Star.
London, England, 1826-06-03 00:00:00

SCOTLAND.

COURT OF SESSION—FIRST DIVISION.
EAST LOTHIAN BANK.
W. PAUL AND OTHERS, SUSPENDS'S, D. A. TAYLOR AND
OTHERS, CHASCSRS.
In 1810, " the East Lothian ILinkiog Company"
was established. By the contract of copartnery, the su-
perintendence of affairs was entrusted to Directors. They
had the " ordering, directing, and management of the
Company's affairs, and the appointment of the officers
by whom the same is to be conducted, and are to give
the necessary directions to the officers to be employed
by them," with " power to suspend or dismiss such
officers." The Directors and officers were taken,
bound to obey the instruction and resolutions of gene-
ral meetings.
W. Borthwick was appointed cashier, and found
caution fur his intromissions. For a number of years
the affairs of the bank were in a prosperous situation;
but Borthwick, without the knowledge of the Directors,
embarked in trade. He became a latent partner of a
mercantile firm in Scotland, and of another in Prussia.
In April, 1822, he absconded, and it was di c,)vered
that he bad abstracted the funds of the Bank to the ex-

tent of 100,000/.
Messrs. Geo. 3. Bell and James Monerieff advised " that it was
not expedient to dissolve the Company ;" but that it should "con.l
dime to subsist to the elect of winding op the affairs."
In May, 1822, at a general meeting of the Company,
-resolutions in terms of thk opinion were adopted. A
Committee of Management, along with the Directors,
were appointed to superintend the winding up of the
Company's affairs. In order that the management
" shall henceforth be vested in a professional accouatant,
with the full powers of a trustee acting by the general
authority, for the interest of all concerned," Mr. Paul,
being recommended for that trust, was ;appointed
trustee for behoof of the Company. And " to vest the
whole powers of management conferred by the contract
in one person, the Directors and Committee of Manage-
ment" were " appointed to nominate Mr. Paul to be
manager and cashier," and to grant him ample powers
for the winding up the affairs, " with concurrence of
the Directors and Committee of Management." This
commission was accordingly gran:ed.
The mercantile firm of which Borthwick was a part-
ner was sequestrated; and his friends having signified
their intention to rifer a composition to the creditors, a
Committee of the Bank was appointed, at a general
meeting in September 1828, to negotiate with them.—
This appointment was acquiesced in at several subse-
quent general meetings ; and on the 7tb of May, 182$,
it was unanimously agreed that this Committee should
be empowered to accept the composition. At another
general meeting, September, 1825, the proprietors, who
held a majority of shares of the stock, again approved
of the same measure, and also that 1,5001. should be
, deposited, on certain conditions, to enable the books of
the bankrupts in Prussia to be recovered, and sent to
'this country : a minority voted against these resolutions.
. The minority, and Mr. Paul, the trustee, presented a
bill of suspension and interdict, in which they stated that
it was their intention to institute a claim against the
Bank Directors, on account of the inalversations of
Borthwick, and prayed fur suspension of all the mi-
nutes, conferring the powers
.ou the Committi e, and
interdicting them from compounding the claims against
the bankrupts. Lord Balgray (7th Dec. 1825) having
advised the b►ll and answers, was " of opinion, 1 mo,
That the painters of the East Lothian Banking Company
having with great propriety declated that the com-
pany shall subsist to the effect of winding up the con-
cern, they must still be regulated in their internal
acting by the mints of their contract. 2do, That the
cashier and manager was nothing but a servant
of the company, bound to obey their instructions,
and that the appointment or commission of Mr.
Paul, as trustee, in addition to that office, was qualified
in such a way, as to oblige him to obey the orders of
his constituents, consistent always with the terms and
tenor of the conti act of copartnery; and that he has no
power to exercise his own individual discretion, as trustee,
in that way or manner which a trustee with undiminished
powers is entitled to do on his own responsibility, for be-
hoof of each and all concerned. 3tio, That the unani-
mous resolutions of the partners, especially such as were
acquiesced in by Mr. l'aul, must regulate the rights of
the parties, particitlaily in a summary discussion of this
nature. 4to, That the Directors of an establishment of this
kind are only liable to then partners for ordinary dili-
gence; andany claim against them is not relevant unless
especial fraud or culpa luta can be alleged ; all of which
must be established in another shape or form. sto, That
the partneri had the power to name assignees or com-
missioners, to manage their claims in the sequestrations
• of Bruce, Bot the ick, and Company, and others; and
whatever steps may be taken in these• sequestrations
cannot here be competently judged of, but must be
decided when they occur, such assignees and commis-
sioners being necessarily responsible for their conduct.
6to, That sdfaras any opinion can be ventured to be
formed at present, from such complicated concerns,
it seems to be expedient that some arrangement should
be made as speedily as possible with Bruce, Borthwick,
and Company, and that such measure is for the interest
of all concerned. Lastly, The Lord Ordinary is of
opinion, that it is Mealy expedient for the parties'
that the points in controvesy between them, and agi-
tated in this bill and answers, should be decided as
quickly as the forms will permit ; and in respect that
this cannot be attained, either by passing or refusing
the bill, appoints the parties to prepare cases, and to
box them by the first sedurunt day of January neat, in
• orLer that the same may be reported to the Court."
The suspenders, in their case, pleaded-1. That the
Company had ctai.ed to catty on business, and wasj

