The Sun.
London, England, 1848-09-01 00:00:00

ASSIZE INTELLIGENCE.

NORTHERN ClRCUlT.—Liverpool, Aug. 30.
CROWN COURT.—(Before Mr. Justice ERLE and a
Special Jury.)
VAN CASTEEL V. LOOKER AND OTHERS.

This was an action of trover. Sir John Jervis, Mr.
Watson, Mr. Atherton, and Mr. J. Hend rson for the
plaintiff; Mr. Martin, Mr. Crompon, and Mr. Comic
for the defendants.
In this case the plaintiff, who is a merchant at Rot-
terdam, sought to recover from the defendants, who are
the assignees of the estate of Barton, Irlam, and Hig-
ginson, 11,0001., the value of the cargo of coffee by the
ship Vigilant, of which the plaintiff held the bills of
lading, but which had been taken possession of on her
arrival at Liverpool by the messenger under the bank-
ruptcy.
It appeared from the statement of the Attorney-
General, that in the year 1847 the plaintiff was in the
habit of corresponding with a gentleman of the
name of Rabez at Liverpool. A Mr. Lyons, in the
course of November of that year, intimated to Mr. Rsbez
that he was about to receive a cargo of coffee fit for the
foreign market, and expressed a wish to enter into
a correspondence with his principal at Rotterdam
for the disposal of it. The result was an introduction to
Mr. Van Casteel; and finally Mr. Lyons, on the 16th of
November, enclosed the bills of lading of the Vigilant
from Rio to Van Casteeland Co. for 5,090 bags of coffee,
and Van Casteel and Co. remitted advances on the faith
of these bills of lading to the amount of 5,5071. on the
19th, 26th, and 30th of that month.
Some time after Van Casteel and Company received a
communication from Mr. Rabez, that, from certain dis-
closures that had taken place respecting the affairs of
Barton, Irlam, and Co., some doubts were thrown on the
validity of their security. This was the first intimation
to Van Casteel and Co. of there being anything unusual
in the mode in which Mr. Lyons had become possessed
of the bills of lading.
It appeared that Barton and Co., Mr. Higginson
being the chief surviving partner, had for many years
carried on a very large business in Liverpool, and
had an account with the Royal Bank, by which ad-
vacces had been made to them to a very large amount.
Mr. Lyons had had several dealings with the firm.
He was a partner in a house at Bahia—Lyons and Benn
—as well as in an establishment at Rio, of Lyons and
Schwinde. In 1847 the Vigilant was sent to Rio to receive
a cargo of coffee from Lyons and Schwinde. She was
freighted with coal, with a view to pay a portion of her
expenses. The transactions between Lyons and
Schwinde and Barton and Co. were not in a current ac
count, but each transaction was kept separate and
balanced by itself. Some time before there had been a
very extensive order for sugar given to Lyons and
Schwinde, to the amount, indeed, of 80,000 L, and it was
then arranged between the parties that the bills of lading
should stand as security for the payment of the bills
drawn on account of such cargo. That arrangement was
continued in the present instance. The bills of lading,
signed by the captain, made the coffee deliverable, not to
Barton and Co., but " to order or assigns," and the vessel
was to go to Cork to get directions as to her further
destination. The bills of lading were forwarded to Bar.
ton and Co. by her Majesty's ship Racer, with an invoice,
and letters were sent to Mr. Lyons from Lyons and
Schwinde, advising him of this, and drawing on him to
the amount of 9,0001., to be placed to the account of the
coffee per Vigilant. It coming to the ears of Mr. Lyons
that there was some difficulty with the Royal Bank, and
there being in course of arrival a very large quantity of
produce for which he was under acceptances, he became
anxious to get the general arrangement between him
and Mr. Higginson carried out in the present instance,
and he accordingly wrote to Mr. Higginson, expressing
his anxiety, and requesting the bills of lading to be so
transferred as to be available to meet the bills drawn
upon Mr. Lyons on account of the cargo. Mr. Lyons
had no fear at that time of the ultimate solvency of Mr.
Higginson, who was possessed of property which had cost
him upwards of 900,0001., and his note was couched in
such terms as would not be likely to wound the feelings
of Mi.. Higginson. Mr. Higginson, who at that time was
in London, wrote in reply, saying that the little matter
of business referred to did not require any observation
until he could see Mr. Lyons at Hylton, where Mr. Hig-
ginson had a shooting-box, and asking Mr. Lyons to
meet him there and have a day or two's shooting, when
the matter could be arranged. Accordingly, on the 9th
of October Mr. Lyons arranged with Mr. Higginson
at Hyllton that the bills of lading should be placed in
Mr. Haynes Higginson's hands to meet the bills drawn
upon Mr. Lyons against the cargo. Mr. Higginson was
not in Liverpool until the 16th of October, and on that
day a letter was written by him, directing Mr. Haynes
Higginson to hold the bills of lading of the Vigilant,
when they should arrive, to meet the bills on account of
Mr. Lyons. On the 18th of October the Royal Bank
found the Bank of England would not assist them
through their difficulties, and were obliged to stop pay-
ment; and on the 21st of October, a notice under the late
Act was served on Messrs. Barton and Co., requiring
security for the amount of their debt, with a view in case
of their neglecting to do so, to drive them into the Ga-
zelle. No notice was taken of this for the twenty-one
days, and, in consequence, on the 11th of November, the
act of bankruptcy on the part of Barton and Co. was
complete and a fiat issued. On the 12th of November
the bills of lading of the Vigilant arrived, and were trans-
ferred to Lyons pursuant to the former arrangement,
and by him sent to Van Casteel, as before stated.
Under these circumstances it was urged upon the jury
by the Attorney• General, in a long and argumentative
address, that there was no absolute delivery of the goods
to Barton and Co. by the putting them on board their
ship Vigilant at Bahia, and that at all events there was
no fradulent preference by Mr. Higginson in assigning
the bills of lading, but a mere following out of the for-
mer arrangement with Lyons at the importunity of the
latter.

