The Express.
London, England, 1848-06-09 00:00:00

COURT OF QUEEN'S BENCH.

annoy In Banco.
Ex BAKU-WM—A Cl.ltito Tithe DAPHIVED OP His
LIVING FOR NUN-Ithennteen IN CoNSEUVENen op Impel-
Bramwell moved fur • rule fora prohibition
to ▪
the Bishop of Hereford, and also to the patron of the living
of which Mr. Bartlett had been, sod he hoped •till was, the
Incumbent. Mr. Bartlett, their lordships would recollect,
was now under sentence in the Queen's priem for a label.
The question arose under 1 & 2 Yid , cap. 106, by the 64th
section of which the residence of an incumbent might be
enforced by monition, or his living might be sequestered, and
by the 68th section, if the living continued to he sequestered
for one year front disobedience to the hishop's order to re
side, the living would become void, and the bishop was to
signify it to the patron, who would then have to resent to
the vacancy. In this case there had been a regular monition,
and a return had been made as required by the act of parlia-
ment with which the bishop was not satisfied. There had then
(*Bowden order to reside, which of course had been disobeyed,
end all the other necessary proceedings had been liken
except the signifying to the patron that the living had be-
come void. To prevent this step being taken he now sought
the interference of the curt by its writ of prohibition. He
submitted that Mr. Bartlett could not be said to be non-
resident without a sufficient reason within the meaning of
the act, neither could he be said to hare disobeyed the
I bishop's order, because he had not physically the power of
obeying It. He further contended that if Mr. Bartlett had
committed the offence of disobedience against the laws cede-
elastics', the bishop should h. ye proceeded by a commission
of inquiry, under 3& 4 Viet., cap. 3. The applicant bad
appealed to the archbishop, but in vain. He tinged, there-
fore, that the court would grant a rule to show cause, in
order that the matter might he further diseuesed.—Lord
Denman: Ws did not ceitainly contemplate this conic.
queues) to arise from our sentence, which we pronounced for
a gross and unmoral libel—we will say no more of it. Al-
though physically he cannot obey the order, yet his tlisobe
chance results from nis own misconduct. If any superior au-
thority thinks it right that he should be released from promo,
in order that he may become 'gain the pastor of his flock,
that is fur them, and not for us, todetermine.—Hula refused.

