Star.
London, England, 1805-01-18 00:00:00

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„Li

1.4.1' INTELLIGENCE.

COURT OF CHANCERY, JAN. L 7.

CHAMEHIRS V. COLLINS.
?Tr. RoMuLLY for the Plaintiff, laid, this was an
atiVicatinn to the Court to remove a father frnm the
Late and management of his own children. 'The de-
fence was of fuch a nature, that it Would be ex-
_ .

tremelv improper far public invelllgation ; be nun-
0, therefore, his Lord'hip, under the peculiar cir-
cumflauces, would candefcend to infr•eft the affida-

vits in private ; and the matter might then, by per-
million, Rand over to Saturday.or Monday next.
The ATTORNEY-GENERAL and Mr. FONEILANC,yt,
on the part of the defendant, were AiTeelly fengible
of the proprieiy of what Mr. ROM?LLT had recom-
mended, and Lis Lordthip fhould not only be pro.
aided with the affidavits on both fides, but with a
variety of letters alluded to in thole documents.
Loan CHaricattoa.-4, If you will fend the pa-
pers you have mentioned to tne, Pealed tiP,
_I will
take care of and attend to them; and on Monday
the fubjed may be mentioned again."
La /hide fit ;min watt.
This was a petition in the bankruptcy of Mr. John
Dixon. The petitioner had formerly lent a confider-
able fum of money to the bankrupt, for which he
had received as a fecurity, the affignment of a por.
'lion of ground in Sr. John's Harbour, Newfound-1
:land, which had been valued as high as the fum of
soool. There was a particular condition, that Go.
vernment fhould have a power of refuming the pof-
feflion of this track ()Hand, whenever it fhould think
it expedient fo to do. At the time of the bankruptcy
of John Dixon, in May Int. a war bad broke out,
' and for the defence of the gland, Government had
availed themfelvis of this right, and occupied the
territory ; in that, in faB, the mortgage became of
f little or no value. Furtunately for Sir John Earner,
his claim wa., at this time, reduced below 50°1.-
IThe elate, thus incumbered, was afierwirds fold at

GAT ra way's C ffee houfe, for 'the trifling firm of 701.
MclTrs. Rumitt.v • and Coax!, on behalf of Sir
John Earner, applied to the Court, that the affignees
n.igh be required to pay to their client the divi-
dends due on his debt, they having difpofed of all
the effects of the bankrrpt, without making the fish-
able referee fur this claim. .The alTrgnees were not.
only informed of the exillence of this debt, but a
long fesies of negociation had taken place, and at
their para. nisi- interceilion, Sir John Earner had mac-
toyed the Pale of the property mortgaged to him. A
dividend was declared in 1803, and the affignees
pretended the petitioner had agreed to take the
(mall confideration of 301. in return for this mort-
gage. If Inch an engagement was ever made, the
affignees had taken no Reps to carry it into deft
until the 26th of April of that year, when they called
upon the Commiffioncrs to declare a final dividend.
The petitioner was inclined to impute no want of
integrity to the affignees, it was fufficient for him to
fix upon them grofi negligence and inattention, with
refpea to the interefts of a creditor; and if this
could be clearly eftablithed, they mutt be rendered
tefponfible.
Mr. RICHARD, for the affignees, Paid, the fimple
queflion in this cafe was, whether his clients mould
pay this demand out of their own effeas ? for their
zeal to fatisfy tl e demands on the elate bad left
none of the effefls of the bankrupt in their hands.
formerly there were five other partners in conflation
with John Dixon, the bankrupt; three of them with
drew, and the ground in Newfoundland was affigned
to the remaining partners, John and William Dixon.
The latter concurred in this amgnment to Sir John
Earner. In 1792 the bankruptcy took place, agd
until rBOO no Reps were taken with regard to Sir
John Earner's claim. In 1801 this petitioner went
to Exeter, where the bankrupt 'elided, and held a
converfeion with Mr. Collins, who was the fur-
viving affi,znee to the elate of John and William
Dixon, and the co-affirees to the elate of John
Dixon. At this interview, it appeared by the affida-
vits, Sir John Earner affented to receive 301. for the
mortgage; to re-align the edam in Newfoundland;
and to prove the furplus of his debt on the elate of
John Dixon. Thus Rood the matter in 1801. In
1803. on the 16+ of April, a final dividend was ad-
vertited in the Gazette, for the 88th of May follow.
ing. On the 26th of the former month, Mr. Short,
(elicitor to the affignees, wrote a letter to Sir John
Earner to the following purport—
" By the coach of to-morrow, we Roll fend yr