The evidence of the captain, taken on the former trial,
was then read, from which it appeared the goods had
been put on board the Vigilant at Rio under bills of
lading, as described by the Attorney-General, "deliver-
able to order or assigns, he or they paying freight free,"
the Vigilant being the property of Barton and Co.
Mr. Rabez was then called. He stated that he was a
commission agent at Liverpool, and acted on commission
for Van Casteel and Co. Obtained consignments for
them of cargoes to Holland. Knew Mr. Lyons. He
was partner iu the house of Lyons, Schwinde, and Co.,
at Rio. Witness's attention was first called to some
Bread coffee in the latter half of October. Suggested
Rotterdam as a place where it might be disposed of.
Mr. MARTIN said he would admit that, so far as Mr.
Rabes and Mr. Van Casteel were concerned, there was
no imputation on the bona fides of the transaction.
His LORDSHIP said, that this would probably do away
with the necessity of further examination into the trans-
action between Mr. Rabes and Mr. Van Casteel; and it
was further admitted that the bills alleged to have been
sent by way of advance by Van Casteel were so sent and
duly honoured.
The witness produced the bill of lading in which the
cargo was described as shipped by Lyons, Schwinde, and
Co., on board the good ship Vigilant, bound for Cork,
any market, " deliverable to order or assigns, he or they
paying freight free"
A letter, dated the 16th of November, from Mr. Lyons
to Van Casteel and Co., was then read, inelosing the bill
of lading, and requesting an advance in the usual way.
The answer of the 19th of November was then put in.
Mr. Rabez examined—He stated that Lyons first
mentioned this matter about the 16th of October. Did
not receive the bill of lading from Lyons. Could not
say when he heard that Barton, Irlam, and Co., were
insolvent. Heard of the Royal Bank stopping. Under-
stood about the same time that Barton and Co. were
likely to stop. Believed there was a clerk sent to Cork
to stop the Vigilant. Had no consultation with Lyons
on the subject. Learned of the transactions between
Lyons and Barton and Co., on reading the examination
in the Bankruptcy Court on the 28th of December.
That was before witness heard of the clerk being sent to
Cork. Saw the name of the Vigilant on the slate in
the news-room on her arrival. Went to Mr. Lyons on
seeing it. It was after seeing him that the notice was
served on the captain.
Arthur Wentworth Lyons stated that he was a mer-
chant at Liverpool. Has a house at Bahia in connexion
with Mr. Benn. In January, 1847, established a house
in connexion with Mr. Schwinde, at Bahia. Has had
extensive dealings with Barton and Co. Began to deal
with that house in 1845. On a very extensive order
being given in 1847 for about 80,000/. worth of sugar, an
arrangement was made that the bills of lading should
invariably be held at witness's disposal to meet the bills
of exchange.
It was then proposed to put in a letter from Barton,
Irlam, and Higginson, to the house at Rio, in confirma-
tion of this statement, dated January 20, 1847.
On the objection of Mr. MARTIN, it was postponed till
after the cross-examination.
Examination resumed—About the time of the large
order on Lyons and Bonn, orders were sent to Lyons and
Schwinde for coffee. Lyons and Schwinde valued on
witness for the amount of the order in each case. Barton
and Co. sometimes sent their own ships, sometimes ships
on freight. In this case the bills were drawn with the ad-
dition, " which place to account of coffees per Vigilant."
They amounted to 9,5001. altogether. The ship took out
coal. An Rio coffees are adapted only for the continental
market. About the end of September witness became
uneasy about the firm of Barton and Co. Lyons,
Schwinde, and Co. bad at that time several cargoes afloat
—about 60,0001. worth. Mr. Parsons was the manager
of the house of Barton and Co. Mentioned the alarm
to him. Mr. Higginson was then out of town. Witness
wrote to him. Received an answer.
Cross-examined—Had been examined twice on this
matter. Did not say anything about this letter. Was
not aware at that time he had it in his possession. It
came in an envelope. Was aware after the examination
in bankruptcy that Mr. Higginson and the assignees
were on very hostile terms. Letter put in, dated the
sth of October. It invited Mr. Lyons down to Hyllton,
in Staffordshire, to have a day's shooting and arrange
the matter.

