The Express.
London, England, 1849-11-29 00:00:00

COURT OF BRCREQURR.-YESTERDAT._

Nen rims--Barona Ili F. P0W47141. ,nu • WISRMIPITZ
Onones Jen.
LOSD COMM:NAY AND Anal= X. HAWORTIL—ACTION
ON • Bonn.
Sr F. Tinnier. Q C., mad Hr. ROOgiss, were venial for
the plaintiffs. Mr. Atherton and Kr. Southgate (of the
equity bar) onducted the defendant's case.
This was an action of debt upon a bond conditioned for the
payment of 4001, with interest, lad bearing date 21st June,
1841. The plaintiffs, Lord Courtney and the Rev. George
Pali/mere, were the trustees of a marriage settlement, els-
enemies the marriage of the defendant's brother with Lady
Mee/Mllsabeth Leslie, In 1835. The defendant pleaded that
he did nee make the bond, and that 8101. lie. 9d., pert of
the curt gamey, having been paid to the ilaintiffs. it had
ham arae that 4001, of it ahead be advanoed to Captain
Haworth, deffethaa's brother, he his own use in breach of
the Meth ad OM It siassail be awed by the joint bond of
the delbeileet and his bather ter 4001. The plea then stated
Melt try the MIA sale, mad allusion of the plaintiffs with
LeedDemm, flather, LoniOmetesav, although only 3001. w as
pailltethytilawortla,theband was executed by thedeleadaut,
mid the maim of the aid one of 8101. 161. 9d. was paid to
Lard Dews. Pam the learned counsel's statement it m-
=6, yleletillb sought to recover only 3001., the bond
lam Mem an the 21st of June, 1841, for 4001., as an
Weer ity carless die probable consequences of the breath of
trust In naming a mash of the trust money to the defer
dent's brother. In 1811, part of the trust money having
been paid to the plaintiffs, they consented to advance Capt.
Haworth 3001. upon the security of ash- joint bond of himself
sad his brother, the defendant, for 4001. It was then aro
oma that the residue, unountint to 5101. 15e. 9J.,
s be lent to Lord Devon. On the 18th of June in that
year the plaintiff., In pursuance of the arrangement ro pre-
Amity made, signed an order upon Childs' bank in Captain
Hawarth's favour fee 3001 aad also a check in Lad Devon'.
favour for 5101.155. 9d. Both sums were paid, and it was
now sought to recover back the sum advanced to the defen-
dant's blether. It appeared a bill was filed in Chancery on
behalf of Captain Ilaworth'e children, calling on the plaintiffs
to Haunt for their broach of trust, and requiring them to
replace the monies which OilltO into their hinds as trustees
ceder the settlement of 1836. In their answer, the p:ain-
tiffs explained the trazeaction as it had occurred. 'They
wen el earn, responsible for the money that came to their
hands as trustees, and were, therefee, obliged to bring the
present salsa against the defendant, who was liable for the
tam paid over to his brother, f9r whom he had become Hea-
thy. The seemed plea imputed fraud, but there was no foun-
dation whatever for it.
The aehem witness having proved the execution of the
bead by the Martha,
Kr. Atherton said he was surprised at the abrupt termi.
nation of the phattifre case, after the lengthened statement
of the karma counsel who opened it. Many irrelevant
mitten had bees referred to. The jury, no doubt, observed
that Lord Nam whose name had ban so prominently In,
trodueed in the awe, was then sitting beside the learned
Chief Baron on the bench, and, although the noble lord was
aware of all the facts, he was not called by the plaintiffs. If
they had done so the defendant would have been able, on
oromezaminatioe, to prove such facts as would substantiate
the defines set up by the second plea. That plea charged
that the phial& had committed • gross and wicked breach
of trust, and that by tread, covin, and collusion between
themselves and Lord Devon the defendant had been induced
to mate the bond. That it was executed upon the mine-
plantation made by them to him that Lis brother had re-
amed, or would receive, 4001. out of the entire sum of
8101. 15e. fed. •, whereas it turned out the plaintiffs had only
paid 3001. to his brother, while the larger sum had been
paid to Lord Dace. The learned counsel said he should
admit it was mesa painful to him to be obliged to address
the jury upon mei • subject, but he had no alternative, as
he felt it was kis duty, even though the noble earl then oc-
cupied a Hat ma the bench. Without referring to the
exalted character of the noble earl, or the respect gene-
rally entertained tor him, he (Mr.Atherton) felt compelled to
charge that Lord Devon, who had drawn up the bond and the
order for the money, who was a lawyer by profession, and
had occupied • high official preition for many years, had
practised with his en, one of the phi stiffs is this action, " a
wicked fraud," and had obtained from the defendant the
bond in question, under the impression that the full sum of
4001. had been advanced to his brother. Had not the defendant
been under that impression he never would have exe-
cuted the bond. When his brother had not received the 4001.,
although Lord Devon had contrived to obtain 6101,, the
defendant felt himself justified in resisting the payment of
it. Coned mid he felt bound to acquit the co-trustee (Mr.
