The Express.
London, England, 1850-08-06 00:00:00

iLab3 lintelifsence.

HOUSE OF LORI/S.—YESTERDAY.
Prim/ : LORD 91110C01All (AA Lamming), Loan Et 11101.11. ♦RD

lasi BATMOIIer.

Tin GLOSS INIIVILAPICZ CO7IAVT• OP LONDON r. Mac '
XXX it Or CILIDITOILS..-AItILUTMENT.
This appeal against interlocutors of the Court of Session
vu argued last week. The question arose in this way. A
Mr. Scott was formerly en accountant in extensive business
in Edinburgh, and was trustee and factor on several large
estates; among others, on the Cromarty and Culloden trust
properties. 110 died indebted to the former, and
with a large sum due to him from the latter.
By • trust disposition (or will) which he left, he
gave all his estate sod effects to trustees and exe-
cutors, first to pay his debts and then to divide the residue
among his children in the manner prescribed by him. The
trustees proem d•cl to collect and realise the estate, and
before they had comple trig done so they made as (mime*,
and farmed an opinion that the residue of their testator's
estate for the benefit of his family would exceed 22,000 i., in-
chiding a sum of 12,0005. then admitted to be due to the
testator from the Culloden Trust Property for ad.
vancer, &c. Mr. Renton], who succeeded Mr. Scott ad-
mitted that he held the 12,0001. to Mr. Scott's credit; but
claims being made os him as well by the creditors of Mr.
Scott as by his trustees and executor,, he raised an action of
multiplepoindieg (or interpleader) sgainst the principal
esimants,namely, the trustees and executors of the deceaseel,
tho present appellants and the respondent. The claim of
the appellants was for 4,5001., in respect of interest on
125.0001., lent by them on mortgage to • Mr. Tait, the
interest of the sum being guaranteed by Mr. Seottlerho was
trustee and factor over Mr. Tait's estate. The respondents'
claim was for a sum between 9,0001. and 10,0001.
to cover a deficiency to that amount in Mr Scott's accounts
with the Cromarty property, for which the respondent was
his narety. The respondents finding the sum in Rentoul's
hands available for this purpose, stud out diligence, and ob-
tained an rrr e r talent against him (equivalent to an attach-
ment in London.) The contest then proceeded in the Ceurt
of Stollen between the two parties, the respondents and the
appellants, these last representing the trustees of Mr. Scott,
who claimed the sum in Rentoul's hands for equal distribu-
tion among all the creditors. The Court of Session held that
the respondent had by his diligence entitled himself to a pre-
ference to the fund over the other claimants. That was the
decision appealed against.
Lord Broughsm, now moving the judgment of the house,
said the questions were—first, whether the respondent had
by his diligence entitled himself to a preference over the
funds to the other creditors ; secondly, whether Scott's nun
disposition had the effect of an act for the distribution of his
property among the creditors generally ; and thirdly, whe-
ther the respondent, supposing he bad really entitled him-
self to a preference, had dente any act to forfeit that right.
A creditor who, by the law of Scotland, obtained so arrest-
ment over the effects of his debtor obtained thereby a pre-
ference over the other creditors of the debtor who had
not and the same diligence. The respondent in this
case did ebtain such preference, and it did not appear that he
' did anything to forfeit it. The next question then was, what
wee the effect of the trust disposition ? It appeared very
clear that the author of it declared that his executors and
trustees should first pay his debts. That was only putting
I the creditors in the position in wirch they would stand by
law U the testator bed not media any such declaration; so
that under the trust disposition the creditors took no right or
' benefit that they had not by the law. All the creditors being
(goat by law, the respondent by his diligence entitled himself
to be preferred, and having done nothing to forfeit the right
he had so obtained, the court below was perfectly justified in
decreeing the arnstment valid. The Interlocutor of the
coast below must therefore be affirmed.
Agreed to.

PREROGATIVE COURT.—SATURDAY.
BITIAIY. 818
ABHWELL V. Lomt.--JuDootawr.