COURT OF COMMON PLEAS.
hittinas In Mato.
SMART V. NOWiLL AND ANOTHIR.—VALIULTY OV
AWARD.—This was an action of debt, in which the plaintiff
claimed a balance of 4,0001. for engineering work done by
him u sub-contractor for the defendants, who were eon-
traetont for the Huddsnlield and Manchester Railway and
Cana, Company. The pleas were, never indebted, payment,
and set-off. At the trial a verdict was taken for the plaintiff,
subject to a reference. A Mr. Tolson, nut • party to the
suit, but mixed up in some of the transactions, become •
party, as well as plaintiff and defendants, to the order oh
nisi prim, by which " all matters in difference between the
said parties, or any or either of them, or Christopher Tol-
son," were rekrnd to an arbitrator. The order eontaioed
the usual clause, reserving to either party the rigl.t to apply
to the court to refer the award back to the ar-
bitrator for amendment. The parties attended before
the ar'ntrator, when the engineering account with respect to
Staleybridge, and the Crimble viaduct, was gone into, ands,
far the balance between the parties adjusted ; hut some
further claim, with reference to the Huddersfield viaduct,
being preferred, it was agreed by a memorandum in writing
between plaintiff and defendants, which was signed by the
arbitrator, that the whole account in regard to the Hudders-
field viaduct should be made the subject of • sub-reference to
an engineer, who might be personally competent to estimate
the work done; and also that his report as to the turns due
to plaintiff and the sums which the defendants were entitled
to set off should be received as conclusive evidence by the
arbitrator in drawing up his award. By another similar
memorandum, some further items between plaintiff and de-
fendants, analog under another head, were likewise
left to be finally ascertained by the sub.re fere'. The
latter made his report, and certified the precise sums due be-
tween plaintiff and defendants on either side, winch sums so
certified the arbitrator silopted in making his award, and in
the result found that nothing was due to the plaintiff, but
that a sum of 3,oZifil. 120. 5.1. was due from plaintiff to
defendanta.—Mr. Serit. thennell now moved, on behalf of
plaintiff, for • rule to show cause why the award should no:
be met said*, ur why the matter should not be referred hack
again to the arbitrators. He moved un four grounds there
was an improper delegation of the arbitrators authority to
Mr. Msdary, the person chosen as sub-referee ; but supposing
this admissible, there should have been an amendment or al-
teration in the order of nisi prius—the mere consent of the
parties to the new arrangement was not sufficient; thirdly,
Mr. Tonon, who was a party to the reference at nut
pelts', was no party to the sub-reference ; and, lastly,
the sub-referee had conducted his estimates upon a footing
unfair towards the plaintiff—The court was of opinion that
all the grounds failed, As to the main point, it was • mis-
take to call this an improper delegation of authority ; nor
was it in fact any new arrangement. The result of the sub
fa ounce merely was that certain figures were ascertained
by the consent of both parties in • particular manner. With
the sums found by the sub-referee, Mr. Tolson had nothing
to do; nor was there any inaccuracy of calculation by the
sub-referee pointed out so as to induce the court to interfere
No such complaint was made by plaintiff before the arbi-
trator before the award was made, .ithough there was ample
opportunity fur that purpose.—Rule refused.

COURT OF EXCHEQUER.
antlngs Is Name.
MACHIN r. SOUTN-WWITIIIN RAILWAY C
LIABILITY OP RAILWAY CAHRISKII —This was an action
against the defendants, as common carriers, to recover the
value of a bale of silk which bad been lost while in their cus
tody. The pleadings ultimately raised the question whether
the silk was stolen by one Johnsos, he being then a
of the defendants, in which event they would be liable ; and
the jury having found at the trial that that person did steal
the silk left the question of law to be decided by the court,
whether be was a servant of the defendants within the pro-
viso of the Carriers Act at the time he committed that (cony.
It appeared that the silk, on its ar • ival at Nine Elms, was
handed over by the Jet ndanta to Johnson (or delivery, he
being engaged and paid by Chaplin and Horne, by whom the
delivery in London of the 'mile carried by the defendants
WU contracted for. The company, however, appeared on the
delivery tickets u the carriers, and Johnson's name was
printed as one of their porters, and all complaints are to be
sent to the clerk of the company. Crider these circum-
stances it was contended for the plaintiff the. the
defendants were liable for the felonious acts of
Johnson, es • servant in their employ. On the
part of the defendants it was submitted, that John-
son was not their servant within the meaning of the met, and
that Chaplin and Horne were the parties liable for his mis-
conduct. The Chief Baron was of opinion that Johnson was
the servant of the defendants, and a verdict passed for the
plaintiff, subject to a motion to enter • verdict for the de-
fendants. A rule nisi having been subsequently obtained,
Sir F. Thesiger and Mr. Woolrych new showed cause,
arguing that the delivery ticket Copped the defendants from
denying that Johnson was their servant; and secondly, that
though they might resort to that defence, they were yet
liable for the felonious acts of that man, as their duty so car-
riers was to carry the silk solely to the end of the
journey as they had undertaken to do, and if they
contracted with any one to do a portion of that duty
the wrests of that per,on were their servants for
this purpose.—Mr. Martin, on the other hand, claimed
the right to explain the delivery ticket, as had bees done at
the trial, by other and direct testimony, that Johnson was
hired and paid by Chaplin and Horne; and then argued
that, stash being the case, the company was not liable for
him as their servant whin the act, which contemplated
cues only in which the relation of master and servant
existed, and not where that of agent was interposed. Here
the company had no control over Johnson, and he could not
be said to be a servant in their employ.—Sir F. Pollock and
the rest of the court were of opinion that the rule ought to
be discharged. Setting aside the narrow question of estoppel,
they thought that Johnson was clearly the servant of the
defendants, who, being common carriers for hire, had
accepted the plaintiff's goods to carry to his hou.,e fur hire.
It so happened that the railway stopped at Nine Elms, and
the defendants employed Chaplin and Herne to do the rest of
their duty for them. That being so, Chaplin and Home
were their servants, and the servants of those persons were
the servants of the company within the aot. It was not
necessary that he should be paid or hired by the company.
It was enough that, indirectly, they employed him to do a
part of the work they had undertaken themselves, sad they
were accordingly answerable to the plaintiff for his felonious
acts.—Rule discharged.

