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

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 ow 193. lid. had been received.
Mr. George now supported the bankrupt's application for
certificate.
for the assignee (Mr. Hyam Angell), stated
hellwras. S
dPeYsirrosu's 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. 1
do not understand that; there must be some mystery about
this assignee, we find 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 he
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
VICE.-CHANCELLORS' COURTS.—AUGUST 2. time, under very similar circumstances, is a question that
(Before Vice-Chancellor Kindersley.) the assignee, in the exercise of his duty, ought to raise very
seriously before the Court ?
BAILEY V. DUNKERLEY. Mr. Ansell—l have told your honour the reason why I
In this case the chief clerk had made an order in chain- do not oppose the application.
bers, on the application of the defendant, for the production Mr. Spyers—Mr. Ewens, a large trade creditor, also
of documents by the plaintiff. assents. Further than that I may mention that the assets
Mr. Bovilt moved on behalf of the plaintiff to discharge have realised all that the petitioner stated.
the order; Mr. Ellis appeared for the defendant. The Commissioner—No ;at first he stated his estate was
Mr. Bovill urged that the suit, was by bill, no interroga- only £BO-
- being put in and no answer required ; that the de- Mr. Spyers—That arose from a misconception.
fendaut had obtained leave to put in a voluntary answer The Comrnissioner—Miscouception is hardly the right
within a month, and bad obtained an order for the produc- term—misconception does not mean an intention to deceive,
lion of documents by the plaintiff. Defendant had not yet which this clearly was.
put in hie answer; and if this was permitted, a defendant Mr. Spyers—We are quite satisfied there was no inten-
might Wain such information as would enable him to frame tion to deceive.
his answer in contravention of the 15th and 16th Vic., cap. The Cotnmissionsr—l am n deceiv
bedeen run off, and his
80, see. 20. Mr. Spyers—All the liabilit ot
ies have
The Vice-Chancellor thought that defendant had a right losses have mainly arisen from the circumstances Mr. An-
to the order for production. The section of the act referred sell tote told your honour. Several of the largest creditors
to only applied when a discovery was sought far, and a full concur in wishing the bankrupt should have his certificate.
and sufficient answer therefore required. Here it was the The Commissioner—Now, Mr. George, of course, you are
defendent who was seeking a discovery, and he had there- on the same side.
ere a right to demand the production of any documents in Mr. George—Not on the same side, your honour, but I
the -possession of the plaintiff and calculated to throw a support the bankrupt's application.
light upon the case. The motion must be refused. Tete Commissioner—What import do you give to those
words in tbe Act of Parliament that the Court is to form its
(Before Vice-Chancellor Wood.)
opinion of the conduct of a trader, whether he be opposed
PEARCE V. LINDSAY. or not ?
The Vice-Chancellor gave judgment in this case, which Mr. George—l think it the duty of the Court to take all
was argued at considerable length during the sittings. The the circumstances of the case on both sides into considcra-
plaintiff's were shipbrokers at Liverpool; the defendants were tion ; the Act of Parliament also says the Court shall take
eltipbrehers in London. Both houses had extensive connec- into consideration the conduct of a trader before, as well as
Lions with the American shipping interest, especially in the after, his bankruptcy. The creditors present to-day are Mr.
iron trade. The object of the bill was to obtain an account Ansel', the assignee, a creditor to a considerable amount,
from the defendants, the Messrs. Lindsay, founded upon an and his opinion is that the bankrupt is not a dishonest man,
agreement called the Havre agreement, by which they were and that he ought to receive a certificate. Mr. Nicholson,
to divide the profits. The case tinned upon a mass of evi- of Lime-street, representing the house of Schroeler and Co.,
dence, chiefly correspondence, extending so far back as 1849, a large firm of Hamburg, also large creditors, who also con-
the printed bill and the evidence forming two respectable sent to the certificate being granted; and Mr. Wolf, also a
quarto volumes. The defendants, his Honour observed, had large creditor, does not object. They all believe this to be a
denied any agreement, and had insisted that whatever case of misfortune. The alteretioa in the balance-sheet
was due to them was only under the custom of trade. But does not arise from any additional matter, but from the
he was of opinion that the defendants' own language variation in the account criginally proposed. With regard
in the correspondence would be inexplicable. except on the to his debts, the bankrupt appears to have had the impres-
tooting of the aareernent relied on by the Messrs. Pearce. sion that they ought to be made to appear as small as pos-
The defendants had represented themselves as filling too sibte, and he returns good debts £42, while £54 have been
high a position in reference to American shipping to require collected. At Hamburg, too, things have turned out much
assistance from the Messrs. Pearce ; but he was of opinion better than was expected, for those debts which were put
that the evidence established a joint interest between down as bad have turned out good. Besides, there is an
Messrs. Pearce and Messrs. Lindsay. It would have been affidavit on the file, made at the time of the petition being
misleading Messrs. Pearce if what was called the Havre presented, stating these debts, afterwards put down as bad,
agreement was not to be regarded as a subsisting contract. to be good debts. Under these eiruntstancee, I hope your
The Messrs. Lindsay had certainly treated it as a valid honour will grant the bankrupt his certificate.
agreement down to 1853. The defendants alleged that The Commissioner—One thing I think is quite clear, and
they had given a " distinct, decide-I, peremptory, and that is, that if this case had been opposed Ido not think
conclusive rejection of the proposal by the plaintiffs, to I could have granted the bankrupt any certificate at all,
