The Express.
London, England, 1851-02-20 00:00:00

aw inteiltaence.

JUDICIAL COMMITTEE OF TILE PRIVY
COUNCIL—YDSTERDAT.
Pere Dar-Tat Ream re waitron Tao Jeeps nr Tay !Mansur,
(pear, Ms. Baru Paean Yea Kasai Hog. T. Panasams Linos,
Ara T SANT Ifs.. an SWAY ILTAN•
NEwlem ST IJIOII v./LICKS-ITS Cala 07111210.—ALLEGED
lIITALIDITT OW INS LAST WILL AND TVATAMENT OP TUS
LATE SIX 'Lunen? TatsTkAL RICILIITIO.
Mr. Serjeant Allen and Dr. It. Phillimure appeared for
the appellant^ ; Dr. Addams and Dr. Harding represented
the respondents.
This was an appeal from the judgment of Sir Herbert Jen-
Der Fuet, the judge of the l'remgative Court. The testator
in this cause was the late Vice-Admiral Sir Roberton the
Tria-
train Ricketts, of the Elms, Cheltenham, who died
18th of August, 1842, at the age of 70, leaving a wife and
&even children, namely, Sir Cornwallis Ricketts, the pre-
sent baronet, Letitia Frances. Henry Newton, the appel-
lant, Lieutenant-Colemel Saint Vincent Ricketts, Ilarriet
Drenthe& Chaniock, widow, Simpson Hicks Ricketts, Erg.,
R.N., Lavinia Ann Ricketts, spinster, and Mary Ricketts,
sin married to Ih. Thomas Wright. The appellant was
married on the 15th of October, Pent The will, which it
was alleged was invalid, was executed and dated on the
30th of July, 1812, and was proved ton the 21st of Septem-
ber, in the same year. Mn. Rebecca Ricketts (the testa-
tne's wife), Major Thomas Askew, and Joreph Cooper
Estribril were appointed executors to this will. The effects
were sworn under filbl.lool. It appeared, from the state-
ment of the care on behalf of the respondents, that on the
17th of Jane, IStri the testator had a siulent bilious attack,
attended with anilines., of which he was soon relieved by
cupping, but which the appellants dewrihed as an attack of
paralyse.. From the month of December, 1840, he also suf-
ferd severely from a disease of the pr etate gland, and
for which on the 24th and 2Gth of December in the same
year he underwent a surgical operation, and fur which he
afterwards required and received constant surgical attend-
ance. He was reduced by this disease to a state of pertain
nest and great bodily infirmity, hut it did not impair his
mind, and he was, as the eespondents contended, always
and up to the last of yerfect sound mind, memory, and
understanding. Mrs. 'Newton, the appellant, by the codicil
of the Prth of April, 1829, Vohe itrest of 2,00411.
for r wparate use, with remainder the
to henre children, from
that time the natant, excluded her from ell testamentary
benefit; awl her name did not appear once in his numerous
will, and oohed:.. Of this series of will. end codicils the
appellants wen only opposing the last will, of the 30th
erf
July, 1512, on the ground that he had a paralytic stroke in
June, Bean, and another more severe in lbeember,
1810,
and that from the hut period eapecially he was in a state oil
mental and bodily inebetility, and wholly incapable of exe-
cuting a will. The will elated in the fiat instance, "I
ratify. and confirm the settlement. made previously to my
marriage with my dear wife, (Lime Rebecca Ricketts, and
do hereby declare that the estates and interest given and
loanwiethtd by this ray will shall not in any way sat, or
interfere with the uses, trusts disposition enutained in such
actin nt. And I lava ath to my said wife, for her abso-
lute Is no tit, all the wow y which l may possess at the time
of my if. ei together a ith such interest as may be due to
rar On MAI-TM mortuwe securities hereinafter mentioned
Or ref-nil to," then bequeathed to his mid
wife for hi r like absolute benefit all the house-
hold n0e1..., furniture, plate, linen, china, glass, and
all .gms. astiel,... of houoshold nature appertaining
to the tritasuaw. where he resided. Ile then devised the
mansimelitoust. in which he resided, together with the
ground, sow hir wife during the term of liu-r natural life,
and he thin devised the same to the wee of his eldest sun,
t,,rnwallis Itieketts, his hi ire and assigns fur ever. Ile
abet gave and Is imeathol to his son f'ornwallis Iticketts in
aililit to the 11801. sterling which hi, settled on him at
the time hi his marriage, the principal ennui of 2,4011/.
