Star. — London, England, 1822-11-20 00:00:00

frOilliT OF CHANCERY, NOIEMBER 19. BUR V. WARD. This important case is now in course of argumentl on the point whether a new trial ought to be granted. The merits of the suit, .so far as they tranipired by the statements of Counsel, were these :—Mr. Wm. Cotton, a lunatic, possessed large estates in Derby shire and Shropshire. His younger brother, Mr. Evelin Rowland Cotton, was committee and receiver upon his estates till his death, in 1795. Mr. Ward, the defendant, nephew of the lunatic, and of Mr. E. R. Cotton, was left heir by the latter, and by consent of all parties, in 1795, became committee and re ceiver op the lunatic's estates. In 1820 Mr. William Cotton, the lunatic, died. A question then arose re specting the legitimacy of the lunatic. It was con tended that his father, William Cotton, had children by Rebecca Webster before he married her In 1742, and that Mr. Evelin Cotton was the eldest male issue. l The consequence of such illegitimacy woold be to give Mr. Ward, as heir-at-law, all the estates of the townie, who died intestate. Mrs. Beer and others claimed an equal division of the intestate's estates as legitimate sisters of the legitimate William Cotten. An issue had been directed to try the question of le gitimacy ; and after a trial of four days, before Chief Justice Dallas, in the Court of Common Pleas, a ver dict of illegitimacy was returned. Application was then made to the Lord Chancellor for a new trial, and the Solicitor-General appeared to have been fully heard at some former period in support of the appli cation. This morning, at nine o'clock, Mr. ScatticerT was heard against a new trial.— The Learned Gentleman argued that no ground had been laid far a new trial in the circumstances of the documentary evidence. or the reputation proved by parole evidence. Doubts had been cast on the legi timacy of Mr. William Cotton's children. In 1746, a deed of settlement was made by Mr. Rowland Cot ton, William's father. The marriage was there men tioned, but not a word respecting the time, the place, or the person by whom. He left it to the sagacity which his Lordship was known to possess, to say whether, if the marriage had been so early as was contended, all those circumstances would not have been mentioned in or der to remove all doubt. The , affidavit of Mr. W. Cotton to the Surrogate stated him to be a hachelor in 1742, and Rebecca Webster a spinster. Mr. Sweetapple, the Clergymai. and Mr. Reynolds, the Steward of the Duke of Kingston, signed the marriage certificate, and their hand-writing was proved. Mrs. Rebecca Cotton had a box which he kept with great care, and in it after her death, the certificate of the- marriage was found. Futile at tempts were afterwards made to prove that the do cuments found there had not been in Mrs. Rebecca Cotton's possession. The Loan CHANCELLOR said they were evidence if they had been in her possession, not otherwise. Mr. SCAR LETT.—The existence of them is evidence, for who had an interest then in forging them ? Lady Corbet, aunt of Lord Combermere, and Colo nel Calverly Cotton, her brother, proved the reputa tion to have existed when they were young, that Re becca Webster had been servant in Mr. Rowland Cotton's house, and Mr. W. Cotton's mistress before she became his wife. The Counsel on the other side had assailed the witnesses on his side as greyhounds did a hare or a fox. The LoRD CIIANCELLOR.—They might perhaps come tinder the late Act for cruelty—(l.aughter). Mr. SCARLET.T.—Very likely. The contradictory evidence now alleged as wound of new trial they had had in Court at the teal, and had not ventured to call. The letter of Mis. Mary Cotton, which had been refused by the Judge, he read, to chew that it had no relevancy to the case. It was a good house wifely letter, and prescribed for the jaundice and quinsy, but had no reference to the question. Mr. Carr, who was solicitor in the cause for Mr. Ward, and secretary for lunatics, had been asked to pro duce documents which were in his office as secretary, but he declined to do so without an order. _ _ The Loma Cursscatl,oftd--If be should again be solicitor in a cause, to which I have no• objection, and has notice to produce papers in his,possession, as my secretary, he ought to inform the party that they must apply tome, and not to make the objec tion at the trial. (This remark his Lordship fre quently repeated). Mr. SCARLETT contended that the documents could be of no service to the plaintiffs. Me LORD CHANCELLOR asked if there bad been any savings during the ltinatic's life? Ms. Catta.