the 22nd of October, the effect of which was to deprive the creditors of the full value of his property.

Mr. Roxburgh, for the bankrupt, contended, upon the construction of clause 159, paragraph 1, that, in the events there mentioned, if the bankrupt consents, the Commissioner must, nolens volens, proceed to

not some hesitation in believing them, he felt himself bound to believe the substantial correctness of their allegations. At any rate, no evidence had been brought before him to disprove the fundamental facts of the story. On the 21st of February, also, was examined William J. Barker, a tin-smith in Blackett Street, and a secured creditor for 450l. He was examined respecting the terms and time of that advance. That witness seemed to be a most respectable man. The substance of his evidence was that he had known the bankrupt some twelve or fourteen years; that the bankrupt had behaved honourably to him relative to his father's death, which gave him confidence in him; that he advanced him 4177. in May last year, with the understanding that he was to have a mortgage on the house in which the bankrupt resided, in New Bridge Street, and, on completing the security on the 10th of September, a further sum of 331. was advanced, to make up the whole sum of 4501.; that he (Barker) urged the bankrupt to perfect his security; bankrupt did not urge him, and never spoke of difficulties to him, much less of intended or probable bankruptcy.-James Thompson was then examined: he was a partner with George Barker, and they were ironmongers in the Cloth Market. He was closely examined respecting his dealings with the bankrupt. Barker and Thompson held a bill of sale over the furniture in the bankrupt's residence for a debt of 3501., part for goods supplied, and part for money lent; the latter in several sums, amounting altogether to 2407., for which six IOU's were produced. They got security about September or October, after a previous application for cash. That was managed by Mr. Barker, who, it seemed, attended to the money advanced, and arranged all the cash matters, and kept the books, while Thompson superintended the shop and works. Mr. Barker instructed a professional gentleman to press for payment. On the resumption of W. J. Barker's examination, he stated that, in fact, although he had borrowed money from his brother George Barker, it was always on his own account, and never for the bankrupt's purposes. G. Barker was subsequently examined, at great length, on the 25th of February. The most important parts of his evidence were that advances had been made to the bankrupt from August 1860 down to the 5th of July 1861; that he had frequently applied for the account, and had been told that it would be settled when some contract was paid in which Wilson was then engaged; that he and his partner asked the bankrupt for any security he could give. He gave them some explanations respecting the 331. advanced in September to make up the 4507.; and those explanations, coupled with subsequent explanations, appeared not unsatisfactory, and that

try him, either with or without a jury; and that the proviso at the end of the clause did not extend to this class of compulsory cases. It might well be that a bankrupt would prefer being tried before the Commissioner. In this case the bankrupt had not (paragraph 3) carried on trade by means of fictitious capital, nor contracted debts without rea

the furniture for which the bill of sale was given was not worth the amount secured by it. No doubt, the time at which these securities were given naturally suggested suspicion; but as to the bona fide nature of the advances he thought there could be no doubt. With the account given by the bankrupt of the brickyard in Shieldfield, he could not say he was dissatisfied. His statements, too, regarding the Ouseburn Quarry were probably correct, and from the subsequent evidence he drew no inferences unfavourable to the bankrupt. His representations, too, of the various dealings with the Barker Street, Claremont Place, Adelaide Place and some other properties might, he supposed, be believed. That the several conveyances and mortgage transactions were regular, the names of the professional gentlemen concerned were a sufficient guarantee. But there was an extraordinary transaction relating to No. 17, Framlington Place, with which a Mr. James Wilson was mixed up, which he (the Commissioner) confessed he was utterly unable to fathom or comprehend. The assertions of the bankrupt and of James Wilson relating to that affair were not only irreconcileable, but absolutely contradictory. The sum of the bankrupt's story was this: That Henderson, the treasurer appointed by the arbitrators, bought the house in question at the sale of the joint property belonging to the partnership; that it was ultimately conveyed to James Wilson, a shipowner, by Gibson and himself; that it was an unfurnished house sold for 5601. or 6507., the bankrupt was not certain which; that James Wilson paid for it; that the sum received from James Wilson was entered in his (the bankrupt's) cash-book; that he received to finish the house two sums of 2507. odd, and something more for management. If these sums were not in the cash-book, they would be, he said, in the other books, by which he meant some journals that had been referred to in the examination. That in June 1859 he had received 177. 108. ; in May 1860, 250l.; and in September 1860, 250l.: that the sale took place in 1858 or 1859, that he received no money back from James Wilson, but that he paid him on the 22nd of October 1,4007. His words were: "That is the date when the deed was done. I paid him in cash at Chater's office, and he executed the conveyance. It was my own money which I got for houses along New Bridge Street, and the Barnes House, 6301. I paid cash. James Wilson had to pay the trustees 6501. before Gibson and I signed the deed. I cannot say I saw it paid if Gibson cannot recollect. It was bought of me for 5601., and then Wilson took it. I cannot say if it was 5601. or 6501.; you will see in the journal. Finding the money did not come in, I could do nothing with it. That is my account of the trans