2,0110/., and Soar, recurtal to hint by three mortgages of
premerty le-Innging to Mr. 5111114,1 (harks Harper, Mr.
Wlllllllll Ft•IIIIIN I, and Mr. Thonms Washy, and he then
heaturat he'd to hi. said inn s,,murVl /lithe enmity then stand-
ing in the -I hr.,- Pc r C. nt. Com-oboist. Bank Aniiiiities
as would probe, the sum of 71111/. sterling, and he then
wont OS to std., And inasmuch its I have by an indenture
la arena dab an or about the- Meth day of Amnion, latn, made
mime pros noon to my daughter Letitia Frances Henry
N. awn, the wife of Augustus Newton, Ent., and her issue;
Lho plore it is not My into Mimi to make any further PINS
‘I,II/I1 for her or them by this. ney will. And, as to all
the rest, residue. and remainder of nay petaonal estate,
of what nature or kind oweer, 1 give and bequeath to
Thomas A•kes and Joteeph (*wiper Strained, to sell, dis-
pose et, call in, or otherwise mire ft lilt/I money, so much
oi nay r siduary personal estate as shall not consist of
Conn y • ins. sled in any of the parliamentary storks or pub-
lic rands ..f Great Britain, or upon go•erilineril tor rcal seen-
vitas at interest. and ,11:111 kly out and invest the
same in or sisal some .or one of the parliamentary stocks or
public funds in Great Britain or upon miveninit nt or real
aerurities in England ut ilarn-st. Ile then declared that
the said Thomas Ado w and Joseph Cooper Strained should
stand of hi. residuary lanolin' iodate, and the
ettels, funds. or neurities upon the trust following—that
VAS to say, in trust to. pay the' said into rest, divide-n.l, and
annual produce unto his sand wife and her assigns fur and
during the term of In r natural life, and after her decease
spin. trust WI to ,111 much of the said trust monies,
stocks, fund., and securities as should he equal to the
sum of twenty thousand pounds, to stand jetraciewel of
the emu. for the use and benent of his five other child. 0
that was to any, St. Vincent William Itieke-tts, Horn t
Itst,,thi a Mteketto, Lasinia Alin Ricketts. Sinipnin Hicks
itiskell,, Alla Mary Itirketta, in equal shares and motor-
thins. unit in eau' of the death of any or either ..f them then
itnie and Istsitteathed the beque.ts to the sun i%% i.e
surs Ivor of them iu equal Alan's and proportion.. Ile then
devised the residue lad remainder of the said trust ninnies,
enaks. Mitts. and se unties, the produce- of hi. residuary
rwatal estate to his elitt.t von Cornwallis Ricketts, and he
•ppoisett d hos wife and Thomas Askew and Joseph holler
Straford paint reecutrii and executors of his will. The
will St, sacred by George Buckman. of Clu-Itearham,
in the rowdy of tiloviesatt r, law-writer, as the last
will and testament of the said testator, and attested by
Ileonois Wright, surgeon. 2, Exeter-place, Cheltenbess,
and os, el. rk t.. Mr. Stretford, ntlicitor, Cheltenham
Mr. Thomar Wright gave the flilboving account the
,-,.ration of the will . In the forenoon of the very day on
which tb will in question was executed 1 not Mr. Straford
by appointment at the Elms. Ile stated to me, in the
d' wresoni, that Sir Robert wietied to make a slight
alteratom in a former will, and that IN/ was anxious to have
my ' whether I thought the trotatar was in a state
of mind, and was aware of the consequences of his acts ?
