The Express.
London, England, 1851-11-07 00:00:00

ELLIS V. iIOWSIAN.

This cause came on upon further directions and costa.
The cause originated under the will of a Mr. Bond, who
devised his property to his wife with remainder at her
death to his son Bayley Bond, who was a person of weak
intellect. la 1818 Bayley Bood, at the suggestion of his
mother, who was then a widow, the father havil; died,
married a Miss Fuller. Atter the marriage steps were
taken to set aside the marriage on the ground that
Bayley Bond was of unsound mind and incapable of
entering into a marriage contract. The result was, that
upon inquisition, Bayley Bond was found to he of unsound
mind. A committee of his personal estate was in conse-
quence appointed, and an allowance allocated for the main-
tenance of the lunatic, and subsequently Mr. Baldire was
appointed the committee. The lunatic had a son bora of
the marriage, who survived his father, and himself died in
January, 1813, and by his will bequeathed his property to
Mr. Baldire, who sought to establish his right, by legal
proceedings, to that property, under that instrument but
i failed. The question, now raised, was, whether he should be
paid the costa incurred by the litigation of his claim.
His llouour refused to make an order that Mr. Baldire
I should receive costs, and directed that the costs of the trus.
tee, Bowman, should be taxed, and paid out of the personal
property, as far as it was available, and the residue to be
raised by sale or mortgage out of the corpus of the estate.

Strome Vicv-russcsuoa Velure.
BATES ft FINWICK.—T,KVST YOU CIIAItITABLB uses.
In this ease a bill had been filed by George Bates, as the
heir-at-law of Thomas Bates, seeking to set aside a will, on
the ground of a secret trust for charitable purposes, and
also on the ground that the testator was insane. The will
was dated the 14th of June, 1849, and by it the testator
devised all his estates, which were of very c insiderable
value, to William Backhouse and John Church Backhouse
in trust, to sell and pay his delfts and funeral and testa-
mentary expenses, and to retain the whole of the residue in
trust for themselves for ever. The will contained no
legacies whatever. The testator died on July 26, 1819,
and suspicions having been entertained that he would
make some disposition to disappoint his family, immedi-
ately after his death inquiries were made of the defendant,
Fenwick, who had acted as his solicitor, este the disposition
of the property. He produced the will of the 11th of June,
but the parties not being satisfied further communications
took place between the brother of the plaintiff and the
Backhouses, and on 7th of August he inquired
whether there were any secret trusts—no satis-
factory answer could be obtained, and application was
then made by the solicitor of the family for leave
to inspect all the testamentary papers and documents which
the testator had left. This was refused. Afterwards it
was stated that the Backhouses held the property for some
charitable uses, but all information as to their nature wee
refused ; and in consequence on the Bth of December,
1849, the original bill was ti'ed against Fenwick, and the
Backhouses. It appeared, by the answers, that the tes-
tator as long ago as the year 1814 had fo:med the plan of
giving his property for the purpose of distributing the
Scriptures in loth* and China. Three wills had been made
prior to that one now disputed, dated respectively in the
years 1814, 1829, and 1836. That of 1836 was precisely the
same as the present, with the exception that the devisees
were Jonathan and John Backhouse, uncles of fhe present
defendants. They had since died, and the testator seemed
to imagine that tho defendants, who were their personal
representatives,would become his executors, and accordingly '
wrote to them on the 29th of January, 1849, to the
following effect : " To the executors of the late
Jonathan and John Backhouse, who have kindly
undertaken to act as the executors of my will
I wish you to employ Mr. Fenwick to sell my estates, and
not to take any trouble yourselves. I should wish you to
retain 1,0001. for yourselves and pay 0001. to Fenwick
above his bill." Then followed certain sums to be paid to
other persons, but no legacies to any of his family, and the
testator concluded by desiring that they would invest the
residue in the English funds to be used in propagating the
scriptures in the Indian empire or China through the in-