sonable expectation of payment, nor wilfully omitted to keep proper books of account (he was charged with having kept too many), nor been guilty of rash and hazardous speculation, &c. The bankrupt, therefore, however unjustifiable part of his conduct may have been, was not guilty of a misdemeanor within the act. All that

action throughout. I thought it worth 1,450." Such was the bankrupt's statement on the 5th of February. On the 21st of that month James Wilson was examined. His evidence was to the effect that he bought the house at the latter end of 1859 from Henderson. Henderson had bought it from Thomas Wilson, the bankrupt, but Gibson would not sign it away. James Wilson said: "I know but little about it; I did not attend the auction. Wilson the bankrupt asked me to buy it, because Gibson refused to sign. Glynn was instructed by Wilson to prepare the conveyance, and it was completed in Glynn's office. I paid 550l., or it might be 560l., for it. It was unfinished. I paid the purchase-money for the property in Mr. Hall's office, in the presence of Mr. Hall. As I am on oath, it was Wilson's money. I had the money long enough before we could get Gibson to agree to sign it away. I received the money from the bankrupt, and I forget whether at his house or mine, in 100%. notes. On payment I got the deeds. I took the deeds to Wilson shortly after the completion of the transaction. Wilson was not, I believe, present at the completion. I delivered the deeds at his own house, and have never seen them since. Wilson could do nothing to the house so long as my name was on the conveyance. I wished then to sign it away; I wanted to be done with the job. Wilson completed the house, I suppose, himself. I never paid any money to Mr. Wilson for completing the house; never received or paid a farthing. I never executed a conveyance of that house, at least certainly at the end of 1861. I don't know the exact month. It would be in October, at Chaytor's office. I did not instruct Chaytor; I went to his office and signed the deed -Wilson asked me. Chaytor, Wilson and I were present. I signed the deed. I merely put my name at the back and signed it away to Wilson. Wilson did not pay me 1,4501. for that house. I suppose that was its value. I never received or paid any money, and therefore I am clear of it. I said at Chaytor's office, I did not know whether I was doing right or wrong. I wanted to have it off my mind, and to have nothing more to do with it. The bankrupt did not ask me for a mortgage on the house. He wanted money, and asked me if I would lend him my name. I said I would do nothing of the sort. I said I would sign the house away. It was some time in October."

Such was James Wilson's contradiction. If he (his Honour) was asked whom to believe, he said at once James Wilson, who could have no motive whatever to speak anything but the truth. He disbelieved Thomas Wilson, to whose evidence presently he should have reason to revert, and he should therefore hold him responsible for the consequences of

the Court had power to do was to vary the order and send the case back to the Commissioner, and it was now too late for the Commissioner to direct an indictment. Upon the merits, it was contended that the charges were unsustainable. The quarrybook had been handed up to arbitrators under the partnership, and had not been

his disbelief. On page 6 of the report made on the 17th of May by Messrs. Gillespie & Spence, the accountants, they stated: "In conclusion, we feel bound to refer to the transaction with James Wilson

