The Express.
London, England, 1848-02-29 00:00:00

Katy intrittatita.

ROCS& OF LORDS.
fluent The Lord Chumllor, lore asawilliam, and the Bishop
of Ely.
HOUGHTON AND OTHERS o. BOUGHTO:4 AND °THERE,
AND BOUGHTON r. JAMES AND OTHERB.—WILL.—Hr.-
QUESTS TO AVM:IOIORM CHILDREN AFTER ATTAINISO 25.
—ACCUMULATIONs.— REMOTENESS. —PATIIIINT Or Les
OACIER OUT Or PeIusONALTT IN DIM:HARMS Or ReALTT.
—Thee two appeals against a decree of Vice-Chancellor
Knight Bruce were argued some days ago, sad the fame and
extracts (rein the will, cto which the questions for the deci
shin of the house &retie, were contained in the report in this
journal on the 22uct moat.--The Lord Chancellor now de-
livered his judgment. There were two questions: one,
whether the direction in ti.o will to the trustees to invest
the surplus rents and profits of the devised estates to accu-
mulate for the bent fit of the testator's nephews' sons was
void for remoteness ; and the second, whether the real es-
tate was liable equally with the personalty to the
payment of annuities, debts, and legacies. As to the first
question, there was no doubt of the soundness of the rule,
of law as laid down by Sir W. Grant in " Leake v.
-on" (2 lerivele, 3d.!). The question was, whether tie rule
was applicable to tke het:pests in this cue. The testator de-
vised and bequeathe 1 his real and personal estates to trustees
to pay legacies and annuities, and directed them to invest
the surplus rents and profits on security, and suffer them to
accumulate, and that they should stand milted of them upon
trust " when, and as soon as that any son of either of his
nephews, John and Joseph, should have attained the age of
25, a valuation of his said trust estate should be made, soil
that 'the same should be then divided into as many equal
lots as there should be sons of his said nephews then living,
and that each of his said nephew's sons when, and es they
should respectively arrive at the age of 23 years, should
choose one of such portions as the share to be allotted to him
and his children, and th-it, thenceforth, the said portion or
share should be held by the trustees upon trust, for the per-
son so selecting the same for his life, and, aft,t hie decease,
upon trust, as to one equal moil ty for his eldest eon, and hi,
heira, etc., and, as to the other moiety, for the rest
of his children, and their heir% &.. ; and it but one child,
both moieties for such child ; but if any or either of his
said nephews' sons should die under their respective ages of
25 years, or, having attained that age, should afterwards eie
without leaving 1 ,whil ioeue them or him surviving, the
share of the party so dying to go to the others or other
of them; and if all but one should die without leeriest law-
ful issue, the traetees should stand seised and possessed of
the trust estate, in trust for such one surviving nephews'
son for his life sod for his shildren and child as aforesaid;
but if all his said nephews should depart this life without
leaving lawful issue then surviving, then upon trust for such
person as should at that time be his (the testator's) heir."
there could not be any doubt as to the construction of that
gift, the case clearly fell within the reason', of the rule, as
suited by Sir W. Grant in the case before referred to. His
lordship read and adopted some of those reasons, and said
the gift was not qualified, as it was argued, by the direction
for maintenance; the annuities and proviaions for
maintenance were girea without reference to the
ultimate gifts of the accumulated surplus. After showing
the distinction between this case and " Ellicombe v. Gom-
parts" (in 3 Mylne and Craig, 127), his lordship said he
was clearly of opinion that there was nothing in any other
part of the will to control the trust for the children when
they attained 25, and that the gift was too remote, and
therefore void . So far the decree was right. The next ques-
tion was whether the real estate was to be applied to the
payment of the defies, legacies, and annuities equally with
the personal estate, and to that question his lordship applied
the rules as stated by Lord Eldon in " Bootle v. Blundell"
(19 Veaey, p. 517, et seg.), to the effect that the personal
estate is first liable to debts and legacies ; it is not sufficient
that the real estate is charged unless the personal estate is
discharged. The onus ie ou the party claiming exemption of
the penalty to prove that it was so exempted by the testator.
In this case the testator bequs tithed his Linde, tene-
ments, &c., and all his personal estate to trustees, the
same persons whom he appointed his executors, upon trust
to receive the rents and profits, and to retain thereout 101. a
year to themselves for their trouble, and then upon the
trusts (before stated), and then by a codicil he recited
that he had by that will given legacies and annuities, and
directed his trustees to divide his real and personal estates
in the events in the will mentioned (as before stated)
Then by the codicil he directed the trustees to pay out of
the dividends of his personal estate, payable to each of his
nephew's sons, 501. to a charity therein mentioned. There
was no charge of debt on the real estate. The question was
whether the annuities and legacies should be paid out of the
real estate while there was personal estate. It was conceded
in the argument that as certain legacies to charities were
directed expressly to be pain out of the personal estate that
afforded en inference that the other gilts were to be paid out
of either estate. That direction was a proper precaution, as the
charity legacies, it made payable out of the real estate, would
fail. Both estates were vested in the same persons to pay debts
and legacies, and then to vent the surplus, &c. There was
no expression in the will to prevent the operation of the
ordinary rale, as laid dove in " Bootle e. Blundell.' It is
clear the testator never contemplated a sale of his real estate.
Could it be intended by him that it should be subject to
legacies and ennui:in? His lordship, after other observa-
tions, said this part of the Vice-Chancellor's decree should
be varied. Looking to his judgment, as reputed in 1 Collyer,
he observed " R 'beret e. Walker " and other cases were re-
ferred to ; but in all these there was a direction to sell the
real estate; and en there was in " Dusk tr. Fenner " t 2 Rus-
sell and Mylne, 537), in "Johnson v. Woods' (2 Becvan,
4(19 in all which the testator made one luau of his property
atstl"Of course it was all equally subject to Ina debts
and ;mules. The head here saws be held as liable, PO far as
it is charged by the will; bet as to the other legacies it
must be held to be discharged, auordiog Ito the
rule in " Bootle g. Blundell " beforeementioned.—His lord-
ship, on these grounds, moved that the decree, be Tailed
is respect of the liability of the real estate le the annuities,
Ate , and it was so ordered.
The rest of the day was occupied in the hearing of the
appeal in "Drummond e. The Attorney-Gene ral for Ire-
land."—Mr. Bolt, Let counsel for the appellant, hail not
concludert—Ttie report is reserved until further progress
all be made in the argument.