strumew silty of the East India Company, or such other
parts as they should think fit, and if the whole should not
be expended in their lifetime that they should appoint ex-
ecutors to carry out the testator's objects. It was further
provided that this letter should not be opened until after
the real estate was sold. The testator afterwards discover-
ing that the executorship w ould not descend to the present
defendants made the will now in dispute, and on the lath
July a paper was written by Fenwick at the dictation of the
testator, and left in his (Fenwick's) custody, directed to the
Messrs. Backhouse, and containing almost exactly the same
wishes as that of the 29th January. And there was also a
letter written by one of the devisees on 25th September,
1819, to his cousin, who had been employed in the business,
showing that before the death of the testator they were per-
fectly aware of the nature of the bequest and considered
themselves bound to carry it out.
The Solicitor General and Mr. hardy appeared for the
plaiutilf, and contended that there was enough in the evi-
dence to show that the testator was labouring under a mor-
bid delusion as to his family sufficient to render him inca-
pable of making a will ; but if any doubt existed on that
point the heir at law was entitled to an iwue to have the
point decided. But independent of that question, the
plaintiff was entitled to relief because the whole scope of
the testator's proceedings was to give effect to his chari-
table bequest. The will contained no trust except to pay
his funeral and testamentary expenses and his debts, and
that was a mere blind. Then if the trust was void the de-
vise of the legal estate was void also, but if .not the court
would hold that there was a resulting trust in the devisees
for the benefit of the heir at law. The evidence went to
prove that the devisees knew before the testator's death
what wits the object of the devise, and that that
object was illegal, but they nevertheless were prepared
to carry it. This was going further than was necessary,
because it was sufficient if they heroine itcstuaintial with
the object afterwards, and still test hound to carry out the
wishes of the testator. The whole case showed that the
testator had devised the scheme le defeat the provisions of
the statute of mortmain.

The arguments for the plaintiff had not concluded when
the court ruse, and tho ease was adjourned till Satur-
day next.

COURT OF QUERWS 13EXCIL—YrJrninuAY.
SITTINGS Is litsco.-14kroas ImeD CANINO:I.Iy I'ATIIC4OI4
AND Nlk.

BLAKE D. MIDLAND Cl/UNTIL:I ^IL %,DAVAY COMPANY.—
OOMPFNOATION IaNDEU LOUD CAMPHKLL'I ACT.
. "

This was an action tried at the last assures at Derby be-
fore Mr. Baron Parke, when a verdict was found fur the
plaintiff fur 4,0001. It appx•arcd that :lie plaintiff was the
widow of a Mr. Blake, who was killed in consequence of
the collision in the Clay-cross tunnel on the 9th M May in
the present year. and the action was brougat under the re-
cent statute to recover damages for the injury which the
plaintiff hail sustained by the loss of her husband.
Sir F. Kelly now moved for a ink calling on the
plaintiff to show cause why the verdict should not be
set aside and a new trial had on the ground of misdirec-
tion and excessive damages—misdirection, not in any matter
of low, hut as to the principle upon which it was compe-
tent to the jury to assess a compensation. At an early
period of the case, during the opening by Mr. Mellor for
the plaintiff, Mr. liumfrey, who appeared for the defend-
ant, nt once admitted the negligence, and that the plaintiff
was entitled to maintain the action, the only question that
remained being the amount of tlam :gr.; upon which Mr.
Baron Parke intimated his opinion to he in conformity with
that which had been held in many eases ut Nisi Prins under
the same act by the Lord Chief Baron, namely, that
upon the true constriction of the statute the claim of the
plaintiff must be limited to the pecuniary damage which
she had sustained. This was contended against by his
learned friend for the plaintiff, and. in summing up the
case to the jury, the learned judge said he did not s, e how
any other damages could be claimed upon the construction
of the act, but it was competent to the jury if they could
see any other ground upon which they couol give damages
to do so. It was impossible for any direction to Inc more
vague and general. Mr. II umfrcy, for the defendants, had
insisted upon the application of the rule laid down by the
Chief Baron, and Mr. Baron Parke observed: "I can't
say that is the only thing ; I can only give the jury my no-
tion of it, and they must settle it themselves." After going
through the statute, the learned judge said to the jury,
" If you consider the plaintiff ix entitled to anything be-
yond the pecuniary loss, you will say so, and estimate it
accordingly." It appeared that the deceased hail been
a partner in a fins in the iron and steel trade at SlieHicld,
and that his average share of the profits for a series of years
amounted to 5401. per annum. Ile had also an income of
300 f. a year, arising from freehold and other property. It
appeared that the widow, by the death of her husband,
came into possession of property to the value of 7,000..., and
received his share of the prelits of the trade fur five years
front his death. The learned judge went into a calculation
of the interest of the plaintiff in her deceased husband's
income and property, taking it at about hi years' purchase,
and deducting from the amount the 7,000 f. of which the
plaintiff had become porsconal, the 1,31311 CC (upwards of
6,000/4 being assumed to be the amount of compensation
to which she was entitled. Now he (the learned counsel)
objected altogether to this male of dealing with the
matter. The income had been calculated at SW. Instead
of the share of it, which might have b-en expended on the
plaintiff had her husband lived, and nn deduction hail been
made for life insurance, or provision tor a family which
there was a right to have expected, the deceased bing 34
years of age, and the plaintiff get years of age, at the time
I of his death. Moreover, the inc ))))) e (two-thirds of which
was derived from trade) was calculated tar though it had
I been as certain as a government income, or the interest of
money in the funds, whereas it might entirely have been
put an end to by bankruptcy or other causes. Upon these
grounds, he contended, that the damages were must cx-
'l celotive.