whose evidence is on the proceedings-wherein he states that no cash ever passed between him and the bankrupt in respect to the alleged sale of a house at Framlington Place. In those accounts, which we have examined, the bankrupt states he paid to James Wilson, on the 22nd of October 1861, 1,450., in support of which he refers to the receipt of the latter in the deed of conveyance. On the other side, he charges himself with having received, in May and September 1861, from James Wilson, for work done to the same property, 500, leaving to the bankrupt's credit in his cash account 9501. There has been one year's rent received from the tenant of the house, the receipts for which are signed Thomas Wilson, pro James Wilson,' not entered in the bankrupt's books, amounting to 70%., making together a difference in cash in that alleged transaction of 1,020l. If, however, James Wilson's statements are true, the conclusion is irresistible that the bankrupt has not properly accounted for that sum of 1,0207., and that the present accounts are consequently mis-stated by that amount." On the 21st of March, Thomas Oxer, an accountant, and formerly a clerk to the bankrupt, and, he believed, to Gibson as well, was examined at great length, and with his accustomed accuracy, by Mr. Scaife, touching the bankrupt's books and accounts, and the way in which they were kept and entered up. It would appear from that examination that the entries were regularly made in those books from a period so early as April or May 1859, soon after the dissolution of the partnership between Gibson and Wilson, and that they were kept from pocketbooks, pay-sheets and loose memoranda, from time to time, which were then destroyed, as of no further use. To that examination was appended a remarkable memorandum. "Memorandum: Upon this examination being read over to the witness, on this 27th of March 1862, he stated that he now desired to make further disclosures, and to explain and add to certain of the answers above given, and, therefore, with the consent of the solicitor to the assignees, a shorthand-writer was nominated to take down such variations, explanations and additions as the witness, in the course of reading over the above examination, stated that he desired to make; and that being done, the witness signed and acknowledged each sheet of the present examination." Such was Mr. Gibson's very lucid memorandum. Upon those variations, explanations and additions made on the 27th of March, which were most important, he (his Honour) should make no further comment than this-that some of them

returned. The charge as to the 1,450l. rested on the evidence of James Wilson only, and was directly contradicted by the bankrupt.

Mr. Baggallay was heard in reply.

LORD JUSTICE KNIGHT BRUCE (Nov. 22) said that in this case the allegation of the

expressly, and others impliedly, contradicted many statements in Oxer's examination of the 21st of March; in fact, clearly declared that the accounts and entries alleged to have been made in the books kept from the spring of 1859 were in fact entered up in the books with which he was furnished within three months of the bankruptcy, in November last, and which books were admitted to have been made up shortly before the bankruptcy. Whether or not Oxer's examination was inspired by the bankrupt he could not say, because the evidence of such inspiration was presumptive only; nor should he (his Honour) inflict upon himself the distasteful task of analyzing Wilson's evidence of the 24th of March; but he must observe that he thought it impossible for any person to read the examinations on that day of Thomas Wilson, of John Crossley, who, as Christie the bookseller's foreman, clearly proved that the books in question were manufactured in July 1861, and indicated the alterations in the labels and figures on them, and that of Jane Harkness, who, as Christie's shopwoman, so distinctly identified the bankrupt as the person to whom she had sold those books in October-he said it was impossible for any unprejudiced person to read those examinations without coming to the conclusion that Thomas Wilson had been guilty of at least a palpable and deliberate falsehood. It was then humanely suggested by Mr. Watson-— than whom no bankrupt could have a better adviser --that time should be given to enable the two accountants, to whose report he had already referred, again to examine the books, and ascertain to what extent they might be vouched by original documents or entries. They had completed that investigation so far as circumstances would permit, and they had submitted an able and candid report. By that report it appeared that upwards of 3,2001. was quite unvouched. It might be suggested as some sort of palliative to the bankrupt's conduct, that he might have imagined there was little hope of his getting free of that Court without the production of books regularly kept during his trading, and that he, therefore, in an evil hour, was induced to attempt the practice of that imposition on the Court. Truth, like honesty, was the best policy. Had he frankly confessed the real state of his matters, instead of having recourse to artifice, that Court was, under such circumstances, disposed to be not otherwise than indulgent. On the other hand, the detection of the fabrication opened a floodgate of suspicion, and threw a doubt on his statements generally. He (his Honour) had lis tened attentively to the able addresses that had been made to him by Mr. Scaife in opposition to the discharge, and by Mr. Lockey Harle in support of the bankrupt. He had considered with care the

assignees was that they were in a position to substantiate charges against the bankrupt for acts amounting to a misdemeanor or misdemeanors under the Bankruptcy Act of 1861. After hearing the evidence adduced, his Lordship was of opinion that it was sufficient to justify the Commissioner in charging the bankrupt