PREROGATIVE COURT.
Before Sir lierbertinser Ptst.

lOaaPH BAILTIT-iiL;;;;WAiII:OTY-OP A WILL.—
JUDOMIENT.—Mie cue has occupied the court Phi days, and
judgment was given yesterday. The question is u to the vali-
dity of the will of the late Mr. Joseph Bailey Haines, his son,
Mr. J. B. Haines, jun., instituting the suit. rho interroga-
tories aie contained in 32 articles. The property willed con-
sists of a large portion of Clare Market, and freehold., Itc.,
estimated as yielding 3,0001. to 4,0001. a year. In 1808, Mr.
Haines had a Sow of blood to the head, from which period
he was held to have attacks, at particular periods, of aberra.
lion of mind, and gave himself up to the society of female.
of light character, cohabiting with them, and at one period
attempted to introduce them to his wife's society, who, in
coneerjuenu, was compelled to separate from him. lle took
up his residence at various places. At times, while at
church, he would walk up and down his pew with much
excitement, and hold up his stick, threatening his son, dm
Many other seta of aberration were recorded against him ;
one was, that upon the death of his mother he hired a car-
dap, said to have been one of the state carriages of the
late Marquis of Wellesley, with four horses, had them pro-
fusely decorated and was attended by four livery servants,
who were clothed in new liveries with broad silver lace,
and thus followed ber to the grave. He at last became
infatuated with a female, of the name of Bliss Higgins,
who exercised great influence over him, and induced him to
make a will in her favour, to the prejudice of the widow
and only eon.
The Queen's Advocate said he appeared on the part of