1 told him 1 was clearly of that opinion. I was in the habit
of seeing him daily, and therefore I could have uu hesita.-
tient in stating my belief that he was lierfeetly.rompetent to
We the alteration. It 'Sex a private interview with Mr.
Strained, whom I knew to lie the electowetCe prof. ssional
advisor and trolicitor. lle left me in the ditifinr-nom, and
requested nee to wait until tin had ermine.' matters with
Kr Robert, who was in the drawing-mom. Sir Robert
Ricketts was reclining on the sofa, as was his usual habit.
I had seen him before 011 the morning of that day, before
he nor. I was in the habit of seating him daily. I had
been in continual attendance upon him from the 25th of '
lkocember, lain, up to that elate. Lady Ricketts, Mr.
Strafionl, Mr. Buckman, and Mr. Owens were prevent.
The two latter tIerSISIS were Mr. Stralord'a clerks. Mr.
nerafonl stated to Sir Robert that by a relent statute the
will could he executed by deputy. if be felt unequal to the
elertion of signing hi. name. At this time I think Mr.
Straloord hint the document in his hand. lam not
sure, but at any raw it was in the roam. 1 had
not nen it hetore. Mr. Straftenl also asked hint
if he clearly rennpreheittled the purport of the alteration
wow made. It seemed to he put in this way, that Mr.
!Unshod wished to understand whether the deceased knew
perfectly this particular alto ration from the former will
that was made, liy the 0114/ then to Is- ,scouted. and which,
S. well as its *hole cont. nt.'. I then untlertood had been
previously espial's., to the deceased during the time I was
in sating in the dining-nom. Whether Mr. Straford
only asked him whether he knew the purport or the altera-
tion. or put to himhis knowledge of all the contents of the
will about to be executed, 1 cannot charge my memory at
this distance of time ; hut of this I atu clear, the will was
not read over to the eleceanal• nor was there any espinna-
Mutt tor its contents given to him in my pnyence. Itereply
to Mr. Strafed, Me Itobert said. •• iterfeetly." and in re-
ference to his explanation that the w ill could be signed by
deputy. he said " he was very triad of it, for he did nrit
feel equal to the exertion of doing AO himself." Mr.
Stealer,' then told him. if he would ask Mr. Buckman,
Mr. Beekman would sign it for him. Sir Robert then
&Ikea Mr. Itut•lritaii, adding that he would fill very
much ololigeol it he would take that trouble. Buckman
acelsolingly slimed the will for Sir Itolort, and I and Mr.
Comeau, were the atteatimi witneoes of that signature. We
all signed upon the drawing-nom table, which was in the
centre of the nom. Sir Mollett Vt, lying OH a sofa,
situated between the table and the window ; 1 ViSS between
him anal the table. Mr. Straford and Buckman and (\omens
were round the table. I don't recollect in what part Lally
ILickett. stood I believe she was iu the noon. The will
having been eseented, Sir liolx.rt Rickert. thanked Buck-
man again for having signed his name. Ile was a
very polite mannered man, a must perfect gentle-
man, and on this occasion seemed very sensib!e of
having been eelieved from the fatigue of using
the pen himself. This completed the transaction.
The only question substantially in dispute was the ladle of
the detesatool's capacity at the date of the last will, 30th of
July, 1812, which the respondents submitted was abun-
dantly proved by the evidence. The appellants sought to
set wade the will on the fallowing grounds firstly, that the
will elated the 30th of Jule. 1842, seas proved to hale !won
progun-d from the deceased while he was weakened and im-
paired en mind. memory, and understanding ; secondly'
that suttitient proof had not been adduced in the cause to
show that the decanted knew and approved or the contents
of the will ; thirdly, that the will was not proved to have
been duly etecutea by the testator ; and fourthly. that no
pniiiiiits instructions 'ST DOT StalfeCttlellt recognition of the
will was provad to has,. proceeded tram the deceased.