—One hundred thousand pounds. The LORD CHANCELLOILe..rAiId what says the' Crown to that ? Mr. WETHERELThere is a suit in the Com tisons for that. Mr. SCARLETT came now to what he considered a very important part of the case. It had been urged that Mr. Ward, holding the estates for 24 years, as those of a person lawfully possessed, could not now come into Court and dispute the legitimacy. From any other party the imputation would be just: but they on the other side were the party who affected this conceit. Their solicitude and anxiety was the sole cause of delusion, if delusion existed. The other parties had considerable allowances paid by Mr. Ward as committee and receiver. A case bad been hid before the late Mr. Sbadwell : and Mr.Vanhey thuysen, then secretary of lunatics, and solicitor to all the family of the Cottons, recommended that no inquiry should be made into the title when Mr. E. It. Cotton died in 1795. The LOAD CHANCELLOR.—I have no hesitation in saying, if I had known what you now state, that I would not have directed an issue. I would have given possession to the plaintiffs, who were stated befoie the Master, with the knowledge of Mr. Ward, to be co-heiresses in 1796, and left Mr. Ward to bring an ejectment. Mr.Sommarr said, if he had then been Mr. Ward's Counsel, he would have advised that course, [orb* would then be plaintiff. The LORD CtiANcELLou.—Am I to make as order now on the result of an issue which I would not have directed if I had known the facts? It is from the care which I am bound to throw over all lunatics . that I Inest take care not to be misled by the con sent of parties. Mr. scAm.m..Shall parties who consented be allowed to come forward now and complain ? The Loi Cansemzon..Can I with safety to • lunatics act epos their. couseut2L—Mr. SWIRL/TT said he had done, then. The Luau CHANOELLORYOU have stated the case very ably, and inn manner that must be 'satis factory to yourself and to all parties ; but, according to my present opinion, 1 would not have ordered the issue if I had known what I now know. Mr. Serjeant VAUGHAN referred to a letter from Mr. Carr to Mrs. Beeryfor the arrangemests respect ing _the lunatic's funiral. mr.SCARLETT said, there had been a - compromise then by the advice of erniavt Counsel, and the plain tiffihad been offered a large proportion. The LORD CHANCELLOR.—I don't say that that would not have been a very prudent thing, but it ought to have been concealed from me. Mr. WETHERELL followed on the same side with Mr. Scarlett, till the rising of the Court at two o'clock. VICR-CHAT'ELLOWS COURT, NOVEMDER is. STEWART V. STUART, STREET, MID SIUDPORD._ Mr. BELL stated, that in this case a bill was filed by Wm. Stewart, Esq. against Messrs. Stuart and Street, the piincipal Proprietors of the Courier News paper, and against Mr. Mudford, an alleged Proprie tor and Editor. The bill prayed that the defendants might be compelled to pay the plaintiff one half year's profits upon two twenty-fourth shares, and also to pay to the plaintiff £129. 13s. which he had by mistake overpaid for those shares. Thirdly, it was prayed that the defendants might be restrained from selling any shares of the Paper without the plaintiff's consent, and also that they might be compelled to render him an account of the profits and disburse ments of the concern. The question turned, as it ap peared from the voluminous pleadings opened on thei part of the plaintiff, as to the rights of the latter, upon the construction of the deeds of assignment of two shares. From Mr. Belles statement it appeared, that from the year 1799, the Courier was carried on jointly by the defendants Daniel Smart and George Street. In 1308, Mr. Stuart became desirous of dis posing of some of his shares, and Mr. Paelder, a coal merchant, was introduced, but in consequence Of some objections made to him by Mr. Street, as a per son from his pursuits incompetent to take a share in the conduct of arch a publication, Mr. Paulder with drew. Articles of agreement were drawn up at that time between the two defendants, Stuart and Street, for the future conduct of the Paper ; and in these ar ticles it Was Agreed, that as they were equal proprie tors, the Paper should be divided into twenty-four shares; that Mr. Stuart should be the senior proprie tor °lathe first twelve shares, and that Mr. Street should be the senior proprietor of the second twelve shares, reserving to . each other special privileges in case of the sale of any of these shares. It was agreed that in case of either or any proprietor wishing to sell out, the others should have the right of purchasing it upon a scale of prices according to the number of sheets sold for the three calendar months before.