The Sun.
London, England, 1847-01-14 00:00:00

COURT OF QUEEN'S BEIVCR, Jan. 15.

POWER OF A JUDGE AT CHAMBERS TO DETAIN A CER-
TIFICATED BANKRUPT IN CUSTODY.-IN RE SMITH.

Mr. WATSON, Q.C., moved for a rule to show cause
why several orders, made at chambers by Mr. Justice
Erie in this case, should not be discharged. He said the
question turned upon the construction to be put upon
certain clauses of the existing Bankruptcy:Act, namely,
whether a bankrupt, whose certificate had been confirmed,
could be detained in custody on the order of a judge
at chambers, before whom it was proved that the bank-
rupt had lost 201. at play at one sitting. On the first
day of last term he applied to the Court to liberate
Mr. Smith from the Queen's Bench prison, where he is
at present confined, but the Court was of opinion that
the case was not within its jurisdiction, but within the
jurisdiction of the Learned Judge who had made the
orders. He had made a similar application to the Com-
mon Pleas, but that Court had not yet given its decision.
Mr. Smith was taken in execution and was committed to
the Queen's Bench before the issuing of the fiat ; he
subsequently appeared before a Commissioner of Bank-
ruptcy, at Bristol, who granted his certificate. An ob-
jection was then made to the confirmation of the certi-
ficate on the ground that he had lost more than 201. at
play at one sitting. A Mr. Waring was
concerned in that opposition, but the Com-
missioner considered that he was entitled
to his certificate, and he accordingly confirmed it. He
was subsequently arrested. An application was after-
wards made to Mr. Justice Erie to discharge the de-
fendant out of custody on the production of his certificate.
I his application was opposed on affidavits which set
forth the allegation of gaming, and the charge having
been proved to the Learned Judge's satisfaction, he re-
fused to discharge him. A second summons was taken
out before the same Learned Judge, in which the allega-
tion was attempted to be denied, which was dismissed
, with costs. A further summons was taken out
in order to answer the charges brought forward on the
second with no better result. Now, he, asked the Court
to rescind the second order, that being sufficient, on tho
ground that the Learned Judge could not detain the
defendant in custody after the production of his certifi-
cate. He should thus have an opportunity of bringing
under the attention of the Court a most important
clause of the Bankruptcy Act. He contended that it
was; not within the province of a judge at chambers to
enter into a charge of gaming against a certificated bank-
rupt, but of the Bankruptcy Court, and that all that was
intended by the Legislature was, that on the production
of a certificate by a bankrupt he should be entitled to his
discharge.
Mr. Justice PATTESON supposed the Learned Counsel
did not intend to carry his argument so far as to ray
that proceedings in a bankruptcy court were final.
Mr. WATSON did not. Unquestionably it was open to
the proper tribunal to review the decisions of bankruptcy
courts. The sth and 6th Victoria, cap. 122, sec. 42, which
was substantially the same as the sth Geo. 111., was
the only clause in the Bankruptcy Act, which gave any
power to a judge at chambers. It did not empower him
to try the validity of the certificate, but stated that if a
bankrupt was taken into custody, after being certifi-
cated, it should be lawful for a judge of the
court in which the judgment on which he was
arrested was obtained at chambers, on producing
his certificate, to order the proper officer to dis-
charge such bankrupt without payment of fees. The
words, " it shall be lawful" meant, he held, that it was
imperative on a junge at chambers to discharge a
bankrupt simply on his producing his certificate. The
38th clause specified 12 or 14 acts, the commission of one
or more of which, one of which was losing 20/. at one sit-
ting, if proved, did not entitle him to obtain a certifi-
ate. Then, again, no more than one charge of gamb-

'ng could be—set up, whereas several charges were
set up, and on the affidavits of the vary wit-
nesses who had appeared before the Commis-
sioner of Bankruptcy. This view was confirmed in a
case reported in Alderson's Reports. If a judge at
chambers possessed the right of inquiring into the validity
of his certificate, extreme hardship would be imposed on
persons who had been guilty of the indiscretion of gam-
bling, and if a number of charges were allowed to be
made, from time to time, so long as the " scum" of
a gambling-house could be obtained to put their
names to affidavits, of the nature of which they were
not very scrupulous, a person might be kept in custody
for ever. That the statute never intended, but that,

for instance, if a certificated bankrupt was taken into
custody at the commencement of the long vacation, he
might apply to a judge to discharge him on producing
his certificate.