The opening arguments in support of the appellant's case
having terminated.
Dr. Leahinetou gave judgment. The Council were of
opinion that the will had been duly executed by &compe-
tent testator. and the judgment of the Peerugatim Comet
must therefun: be affirmed-.
Judgment amerslimily.

EQUITY COURTS.-YZ*TUDAT.

BUM' ewe Lean Qsao•aAa.
WATTII r. ZIT tiNTIO; Si !ASTI Bat's.—Ftto HT op
JCIPONINT TOBll2l, 1N KiNCISTION,
IN TIM ACCOUNTIOT-GSNIAAVII OPYICZ, PATAIII-1 TO
DINTOIIS.
ml ens a petition of appeal against an order of Viet-
Chissabir ILaightßraos under the following circumstances.
Ma. Rem and One bask wend up judgment on a bond

given to him by Mr. Alexander Taylor. Tay n
l 0 r, who has
years been for some yea and is still residing abroad, was
istration
entitled
to an annuity of 2002. under • will, for admi
of which the. suit was instituted. The an
had
fallen arrear, and in Nosember last an order ,
was made by the Vice-Chancellor fur payment out of
a sum of 3,0002 standing in the accountant-gee
nerd's name to the credit of the cause, of 5001.,
thereof, to Mr. Taylor in respect of the annuity.
red lessee then presented set!tion to the court stating tote
circumstances of his judgment against Taylor, that he
was and is residing abroadand bad no property in this
country to answer the judgment, except the said annu
thatity
and the fund in court to answer the same, and praying
the accountant-general be ordered to deliver a cheque for
the sum of 1001., then drawn or to be drawn by him in
favour of Taylor, to the sheriff, charged with the execution
of the bond judgment, or that he (the sheriff) may be at
liberty, by leave of the court, to seize on
the said cheque in the aceountant-generars office.
The Vice-Chancellor refused to make the order so
prayed for, but he ordered the cheque not to be delivered
out until further inquiry into the faen, and application to
the court. Taylor's sdicitor applied at the accountant
general's office., and the cheque for 4922., already drawn,
was delivered to him then, signed by the accountant ge-
neral; but, on the solicitor's stating that a stop order was
made by the Vices-Chancellor, he and the accountant
general agreed that the cheque should remain in the office.
The present petition of appeal prayed as the former peti
Lion prayed.
Mr. Bacon and Mr. Smythe. for the petitioner, con-
tended that under the 12th section of the Act, 1 and
2 Vic., c. 110, (the act for the abolition of arrest on
masne process, and for extending the remedy of creditors
against the property of debtors, &c.) the sheriff had
a right in execution of the writ of 0. fa. in this case to
enter the accountant-general's office, and seize upon the
cheque ; but from courtesy to this court, whose officer the
accountant-general was, the petitioner came to ask the
court—first, that its said officer be ordered to hand the
cheque to the sheriff; or, secondly, that he (the sheriff)
might be at liberty to enter the office and seize it. By
the llth section of the act it is enacted that "the sheriff,
having execution of a writ of fl. fa., may seise any money
and hank notes, or any cheques and bills of exchange, and
other securities for money, belonging to the person against
whom such IL fa. shall he sued out." Tile real question
here was, whether under that section this court will pre-
vent a judgment creditor from attaching the pro-
perty of his debtor. This cheque having been drawn,
payable to Taylor, and, in fact, delivered to his agent,
who very properly allowed it to remain in the office—was
Taylor's property at the time, and became seizable in execu-
tion under this act. The accountant-general certified to
the court that he knew of no instance of an order on him to
pay money over to an execution creditor, although there
were orders to pay assignees of inpatient debtors and 114,
notwlrators of cicrgiltmlee linings. if the right to seize the
cheque was at all in doubt, under the 12th section, the
court would, at all events, under the 14th section of the
same act, explained and extended by the act 3 and 4 Vic.,
cap. 82, declare the fund in court belonging to Taylor
to he charged with the amount of the judgment debt.
