The Liverpool Standard and General Commercial Advertiser.
Liverpool, Merseyside, England, 1841-02-05 00:00:00

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be tried

1 on the merits

COURT OF REVIEW.-WESTMINSTER, FEB. 1.
EX PARTE HUGH MACKAY, FOR THE LIVERPOOL ALBION

BANK, IN RE

lAM WRIGHT, A BANKRUPT

This was an application for an order to refer to the com-
missioner the taking of an account between the petitioner
and the bankrupt, as to how much should be found due to
the Liverpool Albion Bank, with directions for the sale of
securities, and proof for the difference. The bankrupt, in
18:0, was indebted to the bank for considerable sums, and
on asking further advances, handed over certain securities on
Irish property, deposited with him by Messrs. Macheath and
Mackay, for advances and liabilities, amounting to £15,000.
The petitioner asked for a sale of the mortgaged debt, with

_
proof for the difference. The respondents urged that the
case ought to have been taken in the first instance before the
commissioner, but were prepared, notwithstanding, to meet
the case upon the merits, by alleging, in objection, the proxi-
mity of the deposit of the security to the act of bankruptcy,
a distance of only six days, which suggested a probability of
fraudulent preference ; as also that the property was within
the clause relating to order and disposition, that the debt was
not ascertained, and that the party was not entitled to ask

. _
for liberty to prove.
Messrs. Swanston and Rolt supported the petition; Messrs
Bethell and Anderdon appeared for the assignees a's respon.

Sir J. CROSS said, the objection relative to a previous ap-
plication to the commissioner, was unavailable when the re-
spondents came well prepared to meet the case on the merits.
As regarded the objection relative to order and disposition,
that principle was clearly inapplicable ; and as to the ques-
tion relative to the date of the act of bankruptcy, and the
suggestion of fraudulent preference, there was no evidence
to throw a shadow of doubt upon the case. The security,
however, could not be sold to advantage without ascertaining
the debts due from the respective firms. It would, therefore,
be better to refer the matter to the commissioner, with a
view to an inquiry into the unascertained debts, and a subse-
quent sale of the security. Perhaps the order had better be
for taking an account of the debts between the two bankrupt
firms, that due from Macbeath and Co. to the bankrupt, and
from the latter to the Liverpool Banking Company, with
liberty to enter a claim for the amount due. If the debt due
from Messrs. Macbeath and Co. could be discovered, the sale
of the security might be effected forthwith ; if otherwise, the
commissioner would be at liberty to state special circum-
stances, and either party might apply thereon.

COURT OF CHANCERY

RAWSON'

SAMUEL

The Lord Chancellor delivered judgment in this case, and
said, that the mercantile arrangement between the parties was
to the following effect :—Samuel was to send out goods to
Canton, Singapore, and other places, which the plaintiff was
to sell, and remit the proceeds to provide for bills to be drawn
against them. The plaintiff having become largely in ad-
vance, in consequence of the amount of the bills drawn by
Samuel, refused to accept any more, whereupon Samuel
brought an action for breach of contract in not accepting.
The Vice-chancellor granted an injunction to restrain execu-
tion in the action until an account should be taken between
the parties, in order that the damages, if any were recovered,
might be set off against the balance, which Mr. Rawson al-
leged would be found due to him upon the account. His
lordship said, he could not assume the statement of the plain-
tiff in his own favour, and if the defendant should be right,
it would be unjust to restrain him from receiving the damages
he might obtain in the action, until the account were taken.
This was not a case in which the doctrine of equitable set-off
applied ; the account would not be taken in respect of mutual
transactions, but the action was for a distinct matter, a breach
of contract. A mere cross demand did not necessarily raise a
case of equitable set-off; but here there was not even cross

demands, for the court could not assume that the balanct., of
account would be in the plaintiff's favour, and damages would
_ _

not give Samuel compensation for the delay, if he should ulti-
mately be found right. In the authorities cited, the bill im-
peached the legal demand. The Lord Chancellor said, upon
the whole, he was of opinion there was no ground for the in-
junction, and therefore the order of the Vice-chancellor must
be discharged, and the present motion to continue the injunc-
tion dismissed with costs.

His Lordship rose about half-Fast two o'clock

CENTRAL CRIMINAL COURT-WEDNESDAY

(Before Mr. Justice Williams and Mr. Justice Coltman.)
ALLEGED FRAUD ON INSURANCE COMPANIES—CASE
OF THE DRYAD.—Michael Shaw Stewart Wallace, and Pat-
rick Maxwell Stewart Wallace, the individuals charged with
defrauding insurance companies under the circumstances that
have recently been laid before the public, were placed at the
bar this morning. ,

The Attorney-General moved the court to postpone the
trial.

Mr. Phillips said it must be understood that he only coil
sented to a postponement till the next session.

was al.

le required, and

the prisoners were then removed,