Star. — London, England, 1822-11-27 00:00:00

LAIV INTELLIGENCE. .COURT OF CHANCERY, NOVEMBER 26. GORDON V. (CORDON. The LORD CH ANCELLOR.—I have looked at the papers now. What order do you please to apply for, Air. Knight? Mr. KNIGHT.—The case was supposed to have been finally heard here ; but Mr. James Got don has put in a reclaiming petition, and the application now made was to prevent the other side from pressing for a hearing in the Court of Session in Scotland, until the reclaiming petition should he heard here. The LORD CHANCELLOR.— W hat I 'WWI is this— to provide that whenever the case shall be finished here, it will not be to begin in Scotland. Mr. WINGFIELD said, the fate of the case in Scot land alight be decided by the fate of the case here on the re-hearing. 'Mr.linies Gordon begged to state to his Lordship, that it Was supposed in Scotland that all the papers had been before his Lordship here. 1 The LORD CHANCELLOR.—No ; that cannot be sup posed when it is contradicted by affidavit. Mr. KNIGHT asked his Lordship to allow Mr. Gor don time to consider of the state of the case ? The LORD CHANCELLOR —You should look to gether over the papers. Mr.WINGFIELD said, they ought to have come pre pared with their own application. Mr. Gordon.—His Lordship would see the unfair advantage that was taken of every step in the pro ceeding. Not only so, but it had been said that bis Lordship had refused the reclaiming petition. The LORD CHANCELLOR.-4 don't believe one word of that. PARKHURST V. LOWTEN. This case was an argument on a demurrer to cer tain interrogatories put to Mr. Godfrey. The original question had been the obligation of the defendant to account to the plaintiff, and the objection set up was; that accounting for the sum of 46000 expended in the purchase of a church living, would involve the defendant in simoniacal charges. Mr. Godfrey had been the solicitor in the transaction, and to interroga tories put to him the demurrer was put in. The ar gument was part heard before. Mr. SPENCE and Mr. ATTORNEY-GENERAL were now heard on opposite sides, and that was admitted to be the conclusion of the argument. The LORD CHANCELLOR.—The question is, whe ther Mr. Godfrey has given reasons to justify his re fusal to answer ? One great objection is, that the in terrogatories tend to criminate Godfrey himself. Uti les: that can be proved, that the answers would dis close simoniacal transactions is no objection what ever, if the plaintiff has a right to an account. I shall look whether it would criminate himself, this even ing or to-morrow evening. I cannot say, but all the' i ifermatiori required from Mr. Godfrey might be ob tained by a twenzieth part of the interrogatories. He is very much distressed by this mode. Let it stand in the paper for Friday Morning. CLAY V. LADBROKE. Ice person appeared. The LORD CHANCELLOR.—Is that gone to Cam- ' budge? Don't strike it out, for the parties may have been taken by surprise.—His Lordship rose at o ie o'clock. VICE-CHANCF.I.LOWS COURT, NOVEMBER 26. BAYLF.Y V. SNELHAM.—JODGMENT. The VICE-CoaNceuma, on coming into Court, delivered the following judgment in this case. In this cause a bill had been filed for the purposes of establishing the trusts of the will of John Snelham, deceased. The testator commenced his will by stating that he had lately married Jane, the sister of his de- ceased wife Mary Snelham, in Scotland, according to the form and usages of the Church there, and them went on to dispose of his property. He directed that all his estate should be sold, that his wife should ' have the interest of the produce doling her life,.and that after her death the bulk was to be equally divided among the children gotten and to be begotten by him upon the body of the said Jane Snelham, his wife. He further directed that his wife and children should take the provision assigned to them in the same man ner as if he had been married to his wife according to the Church of England. It was objected at the hearing of the cause, that a marriage in Scotland, of a man to the sister of his deceased wife, was not a valid marriage. By the law of England such a mar ria,;c is voidable, and not void ; and it is valid, there fore, until sentence is pronounced against it. In con sequence it was argued, that if Jane was never the lawful wife of the testator, her children could not 'take the provision intended by the will; because the law does not permit