This court always thought it its duty to aid
parties in enforcing their judgments at law, as
laid down in Mitford's Pleading' s pp. 126 and 187, 4th
edition, and in " Robinson v. 'll Lard,* (5 Brawn, p. 388).
This debtor resided abroad and had no property in this
country that the creditor was aware of, except the arrears
of the annuity fur which the cheque had been drawn, and
if that cannot be attached the creditor is without remedy.
Mr. Wood and Mr. Wilford opposed the petition. The
cheque, they said, was not signed when the first petition
was presented, and even if it had been signed, it was not
delivered; it is nut yet delivered; but remains in
the arenuntant-general's OEM`; and, until delivered,
it celoild not be property belonging to Mr. Taylor ;
OW debtor, and therefore was not within the letter or the
meaning of the art I & 2 Viet., e. IRS, or of the declara-
tory set, & 4 Viet., e. W 2. The Viet-Chancellor bad care-
fully considered the circumstances before him, and, being
of opinion that the cheque had not become di:, property of
Taylor, he'woutil not make the order to citable the sheriff to
tidies possession of the cheque, hut dismissed the petition,
ilia-cling at the same time that the cheque be detained in
the arcountant-general's office till the petitioner might take
such proceedings as he may be advised. They cited "Sim-
moods r. Kinnaird" (4 Ves., 735), " Brown r. l'errott "
(4 Woven, 585), and " Ex parts Brooke," in Simon's
Reports.
Mr. Bacon replied.
The lord Chancellor said it seemed to him that if this
applicatiou were to fail, the object of the legislature in the
arts that had been referred to would be disappointed. That
object was, no doubt, to give the judgment, creditor power
over his debtor's property, and it appeared to him, in
perusing them• tuts, that the legislature industriously tried
to effect that object. The debtor in this caw was entitled
to an annuity under a will, and the annuity having fallen
in arrear, an order was made for payment ol the arrears out
of the money in court, to the credit of the cause, so that
Taylor WWI entitled to this sum (4921.). It appeared by the
11th section of the 1 ac '2 Vice., cap. 110, that any judge
might make an order to charge any stocks, or funds, &c.,
of a debtor with the judgment debt, and it being doubted
whether the power so given could be effected in some cases,
the declaratory act of 1 & 1 Viet., e. 82, was passed for the
mine. It was therefore clear that the legislature in-
roiled to make property of a debtor which could not be
seized its execution chargeable with the judgment debt,
that is, such property as stock, &c., which could not be
availahle for the execution of the judgment, was to
be declared available for a charge on it fur the
purpose of ultimately satisfying the debt. 'fhe fund
in this ease was in such a position that it could not
he charged under that section, and therefore the creditor
did not apply to the court under that section, but under
the 12th section. and he prayed that the " accountant-
general may be ordered to deliver the cheque to him or tee
the sheriff in satisfaction of the judgment, or that the
sheriff may he at liberty to enter the office of the account-
unt-gentsral, and take the cheque in execution." The petition,
it appeared, was drawn andpresented to the court before the
cheque was perfected. It was to avoid incurring coat mot
of court that the petitioner asked lessee of the court to
proceed in the manner prayed. The accountant-gt ueral
' being tin officer of the court, the pet:tioner took the proper
mune in that respect, but if this cheque was property in
the poesession of a private person the sheriff would have a
right at once to enter and seise it for the judgment creditor.
