The Sun.
London, England, 1859-01-20 00:00:00

LAW IN:

THE LAW OF BANK.I2UPTCY AND

INSOLVENCY.

(From the Times.)

A Reform of the Law of Bankruptcy and Insol-
vency is one of the measures projected for discussion
during the ensuing session. We rather hope for a
Settlement than believe in it. We cannot forget
how often this subject has been brought forward,
how often it has been remitted for . inquiry, how
often the inquiry has proved barren of result. We
now have in presence mainly two systems—the one
is Lord Chelmsford% the other that one which is
based on the recommendations of various important
commercial bodies—in fact, the legal and the
commercial schemes. The general impression
appears to be that Lord Chelmsford's voluminous
propositions on the subject will scarcely bear dis-
cussion. We need, above all things, simplicity,
and here is . complication ; clearness, and here is
obscurity. On the other hand, it is much to be
apprehended that if the question were deeided
according to the wishes of commercial men the
Bankruptcy Code would virtually cease to exist.
What they ask for seems to be in the main the
sanction of a competent Court to private arrange-
ments. What they chiefly appear to dread is
publicity. But it may be said, why, since the
Bankruptcy Laws are principally devised for the
protection of traders, should not their desires
be accepted as conclusive on the subject ? Have
they an interest in this matter which is adverse to
the general interest of the community ? The
answer to this question certainly is that, as a class,
commercial men are more vitally and more deeply
interested than other persons in a due administra-
tion of the Bankrupt Laws ; but- yet, so great is
their horror of publicity, they would sooner put up
with losses. . They had rather leave fraud to run
its course unchecked than submit to the exposure
of their own mistakes. Their argument is, that if
they choose to manage their own concerns in their
own way—towrite off a loss rather than communi-
cate the-fact to the public—it is their own business
and concerns nobody but themselves. A merchant
in the course of his business enters into some un-
fortunate speculation, undertakes some enterprise
which results in a dead loss, but, while still remain-
ing solvent, he has a perfect right to keep the story
of his reverse to himself. Why should he injure
his own credit ? By parity of reasoning, if in an
unguarded moment he have given trust to an ad-
venturer, and thereby suffered damage, is he bound
to come forward and proclaim the fact to the world ?
Are we to leave no middle course open to him be-
tween submitting to the entire loss of his debt and
full exposure of the circumstances in the public
journals ? It may well be that if notice be given
of the loss he has incurred his own creditors may
be inclined to run him hard. He may not find the
same facilities for discount and the same ample
credit as before, because it will be believed that he
is embarrassed by the loss. There is something
plausible in this at first sight, but the reasoning
breaks down in face of the great argument, that a
policy which actually encourages dishonest trading,
which gives a false appearance of solvency where
insolvency is complete, which enables men who by
their own imprudence have been defrauded to slip
their own necks out of the collar at the expense of
others, cannot in the long run be advantageous to
the community at large. Which is best,—that
trade should rest. upon a sure or upon a rotten
foundation ?
Now, we. .are not defending the Bankrupt Laws
as they stood, nor as they stand. We can well
understand that traders should have shrunk from
bringing their claims before a tribunal where such
frightful complications existed.. There used also to
be the. great argument on the score of expense. The
assets under the good old arrangements used to be
swallowed up in costs. Why should a man undergo
ail this discomfort, and loss of time, and exaspera-
tion of prosecuting a claim before a Court which in
the end either could not or would not afford him
relief in the only form which he appreciated—a
substantial dividend? This argument,' however,
has lost much of its force in our own day. We do
not believe that the Bankruptcy Law, as adminis-
tered by the present Commissioners and Official
Assignees, is fairly obnoxious to the reproach of
being an expensive system. The concerns of a bank-
rupt's estate will be as fairly and economically
wound up in Basing'nall-street as under any system
of private arrangement which could be devised.
But then there is the publicity ! It is difficult to
see how this can be avoided with fairness to all
parties and to the public, who are not parties at all
to the transactions between the bankrupt and his
creditors. What certainty is there that there shall
be no undue preference--that there shall be punish-
ment inflicted for positive offence against the cri-
minal law, unless the bankrupt be examined and
evidence received in open court ? Surely it will
not be contended, if a bankrupt has not surrendered,
has not discovered all his estate, has not delivered
up his books, has destroyed or falsified them,
has concealed available property, has obtained
goods under false pretences when he was hope-
lessly insolvent, or has given false testimony in
the course of the investigation into his affairs,
that he ought not to be punished ? If this be
so we may as well give up our criminal law
altogether, for it would then be assumed that
punishment does not operate to deter from crime.
Should it be left to the discretion of his creditors
whether he should be punished or not ? Scarcely
so, for in that case every rogue who was entering
upon a career of fraud would buoy himself up with
the expectation that his creditors would avoid the
trouble and expense of a prosecution. The only
way in which justice can be administered is by a
competent and impartial Coiirt. How far com-
mercial firms of the highest standing and of the
most unimpeached character can go in the conceal-
ment of crime when such a course appears calcu-
lated to promote their own interests we know by
lamentable proof. It was but the 'other day that
such an instance occurred ;' the City of London has
not yet recovered from the shame.
To-day we have selected this subject for remark,
because the time is at hand when Parliament will
re-assemble for the despatch of business, and there
is no concern of merely domestic import which
should receive a keener or more anxious atten-
tion from the Legislature than this one of the
Bankrupt Law. We have, however, a more special
reason for bringing the subject to-day under the
notice of our readers. Mr. Commissioner Fane, one
of the Bankruptcy Commissioners, has forwarded
willof
be found to us his views upon the proposed reform in the
Laws
Bankruptcyfn in h
d and
anoter
Insolvency. His observa-
tions
portion of our
We d
journal this day. Wo not endorse these views
in all particulars , • but, proceeding as they do 'from
a gentleman who has had such extensive experience
of the subject on which he
treats, they are at least
worthy of attention. Mr. ''
n. r.Commissioner Pane, per-
haps, pushes to extreme the judicial '
for complete publicity in all
scarcely be doubted diat,
if e ,i .
intview. Ie is
as an.ettes ; but it can
i ed no
.excep-
tions to his rule, he would oftentimes defeat his own
object. The keystone of his proposition is
that
where private arrangements are proposed
nijby the
majority; nay, that the voice of one dissentient
creditor should be sufficient to enforce publicity.
Commissioner Fane's theory it is best, perhaps, to
state in his own words,—" There is nothing so
agreeable to an, insolvent and his creditors as se-
crecy—nothing so disagreeable as publicity. The
debtor is only too often a knave, the creditors are
almost all victims of their own rbadiness to give
credit without inquiry. The debtor hates to have
his knavery, the creditor hates to have his folly ex-
posed. • They are in a conspiracy against honest
men, and their engine is secrecy." This view will,
no doubt, 13?. distasteful enough in the City. It is
greatly to be feared that, until the public opinion
of commercial men runs to an overwhelming de-
g-ree on the side of fair trading, anything like a
sound system of Bankruptcy Law will be an im-
possibility. Where all parties are determined to
evade the law or set it at defiance success will gene-
rally crown their endeavours. Were the public
opinion of the country sound upon commercial
fraud there Would be no great difficulty in framing
a law to repress it.