a. man to make a general gift to future illegitimate children. I at first intended to have directed an inquiry as to the validity of the marriage, but it was urged on the other side, that such an inquiry must necessarily be attended with considerable delay and perhaps expense; and that it ought to be avoided. unless it was absolutely essen tial for the purposes of the cause. In order to shew that it was net essential, Counsel contended that al though the proposition could not be disputed, that a gift generally to illegitimate children was not valid, yet that the gift in this will was conveyed in terms which intended to give the benefit of it to the chil dren of Jane, although she should turn out not to be his lawful wife. I was much struck by the language of the will, and was not sure that I could bring the case within the reach of any that had been decided, and I desired it to stand over until I had considered that point. After examining the case with very great attention, I am glad to say that I am of opi nion it comes within the prinCiple of former de- Cisions, and the children will take under the will, even although it should unfortunately turn out.that by the law of Scotland they are illegitimate.— I say I am glad that I have formed this opinion, be cause it is always gratifying to a Court of JUstice to come to a conclusion by which provisions that are founded on the best feelings of the human heart can be established. The case of Wilkinson anti Adam, wliich received a more elaborate consideration tha perhaps any other case ever before received, ha; cleared the present case of many of its difficulties, and settled the law upon the point in question. In the former case •the disposition of the testator was a gift in'the following terms—" to the children which I may have by Ann Lewis, who may be living at the time. of, my death. ,or may be born -within .clite time afterwards." The testator was a married man, and Ann Lewis was obviow It was cont your of Meg, valid. It the law does tc gift to ilk it did make is hat provision he thought fit for person, living . at the time of hit making his tvill, and'; ti fie might believe to be his illegitimate chitireii ; . and it was said that in the case which was then being ar gue 3, the testator had not made the illegitimacy of the children a condition of the gift; but 'used It only as a description of persons : he gave to A, 13, and'C, whom he considered to be his illegitimate Children ; it was a gift to persons known in the world by that 'description. It was admitted that the gift was not good with respect to any children who might be born after the death of the testator, because that was against the policy of the law. The Court proceeded on this distinction, and established the yai:Jity of the gift. The question is, whether in the present case'the reasoning is not stronger in favour of the children. than it was in the case I have referred to? Here all the children whom Snelhatn happened to have by Jane, were born at the time he made his will. It is admitted, that no child born after his death could take under the will, if the marriage shotjld prove to be illegitimate. lam therefore of opinion, that it is unnecessary to institute an inquiry into the validity of the marriage according to the Scotch law; because, admitting for the sake of argument the marriage was not valid, still the testator has made an express gift to children who had acquired the reputation of being his; and their illegitimacy is not made the condition of the gift, but merely the description of persons.— Take a Decree that the mother is entitled to the estate for life, with remainder to her children. EX PARTE GRIMSTEAD IN THE MATTER Or HOWARD belief that they ttrm-Fortinfe from inatientiOn than trothlgi tniproper having stood over unia tiros Ay, an. opportunity., tinswering the de above-mentichied; affidavits were accordingly, which went to shew, that the defendant had been guilty of various ,other acts of peculation and fraud whilst he held - the office of stir preyor—that the ofECe of surveyor, though it had no kulary attached to it, had been sedulously sought after by the defendant, and that he had prevailed upon the Magistrates to appoint him for a great number of years continuously, and that during the last nine years he had defrauded the hamlet of no less a sum than £1,800; that on one occation,when his accounts were objected to, he tore out some