The Sun.
London, England, 1860-07-20 00:00:00

TILE BANKRUPTCY AND IASOLVENCY

BILL.

The country will learn with much less satisfaction
than was manifested by the House of Commons
—which invariably cheers every intimation of
abandoning a bill at this period of the session—
that the Bankruptcy and Insolvency Bill is aban-
doned. We had hoped that we should have been
able to show this one completed measure as
the result of this laborious session. We had even
believed that out of the mass of intentions we
should have had this one performance. But it
is not to be. The session is to be barren of all
good. The Attorney-General had succeeded
in getting the principle of his bill affirmed ;
he had passed all his money clauses through the
perilous stage of the committee ; he seemed to have
tided over all the most difficult rocks in his course ;
when suddenly, upon the occurrence of a little
danger, which, as he himself says, was not very
fatal even at its worst, he deliberately scuttled, his
ship in calm water. Perhaps, it may have been a
vessel of too deep a draught; perhaps, as Sir H.
Cairns suggested, it would have been better to
amend the present law by a separate bill, and to
consolidate the whole law by a subsequent Conso-
lidation Bill ; perhaps, as Mr. Maas observed,
the measure had already been so deprived of its
symmetry that it would not do the Attorney-Gene-
ral the credit which the labour he had bestowed
upon it ought to have obtained for him; but still
an immense deal had been done, and a little judi-
cious firmness might have got through the rest.
As to the difficulty of the House of Lords, we can-
not suppose that the Attorney-General has not
been in communication with the law lords upon the
provisions of his bill. Whether this session or
next session, it would be useless to send a bill of
this character to their house without having pre-
viously ascertained the opinions of the sages. But
the discussion there would be in five or six hands,
and the decisions are doubtless already formed. We
are very glad to echo the compliments which were
showered upon Sir C. Bethell from bath sides
of the house for the zeal with which he has
laboured on this snbject, but we wish the Cabinet
had shown a little more persistence. We commend
the toil with which our legal Sisyphus has rolled
the stone so far up the hill, but we repine at the
decision of those hard Fates which compel him to
faint at the critical moment, and to allow it to roll
down again.
The point at which this bill broke off was that
which swept all the non-trading portion of the com-
munity under the provisions of the general Law of
Bankruptcy. We venture to think that the dis-
agreement between the House of Commons and the
Attorney-General upon this subject was only a
misapprehension, which two or three well-drawn
clauses might have removed. Sir R. Bethell com-
plains that he had been encouraged to believe the
house agreed with him as to the policy of submit-
ting all insolvents, whether traders or non-traders,
to the same process of law. We apprehend that
the house and the country generally do, to this ex-
tent, agree with Sir Bethell. The principle is
that every man, be he trader or non-trader, if he be
unable to pay his debts, ought to be deprived of what
property he has, and that, when this has been dis-
tributed pro rata, he shall go free if he has been only
unfortunate, and that he shall be further punished if
he has been fraudulent or prodigal. That principle
is still admitted. The mistake made by Sir R.
Bethell was in applying the same test of in-
solvency to traders and to non-traders. Here it
was that the house interposed; and the house was
right both in practice and in theory. There is no
identity in the circumstances of these two classes
in this matter. The non•trader is not a man whom
anybody is obliged to trust. Credit is his habit,
but it is not his business. Credit is, for the most
part, forced upon him by the trader, and the term
of that credit is almost always indefinite. The
country gentleman, or annuitant, or professional
man goes about with a certain quantity of loose
debts which no general policy requires that he
should be seized by the throat and made to pay at
any particular moment. He shuts up his house and
goes abroad, he corresponds with no one but his
private friends and his bankers, and if he were put
under the same stringent rules as the trader, any
cost-seeking attorney or malevolent individual
might make him a bankrupt, and divide his pro-
perty while he was enjoying himself in his autumn
holyday. On the other hand, the trader's whole
business is credit, and his whole life one of con-
tinual watchfulness as to the collection and dis-
charge of debts, which have an exactly ascer-
tained date of payment. He has a counting-
house or a shop, with clerks or foremen always
upon the spot, always ready to pay and to re-
ceive. He does not shut up his shop and
paper his blinds. If he goes to the lakes
of Westmoreland or to Switzerland, nobody
can make him a bankrupt by surprise, for, unless
he be really insolvent, his debtor finds the counting-
house open, and some one ready to pay him. The
cases are in no way alike, and provisions which are
reasonable, and even necessary, in the one case
would be a gross tyranny in the other. We pointed
this out some days since, and are probably in some
degree the cause of the opposition which has arisen
to this part of the bill. All the house asked
was that this difference should be acknowledged,
and that the mode of testing insolvency should be
different in the case of the trader from that of the
non-trader. When these tests have operated, then
the house was quite willing to let the law take its
course evenly over all debtors. Surely this was
not an unfounded or a vexatious objection to the
bill as it stood, nor did it go to the vital portion
of it ?

