The Express.
London, England, 1847-04-02 00:00:00

Lab) Intelligence.

EQUITY COURTS.
Before the Iced Chancellor.
CHAPPILL V. PI:MOAT.— BILL pIBMISSED WITKOI _
COSTS.—Arrut roe COSTS ONLT.—The plaintiff, Mrs.
Chappell, filed a bill praying an injunction to restrain the
defendant from pub ' end selling certain muaic fa'
the opera of " Fra Diavolo,' or for an order on him to keep
an account of the sale until the plaintiff, by an action at law,
established her legal right to the exclusive publication of
the said music. The Vice-Chancellor of England, before
whom the case came to be heard, made an order in the
moil terms—that the bill be retained for twelve
with liberty to the plaintiff to bring her action ae
by her, within that time ; but if she did not, then that
bill might bediemiseed with costs. The action was brought,
and a verdict was taken for Mrs. Chappell, but upon subse-
quent discussion in the Court of 'Exchequer, on points re-
served at the trial, the verdict was entered for Mr.
Purday. The cause cosiest on afterwards helium the
Vice-Chancellor for foam directions, his Honour
dismissed the plaintiff's Isik but without aoata, that is, leav-
ing the defendant, the oatasedal party, to pay his own costs.
The defendant appealed Ism chi port id do decree, and
the matter was argued In 11011 tout em Saturday, the 20th of
March.
The Lord Chancellor now giving his judgment, said the
decree appealed from was the decree made on further direc-
tions, and it elr•wed the history of the case so far as it was
neteleary for the purpose of the appeal. It appeared that a
verdict; &wad for the plaintiff on the trial of the action, was
let aide in the Court of Exchequer, and a verdict was
entered for the defendant; and afterwards, upon the hearing
on fur cher directions, the plaintiff's bill was ordered to be
disr,issed, but without coats. The verdict appeared to have
h•.en matter of much consideration; showing, therefore, that

