Re: Silversmiths & Allied Trades - Dublin- 18th -19th Centur
Posted: Sat Mar 14, 2015 9:57 am
by dognose
FULLER JOHNSON - MARY ANNE JOHNSON - JOHN SAVAGE - RICHARD MOSELY
Parliament Street, later Eden Quay, Dublin
TRINITY TERM, 1830
JUNE 12.
Ex-parte Mary Anne Johnson
The petitioner complained of the finding of the Commissioners, by which the petitioner had been declared a bankrupt.
The petition stated, that in the year 1817, the petitioner married Fuller Johnson, who carried on the business of a watchmaker and silversmith, in Parliament-street, Dublin.– In 1823, Johnson died, having, by his will, given his stock in trade, and whatever he was possessed of, to the petitioner, who was also named executrix, and having proved the will, and taken possession of the effects, to the amount of £7000, continued the trading in the house in Parliament street, for her own account. In 1826, she agreed to sell the stock in trade to John Savage, for £4000, and on the 21st October, John Savage executed a bond, (with warrant of attorney to confers a judgment,) in the penal sum of £8000, to George Foster Ross, the brother of petitioner, as a trustee, for her separate use. In the same month, she married Savage. The trading continued in the house in Parliament-street, until the expiration of the term, in 1828, and afterwards was carried on by these two persons, in another shop, on Eden-quay, in the city of Dublin. On the 6th February, 1830, John Savage died, being indebted to Richard Mosely, the petitioning creditor, in £100, and upwards, for goods sold. The bill of parcels was directed to John Savage, and the account was settled by the acceptances of John Savage. It was discovered, after the marriage of the petitioner with Savage, that another person, who was living at the time of the marriage, claimed to be his wife, and the question was, whether, under these circumstances, Mary Anne Johnson was to be considered a trader, in co partnership with Savage, and liable to a commission of bankruptcy, for the demand of Mosely, as a joint debt.
Counsel for the petitioner contended, that Mosely, the petitioning creditor, was a creditor of John Savage, only, and had ho demand upon the petitioner. The trading of the petitioner, in her former husband's house, was merely as executrix, to wind up the affairs of Johnson. Savage had no share in that, nor had she any share in the business carried on by Savage, otherwise, than by sustaining the character of his wife. Is the misfortune of being deceived in a marriage, which it is now said is null, to have the effect of making her the partner in trade, so as to be liable to the debts of the person who misled her? Can the facts, constituting the crime of bigamy, be proved, after the death of the person charged with the felony? He might be able to shew, that the former marriage was void, and the marriage with Mr. Johnson was a valid marriage. The petitioning creditor pretends, that he really gave credit to Mary Anne Johnson, the petitioner, and that be knew the supposed-marriage was invalid, and that he made Savage the debtor in his books, from motives of delicacy ; the delicacy of a man who transacts with a person, whom, according to his own account, be knew to be guilty of a felony! This de facto marriage operates in the alternative. If valid, she was not competent to be a partner, and if null, he was not competent; being tainted with felony, to contract a partnership, particularly with the party wronged, and more especially for the benefit of a person having notice of the wrong. No doubt, if contrivance or fraud was shewn, in the inception of this relation, on the part of the petitioner, if, with a view to shelter her property, by means of a pretended marriage, she entered into a real partnership, in which she took the chance of gain, without, the risque of loss, this court, acting in bankruptcy, would get at the justice of the case. But the Commissioners have not proceeded in that course of inquiry. They passed by, those witnesses, who could have given the fullest information, as to the real relation in which these persons stood, and founded their adjudication upon depositions of persons less perfectly acquainted with the facts, and without having any documentary evidence before them, to affect the petitioner, for none such exists, at least none of a genuine character.
If the Court should think this a case for a Jury, the rule of convenience requires, that the plaintiff in the action should be confined to the proof of the act of bankruptcy, which was relied on before the Commissioners. The greatest inconvenience would arise from leaving that open, so that the petitioner might be under the necessity of being ready to defend an indefinite number of alleged acts of bankruptcy; and it is equally proper, that, pending the proceedings, the final examination should be suspended, inasmuch, as, should the petitioner be ultimately exempted from the operation of the bankrupt laws, a disclosure of her affairs would he a hardship on the one hand; and, on the other hand, if she refused to answer, or answered in an unsatisfactory manner, the Commissioners, in the uncertainty of the event, would probably not venture to compel full answers, by a committal, which might make them liable to an action, and would be an irremediable injury to the petitioner, far beyond what any damages that might be recovered by her, would repair.
Mr. Lefroy, (against the petition.)–Petitioner must now be satisfied, that her supposed marriage with Savage was a nullity, for her petition is untitled in her name of Johnson. From 1823 to 1826, it is admitted that she traded; it is said, she then sold the stock in trade to Savage, but no assignment is produced. A series of acts by her, from a date so early as within three months utter the pretended marriage with Savage, when two separate licenses were taken out, to trade in the articles of their business, one in the name of each as usual in cases of co-partnership, down to January, 1830, when in a proceeding, no doubt with her privity, to revive a judgment against her, she is described, agreeably to the provisions of the late act, requiring a description of the person against whom a judgment is revived, as Mary Anne Johnson, widow of Fuller Johnson.– All shew, that she was aware of the perfect nullity of her marriage with Savage; and if she, knowing that she was a feme sole, interfered in the management of the business, shared the profits, and appeared to the world as a joint traders, she cannot be now permitted to say, that she was not a partner with, and liable for the debts of Savage, incurred in that joint trading, and, consequently, a proper subject for a commission of bankruptcy.
Lord Chancellor.–This is a doubtful case, and the petitioning creditor must establish his debt against the petitioner, Mary Anne Johnson, in an action. This 1st fact, which it will be difficult for him to contend with, is, that he charged Savage, alone, and settled with Savage, alone, by taking his acceptances for the amount of the goods sold, which constitute his present demand upon Mary Anne Johnson, I shall not confine the plaintiff to the proof of any one act of bankruptcy; for I think a denial to him, by the petitioned, under the circumstances, will hardly come up to a denial to a creditor by a debtor, in the sense of the act of parliament; but it must be left, generally, to the Jury, to say, whether the petitioner is a bankrupt, under the true intent and meaning of the statute: and, in the mean time, I make no order to suspend the final examination.
Source: The Law Recorder - 23rd June 1830
Trev.