— If the sheets sold should amount to 600 per diem, the copyright should be taken to be worth £lOOO ; and frir every hundred beyond 600, the copyright should be taken at 4:300. As the profit increased greatly upon 2500, the sale of an Evening Newspaper for every hundred sheets sold beyond 2500, £4OO was agreed to be given in the purchase of the copyright; and it was agreed, that if the sale amounted to 3500, the copyright should be taken as worth £7OOO ; and if it amounted to 4000, £12.400 should be taken as the value of the copyright. If the proprietor or pro prietors should be unwilling to buy the shares for disposal at this price, the holder' should be at liberty to sell to whomsoever he chose. The person pur chasing was to be bound to give a bond to abide by the same regulations. In 1819, Mr. Stewart; the plaintiff, entered into a negotiation with Mr. D. Stuart, and ultimately became the purchaser of a share of the Paper from him, and also. of one from Mr. Street, upon giving for the two a sum in propor tion to the four last years profits brthe Paper, which on the last year was stated to produce £6OOO clear profit. It was charged in the bill, that in the state ment of profits, there had been a mistake made by Mr. Stuart, on which the plaintiff had paid £129 more than he ought. The plaintiff believed, upon the deed of assignment, that he was entitled to a vote in the management of the concern, but upon the first day of settlement, at which he attended to take his share of the profits, he was informed by Mr. Stuart, the defendant, that it was not intended to sell him any more than a share of the profits, and not any of the rights as pr oprietor. A refusal of the share of the profits now sought was given to him, unless he would consent to give a receipt acknow ledging his right oily to the profits in the above concern. At that time a third party, Mr. Mud ford, made his appearance, and claimed that he should become a proprietor at a certain period, at cording to a promise made to him to that effect. Mr. Beta. entered at great length into the terms of the engagement, when His Honour the VICE-Cnsireet.Loa said that he could not hear the case further on that day, and must hear the argument at another sitting. NOVEMBER 19. The hearing of this case was resumed this day. Mr. Bait, Mr. HEALD, and Mr. SIDEBOTHAM, were heard in support of the plaintiff's bill. The ar guments of the Learned Gentlemen were chiefly di rected to the questions, as to whether the . deed of as signment to the plaintiff conveyed a share in the con cern to him to be held under circumstances different from those which - he would have held tinder, had be received a share on the conditions directed by the original articld.between Messrs. Stuart and Street, — They contended that Mr.-Was. Stewart was entitled to all the benefits that belonged to an original pro prietor. They supported this opinion by a reference to the nature of . the transfer to various documents which were exhibited in the pleadings, and to the tenor of the conditions specified in the new as si.ganient. It was remarkable, they said, that the ni =Dt contained a clause of repurchase in favour aniel Stuart. Was it possible that the de- fondant would make a bargain by which he would kia so much. prejudiced ? for if Wm. Stewart was in an inferior relation to the other proprietors, Daniel s after he bad repurchased, would stand in his show ) as to the two shares, and thus lose a considerable ad. vantage to that extent. The Vzcs.CsAwczuoa asked what could be the intent of the prayer of the cross bill Sled by the de* indent in this cause s to set aside the assignsuatt since his Counsel now argued in a way totally ;neon , sistent with such an application?, Mr. AGAR said that he would Ispply to Mr. Bell for that explanation, as lie understood that it was by 1 his advice that the bill was filed, he having been re tained for the defendant. Mr. BELL