Mercantile cases Volume 1; Reports of cases relating to commerce, manufactures, &c. &c. determined in the courts of common law, at nisi prius and in banc, in 1828-1829. With practical notes

This historic book may have numerous typos and missing text. Purchasers can download a free scanned copy of the original book (without typos) from the publisher. Not indexed. Not illustrated. 1830 Excerpt: ...it became unnecessary for the rest to interfere. They had, however, an interest in the investigation, and the suppression of it without their concurrence would be a fraud upon them. It was incumbent, therefore, on the defendant to show that they did concur in the agreement; and he having failed to do this, fraud must be presumed. But, secondly, it is against the policy of the law. The object of that law is twofold. It is partly for the benefit of the insolvent, and partly for the prevention of fraud on his part. The Court has, therefore, a power given it by the act (a) not only to investigate but to punish. The sixteenth section gives the one, the seventeenth the other. By the latter, the Court may remand the insolvent for three years as a punishment for fraud or misconduct. Now this agreement may interrupt the jurisdiction of the Court in this respect; it may amount to the compounding of a misdemeanor. Nerot v. Wallace is in point. The bankrupt laws and the insolvent laws stand on the same footing, and an interference with the public duties of the commissioners in either case is equally illegal. The point decided in Whitelegge v. Richards has no bearing whatever on the present case. Lord Tenterden. The question is, whether the power given by the act to remand an insolvent is intended by way of punishment, or merely as a declaration that the insolvent shall not be entitled to the benefit of the act. It is quite clear on reference to the seventeenth and eighteenth sections, that it is intended as a punishment. Can a creditor by his own act, after the insolvent has been remanded by order of the Court, procure his discharge? If so, then the creditor may do an act solely for his own benefit, without regard to that of the other creditors. In Rogers v. Kingston (...