The Express.
London, England, 1848-06-19 00:00:00

lab) Entelltgence.

EQUITY COURTS.
Before the Lord Chaos/Bor.
ST. VICTOR V. lARVERRUI.--COMPISCATRD ESTATES of
BRITISH Businicra IN FRANCE.--CLaiwo or FHINCH
SUBJECTS ON THR COMPENSATION FUND.—DBMURICER.—
bITRENATIONAL LAW.—This wu an appeal from an
order of the Vice•Chaucellor of England, allowing a
demurrer te the bill. It appeared from the state
meats of counsel, that in the year 1776, Mr. Fan-
ning and wife, with their son and daughter left
Ireland and settled in the department of La Smythe, in
Frame, where they purchased an estate called " La Roche
Talbott." Meet of the purchase money haring been derived
from Mrs. Farming's property, the said estate was, accord-
ing to agreement, %%rayed to her hurbsod and her, is

" community," according to the laws of France. They. had
then ob ained letters of naturalisation and also nt
lity.
Mr. Fanning died in 1788, whereupon her moiety of the
estate went, setording to the French law, to her eon and
daughter In equal sharer The son mortgaged his fourth
pert of the estate to parties subjects of France,
is whose right the plaintiff, a Fresehman, filed
this bill. In 792 the whole estate of La R then
French wan sequestered to the use of the
French government; and all excerpt the wood lands was soon
after sold as the property of emigrants. Fanning, the son,
died in 1799 unmarried rod intestate, whereupon his fourth
share of the estate, if it ha o been confiscated, would go
to his sister. She died in 180,1, also unmarried and intes-
tate. and thereupon the two shares of her and her brother
would go to the father, together with his own moiety. The
father, by kis will, made in London In 1804, devise I and
bequeathed all hie estate, real and personal, wherosoeveg,to
Edward James Devereux. Fanning, the father, died in
Paris in tete% having there made some codicils, by which,
and the will taken together, his whole property was to be
divided into three party, one part thereof to go to his cousin
Januarius Fanning, then a lieutenant in the Neapolitan
service. He died before the testator, and his
share therefore lapeed. A second part was to be
applied to the poor of Waterford in Ireland, the testa-
tor lasing a native of that put; and the third part was
Riven to Mr. Devereux, who was appointed sole executor.
lie was then in Paris, and took possession of all the tatator's
papers ; there was then no property whatsoever of the tes-
tator. After the conventions between England and Franey
in 1814 and 1815, and aloe 1818, English commissioners were
appointed to distribute the fund then set apart by the French
government to liquidate the claims of British euhj. eta in re-
spect of property confiscated by the revolutionary govern-
ments, Mr. Devereux put in his claim as executor of Mr
Fanning, :he testator, and, in 1821, an adjudication was
made by the commissioners awarding him a sum exceeding
40,0004 , with interest for mere y years, in respect of so much
of the estate of La Roche Talbott as had been sold, and in
rope ct of the chattels and moveables thereon et the time of
confiscation. And under the same award he claimed
and got posse.. on of the unsold wood lands. After
the award Mr. Marcus L. Hill and others, claiming
to be the heirs of Mee. Fanning and children, and to be
entitled, according to the French law, in the events th
happened, to the value of the moiety of the end estate,
brought in a claim before the comodssioneni of liquidation,
and being by them excluded as too late they filed a bill in
Chancery in the cause of " 1141 r. newton," which engaged
the courts of Chancery for some yews; and at !sat Lord El-
don decided against the plaintiffs in that suit. The commis-
sioners of charitable donations in Ireland also put in a claim
for one-third of the money awarded to Devereux, and they
succeeded, end obtained in 1827 one-third of the sum
awarded, which, with the interest upon it, then amounted
to 20,0001. The other two-thirds, then making, with the
interest, about 40 0001., were paid out to the assignees
of Mr. Devereux, who died some time after. The present
bill was filed in lit 3, on behalf of representatives Mae marl-
gageu and credittes of Fanning, the son, and it prayed that
Devereux's representatives and the commissioners of chari-
table donations might be compelled to pay into
court so much of the ninety paid to them as would eatialy
th the claims of .le creditors. The plaintiff', it appeared, hail
agreed with the representatives of the French mortgagees
and creditors to prosecute the suit at his own expense for
lone-third of the money to be recovered, of which he obtained
an assignment from them in the French form, with power to
prosecute tee suit.:lle sued as a pauper.—Mr. C. P. Cooper,
Mr. Lee. and Mr Murray, in support of the plaintiff's ap-
Ppeal against the Vice-Chancellor's order, insisted that by the
aw of England and France the mortgages and judgments
on Faening's (the con's), part of the rota e had affected the
whole of the estate in his fattier after the eon's death, and
were recognised by the father, sod was the first charge on the
compensation fund. Devereux fraudulently suppressed this
claim before the commissioners; and, having possession of
all the papers and instruments relate' pt hi the estate, with-
held all knowledge of his proceedings, hem the other claim-
ants. They relied much on the observations of Lord Eldon, in