Palliators) of all participation in these matters. A more
honourable man did not exist than that gentleman, and his
(counsel's) instructions were that Mr. Phillimori had had
no part whatever in the fraud imputed to his co-trusta,
Lord Contently. To prove the plea the bill in Chancery
would be put in, and also Lord Courtenay's answer. The
defendant would not, however, adopt the explanation of the
Statist in the answer, which was teat the 3001. was paid to
Captain Haworth, and the bond was taken for 4001. to Howe
the trustees against the tisk that might arise from the breach
of trust. Captain Haworth would be called and explain the
whole matter. The jury would hear his statement, and con-
tend it with Lord Courtenay's explanation, which clearly
showed that Lord Devon had been implicated also in the
management of other tenet moneys that came to the hands
gat the
_plaintiffs.
Sir F. Thesiger objected to the admissibility of evidence I
avowedly for the purpose of disparaging a person who was
set a party on the need.
B,r F. Pollock, after consulting some of his learned
brethren, determined that the evidence should be rejected.
Mr. Atherton raid he would submit to the ruling of the
learned judge when the evidence came to be tendered. The
use proposed to be made of it was that, as Lori Devon had
eased improperly in the one instance, as admitted by the
mower, it was more likely he would lave done so in the
thew.
lie P. Pollock raid if that was the use praposed to be
made of the evidence he certainly should reject et. The re-
satin of sash evidence would be contrary to all law
end jellies. Previous to the documentary evidence being
Isadered,
A juror, adthismiag the court, said, that observing Lord
Devon on the beach, he felt bound to say that neither him-
self or the learned counsel for the defendant, probably,
Gould discharge their duty properly while the noble lord
arapied that position. He felt such esteem and regard for
the noble lord's chaster that he certainly did wish his
lordship had taken his seat elsewhere.
Lord Devon Immediately nee, and said he was willing to
take his seat in any part of the court, and was about to with-
draw, when
Sir F. Pollock, addressing the juror, said that there was
no impropriety whatever in Lord Devon's °cents) ing • s.at
oa the bench. It was that part of the court to which his
rank end position in society entitled him to sit. He (the
lamed jtalW) enpmen he had been ruhronsel. and was
obliged le Aged there. That beiag eo, his proper place
was IS the berth. He (Sir F. Pollock) did not know by
whom his lordship was ethpoinsed.
Lea Devon stated that he had been subponed by the (is-
thmian, and that he bad been urgently entreated to Weed.
Sir F. Pollock (addrewireg the juryman) said the noble
lord ma a whams fee the delemint, and therefore not likely
to earths my madam biomes es his counsel. The learned
caues:l would no doubt say whether that was as or not.
Mr. Atherton said the noble lord might have been
espoused on behalf of the defendant, but he would not call
his lordship as a wham. (Laughter.)
Lad Devon said he was very glad to hear it, as he sup-
plied he esuld thou retire.
Mr P. Pollock assented, and told the Juryman that his
was very uncalled fee and
!is admitted his error sad expressed regret for
thaw Ma it. He spoke under the Munro of the
lissia he iNiellaned at the moment.
Data having withdrawn, the Mee wen rammed,
I gaff the thimiaat's counsel read eaten sin the bill
=I Mein The sharp was, that the plaiatith, as amuse
Othilmatild WWI Or Ina is aimed % On mural