leaves of his book, and substituted others, for the purpose of disguising his fraud—that he was a person without children, unincumbered, and lived in handsome style upon his wife's settlement. Mr. Peppercorn, in the fresh affi davit now produced, distinctly denied the imputations cast upon him by the defendant. In instituting this prosecution, he was influenced by no hostile feeling against the defendant, but acted entirely upon public grounds, and from a conviction that the defendant had been guilty of various -abuses in his office. He solemnly denied that he ever applied to the defendant to advance him 1001. out of the highway rates for any purpose, or that he had ever used any threatening expressions, importing that he would persecute the defendant until he had effected his ruin, or anything to that effect. The COMMON SERJEA NT, Mr. ADOLPHUS, and Mr. CHITTY, addressed the Court on behalf of the defend ant, and urged the defendant's unhappy situation as a fallen man; who, from having maintained through his previous life the highest chOacter for integrity and honour, was now brought before the Court as a culprit. The defendant, under such circumstances, threw himself upon the compassionate and merciful consideration of their Lordships, trusting that they would view his case with lenity and forbearance. Mr. GURNEY and Mr. F. Pout i ocK, for the prose cution, spoke in aggravation, and contended that there was not a single circumstance in the case which enti, tled the defendant to any lenity. For a series of years he had been guilty of systematic fraud and pecu lation, and public justice demanded a severe exam ple, in a case marked throughout by no redeeming feature which could entitle the defendant to a mer ciful consideration. The COURT ordered the defendant to be committed to the custody of the Marshal, and brought up for judgment to-morrow. COURT OF COMMON PLEAS, NOV. 26. IN RE ISAACSON, CLARKE, AND BROOKES. This was an application to strike the two first named persons off the rolls of the Court, and to call upon the third to answer for certain matters alleged in the affidavit. Serjeant PELL was heaed to-day against the Rule. Serjeant VAUGHAN was in part heard in support of its being made absolute. The further hearing of the case was postponed. HIGH COURT OF ADMIRALTY, NOV. 26. s was ant his wife.; hit i t loa,on, therefpre r lt apressed -their asly to provide for his siletifiintiti children.l negligence and tended that this was a gen,eral, gat in ta- ' rant ing & ail legitimate children, and such was not - The-case havh was answered, that although the policy of Mr. Peppercorn ocs not permit a mad to make a general fendant's affidavi legitimate children, it did permit him to .now put in accoi • • _ d. h... 1 el AND GIBBS. The VICE-CHANCELLOR observed, that he had stated on Saturday that he would decide the question of costs in this case, after the action at law had been tried ; but upon reconsideration he thought it would be best to dispose of it now, when the facts were fresh in the minds of all parties concerned. Mr. BELL stated, that he had been instructed to inform his Honour, that if Mr. Grinstead had agreed, at the suggestion of the Court, to change the action at law into a suit, the question could not have been tried at the time fixed, because a new record and a new Jury process would have been necessary : other wise, none of the witnesses could have been prose cuted for perjury if they had falsely sworn. The VICE-CHANCELLOR thought it necessary that some inquiry should be made into the correctness of this statement. It it should turn out to be true, the assignees must pay the costs of the application which he was called upon to decide on Saturday ; is other wise, they must be paid by Mr. Grimstead. Mr. MONTAGUE assured his Honour, the consent of Mr. Grimstead to the proposed change of the na ture of the trial would have been unavailing. If, how ever, the assignees thought otherwise, Mr. Gritnstead would now consent to what was asked. His HONOUR said, that it would save expense if the assigaees would accept the consent. Mr. HORSE, on the part of the assignees, agreed to take the consent of Mr. Grimstead. The case stands over to the last day of Term. EY•PAItTE SHAW, IN THE MATTER OF HOWARD AND GIBBS. Mr. HORNE stated, that this was a petition from the present assignees of the bankrupts, praying that the defendant, Mr. Bowen, who had been the mes senger under