Star.
London, England, 1825-04-12 00:00:00

LAW RBPOR r.

COURT OF CHANCERY, APRIL it.
FACNtLEROY's BANKRUPTCY.
The SOLICITOR-GENERAL stated this svgs a petition
in the matter of Marsh and Co., which his Lordship
had permitted to come on to-day, in order that the im-
portant question it involved might be disc us:ed, and the
principle upon which it wits to lye decided might be
fully considered, and the decision become a sure pre-
cedent to be followed in similar cases. It was the pe.
Mum of Messrs.- Stone and others, joint trustees with
the late Mr. Fauntlerov, of a sum of money which had
been invested in the Bank of England, amounting to
16,000/ ; and the petition prayed that the petitioners
might he allowed to prove the sum of 16.0001. under
the commission issued against Marsh and Co. The
Learned Solicitor• General proceeded to state the case,
of which this is the outline. Tee petitioners and Mr.
Fauntleroy were trustees- of the property in question,
and in the month of May, 1819, a power of attorney,
purporting to be the power of all the trustees, was
given to Mr. Stracey, of the firm of Marsh and Co,
authorising him to sell out 6,00 a, a part and portion
of the money of which Mr. Fauntleroy, his partner,
was aco trustee. The transaction was managed in the
usual way, through the medium of Mr. Spurling, the
broker, who transferred the property of the bank, and
paid the proceeds into the house of Martin and C the
bankers in Lombard-street, who acted with and as the
events of the bank of Marsh and Co. in Bet ners-sti eet.
Through nit the whole of the transaction it was ad-
mitted tnat Mr. Stracey, who was the instrument, had
DO suspicion that the poster of attorney under which he
was acting had been forged by his partner, Mr. Folio-
leroy. The Learned Solicitor then stated a proceeding
exactly similar in all. its circumstances, with regard to'
the remaining 10,0001. part of the trust money. In
this part of the transaction the person who attended at
the Bank with the power of attorney was Mr. Graham.
He, in like manner, through the agency of Spurling,
the broker, transferred the 10,0001. the whole of which
was in like manner lodged in the hands of Messrs.
Martin and Co. Upon the bankruptcy of Marsh and
Co., and the discovery that the transfer had been made
by means of forged powers of attorney, Stone and his
co-trustees, the petitioners, applied to be at liberty to
prove the sum of 16,0001. under the commission; but
the Commissioners refused to admit the proof, upon the
I ground that the transfers of the stock not having been
effected by legal instruments, but on the contrary, by
instruments which turned out to be forgeries, the stock
remained for the original proprietors, who consequently
bad lost nothicg, or who, it they had lost any thing.
bad their remedy against the Bank of England.—The
Learned Solicitor said he understood that the resistance
to the petitioners' claim to prove their debt under the
commission, was founded upon the doctrine-laid down
by the Chief Justice of the Common Pleas, in a crbe of
"Davis v. the Bank of England." That case he had
not read, and therefore he could not conceive upon
what principle it had been determined, that a banking-
house, who had received the actual hard money belong.
ing to other persons, were not to be called upon to
make a restitution, merely because they might have
been themselves divested of the property by their negli-
zence or the criminality of one of the partners. In
ilia present case the firm of Marsh and Co. had had the
touch and grasp of this physical substance—the 16,0001.
in hard money; they had had the corporeal touch and
possession of it; and yet he was to be told that, by the
effect of the decision of the Common Pleas, that touch
or grasp was to be considered as aerial and fugitive,
operating no liability upon the firm of the bankers so
possessing themselves of this money by the fraud and
forgery of their partner, and was to confer on the par-
ties, who had been defrauded, no right to claim or re-
cover their property of the partnership by whom it had
been possessed, or, in the event of their bankruptcy,
to prove the amount under their commission. The
Learned Solicitor proceeded to state that the facts con-
tained in the petition were fully supported by affidavits.
Mr. HEALD here interrupted, by stating that the case
was not supported by any affidavits whatever; there
were nothing but the examinations of certain persons
taken before the Commissioners, and he insisted that be-
fore this case could be allowed to proceed, those exa-
minations ought to be turned into the shape of affidavits.
file LORD CHANCELLOR cbserved, that if it should
be found necessary to put the examinations into the
form of affidavits, it might be done hereafter ; but for the
present the better way would be to let the case proceed.
The SOLICITOR-GENERAL argued, that notwithstand-
ing the liability of the Bank of England to make good
this stock, still the petitioners had a right to prove dm
amount as a debt against the estate of Marsh arid Co.
Mr. House followed on the same side, observing,
that divesting this case of that sort cf importance which
was attached to the name of an unfortunate individual,

it was but a simple question of appeal to his L'irdship
from the judgment of the Commissioners, who had re-
fused to let them prove under the bankrupts estate.—
The Learned Gentl: man restated the facts, and sup-
ported by additional arguments those which had been
adduced by the Solicitor-General, for the purpose of
skewing that this was a debt provable under Marsh's
estate, notwithstanding the liability of the Bank of Eng-
land to replace the money transferred
,by means of
forged instruments.
Mr. Serjeant BOSASIQUET said, that as representing
the interests of the Bank of England, it was his duty to
insist upon the rights of the petitioners to prove their
debts ; he was ready to admit that the proof was in-
tended to be made for the benefit of the Bank of
England, who had undertaken to replace the money,
and who, by means of such proof, sought to obtain
some indemnity for the losses they had sustaiaed by
the transactions of the late Mr. Fauntleroy. The Learned
Serisant applied himself to answering an objection,
which he understood was intended to be brought for-
ward. The objection was, that as the claim on the
parts of the petitioners arose out of a criminal and felo-
nious transaction, the Court could not interfere. To
spew the instability of this objection, lie should cite a
number of cases, shewing that the right of property
was not taken away by the commission of a felony, but
that,"on the contrary, the party robbed might at any
time reclaim and take possession of his stolen property
or goods wherever he found them, or might maintain
an action of (rover against the person uojustly
raining them. With reference to this point, many cases
were cited from Rolls. Abr., Your, Hall's Pleas of the
Crown, Saunders, Noyes, Sir William Junes, and via-
rious ancient Reporters, maintaining the principle at
considerable length, and with great skill and abili.y as
a Lawyer.
Mr. PiIILLIMOSIS and Mr. BICICERSTETIf were heard
on the same side.
Mr. HiaLri addtes* the Court on behalf of the