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1851.

HAMBER

v. HALL.

the interest of the said John Matthewman in the said colliery, and the nature of the interest of the said John and Frederick Braithwaite, if any, therein: That the said Messrs. Smith & Son and this deponent had a long correspondence, and many interviews, with the solicitors of the said Messrs. Braithwaite, for the purpose of ascertaining the nature of their interest and claims in and upon the estate of the said insolvent; and the said Messrs. Smith & Son prepared and laid a case before counsel, for his opinion thereon: That the nature and extent of the claims of the said Messrs. Braithwaite upon the said estate, and also of the mortgage and other incumbrances thereon, are still, notwithstanding all the pains taken to ascertain them, by no means clear and well defined : That divers propositions have been made by the said John Matthewman, for the purpose of arranging with his creditors, and letting the said colliery on lease, or otherwise disposing of the same, all of which he has failed to carry into effect, although every facility has been given to him by the official and trade assignees for enabling him to do so : That the said colliery has, since the insolvency of the said John Matthewman to the present time, been kept open and worked by one G. Franklin, who had the management of the same at the time the said John Matthewman became insolvent; but the coals obtained therefrom have not been sufficient to pay the working expenses, as there is, as this deponent has been informed, and believes, a balance owing to the said G. Franklin, in respect of the working of the said colliery: That it was necessary and proper to keep the said colliery open, or the same would have fallen to ruin and decay, and great loss would have ensued to the estate : That the said J.W. R. Hall has not received any funds whatever from the said estate ; but, on the contrary, is consider

1851.

HAMBER

Hall.

ably out of the pocket by the necessary management of the business: That the said J.W. R. Hall is, as this deponent well knows, most anxious to realise the estate without loss of time: and the same will be realised as expeditiously as possible: That, with a view thereto, this deponent and the said Messrs. Smith & Son called together, in London, on the 10th of August instant, the mortgagees and other persons claiming interests in the said colliery; and this deponent attended such meeting; and it was proposed by this deponent and the said Messrs. Smith & Son, that, with the view of preventing a chancery suit, and the consequent impoverishment of the estate, all parties whose concurrence was necessary should concur in a sale of the said colliery, that the purchase-money should be placed in the hands of the official assignee, and that the commissioner in this matter should then decide between the several parties as to their rights and interests: That the persons present at such meeting considered it desirable that such an arrangement should be made, and, as a preliminary step, that a valuation of the colliery should be made by a competent person : That, in pursuance of such opinion, this deponent has been engaged in making inquiries as to a competent person to make the said valuation; and this deponent is about to employ a person to make the said valuation, and pledges himself that no delay shall take place in bringing the business to a conclusion: That the said J. W. R. Hall will necessarily have to incur large expense out of pocket, before the said colliery can be turned into money, in obtaining a valuation, advertising, auctioneers' fees, and travelling and other expenses; and this deponent humbly submits that it would be a great hardship upon him, to be called upon to pay the messenger's bill, unless he had funds in hand to liquidate the same, inasmuch as the outlay has

1851.

HAMBER

v. Hall.

necessarily arisen from the complicated and difficult nature of the said insolvent's affairs : That the official assignee has been from time to time communicated with and consulted on the various steps taken in the matter; and this deponent believes, that, what has been done, has been done with his full approbation and concurrence : That the said J.W. R. Hall has been for some time past labouring under indisposition; and he is now, and has been for the last fortnight, necessarily absent from England, his medical attendant having advised him to try the German baths and waters, with a view to his restoration to health.”

Ross, 15 September, 1849.

Re Matthewman. “We have written to our agents respecting your Defendant and

Minett to application to Mr. Hull for payment of 501. on account, plaintiff. and requested them to confer with Mr. Green respecting it. We hear that Mr. Green is not in town, but that he will be there on Wednesday, when they will see him. If there be any way of assisting you, be assured your application shall be attended to. We have now a valuation of the work more favourable than we expected; and Mr. Matthewman has made another proposition, which looks feasible, and we have now full hope of bringing the business to a speedy conclusion.”

19th October, 1849.

" Re Matthewman. “I applied to you on the 6th of last month for a Plaintiff to remittance of 501.

Not having received any reply, I defendant. have again to urge you to comply with the reasonable request. My bill is taxed, to the 25th of July last, and allowed at the sum of 2031. Os. 9d. As I have been hitherto unfortunate in prevailing upon you to advance anything upon the large outlay I have made in keeping possession of this property, I must give you notice of my

1851.

HAMBER

v. HALL.

Plaintiff's attorney to Smith & Son.

near

81.

intention to take legal measures to enforce my claim, unless I have a remittance forthwith."

" 23rd October, 1849.

Re Matthewman. “ Mr. Hamber has consulted me respecting his claim on the assignee of this estate, and instructs me to inform you that he has no desire to inconvenience the assignee by insisting on his right to payment from him, without reference to the possible realisation of assets under the estate. At the same time, the delay has been very great; and his (Mr. Hamber's) bill is increasing at the rate of

per month. And, as it seems unreasonable that such an estate should be preserved at the sole cost of the messenger, who has no personal interest in the matter, he instructs me to request you will procure and send him a cheque for 1001. on account in the course of this week; and, if that is done, he will allow the remainder to stand over for the present."

October 29. 1849. Re Matthewman. “ The assignee has not a penny in hand. A meeting will be held, room No. 6. Law Institution, at 2 o'clock on Friday next. Would it not be better for Mr. Hamber to attend? He will there learn all that is known; and it will be seen if any assets can be set apart, so as to make him a payment.”

Smith & Son to plaintiff's attorney.

On or about the 27th of February, 1850, Messrs. Smith & Son received from Mr. Pennell, the official assignee, a paper signed by the said Mr. Pennell, of which the following is a copy :

Guildhall Chambers, 26 Feb. 1850. “ The messenger will quit possession of the bankrupt's premises, on receiving this notice, countersigned by the creditors' assignee.

William Pennell,

“ Official Assignee."

v. Hall.

That paper was inclosed in a letter, of which the

1851. following is a copy :

HAMBER 27th February, 1850.

Re Matthewman. “I have seen Mr. Hamber, who has no objection to Pennell to wait ten days longer for payment of his bill. I inclose Smith & Son. the notice to the messenger, as arranged."

Upon receipt of the said notice, the defendant signed the same. A copy of this paper was shewn to the plaintiff at the time of the delivery of the letter next hereinafter mentioned.

March 4th, 1850. “ Re Matthewman. “ Please to give the bearer an order for your man to Smith & Son withdraw from possession. It is needful that you should to plaintiff . not send it direct to him, as the assignee has arrangements to make with Mr. Franklin, before the messenger quits possession."

“ 21st April, 1850. Re Matthewman. “I undertook, at the particular request of the official Plaintiff to de

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fendant. assignee in this matter, to stay further proceedings for a month, with a distinct understanding, that, at the expiration of that time, I should be paid. The time is now expired. As I have not heard from you on the subject, I must give notice of my intention to proceed, unless I am paid forthwith. The first bill is taxed at the amount of 2031. Os. 9d., and the further time at 561. 6s."

The pleadings, particulars, and bill of costs as taxed, are to be taken as part of the case. The court is to be at liberty to draw any inference of fact which a jury might have done.

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