The Express.
London, England, 1851-03-07 00:00:00

will, and, though a deed in form, was in fact a testamentary
Raw iintelligence. instrument. It might even now admit of a question, if the
Attorney-General chose to raise it, whether this deed,
HOUSE OF LORDS —YESTERDAY. being merely inertia canal, was not in fact a testamentary
The Lord Chancellor and six other peers met soon mita • instrument. The deed was wade upon the suggestion of
three o'clock for the second reading of the following divorce Cooke, that the legacy duty would thereby lie saved.
bills. ee Cooke, according to his own ottani...lon, did not
Iles•riteore's DIVORCE BILL. communicate to the relatives of the donor. 'I hey came to
The evidence iu support of this bill was taken on Tues- England on live several occasions, being desirous of obtain-
day (see Express of Wednesday), so far as proof of ing information as to the property of the testator, knowing
adultery was required ; but, as the petitioner wished to that the property was considerably larger than it appeared
have a clause introduce into the bill to bastardire the last to he Iry the will. Still dwelling only nn facts silinhecal
nn
child of the wife, and of which—being born on the 17th of both sitter, it was clear from the term+ in which the will was
May, 1850—the petitionereould not be the father, inasmuch made, and the nature of the dispositions contained in it,
as he was absent with his ship for three years, from August, that it had been framed so as to make it appear that the
1846, to the 2101 of November, 1849, and the child was 3,0001. with which it dealt, together with the money in the
proved to be a full-grown nine months' child, the entries testator's house, and his furniture, constituted the entirety
an the log and muster books of the ship not being satis- ot.his property. The will was written on draft paper, and
factory to their lordships to prove the petitioner's was very short. It purported to be the will of Caere, and
ahem, is, the ease was adjourned to this day for better appointed J. A. Cooke and Joseph Hay the executors, suit
evidence. it gave 7.501. 3 per Cent. Consols to each of the two bro-
Captain Courtenay was now examined, and he proved them of the testator, named Peter and Julien ; 7501. like
that Captain Heatheote was with him in the Atlantic and Consols to his sister Julienne, of Loral ; and to the children
South bear in the same ship from autumn, 1816, to Norm- of Marie al:milord, his deceased sister, a like sum, such
her, 1549. several sum+ to be satisfied out of any sum of bank 3 per
Their lordships being satisfied with the evidence, Cent. Consols which should be standing in his name at the
The Lord Chancellor moved that the bill he read a second time of his decease. To that wilt a codicil was added,
time: it was so read, and the proposed clause will be which was admitted to be in part written by the
inserted in committee. priest lioldstock, after Cooke had withdrawn from
MACLEAN'A DIVORCE BILL. the room. By this codicil the testator bequeathed to J. A.
Mr. Talbot stated the facts of this case, and from his Cooke, one of his executors, 50/, as a recompense for his
statement and the evidence in support of it, it appeared trouble as executor, to he rained and paid out of the first
that the petitioner is a major in the East India Company's dividends to arise from the Consolidated Annuities men-
service, and was married in India in 1339 to Miss Polly at tinned in the will; and he gave whatever money might be
the house of her father, according to the rites of the church in his house to Mr. Ilioniltun, his landlord. Another ad-
of England. They lived together as husband and wife on the mitted document, which was extremely material, taken in
most affectionate terms until April, 1816, when Mrs. Mac- conjunction with Cooke's admiasion, that he did not corn.
lean Come to England for the benefit of her health. The mainieate the execution of the deed to the testator's rela-
petitioner was not able to accompany her, being detained in fives, although he was in correspondence with them, was
India by his professional duties, but he entrusted her to the an account delivered by Cooke or his solicitor Norris. It
care of some of his and her friends, who were coming to was part of the plaintiff's ease to charge the other side with
England at the same time. They came by the overland an anxious desire hi prevent the relatives of the testator
route. Captain Francis Cristall was corning home at the being informed of the real facts of the eau and of the calm-
same tune. Mrs. Maclean was in most delicate health tint of the deed ofgift. That deed was dated March 4, and the
during the whole of the journey by land and sea, and dividends of the 7,0001. 81 per cent. Bank Annuities
nothing passed between her and Captain Cristall to become due on the sth of April. By law a proportional
excite notice among her fellow travellers. The tele- part of those dividends would belong to the testator's
tiers of Major Maclean having been by letters from estate. It appeared that Cooke had called on that under-
him apprised of his wife's return to England, met standing it the law, and that the trustees of the deed paid
her, and so did her own relatives. She put up at a to Cooke in respect to that proportional. part. The material
hotel at Charing-moss, and on recovering her health she thing to he observed, however, was the manner in which
went to visit her friends and her husband's relatives in that sum was entered in Cooke's account as executor.