the papers in John Dison's bankruptcy, witli a
draft of the affidavit to be (worn to by you, and a
draft of the aft gnment to be executed. There papers
we will thank you to punk, and to tranfmit them
to your folicitor, who, under your infiruaions, will
make fuch alterations, in point of form, as you !hall
think proper. We than remit you the confederation
Rated of 301. and you will fee a dividend in John
Dixon's commiffion advertifed for the loth of May;
we mull therefore requefl of you to return the pa-
pers with all convenient fpeed, &c."
Although Sir John Earner received this letter, and
documents accompanying it, be condefcended to
make no reply whatever. On the toth of May, the
Commiflioners met according to the appointment ;
and at the particular interceffion of the aflignees,
they pofiponed the bufinefs until the 16th of the fame
month. On the former day (the loth) Mr. Collins
wrote to Sir John Earner, expreffing his difappoint-
tricot at the obje& of the meeting being fruftrated by
the receipt of no anfwer, and on the 14th, Sir John
replied in the following terms On the receipt of
your letter and parcel,- 1 fent it to Mr. Arnold, and
defired him to do the needful with it. We neither
of us can aflign the reafon why you fhould expea,
for the paltry confederation of thiry pounds, I fhould
at over to you a property which was efiimated to
vie at sccol. Etc."
Another explanatory letter was alto written by
Meas. Crowder and Co. S'ilicitors to Sir John Ea-
rner. The aft gnees in that cafe had no option,
they were to all in obedience to the commiffioners
the commitlieners ordered a final dividend, and Sir
John Earner fhluld at leaft be thankful to the affig-
nees, that they, for his accommodation, [elicited of
the commifiloners a delay of fix days; that before the
final dividend he might take any fleps he thought
proper for the foliflantihtion of his demand. The
Learned Crainfel lubroineJ to his Lordihip. that this
therefore was a cafe in which it was impoffible, con-
Lt-truly with the wholefonse regulations of the Court,

rune

to render the affirm refponfible, either on the
ground of guilt or negligence.
LORD Citaticit.coa.—" This is a queftion of im•
portanee, WA as the decifion will affetl the parties
on account of the magnitude of the fum, but as it is
connected with the eltabliffied rules and prat:lice of

the Court. The propofition to me maintained on Sir
John Earner's petition is this, that, the atlignees
timid pay out of their own pockets, on the ground
of'grofs negligence, what they had omitted to re.
ferve out of the effeas of the bankrupt. It ought to
he a very ltrong cafe indeed, in which anigne
should be made by this Court chargeable..while they
were ailing in obedience to the Comnisffloners.—
What is the complaint in thib cafe ? It is, that they
have parted with the money entruiled to them too
loon. In nine cafes out of ten that come before us

here, the objeetion is, not that they part with the
money 'too loon, but they will not part with it
at all. If the allignees are not refronfihle, the pe-
tition would imply, that the commilEoners ought to
be liable. I will not fay that the latter can in no
cafe be placed inlhs is painful &nation, but it is with

very great difficulty that I fhoold fuggeft a cafe in
which thcy ought to fullain this burthen. Sir John

Earner, v:rithoUt all quetlion, wa► the mortgagee of
the Am, and the property was under fuch peculiar

. . .
circumstances,. that it might be worthlefs, or of very
contiderable vuhte. In 1792 the mortgager became
banlct apt, and then it was in the power of Sir John
Earner w have applied to the Court to have the

pledge fold. and to be permitted to prove the refi-
due of his claim on the died: of the bankrupt, but
he kerns- to have litiened to piopofitions made by
the allignees, and there appears to have been fo
many tranfaftions between the parties, that Sir John
Eraser might haie prudently confided, fo far, on
friendly or official communication, that it was not
necelfary he ihould be placed in the fituation of
a common creditor, and confult the Gazette on the