1 the son, to set aside the will, it having been made while
from mental aberration. At the
ItiVhie &dein, and in 1842, when this will was made,
eothf"hiewdasea.thutrllrinewges not in a state of mind to mon.
ego
he was decidedly of unsound mind.
The court, when the cue wns first Fraught under notice,
raid It war a very long will, and es great a number of
documents were connected with it, that it would occupy
the whole vacation if proceeded with ; and wished to know
what proof there was of insanity.
The Queen's Advocate said, his own solicitor considered he
was not in • sound state of mind when the will was
executed, and many other persons could also prove
this fact. The fortune at stake, to which the son wished to
establish his right, was considerable. In 1814 he separated
from his wife, to whom at that time he allowed 3001. a year.
The case was adjourned for a week, and cam* on again for
further hearing on the Bth of May.
Dr. R. Phil imore read the various exhibits.
Dr. Js then addressed the court at considerable length
on the evidence produced, end argued against the insanity
of the testator.
The Queen's Advocate, nn the part of the son, said it
appeared to him that this Eliza Higgins was a Lola Monte.,
for it was evidnet she had exercised a regal authority over
the mind of the testator to the prejudice of his only child,
whom he disinherited. Hs could not help thinking the
evidence of some of the witnesses was not very conclusive
relative to the sanity of Mr. Ilaines, such as It binson,
Lawrence, Oolottley, end Barker, who denoted that he was
a man of sound mind, hut he (the learned advccate) would
endeav-or to prove tbat that gentleman was not of sound
mind when he executed these testamentary documents and
bequeathed the bulk of his property to the female Eliza
Higgins. That he bad often suffered under mental delu-
sions, p.rticulerly towards his son in 1812, when he executed
his will. He hod expressed a belief that his eon was devising
to take away his life, and he did many othi r acts of pecu-
liarity of which a sane man could never be guilty. The eel-
vacate dwelt at considerable length upon the various acts,
and ooneluded by calling upon the court to pronounce
against the validity of the will and the codicils which have
been propounded.
Dr. It. Phillimore followed on the same side, endeavour.
ing to prove the insanity of the testator. He instanced not
only the act of disinheriting his son, but also of charging his
son's wife with intitelty ; that the grandchildren were the
offspring of an illicit connexion with a gentleman of the
some of Ileathcote, and who was on terms of intimacy with
the husband, for which his son had brought an action ; but
it was abandoned on the testator retracting it.
Dr. Addams said he was sorry to be called upon to make
any reply, for the sake of Mrs. Haines. lie contended the
tcstathr was not only a sane man, but a shrewd man, and an
industrious man, realising from that industry a fortune
of from 3,0001. to 4,0001. a year. The only question
he thought the court was left to decide was—is the
will valid or not.?—not:erbether. Mr. Haines was a moral man
or not—he wee sorry to think he was not, from the habits he
had been represented to have indulged in—or whether be
had acted with due kindness or not towards his son. In 1842
hetnade a will, balm athing an annuity of 'rd. a year toiEliza
Higgins and a small legacy to another female. The female
Eliza Higgins cohabited with him, and had been a kind and
pad nurse to him during the period of • long 'lichees.,
which had in s degree injured her own health : she woe also
a good housekeeper. With the legacy he also gave her •
life interest in Oordon-lodge, where the testator resided,
with the furniture. Some time alter this, in consequence of
his son's conduct, which caused his father much pain, •
codicil was made, wherein he bequeathed the bulk of his
property to Eliza Higgins and another female—in fact, all
but disinheriting the whole of his legal descendents. The
son asserted his father had been insane ever since 1812, and
incapable of conducting bia business 'Miro; at the same
time he admits that, between the yearn 1828 and 1838, he
hail improved his estate from 3,0001. to 4,005/. a year. It
was impossible fur the court to beleve that this was the act
of en insane mind. Mr. Lawrence, the eminent surgeon, had
been easmined, who had decided upon the sanity of Mr.
Haines; • greet many other persons deposed to the same effect.
It was true he bad once been confined in a
lunatic asylum, but it was of • short duration, snd caused by
a a'lll of blood to the head. Ile felt on this occasion be had
been very harshly treated. In Match, 1844, to show that
Mrs. Bailey Haines, jun., had not forfeited the respect of
the testator, which he had once entertained from her sup-
, posed familiarity with Mr. Heathcote, he made another co-
dicil, and after giving a lite interest only to the two female,
above referred to, he bequeathed the bulk of his property to
1 his grandchildren. It bad been urged that the testator was
suffering under a delusion when he said his grandchildren
were not his son's, and that it was an act of insanity; but
when it is remembered that Mr. Ileatheote was frequently at
Mr. Ileines'., and that they had the use of Mr. Heathcote'e
carriages, that he had made her many valuable presents, and
settled upon Mrs. Hainre an annuity of 23 I. a year, it might
Ise natural for the testator to hove suspected that which had
been whispered to him by others. Ile (the learned advo-
cate) would say, he did not think any imputation could be
placed on the character of Mrs. B. Haines. It appeared Mr.
Heathcote had been separated from his wife by a divorce,
which the court was fully aware of, and that his childrea
were often left under the care of Mrs. B. Haines; it was,
therefore, nothing extraordinary that some act of liberality
might have been shown towards Mrs. B. Haines by Mr.
Heatheote, who was a man of considerable wealth. He (the
learned advocate) had read the whole of the correspondence,
which was very voluminous, and it proved that the testator
was a man of sound mind, and shrewd withal. Ile would
therefore, cell on the court to confirm the validity of the will
and codicils. _ .