it had undergone due deliberation in the Court of Exchequer,
gsd that the plaintiff had failed to establish her legal title.
The first order in the cause was in the usual course—of re-
taining the bill to let the plaintiff bring her action at law to
establish her right, with this addition, that if she did not
bring such action, the bill would be dismissed with
costs. This was an adjudication that if the plain-
tiff abandoned the trial of the action, then the bill
should be dismissed with costs. A party who came to
this court for protection of • legal right must fail, if he failed
to establish his alleged right, slid his bill must be dismissed
with costs. If he tried to establish the legal right by action,
and failed, it was the same as if he did nut bring the action.
The two orders of the court below were totally distinct, and
could not stand to ether. The court could never mean to
say,' if you do nut bring your action, your bill must be dis-
missed; but if you bring your action, and fail to erablish
your legal title, ern your bill, ,will be dismissed without
costa." In the Sr .t act, or deceive, the court laid down the
right course, and that ought to be followed out. The first
order was consist. at with the practice of the court, but the
second was incon intent with the first. It could not be in-
(erred that the curt refused the defendant's costs fro a any
opinion with respect to his conchest in the case, because the
court waited onlt to see the 'Ault of the proceedings at law.
Deny unnecessary expense was Caused by the defendant's
conduct in defee..ling the action, his conduct then could not
be 'made to affect his conduct in Be suit at large. The question
in this case w.s important in' respect to the practice of
this court in an..eals in which meta formed the only matter
for considered., I. There were many CAWS in which the costs
were in the pure discretion of the judge, and these could not
be subject of appeal, inasmuch si the judge of appeal would
he without i.nowledge of what influenced the other
judge, and inasmuch as in such cases the whole filets would
require to be slued, and, in fact, rehearing would be REEL'S-
r4ry. In sue'. eases there could not be an appeal for coats.
But where th. re was a rule of practice laid down as to costa,
the judge had no such discretion. And if, on the face of the
proceedings, I lie costs appeared to be given in a way that was
eoetrary to tle general rule of practice, this court might
or might not confirm the decree. The ease of " Owen V.
Griffith" (Ainbltr's Reports), referred to in the argu-
ment, was a ease of great importance on this point. The
bill there was against a tenant by devil in possession of an
estate, for an account of what he received, and for possmsion ;
and the deer .e was, the defendant should pay the surplus
rents found t . have been received by him beyond his debt,
and also shoeld pay the plainer, costs. There was an ap-
peal against 'hat part of the decree for the payment of
plaintiff 'a e its, the rale of practice in analogous eases of
bffis by sserceiugors against mortgagees for redemption, beine,
that the met tgagee should have his costa. Lord Hardwick°
heard the avert', and declared that, in some eases, the rule
against Rime .Is for costa only had been dispensed with, and
so it ought i.n the use before him. That case was followed
by ";Coope.• e. Scott," before Lord Northington (1 Eden,
17), and there were two cases before himself (the
Lord Chan, blur), " Taylor v. Southgate," and " Angel
e. Davis " t I Myloe and Craig, 203 and 360). His lord-
ship stated se much of both these cases as bore on the pre-
sent case, sat said he had allowed the decrees in them in
respect to v.. costs. When the circumstances of • use
happen to b: such that the court cannot decide the question
of oasts, without going to a rehearing of the whole ease,
then the order as to meta could not be appealed from; but
whenever tie decree appeared, in respect of the costs, to be
wrong on the face of the proceedings, then an appeal would
lie for the costa. The decree in this ease appearing to be
wrong in re- ;sect of the costs, as the bill ought to bare been
dismissed with costa, must be altered in that respect.
IN At BAOSTER, A LUNATIC.—COMPLAIIITS or COM-
MITTER OF TYR PRIMOM.—Mr. Chandlers stated that this
was the petition of Mr. John Lyall, of Brighton, the uncle
of Miss Bag ter, the lunatic. She was the granddaughter
of Alderman Crowther, who left her • considerable fortune.
Some years ago, she was taken off to Gretna-green by Mr.
Newton, and they were 'married there, but that marriage
was held v..itt, the young lady having been found, upon
inquisition te!sen afterwards, to have been a lunatic before
the elopement. She had ever since continued in • state of
mind on the very confines of sanity. She was placed under
the care of her mother, as committee of the person. The
mother was married to a second husband, • gentleman
named Waddill, and they lived at Sneresbrook, near Wan-
stead, or Woodford. The learned counsel reed from the
petition a very long letter from Miss Darter to her uncle,
the petition. r, written by a Miss Seales, who kept
a circulating library at Woodford, but signed by
Miss Barter, setting forth many complaints of
her mother's irritable temper and conduct to her.
Although the mother was allowed I,OOOJ. • year for the
suitable maintenance of the lunatic, including carriage and
governess, she was largely in debt to tradesmen for the mats
ten supplied by them for the lunatic, so that the latter was
unwilling to go out among the neighbours for fear of being
spoken to on tie subject. The only persons with whom the
lunatic could c .mmuaieate at all were Miss Scales and Miss
Hopgood.the young lady who was the governess, or com-
panion, of the 1 inatic. Both these made affidavits, stating
that trey belies ed the matters stated in the letter to Mr.
Lyall to be true. Mr. Lyall hail no feeling adverse to Mrs.
Waddell, but he thought it to be his duty to bring these
complaints, made to him by the lunatic, before the court,
and was anxious to provide for her comforts.
The Lard Chancellor said he had received a letter from
Mr. Lean on the subject. His lordship asked if he pro-
posed himself or any other person to be committee of the
lunatic, instead u( her mother.
Mr. Chandleas said he did not. He was tooold, and resided
in Brighton.
Mr. Lowndes and Mr. Green appeared for Mrs. Waddell,
ready to show that the lunatic's complaints were groundless ;
hut the Lord Chancellor said he must first see the lunatic,
between this tim- and the nest sitting of the court (the 13th
instant). In the course of the conversation which took
plac • between counsel, it was stated and admitted that Mrs.
Waddell owed no debts of her own ; they were debts due by
Mr. Waddell before their marriage; and there was but 2004
due altogether to tradespeople on account of the lunatic,
which would not be due if Mr. James Lyall, son of the peti-
tioner, and committee of the lunatic's estate, had not withheld
6001., one full half-year's allowance, which it was said be
withheld in payment of • debt due to him by Mr. Waddell.