the former commission, might account for the wines and spirits which remained under his care in the cellars of the bankrupts, from the month of February to the month of August, 181 ; and also that he might be restrained from proceeding in an action at law against the present assignees, for a debt -which he alleged to be due to him for services per ' formed under the former assignees. The Learned Counsel was proceeding to open the case, when Mr. MONTAGUE objected, that the former assignees ought to have been made parties to the suit. The VICE-CHANCELLOR thought that the objection must be sustained. It might appear that the de fendant had acted in all that he had done under the directions of the former assignees, which he was bound to obey. The former assignees, and not the defendant, were liable to account to the plaintiff. Mr. HORNE admitted, that if this had been a bill, it would have been necessaty to make the former as signees parties; but he maintained that it was not re quisite, on the presentation of a petition, to fix upon more than one party. The defendant must defend himself as he would in an action at law. The VICE-CHANCELLOR directed the petition to stand over, until be had an opportunity of talking the subject over with the Lord Chancellor. COURT OF KING'S BENCH, NOVENIBER 26. THE KING V. WILLIAM ANDERSON. This defendant had pleaded guilty to two indict ments charging him with embezzling divers sums of money in his capacity of Surveyor of the Highways in the Hamlet of Mile-end, Old Town, with intent to, cheat and defraud the inhabitants of that hamlet. The defendant was brought up yesterday to receive the judgment of the Court, and on that occasion put in an affidavit tending to impute to Mr. James Pep percorn, the prosecutor, vindictive and malicious motives for this prosecution. He alleged, as the cause of Mr. Peppercorn's hostility towards him, his refusal to advance to that individual, some years since, the sum of 1001. out of the highway rates for the purpose of building a wall kt the end of his garden. He im puted to the prosecutor expressions of hostility towards him, to the effect that he (the prosecutor) would not cease to persecute him (the defendant) until he had effected his ruin. With respect to the charge of em-. bezzlement, .he said, that the errors in his accounts arose entirely from inadvertence, and not from any wilful intention of committing a fraud upon the in habitants of the hamlet, and that he had offered to make good any deficiency' which might be found to exist upon an investigation of his accounts. ' He described himself as a person of very humble cir cumstances, and depending entirely upon his wife's private settlement. Affidavits were also put in on his behalf, made by i several respectable persons, who had knoWn him for a period of twenty years, and they described him as a man of the strictest honour and-integrity, and Inca• pable of any deliberate act of dhlultiesty..ll knY errors were fuund iu his accounts, the deponents CAYENNE. Dr. JENNER said, that this was a case of a capture of booty by a conjunct force, naval and military, by his Britannic Majesty's ship the Confiance, com manded by Sir James Lucas Yeo, deceased, and by a Portuguese army of 1,400 or 1,500 men, in Janu ary, 1809. Cayenne surrendered by capitulation to this united force, the settlement (Guiana) being ccded to the Portuguese. The shares to be taken as of the proceeds, by the Portuguese troops, and the Captain, Officers, and crew of the British ship, were, by con sent, to be subject to arbitration in Europe ; an eventually 32,7001., was remitted from Portugal to. England, as the share which had been allotted to the naval part of the armament in question. Owing to, the embarrassments of the Messrs. Broughton, into whose bands-this money had been paid, a sum not exceeding 11,5001. had been finally paid into the re gistry of this Court. Upon this sum the Agent had, as it was conceived, by mistake, paid over the five per tentage, which, under various Acts of Parlia ment, is directed to be paid into the treasury of Greenwich Hospital on ail proceeds of prize, con-'I demned as naval prize. It was now to be contended before the Court, that this was. a case not of such.a ' description ; that it wts not, therefore, within the' meaning of those Statutes ; and consequently that the Court would decree Greenwich Hospital to re fund the same. For this purpose a monition had been taken out on behalf of Sir James Lucas Yeo (repre tented by his son, the present Sir Jas. Yeo), and..the Officers and crew of his Majesty's ship Confiance. On the part of Greenwich Hospital, a protest was at first asserted, but subsequently waived. The present case must depend on the enactments and provisions I of the 46 Geo. 111. c. 101, 102 ; and the 51 Geo. 111. c. 127. The Court was perfectly aware that the 16 Geo. 111. and some preceding Acts had directed the payment of 11. 