Dr. Jenner rose to address the court, when he was
stopped by
The Learned Judge, who uid there was no doubt but the
testator had once been of unsound mind, caused by • deter-
mination of blood to the head, but that was not confirmed
insarity. The court would admit that no small degree of
irgenuity, with considerable industry, had been displayed
by those who had endeavoured to prove the testator was of
unsound mind, by creating evidence. There was no doubt
but the testator was a man of considerable wealth and great
ostentation. The court from the first was of opinion that
the will could not be set aside. If it was the wish of the
counsel that it should go through the evidence, it would.
(The counsel thought it was not necessary.) Then the court
will at once decide the question. There wu no doubt of the
due execution of the will ; but the question was whether
the te.tattor wu insane at the t.me of its execution. The
kind care and the undeviating attention of Eliza Higgins
towards him at the period of his illness would have its effect
on • mind :ike the testator's, and it was, there-
fore, natural to think she would have considerable in-
fluence over him. Tne court felt it to be its duty to mention
one thing. There was no ground fur the imputation
placed upon the conduct of Mrs. J. B. Haines; it thought, as
lit bad been said, she was a model of virtue. Mr. Heathecte
was • singulatman,:and thought,properto make some:preunts
to Mrs J. B. Haines for the attention which had been shown
by her towards his children, two of whom were under her
case while he was in France. It was proved beyond all
d.abt that the will was valid, and that the testator was a
men of sound mind, and also of business habits. The court
felt it right for all parties to decide upon it and to atop
rather proceedings. The executqrs were entitled to their
costs out of the estate, and that probate be granted to them.

COURT OF BANKRUPTCY.
before Mr. (barmlosioner Goulburri.

LESLIE ALLXANDtIi AND B•IIKRUPTCY.—Thia
wars a meeting for further proof of debts on the estate of L.
Alexander ard Co., merchants, of Old Broad-street. A proof
wu tendered for 1,5091., on behalf of Messrs. Coventry and
Shepherd, corn merchant., of Limerick, being the difference
in price of a cargo of Galata wheat, the shipment of which
' from Trieste or Vienna had been delayed from December,
1816, to February, 1847. The difference had been ascertained
by arbitration before the bankruptcy; bat something had
since arisen to render it doubtful whether the amount was
not estimated too high.—Mr. M'Leod, for the assignees,
offered to admit :he proof for 1,0001., which, alter a conver-
sation, was agreed to. A proof was tendered on some bills of
exchange drawn in New Orleans, amounting to 4,0001.,
which had been endorsed by the bankrupts, and were now
held by parties in America; and the lineation arose whether
the claimants were entitled to peeve in addition for all the
charges to which the bills had become liable, including the
exchange and re-exchange; also, whether the claim should
not be treated according to the American bankrupt law, in
which country the contract had been made, and which
authorises proof to be made on the estate of an endorser for
all expenses whatever incurred in consequence of the dis-
honour oft bill, also 20 per cent. in addition as a sort
of penalty. A variety of cues were cited ; but as, owing to
the meeting being one for the consideration of certain cases,
the proof could not then be put on the file, his Honour post-
poned his decision.
Before Mr. 001110iNIOINT Pane.

MR. W. MOWIIIi BANKRUPTCY.—The first meeting
for the proof of debts and choice of assignees in the case of
William Howitt, who was described as " bookseller, of the
Strand," took place this day. But a few creditors were in
attendance, and the amount proved was not large. Mr. R
Clay, printer, Bread-street-hill, and Mr. S. G. Gardiner
stationer, Newgate street, were appointed trade assignees.