The Express.
London, England, 1862-04-28 00:00:00

LYM

Mr. fferjeaat Parry Ind that this was an interpleadez
issue to try the validity of • bill of sale, and upon the hear-
ing before Mr. Justice Williams a few days ago • verdict
was directed for the defendant, subject to the opinion of
the mart. The present manna was fora rule to eater a
verdict for the plaintiffs. The bill of sale was dated the
29th Jute, 1841, sad it was gives to the plaintiff@ by John
Dickinson, of Montague Home, Old Xenia, in the county
of Surrey, gentleman.
Mr. tierjeant Peteredorff, for the defesdanta, called wit-
ness= to show that at the time Mr. Dickinson was
described as a " gentleman," he was not • gentleman—
=iteerir)—and the learned sernent contended that the
ption vtiated the deed.
Mr. Justice Byles—lt was attempted to show that he
was something more than • gentleman.
Mr. Justice Willes—A gentleman was • moon living
without any occupation.
Mr. Serjaant Parry observed that he had applied to Mr.
Justice Williams to define what was • "geetkman," but he
had declined to do so. If the deleting' fun given were suf-
ficient, the description also was sufficient, for Mr. Meninges
was living without any occupation. Prior to November,
1860, he had been in busbies& as • shirt-maker, but in that
month he became b
Mr. Justice Byle=4.Pon contend that his blooming
bankrupt made him • "gentleman.." (Laughter.)
Mr. Serjeaot Parry—Yea, because he ceased to follow
any. occupation. There was mother objection raised. Mr.
Serpent Petermann! proved that upon the 2nd July, 1861,
Mr. Dickinson took chambers la the Adelphi, and eom-
mewed • amoral agency benison, and on the 16th July the
affidavitlproving the axemlion of the bill of sale was tiled,
and in that document also Mr. Dickinson was described as a
" gentleanao." The *adios was that at that time, at all
events, Mr. Mildews was in business. Upon them objec-
tions the earthen was entered for the defents, but it was
now submitted that the judge MY not warranted in adopt-
ing that mune.
Rule granted.
COLOORN AND 0111118 9. MATTA& --INCOIII TAX.
This case was argued on Friday, the question being
whether a provision in a lease granted in 1807 that the rent
should be 3401. a year during the continuance of the income
tax and 3301. whilst that tax was not in existence, applied
notii:s to the tax which existed in 1807, but also to that
ins by Sir R. Peel in 1842.
. Justice Willes, in giving judgment, earl that the
court were of opinion that the provisoapplied to the later as
well as to the earlier income tax, and therefore that the
plaintiffs were entitled now 1842 to hoped the higher rent.
IJudgment for the plaintiffs.

