The Sun.
London, England, 1858-08-03 00:00:00

DAVIES V. DAVIES.

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This was an application for an interim order for the custody
of six children. The petition was presented by the wife on
the ground of adultery and cruelty. She bad left her hus-
hand's house, taking with her her six children, the eldest of
whom was 17, and the youngest 7 years of age. It was
contended that their father was their legal guardian, and
as his misconduct had not been proved, he was entitled to
their custody.
Dr. Spinks appeared in support of the application.
The learned Judge was of opinion that, as there were no
facts
stated, he must leave the father to his remedy by
habeas corpus.

ARCHES COURT.—AuG. 2.
(Before Dr. Lushington.)
MEDLAND AND BROWNE V. PAINE.
This was a proceeding to recover a church rate at three-
pence in the pound brought by the churchwardens of St.
Neot's, II untingdonshire, against Mr. James Paine, a
parishioner. The rate was objected to upon several grounds.
The case occupied the attention of the Court until the
rising.

COURT OF BANKRUPTCY.—AuGusT 2.
(Before Mr. Commissioner Gonlburn.)
IN RE JACOB FRANRENSTEIN.

The bankrupt, a commission merchant and general agent,
of Devonshire-street, applied for his certificate.
It appears from the official assignee's report of the 7th
June that the bankrupt presented a petition for arrange-
ment under the Act of the 12th and 13th Vic., on the 15th
March. On the 19th April the matter was ordered isto
bankruptcy. The balance-sheet commences on the Ist May,
1856, and the accounts, embracing a period of one year and
10 months, exhibit the following results :—Amount owing
to unsecured creditors, £1,573 7s. 9d.; liabilities on bills of
exchange, £1,600103. ld.; profits, £440 Os. Bd.; surplus,
being cash in hand on the Ist May, 1856. £154 75.; differ-
ences in balancing, 16s. 6d.; making a total to account for
of £3,769 2s.

In ifischar • ging himself of that amount the bankrupt re-
turns debtors, £42 Bs. 4(1. property surrendered,
£39 19s. 6d.; making the totalanadmreount of assets, £B2 7s.
10d. His losses by bad debts we
; and £579
ss. 9d. ; on the
trading account, £428 19s. 6d the realisation of pro-
perty, S:3O 2s. 10d.; making together
The trade expenses were £485 Bs. Z a sum 0fX1,038 Bs. Id.
ditto, £562 7s. 4d. ; liabilities per contra, ougs7 and personal
,600 10s. id. ;
showing a total credit of £3,769 2s.
The official assignee further,says, in his report of th
June, that the bankrupt has been before the Court upone7th
former occasion ; he was adjudicated a bankrupt in June,
a,
1855, at which time he appeared to be owing in debts :tied
liabilities £4OO Os. 3d. The estate did not produce any
dividend, the assets yielding £l6 2s. only. From the pro-
ceedings it appears the bankrupt obtained a third-class cer-
tificate after a suspension of six months. On the present
occasion his balance-sheet discloses the amount of his debts
and liabilities to be £3,173 17s. 10d., with available assets,
returned at £B2 7s. 10d. The trading of the bankrupt shows
the same unsatisfactory result upon this, as it did on the
first occasion—namely, loss. He appears to have received,
by way of commissions, and returned under the head of
profits the sum of £440 Os. Bd., against which the losses and
trade expenses together amount to £1,523 16s. 9d., and the
personal is returned at £562 7s. 4d.
'I th examination meeting on the 7th June was
until 7th dui h adjourned
his balance-sheet, -k e bankrupt requiring time to amend
which, according to his own admission,
required amendment.
official assignee, madeent On the 7th July Mr. Pennell, the
upon comparisoansecond report, stating that it ap-
pearedcsely the same as the that the amended sheet was pre-
cisely
the originalalterations:beng one as regarded the debit
only. 1 on the credit side of the account
la the original balance-sheet the assets were returned at
£B2 7s. 10d., but they were then state
which £157 16s. 4d. had been realised. at £203 4s. 10d., of
Increase in the amount of they seats, . , In reconciling that
lie isAmAtakupt reduced