VICE-CHANCELLORS' COURT.
(Before Vice. Chancellor Sir W. P. WOOd.)
THE LONDON, BRIGHTON, AND SOUTH-COAST RAIL-
WAY COMPANY V. THE LONDON AND SOUTH-
WESTERN RAILWAY COMPANY AND THE PORTS-
MOUTH RAILWAY COMPANY.
Mr. Relt, Mr. Willcock, and Mr. J. H. Taylor
moved on behalf of the plaintiffs for an in junction
to restrain the defendants from using the joint sta-
tion at Landport, Portsea, of the plaintiffs and the
South-Western Railway Company, for the booking
or the transit of passengers or goods destined for
or coming from the Portsmouth Railway, or any
part thereof, except only so far as relates to the
transmission, upon the lines of railway laid down
in the station, of traffic conveyed on the public ser-
vice to or from the line belonging to the Crown
leading to the dockyard or other naval or military
establishments at Portsea or Portsmouth.
By the Brighton and Chichester (Portsmouth
Extension) and London and South-Western Rail-
ways Act, 1857, it was enacted that the Brighton
and Chichester Companymight sell, and the South
Western Company and the London, Brighton, and
South Coast Company might purchase, such part
as should be agreed upon of the Portsmouth exten-
sion of the Brighton and Chichester Railway Com-
pany as was westward of the junction near Havant.
This portion was to form and be worked as a joint
line by the London and South-Western and the
London, Brighton, and South Coast Railway Com-
panies, subject to the control of a joint committee of
the two companies, it being enacted (section 13)
that subject to such' control and management and
the provisions of any and every Act of Parliament
for the time being relating to thejoint line or to the
two companies, each of the two companies might at
all times thereafter use the joint line for the pur-
poses of conveying passengers, animals, and things
upon the same, and for all such purposes as
should be necessary for the traffic or business
thereon of the same respective companies.
Articles of contract, in pursuance of the Act
of 1847, were made on the 9th of October,
1848, between the three companies, for the purpose
of arranging the terms upon which the joint line
was,to be worked, and. effecting the conveyance to
the South-Western and Brighton and South Coast
Companies. Further terms of agreement between
the two companies were arranged in August, 1852.
By the Portsmouth Railway Act, 1853, the Ports-
mouth Railway Company was incorporated, with
power to make a line from Havant to Godalming,
to which place a branch of the South-Western
Railway from Guildford extended, the line of the
Portsmouth Company, when completed, joining the
South Coast line at a short distance from Havant
and the " joint line." In January, 1858, another
agreement was entered into between the Brighton
and South Coast and the South-Western Companies
as supplemental to the existing agreements of 1848
and 1852. By the Portsmouth Railway Amend-
ment Act, 1858, sec. 35, that company and all other
companies lawfully using the PortsmOuth Railway
were authorised to pass over and use the joint line,
and that portion of the frighten and South Coast
situated between its junction with the Portsmouth
and its junction with the "joint line." Such powers
of passage and of user to be exercised on such terms
and conditions as failing an agreement between the
companies should be settled in certain specified
modes .with a proviso that, except as thereinafter
provided, nothing in the act should confer on the
company, or on any such other company or person,
any powers of user of the joint station at Landport
(Portsea) for any purpose other than the transmis-
sion upon the lines laid down in the station of
traffic conveyed on the public service. It was also
provided (sec. 36) that the company and owners
for the time being at the joint station at Landpert
might agree for the use by the Portsmouth Rail-
way Company, or such other company, &e., of this
joint station for the general traffic of the company,
&c., on such terms as might be mutually agreed
upon between them, provided that if no such agree-
ment should be come to, then the Portsmouth
Company should, before a year from passiirs the
act, purchase so much of the lands authorised to be
purchased at Portsea as should be necessary for the
construction of an independent station, and con-
struct such station, &c., as might be required for
the accommodation of the traffic.
The Portsmouth Railway Company had required
the plaintiffs (the Brighton and South Coast Cora-
pany) to come to an arrangement for the use by
them of •the South Coast line between the two
points of junction, and of the plaintiffs' station at
Havant. The companies not having been able to
agree upon the terms of user, the matter had been
referred under the powers of the Act to arbitration.
The bill proceeded to allege that the South Western
Railway Company had entered into some agree-
ment' with the Portsmouth Railway Company for
working their line, and for the conveyance of the
traffic thereon, but that such agreement had been