Scotland—travelled about, spending some weeks inChelten- The natural entry would if there had been no desire to
ham and other such places. Captain Cristall was a frequent mystify Ire as follows :—" The sum of so and so being a pro-
visitor wherever she went, and he was received as the friend portional part up to death of the handcar of half a year's
of Major Maclean by his relatives and Mrs. Maclean's rela- dividends on a Kum of 7,0001. 31 Bank Annuities,
tires. There was 110 suspicion of the least impropriety transferred by the testator under and by virtue
among any of them in his visits. But, in the latter end of of such and such a deed of transfer." Such
the year 1846, Mrs. Maclean was in lodgings in a street off an entry would, however, have disclosed the existence
Regeut-street, London, and had on a visit to her a nephew, of the 7,0001. stock. The entry war, therefore, made as of
a young lad. On his departure on the 22nd of December, a sum of money received by Cooke from Dr. Griffiths, his
1846, she accompanied him to the Paddington railway stn- co-trustee, fur a debt duo to the testator. This, though
thin, and on her return to the lodgings she was accompar trifling in itself, became important when connected as part
vied by a gentleman whom she introduced to the landlady of a system for concealing from the testators relatives the
as Captain Hodiskinson, and an intimate friend of her ho.- transaction sought to he impeached. it was not until the
band, and added that if the bedroom which her nephew parties hail informed themselves as to other portions of the
had occupied was not engaged, he (Captain Hodgkinson) tintator's pniperty and had charged Cooke with a know-
would occupy it for some time. The landlady agreed, and ledge of the fact that the deed was disclosed. 'r ho bill
the gentleman's baggage was brought with the name of charged studious desire on the part of Cooke to pre-
"Captain Cristall " un it. One of the servants thought vent the relatives of Carre from communicating with
this was very odd, because she remembered once taking a or being influenced by the statement of Ilainilton.
note from Mrs. Maclean to Captain Cristall, at 21, Maddox- Whether that charge were capable of being supported or
street. Her suspicions being thus excited, she looked uot, it was clear that Cooke had made no communication
after them. By this witness's evidence, it appeared to them as to the trust deed, until they had obtainsil some
that from the 23rd of December, 1846, to the 501 of knowledge ea to it from another quarter. Since the suit
January, 1817, Mrs. Maclean slept in this gentleman's (Cap- had been instituted, the attack had been sought to be
lain Cristall's) bedroom, or he in hers, every night, and diverted, by tiling an information to establish the deed as a
the learned counsel amid he had other servants to prove the charitable donation. The present bill was filed on the 18th
same. They left these lodgings on the sth of January, January, Dail, and on the 25th of February following,
1817. In the month of September following Mra. Maclean only a few days hack, an information had been tiled by the
and the -- do came s' in to the same lodgings and told Attorney-General, at the relation of one T. Pownell against

captah. waif_
the lady of the house they were going otf to India unme-
cliately. They did leave England in October following, and
Mrs. Maclean arrived at the abode .
of her husband iu ur-
rachee, in India, on the 21nd of December, 1847. On the
sth of July, 1818, just six months and fourteen
days after her arrival, the holy was delivered of '
a fine full grown child. The unhappy husband
was distracted. On recovering his senses, he consulted his
friends. Inquiries were made in India and England, and
the discovenes before mentioned were made. Major
Maclean then brought an action for trim. eon. against Cap-
tain Cristall, in India, and got 1,0001. damages ; hut they
have not been paid, because Captain Cristall died before
execution could he issued. A divorce a mew* et thorn has
been obtained in the Consistory Court of London, and the
proceedings in both suits have been laid before this house.
