Insolvent Debtors' Court,...
The Times, 1824-12-09T00:00:00

fitis case occupieto tne uourt aufting the whole of to-day. In the month of June, 1823, the insolvent, who is one of the electors of the borough of CaTnelford, in the coun-y of Cornwall, came up to be heard on his petition to be discharged. He was opposed by Mr. POLLOCK, on behalf of a creditor nametl Aloorhouse, and remanded by the Court for six montths from the date of his petition for a frau- l-alent assignment of his property to a MlIr. Avery ahert7y before he went to prison. On the 5th of August last, Mr. HEATH obtained a rule Nin on behalf of the assignee, calling on the insolvent to show cause why he should not submit to a rehearing of his case, on the ground ef conecalnment of propeitv. On the 16th of November, Ar. BA RRY, having previously obtained an enlargement of the rule, showed cause; and after a long diseussion between hitn and Mr. HEATH oen the affidavits on both sides, the rule was made absolute. The principal charge against the infolvent was, that the assignment of certain mills and land to M2r. Avery was not bonaflde, but colour- able, the property having continued, in point of fact, in theinsolvent's possession. In pursuance of the abave rule, the insolvent now ap. peared to be re-exarined. He was opposed by Dir. HEATH, who t'ormerly supported him, and supported by OLLr. PoLrOCK (who for- merly opposed him) and by MIr. BARRY. The witnesses on both sides were ordere4 out of court. Richard Gayer, the insolvent, examined bv Mr. NiZATH.-The Kenningstock Milis, were fermerly in my possession. In my ba- lance sheet I have charged myself with 2001. received frotn Mr. Ave- ry for my assignment to him of those mills. fe did not pay me the 2001. in cash. I owed him at the time 2971. 'Ihe assign. nient was executed about the beginning of A pril, 1823. 1 recdered in discharge of my hail on the 23d of that month. I cannot undertake to swear that that property is now Mlr. Avery's, as he may have disposed of it since. 1 can swear that it was his property under my assignment. I have received rent for the mills since then On Mr. Avery'" nccount. I do not recollect whep I settled Avery's accoInt. l have had no accoant with Avery since I took the bene6t of the act. I gave him an account of the rent r received. I don't recollect exactly when to a day-a week-nor yet a month. I can't say if it was within tho last two months. There was no one preient when I gave it to hinm but Avery and myself. I have no copy of that account. I rmade it out fiom meniory. I have accounted to him for all che money I received for rent; that is, I have sent him on account of it. I'don't recollect how long since. I believe it is net more than two mionthe ago, but I will not swear that it is not nine. I wiU say It was within twelve months. I don't recollect what was the amount of the balance I owed hiM upon. that account. I don't recollect up to what time that account ran. I believe I received no money from Nicholls within the last nine months. I swore an affidavit on the subject on the 28d of September last, but I don't now recollect what money I received from Nicholls. I knew in September, when I made the af- fidavit from Nicholls's statement. I had uo mensorv on the subject then. I copied the account I srvore to from Nicholls's affidavit. I do iaot recollect if I delivered the account to Avery before or aRter that time. Jf I sent Avery a previous account, it was taken fronm Nicholls's statement. The account I sent to Avery must have been made out from memory. I don't recollect having paid Avery any money. I don't think I have. There was a running account between us for many yeats. 