i:;;;lCampbc:l said that the Court would be very reluc-
tant to interfere in any case of this sort, if a distinct prin-
ciple had been laid down on which the jury could act; and
if acting upon it, they had found certain damages, that
' court, or any other court in Weelminater Hall, would ho
extremely reluctant to interlCre with their diseretion. But
in this cage it seemed doubtful what principle the jury
acted upon, because at one time they seemed to have been
directed that the compensation must be confined to peen-
Mary loss. Ile would g:ve no opinion upon that point at
present, but he was not prepared to say that such must ne-
cessarily be the rule. It appeared here, however, that the
learnedjudge having said at one time that the compensa-
tion must be confined to pecuniary loss, then left it to the
jury to give whatever they might think lit, nut limiting it to
pecuniary loss. The court believed the act to he a most
efficient one, and when it came before them judicially it
would be their duty to sec that it was carried into effect.
It was extremely important that it should be decided on
what principle the damages should be calculated ; and
under the circumstances the court thought it desirable that
a rule to show cause should be granted.
Rule granted.
THE QUEEN v. CARDWELL.—PEHJUHY.
Mr. Pigott said this was an indictment for perjury which
was tried before Mr. Justice Erie at the last assizes for
Berkshire, when a verdict was given for the crown. He
had now to move for a rule to sect aside the verdict and for
a new trial.

Lord Campbell inquired if the defendant was in court.
Mr. Pigott said his client had been sentenced by the
learned judge at the end of the trial.
Lord Campbell did not sec any reason why the role that
the defendant should be in court when such an application
was made should be dispensed with in the present ease.
Mr. Pigott said there were cases reported in which it had
not been considered necessary, and he did not know that
the attendance of the defendant would be required.
Lord Campbell said this was peculiarly a case which re-
quired the presence of the defendant, sentence having been
passed upon him which he had evaded. When he did ap-
pear, as there seemed to have been some misapprehension,
the motion might be renewed it it was within a reasonable
time.

Mr. Pigott said it was but justice to his client to stato
that no warrant had been taken out against him, and there-
fore tkere had been no evasion of any process on his part.

JiUStNES4 OF THE 601:14T.

At the rising la the court, Lord Campbell said there was
a list of 14 motions, all of which he hoped would he dis-
posed of to-morrow. It might be corm moot, however, for
the bar to know that the court would not take the special
paper to-morrow (this day.)

