisful.
at Folkestone, one.of the boats belonging •to which place has":
earned upwartli of 4001.'this season. •