1 have kept no account since I rendered in discharKe af rny ball. I don't recollect what I owe Avery now. I cani't say to a pound or two, nor to 101., nor to 151., nor to 501. It is not 1001. It is about 501. or 601. It is for cash lent. I have not forgotten the rent. I look upon the rent as cash I can't say in what books my account with Avery was entered. I lave had no books since I have been out *of business. Iam now out of business. The Darlington Arms Ian is kept by my iather. He does not live there. Ilia daughter is there, and so am I. I de- stroyed my boolks when I gave up business, except one, which has been delivered, to the assignee. I had no other book ot' my own property when I madel out my schedutle. There was one book which was not mnine. It was merely a check on the wag. goner. It was a pass,bqok between my agent and me, which the waggoner camd ad forwards. It was stolen out of tny kitehien. Idon't recollect if it was stolen beforeor after I madeout my schedule. Itwas lorger than the red book which I delivered vhich I Ece in your hand. It was an Inch, or an inch and a hls,1| thick. Mi . Htl1Avu-Wiitt i a pass-6oAo ionger anA thic1ker than your lnsolvnt.-Itw mery a pass-book between the eaent and me. 1 doi3't reclle tthatth were ony other entries in i- uniess of the costomers for fIour. The agent's name is Nottle. I copied Nottle's account from it into the one in your hand. I did not enter it in my schedule, because I did not consider it mypro, perty; and I did not consider it my property because I tbink it ba,d been purchased by Nottle. I kept no account with Avery on my own account since I becaise his rent receiver ; I did oIt my father's account. I don't recollect from where I made. out tbe aco;nt now produced with Nieholl&. Idon't recollect when it wat made out. I tFiakthe writing pa.re was made out before I wetit to prlson, and the pencil part afterwards;. (A long thickbouk produce4 by Mr. Hleath.) Thiat Is the book which was stolen from tykitchen. M Ir. HFATul.-Is this what you call a pass-book ? Why, it is E a reeglla led'ger.' 1to sjeeholls's account; and Nottle's accoutt is herasfat tobe, ~takent fronim stC ok book' to,*bClli .uce.T atis te 'bok 1e Wiggpler b SIit Jtwisest -weit to presoisor since Th last etry'ltsisfjefo Niebelles a ent-dule at'llid5iummer, 1823 I as henin -prison I bellevk-. I do gee .ass:etkiyaet tO>it for he lloingMiehaelnias'rent" I dlid not leak down so far at first. don'r leeolct where 1'r"'w then.,. -icai`t now say-Ibhad the bok n uy ossessionwhtlwas in prison., Ididnsot-put:lt in he cheule beaus I'conxidead that it contained laot'hingilot, entered in t1he red bok I doh't r'ccollect if I hit It when I wen,t to prson.Jame Harey'saccouint in it runs from- Feury to November, 18I *erur 11r. HEATEH.-T1Iat -is not in the -red beok: Acse an k-rntry'i Edward Harmvey's accouint whichi refers to 4rdbk ae59 Whiere Is that red book ? ~ rdbo,pg Insolvent.-It enust be thiat in ydur hatid. Air. HIIATH.-There is no entryJ stp4ge 69 lb this. -look at those receipts, anid tell me if thiey are oi n,yonr wife's bafid;vriting ? Insolveni.-Ican's say if thy nely.wife's hand.writlng.' I'clon'L recollect seeing her wirite. I don't recollect when the words; not recoverable" wercwvritten invariousplacesin the long-booki. I dare say, it was whien I was going to the King's Beachi. I a,somade over my, househioldl pro prty to, Avery, I don't recollect for how mucds. I think it was fbr more than 101.-not a hundred butt I can't say, from 101. to 1001., 1 did not sell the wholp,of it to him. I sold the rest to my fathier. I doni't recollect for how much. (By this time the 11on.rni .s*odoism which pervaded the insolvent's answers began to excite a strong disposition to laughter.amnongs_t life auditor.) The land caled the Hlls was part of the property assigned to Averv for the 2001. It was held, at It. a-year rent, fr"om the 16rd, for a' term of 14 years. It was shortly hr fore I went to prison that Avery told me to act as his agent. I did so. I hiave offered to sell the mills for lOOh on -behalf of Avery. I haid his authority to sell it for what I could. The furniture and mxchinery were indlu(led 'itn the 2001. The mnills anid mill-ground were held at a rent of 351, per ann,um, for 14 yers ti hd sever, or eight acres of coalgD la-Id~ from teeoieofthe parish, which r held froini year to yeAr. I deliver.. el it up tomy fathier. I believe ily t'therlhas the furniture whichrI sold to 4very..