The COURT took time to consider the application.

BAIL COURT, Jan. 13.
DEW v. RAWSON.

Mr. CROMPTON moved fora rule to show cause why
the plaintiff in this case should not be dispauperised. in
consequence of repeated delays in coming to trial, and
ordered to pay all the costs incurred in this cause. The
plaintiff had sued in forma pauperie. On the
first notice of trial being given he withdrew the record,
and on two subsequent occasions, when the cause came
on, be was absent, although the defendant was present.
On these gronnds it was sought to dispauperise him, and
make him pay the costs.
Application granted for a rule nisi.
SHARP V. BUTCHER.

Mr. Chambers and Mr. Bagley appeared for the
plaintiff, and Mr. Wordsworth for the defendant.
This was an action on a bill of exchange for the sum
of 881., given by the defendant to the plaintiff. The de-
fence was that this 881 was the balance of a sum of 1004
tvhieh had been borrowed at 10 per cent., and that the
transaction being usurious, the plaintiff was not entitled
to recover.

The Learned JUDGE, in summing up, remarked that
it seemed to be admitted that all the money was bor-
rowed at the rate of 10 per cent., and that rate was an
illegal and usurious one. It was a question, however, as
to whether there was anything to show that the 881. was
the balance of the sum of 1001. borrowed at such usurious
rate.

The jury returned a verdict for the plaintiff—Damages
881., and 21. for interest.

COURT OF EXCHEQUER, Jan. 13.
PACIFIC STEAM NAVIGATION COMPANY v. LEWIS.
In this case the ATTORNEY-GENERAL obtained a rule
nisi for a new trial.

COURT OF COMMON PLEAS, Jan.l3.

PATER V. BAKER.-THE METROPOLITAN IMPROVEMENT

ACT.
This was an action brought by Mr. rater, a solicithr
residing in Agar-town, parish of St. Pancras, against
Mr. Baker, the district surveyor, under the Metropolitan
Building Act, for slander of title. A great portion of
Agar-town was built by Mr. Agar, to whom the de-
fendant is agent ; and in the course of last year
the latter advertised the carcases of several houses
for sale, by Mr. Kennedy, an auctioneer. On the
day of the sale, and before the sale had commenced, the
defendant went into the auctioneer's room, and said he
did not come there as a buyer, but to state to purchasers,
if there were any such there, that he would not allow
the houses to be finished till the roads were made good.
He could not compel the making of the road, but he had
the power to stop the finishing of the buildings. Subse-
quently the buildings and the roads were referred to the
consideration of the official referees, who decided
that the road-way was wido enough to comply with the
provisions of the Act, only that it was in a very rough
and unfinished state. An action was then brought for
slander of title, and a verdict obtained for the plaintiff.
In last term Mr. Sergeant Channell moved for a rule to
set aside the verdict, on the ground that that there
was no evidence of malice on the part of the
plaintiff, and that the defendant was acting
under the authority of the Act in the step he
had taken ; also that there was a material variance be-
tween the declaration and the evidence on which the
verdict was given.
Mr. HEATING and Mr. DOWDSWELL were heard
against the rule, maintaining that, though the Act gave
the district surveyor a right of inspection and of reporting
to the official referees, it did not authorise defendant to
use the words he had used on the day of sale.
Mr. Sergeant Channell and Mr. Sergeant Byles re-
plied at length.
The Court took time to consider.