entered into without the concurrence or sanction of
the plaintiffs. In December last the plaintiffs re-
ceived-notice of the arrangements proposed by the
South Western Railway Company for working the
traffic of the Portsmouth Railway, and using the
plaintiffs' line between the two points of junction.
The plaintiffs thereupon objected to the use of the
joint station at Landport for the Portsmouth Rail-
way traffic. • Upon the South Western Company
insisting upon their right, in virtue of their joint
ownership of the joint line and station, to use them
for all purposes of their company, not excepting
the accommodation of traffic which might have
passed from, or which might be about to pass to,
the Portsmouth Railway, the plaintiffs had filed
their bill and. now moved for an injunction in the
terms above stated.
In support of the motion it was contended that
the South Western Company was acting illegally,
and in violation of sectierd 13 of the Act .of 1847,
which must be confined strictly to the two com-
panies, and could not enable the traffic of a
third company to be introduced over the joint
line, whether such traffic had originally travelled
over the South Western line proper, or "was.
merely traffic of the Portsmouth Railway. The
South Western Company, by working the Ports-
niouth Railway, must be taken as representing
that company, which was expressly prohibited by
the act of 1858 from using the joint station at
Landport, except by agreement.-
Sir-R. Bethell, Mr; Giffard, Q.C., and Mr. Bag-
pllay, for the South-Western Railway Company,
contended that there was nothing in the acts to
prohibit them -from using the joint station for all
purposes, including the working by them of the
Portsmouth Railway, and the conveyance of traffic
over that line, whether between Portsmouth and
London, or between Portsmouth and Godalming
only. It was impossible to prevent passengers from
taking the direct line now open by way of Godal-
ming (saving some 25 miles) instead of the circuit
by Basingstoke, and so long as passengers or traffic
were conveyed over any portion of the South-
Western line, the joint line being clearly a portion
of their line, the traffic became South-Western
traffic, and as such entitled to the use of the joint
station, sec. 13 of the act of 1847 containing no
restriction as to any source from which the traffic
might be derived.
Mr. C. T. Simpson for the Portsmouth Railway
Company.
Mr. Willcock replied.
The Vice-Chancellor said that the question in this
case depended entirely upon the construction of the
act of 1847, by which the South-Western and the
Brighton and South Coast Companies were autho-
rised to purchase, and a third company was autho-
rised to sell, a portion of line for the purpose of
being jointly used by the two companies as a joint
line. This act was in no way modified by the Ports-
mouth Railway 'Amendment 'Act of 1858. What,
then, was the effect of the act of 1847 as to the uses
of the joint station by the two companies ? The
act was remarkable, and differed from the usual
form adopted in such cases. It was enacted (sec. 14)
that all proceedings, &e., with respect to loss, &c.,
on the joint line should be brought against the two
companies jointly ; that the joint and several funds
of the two companies should be liable in payment
and satisfaction of all liabilities incurred by the
joint committee, whose appointment was directed by
the act for the management of the joint line. Some
of the provisions as to the joint committee might,
in case of a dispute between the companies, be very
difficult to carry out, but it was observable that
either of the two companies might appoint its own
booking clerks, who were not to be removable by
the joint committee. Section 13 (already set out
in the statement of the case) enabled each of the
two companies to use the joint line. It had appeared
to him from the first that there was considerable
difficulty in the plaintiffs' case as to bona fide traffic
booked by the South-Western Company at Ports-
mouth, to proceed first by the joint line to Havant,
then over the Portsmouth Railway to Godalming,
and again by the South-Western line from God-
aiming to Waterloo. This would be clearly traffic
and business of the South-Western Railway. Pas-
sengers were not bound to go round by the circui-
tous route of Basingstoke, when they might take
tseTt.thophene,eiectrvlnheueiorslisrvoaeane:(slairect line by Godalming and Petersfield.
South-Western
enbr(aintnothing,liotninema from
fidertt
ohemle
ultimately
jtofrovoarenffie to
rd,
cot
London
er leadtaoivoeGil
nloi
joint
hagl i minnole;
net
rofgr
theothomie.
Havant, was not South-Western traffic. Thcre might be a difficulty as to traffic starting from
Petersfield, or any point on the Portsmouth Rail-
way, as it could not be seatreildlrnctlo have ever been on
any
oinnelppain-oypetrilatlttwbeays
saidp
ba
yr t ot fb
et h es
oSao
tubt_hivllersets
were joint tenants of the joint line, anclthat wasHe
not the less a.povtion of their line proper because
they had the joint We of it with the plaintiffs.

