The Express.
London, England, 1860-07-06 00:00:00

TAW -INTELLIGENCE.

(THLB DAY.)

EQUITY COURT.
(Before the Neater of the Bolls.)

His Honour gave judgment in the above saris, which was
argued last term, on a motion for • new trial. It will be
remembered that the bill was filed with a view to teat by
an lam the validity of the three codicils al the will of Mr.
=le. Naftali, of Matlock, Derby. The testator died in
1856. During his hat Illness he implied by words
and gestures an intention to alter his will, but was
unable by reason of his weeknem to make himself intelli-
gible, though he several times pointed to a cupboard in
which, after hiedeath, his will was found. Under this his '
real estate, amounting to 2,0001. • , was devised
to several persons, while his personaltyj,rabout 10,000 f.,
was bequeathed among above thirty legatees The
testator was known to have executed his will
in duplicate, sod another will, bearing the same date as
that first found, was discovered on the day of his funeral by
one of his executors. The last found wrn differed from the
other in that it contained two iftterlineaticnia, one of which
gave 1001. • year to the of in this suit, end it was en-
dorsed " This is my • t wilL" The residuary legatee of
the real estate died • rw weeks after the testator, and
within a day or two of his decease Else found
among papers which had belonged to the testator,
and which had been removed from his house to
Else's, at the instance, it was said, of the deceased
residuary legatee, a gummed envelope addressed to the
testator. This envelope was opened by Mr. Nuttall's
executor, and contained a codicil revoking some of the dis-
positions of the will, and substituting, among other per
sons, Else and a relative for the former devisees. This
codicil bore date the 27th October, 1855, and was
attested by Gregory and Buxton, two tabourer, who had
been many years in the service of the testator. This codicil
was enclosed in an epitome of the first found will, which
contained full references u well to the codicils as to
the unrevoked part of the will. Later in the year
(1856) Else, who was then in office as road sur-
veyor, had occasion to require • book in reference
to road business which was in the possession
of Mr. Newbold, the solicitor of the testator. In this
book, at thg moment it was handed to him, Else discovered
another wiflcil, bearing date Jan. 6, 1856, whereby the will
was still further affected, and greater benefits bestowed
on Mae ; and, last of all, in Oct., lessl, a third codicil was
discovered. else had removed to the house formerly occu-
pied by the testator, and being engaged in SUM( up a
room in an outhouse attached to it, he directed a lad in his
service to clean it. The boy tried to open the window.
which was so high up in the wall that he could not reach
it, whereupon Else with a view to assist the lad, put his
hand upon the window-sill; this gave way, and with it fell
• portion of the wall. Ina hole thus laid open was then
found a small jar containing 23 sovereigns in a beg, and
another codicil bearing date Jan. 12, 1856, and attested by
• medioal man,of upwards of 40years'standing, and also by aa
intimate associate of Mr. Nuttall's. The last codicil disposed
of what remained of the real property chiefly in favour of
Else. It should be added that none of the codicils touched
the personal estate. The issue directed by the court was
first tried before Mr. Justice Ede at the Derbyshire
summer WILMS last year, when a verdict was found
validating the codicils. The defendants then moved for a
new trial, which his Honour granted, chiefly on the ground
that the genuineness of part of the epitome found with the
second will had not been so presented to the jury as to be
regarded as having been decided by them. The second trial
was had before the Lord Chief Baron at the Derbyshire
spring assizes of this year, when after three days a verdict
was found invalidating the codicils. The plaintiffs had now
moved for a third trial. His Honour in delivering
judgment observed that further consideration of the
evidence had certainly strengthened his first im-
pression of this extraordinary clue, that the question
turned on the genuineness of the first codicil. The validity
of the 2nd and 3rd depended on that, which again was to
be decided by the genuineness of so much of the epitome of
the will as related to the codicils. The first part of that
epitome was undisputed, but the second, the important
part, which was unnoticed at the first trial, was the
main ground for the second trial ; that had now
been examined and was found out to be in the hand-
writing of the testator. The testimony of experts
was not in general satisfactory, but in this case
their evidence was valuable, and had led the special jury
to a conclusion in which his Honour concurred. Had this
put been in the testator's writing it would have proved the
first codicil, and removed the improbability of the others ;
if the testator had done one foolish act he might
have done others. As to the resemblance of the
writing to the testator's, it must be remembered
that persons who were in the habit of copying
the writing of others thereby unconsciously ac-
quired the habit of writing like them; the resemblance
therefore would be accounted for by Else's relation to the
testator. it is true there was the evidence of Buxton and
Gregory, but these witnesses by their subsequent conduct
had rendered themselves unworthy of credit. The other
codicils were also attested and the attesting witnesses
were before the jury, who, upon whatover grounds, re-
fused to place reliance upon their testimony. Whether
they were mistaken his Honour would nut say, hut the
whole question was so peculiarly one for • jury that
he should not dissent from their verdict, in the propriety of
which he agreed. There would therefore be no new trial,
and the motion must be refused with coats.