EQUITY COURTS.
le
RB Viee-Chniert:or Knight Bruce.
RB WITHY.—VICE-CHANCILLOR HAS NO JURISDIC-
TION IN INSOLVENCY Coatis ADMINISTERED IN THE BANK-
RUPTCY Cocur.—This was the petition of an equitable
mortgagee; the mortgagor having taken the benefit of the
Insolvent Act of 5 & 6 Vic., c. 116, and his estate being in the
course of administration hi fore a bankruptcy commissioner,
under the provisiora of that act, which still apply to matters
which were pending at the time when the recent act passed
transferring the jurisdiction to the county courts. The
prayer was for an order of sale, as is usual in bankruptcy
eam s. The order had been taken by consent, but the regis •
trar declined drawing it up without the direction of the
court, there having been no bankruptcy.—qtr. C. Hall ap-
rued in support of the petition, arid asked that the order
might be drawn up.—The Vice-Chancellor, after consulting
Mr. W. Viaard (the registrar), said that the order had been
very properly stopped. His honor had already, in "Ex parte
Newland.," (1, De Ocx, 150), declined to take cognisance of
matters before the commissioners, in which there was no
bankruptcy. By the act referred to, jurisdiction in matters
of insolvency was conferred on certain judicial eflicers, who
happened to sit in Basinghall-street, and also to exercise
I jurisdiction in bankruptcy; but the act appeared to confer no
I jurisdiction on the late Court of Review in such matters, nor
could his honour therefore now exercise any.

COURT OF QUEENS BENCH.
Nisi Punk—Before lord Denman and a Special Jary.
ALCOCg a. THE !LOYAL EXCHANGE ASSURANCE CON-
EANY.—SHIP INSURANCE.—This was an action to re-
cover the sum of 1,0001. on a p .licy of insurance, for the
alleged total lots of the brig William Thompson, which ran
aground about 70 miles west of Alexandria, on the night of
31st of July, 1843, and was abandoned by herceptain, a Mr.
Young. The defendants denied the total loss, but admitted
a partial loss, and had paid 4601. into court as compensation
for the injury she had received. Mr. Watson, Q.C., with
whom was Mr. Bramwell and Mr. H. Hill, were counsel for
the plaintiff; and Sir F. Theedger, Q.C., Sir John
Bayley, and Mr. Bovill, appeared for the defendants.

