The Statesman.
London, England, 1818-02-16 00:00:00

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:

COURT OF KING'S BENCH.
1111eCirle AIM ovum, ASSIGNEES OF (MAT) 0. ELE-
SIERT, GENT. (one, &e.)
• This was an action to recover a considerable sum,
which the Defendant had dream (by checks) from
the Alton ,Bank, the day before it stopped paymetii,
le November, 1815; a nd•-rthe cause came on 'to he
cried before a Special Jury, at the lest Hatits.Assizes,
,when a verdict was given for the Plaintiffs, to the
amount of the same drawn, on the presumption that
a fraudulent preference had been given by the.
bankrupt to.the Defendant en the eve of bankruptcy..
On the Oth of _November the Court of King's
Benchrai moved, on behalf of the Defendant, fora
sew trial, on tasogrounds : first that the verdict was
'Alyea against the weight of evidence, and that there
vas not any proof of 4 fraudulent preference by the
bankrupt ; secondly, that the Defendant having cash
is ihe bankrupt's bands at the time of paying sloe
checks, that was of itself E. sufficient Moues by
',ray of Setoff), on the authority of the Eased Smith
med Hodson, 4. T.,R. *ll.
The facts which appeared in evidence at the trial
_were stated to the Court by the DefeSdant's Coon-
, when
. .•
M. Alsace BATLEY observed upon the circum-
.
stance, of all the checks having been sent in before
four o'clock on the day on which Limy were paid, as
Showing that they were presented in the usual course
of business ; and
Lord Kt.LENnottottss said, that there did not ap-
pear to be any any act en the part .of the bankrupt,
that could be considered as amounting to a fraudulent
preference. His Lordship, therefore, and the rest of
the Court, granted a Rule Nisi, for setting aside the
verdict, and for a new trial, on. both the above
grounds.
On the SU of January the rule came on to be
argued, and the Judge's Report of the evidence was
read. •
Mr. Serjeant PELL, the Plaintiff's Coousel, was
proceeding to address himself to the first point on
which the rule had been obtained, and adverted to
the circumstance of the checks having been-drawn (as
he assumed) in feigned names-and antedated, but was
interrupted by
Mr. Justice BAYLEY, who observed that drawing
the checks in this mariner was probably to prevent
the bankrupt from taking alarm at the Defendant's
drawing so largely, and rather disproved, than proved,
the DePtitiant's having preciously concerted with the
liarikrupt to obtain payment of the checks, for if he
bad so concerted the matter no such secrecy or con-
trivarice could ba necessary. He asked Mr. Serjeant
Pell, whether his Clients (the Plaintiffs) ought not
to have proved at the trial that it was by the bank-
rupt's fraudulent preference that the money was ob-
tained
Lord ELLEiseortocGn.---Mrawing the checks with
different dates, and tor different sums, in different
oames, when the Defendant had a right to draw for
the whole in one check, looks es if Mr. Clement (the
Defendant) feared that the bankrupt would not pay,
11* had drawn for the whole at one time, payable
to one person. His Lordship added, that as to
fraudulent preference he had cerefolly attended to
the reading of the Learned Judge's Report of the evi-
dence givers at the trial, but could not discover any
thing to fix the bankrupt with any knowledge of any
part of the trensaetiou to make it a preference of any
butt by him. • •
Air. Justice BAYLEY CO Mr. Serjeant Pell).—
Thefe is conjecture only on your side against positive
evidence, in a case where the onus of proof lies ou
you.
Mr. Justice ABBOT.—Tbe circumstance of the_
checks being drawn in this manner looks as if the.
Defendant was afraid to draw for the whole atonce,:
and you only prove an act of bankruptcy the dap.
after the payment, which affords no evidence of
fraudulent preference of the bankrupt on the preced-
ing day.
The Coulee therefore all concurred in making the
rule absolute for setting aside the verdict, and for a
new trial without ring into the point of set oil.

Liir:77+77-4314-LIG-SNGE.

I,

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I

FEBRUARY U.
VP,KE V. LOWE.
Mr. Es,isr.tsts opened the pleadings in this case,
and stated that it was an action for goods sold and
delivered. The Defendant had pleaded her in-
fancy. The Plain: ill' replied, that the articles sup-
plied to the Defendant, were suited to her condition.
'Chia the Defendant denied, and to this there was a
rejoinder, and opts this issue was joined.
Mr. 'format; addressed the Jo':, and stated the
circumstances noder w,tich the Bettors was brought.
lie said, that he was exceedingly sorry his Lordship
inn the Jury were called upon to try this cause; it
Ras one of those cases, which, its his. opinion, had
much better have been looked into by spine Gentle-
men out of Court. In the course of the enquiry, he
feared it would be necessary to introduce some names,
as well as to advert to some matters, which he
should have thought it desirable to suppress. The
parties, however, knew their owls interest best; he
had a duty to perform to his Client, and if he
should have occasion to make painful eaposures, the
fault would nut rest with him. The Plaintiff was a
Lady who carried on the busioess of a dress-maker
and baby linen-maker, In Orford-street, and the.
present actien was brooght by her to recover from
the Defendant Susauttab Lowe, a bill for articles of
dress delivered to her, amounting to 411. 6s. 4d.—
Every article specified in the bill he should prove had
been delivered to the Plaintiff. The answer, which she,
hod m,de to the dereand. for payment the Jury bola,
Lear(' from the openiug of his friend, Mr. tlspitsasse,•
.
namely, that she was an infant. To this there erase
replication on the part of the Plaiotiff, that the things_
with which Al :had been supPllid were necessaries
and suitable to the condition of life in which she,
lived. Haihig stated who the-Plaintiff
. was, it was
now bis Anti to introduce to-ihe notice of the Jury
the lieftndriet. She was a young Jady, living in a
of some censequenceinwl size in Manchester.
st rOt ; keeping In equip* and five or six servants.
t'he:iwas introduced by bqr mother to the Plaintiff
abotit the begiuming of April last. Subsequent to this
time ike articles ennasertiled in the bill which .would
he produced were furnished to the Defendant, many
re them with the' knhledge . of. bee mother, who,
be st.ould prose, rejected sane things as too inferior