declared he had never gives such ad vice. He had bee* consulted on the occasion, but he was not at liberty to state what advice he gave. It might surprise some that be appeared in behalf of the interest which he was then supporting ; but . the fact was, that no retainer had been offered or left for him, though, having been originally consulted with ; and therefore he had no hesitation in accepting the retainer on the other side. He was sure he had done nothing contrary to the rules of the profession. If there were any fault in the case, it was the fault of the parties. The Vicii•Cnamet.Loa said, that no fault could be attributed to the Counsel. It wasa mistake to suppose that the regulations of the profession were made for the benefit of Counsel—they were made for the be nefit of the Public. There was not a single rule in the profession thatwas not bottomed on public convenience. Mr. AGAR and Mr. Suonera were heard on behalf of the plaintiff. The arguments of the Learned Gen. men lose their interest in consequence of the Irma- CHANCELLOR having early expressed his opinion that the question, which was very simple, should be sent to a Court of Law. He desired tint the case might stand over to Wednesday, in the next week, in older to give Counsel time to-determine on a case to be sent to a Court of Law. COURT OF COMMON PLEAS, NOV. 19. The argument and judgment which were deferred . in the case of St. John v. Champneys, were filially disposed of this day, the Rule being discharged,with costs: We now present our Readers with a summary of the argument, and the judgment of Lord Chief Justice DALLAS, assented to by the other Learned Judges, PARKE and BURROUGHS. ST. JOHN V. CHAN! iNZYS. A Rule was obtained last Term to set aside an an, nuity deed granted by the defendant to plaintiff for .valuable consideration. This annuity was negotiated by Howard and Gibbs; a part of the consideration money was returned by the defendant, and the object lof the present application was to set aside that Rule. Mr. Serjeant VAUGIIAN contended that the de scription of the witnesses to the deed was sufficient under the regulation of the 5.3 d of Geo. 111. The Court of King's Bench, in Darwin and Lincoln, Smith and Pritchard, p. 1452 and 717 Bainewall and Al derson's Reports, held that a witness to he properly described must have his place of abode affixed to his Raffle, otherwise that it is no sufficient desct iption. *But with all deference to that opinion, he considered the reasonable interpretation of the clause regulating the description of the witnesses to any such deeds or bonds, went to support his view ; namely, that de scribing the party as the servant of known persons living in a public situation, was a much better tido iption than that of stating the place where the servant retired to rest, or, in other words, where he domiciled. _ _ The LORD CHIEF JUSTICE—Upon the reason of the matter we might agree, but when a statute is to re• gulate us we are bound by its terms. Mr. Serjeant VAUGHAN considered; as to the de. ' scription, that he had gone far enough, and pro ceeded to argue against the exercise of a summary jurisdiction by the Court in cancelling the annuity deed; such summary jurisdiction being only created by the 58d Geo. 111. under circumstances of a dif ferent nature from those which appeared in this case. He also begged to add that there was new an action pending upon the covenants in the deed, so that the party considering himself aggrieved had his remedy. Mr. Serjeant LAWIS and Mr. Serjeant PEAKE, in support of the Rule, contended that the Act of the 3d Geo. IV. was a complete answer to their argu ments. The deeds in question were executed before the 53d Geo. 111. and if those two Acts were to have an ex post facto operation, their view of the case they considered to be correct; and that the deeds must be cancelled. Mr. Serjeant Neste was proceeding with his ar gument at two o'clock, when the Court rose, the Judges having to attend at the Exchequer Chamber. Mr. Seijeant PEAKS, in continuation, on the next day, contended that the present case should be de cided independently of the 3d Geo. IV. as a clause had been added to that Statute after Sir T. Champ neys was heard by Counsel at the Bar of the House of Lords, which clause declared that in the Act then about to be passed no motion or trial then pending should be affected by it until the Ist of May to