share half of the profits of the American business, and neither could I have granted protection, that is, if there had
that they wished to be governed only by the custom of been a real bond fide opposition, because in my judgment
the trade." It was surprising after this assertion to find this man shows by his coming to a court a third time to be
such expressions in the correspondence as these—" Can you discharged from tile debts so soon too after his last applies-
inform us how we can get these fellows (the Yankees) into ticn, when be came to this court, that the experience of
us? How can we get them into our net?? " These were his former failures has been entirely lost upon him ; they
extraordinary expressions from persons professing to stand have bad no effect whatever. I see under his former bank-
on the very pinnacle of commerce. Again the defendants said ruptcy that the certificate eves suspended for six months,
to one of the plaintiffs, " You are better known in the States and then was of the third class only, so that his failure then
than we are." Again, speaking of some American ships, was not one arising wholly or in part from misfortune or
they said to Messrs. Pearce, " Nail them all." The defen- loss; be then paid nothing to his creditors. I find that he
dents seemed now to take a very different view of their was insolvent before that, owing, according to his statement,
relative position with the plaintiffs from that which their a considerable amount, and still paying nothing. Then what
correspondence proved. There must have been a great are we to call it when a man, having twice failed and paid
lapse of memory. It was clear that when they were writing nothing, again contracts debts of which he mast know, ac-
to Messrs. Pearce they did not seem to feel that they were cording to all human probability and reason, he will not be
persons filling a very high position, writing, as they alleged, able to pay a farthing. He thinks nothing of his previous
to persons of subordinate character. Amongst other expren- failure, and if I were to grant him immediately the certifi-
siens they used was this, " Remember we are all young cate which he will not get for a very long time, he would
people." When one of the plaintiffs was making a tour in go and do exactly the same thing; he would come here a
America, the defendants wrote, gg I wish you would make third time, and there would be probably the same ceremony
it appear that we are one and the same concern in American to go through. What are we to call it ? I call it fraudulent
business." Besides this joint circulars were printed at their for an insolvent debtor coming out of the Insolvent Court,
joint expense. The defendants said that the division of once having had his affairs arranged here, giving his
brokerage commission only applied to the Havre business, creditors nothing, and owing them £2,000 or £3,000, to go
or business obtained in consequence of one of the Pearces and contract debts and liabilities as this man has done to the
making a visit to the United States. He thought an agree- amount of £3,000, and then ending worth next to nothing.
ment clearly was established in 1852. His Honour made £2OO I believe would be the outside amount of assets;
a declaration that the plaintiff, as surviving partner, was and the debts and liabilities—
entitled to half commission on business, effected through Mr. Pennell—The liabilities are runoff, and the debts are
the Havre agents, for chartering vessels to America from £1,570.
1851 to 185. e, credit being given for what was dne to, or The Commissioner—And the expenses will be about £lOO.
through, the same agents. The plaintiff was also en- Mr. Pennell—l am afraid so.
titled, under an agreement of 1852, to a moiety of The Commissioner—Then, out of the £2OO assets there
commission on American vessels chartered in London, are only £lOO to pay £1,500 upon a third appearance in the
or at the outports, except on vessels specially con- Bankruptcy Court I What is it, I repeat. It is commer-
signed, and vessels over which the plaintiff had not cialiy a fraud, obtaining credit from persons who are weak
exercised any influence, regard being had to the course 1 and credulous enough to trust him. I admit that persons
of dealing to to what was to be regarded as constituting 1 who trust him under these circumstances share his guilt,
such influence. There must be an inquiry whether the ar- I because by giving him credit again they are only encou-
rangement, at any time after 18.52, was determined by either raging him to go and do likewise in other quarters. There-
of the two firms or abandoned with the knowledge and fore, if this man had been opposed by assignees who were
acquiescence of tire other. His Honour declared that the really in earnest, and not, as in this case, merely serving
plaintiffs and defendants were entitled, under an arrange- I the bankrupt, instead of representing the creditors, it
meta founded on what was known in the course of trade by I would have been a great question whether I could have
the term " exclusive correspondence" as to vessels employed granted him a certificate at all, and I certainly should not
in the shipment of iron after 18,52, to a moiety of the corn- have granted him any protection from arrest. But as no
mission on freights, according to the terms of that corres- creditor opposes, and as the assignee, a gentleman who
pondence, excluding vessels specially consigned to certain appears in person, and who seems to be a respectable man,
Partio• The case must be spoken to upon the minutes takes the same course, though the reasons that he gives for
hereafter, and his Honour reserved further consideration. not opposing is not satisfactory, I will take those
The case was argued for several days by the Solicitor- things into account, and will go so far as not
General, Mr. Dolt, Mr. Gifford, Mr. Turner, and Mr. Cox. to withhold protection from arrest, and the bankrupt
will get all that he 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 he 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-4 have beard 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 Commissioser—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 lie 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 be 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.