Nothing, then, had occurred which justified the
Government in abandoning this bill on the ground
of opposition from the House of Commons. It was
really the only good bill which has been brought
forward this session. Yet this is the measure they
are so ready to abandon. They might have got
this bill through, and they have wilfully sacrificed
it. Nay, it would have got through by its own
allurements, for everybody wanted to see it safe.
The have abandoned it, and for what ? Perhaps,
as they think, to get their supplies voted more
rapidly, their Indian measures continuously consi-
dered, the necessary bills passed, and the session
brought to a close. We are afraid they reckon

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very much without their host. The time they have
surrendered will be wasted. That very small
minority which is so determined in its obstruc-
tion to the India Forces Bill already sees an
opportunity for spending a few evenings in divi-
sions upon repeated motions for adjournment.
Surely the Government does not prefer this unpro-
fitable expenditure of time to the labour of passing
a really creditable bill. We cannot suppose that
they prefer to the English Bankruptcy Bill that
Irish Tenure Bill, which, if passed, must take as
much time as might have sufficed for the measure
they have sacrificed. We do not accuse them of
the cruelty of washing to destroy that one jack
snipe of the great Irish preserves, that convenient
bird alway• readys to be flushed, which has already
afforded game through so many sessions, and
whisk no one desires to see popped off. We
cannot imagine that they intend to facilitate the
perpetration of that gross job of the metropolitan
members, and to give time for the huddling
through of the Metropolitan Board of Works
Bill, the tyrannical powers of which Sir G. Lewis
vainly attempted to expose to a thin, inpatient,
and carefully packed house. A Bill for the Repeal
of the Act of Succession might, we believe, slip
through in the ruck just now, as may readily be
exemplified to any person's satisfaction who will
look at the clauses of this impudent measure, and
then remember that, voluminous as it is, it passed
through committee in one sitting, and, without
examination. The time which must now necessarily
be expended in stoppingthis bill might have passed
a hundred clauses of the Bankruptcy Bill. That the
London Corporation Bill should be given up was
a matter of course ; that the Indian Army Bill
must be passed is, pace Mr. Horsman, as obvious a
necessity; but we very much doubt whether Lord
Palmerston will find that the public generally will
be satisfied with his choice of " the victims already
sacrificed on the altar of necessity." The abandon-
ment of this Bankruptcy Bill is the capital disgrace
of the session.— Times.

LAW INTELLIG.ENCE.-July 19.

VICE CHANCELLOR'S COURT.

(Before Vice-Chancellor Sir R. T. Kinciersley.)
FAWCETT V. LAURIE AND OTHERS.-THE UNION

BANK.