(In these casts the reports contain only the substantial de-
tails—the minute details are really disgusting.)
The Lord Chancellor, at the conclusion of the evidence,
moved that the bill be read a second time ; and it was read
accordingly.

Cooke, Norris, and Cox, and the relations of Currs,
to the present suit. The information represented the trust
as created in performance of an intention long previously
entertained by the donor. It prayed the establishment of
the charity by the decree of the court; a transfer of the
fund into court; and, if necessary, that a reference might
be directed to the master to settle a scheme. The success
of the present motion bad thus been rendered matter of
neces.ity, and any discussion of the matter in the present
stage of the cause bad become useless.
Mr. Stuart, who appeared for the defendant Hold-
stock, observed that the mention of this circum-
stance, if made yesterday at the opening of the
case, would have had the effect of saving the time
of the court, and of sparing to Mr. Bethull himself the
painful task of casting imputations upon the characters of
the defendants in the cause.
Mr. Ilethell—lle intended not to cast any imputation
upon any party whatever. In appealing to the court it
was necessary to characterise the acts 01)1111113illed Or in the
language in elmmoit use by the court with reference to such
acts The court regarded such :acts as repugnant to public

. - .
..•
Bums Loa. Crimsons (Vies CAANCILLOI). policy : to public convenience and to the benefit of MIIII.
METAIRIE r. WISEMAN. kind, and on that ground would never allow them
Mr. Bethcll, on resuming his address in this case, said be to stand. When, therefore, he used the term fraud,
hail stated yesterday the broad facts on which the case he
eoduiart soot, only inint,threretteeedhuittaalmnsense
within
nrefewrehniccoh
rested, relying only on the farts about which there was no to acts which th! coyurt wouldl not suffer to prevail. By this
dispute or contrariety of evidence. He had left off with rule alone he ventured to judge of the conduct of Mr.
the circumstance that Cooke, disregarding, or at all events Holdstock. Ili* conduct would not be tried here with re-
not complying with, the wishes of Cane, took away the ference to any rule of morality, which this court had no
deed of trust and the power of attorney; he took them jurisdiction,reareto to enforce.
idzbateMdr. Holds tuck w
pi tile highest
away without leaving any copy in the possession of the prepared
which could regulate human conudu'ent, mutiy, a
donor; he left not a scrap of paper or any means whereby principle of religious duty ; that he hail acted through-
the testator might inform himself or his advisers of the acts out in accordance with his duty us a priest, and had
which he had been induced to perform, or of the nature of constrained or induced his penitent to do what his religious
are mt. •thdeyrinjesmolt
tLeirstueoi required. ,
might
igp:trtisiro,ttlaus aethb,r!eb-n
the deeds he had been induced to execute. One circumstance
it would be material to oberve upon in the present case was guilty of any moral delinquency. To the conduct of
wneeillious
the form of the power of revocation reserved in the deed. One Mr. Cooke, however, a different rule of judging might
common mode of giving colour and protection to transaction be applied. As he was not ignorant of the guard* which
eminent judges of this court had for centuries observed to
of this kind involving voluntary gifts by deed was to make
be necessary fur the protection of persons in the siuution of
the deed subject to a power of revocation. One of the indicia Carr:, especially against others in the situation of the
of fairness or unfairness in the mode of dealing had always priest, in judging of him a rule of greater severity might
been sought for in the form of the power of revocation. If be observed. His duty was to have informed Headstock of
fringingned them if so d. It was his duty to have
the power was of easy execution, and without solemnities the principles of the court, and prevented him from in-
being prescribed, then the power was regarded as equiva-
x eplai to the relativesincline of the deceased all that hail token
lent to leaving in the donor a power of disposition cquiva- place. Having forgotten this duty, the same allowances
lent to an absolute ownership. If, on the other hand, could not be made for him u for Holdstock. Whether
the power were connected with solemnities guarded by pe- the influence which the letter had exercised over the
culiar stipulations and required to be exercised in a pecu- testator was or not justifiable in fora conseientice,
it was an influence which the court would not