Mr. K. Macaulay, Mr. Mellor, and Mr. Osborne were for
the plaintiffs ; Mr. Serjeant Hayes, Mr. Selwyn, Mr. Sur.
ridge. Mr. Saunders, and Mr. Horsey for the different
dededeete.

COURT OF BANKRUPTCY.
(Before Mr. Commierioner Faae.)
111 TIM seer CHP IDIGLAND AMR /.pus MILLN AND

BAKINO COMPANY (LINTIT.D).-110,011TANT JUDGMIXT.
This was the day fixed for delivering judgment upon •
petition presented by Mr. J. It. Johnson, of Freeschool-
etreet, Bermondsey, praying that this company should be
wound up.
The Commissioner said—Mr. Job Johnson has presented
a petition to this court in the matter of the West of Eng-
land Steam Flour Mills and Baking Company (limited)
stating that he is • holder of 500 U. sheres in the
company; that the shareholclis in .enrol meeting
have resolved that the company shall be wound
up voluntarily under section lira of the Joint Stock Com-
panies Actof 1856; that liquidators have been appointed,luive
proceeded to wind up, and have taken possession of the
property for realisation, but that he is dissatisfied with
their proceedings ; that he is a creditor of the company for
2001. and upwards, and desire that the company may be
wound up not privately but publiclybythia court. Those who
originated proceedings to wind up voluntarily object to Mr.
Job Johnson's proceedings, and allege that he is not
acreditor of the company at all, but only a shareholder. By
clause 105 of the act, it is provided that voluntary wioding-
up shall not prejudice the right of fa Airector to enforce a
public winding-up by the court. Mr. Job Johnson insists
that be is a creditor of the company for 200 f. and interest.
If he is not paid off, of course he can compel a winding-up
in open court. The question then fa—la he a
creditor? He swears he is. Two of the directors
swear he is not. The evidence that he is a creditor is cer-
tainly not quite so clear as one might wish ; but having re.
prd to the documents produced by Mr. Job Johnson,
signed by the chairman and secretary of the company, re.
mguising the receipt of the 2001. by the company from Job
Jobnson,and the liability of the company to pay him lutenist
at 5 per cent.,l must recognise him as a creditor for the MAC
and interest at 5 per cent., although there are expressions in
the documents which create some ambiguity and would au-
thorise some doubt. Ou consideration however of all thee/a-
dmits, all the documents, and all the entries in the com-
pany's books, I think Mr. Johnson is certainly a creditor
for MOi. and interest at 5 per cent. and therefore unless I.e
is paid that sum the company must, if he demands it, be
wound tip by this court under clause 67 of the Joint Stock
Companies Act. If the company are of opinion that the
interference of this court will be prejudicial to their inte-
meta there is &course open to them, which is to pay Mr.
Johnson, and thus avoid the evils, imaginary I think, of
court administration.