Star.
London, England, 1822-04-12 00:00:00

LAW

COURT OF KING'S KING'S BENCH, APRIL 11.
MILLAR AND ANOTHER O. AMIN.
This was an action brought by the p}iintiffs, as-
signees of Garland, Magnus, and Bea in, bank-
rupts, to recover from the defendant a sum exceeding.
£4,000, the proceeds of a cargo of cotton belonging
to the bankrupts, but which it was alleged had not
come to the bankrupts till a time subsequent to the
commission of an act of bankruptcy.
Mr. ScmtLarr stated the facts to the Jury, and
called the following witnesses:
The Solicitor under the Commission, who put in
that document, dated August 15th, 1820. In this
Commission Mr. Bates' name appeared as the peti-
tioning creditor.
The clerk of Mr. Bates proved that, in the year
1812, goods were furnished to the bankrupts to the
amount of £5OO. The goods were for exportation, and
were sold for a credit of eighteen months, and paid
for in bills at that date. These bills were not paid
when due, but were renewed. The bill upon which
the petitioner's debt was founded, was one of £lO7.
The bill was made payable at Prescott and Co.'s,
where the bankrupts kept an account.
Mr. MARRYATT here submitted that it was neces-
sary to shew the due presentation of this bill, and
that it was in the hands of the petitioning creditors
at the time the debt was alleged to be due as a dis-
honoured bill.

Mr. SCARLETT submitted it was sufficient now to
shew the bill in the hands of the drawer, which was
proof it had not been paid by the acceptor.
The Cum JUSTICE.said, it was necessary to shew
the time at which the bill came back into the hands
of the petitioning creditor. It might not have come
back till last year.
Mr. Puller, solicitor to Mr. Bates, proved that, in
1813, he had instructions to proceed upon a bill of
exchange for 1071. Ss. 11d. at one month, dated Sep-
tember 2'2,1813, accepted by Garland and Co. which
had become due and been dishonoured. The bill
now put in was the bill in questian. There were
several other bills of a similar description ; but die
bill which he then held in his hand was that on
which he was instructed to proceed, and to which
he hat alluded in a letter written by him to the par-
ties at the time.

.....
Mr. Phelps, clerk in Prescott's house, proved that, ,1
in 1813, the bankrupt kept an account at their house',
in the name of M. Garland and Co. The bill now
put in, for 107/. 3s. 11d. was,with a number of others,
returned by their house dishonoured. This cammenced
early in the year 1813, and the amount-of bills dis-
honoured was about £lO,OOO.
Cross-examined—On the day the a 07 bill became
due they had a balance in hand of 0138.
Mr. Bennett was a creditor to a large amount, but
released the assignees about three months ago. Re-
collects two of the partners, Benjamin and Garland,
were arrested in April, 18.13. In August of that year
Magnus, the other paitner, was concealed in the wit-
ness's dining-room, while he went to see if any writs
were out against him. In the course of the same Tear
witness, by Garland's direction, prepared a bill of sale
to protect Garland's private property against the part-
nership debts. The bill of sale was eyecnted and taken
to Mr. G.uland's house at Finchley, where some one
was put in possession. An execution was afterwards
6put into the house, and witness then set ve..l a nctice
on the Sheriff, claiming the goods for Mr. Tucker,
under the bill of sale previously executed. No money
was paid when the bill of sale was executed,'bnt wit-
ness was told by Mr. Garland that there was a debt
of 1:1,500 due to Tucker.

The CIIIEFJustIcz said the act of bankruptcy was
made out against Magnus, by his being shut up in
Mr. Bennett's dining-room.
Kindon, officer to the Sheriff of Middlesex, entered
Garland's house at Finchley, in August,lB 13, to levy ;
the bill of sale was produced to him, as witness be-
lieved, by Mr. Garland,who said the young man who
had been in possession was gone that day to we the
King of France pass till-Gogh London. Witness, how-
ever, left his man in possession for the Sheriff, and
afterwards, on getting an indemnity, sold tocloods.
Witness entered at the suit of Spooner, Att , and
Co. NVittiess set no value on the bill of sale, there
being no man in possession at the time he entered.—
Witness could not positively recollect whether it was
Mr. or Mrs. Garland who produced the bill of sale
in favour of Tucker.

Mr. Wrizon was solicitor under the commission,
and had all Garland's pavers, but hid not been able
to find the bill of sale. Witness did not sue out his
commission till the 15th of Aug mt, 1820; there had
been two previous commissions. Garland was then
residing in He quitted the house at
Finchley in 1814.

The Clerk of the King's Bench proved that Benja-
min w•as committed to that prison in June, 1815, and
was not struck off the books of the prison until Oc-
tober, 1817.

Mr. John Stephenson was a partner in the house
of Kymer, M.Taggart, and Co. in ISI3, and in that
year advanced to the firm of Garland and Co. money
on a cargo of cotton from the Isle of France, by the'
ship Ariadne. Afterwards witness received an order
from Garland to deliver over the goods to Aaron ;
this was in November, 1813. The order was dated
the 12th of November.