- I Weieve he bat soijie Of it; hut I can't say, as I had no privite marks upon it. I don't recollect whien the'furniture was rensoved. I don't rceollect if itwastnakonout through tle'door, or -out through a back window. Ali. HEATH...Perhiaps you "1don't recolleV fI -sptu the chimney ? jfi asptu Insolvent.-If I was not theres. I could not say whether It wasi put up) the chimne or not, I won't sivear I was not there at the tsn)e. I believe I'saw soine of the furniture put out at the window; but I don't recollect. I do-n't recollect sqavingi, "1 Now they may come when they like, I am ready for them."' I will not swearv I did not siay so. Avery lives at Boseastle, five mniles from Camel.. ford. I don't recollect when the verdict was obtAined against me. I don't recollect a man named Inchi taking awaty the furniture In a waggon. I don't recollect a desk handed Otit throsagh a window. I dn't repollept whiere I flirt saw the furniture after my Imprison. ment. Pidward Harvey kept the Daviiitgo.'t.Armis before [ took -it for my father. I believe the furtniture camst bask from Unstastle. Mly fatther does not live at the Darlington Arms: be 4d m~y mnothecr live in a private house. [Shown a getter.) Tle. sig1lature to that leter is pretty like my harnd.wrjting; but can't swear to it. I be- lieve it to be my lpmaf,.writing. The letter was read. It was a proposal to take the brewing uten. sils which Mr. Harvey had for the D)arlington Arms, withouit any mention of thie insolvent's fath;er's name. Johni Inch examinied..... never removedi ary furniture from the insolvent's house. I remember dIriving a waggon. drawn by two 'horses, with nothing in it, to Alr. G-ox's farm. [ brought furnituire hack fromi Boscapstle. The insolvent's father and I[went after it. I brouight It to the insolvenit's own hiouse, next door to his father's, Robert Nicholls sworm..... occupy the mill at Kenningstock, jointly with my father. I received this account from Gayer. Whilsit he was in prison, it was either Petty, the insolVent'S wLfe, or his father, that applied for the rent. He nerer, until the latter end of the month before l~ast, soldi me that the property was his. He applied for rent several times since he left prison and it was only about two months ago when I went to settle with himi that he s-Aid lie had nothing to do with it, it was all MNr. Avery's. He told me in Slay last he was going to let the Hills. Htis father end Ihadsomne talk about taking the Hill whien the insolvent was in prison., Be caRme to sneinMlarch last to ask me to buy his interest in the mill;; and mnihllground, and alto in the Hills. He asked 1001. for it. He did not mention Air. Avery's name on that occasion. He told mne his interest had eight years to run from the preceding Miichaelmas. Cross.examined by Air. POLL.ocK....Tle pencil marksi in the account were madle at my houise in Novemiber, 1823. He called upon me for rent, and I paid himi 51. He took (dovni the accounts from what I told hir.4. I showed him ltis wife'si two receipts for the amount, except two shillings, By the COtsaT.-While the insolvent was in prisoni, neither Avery nor any person on his behalf madle &ny application to mefor rent. Edward Harvey.-1 am a nmaltster. I callcd at the insolvent's nouise two or three wceks 'before hie went to prison. Ho said behand jutst received a letter from Raw in London, apprising hinti that if hle did not get his things out of the way, they would be all seized fn a short tbne. In the evening I called again, and found the dear shut ; but upon leaTning it was 1, tl2ev let me in. I saw themi putting out a large desk, about five feet high, through the back win.- dow. They were packing up the pazlour furniture. He came to my hiouse afterwards, anid said-"I Now let them come when they like; I ain prepared for them." When he was taking the brewing utenasils for the Darlington Arnts, he never said a word about his father, but when Pearse, his valuator, was payingr me the money for them, he told me to make out the bill in oldl Gay'er's name, Gross.exnamirmd by Air. POLLOcic.