LAW REPORTS.

COURT OF CHANCERY.—Aua 2,

(Before the Lords Justices.)

IN RE MALPAS TRUSTS.

The litigation in this matter appeals to have reference
chiefly to a sum of £lO lds. 7d., such being the subject
matter eta petition on which Vice-Chancellor Stuart made
the order now appealed from, directing a trustee to pay to
his cestuigne trust a sum of 0f,15 by way of costs. The
case occupied the attention of the Court for nearly eight
hours, and, at the conclusion,
Their Lordships ordered the £l5 to hs returned, and the
cestitique trust to pay the trustee a further sum of £2O to-
wards his costs. Their lordships also insisted on the various
parties who had appeared in the petition at once naming
of
a
sum as their costs, so that the expense of a taxation
costs might be spared.
Mr. Matins, who appeared for the trustee, observed that
if his costs were taxed they would amount to about £lOO,
but he consented under the circumstances to accept of LA
in addition to the £l5 to be returned to his client.
The counsel for the other parties having also named the
amount of their costs, an order was made accordingly.
Mr. Malins and Mr. Southgate were for the appeal; Mr.
W. 11. Terrell for the principal respondent ; Mr. T. Stevens,
Mr. F. S. Williams, Mr. W. Morris, and Mr. Surrage for
other parties interested.

COURT OF PROBATE.—AuG. 2.
(Before Sir C. Cresswell.)
TUBBS V. PROUT.
This was a question relating to the will of the late Major
Prout, who had been killed at the massacre at Cawnpore, a
victim to which his wife had also fallen. The object of the
present application was to examine before a commissioner
Capt. Delafosse and Capt. Thompson, the only two officers
who had escaped, and who were now in this country, as to
which of the deceased parties was first killed.
The Qteen's Advocate and Mr. Hardy were counsel in
the case.
The Court directed tLes3 witnesses to be examined by
some member of the bar within a fortnight, the party ex-
amining giving the other site notice.

COURT FOR DIVORCE AND
AND
xMATRIMONIAL
CAUSES.—AuG 2.
KING V. RING AND BROWN.
This was whicht for a disEolution of marriage on the ground
of adultery, was alleged to have taken place on board
the ship Vernon, on the voyage between London and
Bombay. The petitioner was the husband, and the object
of the present application was to have the steward and the
captain examined under a commission, as they were about
to leave this country for India on the Ist of
beerSeptembr.
Mr. A. J. Stephens appeared in support of ppli-

cation.
The Court made the order.

DAVIES V. DAVIES.
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 had left her bus-
band'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.

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 lauded property, and if the assignees
succeed in upsetting that settlement there will be a large
surplus.
Mr. Nunn, a banker of Little Bromley, Essex, was chosen
assignee.