1.35. 4d. per cent. on the proceeds.of srll naval prize, and that the 51st of the same reign directed_a further payment in all similar cases of Si: Bd. per cent. making altogether 51. per Cent. and this was confirmed by the language of the 55th Geo. HI. c. —, sec. 2. The whole of the question here was this—Was the capture of the booty taken at' Cayenne effected by a naval 'fojte, or by a conjunct' expedition of sea and land fortes? That this Was' a case of the latter descriptiOn; the'circumstances which had been detailed could surely leaven° doubt: the military or Portuguese force was very considerable; the naval force consisted of the Of and crew of a single British ship. Thereforethis was not a purely naval capture. Now the Court hid already decided,. in the well-known case of Genoa, and again iwthat of Java (both of which had beettlaken 'by the cot j uncv operations of sea and land forces); that the &ants or proceeds were not liable to the paynient of the Ave per tentage. He submitted, therefore, that in' this instance the per tentage had been erroneously and ought to be refunded. ' • ' Dr. LUSH INGTOW, an the same side. wavrathet posed to rest this case or the 57th Gen. 111. c. IV; I which had a clear reference to ptirely The Court had already decided This case in the jutii ment which it gave - in the case of Genok' wheji it observed that the 57th of Geo. HI. did hot apply to ' conjunct 'expeditions. SO in the case of the grant td Lord Keith, and the.natalforcelindeetis toturnant,' ' for prize captured owthellprtfrtofist of Spain - the ..Court said' that theenwich Hospital w a s entitled to the gimlet , eentag.whkiltrit dote claimed, . because it was naval prize captured softly by the navy. I n the present case ix was grant of a completely dif. ferent description. The Ktsto!s Aneocarr, with whom was Dr. An. NOLO, retied on the terms of the present grant, which was, for prize or booty (for here the distinction was quite immaterial) captured by the navy, by that pa rt of it which assisted the Portuguese troops. As to conjunct expeditions, there was this very material distinction, on the other hand, to be taken, namely, that the Act, and this Court in the case of Genoa, contemplated conjunct expeditions of his Britannic Majesty's sea and land forces. .Now the capture o f Cayenne could hardly be considkred in that light ; .for the military were entireTyPortugnese; and it was not enough to say that they, were our allies at the time, or that they were hostile to the French. The Learned Counsel contendkd that Greenwich Hospital was justly entitled to . the per tentage. Lord STOWELL said, he could raise no doubt in his own mind as to what _the Court was bound to do on the present occasion • and that was, to abstain f rom calling on Greenwich Hospital to refund the money which had been paid. in, the shape of leer tentage, by the naval agent, in consequence of this gran,;. TLi; was driginally a conjunct expedition, inasmuch . as hi; Majesty's ship Confiance participated in the darvJers and difficulties which. attended Ole capture of enne ; and in the granting part of the original grant it was considered and described as a conjunct expe dition. But under what circiirmtances did it stand now ? A variety of proceedings had been had, in non: of which, neither in the ter ms of the grant is eif, was any mention made of any other share. 