-That was before the 6th of Augzust. The insgolvent, examined by SiNr. Po4Lrocx, in explaniation-~The waggon and horses spoken of by Itich were sold by me to Cox. I dtint recollect when they were sold. I don't i'ecollect. for how much ; but it wan for at least double his debt, lie paid m-e the balance in mioney. It was MVr. CockhllI who drew the assiginment to Avery. It was executedI in the presence of Mlary Gregory. Mlr. HEATH addresscd a few observations to the Couirt, but de. clined goinF into the detailo of it, unless his learned friends c-alled witnesses, in whiceh case he would be entitlpJ to the reply., Thomiasr Rickard Avery, examined by Mr. POLLOCK.-I aM Pa merchant, residinig at l3osasatle. I have known the insolvent upwards of 20 years. fHe was considerably in mny debt before lhevwent to prison. He assignedI his interest in the mills to we on the 4th of April, 1823.1 hfave got an agreemient for alease fromwthe landlord. I don't knowi a part of- the property in particular called the Hlills. The insolvent had talked to me of the derangement of his affairs, f'or years past, but I cannot say when hie f&at proposed to transfer this property to me. On my oath it was a bona flda transfer. He received the rents for me. I sold his father the furniture I had pur. chased of the insolvent, with some mDore when he (the father) took the inn. l'is fathier paid mc 01. or 601.for it. Cross-examinetd by Mlr. IIEAT,-I..I wished the insolvent to sell thie property. I have iio otlher pr-operty from him but what Is mcii. tioned in that deeg which I have produced. The Hills wrere not mentioned in the deed. I know he has b'rought me accounts. I have seen one ; but us I lhave 60, 100, or 200 letters to write a.day Ican't attend to or recollect every matter of thisg description. TheI Ibsolvent received all the rent that was due. The profit rent was the dlifference between 351. and 451. or 601. per annumi. I purchiased the furniture at froni 201 to 301. It wvas niovedl to iny house. It lay in mny warehouse for- many months. I don't know it it was unpack-ed. I can't tell if it weint back in the same state, nor who applied for it back. B~y tile COw RTv-I gave iAo notice to Nicholls to pay the rent to the ins-olvent's fathier. I sent the insolvent 351. while lie was in pri- son, on accounit of his wifc's friends. $lhe is snow decad. Shie was my first cousin. Mlary Greglory wats her sister. MIr. POLLOCK, in his a,drm to the Court, contended that the Court had come to a true finding before, whien they remanded the insolvent for a bonoafide transfer of his. property to Mlr. Avery. lie admitted tiiat the Hills were nowv founid siot to be included in the deed; but it was somewhat extraord(inary that this discoverylhad not Beert made befoie. To be sure, when aL generAl electioa was likely to be about to commence, it mighst be dleemied important to shut u one of the 11 or 14 electors of this borough in the Kine's Bench Prison, until the contest was over. It was very possible, how.. ever, that tlse insolvent really thoughit tihat the Hils had been made over with the mills. Thien as to the concealment of the book. No account had been given by the othier side as to when, -where, and bow it had come into their possession. The insolvent bad sworn it was stolen from his kitchen, and that bad not been disproved. The insolvent hiad been already ptusished for an undue transfer of his pro. perty, and the Court wonldInotagain puniish hbun for a minor offence. M r. HEATH replied. It was tlse firat time he had ever heard that because a party bad been punished for one offence, he was therefore not to bepunished for allbi otdiereoffences. He consider. ed an andue prefereucee to be an inferior offence to titat with which the insolvent weas now ebarged-namely. concealment of property; for the former has some spark of honesty about it oni' creditor at least being paid ; whiile the latter has none. The Nourt ha