charges preferred by Mr. Scaife. Could he bring himself to the conviction that the bankrupt had made the entry in his accounts of the money alleged to have been paid to, and received from, James Wilson; and the omission of 701. for one year's rent, as appeared in the accountant's second report; could he bring himself to the conviction that he had made those entries fraudulently, and with the distinct intent imputed by the 221st section of the Bankruptcy Act, 1861, no alternative would have been left to him but to direct a prosecution in a criminal court for misdemeanor. But he was, after much and most anxious consideration, willing to believe, especially as, when pressed in his examination, the bankrupt had referred for explanation to Mr. Chaytor's office, and the journal to which he had alluded more than once; he was, he said, willing to believe that that matter might be capable of being in some degree, if not satisfactorily, cleared up. The only solution that had suggested itself to him was, that the bankrupt being desirous of obtaining the Framlington Place house, and finding himself baulked in his wishes by Gibson, set up James Wilson as a kind of man in buckram, and then, having improved the premises by expending his labour and material upon them, considered these, that is to say, his labour and material, ultimately as the price paid for his purchase. That construction of the bankrupt's conduct, at any rate that doubt, enabled him (his Honour) to relieve him from the penal operation of the misdemeanor clause, and he was willing to give him the benefit of it; but at the same time he was compelled to judge of his misconduct before and after adjudication, under the 159th section of the act of 1861. And bearing in mind the gross irregularities, to say the least of it, that prevailed in his transactions, and the falsehood to which he had referred, he felt himself called upon to visit those offences with a considerable suspension of his discharge. He might add, that he thought it was the bankrupt's bounden duty to make some provision with Gibson on the debt under the award. Though Wilson disputed its justice, they had heard nothing of the grounds, and he had taken no steps to set it aside. It was published on the 10th of July, last year, and he was allowed till the 10th of September (two months) to arrange its settle

ment.

He took care, however, to prefer many other creditors, in what his Honour must say seemed to him to be a systematic manner, to the entire neglect of Gibson's claims. He had read and considered the document which had been handed up to him, purporting to be signed by a large body of the creditors, and he was disposed to give it the weight which it deserved. That document was, no doubt, a favourable testimonial

with such acts. That being so, the next question was whether the Commissioner was bound to try the bankrupt himself for these alleged offences or any of them. It had been said that he was, and that although the bankrupt did not consent to any particular course, he did not refuse any particular course, and that his consent was not even asked. His Lordship thought that the provisions of the act would remove all difficulty, when the whole of the section was taken into consideration. He was of opinion, looking at the whole of the section, that there was no necessity for the Commissioner to ask for the consent of the bankrupt, or to ask him to say whether he would consent to any particular course or not, and that it was not incumbent upon the Commissioner, whether with or without a jury, to try the bankrupt himself; but that if he was satisfied that there was a case not of proved guilt, but a case for a criminal trial, it was within his authority to direct that the bankrupt should be indicted and prosecuted in one of the ordinary Courts of criminal procedure. His Lordship was of opinion that that was the course which ought at that time to have been adopted in this instance. He was further of opinion that that was the proper course now, having regard to the paper which was signed by Mr. Scaife, which was produced before the Commissioner, and which certainly contained at least one allegation, if not more, of cases of misdemeanor, supported by probable evidence. His Lordship was of opinion, therefore, that a prosecution ought to have been directed, and placing themselves in the position of the learned Commissioner, their Lordships would direct a prosecution accordingly. The order of this Court would be to discharge the Commissioner's order without prejudice to any future application by the bankrupt for an

of the bankrupt's previous character and general reputation. Such a testimonial ought to have influence in a case of doubt; it might in such a case remove doubt, but it could not displace facts. He did not think that the ends of justice in that case would be answered by a suspension of the bankrupt's discharge for a less period than one year, and he suspended it for that period accordingly. He regretted the necessity of so doing; he regretted more that the bankrupt, a man of activity and enterprise, should, by his conduct, have placed himself out of the pale of useful exertions in his

order of discharge, or to any other question; to direct a prosecution against the bankrupt at the next assizes, for it was not the Court's intention that the trial should take place at the Quarter Sessions, or before a Recorder. The indictment, however, would not go beyond the offences alleged against the bankrupt in the document signed by Mr. Scaife; the assignees would be the prosecutors in the matter, and the costs would be reserved, with liberty to apply.