Examination resumed—The substance of the letter
written by the witness was, that in consequence of the
awkwardness of the time he wished to hold the cargoes
which were about to arrive as security for the bills, pur-
suant to the former arrangement, and hoped that Mr.
Harrison would not consider him importunate in so
doing. Mr. Higgiuson had a shooting box at Hyllton.
Witness had never gone to shoot with him before.
Went on the Bth of October. Mr. Higginson was
not there. He arrived on the 9th. Did not men-
tion it to him that day. Went out shooting with several
other friends. Mr. Parsons was there. In the evening
saw Mr. Higginson alone. He introduced the subject.
He said he was sorry such reports had been spread. He
wondered the directors of the bank could not keep their
own counsel. He alluded to the note which witness had
sent, and addressing himself to Mr. Parsons desired that
the bills of lading for the cargoes about to arrive should
be placed at witness's disposal to meet the bills. Wit-
nem soaked him to do so. There had been a discussion
about about the arrangement which had been previously made.
Mr. Parsons was not there when the matter first began.

Mr. Haynes Higginson examined—Was a merchant at
Bombay Was in Liverpool in the latter part of
1847. Was here as agent for the house at Born-
bay. Went down to the office of Barton and Co. on the
16th of October, and received the notes produced. They
were handed to him by Mr. Higginson, the bankrupt.
He had not been in Liverpool from the Bth to the 16th.
On the 11th witness accompanied Mr. Lyons and
Parsons to Wolverhampton. It was then intimated by
Mr. Lyons that such a document would be placed in his
hands,
Cross-examined—Was examined on this matter be-
fore. Received remuneration for any spare time he
might devote to the business of Barton and Co.-6001.
a year. Saw the letter now produced on Mr. Higgin-
son's desk. Did not see him read it. There was another
document written on the same occasion, which has since
been destroyed. It was nearly in the same form, except
that it related to other cargoes. There was a third
document. They were all signed at the same time.
No one was present when they were signed but Par-
sons. Mr. Higginson asked if he bad prepared those
letters for Lyons? He said he was just going to do so.
Parsons drew them up himself. The bills of lading of
the Lancaster were then handed over. They had come
to hand. On the 23d of October witness handed to Mr.
Higginson the bills of lading then in hand, viz., the
Alecto and the Lancaster, to send to Mr. Lyons. The
business was continued after that. Up to Saturday, the
15th of November, Mr. Higginson expected the Bank
would have enabled him to go on.
Re-examined—Advanced Mr. Higginson 6,0001. in
the month of October. Mr. Higginson had a great deal
of property, which would have been worth, if realised at
an advantage, 800,0001.
Mr. MARTIN addressed the jury at length for the de-
fence, contending that the delivery of the coffee on board
the Vigilant, at Bahia, was an absolute delivery to
Barton and Co., and that the assignment of the bills of
lading was a fraudulent preference on the part of Mr.
Higginson.
The following witnesses were called:—
Mr. Parsons, managing clerk to Barton and Co., was
called—He stated he had been in their service about
tbree years. In 1847 their account with the bank was
in arrear. In the latter end of that year a resolution
was received from the directors of the bank. It was
destroyed early in November, before the fiat, by the
order of Mr. Higginson. Other resolutions were re-
ceived; they were all destroyed in the same way, ex-
cept one relating to Mr. Haynes Higginson's guarantee.
That was destroyed by hiciself.—(The resolutions were
read from the bank books.) They were first, of the
month of August, declining to honour Barton and Co.'s
draughts unless the 35,000/. already promised were paid
in to their account. The second was of the beginning