Oppropriati3n of the bankrupt's effeas. After this,
in the year ;Sol, an agreement was talked of be-
tween the affignees und Sir John Earner, not very
intelligible in the terms of it, and whether binding
or not, Ido not determine. Under this agreement
it is contended, that the petitioner was to relign
his pledge, for the Thin of 301. and that he fhould
be confidered a creditor for what fhould remain
due to him, after giving 'credit for that fum.—
So long as the Allignees had this fpecies of in-
tercourfe, it became them to give notice to Sir
John Earner of the final dividend. In this Rate the
matter retied until the month of April, 1803 ; and
here I ought to fay, that the affignees aced fome-
what hall'iy in advertifing a final dividend, without
previous notice to Sir John tamer." (His Lordfhip
here recited the fa&s we have Rated refpeaing the
communications of Sir John Earner with the affig-
nees, between the 16th of April and the Loth of May,
and then proceeded :) " The petitioner receives this
information, and de flab, lays nothing by way of an-
fwer even on the loth of May. On that day the
eommillioners meet, and the affignees requett them
to poßpone the dividend during an interval of fix
days, as Sir John Earner is wholly ffient on the fub•
jea of his demand. Then Sir John Earner is in-
formed of the meeting of the Commiffioners, and
that no bufinefs had been ttanfaaed in confeqnence
of his taciturnity. This produces the reply in the
letter which has been read to the Court. I am flir-
prifed, if the commiffioners had the whole matter
(fated for their confideration, they did not reafon in
this way :—He is bound or not by his agreement.—
If bound, he has a right to a dividend upon his
claim, deduaing the 301. paid to him. If potbound
to his agreement, he has a right to the ellate in New-
foundland, and to prove for the refidue of his claim
not paid off by the fate of fuch elate. It is cer•
tainly a mifcarriage in them. if they were fo fully
informed, that they did not bold fomething in hand
to attfwer to the demand of this petitioner."
(His Lordfhip then entered into feveral critical
oblervations on the relative fituation of commiffiori-
err and affignees, and concluded with direaing, that
a balance of Isl. in the hands of the affignees, Rtould
be paid to Sir John Earner ; further, any rents they
had received on the eflate in Newfoundland ; referving
to themfelves, however, all juft allowances. It was
then referred to the Commiffioners, to certify to the
Chancellor what information they had from the af-
fignees, on which their order for the final dividend
for the eßate was founded.)
22 PARTE 11111/2 AND OTHIRL

This was a petition to expunge the debt of Mr.
Porter, in the bankruptcy of J. Sheriff, under the
following circumtlances. Two bills were drawn, the
one for 1431. the other for 5491. payable to Bucha-
nan. Thefe bills were received by the latter, from
the bankrupt, were dated from the ifiand of Jerfey,
and were en unitamped paper. The holder should
not be permitted to prove them on the eiate, on the
ground, that although they were dated from Jerfey,
they were, in fait, drawn in a coffeehoufe in Lon-
don, and were unprovided with the legal (lamps.
Mr. RosIILLY, for the petitioners, Rated they were
in the fituation of affignees, it was therefore their
duty to prevent any improper charge upon the eflates
with which they were entrulled, and continently
with this duty they applied that the 'fleas fhould
not, under the prefent circumftances, be rendered
liable.
Mr. Picocrr, for Mr. Porter, Paid, the bills in
guellion were bought of Mr. Buchanan by his client :
whatever might be the nature of the tranfaftion be-
tween Buchanan, the payee, and the bankrupt, there
was no illegality in the bufinefs, as far as concerned
Mr. Porter, who gave the full confederation for the
bills, and prefumed they were drawn en the Wand
from which they were dated. So far from any fraud
being fufpefted by the bankrupt, the latter had pro-
cured the fignature of Mr. Porter to a truft deed for
thofe very bills, previous to his bankruptcy.
The Loan CHADIC, LLoa Paid—" Perhaps the cam-
miffioners have decided a little too haftily, if what
is timed in the petition be corral. The Sheriff offered
to thew his books to explain the circumftances re-
fpeifting the bills, and they did not receive this evi•
dente. If t thefe were acenmroodativn-bills, you
might, I think, maintain an at tion upon money paid
Buchanan for the ufe of the Sheriff. Why do you
not try the men in thefe cafes ? If a man brings me a
bill dated in Jerfey, knowing it to be drawn in Lon-
don, why fbould you not indiift hist for it ? Will
you, Mr. Piggott, have it fent back for the commit
fioners to review the proof, or will you be put to
bring your anion ?"

Mr. Picot—" Will your LordiVp let it Iland
till Monday. that I,may confult my client in the
mean time ?" .

Loan CIIaNCELLOR—" Be it co. lam a very bad
criminal lawyer ; yet I doubt nm, if a man brought
to me a bill, purporting to he drawn in Jerfey, and
acquired from me by thefe means the amount, he
might be indicted for it."