The arguments in this testamentary cau•• have already
been reported in our columns. The learned judge gave his
decision to-day. He paid the deeeued, Mn. Elizabeth
late of Carlton Villas, Maids Vale, the wife of Dr.
mi, died on the 7th of April, 1848, leaving considerable
property, which was at her own disposal. She appeared to
have very few friends, particularly towards the latter portion
of her life, and no relatives, her two brothers, George
Walker and Thomas Welker, having died during her lite
time. It was under the wills of these brothers that the pro-
perty purported to be dispond of by the instrumeat before
the court was deflect!. Her property consisted in the first
instance, at the time of her marriage with Dr. Loci, of
two sums of 1,0001. each, and 8,0001., one in her own hands,
and the other in the hands of a brother, for certain pur-
poses. By her marriage settlement and deed of confirms.
tion thew two sums became absolutely vested in Dr. Lomi.
By the will of her brother. Mr. George Walker, in 1834, a
sum of 1201. in the Lung Annuities was bequeathed to ibis
lady with a disposing power, and by the will of Mr. Thomas
Walker a very considerable addition was made to her pro-
petty ; under that will the residue of his estate, stated to
amount to 22,0001, beiag devised to her for her sole and
separate use. The exact amount of the property Mrs. Loner
died pcsseneed of was not shown in any part of the proceed-
inge. She appeared to have made several testamentary dis-
positions. Tee first paper bore date in 1831, and gave the
whole of the separate properly of which she was then pos-
sessed, or might become powered of thereafter, to Dr. Lomi.
On the 15th May, 1847, she made another will, by which
she bequeathed a provision to her streams. the two Black-
well', and also gave 100 guineas to Sir Cheeks Scudamore,
who was then her medical attendant, and whom, with a Mr.
King, eke named executors, the residue of her property
going to her husband. This will remained without altera-
tion until October in the same year, on the 7th of which
month another will was executed, by which the deceased
made a somewhat different provision for her servants,
and left her husband the 1101. Lung Annuities with
Banish Bank Stock amounting to 2,7001, which bad been
devised to her under Mr. Thomas Walker's will. She also
gave 5001. to another party, and appointed Dr. Ashwell sole
executor. On the 9th of October another will was executed,
for the purpose it was stated of correcting a mistake or sup-
plying a deficiency in the former instrument. Under the
new will the gave the same legacies and appointed Dr. Ask-
well sole executor, and also residuary legatee, the residue
not having bean disposed of by the will of the 7th of October.
A codicil was executed on the 4th of November following,
revoking the bequest of the English Bank Stock to her Ithe•
band, on the ground that he was well provided for ; thus
ineweeneg the residue in favour of Dr. Adman. The two
latter the will of the Sib of October, 1847, and the
codicil the 4th of November, 1847—were propounded by
Dr. Ashwell as the executor named in them. They were op-
posed by Dr. Lewd, the bmband of the deceased, who was
also the residuary legatee named in the will of the 16th of
May, 1847. The gasetlea, therefore, for the court to
determine was, whether the will of the 9th of
October and the codicil wens proved to be the
acts of a capable testatrix., freely and voluntarily acting and
racarher intentions Into effect. Dr. Ashwell was the
rying
attendant on this lady, who had been long sahibs
seder a severe malady in a very ammvated kegs, and by
which she wee reduced to a great degree so hi as ban,
strength was thassreed. Under nth divagates's@ Dr.
Atha.% tab thig this large property under the mama
dare ta theorth of October ; it was for bin to ails-
taia tho eolith, et that will; the eau lay heavily apes
him, Orr slaw. there wee no rule of law is this *sudsy
that a traded wenean, or any other meth, set me.
pros at glair property In Amur of a medial v
nalsohtsdly it was net etheidered by the *nth w n rasa
able Misr' ; sad mere pertieslarly if the will was Inaba
end elladael soder nosey. sal der
the wads prassethag assumed the thermals of a deader
Yes IsssmMlts. But still, whatever plight be the
open width this castles was to be stal, retrt
was breadth earlier the offset dike salaams, sad give that