Mr. Knowles—Yes,
Lord Campbell—We cannot possibly interfere in
these cases unless on the ground of an imputation
of personal corruption. There is a great deal here
about the removal of the turnpike and the employ-
ment, of the. police... If. those subjects had been
treated fairly we.never should have interfered, but
we find in this article a charge of corruption against
Mr. ;Tames and Mr. :Fawcett in the discharge of
their duties as magistrate.
Mr. Knowles—A solicitor's letter was sent to the
Methrs. Steel, calling upon them for an unqualified
denial and retraction of what they had stated, and
they afterwards inserted in their newspaper an
article in which, in fact, they reiterated the impu-
tation that the two magistrates had acted from
personal and corrupt motives. They said they
were not conscious of having made such a charge,
and that if Mr. James and Mr. Fawcett thought
they had made it they had no hesitation in expli-
citly disclaiming any intention to impute corruption
to them. The article concluded in these worth :
" We very reasonably supposed, as, indeed, we see
no rrason as vet to disbelieve, that personal feeling
had betrayed'them into taking an extraordinary
and altogether unjustifiable step."
Lord Canipbell—lf it had turned out that Mr.
James and Mr. Fawcett had appealed to the public
through the newspapers, or that the defendants had
published a reasonable apology, we should not have
interfered. We do not consider that a reasonable
apology, and you may therefore take a rule.
Rule granted.