.... /
Banks' property ? It was demTr that he bad made hair be-
lieve than he was bee huthand, and the will had thus been
obtained Irma her by freed, even admitting that she haul
executed it willingly. He (thy learned counsel) could only
say that if such a 'theme as this succeeded, a court of
juntas would be made ea instrument of injustice, and crime
wield floarieb. bad virtue would look elown.
The leaped serjeant resumed hie seat amidst some
cheering.
Dr. rhillimore, Q.C., in reply, maidthat if it was metier of
public notoriety that Dr. limethrint bad been convicted of
murder and sentenced to death, it war equally matter of
notoriety that the sentence had been reversed by the
sown after the most careful consideration. and after such
an exhibition of the fallacy of Tamagni evidence as had
never before been seen In the course of a judicial investiga-
tion. There was nothing to render it at all incredible that
the testatrix bad really preferred to make Dr. Smethurst
the object of bar testamentery bounty rather than any one
of her relations, and he (the learned counsel) must protest
against the idea of treating Min Banks—a lady of forty-two
—es if she had been the victim of Dr. Smethurst's seduc-
tive arts. If ever there had been a case of a lady throwing
herself into a man's hands it was surely the present.
There was really no remora to believe that the
testatrix bad done anything in executing the will
that she would not gladly have done a fortnight sooner,
when her acts would have been unquestioned. In fact,
if the crown was right, if Dr. Smethurst was innocent of
Miss Banks's death, the evidence only want to establish the
probability of the will having been a perfectly voluntary
transaction. One of our poets had truly said-
- " Entire affection won:oth nicer hands,*
and no greater proof of love could be found than for a
person to volunteer the performance of such menial offices
as belonged to • sick room. That was at first the opinion of
flies Louisa BMA" herself, sad that was the view which
the whole of the evidence went to justify. But if so warm
se attathasset existed between the parties, what so natural
as that Was Banks should be anxious to give her paramour
what little wealth she had at her disposal? As for
the plea of fraud, there was &handset evidence
to rebut the charge. The simple foot that the testatrix had
described herself in the will as "Isabella Burka, spinster,"
sad had signed her name as "Isabella Banks," disposed at
once of the allegation. No doubt the ors presented some
difficulties, but he (the learasd eivilias) had great OM-
fitionew in the di...ermine of the jury. It would be easy for
them to give what was called a popular verdict, and by re-
fusing to acknowledge the validity of the will inflict on Dr.
Smethurst a penalty beyond the punishment which bad been
inflicted ou him by the law ; but such a course would not
tend to increase either the public respect for the adminis-
tration of justice, or the pubilo regard for that peculiarly
English institution—trial by jury. It would be easy for
them to give a verdict that would meet with applause
without, and perhaps within the court, but he felt confident
that they would be able to resist the temptation to do so.
If they were satisfied that Isabella Basks was in • con-
dition legally to confer her property on the partner of her
guilt, he was satisfied that they would establish the fact by
them verdict. Rumen justice mast always be imperfect,
and eves if the jury felt that there had been any failure in
Dr. lhastbunt's case, they would be coatent to leave him in
the bosh of that Justice which, at the proper time, and
is the pauper way, would remedy all the errors and mistakes
d earthly tribunals.
Sir O. G`resswell then proceeded to lay down the la w,
width he did with unusual minuteness, because, he said, it
wadi be I4Le in him to pretend that he was not aware the
jig mid have formed a most unfavourable impression of
the phial& He (Smethurst) had admitted himself to
brie bees guilty not only of gross immorality, but of
be mimes both of perjury and of bigamy. He
presssid Wendt to the court as a man avian
whom imam mature must revolt. All the best
feelings of the heart would be roused by the ides of a
shim like the present being made by that man, and there
was danger, therefore, lest the jury should be led away by
the 'optima which his appearance before them as • suitor
wadi so naturally excite. Nevertheless Smethurst bad a
=, the executor of the will to bring it, if he pleased,
the court for probate, and to claim the
CP:ry if he could get it. If he could ober&
opey be might perhaps say, " points tat sibilat, at
mlhi plaudo I" As to the due execution of the instrument
be suppesd that after the evidence of Mr. Senior there
sedilie en seasonable doubt ; but with reprd.to the idle,
piles of amiss isfluence—that was to say of importunity
emenating to absolute control—the jury must judge for
themissives from the feats which had been detailed in evi-
-1 drum His lordship then pointed out the singular contrast
ameba& been between the plaiatirearcount of theroluctance
imbed felt to sow the will tabs made, and the pains he
bed taken to have it executed without the knowledge
either of the lady's family or of her physideste. The en-
dows allowed that he had
sated the part al *kind and tender
nurse to the deceased ; but on the other head it bad dis-
closed the fact that she led beer' kept In a most remarkable
state of seclusion, a circumstance which it had always been
held ought to excite the vigllancs of the mart. With ro•
vest to the plea of fraud, he (Sir O. Cromwell)
' should deliberately hold that if the plaintiff bad misled the
testatrix into supposing that he was her lawful husband,
and she had made the will in his favour under that idea,
the instrument would not be valid. But bad be done so?
On the one hand there was the fact of the signature
" Isabella Banks ;" and on the other there was the evidence
of Miss Leanne Banks that her sister had told her Dr.
Binethurst was not • married man. Nor could he (Sir C.
Cromwell) for the life of him understand why a woman
, should enter into a privets marriage to satisfy her friends ;
lor how it could satisfy her corisoienee to add to the im-
morality of an illicit connection with • married man, the
mockery of a solemn religions geniis for which Dr.
fleastimust could have been prosecuted, and she
eirsid have bees herself punished likewlikewiseas an
accomplice. In conclusion, the learned judge mad
that whether at the former trial justice had been done
I was no concern either of his or 'of the jury's. They had
eiwrgyietoLeteweradthe issues raised on the record, namely,
been duly executed, whether at the
time of whether the
it the deceased wasof teatainentarycapacity,
whether it bad been obtained from her by undue inffuenos,
amounting to ooutroul, and whether it had been obtained
from her by fraud?
After about fifty minutes' deliberation, the jury found a
verdict for the plaintiff on all the junco.
Mr. Serjeant Ballantine—There will be a further ques-
tion as to carts.
Dr. Phillimore—l make no application on the subject.
Sir C. Creeswell—Then I make ao maw about costs.