party the basalt et auk *Theme, se he es It west to
soh his ease. Thu ere set up by the behead
wee that the eleeeder thaw whit thwih laboured bed orc-
hard, ea way • Tay peel elm wpm her bodily posits,
bat bad aloe kagaM bete heath uheity ; that the ten.
hearty of the disease was to have thateffeet ; that the rams.
dies by Dr. Ashwell were of such a nature aa to
01I•TC owl the unities and impair the mind in a greater de-
pot eves has the disuse itself, and that the tauten: was
seder the endue hilusies of Dr. Ashwall, sad, therefore,
mot a freerageat at the time he will of October was executed.
Oa the Whet hash ft was alleged, that whatever the ten
leafy ef the elseader, although it was denied to have the
etaatiey deserllledlea the other side, yet there woe shuns
lima hoe !whew Mire. Load mein • state of capacity, sad
mahteiced her mental health. up to her death ; and,
she, that there never were my symptoms of impaired
faculties, or the deeded intellect pleaded by Dr.
Lomi that her sets were free and voluntary ; while, with
regard to the will in question, proofs had been
inhibited which dully showed she well knew the effect it
would have upon her property, sad had been h. and to say
she hoped Dr. Ashwell would have a handsome portion for
the kindness sad 'Putties ha had manifested towards her.
On behalf of Dr. Loyd it wee pleaded that be and his wile
had lived together from their sunless to at least the year
1847 on terms of great regard and =vital affectioa. On the
otter elde it was stated in reply that they wore not on affec-
tionate terms with each other during such period ; that from
1834 they ceased to occupy the same bed, and had separate
apartments, and from this it was leaned the wife had an
aversion and dislike to Dr. Leal. It became necersiry under
thus eireumateares for the court to consider the terms o-t
which these parties did live. The marriage took place in
1828 ; there wu no reason to suppose that any diminution
of affection bad taken place between them up to the year
1842, at which period they were residing with Mr. Thomas
Walker. It would be necessary to observe there were cir.
unntanees proved with regard to the bodily health of
lire. Lomi which rendered a separation from the same
bedroom highly desirable if not absolutely necessary in 1834.
Another witness, Mr. B. Smith, a solicitor, who had been
employed by Mr. Thomas Walker in making his will, con-
firmed the preceding testimony aa to the affeedion shown by
the parties for each other down to 1845. The two Blacks
wills, however, who mash certainly to have been very
much attached to their mistress, and to have paid her every
attention, 'gave a somewhat different account. They
stated they never heard her express any regard for her hus-
band, or heaved anything like a degree of affection existing
between them. On the whole, however, the court was of
opinion that up to the year 1845, the time of Mr. Thomas
Welket's death, there was no proof whatever to satisfy it
that a disoination of affection bad taken place. It appeared
in that year Mrs. Loral went to Brighton, and her husband
went to Italy, where he remained until March, 1816, and
with respect to the length of such absence, it was proved
Mrs. toml did express herself in strong terms ; coneidering
he bed stayed abroad to avoid executing the deeds which had
been prepared, for the purpose of securing to her use the
property bequeathed under her late brother's will. On
the return of Dr. Load, however, the deeds were executed
end tit y became reeonciled Sir Charles Seudomore, who
I attended the deceased in 1847 at Bristol, and subsequently
in London, deposed as to the regard and affection subsisting
between Dr. Lend and his wife between the months of
/unary acd July in that year, after which time Its left
town, and never again saw the deceased. This evidence
readered the depositiin of the 16th of May, 1847, in favour
et the husband highly probable, and it remained unaltered
"aril the 3rd of October following. On the 7th of May,
1847, for the first time, Dr. Ashwell saw this lady, he having
bees selected by Sir Charles SCBIIIII3IOIC to attend f er, that
she might have the benefit of his experience and advice in
'the illness under which she was soffering. For some time
'they both attended the deceased jointly, but afterwards Dr.
Asiewell became her sole medical attendant, and according to
the evidence, a great favourite with her. Upon MIL Limes
removal to Carlton Villas there eertaii'l would appear to
have been a chugs in her conduct towards her busbend
without any apparent motive, she only allowing him to enter
her room at stated periods, at other times keeping the door
locked against him. The learned judge then referred to the
circumstances under which the will of the 9th of October and
the codicil were made. The will, according to the testimony
of the Blackwell', was first suggested by Mrs. Lomi to Dr
Ashwell, and appeared, from the evidetce of the solicitor
who drew it up from the instruments of Dr. Lonni, to have
emanated from the deceased herself, Mr. blatthews, the solidi-
tor in question, deposits re that upon hist:ovine en interview wi:h
her she expressed her entire satisfaction with it, end seemed
to perfectly well know and understand its purport, although he
describes her as very weak end feeble at the time. The attest
ing witnesses and the two taunts confirmed this testimony
in most rerpeets, and alto deposed to the execution of the
codicil. There was ro evidence produced to prove any wan-
dering in the deceseed's mind, or that her faculties were so
Impaired as to render her liable to imposition. With respect
to the administration of stimulants, it was impossible for the
court to ester into any discussion of that pant. The only
point the court was called upon to decide was, whether her
faculties were unimpaired or not. The mass of the
evidence was decidedly to the effect that the mind of
the deceased was uninspatr- d, end there fore the instruments
in question must be considered as the will and testamentary
dippoei•ion of a capable testatrix. The court being of opinion
that the evidence was sufficient to support the act, would
pronounce for the validity of the will of the 9:h October
1817, acd the codicil dated the 4th November following, and
decree probate to pus to Dr. Aahwell, as the sole executor
named therein. With regard to the question of !OM, which
bad lo:en strongly urged against Dr. Loral, for having
brought malicious charges against the reputation of Dr.
Ashwell, the learned judge, although he was of epic ion these
charges were not in say degree sustained by the evidence pro-
duced in respect of them, yet did not think it was a case in
whi. h Dr. Lomi could he accused of acting maliciously, or in
a way to render him liable to the costs.
The proctor for the husband rave notice of appeal.