Cross-examined.—On the 14th of June, 1813, wit-
ness made an advance of £BOOO to Garland's house.
The purchasers to whom Aaron sold, paid to wit-
nessess house the money they advanced on the cargo.
Mr. Barker, Cleo k in the house of Agers and Co.
purchasers of the cotton, proved that they paid to
Mr. Stephenson's house, on account of Garland's ad-
vance, £7013 ; and to the defendant Aaron, as the
balance, three bills of £lOOO each, one bill for £740,
and one for £516. lls. 4d. making £4256. 1 ls. 4d.
the sum sought to be recovered back by the present
action. The goods wereopurchased by them on the
11th of December, 1813.

Mr. Bennett re-examined.—Benjamin was arrested
in 1813. Witness was then told, that there were
funds abroad equal to meeting all the demands on
the firm; and it was settled that Benjamin should go
abroad to recover-them, and the witness was to tale
advantage of his absence to delay the action on which
he was now held to bakto afford him an opportunity
of getting those funds, and returning.
Mr. MARRYATT, for the defendant, said, the money
appeared to have been received by Mr. Aaron early in
1814, and this action was not commenced till No-,


!,ember, 1820, more than six years after, and there-
fore the Staiute of Limitations would interpose.
Mr. BcAsurrr said, the case lately decided,. of
Murray, v. The East India Company, would decide
'64 objection ; there was no person with whom to
.come in essay.
• Mr. MARRTATT said, in that case the party was
dead. It was different entirely froth this case.
The CHIRP JUSTICE said, his present opinion was,
that the Senate of Limitations would not apply in
this case ; he would, however, save the point. •
Mr. MARRYATT then addressed the Jury on behalf
of the defendant, and contended, that so far from
there being any fraud in this transaction, Mr. Aaron
was a fair-box:fide creditor to a larger amount than
the sum in question. The tact was, that Garland and
Co. had senroet a large shipment to the Isle of France,
amounting to not less than £15,000, and without
having any reason to suppose themselves insolvent,
they might, until they received their returns, find
themselves at times pressed for cash. These parties
had been in that situation, and Mr. Aaron had, from
time to time, advtnced money to be repaid out of the
proceeds of the cargo when it should arrive. He
would prove that still the bankrupts were indebted
to Aaron upwards of £790; and besides this, to affect
him, it was necessary he should have some knowledge
either of an antecedent act of bankruptcy, or of the
insolvency of the parties ; here, so far from that being
the case, Aaron had continued advancing money
long after the time at which it was represented that
Garland had executed the bill of sale, and that Mag-
nus had committed the alleged act of bankruptcy, at
Mr. Bennett's ; and he even entered into securities
for Benjamin to the amount of upwards of £4OOO,
and suffered Benjamin to go abroad. Was it likely
he would have done this had he doubted the solvency
of the house? The fact was, that Garland himself
had no suspicion of that sort till long after—namely,
till he received information from Benjamin that the
funds at Gibraltar had turned out so much short of
expectation. lie must also remind the Jury, in case
of a verdict going against his client, that he had paid
for commission and other expenses attending the sale
of the cotton, upwards of I:100, for which he had had
no allowance.—The Learned Counsel then called

Mr. Garland, one of the bankrupts. In 1813 their
house was made indebted to Mr. Aaron a considerable
sum of money, advanced on the cargo of the Ariadne.
The outward investment in that vessel amounted to
about £25,000. She sailed in 1812, and returned in
1813. The advances made by Aaron were applied
to the benefit of the house. When Benjamin went
abroad in 1813, he went to collect monies due to the
house, at Gibraltar. Witness expected to receive re-
turns to the amount of at least £lO,OOO. On his re-
turn, however, in 1814., he did not bring here £3OOO,
owing, as he reported, to the change of circumstances
from war to peace, and the ravages made by the
fever is that place.
Cross-examined.—Does not think that before Sep-
tember, 1813, the credit of their house was generally
damned ; but he would not swear it was not. On
the 12th of November, on which day he delivered
the order to Aaron, to receive the cotton, he believed
himself solvent, and thought, after paying every one,
still of having a surplus; had stated to Mr. Aaron,
that he had expectation of large remittances.
Mr. Magnus was a partner in the house of Gar-
hind, Magnus, and Benjamin. Was present in 1813
when the cotton was sold by Aaron to Ainsworth,
Benjamin was not at this time in England ; but, on
his return, witness informed him how the cotton had
been disposed of, and he did not appear to be at all
dissatisfied. Mr. Garland and Mr. Benjamin, after-
wards had some differences, but witness could not
say on what subject.
The Broker who sold the cotton stated, that he
had a commission of one half per cent. for the sale,
one half per cent, for guaranteeing payment, and he
believed he afterwards discounted sonic of the bills.

Mr. SCARLET? replied; and the CHIEF JUSTICE
summed up. The Jury, without hesitation, found
for the plaintiff—Damages £4l42—Costs 40.