Mr. Glasse and Mr. Bates moved, on the part of
the plantiff, who with Mrs. Ann Fawcett is co-
trustee of 110 shares, Mrs. Ann Fawcett's name
standing first in the place of her late husband in
the list of shareholders for 110 shares, to restrain
the defendants, P. N. Laurie, James Farquhar, and
others, directors of the Union Bank of London,
from making, declaring, or paying any dividend to
the shareholders of the bank, except out of the
profits or surplus fund of the said bank, and from
paying a dividend on the 20th of July, and from
debiting, charging, or encumbering the capital with
£720,000, or any other sum otherwise than the same
was liable to the debts of the bank. The bill al-
leged that in April, 1860, it was discovered that
owing to the wilful neglect and default of the direc-
tors, George Pullinger had been enabled to commit
a fraud on the company by abstracting a portion of
the funds of the company in tke Bank of England
to his own use, whereby the balance standing in
the Bank of England in the names of the directors
was £306,636 7s. 4d. instead of £569,706 10s. 2d.,
being £263,125 6s. 10d. less than there ought to
have been ; and as only £11,116 14s. 10d. had been
recovered from Pullinger, the result was that there
was a clear loss of £252,008 12s. Plaintiff sub-
mitted that the directors were personally liable to
make good the loss sustained, and prayed thein-
junction upon the payment of dividends, or that the
company might be wound up if necessary.
The Vice-Chancellor said he need not now enter
into the question as to whether the plaintiff had a
locus standi, or whether the directors had a right
to re-transfer from the capital account the Sum of
£120,000, or whether it was competent for the
ger.eral meeting of shareholders to give their autho-
rity to do so. Upon neither of these grounds should
he decide this motion, but he should decide it on
the grounds given by Lord Cottenham in dissolving
the injunction granted by the Master of the Rolls
in Carlisle's case. In that case an Act of Parlia-
ment had been passed transferring to the South-
Eastern Railway Company the power to make cer-
tain branch railways, and there was a provision
that if they did not make the railway within three
years they should not be competent to declare any
dividends on the general shares of the company.
The railways were not finished within time fixed,
but notwithstanding that the company declared
dividends in two separate half-years after the
expiration of the time. Mr. Carlisle moved for an
injunction, professedly on behalf of himself and the
other shareholders, to restrain payment of the divi-
dend. Lord Cottenham said he had no hesitation
in giving an injunction to restrain future declara-
tions of dividends, but as the dividend had been
declared the position of the parties was this—that
a right had been conferred on the shareholders to
demand payment of the dividend, and each indi-
vidual shareholder could bring his action against
the directors to enforce payment of his dividend.
And he said that he could not, in the absence of the
other shareholders, stop payment of the dividend
declared, though he would grant an injunction to
stop the declaration of future dividends. It appeared
to him that he could not grant the injunction asked
in this case so far as related to the payment of the
dividend which had been declared. With regard
to that part of the prayer which asked that no
future dividends should be paid except out of the
surplus profits. it was not necessary for the protec-
tion of the plaintiff that he should determine that
question now. The real substance of the applica-
tion was to restrain the payment of the dividend
which had been declared. He had given his deci-
sion as to that, but he could not express an opinion
on the other part of the motion without going into
the merits of the case generally, which it was not
now necessary to do. He therefore refused the ap-
plication so far as it sought to restrain the payment
of the dividend which had been declared, and the
,costs of the motion and the rest of the question
would stand over till the hearing of the cause.
(Before Sir J. Stuart.)
KELLY V. BAILEY.

This was a motion for an injunction to restrain
the defendant from printing, publishing, and sell-
ing a work called "The History, Topography, and
Directory of Worcestershire." The plaintiff was
proprietor of the "Post-office Directory of Bir-
mingham, with Warwickshire, Worcestershire, and
Staffordshire, and he alleged that the work of
which he now sought to restrain the sale and pub-
lication was a copy and piracy of his own. For
the defendant it was said that he did not know
where the proprietor of " The History, Topography,
and Directory of Worcestershire" lived ; that he
(the defendant) had no copies of that work in his
possession, having sent all that he had printed to
the bookbinder, and that he had no intention of
again printing the work.
Mr. Bacon and Mr. Tripp for the plaintiff ; Mr.
Malins and Mr. Charles Hall for defendant.
The Vice-Chancellor made an order for an in-
junction as asked.