The Express.
London, England, 1846-12-10 00:00:00

tab) Matllignut.

JUDICIAL COMMITTEE OF THE PRIVY
COUNC IL.—YarrEnnay.
OSsiore Lord Brougham, the Master of the Bolls, Baron Parke, the
.ludgeof the Admiralty Court, the Judge of the Prerogative Court,
and the Chancellor of the Duchy of Cornwall )
Hatt Mar eaves PROCURATOR-GENERAL V. TUE SOLI-
CITOIt OF THE DUCHY OF LANCASTEit.—This cue was re-
sumed this morning. The substantial point at issue in this
appeal is to whom letters of administration of the goods of an
intestate bastard, who died domiciled within the county
palatine Lancaster, should be granted ; whether
citor of the wn
Treasury, as the nomimm of the Cro, on
whose behalf the appellant prosecutes the appeal, or to the
respondent. the Solicitor of the Duchy of Lancaster, also the
nominee of the Crown.
The facts of the case were fully rcported in the Express of
yesterday.
The Solicitor-General followed the Queen's-Advocate on
behalf of the appellant, and had only concluded at the rising
of the court. The respondent's case was opened this day.

EQUITY COURTS.
Before the Lord Marneller.
FINDEN V. STEPHENS AND OTHERS.—WILL.—WORDS
OP RECOMMENDATION TO AN OPFICE.—This was an appeal
from an order of the Vice-Chancellor of England, overruling
a demurrer. The bill stated the will of John Bushnell,
dated the Bth of March, 1845, by which ho gave his real and
copyhold estates in and near Reading, and in Middlesex,
and alas his personal estate, to John Stephens and William
Bland, in trust, to recei the rents and profits, &c., and to
pay hisy wife 1,0001. a-year fore her life, and to pay and pply
the residue fur the benefit of her four nieces. The testator
gave a legacy of 2001. to Thomas Finden, the plaintiff, and
among the directions to the trustees, ho recommended as
follows.—" And inasmuch as my estate will require more
mani.gement than I can expect of my trustees personally to
bestow, if is my wish and desire that the hereinbefore
named Thomas Finden, of Upper John-street, Fitzroy•
square, architect and surveyor, in whose judgment and
integrity I have great confidence, be appointed
for all purposes for which my trustee or trustees may have
occasion for an agent, receiver or manager of all money of
my estates and property ; and in case th- said Thomas
Finden should desire not to act in the said office, then it
shall be lawful for my said wife's nieces and the survivor of
them to appoint some other person to act in the place of the
said Thomas Finden." The plaintiff's bill stated a corres-
porulcnce between the tnistees and the plaintiff, in which
the former intimated their desire to have another agent and
manager appointed, especially for the estates at Reading.
The bill prayed for a declaration that the plaintiff alone was
entitled to be continued in the office of agent, &c., according
to the wish and desire expressed by the testator, and it also
prayed for an injunction tout rtrain the trustees and niec.
of the testator from appong any other person to the

office.
The defendants demurred to the bill, and the Vice-Chan-
cellor allowed the demurrer on the 9th of November last.
Mr. Stuart and Mr. Bunlgette, for tho defendants, in
support of their appeal, submitted that the words of
the will were not imperative. They compared the
cue to that of Shaw V. Lawless (5, Clerk and
Finnelly, p. 129), in the House of Lords. The prin-
ciple of that decision applied to and governed this case.
But tke plaintiff was premature in his application to the
court, as no agent has been yet appointed.—Mr. Bethell and
Mr. Meson, for the plaintiff, argued that the words of recom-
mendation in the will placed the plaintiff in a fiduciary cha-
racter iu connexion with the trustees, and that he could not
be removed without a breach of trust. The letters of the
defendants expressing their intention to appoint another
person to be agent and manager made it quite proper for the
plaintiff to apply for an injunction to restrain them. The
question now was whether the bill was to be upheld ? As to
the right of tie plaintiff to be continued in the agency and
management of the property, the principle of the decision in
Shaw r. Lawless was as much in favour of that as
against it. He distinguished the one case from the other,
and re ferred to several decisions as authorities iu support of
the plsintiff's claim.—Mr. Stuart replied.
Toe Lord Chancellor said he would give his judgment next
Friday.
His Lor !ship does not s:t here to-morrow, there being no
business for him.

