The Sun.
London, England, 1828-08-12 00:00:00

LAW INTELLIGENCE.-(THIS DAY.)

COURT OF CHANCERY.
DIENDIZ A BIEL V. MACIIADO.
Mr. WAKEFIELD was instructed to ask that 11
plea which had been set down in the case to be
heard before the Vice-Chancellor might be heard
his Lordship, as it related to points already decide°
by this branch of the Court, and also by the Hoag
of Lords. There was alio an appeal dependltl
before his Lordship. "

His LORDSHIP ordered the appeal and plea
come on together before him.

VICE-CHANCELLOR'S COURT.
JUDGMENT: •..

EX-PASTE ROBINSON IN TRY MATTER •OF FRAIIM

A BANKRUPT.

His HONOUR gave judgment to-day upon tli
petition, which was argued before him yesterday
considerable length. It was the petition of till
assignees of the bankrupt Frere, praying that
other debt might be substituted for that of the r
titioning creditor ReynOlds, which was found ins'
licient to support. the Commission. The petitlo
was presented under the 18th section of the NO
Act, which provides that if, after • adjudid:
tion, the debt of the petitioning creditor sli;
be found insufficient to support the Commi.
sion of Bankruptcy, it shall be.lawful for the Cotir
of Chancery to substitute for such debt the debt d
any c ther creditor, which may be sufficient to stir
port a commission, provided. such debt has been it'
MU red not anterior to the petitioning creditor's debt'
Mr. Roar, who appeared in support of the peti.
tition, said that the assignees had been compelled t°
present it in their own defenCe, and under they
very peculiar circumstances. The petitioning Ci
ditor, Reynolds, had been himself twice a NO'
rupt ; subsequently to his second bankruptcy he ley
to Frere the r.!oney which formed the petitionini
creditor's debt upon which the commission again°
Frere had issued. The present petitioners were a?,
pointed assignees, and in the discharge of their doty
as assignees they had seized some property belong'
ing to the bankrupt, Frere. An action at law /o`l,
since been brought against them for such seizure, app
in order to defend themselves properly at IS'
it would be absolutely necessary for them to
shew that the commission issued against Free;
and under which they acted, was .a good and sal''
commission. The common law lawyers, to wbo°
the assignees entrusted the defence of the actin''
advised them that they could not safely go to trio':
unless some other debt were substituted for That o'
the present petitioning creditor, inasmuch as Rev
nolds having been twice a bankrupt; and not hay°
paid 15s. in the pound under the second bankrupts"
was was utterly disqualified from possessing proper
and consequently from suing out a commission again
!A
Frere or any other person. This opinion of the Learn of
Gentleman was founded upon the construction 1,
the 127th section of the new Bankrupt Act, whir,
provides, that where a bankrupt, who had previoufli
been a bankrupt, shall receive his certificate, vic
certificate, unless he has paid 15s. in the pound
der his second bankruptcy, shall only protect n;
person from arrest ; but his future estate and efferf
(except his teols in trade, his necessary furnitti!et
~,
and the wearing apparel of himself, his 1r:
and children) shall vest in the assignees and
the second commission, who shall be entitlebt
to seize the same in like manner as they nlig„t
have seized property of which the bankl,
was possessed at the time of the issuing to(
commission. It was admitted on the part vj
Reynolds that he had not paid 15s, in the pot' 1.,
under his second bankruptcy, and it was tberC6o
contended that the debt due to him from Frere b 1,30
absolutely vested in the assignees of Reynolds, vi;,
alone were competent to proceed against Flog
for the recovery of it, either at law or by s° ej
out a commission of bankruptcy. The Lealllto
Gentleman (Mr. Rose) said that the question as ),
the ability of Reynolds to sue out a cammissl°lll,
had been submitted to the consideration of 1, 0
Commissioners, who had not come to any deeen.
upon the point, under these circumstances the asslb:
nees of Frere sought the interposition of this Cott,"
and merely asked for such relief as would ensva
them to set up a valid commission upon the triol
the action at law.