'Ili:, therefore, was solely to the navy, so far as I t:ariied the proceeds actually before the Court. Under :lier:e circumstances, the per tentage had not been paid in L error; and the Court would, therefore, dismi'.s een , wick. Hospital from all further observance of this suit (with Costs). THE ELIZABETH. On the . night between the 30th of November and the Ist of December, 1821, a ship, called the Eliza beth, was driven on shore .in the mouth of the rit•cr Mersey, and wrecked on some rocks on the!Chehire. side, called the Red Roses., In the morning a tar, nrc, resident.in a neighbouring village, called Wallasey, of the name of. Eaton, accompanied by Samuel Fry, brought down his cart to. the coast for the purpose of carrying away a, cask which they had observed in a large hole in the sand made by the wreck, the ship's bottom having .paraed from her upper works. I. ap peared that . kbis cask, which was marked " Rice," but had several seals upon it, hid been stowed aw:y for greater safety in the run of the vessel, as it is called, under the slanting*part of the cabin, and alaive the ballast, which consisted of paving stones. It had been washed away into the hole in question, and was partly projecting out of the sands when these two in dividuals, who appear before this Court in the cha racters of salvors, first found it. They, with the as sistance of a man and a boy, hoisted the cask, tviiich was exceedingly heavy, into the cart, and were in the act of driving away, when W. Dean, a riding officer of the Preventive Service, happenitig to pass by, in sisted upon seeing what the cask contained. They told him rice ; for it was marked " Rice." With the assistance of a ship's scraper that had been taker from the wreck,.and was, together with some old sails and cordage, put into the cart, Deane succeeded in opsnitig the cask, when out tumbled a large, hair bag, .full of gold pieces of the coinage of England, America, and Portugal ; in weight 29'25 oz. and in rake about £lO 000 Deane said he must have the property ; but Eaton swore with an oath that no man should have it from him. It was at length agreed bets een them that the cask, with its valuable contents,should be deposited in the hands of the Rev. Mr. Campbell, a neighbouring Clergyman, and a Magistrate of the county. The Master and the surviving pail of the crew of the Elizabeth were at the Magazine in Wal lasey, in bed, and severesufferers by the wreck, wlieti it first °Canned to the Master to send the pilot to search on the shore for the cask in question ; but he arrived just after Eaton and the others had loft,- and too late, consequently, to recover it. The whole of the money has since been returned to the consignees. The KING'S ADVOCATE and Dr. ADAMS opposed the grant of any salvage to Eaton and Fogg, on the ground that it was extremely questionable whether or no they were not intending to carry away the pro perty, and convert it to their own use when overtakta by Deane. Dr. JENNER and Dr. LUSHINOTON were heard on behalf of the salvors. • Lord SrowELL observed, that there was •nothing that tended in any way to attach just suspicion to the motives of these parties, who had morecver the very strong evidence of the Rev. Magistrate, Mr. Campbell, in their favour. There was little difficulty or danger, undoubtedly, in the salvage they had ef fected ; but through their instrumer.taLty the money had finally reached its rightful o•.rrets'; and he should, therefore, give to Eaton, by way (4 - salvage allowance, £lO5 ; to Fogg, £2o, and to both timir costs. It would certainly have been more graref,l, and less invidious, in the owners to hare made some offer of the sort, at least, to the parties, before they brought the matter into Coutt. : . • MARRIED. , Nov. 10, at Cork, John Weitrop Carey, E. late of the 30:11 Regiment; to :Margaret, daughter of the Rev. !Lula 51•CLLfthv. In 'Dublin, Henry Geoghegan, Esq. of Lresm.strtet, tcr3its. Heffernan, relict of James C. Harman, libq. a the 'ROYAL County Limerick 31i ItLa. At ltathonan Church, county of Tipperary, the Rev..G. E. / Eagle, only son of Dr. Eagle, of Lite 111edlcal Staff in Irelatid, rts Mary Frances, only daughter of .Vichsel Hamerton, Etq. IPt E. D. Nov. 2!, at his house, Dine-stile, Greenwkh, in the .. I Mh year (KM, age,. John Fielder, Esq. Purveyor to his 5! tjesty's' Forces. Nov: is , aged. 57, 51r.. it. C. Andrews, of Twilit idgc-grrtt, i! New-ro . iiki, late Artist of the Theatre Royal, Drury-I.:me. ,Friday se'nnight, at Glasgsw, Mr. William Pylitock, teacher, 'Lime, eldest con of Mr. Dymock, Grammar School, OlasS".• :11AILS. ARR. nu E. 1 0 ♦ Kit. 91;16 France 0 0 Hamburgls 0 3 Randers V 0 Malta 0 0 Gibttenburgh 0 53 Brazil 0 0 Waterford . 2 1 Guemey and Jersey 0 1 - .I.ighon 0 •0' Rolland 1 o Leeward Tslands 0 0 HIGH-w.t . rxti AL LON DON lilt DG TO- Atiii • ?doming - - 4 Alilltatt iite• 1 Attert!tron • 24 minntti after I :.7 - : ..I.t)NOON:' Printed AndlnittZtti•d•loy4.lviel. Kai; I'iclcts plact, Loup I S 1 ' 9 l