his losses in the same proportion. Upon his amended
balance-sheet, he was allowed to pass his last examination.
Mr. Pennell, official assignee, stated that since the last
report £2OO 198. Ild. had been received.
Mr. George now supported the bankrupt's application for
certificate.
Mr. Spyers, for the assignee (Mr. Hyam Anseli), stated
he was desirous that the bankrupt should have an immediate
certificate.
The Commissioner—Who is the assignee ?
Mr. Spyers—A large creditor.
The Commissioner—Because this'is very curious. This
bankrupt has been insolvent, and paid nothing, then he was
bankrupt, and paid nothing, and now he is bankrupt again,
and the assignee recommends an immediate certificate. I
do not understand that; there must be some mystery about
this assignee, we had that every day.
Mr. Ansell (the assignee)—l was a very heavy sufferer
myself at Hamburg by the failures which took place there
some months ago, and I know that the bankrupt also lost
largely by some parties there ; and considering these cir-
cumstances, and believing that the whole of his troubles
arose from those failures, leads me to take the course adopted
on the present occasion.
The Commissioner When a man takes the office of
assignee he takes upon himself a duty, namely, that
of putting before the Court all the circumstances which lie
thinks the Court ought to know as to the conduct of the
bankrupt as a trader. Now, do you not think he, having
been once insolvent, then so recently before this Court—on
both occasions with large amounts of debts and liabilities,
and with nothing to pay them—that coming again a third
time, under very similar circumstances, is a question that
the assignee, in the exercise of his duty, ought to raise very
seriously before the Court ?
Mr. Ansell—l have told your honour the reason why I
do not oppose the application.
Mr. Spyers—Mr. Ewens, a large trade creditor, also
assents. Further than that I may mention that the assets
have realised all that the petitioner stated.
The Commissioner—No ; at first he stated his estate was
only £BO.
Mr. Spyers—That arose from a misconception.
The Commissioner—Misconception is hardly the right
term—misconception does not mean an Intention to deceive,
which this clearly was.
Mr. Spyers—We are quite satisfied there was no inten-
tion to deceive.
The Commissioner—l am not deceived.
Mr. Spyers—All the liabilities have been run off, and his
losses have mainly arisen from the circumstances Mr. An-
sell has told your honour. Several of the largest creditors
concur in wishing the bankrupt should have his certificate.
The Commissioner—Now, Mr. George, of course, you are
on the same side.
Mr. George—Not on the same side, your honour, but I
support the bankrupt's application.
The Commissioner—What import do you give to those
words in the Act of Parliament that the Court is to form its
opinion of the conduct of a trader, whether he be opposed
or not ?
Mr. George—l think it the duty of the Court to take all
the circumstances of the case on both sides into considera-
tion; the Act of Parliament also says the Court shall take
into consideration the conduct of a trader before, as well as
after, his bankruptcy. The creditors present to-day are Mr.
Ansell, the assignee, a creditor to a considerable amount,
and his opinion is that the bankrupt is not a dishonest man,
and that he ought to receive a certificate. Mr. Nicholson,
of Lime-street, representing the house of Schroeler and Co.,
a large firm of Hamburg, also large creditors, who also con-
sent to the certificate being granted; and Mr. Wolf, also a
large creditor, does not object. They all believe this to be a
case of misfortune. The alteration in the balance-sheet
does not arise from any additional matter, but from the
variation in the account originally proposed. With regard
to his debts, the bankrupt appears to have had the impres-
sion that they ought to be made to appear as small as pos-
sible, and he returns good debts £42, while £5l have been
collected. At 'hamburg, too, things have turned out much
better than was expected, for those debts which were put
down as bad have turned out good. Besides, there is an
affidavit on the file, made at the time of the petition being
presented, stating these debts, afterwards put down as bad,
to be good debts. Under these cirumstanees, I hope your
honour will grant the bankrupt his certificate.
The Commissioner—One thing I think is quite clear, and
that is, that if this case had been opposed I do not think
I could have granted the bankrupt any certificate at all,
neither could I have granted protection, that is, if there had
been a real bond fide opposition, because in my judgment
this man shows by his coming to a court a third time to be
discharged from his debts so soon too after his last applica-
tion, when he came to this court, that the experience of
his former failures has been entirely lost upon him; they,
have had no effect whatever. I see under his former bank-
ruptcy that the certificate was suspended for six months,