IN as SAMUBL HARDT, • LUNATIC.—MAINTENANce
or LUNATIC—ON Waage CREDIT'?—Mr. Cooper said,
the petition he was about to open disclosed 'remarkable and
an extraordinary ca.. It was the petition of John Hsrdy,
brother and heir-at-law, and one of the next of kin of the
lunatic. The latter was placed in the establishment of Dr.
John Willis in 1812. In 1834, Dr. Willis sued out a com-
mission of lunacy, and Hardy was found to have
been a lunatic from the year 1812. His father
had died in that year, leaving his eon Samuel 10,0001.,
which is vested in Consols in two sums of 8,0001. and 2,0001.
He was also entitled to a reversion of a sum of 4,0001. on
the death of a lady without issue. A person of the name of
Lee was the executor of the father's will, and trustee for
the lunatic. lie hat made an arrangement with Dr. John
Willis for his mainteennee, first at two guineas a week ; atter,
two guineas and a half. Dr. John Willis died in 1835, and
his executors claimed a debt of 2,2471. for ten years' mainte-
nance, from 182.5 to 1835, besides interest. The lunatic
was continued in the establishment, to which Dr. Francis
Willis succeeded on the death of his father, Dr. J. Willis.
The arrangement made with him by Mr. Lee was at the
rate of two guineas and a half per week. No part of that
allowance was paid, and Dr. F. Willis claimed for 10 years,
from 183.5 to 184.5 ; and there was another year's allowance
due since. He was, however, willing to accept 2,1501, with-
out interest. The petition set forth these matters as found
by the master's report, and the petition prayed confirmation
of the report, and of the arrangement between these cre-
ditors and the petitioner • but he (Mr. Cooper) thought the
matter was deserving of &ether inquiry.
Mr. Thos. Parker appeared for Mrs. Hargraves, sister of
the lunatic, opposing the confirmation of the arrangement
contained in the petition. It appeared that the lunatic's
father left a fortune of 70,0001., all which his executor, Lee,
received, and only 7341. debt, including the funeral expen-
ses. Lee died insolvent, having wasted all his testator's
estate, except what was paid into court in the administra-
tive suit of" Shore o. Lee. He had placed the lunatic with
Dr. Willis, but neglected to pay for him. Dr. Willis had
brought sn action against Lee, but the action did not go on.
All the costa, however, were paid out of the estate. The
Master found, by his report, that 6,0001. interest was due on
the lunatic's fortune of 10,0001. Lee no doubt received it,
but convertedit to hie own use.
The Lord Chancellor expressed his opinion that credit was
gives by the Doctors, J. and H. Willis, to Lee, and not to
the lunatic. After the finding of the lunacy, no allowance
or arrangement for the lunatic could be made without the
sanction of this court.
Mr. Craig appeared for the executors of Dr. John Willis,
who had got the commission issued in 1834, but died in
1835, within a year after the finding of the lunacy. He had
maintained the lunatic from 1825 to 1835, and never received
any part llof the allowance. The administrates suit was
not instituted until 1832, and no domes was made until
1833, so there was no way for Dr. J. Walls te apply for

Pager Lod Chancellor : Was net the credit for the main.
tenance sieve to Lee, who made the arrangement with
him
Mr. Craig submittal that the lunatic wee maintained on
the credit of his own fortune, and not on the credit of an-
other person, who was debtor to the lunatic. He suggested
that a reference of a very special nature ought to be made to
the Master for the neoessaty inquiries in thou case.
Mr. Smith appeared for Dr. Francis Willis (whom case
the Lord Chancellor said was quite different from that of
Dr. J. Willie), but his lordship waited to know what claim
any one had for maintenance of a lunatic after commis-
sion, without first applying to this court.
The learned counsel said it was a clear proposition of law
that if a person maintains a lunatic he is entitled be be paid
out of the lunatic's estate.
The Lord Chancellor : Not after commission, without first
coming here for the undies of the court.
Mr. Smith believed such paymemb'of ex paid for
necemaries before commission, were allowed is Lord Porta-
mouth's case and in others. The questior.awere, whether
the things for which the expellees were incurred were suit-
able to the rank sad station of the parties. The petition
before the court stated no debt due from Lee to the lunatic,
and it wee improper, thimbles, to draw that matter into
tinenniOn.
The Lord Chancelke thought the report should be referred
back to the Master, to be reviewed by him, and particularly
to inquire on whose credit the lunatic, was maintained by Dr.
John Wfilia. If he trusted Mr. Lee, then he should seek
payment from him. He may, however, have a good cue,
and the order to refer book the report would be without
prejudice to the daises.
Ex PARTE Kinney, in sea C•VINDL/11, • BANKEVYT.
—This was a cue by way of appeal from a decidon of Vice-
Chasoellor Knight Bruce, who declined to make any
order in this case, which was as follows :—Cavoridlsh was
made • bankrupt on his own application. Mr. Hembry
was his solicitor. The preliminary payment of 101. was
made to the secretary of bankrupts upon the issuing of the