INSOLVENT DEBTORS' COURT.-YESTERDAT.

Emits Na. Couriffttosta Law.
IN THE HATTER OF J•l4 ES DICHENP•uN.-MONET•LENDING

ADVERTIPE/4ENTS.

This insolvent, described as a commission agent and bill
linker, appeared for judgment, on the opposition by Mr.
Sargood, on the part of a Mr. William Hutchinson Little.
He was supported by Mr. Cooke.
Tnis case, which had been before the court on two previous
occasions, diseloeed some extraordinary circumstances con•
netted with money-leading advertisements. The insolvent
advertised to advance money on reversionary property, under
the initials of " A. B ," with an address in Jennyn.street,
St. James's. Mr. Little, the opposing creditor, who was
then an sealed clerk in an office in Lincoln's-inn-field.,
was attracted by the advertisement, and answered it,
which resulted in an interview with the insolvent—
s person of plausible address and gentlemanly manners.
They met, and after several interviews several sums were
raised on Mr Little's reversionary prcperty of 23,0001. con•
sole, for which he had to pay large iet t and to insure
his life. He had advanced the insolvent several sums and
accepted bills for him on certain re presentations, which bills
he had paid, and he was now a loss r of more than 1,0001.
by his acquaintance with the insolvent through the money-
lending advertisement. It wu urged that this money had
been obtained by fraud, end a lengthened judgment was
asked, whilst on the part of the insolvent it was insisted
that it had been advanced by the kindness of Mr.
Little, and that it would be straining the law to decide that
it si u a debt fraudulently contracted.
Mr. Commissioner Law, in giving judgment, said no one
who had heard the case could scruple to say that Mr. Little,
the opposing creditor, had been plundered of a large sum of
money by the insolvent. In order that the adjudication
might be suited to the ease, it was not necessary to pronounce
in terms that the acts were fraudulent, but it was'elear beyond
dispute that the debt had been contracted without any
expectation of payment; but se he had been asked whether
he considered the conduct of the insolvent had been fraudu
lent or not, he would say what he thought on the case.
Whether the insolvent had any intention to pay, or any re-
putation to warrant the holding out hopes of such
a proceeding was a question that must be consi-
dered. Every lender was aware that a borrower was
in present need of mosey, but it did not follow that be
knew facts which would preclude all hope of repayment.
The insolvent had introduced himself to Mr. Little as a
money lender by an advertisement, representing binnel as
willing to accommodate all those who wanted and would
give security, whereas his purpose was the very reverse of
lending, it being to borrow money himself. Borrowing was
no crime in itself, but the pursuit of the insolvent, so
far as it could be ucertsfaed, was the trade of borrowing
money, and he had no b aka, no accounts beyond the list of
debts, which showed that the only trade the insolvent had
carried on from the year 1817 to the present time
was that of borrowing money. The insolvent bad peti-
tioned the wen in 1830, but tiled ao schedule. In 18':6,
he again petitioned this court, and was then discharged
frees debts to the extent of 7,8001. The debt. were
all for money borrowed, except a few tradesmen's debts.
He (the Commissioner) only referred to these proceedings
to see what had been the nature of the insolvent's pursuits
The present schedule showed debts to 7,0001., and the in-
solvent's description was that of a hill broker and commission
agent, with no books or anything bearing use aspect of
regular business. When 'eked what had become of the
1,1001. obtained from the opposing creditor, the insolvent
could only recollect 6501. lent by him to a friend, since dead,
who but money at Epsom. The insolvent, with a long cape
nonce, with heavy debts pressing on him, and all his former
debts unpaid, put forth an advertisement which entrapped
Mr. Little. That gentleman, then your g, wanted to borrow
2001., which ultimately grew into 1,6W1, but not for
his own benefit. In these transactions Mr. Little had
not been put in funds to 1001. There were three sorts
of persona who derived benefit in this ease—usurers and
money leaders, who got 10 per cent. ; lawyers, who got 10
per cent. ; and the procurer (the insolvent), who got what
he could, and in this ease he had for hie own there suc-
ceeded in pocketing the greater part of the whole, while the
young man who towered the advertisement got hardly any-
thing. The insolvent had said that the oily offices with
which he did bushier were the Freemasons (now the Albert)
and the Eagle, bat except the policies on the creditor's lite
he did not see what ettanexlme those companies bad with the
trameation. No bleineee had been done with them as
asearance companies, although loans had been advanced. The
leaden were ladividuel parties belonging to those companies,
the chief leader lsslag Mr. Henry Porter Smith, who in 1847
wee estuary of the Basle Assurance Company, end the lawier
wee lb. Gee. Goldsmith Kirby, the ramming directed (Me
Freemeemee, maw the Albert Assurance Company. The
learsederimmiedemerrmtewedtkeevidence detailed in the sof-
deem Mem, sad remarked that of the four loans for 1,6001.
the inaelmat had by Ms own amain obtained between 9001.
and 1,00 L, living so ma*, Is Mr. Little, from whom the
amplest Nerillity had bees demsdod under the cautions ears
of the Massilscltrieter of the rftellillollle Assumes* Com-
may. TM Ineedirent elm get 1101. of Mr. Little in Medlars
et sempleases, which that endow had been sued upon
sad hod bins impelled to pay. Whoa On osousitlio is (sea