dissolved; that all the powers of the partners were
vested in Mr. Paul, as trustee ; and that unless all the
partners had, concurred, the majority had no power to
appoint commissioners to negocia.te the composition.
2. The claims on the bankrupts are vested in Mr. Paul,
as trustee. 3. The proposed companion was inex•
pedient, and would be injurious. 4. It would be a
direct violation of the Bankrupt Statute, in respect that
the bankrupt in Prussia had not been examined. 5.
The resolutions in the minutes of the Company were
illegal, no previous notice of them having been given
in terms of the contract. And of these minutes a sum-
mons of reduction had been raised and called in Court,
at the instance of the suspenders.
Tke chargers maintained the different prepositions in the Lord
Ordinary's interlocutor, and referred to the case of Bow v. Pater-
son, 6th December, 1625. 4 Skaw's Rep. 276.
On advising these cases (13th May) the Lord President, and
Lords Demand, Craigist, and Osiiies, unanimously concurred in
the opinion of Lord Balgray, and refused the bill of suspension and
interdict.

LAW REPORT.

COURT OF CHANCERY, .lusc 2.

EZ•PARI'E ROBERTS, IN THE MATTER OF ROBERTS, A

BANKRUPT.

Mr. HORNE stated, 'that he had a case to bring before
the Court, requiring, most imperatively, its speedy at-
tention, of the following nature :—The petitioner had
been made a bankrupt by a species of legerdemain, and
deprived of all his property, in a manner that had never
occurred to the Learned Counsel before. The poor
bankrupt (as he had now been made) had been for a
long time the coachman of the late Earl of Craven, and
having by care saved a little money, he, with hii wile,
as persons in that situation often do, got into a public-
house, at Nettleby,. Oxfordshire, in the beginning of
January last, and before the expiration of the s !me
month of January, he was told that he was a bankrupt !
How, or why, he could not ascertain ; he swore there
was no petitioning creditor's debt, nor anything like it,
and the present application was for an early day to be
.named to hear his petition to supersede the Commission.
His LOILDWUP SSW be would hear it whatever Mr. Honw pleased.

Mr. Holum then mentioned to-morrow week for its being pe-
remptorily heard.
IN THE CASH OP SIR GREGORY PAGE.TURNIR.
When his LORDSHIP came into Court, he said he
would soon have to go out again to see Sir Gregory;
but until Sir Gregory arrived, he would read over the
Judge's notes, on an application for a new trial. He did
so, and then went intohis room, where Sir Gregory was,
at eleven o'clock.
His LOIUMBIP immediately sent one of his attendants, to request
the Counsel in the matter to go into the room also.
Mr. HZALD.—What, Counsel! does his Lordship wish Counsel
to attend ?—Attendant.—Yes, Sir. 7
Mr. Ilia us.—Has his Lordship distinctly said so? Attendant—
He has sent me for you.
Mr. fltaus—Very well; we must go, I suppose. (Mr. Heald
rose and walked quietly towards his Lordship's room door, and
then suddenly stopping, said)No, I shan't,—l shan't go into the
room: I don't think it's safe—( Much laughtet).—Are the Doctors,
Ste. all there?—(Continued laughter, and the other Counsel and
Atternies going in).—Well, I won't p—l think there's danger,
that's an end to it.

His LORDSHIP returned in an hour and a half, but
went on with other business, without stating anything
relative to Sir Gregory's case.

COURT OF KING'S BENCH, Jtngs 2.
FROST V. ROLLAND AND OTHERS.

This was an action brought by the Commissioners
for paving and lighting a division of the parish of St.
Pancras, to recover from the Assignees of Marsh,
Stracey, and Co. a sum of 1,07 W. which had been placed
in their hands as bankers to the plaintiffs. It was tried
in Trinity Term, 1825, when the Jury gave a verdict
for the plaintiffs, subject to the opinion of the Court.
On a special case, by a local Act, 12th George 111. it
was enacted that if any of the Collectors, Treasurers, or
other persons, died in debt to the Commissioners, or be-
came bankrupts, the executors or assignees of such per-
son should pay the full amount of what was due to such
Commissioners before any other creditors; or, if there
were not assets enough to pay the entire, then as far as
such assets would extend. The Act of 55 Gen. 111. was a
general Act on the same subject. The points for the
opinion of the Court were-Ist, Whether the Acts of
Parliament could apply to bankers in this instance, col-
lectors, treasurers, and other persons, being the only
words used ; aid-2dly, Whether Marsh, Stracey, and
Co. could be considered bankers to the Commissioners,
without a re-appointment, as Sir Jdmes Sibbald, who
had been one of the firm at the time of the original ap-
pointment, died before the bankruptcy.
The Loao Cum Jaynes, in delivering the opinion of the Court,
said, that however bard it might be on the creditors of the above
arm, the plaintiff was in law entkled to recover the entire amount
of his claim before any other creditor could receive a farthing.