Before the Viee-Chaneellar of England.
PEACOCK V. KEKNoT.—AoREEmENT rote 1D?. SALE OF
A SHOP AT AN UNDERVALUE HELD TO BE voin.—The
plaintiff in this case was a young man named John l'eaeock,
who had originally entered the medical profession, but not
having been able to pass his examinations he went into the
army ; this profession he quitted shortly afterwards, and
went to reside at Cowes, in the Isle of Wight, where he met
the defendant, who was a person keeping a druggist's shop,
and practising as a medical man, and consulted with him as
to how he might obtain a doetor's degree at ono of the uni-
versities of Scuteind or Germany. An agreement was subse-
quently entered into between the plaintiff and the defendant
by which the defendant undertook to pracure for the plain-
tiff a degree for the sum of lA/. ; and the Plaintiff took
lodgings in the defendant's house for the purpose of studying
the profession. The defendant at this time kept a
toy shop adjoining his place of business at Cowes
which he offered to sell to the plaintiff, and an agreement
was drawn up by a person named King, who served in the
defendant's shop, and had once been a clerk in an attorney's
office. This agreement was to the effect that the plaintiff
should pay the defendant 1,3001. for the stock in trade and
household furniture of the toy shop; and the defendant
agreed to let the said house to the plaintiff for 051. per
annum; and the plaintiff agreed to give the defendant the
refusal of the business if the plaintiff should wish it ; no
alterations to be made, or fixtures to be removed, unless by
written permission from the defendant. In pursuance of
this agreement, the sum of 9001. stock was transferred by
the plaintiff to the defendant, and the remaining sum of
4501., including the pupil's fee of 601., was paid to the de-
fendant, by cash and by a warrant of attorney. When the
friends of the plaintiff heard of this transaction, the
injustice of it appeared to them so great, that an
injunction was applied for to restrain the defendant
from making use of the stock so transferred to him, on the
ground that no proper valuation had taken place of the
stock in trade and furniture previous to the sale, and that by
a valuation subsequently made, such- stock and furniture
appeared to be worth only 4001., and also that the defendant
had used undue influence over the mind of the plaintiff,
who was addicted to habits of intemperance, and was alto-
gether a person of weak intellect. The Vice-Chancellor
granted the injunction, and the cause now came on upon
the hearing, and it was contended that the agreement ought
to be set vide, as the stock in trade and furniture was
greatly overvalued, and the defendant would be able at any
time to turn the plaintiff out of the business, there being no
agreement for sale of the goodwill. For the defendant, it
was argued that the plaintiff was perfectly capable of enter-
ing into this contract, and that there were no grounds for
cancelling the agreement on the score of under value, since
it was the intention of the defendant to sell the goodwill of
the business, which was vet), lucrative, and well worth the
sum to be paid for it by the plaintiff.
Mr. Bethell and Mr. Cole appeared for the plaintiff, and
Mr. Stuart, Mr. Rob, and Mr. Shebbeare for the defendant.
The Vice-Chancellor said he considered in this case that
there was en incurable vice in the agreement which no one
could read without seeing the manifest injustice of. He' did
not say this with any intention of affecting the character of
the defendant, who very likely did not understand the real
affect of it, but it was manifest that the defendant bad power
of to:ming the plaintiff out of the business at the end of six
months' L4me, and the defendant had reserved to himself the'
right of pre.eZaption which he could expedite at any time, so
u to Jeri"- aes plaintiff of all benefit under the
agreement. It was very likely that the intention
of the parties might pave been mis-stated by the
quondam clerk who had drawn up the agreement,
but his Honour was clearly of opina;'n the agreement, es it
stood, was such as could never be enforcZ4i and the plaintiff
was entitled to the relief asked by the considered,
moreover, that the defendant ought n ver to ha'° been ad-
vised to bring this case to a bearing. The injunctioi: must
be continued; and the 900/. stock and dividends must '..`e
retranaterred to the plaintiff, together with the sum of money
already received by the defendant, including the 601,pupil
he ; the costs to be paid by the defendant.