the case of" Hill v. Reredos " 12 Russel', 608), to the effect,
that if the adjudication made by the commissioners under the
reinvention had been affected with treed the court had
jurie iction to relieve lumina such adjudication. Devereux
fraudulently concealed the charges en the confiscated pro-
perty, and obtained compensation for ail. The compensa-
tion was awarded for the whole estate, whereas the party
making the claim was only entitled to so much as belonged
to the father, the testator. There was equity enough in the
case to support the hill.—Mr. Rah, Mr. Heber, and Mr. C.
Heaven supported the demurrer, first taking preliminary
objections to the suit as partaking of maintenance and chem.
perty, and on that point referred to " Harrington r.
Lore" (2, Myl. and h.., 490). They next objected that the
plaintiff, as whence of one third part, sued in his own name
(or the whole, and not in the names of the credit es, making
theirrepresentatie.s, wlioare entitled to two part., defendants.
t They also objected to the lapse sal tine through the neglect
of these creditor.. The compensation money was awarded
in 1821 and paid out in 1827, whereas this bill was not filed
till 1813. As to the merits of the suit, they, like the plain-
tiff's cunsel, relict on the decision in dicta set legal Eldon,
in " Hid at. Reardon," and also the position that the fund
was set apart by the French government for compensation to
British subjects, and not for French subjects, who bring for-
ward this claim. That claim is made in respect of the fourth
those of the Mite, which is said to have been vested in
Fanning the younger after his mother's di ath ; hut it ap-
pear. d that he was not a British subject fur the purposes of
this suit.—Mr. Lee was heard in reply.
On Friday, the Lord Chancellor, in giving his judgment,
stated the principal circumstances of the case, and said he
could not help think ag that the prosecution of thin . leim
w .s in some measure encouraged by the nheervatione nl the
learned judges. (Sir J. Leach amid Lord Eldon) who decided
the case of " Hill v. Reardon" (see Jae-lib's Rejoins, p. 84;
2 Simons and Stuart, 431 ; and 2 Russell, C 08). That was a
suit instituted by part;es claiming to be entitled to part of
the same compensation fund in right of Mrs. Farming and her
son and daughter, of whom the plaintiffs in " Hill v. Rear-
don " claimed to be co heirs. S:e J. Leach, before whom that
oleo first came to be ht erd, on a demurrer to the bill, saw the
merits of the whole case attne glance, according to his man-
ner, and disposed of it on the one point ; vie , the it was an
appeal from the decisi in of the commissioners of liquidation
and of toe privy council, sad that over such decisions the
Court of Chancery had no juristiction. He certainly used
expr. miens beyond the purome of his decisi. n. From that
de china the ea e came by appei-1 before Lord Eldan, rind he,
according to his inarmer, looked at every poled of the ease,
but took care not to express any decide :opinion on any point
of it. He, however, came to the tame conclusion ulti.
mately to which Sir J. Leach had come, that the bill
should be dismissed. The claim to the fund in the present
case was made by French subjects as repel sent Ai.. s of other
French subjects, who had mortgages and judgment d.bts
affectug that part of the estate which belonged to Fanning,
the eon. Now the fund set apart by France under the con-
ventions and treaties of 1814 and 1815 we' a fund to comp. n-
rate English subjects for their lossueltinng the revolutimary
governments. The allegation in the bill was, that D. vereul
claimed compensation for the whole estate on behalf of Fan-
,' ping, the father, who mu entitled at best only to • moiety, the
other moiety being subject to the debts of Fanning, the son ;
that comp usation for the wbo'e loss was awarded to Deve-
reux, in right of the father, whereas the pr.- ent claimants
say they are entitled to one-half of it in right of the son;
and the defendants are bound, as representatives of Deve-
reux, to refund oncehalf ce" the sum received by him u exe-
cutor. Suppose the son, or those who now claim under him,
were once entitled to half the compensation, the ques-
tion is, whether the court can compel the defendants
to restore the money paid out to Between:. The case of
" 11.11 v. It melon" is decisive on that point. (His lordship
read passages from the report in 2 Russell.) The present
plaintiffs are in the same position as the plaintiffs were in
that case, and both Sir J. Leach and Lord Eldon decide d
azeinst the m. His lordship could not concur in those ohm r-
eaten' of Lord Eldon, toils, effect that a party a ho received
the compensation money under the award could be held a
trustee and bound to refund. The court had not jut isdiction
to do that. But even if it had such jurisdiction in such a
cue, still it could not exercise A here in (Bement French sub-
jects, the fund against which they claimed being a fund set
apart to answer claims of British euhjects. On the fleet of
the two questions in the case—namely, the jurisdiction of the
cowl, the case of " Hill v. Reardon" was a conclusive au-
thority against it, and in the second the general law upon
the interpretation of the treaties was conclusive against the
claim of French subjects. His lordship was therefore of
opinion that the Vice-Chancellor's order, allowing the de-
murrer to the bill, must be affirmed.