and then was of the third class only, so that his failure then
was not one arising wholly or in part from misfortune or
loss; he then paid nothing to his creditors. I find that he
wasinsolvent before that, owing, according to his statement,
a considerable amount, and still paying nothing. Then what
are we to call it when a man, having twice failed and paid
nothing, again contracts debts of which he must know, ac-
cording to all human probability and reason, he will not be
able to pay a farthing. He thinks nothing of his previous
failure, and if I were to grant him immediately the certifi-
cate which he will not get for a very long time, he would
go and do exactly the same thing; he would come here a
third time, and there would be probably the same ceremony
to go through. What are we to call it ? I call it fraudulent
for an insolvent debtor coming out of the Insolvent Court,
once having bad his affairs arranged here, giving his
creditors nothing, and owing them £2,000 or £3,000, to go
and contract debts and liabilities as this man has done to the
amount of £3,000, and then ending worth next to nothing.
£2OO I believe would be the outside amount of assets;
and the debts and liabilities—
Mr. Pennell—The liabilities are run off, and the debts are
£1,570.
The Commissioner—And the expenses will be about £lOO.
Mr. Pennell—l am afraid so.
The Commissioner—Then, out of the £2OO assets there
are only £lOO to pay £1,500 upon a third appearance in the
Bankruptcy Court l What is it I repeat. It is commer-
cially a fraud, obtaining credit from persons who are weak
and credulous enough to trust him. I admit that persons
who trust him under these circumstances share his guilt,
because by giving him credit again they are only encou-
raging him to go and do likewise in other quarters. There-
fore, if this man had been opposed by assignees who were
really in earnest, and not, as in this case, merely serving
the bankrupt, instead of representing the creditors, it
would have been a great question whether I could have
granted him a certificate at all, and I certainly should not
have granted him any protection from arrest. But as no
creditor opposes, and as the assignee, a gentleman who
appears in person, and who seems to be a respectable man,
takes the same course, though the reasons that he gives for
not opposing is not satisfactory, I will take those
things into account, and will go so far as not
to withhold protection from arrest, and the bankrupt
will get all that be really wants, which is the power of
walking about free from his creditors or any annoyance by
them ; but he will not have his certificate until after a very
long suspension. The judgment of the Court is that this
certificate shall be suspended for the space of 12 months from
this date, and that, when granted, it be of the third class.
He will have protection for three months, to be renewed
from time to time unless the assignees show cause to the
contrary, because it is only the non-opposition of the
assignees which induces me to give him any protection.
Mr. Spyers—Would your honour—
The Commissioner—l have heard you once, sir, and I have
delivered my judgment.
Mr. Spyers—Your honour will allow me to say--
The Commissioner—l will not hear you again, sir ; and I
will not allow observations to be made upon the judgment of
the Court. I cannot help remarking that this case, from
the very commencement upon the question of arrangement,
was marked by a singular degree of pertinacity.
Mr. Ansell—We should have saved £lOO expense if it
had gone on under that arrangement.
The Commissioner—No you would not, sir.
Mr. Ansell—l think we should have done so.
The Commissioner—Allow me to know better than you,
sir, and to say you would have made a great mistake.
Mr. Wolf (a creditor)—The mistake is quite on your side,
sir; and it is not the first mistake you have made. (Sen-
sation.)
The Commissioner—Who is that individual ? I remem-
ber he has been here before, when be created some excite-
ment.
Mr. Wolf—And if you speak of " pertinacity," that is
also on your side.
The Commissioner—Leave the court, sir, or I will cause
you to he turned out.
The turbulent gentleman left the court almost imme-
diately, saying he could do so without his honour's assist-
ance ; but be could not resist another outburst, and when he
reached the door he shouted, " You exceed your jurisdic-
tion !"
Third class certificate, suspended for 12 months.
IN RE PEARSON.
This was a sitting for the choice of assignees to the estate
of:the bankrupt, a market gardener, of East Bergholt. A
preliminary statement, prepared by Messrs. Hart, shows
debts and liabilities about £7,000, and assets given up to
the official assignees £2,000. It appears also that the bank-
rupt made a settlement upon his wife of £lO,OOO, which is
chargeable upon some landed property, and if the assignees
succeed in upsetting that settlement there will be a large
surplus.
.111 r. Nunn, a banker of Little Bromley, Essex, was chosen
assignee.