of September, resolving that the list of acceptances for
the month should be returned unless some satisfactory
arrangement was come to. On the 23d of September
there was a further resolution to the same effect,
stating that as no provision had been made for the
payment of the balance due on the August ac-
count, immediate application should be made to Mr.
Haynes Higginson, or his guarantee. Mr. Higginson
was a good deal out of Liverpool at this time • witness
conducted the business. Went on the Bth of October to
Hyllton. On the evening of the 9th some conversation
took place between Mr. Lyons and Mr. Higginson. Mr.
Higginson began, " Well, Mr. Lyons, the directors of
the b ink cannot keep their secrete." Mr. Lyons said,
"So it seems," or something to that effect. Mr. Hig-
ginson then went on to say that the bills of lading would
be set apart to meet the bills, and that Mr. Haynes Hig-
ginson would hold them. Came back to Liverpool on the
morning of the 11th. A letter came for Mr. Higginson
from the bank on the morning of the 15th. It was
marked " private." It was placed on his desk. He came
in the course of :the:day ancl`,,read it. (The letter was
read; it was from Mr. Highfield, a director of the bank,
requiring Immediate arrangements to be made for the
payment of the August account, payment of the ship
bills, and reduction of the balance, and intimating the
intention of the Directors to take hostile pro-
ceedings if this was not done.) Mr. Higginson
then gave directions to witness to write letters to Mr.
Haynes
,Higginson, requiring him to hold the bill of
lading of four vessels for Mr. Lyons and two for a Mr.
Mennilove. The bills of lading of four of the vessels
which had arrived were handed over to Mr. Haynes
Higginson. Mr. Higginson left Liverpool by the express
train. On Monday, the 18th, the Royal Bank stopped
payment. Barton and Co. stopped on the 23d. All the
merchandise then possessed by him on the 16th was
pledged. The liabilities of the house are about 800,0001.
Witness was present on the 23d, when the bill of lading
of the Alice came. Mr. Higginson got from Mr. Haynes
Higginson one of the letters written on the 16th, enclos-
ing the bills of lading for the Alecto and Lancaster, and
sent it, with that of the BAlice, to Mr. Lyons. These
febwi 1 ld
aoyf
s ladingbefore
tohf e t
ises
huVigilant
nes r
fiat, hived
a advance
,v an
andeien
letters, given to Mr. Haynes Higginson, were not
i
November,copied.
wasc raol
ss
so.
ehxaanimd
iende
do e rTthoe Mbra.
nLky ownass.
Thae
to the house to the amount of 120,0004 The account
did not increase from January, 1847, to August. Knew
of the order that was sent to Bahia for sugar. Heard-
Mr. Higginson from time to time refer to an arrange.
ment that the bills of lading and cargo should be held
for the draughts against them. Before the Bth of Oc-
tober, Mr. Lyons had communicated to witness his unea-
siness respecting the account. Draughts to a large
amount were then running against Mr. Lyons for car-
goes. Some arrived, and some not. Was present on the
9th, when the conversation between Mr. Lyons and Mr.
Higginson began. Could not recollect anything being
said by Mr. Lyons about carrying out their previous
arrangement. The money raised by pledging the
property in Liverpool was paid into the bank. The
amount due from persons in Barbadoes is about
200,000/. There is property at Bombay to the amount
of about 25,0001; in ;the Mauritius, 20,000/.; at Bar-
b idoes, about 10,000/. The ships and freights about
60,0001. Tho estimated value of shares at the time of
stopping was 50,0001. The estates in Barbadoes would
be worth 20,000/. The value of tha assets at the time
of the stoppage would be 400,0001. or 500,0001. at the
then depreciated value. When an offer of composition
was made to the bank of 10s. there was a reasonable
prospect of carrying it out. If it had been accepted the
house could have gone on. The bank continued to
receive the acceptances of the house up to the 16th of
October.