Mr. SWANSTON followed on the same side. ,
Mr. MONTAGIJE apposed the petition,and contenue:t
that Reynolds was in the same situation with reoPe a
to control over his properiy, as an uncertifie6;el
bankrupt was previously to the passing of the 38:4
Act. The Learned Gentleman then cited se
the
cases for the purpose of showing that under
former law an uncertificated bankrupt could tnai°3l;
an action at law, or sue out a commission of ban
ruptcy against his debtor, unless his assignri.
interfered to prevent him. In the present did
stance, however, the assignees of Reynolds -
not interfere in the slightest degree ; indePeant:
dently of this objection to the petition it will:,
tempted to be shewn, that the money lent by
hands as trustee for his children, and that t
nolds to Frere was money placed in his (RePi'
it could not pass to his assignees.
, said
The VICE-CHANCELLOR, in giving judg..---t-
-that the question, which was one of importance, wo:,
entirely upon the construction of sect. 127 of the Act'
there certainly appeared to him to be a great deal
negligence about the phraseology of that section ;
but as it declared that the future estate of the bank".
rupt should, under the circumstances there stated'
vest in the assignees, his Honour was of opinio
that the assignees took a distinct title, and that th
title of the bankrupt was therefore totally discharged
If, then, the estate of the bankrupt Reynolds wg
so vested in his assignees, he clearly could tic
say that any debt was due to him from Frere, an
consequently could not of himself sue out a CO'
mission against hire. In the case of Frere, the!
was therefore no petitioning creditor's debt, and
would be a great injustice not to grant to the e'
signees under his commission the assistance whit
they prayed. Otherwise they must necessarily
defeated in the trial at law, no matter how prope.s
they might have acted with respect to the subj.tii
matter of the action brought against them. vie
Honour did not attach any importance to the
Cher
clration of Reynolds, that the money which 4
lent to Frere was given in the character of trust'
to his children. yi
In the course of the argument yesterdaY, 1,1
Honour asked whether the 127th section of thi
New Act was understood to apply to bankrupteli
which had taken place previously to the passing
the
Mr Act
M?
oNTAouF. said that it unfortunately d,°,,
and within his own knowledge a bankrupt had ,
commenced business at Liverpool, and was gettLli;
on very prosperously, but no sooner did this Act Id
than his assignees,
rp
off all his property, and reduced himself and
family to beggary. "at one fell swoop," "r
DIODECK AND OTHERS V. HAMILTON AND OTHERS'tivil
to restrain the defend 'i
In this case, his HONOUR refused an applielai,e
~f 4
for a specialinjunction
from working certain mines in Lancashire, on tpe
ground that the plaintiffs bad, by not coming o,tion,
Court earlier, forfeited their claim to its interposl
AWelsh Judgeship has become vacant bY
ot
resignation of Jot's BALCUY, Esq.
31 ;oo-
the Acorn, sloop of war, at the Havannah, rno' beporlr
We regret to say, that the reported arriv
sidered as altogether erroneous. We learn from Oared
mouth Correspondent, that letters have been recetv%Aich
Halifax to as late a date as the 12th of July, by t pi6C'
appears that no accounts whatever had reached ths
of '4
of the arrival of the Acorn or Contest in auloard,);
West India Islands, nor had any thing been_al opiOl'of
them since the beginning of April, and the gene' , A
%US ri that they must have foundered in a beavAr),
14.)
l.
wind, in the Gulf-stream, about the 16th of
merchant schooner, on her way from Bermuda to
yeefi
fax, was lost at the same time. There were no d „iied
of war at Halifax. The Hussar flagship hj siooll,l
the Gulf of Bt. Lawrence. The flin.9d°Le'g'Tyve rr.
war, W2lB stationed in the Buy of Fundy
l;
amb.neat y
Manly, at Newfoundland ; and the Co
auld4,...Deronport Teleyruph.