LORD JUSTICE TURNER was of the same opinion. There were only two questions which it was necessary for the Court to decide: the first was, whether there were grounds for charging the bankrupt with acts which amounted to a misdemeanor within the statute; and the second, whether the Commissioner had jurisdiction to order a trial before a Court of criminal justice. Upon the first of these his Lordship was of opinion that grounds existed for charging the bankrupt with acts amounting to a misdemeanor; and upon the second, his Lordship was quite unable to agree with the argument of the learned counsel for the bankrupt that, under the first article of the 159th section, the Commissioner had not the power to order a trial before a Court of criminal jurisdiction. He entirely concurred in the order which the Lord Justice had stated.

The Registrar was ordered to issue a certificate under section 223. that their Lordships had ordered a criminal prose

cution.

Feb. 10. Mr. Baggallay informed the Court this day that some friends of the bankrupt had subscribed 1,000l., in order that a dividend might be paid to the creditors, if the Court would sanction a discharge of the order made as above.

business. But he must blame himself, and himself alone, for those consequences. Employment in building churches, bridges, asylums and extensive county works, was certainly a most creditable antecedent; but he could not absolve a man from the observance of truth and justice in his dealings, and from keeping in view the high level of the commercial integrity of this country. Under all the circumstances, he hoped the sentence he had felt it his duty-his painful duty-to pass would be considered, as he (his Honour) was sure it was intended to be, a very lenient one.

Their LORDSHIPS considered that as the offer was to place 1,000l. in the hands of the assignees for the benefit of the creditors, who would otherwise receive nothing, and as the compromise would be only that of a misdemeanor, the Court might without impropriety accede to the arrangement and discharge the order. Their Lordships would make the order asked the more readily as they understood that the estate would pay nothing, and that the expense of a prosecution would be very great (2).

WESTBURY, L.C.Ex parte RUCK

Dec. 2.

AND

WICKHAM, in re WICK-
ENDEN AND MANSELL.

Trust Deed for Benefit of CreditorsTrustees Disputes-Jurisdiction.

Trustees were appointed of a deed of arrangement between debtors and their creditors, and disputes arose among such trustees. Two of them petitioned that the remaining trustee might be removed and the trust fund vested in them. The Court of Bankruptcy made an order directing the fund in hand to be paid over to the accountant in bankruptcy; and appointed an official assignee to act as if appointed under a bankruptcy. On appeal, the Lord Chancellor decided that the Court below had no power to make such order.

valuation; and Wickenden to pay Mansell 2001. as part of his share of the business, 501. for money laid out in the premises, and 50%. for goodwill. Upon the completion of the valuation it was discovered that the liabilities of the firm exceeded the assets thereof. By reason of this fact the dissolution was not further proceeded with, except that Mansell continued the trade on his own separate account for a few weeks, during which period he contracted debts on his separate account by borrowing money from Mr. William Lawrence to the amount of 2001. By deed, dated the 29th of November 1861, made between Wickenden of the first part, Mansell of the second part, William Lawrence and the petitioners, being trustees, &c., of the third part, and the several creditors of Wickenden and Mansell of the fourth part, Wickenden and Mansell granted and assigned unto the said trustees, all the messuages, &c.; and secondly, all the stock-in-trade, &c., of the said Wickenden and Mansell, or either of them, wheresover, &c., upon the trusts and with the powers therein mentioned, and upon further trust to pay the costs and expenses of the preparation of the deed, and subject thereto to pay the residue in satisfaction of the debts owing to the several creditors of the said Wickenden and Mansell, or either of them. The deed was duly executed by the said debtors and trustees respectively, and was advertised in the London Gazette. It further appeared that Lawrence had received as trustee the sum of 1,0057. 1s. 6d., and that it was his duty to have paid the same to the account of himself and the petitioners, pursuant to a resolution of the creditors; but instead of doing so, he retained it in his own hands, though repeatedly requested to pay over the same. At length, on the 11th of February 1862, he paid to his private bankers, Messrs. Randall & Co., of Maidstone, the sum of 913l. 8s. 6d. to the joint account of himself and the petitioners. On the 13th of January last a majority in value of the creditors of the debtors passed a resolution that the monies received by Mr. Lawrence be forthwith placed in a joint account in the London and County Bank, in the names of the three trustees. Application was made to Mr. Lawrence to comply

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