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

IN RE T. 11. 31ORTON.
This was a certificate meeting in the case of the bankrupt,
who was a grocer of Maidstone. The accounts have already
been published.
A rliaßdang
oletya,
tftoermtph
teeadsstiog ,deceivenees sa said
oydbyel;ietvkeed the
hbank-
rupt
had
d had
from him a most candid explanation, and as theyy had had
it
also the means of testing its accuracy, they had no doubt
was true. He had kept a grocer's establishmeenrtsoant
named
stone, but was also in partnership with a p
Pooley, a lime and cement manufacturer. Quarrels and dif-
ferences arose between them, which, in fact, led to the
bankrupt's suspension and his appearance in his honour's
court. An action had since been brought and a verdict
recovered against Pooley. He had not yet paid the amount
of the verdict, and in truth was what was called "not in
the way." Tue assignees felt, under the eircumslitnces, that
they would not be justified in asking the Ceurt to delay the
bankrupt's certificate, although at the same time they
thought it ought not be of the first class.
Mr. Lawrence, for the bankrupt, said he had been in
business in the same town for 25 years and had never before
failed.
The Commissioner—ls the bankrupt prepared to depose
to that fact?
Mr. Lawrance—Yes, sir, he is here.
The Commissioner—Is that so ?
Bankrupt—Yes, sir.
The Commissioner—To what do you attribute your failure?
Bankrupt—To having fallen in with a dishonest man.
The Commissioner—That is a general answer.
Bankrupt—He was my partner, and kept the money, and
would not render me any account.
In reply to the Court,
Mr. Bagley stated the action to which he had alluded was
tried for the purpose only of testing the liability of the part-
ner to the partnership debts which he denied. The verdict
was for a small amount only, but it was for the whole
amount claimed by the creditor—namely, £5O.
The Commissioner—That does not benefit the estate.
Mr. Bagley—No, but it establishes the liability of the
partner to the rest of the debts.
Having made some inquiry of the official assignee as to
the accounts,
His Honour said he should pursue the game course that
the Lords Justices did in cases similar to the present, and
that was where the assignees were not merely friendly
aseignees,_ and neglecting the interests of the creditors for
the benefit cf the bankrupt, to pay attention to any sug-
,,estion that fell from them, but only where they were per-
formir g their duty boneifide as assignees. He thought that
was so hero, and he was disposed to look favourably ou the case
from its containing one featurek of great
hresadthiemepnoirtitbanoscien,eastaidwtihtha
was the lengal of time the han
irtoi
he.l.eve thatt the
fi bankrupt's
hisre
floarvei having
failureoutfa
had i
arisen
To
gone into partnership with a
dtliThczceisitmlaaft7
liewas
partly PfrcoBrrie
n ente
it was to be hoped
migthat when e as
might take an immediate certificate of the second class ; and
present misfortune ht operate as kcautioai n, red trade his

COURT OF BANKRUPTCY.-AuGusT 2. 1
(Before Mr. Commissioner Goulburn.)
IN RE JACOB FRANKENSTEIN. 1
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 into
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, £1,600105. ld.; profits, £440 Os. Bd.; surplus,
being cash in baud on the Ist May, 1856. £154 75.; differ-
ences in balancing, 16s. ; making a total to account for
of £3,769 2.4.
In discharging himself of that amount the bankrupt re-
turns debtors, £42 84. 4d. ; aad property surrendered,
£3919.5. Gd.; making the total amount of assets, £B2 7s.
102. * His loses by had debts were £579 ss. 9d.; on the
trading account, £428 19s. Gd.; and the realisation of pro-
verty, £:3O 2s. 102.; making together a sum of £1,038 Bs. ld.
The trade expenses were £lBs`Bs. 82. ; house and personal
ditto, £562 7s. '
42. • liabilities per contra, £1,600105. ld. ;
Biiitotwol
4,rtltota total credit of £3,769 29.
The official assignee further says, in his report of the 7th
June, that the bankrupt has been before the Court upon a
former occasion ; he was adjudicated a bankrupt in June,
1855'
at which time lie appeared to be owing in debts and
liabilities £4OO 04. 3d.
T estate did not produce any
dividend, the assets
3'liei(tieig £l6 2s. only. From the pro-
ceedings it appears the bankrupt obtained a third-class cer-
tificate after a suspension of 6ix months. On the present
occasion his balance-sheet discloseosdthe
w Imo u
a amount of his debts
ilable assets
and liabilities to he £3,173 17s. 1 .
of the bankrupt shows
returned at £B2 7s. 10d. The trading
the same unsatisfactory result upon this, as it did on the
first occasion-namely, loss. He appears to have received,
by way of commissions, anti returned under the head
profits the sum of £4,10 04. 82., against which the losses and
trade expanses together amount to £1,523 163. 9(1')
and the
personal expenditure is returned at £562 7s. 4d.
The examination meeting on the 7th June was adjourned
until the 7th July-the bankrupt requiring tone to amend
his balance-sheet, which, according to his own admission,
required amendment. On the 7th July Mr. Pennell, the
official assignee, made a second report, stating that it ap-
peared upon comparison that the am( nded sheet was pre-
cisely the same as the original one fl5l regarded the debit
eitle, the alterations:being on the credit side of the account

only.
.1 the original balance-sheet the assets were returned at
,D 3•2 79. 10,1., but they were then s!ated at £203 49. 10d., of
t he upt reduced
wuich £157 16s. 4d. had been realised. In reconciling that
increase in the amount of thea sots,