the present year. This motion was made before the pass ing of the 3d Geo. IV. and must therefore be de cided by the 53d Geo. 111. the schedule to which Act evidently sheaved that the Legislature intended that the residence and occupation of the attesting witnesses should be added to their signature. This day (Tuesday) the LORD CHIEF JUSTICR pro ceeded to give his judgment. It is admitted on all sides, said his Lordship, that General St. John, the holder of this annuity, had no privity whatever with the conduct or the misconduct, as it may be, of Howard and Gibbs. In substance, the dealing with the plaintiff bas been fair and honourable, and the objection taken upon a part of the money being re turned, is now given up. The only objection then remaining to be disposed of is, that the abode of the attesting witness was not affixed to his name, but only the place where such witness was daily em ployed. It is not denied that the witness could not be found, and there, now remains but a form against the substance and the justice of the case: this form, however, is not the less entitled to considera tion in a Court of Law, and this case is of such a de scription as to resolve itself merely into one of form. —The great question here is—whether the descrip tion of the subscribing witness, not giving his place of residence, but giving his place of occupation, is or is not a sufficient description? In order to dispose of this question, it will be necessary to look to the different Statutes regulating the grants of deeds of annuity and other securities, to the 17th and 53d Geo, 111. and 3d Geo. IV. I shall for the moment reverse the order in which they have passed, and, looking to the Sd Geo. IV. ask if it is not a declara tory Act, and if whether it is not, as such, retrospec tive? If it be declaratory, then there is an end to the question new before the Court. Is it. a retrospec. tivs Act? Then the point now contended for dons not-come within the savieg or provisions of the Statute. The - present case happening before the passing o f th e Statnte S Geo. IV. should be left. xactly on the sans e footing as it would have been ,plaPed before its enact ment. If the Statute be retrospective, then thete would be no occasion to save ank case out of its r a . visions. I consider that this. case was meant to be excepted, and therefore to be left to the operation of the law as it stood before. By the preamble as I clauses of the 17th Geo. 111. it appears that the la :lc tice which previously prevailed in taking annuities was extremely vicious, and required certain forms to put an end .to the secrecy , with which they were grant..d. Now let us see what it was which in a mo ment of jealousy and anxiety the Legislature requited, Not the place of abode or the occupation of any sill:- scribing witness, but the pante or names merely affixed to 'the memorial. Then came the 33d , 111. and in the interim between that and the 17th the same King, crowds of cases started up, which' some degree justified an observation made by aar,. • of the Bar, that those Annuity Acts rather works.; injustice than any public benefit. In the enaetin clause of the 53d Geo. 111. only the names witnesses are required, at the same time that I ant ready to admit the necessity of the enacting clause agreeing with the form in the schedule. A. B.C. L. are in columns; and in cases of lease and relea-e, the word " of" is added, but not the place of ab de tux the place of occupation of the subscribing u irne, ; all this being left to be modelled by the circumstances of each case. Where the Statute tly:u is so open, it must be left to a reasonable interpr,:t.s. Lion, to suppress wrong and advance a remedy. 'f proceed, however, by steps: as to attestation to I deed, it means nothing, except that by finding a wit ness he may be able to say w hat passed at its mei:- , tion. But be it of the lightest or the most solemn nature, the abode or the occupation of the subscribing witness is not required. Ca:.es of this . lescriition mu • be taken on different grounds; notice of bail, service ot process, and other cases of stale a hat the same nature, must all be re g ulated by the esige.lcies of each latiti cular case, anc must depend on the reculiaritiesot eaci The case of Hazlop v. Thorn, alluded to by Counst.l, is not exactly like this now before the Court; fa there the question turned upon what was the vailing practice