COURT OF COMMON PLEAS.-YF.STERDAT.
Ilrreniom iw BAMCO.-11r.ruaz Cunrs Jurricx ham-, N. Jimmy
Mauer, M.. Jusucit WILLIAM}, AAP Ma. Joinest

. .
Buswita v. BELL.—A PEaystiss JeRY,

Mr. Evans, Q.C., said that the plaintiff in this case was
assignee of Messrs. Leach and Cookson, who were formerly
silk manufacturers at Macclesfield, but who bccaine insof-
vent. The action was brought to recover certain MIMS of
I money paid by the insolvents to the defendant, upon the
ground that the payments were made by way of voluntary
preference, and at the trial before Mr. J ustiee Wight-
man at Chester a verdict was found for the plaintiff
for 813/. The case now came before the court
I upon motion for a new trial, on the graund that
the verdict was perverse, or at least against the evi-
-1 dence. The action arose out of the following circum-
. stances:—ln 1850 the silk trade was in a depressed state,
and in December of that year Messrs. Leach and Cookson
were unable to meet is bill fur 2:85f. 19.. Id. which they
bad given to the defendant tor goods. Several other bills
held by other persons came due about the same time, and
although Messrs. Leach and Cookson could not nay in
money, they had a large quantity of goods in London.
This being so, the defendant agreed to renew his bill, and
to assist Messrs. Leach and Cookson with mewl, stipulat-
ing that he should receive the produce of all sales in
London until be should he freed from liability. The
plaintiff's case was, that. the payments made under this
arrangement amonnted ti a voluntary preference, and
could be recovered back by the insolvent's assignees. Tho
learned judge thought that as to the amount of the bill of
exchange there might be evidence for the jury, but as to the
other sums ho gave his positive opinion that there was RO
case. The jury, however, cuutrary to this direction, found
a verdict fur the full amount, and this verdict it was now
submitted to the court was clearly perverse and ought not
to be allowed to stand.
The Chief Justice said the Court would sae Mr. Justice
Wightman upon the subject.
BATHURST O. MURRAT.—LA JAHOTTIEHR IRON WORKS.
This was an action to recover 608 i, paid by the plaintiff
upon certain shares taken by him in this company, upon
the ground that he bad paid the money upon representa-
tions as to the state of the company, and the state of the
roads leading to the works, which were false to the know-
ledge of the defendant, who took a leading part in the
management of the concern. The jury found a verdict for
the iblaintiff.
Mr. Serjt. Channel now moved for a new trial upon afil
davits, which stated that the defendant was surprised

4

evidence produced at the trial.. The company
tarntalished in !VII, be an set de soileti... and in 181.1 were
francs.to incr..; the e.ipit.l from 100,000(room, to 1,080,880
francs In Oct
Its waspnspertos, with a view to
aisa•is .I,lnionil capital, publidted in this country,
fa which Ow stat.ments which were said to be untrue,
wen• ,n h,. .te tier thin prospr tus was miblished.
the be., ho •h.uee and paid 1254 on the
17th L..•e. and the balance on the 7th of April. 1817 ; but,
within •Rout a month after this nut date the company
failed and became bankrupts. The declaration in the pre-
sent action sontained two counts-Bst, a special nue, which
stated that the defendant had made a pmenee that, in con-
sideration of the plaintiff etiotrdniting certain moneys to
the company, he, the defendant, in the event of the failure
or abandon...a of the underfed:Mg, would, on demand,
repay the plsiotof all such moneys; and the second count
was for money had and received. The learned scrjeant said
that the defendant went down to trial prepared to fight the
cam upon the first count, anil he did actually succeed in
gettio4 a ver.l.et upon that 1.-uc In the course of the cause,
however, Mr. Labineki, who hail conducted the works,
was called, and he produced a numher of letters from the
defendant wit:, the view of showing that the defendant was
aware that the reps sentattons in the prospectus were false,
so as to enable the plaintiff to recover upon the count for
money hail and revived. The affidavits now produced
stated that the production of the.e letters took the defend-
ant by surprise, and that he had not made any statement
which was fel-.• to his knowled4e. The learned serjeant
•pen tb. se faets submitted to the court that his client was
matltkd to a new trial.
The Chief Justin said that he was iv no means dissatis-
fied with the v. slict, and it seemed to him that there was
aD ground for disturbing it. the prospectus treated this
ea a gaue,.gana 'anony requiring en increase of capital,
which was not the fat, and, at II events, it should have
been stand to the plaintiff that he ra.. ■uhscribing to a
emnpany :hat w is merely being " cooled up" into pros-
perity by an incr....at: of capital.
Rule r..fused.