liar manner, it would be considered o, a power permit. It was sufficient, in the eye of the court, to vitiate
given in name and not in deed, and would any transaction of which it was an element. There were
be regarded always as en indication of unfairness—as an at- other parts of the case made by the plaintiffs, the evidence
tempt to comply with a rule in name only, and not in sub- of which, in some particulars, was contradicted by the de-
stance. The deed here in question contained a power of
afesntadauntosi
ana.Vileietn y
uthitehprarttnfirssot c,iraasn
jeantouatr'arrtfi,vliTenwiess
oinn
revocation which was to be exercised by deed alone, and the 3,0001. cons is. He regard
no money in i'he house, and
not by a mere simple deed, but by a deed to lie executed by hail been incapacitated from going to receive his divi•
two witnesses. The deed bore date the 4th of March, 1847, dends at the bank by illness. The first visit of the
and purported to be made between and by Mathurin Carr 4, priest to Curri, took place on Sunday. Carr, hail not
of 59, Charlton-street, Somers-town, of the first part; the lixtiuTratiseanry wishflicfur
r thbled 01ite`ein" I 's7ict bo f Goan:II;
Right lice. Thomas Griffiths, Doctor of Divinity, Bishop the medical man. priest
Carre mentioned his) ilimeuLl-
of Olena, vicar apostolic of the district of London, ties as to his dividends to the priest, who told
and John Athanasius Cooke, barrister-at-law, of No. 5, him they might be received at the bank without
Old-square, Lincoln's-inn, of the second part. It the attendance of Cared himself. The averment of the
bill was that the priest offered to bring a gentleman who
recited that Mathurin Cared was then possessed would inform him upon the subject, and prepare the neces-
of 7,0001. Three-and-a-Quarter per Cent. Bank Annuities, ea-„ instrument for the purpose, and that Cared thereupon
and that Cane intended thereby forthwith to transfer the consented to Cooke being brought for that purpose, viz.
said sum of stock into the names of himself and the said fur the purpose of enabling some person other than Carri
Bishop Griffiths and J. A. Cooke upon the trust, therein- to receive h dividends. The averment was that this re-
sulted in the interview with Cooke, and the preparation of
aftermentioned. It went on to witness that it was thereby the documents impeached. The evidence certainly showed
declared and agreed between the several parties thereto, that Caere was under a misapprehension as to the nature
that the said sum of 7,0001. and the dividends and income to and effect of the instruments which he signed,and that he was
induced to sign them by the importunity of the priest, and in
arise therefrom should thenceforth be held by the parties
so that
htrieLtliiicteahztgttlitahwenouldeal wliet: I.trittehnihim. sir,eheiLcomeeteit
thereto of the second part upon trust for such persons and
would now proceed to the affidavits. The laffiilavits for
for such purposes as Cure should at any time during his
natural life, by deed to be executed by two witnesses, the plaintiff were—first, that of Matthew Hamilton ;
appoint, and in default of such appointment or so far as secondly, that of Brown ; and thirdly, that of Francois
such appointment (if any) should not extend upon trust tMetairie, one of the plaintiffs and next of kin. Hamilton
o
was represented by the defendants as a dew' ppoiuted man,
permit Cure to receive the income thereof during his life as having expected a large share of the property of the de-
for his own use and benefit, and from and after the decease ceased, and therefore es not likely to give unbiassed evi-
of Carri, end in default of such appointment by him as afore dente as against the defendants. Possibly such might be
said, or so far as such appointment should not extend, the the case. All he asked was that the evidence might have
trustees for the time being were, out of the first dividend to credit when corroborated by the testimony of others not
arise from the said sum of Bank Annuities after the decease open to the same groundn of suspicion. The
of Cared, to pay to Matthew Hamilton, of 59, Charlton- affidavits were then read at length. The mate-
street, Somers-town, the sum of 501. ; to the Rev. James rial parte of Hamilton's affidavit were to the ef-
Holdstock, of Somers-town, clerk, the like sum of 501.; and feet already stated. He deposed to the eircumsennces
to Joseph Hay, clerk in the Joint-stock Bank in Pall-mall, under which Cared had become acquainted with his (Ha-
• like sum of 501. ; and, subject to such payments, the mitten's) late father, had become a lodger with his mother