From the evidence in this ease it appeared that the
vessel the subject of the present action had been
built at Sundirlend in 1840, and that she stool " A I"
at Lloyd's for seven y. Cr,. She bad been engaged as a
tradirg vessel in the Mediterranean, aad on the °made on
which she was lost was laden with a cargo of cotton belong
ing to his Highness the Peat& of Egypt. The original
value of this vessel wan '-',7001., and ler owner had insured
her in two sums—namely, for 1,0001. in the Royal Exchange
Meows Company, and 8001. in another company. In
support of the plaintiff's case it was alleged that Captain
Young had done all that a prudent person could be required
to do to save the vessel from beoocaing a total
,wreck, and
that after the vessel had struck he went, accompanied by
part of his crew, to Alexandria, to seek assistance from
blehemet Ali, not only for the purpose of saving her wage of
eaten, which belonged to the Paella, but to aid him
is getting the vessel off, for that prince always gave
assistance in such eases gratuitou-ly. On his arrival at
Alexandria Captain Young went to the British consul, who
applied to the Pachs, the result of which was that two
steamers, the Nile and the Ilolek, with 70 Aribt, were sent
to endeavour t get the William Thompson off, but 111Alle-
cc% tut ly , she being at the time embedded seven feet in the
sand ; eed if any further arterapts had been made to release
the vessel from her midi" they would have been attended
with an immense expense, conseque..tly the captain conic to
the resolution of abandoning her. Accordingly he had her
sold as a wreck kr about 1001. The state of the tree], as
described by the various witnesses, was that her timbers
were sprung and her back was " logged," and altogether
she was in such a condition as to render it prudent to aban-
don her. On behalf of the defendants it was urged that Capt.
Young had not properly exerted himself to get the ship
off, that he was in a state of continual intoxication ; that she
was subsequently got off by a party of the name of Scotto,
who purchased her, end who repaired her for the 'mall sum
of 411., and afterwards sold her at Leghorn for 6,500 dollars,
since which she had been engaged in trade.—Witnesses were
called in sopport of these statements, and they all proved
that due exertion had not been made to save the ship.—Mr.
Watson having replied on the part of the plaintiff, Lord Den-
man summed up, observing that the question for the cot eiders-
tinn of the jury was whether this was a total or reined lo,s.
Mr. Maack, the owner, had no imputation of fraud made
against him. It was also for them to say whether the cap-
tam had done all that the servant of a prudent uninsured
owner ought to have done to get the ship off.—The jury
then retired at a quarter to six, and returned into min at
ten minutes to eight o'clock with a verdict for the defend-
ants, stating their opinion to be that the plaintiff had only
sustained a partial loss.

COURT OF EXCHEQUER.
Lim Puce.—Before Slr P Peach, CB., awl a Special Jury. i
STOOGE V. HALDEMAND.—MAISIN2 INSUVANCE —This
was an action by the owner of a ship called the Esther, 1
againet one of the underwriters, upon a policy of insurance
effected upon the ship for a fi.hing voyage to the South seas.
The vessel was tiVed out is 1845 for a fishing voyage for the
purpose of capturing sea elephants and seals. The ship went
out accompanied by two vessels called " tenders " and
arrived at an island edict] South Georgia, not far (von the
Island of Desolation. She was moored safely in one of the
harbour., and the two tenders leaving her there. eel oul,
with the whale of the crew, to pursue their avLcations.
After having been out for some weeks, the scurvy broke out
amongst them, and, fu a hurricane, tho captain and live of
the men were drowned. The others had suffered much
from the effects of the disease which broke out amongst
them; however, the survivors got back to Georgia
and there they found the chip, on board which they stowed
away 90 tons of oil and a quantity of seal-skins, the result of
their labours. They then renewed their pursuits, having
left one of the tenders with the Esther, but no person on
board either. They remained away about five weeks, and
at the end of that period returned to Georgia, when they
discovered the Esther had disappeared, and no trace what.
ever had since been found of Ler. After a fruitless seer.h fur
the ship the crew set out again : they suffered much hard
ship, when they met with a chip called the Isabella, which
furnished them withstores and rendered every poasihie assist-
ance. They ultimately get ink. Rio. The answer to the action
was, that the loss had not occurred by the perils of the
sea, that the vessel might not have been lost at all fur aught
that had appeared in evidence. And even if it was lost, it
was the result of gross negligence en the part of the craw to
leave her without any r mon upon board.—The Lord Chief
Baron left it to the Jury to say whether they thought the
ship wit. lost, and, if so, whether tke loss was caused by the
ineecusab'e neglig.nce of the officers or crew in command 01
her.—The jary found a verdict for the plaintiff, damages, '
3001., the amount underwritten for by him, but it was
understood there were other claimants to the amount of
some 5,0001.
With this cots those sittings were terminated.