always punished conicealment of books with the greatest severity; and in one, about two Years ago, ffie had remanded a mian for- 1S months. for tearing -a fewv leaves out ot one book; He called uipon ths Court to teach insolvents a lesson, by which they mnight'learn, tha tltiough they might get through once by means of perjury. they were not,these- fore,safe. . is learised friend liad saiid,tbat if he (Mr.. heath) knew the respectaibilityr of Alr. Avery, he would never suspsect hirn for a mo. ment of being capable of committing perjury. HIe did not inxipute perjury to Mlr. Avery ; ht it' he were the first Pr~c I i the land he would. impute this to him-that heo had abetta the insolvent in conemahag his poperty, bywmhich lie (Avery) had subjected hiosself to three years' hardelabouirln tiecounty jail. Hehoted, hewever, that hehbadacted i ilgiiorance. His learned friend ~ad spoken of the 'CamelfoidI elections: hut if 'that was to be the excuse for such conduct as hadl been displayed to-day, It was Indeed tinse that these honousable electioneering principles, were put down. it appeared that Mr. Avery actually did not kntowt what hie had purchbased ; and he emprowered an agent whio was just going into the King's Biench Prison,to collect hia rents in thecountyof Cornwall-..nay more, and to spend themn too. Oh, but twe were on tile eve of an electioni, and it wouldi be unfair to shut uip the insolvent in prisoti, while a contest mightbe caried n. Neer mid; ifthis vote-r lost his fee: on this occsio, s muh te btte; i woldbe,only preventing bins from addig oesnre t hi oter ofenes.Aa to tile booke, It was quiite [ne tobin (Sr. eah) o b caledan o rove imow he came by it. He only used te insolvent'O 1and.writi-g-i cotand cantYi. to sniow tnc innumeruaWe perjuries lie hd co- te Te."t'. Rell afte thi exainaton, e wold rtur iMPi tnu ep to. Camelford the taleiits he hzd displJAyed, would immnortatlize hijnt in the eyeps of his, brotheor electors. it seemed by this bpok thatlbe bad made -en. tris b aniciatis, ifliewasto e elieved;, Bt his talent for. propecywas asusua, i prporion o hs tloi tir forgtfulnfess. (Lauhte.) fte soic frthr rmarg, he'learned counsel solvents. this es~~~~~~~a'e, to0 other in-. 'The CissEy CoMsefesieouEK said, th at the Coairt felt themselyea under an .obli ato ocoslfrterable - assisteance. ill vieving thei dilIbrent Cerns ti nprantcae. Htqt they (the Coun. fsell had in th oreo hi drs. ilsappllidofie ward, which it was necemsag to correct. Tie a,each of diemg bpoken.,oi the "1punish'mes't inAictetl by thi Vort od forbid' 'that this Court were to view itsel f afs holding a: crimiliali jurisdiceiton,' particularly -qsuch a case as the present; because it would stastle 9 man with coinstitutional feeliags to think ahoat An individual uitight be aigain triesi and punished a acn tie 'in the sa'e Case. Jn the exeellent i(port of thie Uomn1nittea of the Houise ef Lords lipon this hill, it is -observe4, that by theo power of imprisonment as aippl'et to this-Court, is tobe~understood onlv the owere den'ngfrasapeclfle period the relief'whicb the act aftords arelxingtimeancent aw; nd wen,therefore, asn insolvenit is re. mandd, h Is emaned, at a theprioner of, the Couirt, but the prionr o hs cedtos. e thohil'Commissieer)conscqucntly apprache 'tis. asewithtlierefectin tat lie wais sitting in a.'civil ;yeD.tTie~ ,rtheTAw,tbercou Id 'not, 'as, by senc1ing back -UI's~ 2ldt .gp?ison, tbey stut mm asqthe p lsoner!ofh is cr5dMifori, -id d-fthe Court._ Thebbur6Ped CommlssIQqer then anhm*ildd vdrt~d *in ~tnuj ?fk'ti upion tie- conhdt p1 th-f oWn,;n h CItum.stanCiO r tile COIPWhich lie c6racterl2ed is -the worst o f dc- lirate,onc~!me~,uPpOui fron'first to' 1hastb by upejr. .thi Ibulst nd h~mit ub1uhin h~hadever hleard., Vico aneIuded b~efi~;~ forier ad~mcntf th~Court, and ordering flie inolenttbcrc~de~for 2 ca~nda monhs rOm Ahig'day, -nd, n~l~tdwitin h~ wals f te risn, id otWithfit anY rae'pIs r lie-fst'ee INSOLVENT DEBTORS' COURT. WEDnvsnAv. )rr,. Ft IN TInE 3ATTER OF RICHARn aAVYT-M. .TIT-