trustees were directed, after the decease of Cure, at the house in Charlton-street, and after her death had (on-
to pay and apply the dividends and interest of tinued there as a lodger for the last 18 years; that he
the 7,0001. Bank Annuities thereby transferred for occupied two rooms on the second floor; was a man of
the carrying on, maintenance, and support of the great physical rigour ; and, up to the last days of his life,
Roman catholic charity school for girls attached to the had attended various schools in the different suburbs of
Roman catholic chapel of St. Aloysius, situate in Clarendon- London and elsewhere as a teacher of French, performing
square, Somers Town, according to the discretion of the all his journeys on foot. That he did not strictly observe
trustees. It was thereby further declared that in the event the rules of the Roman catholic religion, and took no irate-
of the charity school being at any time discontinued, or the rest in its schools or charities. There was some evidence
trusts in favour thereof becoming incapable of taking effect, that he went occasionally to the Roman catholic chapel,
then and thenceforth the dividends and income which but it was not stated that he ever went to con-
should accrue upon the stock should be applied by the fession or showed any signs of a devotional habit in his or-
trustees for the time being to the carrying on, maintenance, dinary mode of life. One morning towards the end of
and support of such other Roman catholic schools for girls February 1847, Carve was proceeding on a visit to a school
in or near London in such manner as the trustees at Clerkenwell, when arriving at King's Cross he was taken
for the time being should think fit, and accord- ill end returned home. On its being suggested that a me-
Mg to the absolute discretion of such trustees. dical man should be sent for, he declined, stating that it
Then the ordinary power of appointing new trustees was weakness which he suffered from and nut disease.
in the event of the death or retirement of trustees Being then without cash, he was restlessly anxious to go to
was given to the surviving trustee or trustees, or to the ex- the bank to receive his dividends, but was unable to do so.
ecutor of the last survivor of such trustees. The deed then On his becoming worse he was prevailed on by Hamilton
contained a declaration that whilst any person filled the to cell in a surgeon, and the attendance of Gasquet was re-
character of Roman catholic vicar apostolic, or Roman quested. Gasquet was the medical attendant on the school
catholic bishop or coadjutor of such vicar of the district of for girls attached to the chapel at Clarendon-square. Gas-
London, such vicar-generel; bishop, or coadjutor for the time quet was surprised at hearing of Carrie, wealth. the affidavit
being should be virtuti officii a trustee ; and that after the de- described the first visit of Cooke and the priest, and the
cease of Cooke, or his ceasing from any cause to be a trustee inference of Hamilton that all that passed between them
of the said sum of stock, every trustee thereof should he a and Caere related to the dividends Caere desired to receive.
bishop or priest in holy orders in the Roman catholic That on Monday, while Cote and the priest were with
church. The deed was signed by Carve, and witnessed Caere, two females known to the priest, and who resided
by Harriette Louisa Clarke, of Clarendon-square, Somers in the same house with him, celled at the house and desired
Town, and William Charles Brown, of Bona-street. The to see the priest; that Hamilton told them he was up stairs
deed was executed at a subsequent period by Cooke, but on with Cane. They replied they were aware of it, and de-
that day by no other person than Caere. The transfer of sired their arrival might be made known to the priest.
stock, as he had said, was made at the earliest possible mo- Hamilton according) up to the priest and told him
meat; but, owing to the time required at the Bank for two persons had ; but that just before he entered
delivering a power of attorney, was not completed until the room, he heard Cooke say, " Well, sir, you had
within an hour or two of Carne's death. It was admitted better sign this paper now," to which he heard Came
by Cooke that, being named executor of the will, he commu- reply, "No, I shell sign nothing; there is no ne
°seated with the relatives of the testator, but that he withheld cessity for it." Hamilton told the priest of the two
'from them the knowledge of the fact that the deed had been persons below, when the priest, after reflecting awhile, re-
st:seated. The deed was made at the same time as the plied, " Tell them not to mind now. I shall not want