It being, however, property belonging to the debtor in the
hands of an officer of the court, was the court to prevent the.
seizure of it? Ilis Lordship thought not, although the
party. acted very properly in coming to the court for lease
to false it. But it was the duty of the court to ascertain
whether the property wets in the state it WAS represented to
he in—whether it belonged to the debtor. Taking the ana-
logy of an acceptance of a bill of exchange, although the
party wrote his acceptance on it, it was nut legally an lie-
rept:ince until it was delivered, for if lie put the bill in his
desk, he might never deliver it; and, therefore, he was
under no liability on it. And so with a cheque, though
signed. it was not a complete cheque until delivered. Until
then there was no property in it belonging to the person fu
whose name it was drawn. Here the cheque was signed noel
held in the office ready to be delivered to the party entitled,
as is proved by the delivery to the solicitor of the party.
If the solicitor took it and last it an action of tracer,
on behalf of him or J. Taylor, as the owner, would lie
against the finder. The return of the cheque by Taylor's
*diviner did not give back the property on it to the drawer,
but the drawee, to whoni or whose agent it was delisCrCli
had the property in it, and might maintain an action in
respect of it. It seemed to his lordship that if the present
applkatbns to allow this sheriff, on behalf of the creilitur,
to cello the cheque, which was clearly the debtor's pro-
perty, were refused, the object of the legislature in paesiug
the acts referred to would be defeated, and although the
court was hound to attend to all reasonable objections, it
would not be astute in looking for objections in order to
defeat the acts, He thought that the cheque was properly
whitest to be taken in execution under the act, and without
at all eruharrassing himself about the' terms of the prayer of
the petition, he thought the sheriff should be allowed to
take the cheque in execution, having no) doubt that the
I cheque was property belonging to the. debtor. The restrain-
ing under of the Vice-Chancellor for keeping the cheque
until the circumstances could he aseertaineol was right, but
uu the circumstances as now ascertained it seemed to his
lordship that that part of the prayer of the petiti ssss should
be granted, and the sheriff allowed to take the cheque in
execution.

3rrosa Timeaustaula K.ron Bates.
Ra WOLVSUm rlux Fuzz Grammatt :44:m00t.

-
CHARITY.

The Attorney-General and Mr. Metcalfe supported a pe-
tition pn-sented by certain inhabitants of Wolverhampton,
seeking a reference to the master to approve of a scheme for
the management of the above school. The school way
founded by Sir Staples deny's', an alderman of London,
and under letters patent of Henry the Eighth, viubling
the Merchant Tailors' Company to (hold certain lands in
Worcestershire` for the maintenance of the charity. The
petition prayed that in settling the scheme regard might be
had to the probable future TV,CIIIIV, of the chanty, and the
wants and requirement •of the population of Wolverhamp-
ton.
Mr. Craig appeared for the trustees; Mr. G. L. Russell
on behalf of the master of the school, asked that the muster
might have leave to attend upon the reference.
The Attorney-General referred to Re Shrewsbury
School, I Macuaghten and Gordon, 322, to show that the
attendance must be at the master's exprnac.
The Vice-Chancellor said that as there might arise ques-
tions of private right• he thought that the masts r should
have liberty to attend, and the question of costs should
be reserved, and an order was made accordingly.

lams Leta Caiorwoieru, VieaCaeircztroa.
Bt'elaltaie OF THE Cot'itT.
Mr. Stuart mid he appeared for certain parties in
" Maeßean r. Masterman, ' standing second in the regular
cause list. He observed that two other cases, one a cause
and the other a motion, had been placed on this day's paper
in precedence over the regular cause list, as cases to be
beard "by order." He objected to the practice of setting
down cages to be heard oby order." Ho. clients had nor
attended in court 14 successive days, expecting that their
suit which stood high in the general paper would be heard.
They had, however. been repeatedly disappointed owing to
the practice complained of. Before the late Vice-Chancellor
of England the same objectionable practice had prevailed.
until it had by a great effort both of the court and the bar
been put an end to by the adoption of a strict rule fur the
refusal by the court of applications to give precedence to
particular business. Unless a similar rule were now adopted
by his lordship the general and regular business of the court
must come to a stand still.

he had the power to prevent undue
precedence being given to particular busiaele out of ite
order. In the ezercise of that power he hoped to hays the