ASSIZE INTELLIGENCE.
NORTHERN CIRCUIT.—CARLISLE, Fitn. 26.
Mr. Baron Alderson and Mr. Baron Rolfe arrived in Car-
lisle yesterday from Appleby, and immediately wocceded to
open the COMMiAllioo.
PEW Ulef.---S0 La hack as the llth of October, 1833, a
man earned Bernard Burns was murdered by the aide of the
river Derwent, near Cockermouth, and five men, of whom
the most remarkable were two named Nicholson, were tried
at the Carßale Spring Assizes, 1831, before Lord Lyndhurst,
for the murder. The principal witness in the trial was a
woman of loose character residing in Cockermouth, who
swore that at half-past two o'clock, a.m., on the 11th of
October, she saw the murder committed by the pri-
soners, whilst she was crossing Derwent-bridge on
her return home. The prisoners, in their defence,
attempted to prove en alibi, and one of their witnesses,
Edward Parkin', swore that he was in company with
Margaret Thompson from 11 o'clock on the night of the
10th of October till 6 o'clock on the following morning;
that they hal slept together ; that Thompson had never left
the bed during the night, and could not therefore have been,
as she had sworn she was, a witness to the murder. By rea-
son of the conflicting testimony the prisoners were acquitted.
In 183.5, however, five of the witnesses for the defence were
prosecuted for perjary, three of them were convicted and
transported, two of them escaped before trial, one of whom
has yet been heard of, but the other, Edward Parkins,
mentioned above, returning to Cockermouth last year, was
apprehended, and after • patient trial this morning was
found guilty of perjury and sentenced to be transported for
seven years.

OXFORD CIRCUIT.—READINO, Fan. 28.
These assizes commenced here to-day, Mr. Justice Patte-
son presiding in the Nisi Prins Court, and Mr. Justice
Creuwell in the crown court. The calendar of prison, rs
is heavy in point of number, bu' the offences are mostly of
a petty character. The judge, in his charge to the grand
jury, remaikid on the evidences of ignorance amongst the
ermine* there being scarcely any of the 70 prisoners who
cold read or write, except very imperfectly. —ln
the nisi prior court there were eight causes entered for
trial, hot several of them have been arranged. No cause
f any interest was tried.

WESTERN CIRCUIT.—WINCRESTER, Fan. 28.
The commission was opened at thin city fer the county of
Southampton on Saturday last, by Mr. Justice Wightman
and Mr. Baron Platt. The business iu both courts is heavy.
In the civil court there are 21 causes entered for trial ; three
however are removed by certiorari, one entered by both pro-
s, tutor and defendant, and six are retained for special juries.
The calendar presents a list of 60 prisoners. No case of
public interest has yet ►een tried.

CENTRAL CRIMINAL COURT.
The Adage of this court were resumed yesterday before
the Right Hon. the Lord Mayor and the. Recorder, Cte.—The
Recorder briefly charged the grand jury, who then retired,
and the court proceeded to business.
FALBEPIGE.TBNCES —lt. Bishop and J. Arnold careen-
deTed to take their trial upon a charge of obtaining money
by false pretences from Messrs. Barclay and Co.-1 be fraud
imputed to the defendants was of c of rather a singular
character, and evinced considerable ingtt.uity. It was
the custom of the firm who prosecuted. to make a
charge upon their customers for the casks in which
their beer was supplied, and when they were re-
stored, the nun so charged was refunded, the amount
being 11. fora barrel and 13a. far a kilderkln, and tt teemed
that • good may of the country customers were in the
habit of ..ending their empty casks back tbrou4h the me-
dium of the Talbot and the New Inn hooking offices, in Old
Chango and the Borough, where the defendant Arnold had
been employed as porter, and he consia,motly was LI: ae.
quainted with the mode of carrying on this branch- of the
business of Messrs. Barclay. It teemed that in August last
Bishop on two oecesions brought three casks to the brewery,
and he at the same time produced a printed ticket, purport-
ing to came front the booking offices mentioned, on which a
charge was movie for porterage, and the casks were repre-
sented to have been Sent by three customers named Phillips,
Ottamav, and Elliott, and upon three representitions a
sum of 21. 13s. was given to this defendant. It turned out
hat the casks ware not lent by the persons named, and
th. re was no evidence as to how the defendants got poems-
lion of the casks, but it was suggested that, as the prose-
cutors lost a great number every year, and by reason of their
being branded with their name, it would be a dangerous ex-
periment to endeavour to dispose of them in the ordinary
manner. That the ingenious expedient had been reser:ed to
in the manner mentioned, of making the prosecutors pay for
those casks, of the possession of which some dishonest per-
son had, in the first instance, improperly deprived them. In
order to connect the other defendant, Arnold, with the trans-
action, it was shown that his writing was upon the ticket,
and that he bad given it to Bishop, and he admitted that he
afterwards received part of the money.—The jury, acting
upon the impression that Bishop had been made the dupe of
the other defendant, acquitted him, and returned a verdict
of Guilty against Arnold.—He was sentenced to be im-
prisoned for one year.