POLICE INTELLIGENCE, Jan. 19.

BOW-STREET.--A fine looking young woman,
of rather a showy style of, dress, who stated that
she was a married woman, but was living apart
from her husband, applied for. advice under the
following circumstances :
Applicant stated that she had for a long time
resided with another woman, now in attendance,
but had quitted her for about three months. About
a year and a half ago, applicant had a child (a girl)
by the brother of this woman, who had nursed it
after the first three months, while applicant worked
at the army tailoring. Applicant considered that
she was entitled to remove her own child, which,
being illegitimate, was not under the control of the
father ; still less under that of his sister. The latter
claimed payment of half a crown a week for 15
months' maintenance of the child. Applicant re-
sisted this as an unreasonable demand, for during
the time that they all lived together her earnings
contributed towards the support of the child and of
the nurse. But she was willing to pay for the last
three Months, as for that period she had been away,
and the child had really been a charge to its aunt.
The nurse, who evidently possessed the affections
of the child, which she carried in her arms, here
came forward and said she considered she had a
good claim for the 15 months' and meant to assert
it. Her Object was to keep the child away from
the mother, who was a very bad character. She
had become attached to the child from nursing it,
and her brother had the feelings of a father, though
he knew he had no legal right to the control of the
child.

The Magistrate expressed his opinion that the
mother was entitled to the custody of her own child,
notwithstanding any claim for its sustenance, which
could only be decided by a civil action. At the
same time he had no power to order the child to be
given up, which could only be effected by proceed-
ings in another court. The mother had better con-
sult an attorney.

As the partijs were leaving the court, the mother
suddenly seized upon the child, forcibly dragged it
away from the nurse, and escaped with it, before
the usher, impeded by her companions; could inter-
fere. Subsequently, however, he called at her
lodgings in Duke-street, Drury-lane, and remon-
strated with her on the impropriety of taking the
law in her own hands. She then returned to the