Re-examined—The bank made no advances after
August. The acceptances becoming duo were met by
supplies paid in by the company to meet them. Recol-
lects something being said about burning Mr. Highfields
letter. That was not the day it came.
Mr. Wyse, clerk to Messrs. Barton and Co., deposed
to the correctness of the list of acceptances becoming
due monthly, during September, October, November,
December, and January. They were in each mouth
about 60,000/.
Mr. J. Highfield, a director of the bank, entered on
office in July, 1847. Wrote the letter in question on
the 14th of October. On the 15th went up to London
to have an interview with the Bank of England. Saw
Mr. Higginson on the 16th. He said he had received
the letter. Witness asked if ho had answered it. He
said it required no answer.
Cross-examined—Had gone up to the Bank of England
in expectation of advances to allow them to go on.
The ATTORNEY- GENERAL addressed the jury in reply,
and

His LonnsurP summed up with great care and
minuteness, leaving finally three questions to the jury:—
First, was the delivery of the cargo on board the Vigi-
lant an absolute delivery to Barton and Co.? second, was
the agreement between Lyons and Higginson to appro-
priate the cargo to meet the bills a fraudulent prefer-
itre.he
ence? third, was the agreement between them for the
deposit of the bills of lading, by way of pledge, or as
giving a power of sale to Lyons?
The jury, after about an hour's consulation, returned
affirmativea n answer
andthe firsttiithe
third and
consequently second
questions in
became
material.
Verdict for the defendants accordingly.

On Wednesday last a singular effect of lightning
occurred at Moulton, about three o'clock in the afternoon.
A flash struck a shock of oats in a field belonging to Mr.
Woods, consumed one sheaf, completely thrashed another,
and moved a third to a great distance. On examining the
place afterwards it was found that the electric fluid had
entered the earth in three distinct place'.—Bury and
Norwich Post.