khans would lane bent realised, Mr. H. P. Smith
same forward to advance 2,0001. wherewith to pay
off the pnalums of 1,5001. Mr. Little bad always
bets led to expect that the usurious interest of 10
per rent. had been required became no notice had been
given to the trustees, but that on the fresh loan being raised
in lieu of the otters, notice would be given and fire per
ant. would be charged. If the lawyer and the lender bad
sanctioned this representation to be made by the insolvent,
then three would be • breach of faith ea all hands ; bat If
the insolvent made it without their authority it could only
be considered as additional piece of dealt, lee in feet,
although notion wee given to the trustees eight per cent was
the minimum rate of interest required by Mr. Susi h. Mr..
Kirby, on that occasion, did en act of liberality in doing the
lawweetk of the new lean, charging only 1001. instead of
2001., which it would have been et hie former rate. Mr.
Little 's friends Wettest/1y became acquainted with
the whole trimmetioe, and bad been enabled to
transfer the securities to parties lees usurious, being
held now by the Palladium Office at 5 per cent., Mr. Little
had been accommodated to • very small extent by the 1,5001.
for which he stood liable as borrower during the yt cer that
he acted as the tool of the insolvent. The utmost that Mr.
Little sot after taking up ecceranees given for the seoom
@iodation et the insolvent, and payment of interest, was
451., although be was left encumbered with a liability of
1,5001, Such were the facts of this case, which differed
perhaps in some points from the eases of fraud and
chicanery discussed uometims a at the criminal side of en
assize court; but lathe spirit of fraud and plunder it /quelled
missy of those eases. Under the pretence of secommodating
with loans young men who could give security, he &deer-
deed and caught the opposing creditor, and succeeded in
putting into hie own porket what he well knew it would be
out of his power to restore. In his opinion the ease was
tinged with fraud, and was, as far as he could judge from
the schedule, but • sample of the insolvent's accustomed
punuita. The judgment of the court was, that the insolvent
be imprisoned for a period of eighteen calendar month., for
contracting a debt with Mr. Little without any reasonable
expectation of payment. The judgment will detain the in-
solvent, who has been in prison since September, until
November, 1851, the vest .g order being dated in May last.