of the Conic as to the descii r tion cf the subscribing witness. Even admitting (and 1 butts! the case strongly against my own view of it)—but even admiring the term " abode" was placed aitcr the word " of," yet Lord EllenborouFh held, t'aaz abode meant the office or place , altere tke party was employed, rather than the lodging to a hii:ll he re tired for rest. Upon the reason of the thing, and as far as authority goes, the description of a witness is more certain when it states the place of his occupation than the place where he sleeps. It was said, ha X. ever, that on application at the office °I the employer, they might refuse information. In the fast place, why anticipate this? May not the same thing happen at an obscure lodging? So far there appears to me nothing in that objection. In a case Ist Bosanquet and Puller, 798, an objection was taken to notice ei bail, because one of the bail was ee,cribed as of Cop pice.row, where he carried on his business, his do micile being in Southampton-row; but then t:: e Court held the description to be fully sufficient. The sta tute itself must have a reasonable construction ; and if the party is bound to describe himself at all, his abode not being such description, it is not necessary. Where a blank is left for what is to be done, I think the attestation as in this case quite sufficient. We were very much pressed with two decisions in the Court of King's Bench. No one, I may say it, !!..s a more unfeigned reipect for the Judges of that Cea:t than I have: but it is now by no means necessary for us to put ourselves in the same situation with tl'a Court; and I shall state my reasons. When thole decisions took place, they were principally if rat wholly founded on the 53d Geo. 111. but since then came the declaratory Act of the 3d Geo. IV. The i3d Geo. 111. was so obscurely worded that parties might be misled by it, if they did not know exactly what it meant; and how could that be known when the Act itself speaks in doubt of what is the law ?-- These two cases stood on doubtful grounds, and to ex pound and do away these doubts came the Statute of 3d Geo. IV. In the 53d Geo. 111. the abode of the witness is not required—in the last Act it is act re quired ; and the law now says, that neither the abd!: , nor place of occupation is required ; but the name names only. Here, then, all doubts are taken asray. Here is the 3d Geo. IV. explaining the 53d Geo. and on general grounds of reasoning this must be :Te construction of the declaratory Act. Seeing, on :Le whole view of the case, that to satisfy justice the Le gislature requires the names only, I am of opinica that there is as little of objection in this case to its form as there manifestly is to its substance. Justices PARKE and Burtftoucen concurried with the LORD CHIEF JUSTICE, and the Rule . was dis charged, with costs. MARRIED. Nov. 16, Mr. Effingham Wilson, of the Royal Exchange, to Maria, daughter of the late T. limes, Esq. of Brown:nu, i:e-c.. March 15, at St. John's Cathedral, Calcutta, Jas. 51..h.etz..., Esq. to Miss Ann Forbes Ross, second daughter of Capt. D.., I Ross, of Howrah. Nov. 9, at the Manse of St. Andrew's, Major P. Dunbar, the East India Company's service, to Jessy, cl.l4,lltcr of the v. Wm. Leslie, of Balnageith, county of Moray. Nov. 12, H. G. Kersteman, of the Royal Artillery, to C line, daughter of Wm. Purlewent, Esq. of Shepton :fier. DIED. August 25, at Jamaica, the Rev. James Daun, 11. D. Ileac; of Westmoreland, and Chaplain to the House of Asst.mbli. Nov. 16, at Clapham, aged 67, Henry Pigeon, M:•; ; " strate and Deputy Lieutenant of the county of Surrey. Lately, Captain George Johnston, of Greenock. Ile.cro:• 4 the Atlantic no less than 172 times ; and that not merely ultiva: once being wrecked or captured, but also without haling trel with a casualty of any kind, se as to have occasioned a Lan t 4 the underwriters on the ships under his command. Nov. 11, at Lebanon, near Cupar, rife, Mr. Aiezatele Brown, land surveyor, at the advanced age of 80. - MA 11,51. arta. DU a.. Dublin 1 0 Wate. 4 :ord 0 Guernsey and Jersey 0 0 Lisbon 0 0 •sis. sivs. France 0 1 Ilaniburgb 0 2 Flanders 0 0 Maltz 0 0 Gottenbursh 0 2 Brazil 0 0 ____ Holland 0 Leeward Island, u 11110/1-WAlSitat LONDON BULDGE TO-24101:1tONN• Mcztung . . - 39 minute , after I itittfilourt - - atinutts after I ; Fciiited vad published by !ASIA Ksbx, ncirtio vlacci fl ~_ - . ,